Legal News

In this issue: International Arbitration Other arbitration and ADR-related news and developments Useful Information Lex Talk®Arbitration: a Lexis®Nexis community Daily and weekly news alerts International Arbitration India—arbitral award vitiated at its root by misreading/misunderstanding of the basic contractual framework The dispute in Trans Engineers India v Otsuka Chemicals centred on a tribunal issuing a ‘nil’ award on rival claims and counterclaims arising from a plant expansion at a Rajasthan project site. The bid to set aside the award succeeded, with the court emphasising that neglecting to grasp the parties’ foundational contractual framework leaves an award open to attack. The ruling underlines that arbitrators must first appreciate the parties’ relationship and contractual architecture before turning to the substance of the case. Drawing on five Supreme Court of India authorities, including the recent DMRC Ltd v Delhi Airport Metro Express, the judge...

The appeals court held that Spain’s consent to the Energy Charter Treaty ( ECT) empowers federal courts with jurisdiction to recognise and enforce the awards, observing there were compelling reasons to conclude that the ECT’s standing consent to arbitration extends to EU nationals. The panel’s determination was decoupled from the arbitral rules applicable to the three awards addressed in the consolidated appeal, each granted to European renewable energy investors. Still, those procedural frameworks may assume greater significance when federal courts decide whether the awards should, in the end, be enforced. Two of the awards were rendered by tribunals convened under the aegis of the International Centre for Settlement of Investment Disputes ( ICSID), a Washington, DC-based arm of the World Bank. The third, by contrast, emanated from a tribunal constituted pursuant to the arbitration rules of the United Nations Commission on...

What are the practical implications of this case? The ruling makes plain that a misinterpretation of the underlying contractual structure exposes an arbitral award to challenge for being contrary to the public policy of India and for patent illegality apparent on the face of the award. The judge added that any later analysis or evaluation within the award is equally tainted by that foundational misunderstanding. Consequently, any findings anchored in that error cannot stand. The effect of the decision is that courts will refrain from revisiting contractual construction on the merits, yet they will intervene where the stance taken is unreasonable and cannot be reconciled with the evidence on record. The judge affirmed that an arbitrator must not go astray by pronouncing on the relevance of multiple contracts without first properly appreciating the framework that defines the parties' contractual...

In this issue: Arbitration in England & Wales Arbitration under the AA 1996 Act International Arbitration Institutional and ad hoc arbitration Other arbitration and ADR-related news and developments Daily and weekly news alerts New and updated content Arbitration in England & Wales England and Wales— Supreme Court rules on arbitration seat jurisdiction issues The Supreme Court has issued a unanimous judgment in Uni Credit Bank Gmb H v Ruschemalliance Llc [2024] UKSC 30. The appeal tested the Court of Appeal’s position on jurisdiction, addressing which law governs the arbitration agreements and where the claim should properly be brought. The Court concluded that English law applies to the arbitration agreements, even though a different country was chosen as the seat. It also found England and Wales to be the appropriate forum because Uni Credit could not secure an effective remedy in the French courts or from an arbitral tribunal. Commentary is provided by Paul Key KC (...

What are the practical implications of this case? The ruling is a continuation—unsurprising to many—of the ECJ’s Achmea judgment at national level in Germany. It aligns with the broader EU trajectory, moving away from intra‑ EU arbitration. The German Constitutional Court confirms that Member State courts, as a matter of EU law, are bound by Achmea and must implement the judgment domestically. Remarkably, the order refusing to admit the complaints provides unusually detailed reasoning, which is comparatively rare for such decisions. This likely reflects the issue’s political and economic importance, especially for investors within the EU. The depth of the reasoning indicates that the German Federal Constitutional Court aims to set out a clear stance on the matter, likely to deter other investors from turning to the constitutional court against annulled arbitration awards in the future. What was the background? Procedural history A...

