Legal News

In any dispute resolution process, evidence is central, with contemporaneous documentation frequently the most compelling proof of all (here, ‘documentation’ is to be understood as covering any medium in which data is retained, such as hard copy records, emails, text messages, Whats App chats, and so on). Although relevant documents may sit with both sides, in many matters they are held solely by one party. Accordingly, both domestic legal systems and private dispute resolution fora (ie arbitration) have fashioned laws and procedural mechanisms that oblige disputing parties to produce such material (commonly termed ‘disclosure’, ‘document production’ or ‘discovery’). Those frameworks differ markedly between common law and civil law jurisdictions. In this piece we consider these divergences, the manner in which international arbitration seeks to bridge them, and some of the practical challenges encountered. The common law and civil law approaches to...

The Federal Republic of Nigeria's 29 August 2024 stay motion seeks additional time to petition the Supreme Court for a writ of certiorari, in order to advance its contention and position that it does not qualify as a 'person' under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention, June 1958), because it 'acted solely in a sovereign capacity' when it concluded an agreement with Chinese company Zhongshan Fucheng Industrial Investment Co. Nigeria also asks the court to pause the issuance of the DC Circuit's mandate for 90 days following the appeals court's 9 August 2024 decision favouring Zhongshan's application to enforce the arbitral award. Zhongshan had initially brought the case in a DC lower court after a London arbitration tribunal determined in March 2021 that Nigeria had infringed the Chinese company's rights under the treaty...

Republic of Korea v Elliott Associates, LP [2024] EWHC 2037 ( Comm) What are the practical implications of this case? In investment treaty arbitration, it is routine to draw a line—on the one hand—between 'jurisdictional' questions and—on the other—'substantive' questions. This demarcation often produces bifurcated proceedings, so the 'substantive phase' will only start after the 'jurisdictional phase' ends, with the tribunal confirming that it has jurisdiction. Yet, as this judgment demonstrates, that categorisation is imprecise. Section 30(1) of the Act makes plain that 'substantive jurisdiction'—the absence of which can be relied upon to challenge an award—covers three points: the existence of a valid arbitration agreement, whether the tribunal is properly constituted, and the matters referred to arbitration in accordance with the agreement. Only these are issues of substantive jurisdiction; others are not. The court emphasised the need for sharp...

Swire Shipping Pte Ltd v Ace Exim Pte Ltd [2024] SGHC 211 What are the practical implications of this case? The decision clarifies indications in prior authorities that a plainly incoherent award can be set aside where the incoherence reveals the tribunal failed to comprehend or address the dispute before it, thereby depriving the parties of a fair hearing. The judge emphasised that ‘manifest incoherence’ is merely a signpost rather than an end in itself. What matters is whether that incoherence brings the dispute within one of the statutory bases for setting an award aside. Put briefly, the fact that a tribunal’s reasoning appears illogical is not, by itself, a distinct basis to challenge an award, unless the incoherence demonstrates that the tribunal overstepped its jurisdiction, breached natural justice, or departed from the agreed arbitral procedure, and the like......

What are the practical implications of the case? The immediate takeaways hardly need emphasis: tribunals must resist copying-and-pasting wholesale from earlier awards or parties’ submissions, and they should invite the parties to address any propositions and authorities that the tribunal knows it may deploy in its award. Further, caution is advised when appointing the same arbitrator to multiple unconsolidated references—whether running in parallel or one after another—simply to capitalise on their familiarity with the subject matter. Where counsel are not common across all proceedings, there is a real danger that at least one party remains unaware of what the tribunal has been told, and the tribunal, or the shared arbitrator, may struggle to keep facts and arguments properly compartmentalised. As International Judge Simon Thorley observed, while such mental quarantining might be theoretically achievable, it is laden with difficulty. In this instance, the...