Uni Credit Bank Gmb H v Ruschemalliance LLC [2024] UKSC 30 [2024], All ER ( D) 34 ( Sep) What are the practical implications of this case? This decision underscores for practitioners the need to draft with precision so that the parties’ intention regarding the law governing any arbitration clause is unmistakable. The Supreme Court reaffirmed the approach in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, confirming the following: a contractual choice of law ordinarily extends to the arbitration clause within that contract, unless the parties have clearly provided otherwise, and that conclusion holds even where the designated seat of arbitration is in a jurisdiction with a different legal system Typical governing law provisions in finance documentation are usually drafted broadly enough to capture any arbitration agreement they contain. Here, the bonds’ governing law clause applied to the bonds...

DJA And DJB [2024] SGHCR 10 What are the practical implications of this case? This decision succinctly distils the principles that steer the court when considering a case management stay of proceedings brought to annul an arbitral award, and sets out the relevant approach. It explains that such a stay stems from the court’s inherent jurisdiction to regulate its own procedure, and is administrative in character. Accordingly, the court is not rendered functus officio once the stay is imposed, and retains a free-standing authority to lift it thereafter. By contrast with a statutory stay under section 6 of the Arbitration Act 2001, a case management stay does not call into question the court’s jurisdiction over the controversy to which it relates; it simply influences the claimant’s selection of the sequence in which s/he advances proceedings. In deciding whether to exercise its power to grant a case...

Novak (2) Nola (3) Nadim V (1) Norwood (2) Numai [2024] DIFC ARB 012, [2024] DIFC ARB 12 What are the practical implications of this case? The Novak v Norwood ruling reasserts the very stringent bar for annulling an arbitral award under the DIFC Arbitration Law. Advisers should caution clients that attempts to overturn an award in the DIFC Courts will only succeed in truly compelling circumstances. The judgment carries weight in four principal respects for arbitral practice in the DIFC. First, the DIFC Court found that the public policy carve-out in the DIFC Arbitration Law was not triggered because no established criminal conduct occurred within the UAE. A criminal conviction in the UAE would have been required to evidence a breach of public policy, and untested accusations of criminality in foreign jurisdictions do not suffice. Second, tribunals seated in the DIFC may admit hearsay, and, in any...

After a midday recess, lawyers for both parties told the court they had reached an accord under which the DC enforcement action will stay on hold until May 2025. The announcement followed roughly three hours of argument on Russia’s request to pause the matter while it seeks to annul the award before the Paris Court of Appeal. Joint Stock Co State Savings Bank of Ukraine, known as JSC Oschadbank, is pressing for confirmation of the sizeable 2018 award it obtained on claims that Russia expropriated the bank’s Crimean assets after its 2014 invasion and occupation. Although Moscow asserts on the international stage that Crimea is part of Russia, both the US government and Ukraine publicly recognise Crimea as belonging to Ukraine. During the hearing, US District Judge Ana C Reyes expressed unease that resolving her court’s jurisdiction in...

In this issue: Arbitration in England & Wales International Arbitration Other arbitration and ADR-related news and developments Daily and weekly news alerts New and updated content Arbitration in England & Wales England and Wales—testing the limits of English courts' pro-arbitration stance In June 2024, the Court of Appeal in Eternity Sky Investments Ltd v Xiaomin Zhang explored how the UK’s policy of safeguarding consumers aligns with, and potentially cuts across, the policy favouring the enforcement of international arbitration awards. See: Testing the limits of English courts' pro-arbitration stance. Supreme Court rules on arbitration seat jurisdiction issues in anti-suit injunction ( Unicredit Bank Gmb H v Ruschemalliance Llc) The Supreme Court delivered a unanimous judgment in Unicredit Bank Gmb H v Ruschemalliance Llc Rus Chem Alliance [2024] UKSC 30, holding that English law governed the arbitration agreement even though another country was chosen as the...

Rohan Builders ( India) Pvt Ltd v Berger Paints India Ltd [2024 INSC 686] What are the practical implications of this case? The Supreme Court’s decision delivers significant consequences for arbitration practice in India. Central to the ruling is the recognition that, while a tribunal’s mandate formally ends when the stipulated period expires, it is not irretrievably extinguished if an application seeking extension is moved after expiry. This is a watershed clarification that shields arbitral proceedings from being undone by mere procedural niceties. For practitioners, the ruling introduces a more accommodating framework when guiding clients through arbitration. Anxiety around a mandate lapsing—and the attendant prospect of starting afresh—has been eased. Parties may now approach the court to enlarge time even post-lapse, so long as sufficient cause is demonstrated. The result is a tangible saving of time and expense otherwise spent on...

Eternity Sky Investments Ltd v Xiaomin Zhang [2024] EWCA Civ 630 The Court of Appeal confirmed enforcement of a US$64m Hong Kong-seated arbitral award against Xiaomin Zhang, dismissing her reliance on the UK Consumer Rights Act 2015 ( CRA 2015). Although the outcome may appear routine, the judgment carries a clear signal for businesses dealing with consumers. In his leading judgment, Lord Justice Stephen Males stressed that, where CRA 2015 is engaged and breached, consumer protections would override an arbitral award on UK public policy grounds, requiring the court to refuse enforcement. The ruling sits alongside Payward Inc v Chechetkin [2023] EWHC 1780 ( Comm), where the Commercial Court declined to recognise a US award on public policy grounds, in part due to CRA 2015. Together, these cases illustrate rare situations in which the English courts’ traditionally...

Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 What are the practical implications? On complex, multi-party undertakings like construction, parties can draft for joinder or consolidation of arbitrations across interlinked contracts, allowing a claimant to pursue recovery against all contributors to its loss within a single reference or co-ordinated proceedings. Another pathway is to contract out of the proportionate liability regime, making one contributor answerable for the entire loss, irrespective of its share, leaving that party to seek contribution from others. If neither mechanism is adopted, the probable outcome is that the claimant will target either the principal wrongdoer or the party with the deepest pockets in the arbitration (where an arbitration agreement exists), and then initiate separate actions against any additional contributor with a realistic capacity to satisfy a judgment. As Justice Steward observed, the outcome of this appeal...

EBIX Cash Pvt Ltd v State of Maharashtra and others Writ Petition No 6707 of 2024 What are the practical implications of this case? The ruling affirms party autonomy, long hailed by the Supreme Court of India as the overarching and guiding principle of arbitration. It reiterates the judiciary’s duty to honour and give effect to the parties’ intention to resolve their disputes through arbitration. The decision further confirms that, by its very character, an arbitration agreement stands distinct from the substantive contract. Under Indian law, the initial presumption is that an arbitral tribunal may determine the existence and validity of the principal contract between the parties; and, through the doctrine of separability, the arbitration clause endures despite termination or invalidity of the underlying agreement. Read together, these principles reinforce the autonomy of the arbitral process and the independence of the...

In this issue: Arbitration in England & Wales International Arbitration Investment treaty arbitration Institutional and ad hoc arbitration Daily and weekly news alerts New and updated content Arbitration in England & Wales Arbitration Bill reaches Committee Stage The Arbitration Bill entered the House of Lords’ Committee Stage on 11 September 2024. It has been scrutinised clause by clause, with potential changes capable of being adopted. A marshalled schedule of proposed amendments has also been compiled. See: LNB News 11/09/2024 53. Law Society publishes report hailing England and Wales as world's legal centre The Law Society’s International Data Insights Report concludes that England and Wales sit at the global heart of arbitration and commercial dispute resolution. Per the report, English law governs trillions of pounds in cross-border contracts and transactions. The London Commercial Court issues more written judgments annually than the leading commercial courts of other jurisdictions. See: LNB News 11/09/2024...