DFL Ltd & another v Koncar Generators and Motors Ltd 2024 INSC 593, Supreme Court of India What are the practical implications of this case? This ruling underscores the importance of managing exposure to currency volatility throughout enforcement. For commercial lawyers, it is essential to counsel clients to embed precise currency provisions within their agreements, so as to avert difficulties triggered by interpretations under domestic law. Doing so ensures the parties’ chosen currency terms take precedence over statutory mechanisms, delivering certainty and lowering the likelihood of disputes. The judgment sets out clear guidance for practitioners on fixing the exchange rate for assessing claims, thereby averting unnecessary litigation. For arbitration practitioners, the court confirms that a foreign arbitral award becomes enforceable once challenges are conclusively determined. This bears upon how advisers direct clients on the timing of deposits and withdrawals during enforcement...

Commodities & Minerals Enterprise, Ltd v CVG Ferrominera Orinoco C. A. 19-cv-25217- DPG, US Court of Appeals for the 11th Circuit What are the practical implications of this case? This decision clarifies which law governs when a party resists confirmation of an arbitral award on public policy grounds. If a public policy defence is raised against confirmation of a New York Convention award, the court must first decide whether the United States is the primary or secondary jurisdiction. The court leaned on Corporacion AIC, SA v Hidroélectrica Santa Ri ta SA, 66 F.4th 876, 886 (11th Cir. 2023), which differentiates primary from secondary jurisdiction. Applying that approach, it stated that, in Convention cases where the United States is the primary jurisdiction—the legal seat of the arbitration, or the country whose law governs the conduct of the arbitration (internal citations omitted)—the grounds to set aside an...

Hong Kong-jurisdiction of arbitrator existence of dispute between contracting parties ( CMBICDHAW v CDH FUND & others) CMBICDHAW INVESTMENTS Ltd v CDH FUND V Ltd PARTNERSHIP, CDH GRAND CATTLE HOLDINGS Ltd, CDH INVESTMENTS MANAGEMENT ( HONG KONG) Ltd [2024] HKCA 516 What are the practical implications of this case? Practitioners should ensure there is genuinely a dispute between the contracting parties to an arbitration agreement. This goes to the exact wording of the agreement and whether the arbitrator has jurisdiction. Practitioners should also note that a ‘dispute’ need not involve a formal legal claim or cause of action advanced by one side against the other; it is sufficient that one party makes an assertion which the other contests......

Ángel Samuel Seda, et al v Republic of Colombia, No ARB/19/6, ICSID. ICSID made public the award on 22 August 2024. It had been sent to the parties on 27 June 2024 by the tribunal, consisting of professor Klaus Sachs as chair, professor Hugo Perezcano Díaz, designated by the claimants, and Charles Poncet, designated by Colombia. The tribunal dismissed all claims brought by US investors Ángel Seda, JTE International Investments LLC, Jonathan M. Foley, Stephen J. Bobeck, Brian Hass, Monte G. Adcock, Justin T. Enbody, Justin T. Caruso and The Boston Enterprises Trust. It granted no compensation to either side and directed the parties to share the arbitration costs and bear their own legal fees. Luxury investment In 2007, Seda started to invest in hotels and housing assets in Colombia via his firms Royal Realty and Newport S. A. S. In November 2012, he signed a...

Orion Shipping and Trading Ltd v Great Asia Maritime Ltd [2024] EWHC 2075 ( Comm) What are the practical implications of this case? Norwegian Sale Form 2012 (‘ SALEFORM 2012’), issued by the Norwegian Shipbrokers’ Association and BIMCO, is a memorandum of agreement for the sale and purchase of ships and is widely regarded as the industry benchmark across multiple shipping jurisdictions. First introduced in 1956, it was updated in 1966, 1983, 1987 and 1993, with the current version published in 2012. English law is one of three standard governing law options offered in Clause 16 of SALEFORM 2012. As a result, the English courts have often been required to interpret the legal effect of various provisions of SALEFORM 2012 throughout its different versions. This ruling confirms that loss of bargain damages are not recoverable under Clause 14 of SALEFORM 2012 where the seller fails to...

OAO Tyumenneftegaz v First National Petroleum Corporation Case No T 2082-23 What are the practical implications of this case? The practical implications of this decision are as follows: The court confirmed that the mere fact a party is sanctioned does not automatically make a dispute non-arbitrable. As a result, arbitrations involving sanctioned entities, including Russian state-owned companies, can continue under Swedish law, even where EU sanctions regulations are engaged. The court also emphasised that an inability to obtain legal counsel due to sanctions does not, in itself, prevent a party from presenting its case in arbitration. The ruling indicates that parties are expected to address such issues proactively during the proceedings. In this case, the court observed that the respondent could have raised its difficulties in securing legal counsel with the tribunal but chose not to participate, highlighting the importance of active engagement despite...

Kingdom of Spain v Foresight Luxembourg Solar and others, Case T-1626-19 What are the practical implications of this case The Svea Court of Appeal reaffirmed the principles expressed by the CJEU in Achmea, Komstroy and PL Holdings, together with Swedish Supreme Court authority, concluding that arbitral awards between an EU Member State and an investor from another EU Member State, grounded in an arbitration clause within an international agreement, must be regarded as invalid because they are incompatible with fundamental principles of EU law. The invalidity mechanism in section 33(2) of the Swedish Arbitration Act applies without any time limit, so challenges to intra‑ EU investment awards are not time‑barred. This creates scope for any intra‑ EU investment award to be invalidated. As a result, annulments may become more common where awards are found to infringe core EU principles. The ruling...

In this issue: International arbitration Institutional and ad hoc arbitration Sector-and industry-specific arbitration Daily and weekly news alerts International arbitration USA— New York Convention and vacatation of arbitration awards On 23 July 2024, the United States District Court for the Southern District of New York (the ‘ Court’), in Molecular Dynamics, Ltd v Spectrum Dynamics Med, concluded it had no subject-matter jurisdiction to set aside international arbitration awards when the arbitration seat was Geneva, Switzerland. The Court also held that the parties to the arbitration could not, through their agreement, broaden the Court’s powers beyond the limits prescribed by the New York Convention. See News Analysis: Secondary jurisdiction courts under the New York Convention cannot be empowered to vacate arbitration awards, written by David L Earnest, partner at Diamond Mc Carthy LLP......

Molecular Dynamics, Ltd v Spectrum Dynamics Med , 22 Civ 5167 ( KPF) ( S. D. N. Y. 23 July 2024) (‘ Molecular v Spectrum’) What are the practical implications of this case? Molecular v Spectrum recognises that, under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), the courts of the place where an award is ‘made’—that is, the arbitral seat—hold primary jurisdiction and the exclusive authority to set aside, vacate, or modify an arbitral award pursuant to domestic law. Courts in all other Convention States possess only secondary jurisdiction and are confined to declining enforcement, and then only on the limited grounds listed in Article V of the New York Convention... Whether a court is competent under the New York Convention to entertain an application to set aside an arbitral award is a question that concerns that...

What are the practical implications of this case? In its judgment, the Court of Appeal affirmed the tenets set out by the Court of Justice in Achmea, Komstroy and PL Holdings: arbitration awards rendered between an EU Member State and an investor from another Member State, where jurisdiction stems from an arbitration clause in an international agreement, must be treated as void because they conflict with core principles of EU law. The ground of nullity in Section 33 (2) of the Swedish Arbitration Act ( SAA) applies without any limitation period, with the result that challenges to intra- EU investment awards are never time-barred. This paves the way for any intra- EU investment award to be set aside. Consequently, annulments of awards may become more frequent where they are found to breach fundamental EU principles. The ruling reinforces the supremacy of EU law in...