Usine Pingouin SA v Unilever Case 67/2024/69 What are the practical implications of this case? This ruling signals a shift in the UAE judiciary’s stance on the enforcement of foreign-seated arbitral awards, particularly those falling under the New York Convention, notably. Historically, UAE courts insisted on exacting formalities around the execution of arbitral awards, and such rigidity often obstructed enforcement. In contrast, the Dubai First Instance Tribunal in this matter permitted recognition of the award in the UAE even though the arbitrators’ signatures appeared on a distinct signature sheet. This judgment thus reflects a broader transition on the UAE mainland towards a more arbitration-supportive posture by the courts. In addition, the decision illustrates the present judicial attitude in the UAE mainland to compelling arbitration agreements against parties who did not sign them. The court declined to refuse enforcement merely because the successor to the...

CBI Constructors v Chevron Australia [2024] HCA 28 What are the practical implications of this case? Australia’s courts have cautioned parties that, where arbitration is split into stages, they should avoid reserving claims solely for the later phase. While that hazard arises within the arbitration process, the ruling demonstrates that, even if a tribunal entertains belated claims, Australian courts may intervene to enforce the bifurcated structure—particularly where a party sought or consented to it. Courts may therefore require adherence to the agreed sequencing and resist attempts to revisit it, holding participants to the bifurcation they requested or accepted. For common‑law arbitration practitioners, and mindful of the divergence between the majority and the dissent as expressed in their respective judgments, the HCA’s ruling confirms Fidelitas Shipping Co Ltd v V/ O Exportchleb [1966] 1 QB 630 as authority for the proposition that, where an award is...

GPGC Ltd v the government of the Republic of Ghana, 200.328.375/01 What are the practical implications of this case? The Amsterdam Court of Appeal in GPGC v Ghana holds that, in the Netherlands, an application for enforcement that falls short of the formalities in Article IV of the NYC may still be granted in defined circumstances. The stipulation in Article IV(1)(b) NYC—requiring submission of the original arbitration agreement or a duly certified copy with the enforcement application—is not enforced rigidly where the Dutch courts can ascertain, by other means, the presence and terms of the arbitration agreement. Accordingly, omission of the instrument itself, or a certified duplicate, need not be fatal if the court can otherwise verify its existence and contents. This approach mirrors earlier rulings (see, for instance, ECLI: NL: GHAMS:2022:3325 and ECLI: NL:...

In this issue: Arbitration in England and Wales Arbitration under the AA 1996 Act International arbitration Investment treaty arbitration Institutional and ad hoc arbitration Other arbitration and ADR-related news and developments Lex Talk®Arbitration: a Lexis®Nexis community Daily and weekly news alerts New and updated content Arbitration in England and Wales England and Wales—interim mandatory order to withdraw foreign proceedings The Commercial Court in Renaissance Securities ( Cyprus) Ltd v ILLC Chlodwig Enterprise [2024] EWHC 1827 ( Comm) issued interim mandatory relief compelling the defendants to discontinue Russian proceedings commenced contrary to an English arbitration agreement. Although the English court had already made anti-suit and anti-anti-suit injunctions, the Russian case remained ongoing with imminent steps pending. Accordingly, the court extended the existing injunctions and, in addition, imposed an interim mandatory order. The judgment revisited the tests for...

Teo Heng Tatt v All Kurma Sdn Bhd & others PA-24NCC-42-11/2023 What are the practical implications of this case? This decision offers practical direction on when the court should grant a stay under section 10 of the Malaysian Arbitration Act 2005 (the ‘ Act’), especially in shareholder conflicts and minority oppression petitions. The judge considered whether an oppression complaint falls within the meaning of a dispute under the shareholders’ agreement and is therefore captured by the parties’ arbitration clause, and also what conduct amounts to ‘steps in the proceedings’ for the purposes of section 10 of the Act. The court further analysed the arbitrability of oppression claims. In doing so, the judge explored the tension between a party invoking statutory remedies (under the Malaysian Companies Act 2016) and the parties’ contractual commitment to arbitrate their disputes, and explained how that interplay should be...