In this issue: Arbitration in England and Wales International arbitration Institutional and ad hoc arbitration Sector-and industry-specific arbitration Other arbitration and ADR-related news and developments Daily and weekly news alerts New and updated content Arbitration in England and Wales England and Wales—anti-suit injunctions in support of foreign arbitral proceedings Bayerische Landesbank v Ruschemalliance sits among an expanding stream of rulings tackling Russian court actions brought in breach of arbitration clauses. Arising against the backdrop of Russia’s 2022 invasion of Ukraine and ensuing internationally imposed sanctions, the court—mirroring other recent outcomes—held the claimants entitled to final anti‑suit injunctions restraining the defendant, in aid of ICC arbitration seated in Paris under a contract governed by English law. For analysis, see News Analysis: England and Wales—anti‑suit injunctions in support of foreign arbitral proceedings ( Bayerische Landesbank and another v...

Introduction: The State of Voluntary Carbon Markets Voluntary carbon markets ( VCMs) are the largely unregulated constellation of marketplaces that has emerged to facilitate the trading of carbon credits across the world. Each individual credit typically denotes a reduction of one ton of carbon dioxide pollution. Such a reduction may stem from extracting one ton of CO2 from the atmosphere, or from averting one ton from being emitted in the first place. Carbon emitters buy these credits to offset and balance their pollution emissions. These markets are distinct from cap-and-trade arrangements or other carbon allowance mechanisms, which are underpinned and regulated by various governmental organisations. Their voluntary nature arises from the absence of direct government support. A principal reason for involvement is that they offer an efficient and effective means for companies to achieve net zero targets. In some instances, purchasing carbon credits to...

Bayerische Landesbank and another v Ruschemalliance LLC [2024] EWHC 1822 ( Comm) What are the practical implications of this case? In keeping with comparable determinations, this judgment succinctly sets out the jurisdictional thresholds and principal considerations the court applies when evaluating applications for anti‑suit injunctions. It underscores the judiciary’s practical bent and operates as a constructive illustration of inter‑court co‑ordination, projecting a clear signal where numerous contests flow from identical underlying events, even though such matters are dealt with at varying moments and tiers of the court structure. In sum, the outcome reasserts the English courts’ steadfast commitment to upholding arbitration, including in circumstances where the arbitral seat is situated in a foreign state. What was the background? In 2021, the defendant, Ruschemalliance LLC (“ RCA”), a Russian entity, entered into two Engineering, Procurement and Construction agreements for the development of liquefied natural gas and gas...

The ex-customer, Edward Mendez, asked the court in a 12 August 2024 reply brief to set aside an AAA arbitrator’s decision that favoured T‑ Mobile and to assume jurisdiction to hear his Federal Communications Act claim, alleging the company’s poor security led to the loss of almost US$240,000 in cryptocurrency. In responding to T‑ Mobile’s brief upholding the award, Mendez contended that the opacity of AAA arbitrations skews the process towards corporations, which can review an arbitrator’s history, while consumers ‘are kept in the dark’. ‘ This disparity creates a serious conflict of interest, because ruling against a corporation can effectively blacklist an arbitrator from future appointments, jeopardising their professional standing’, Mendez said. He cited the sole AAA arbitrator, Laura Reich of Harper Meyer LLP, who determined his case, arguing her decision overlooks a non‑waivable statutory duty imposed by the Federal...

The evolution of the classification of digital assets as property As the cryptocurrency (crypto) sector has matured over the last decade, digital assets of every stripe have accrued significant economic worth and have, inevitably, become the focus of numerous disputes before national courts and arbitral tribunals across the common law world and beyond. Although a substantial volume of interim applications has appeared in jurisdictions such as England & Wales, Singapore, Australia and New Zealand, few – if any – contested proceedings have reached conclusion to date. The causes of that pattern are not entirely germane to this note, save to observe that a recurring feature in a high share of digital asset matters is fraud and/or hacking committed by unidentified and/or unreachable actors, which has, in turn, left cases yielding final determinations thinner on the ground than would be ideal in a highly...