Legal News

Amaplat Mauritius Ltd and Amari Nickel Holdings Zimbabwe Ltd stated on 18 July 2024 that Zimbabwe’s chief mining commissioner and its state-run mining company implicitly waived immunity from being brought before foreign courts by opting to arbitrate their mining dispute under the New York Convention. Moreover, because the Zimbabwe Mining Development Corp ( ZMDC) is described as an alter ego of Zimbabwe, the filing argues the southern African nation likewise relinquished immunity from proceedings in the United States. According to the brief, Zimbabwe’s interference in ZMDC’s day-to-day operations, its disregard for corporate separateness in relation to ZMDC’s management and assets, and attempts to shift assets to new entities to avoid ZMDC’s creditors are classic indicators justifying treating a state and its state-owned enterprise as indistinguishable. Amaplat and Amari are pursuing enforcement of a 2019 ruling from a Zambian court that upheld the US$50m...

Introduction The Arbitration Act 1996 (the Act) has performed admirably for nearly a quarter of a century. Nevertheless, within the arbitration community there has persisted a belief that a thorough review to modernise the Act was overdue, and recommendations in a Law Commission Report led King Charles III to announce the Arbitration Bill (the Bill) during his inaugural speech at the State Opening of Parliament on 17 July 2024. The King’s Speech on 17 July 2024 made clear that the newly elected Labour government intends to press ahead with reform of the AA 1996 and to pass the Bill into law during the 2024–2025 parliamentary session as set out therein......

European Commission v United Kingdom of Great Britain and Northern Ireland Case C-516/22 ( ECLI- EU- C-2024-231) What are the practical implications of this case? This judgment underscores the Court of Justice’s careful stance on arbitration as a parallel route for settling disputes touching on EU law. That outlook is deliberately cautious and firmly supervisory. To preserve the primacy of the EU legal system and consistent construction of EU rules across the internal market, the Court will see to it that executing intra‑ EU arbitral awards, including those issued under international instruments, such as the ICSID Convention, does not inflict irreversible harm on that framework. Consequently, the Court will take every measure to verify such awards’ conformity with EU law and, where that cannot be achieved, bar their enforcement within the EU to the extent that they conflict with EU law. In light of this,...

In this issue: Arbitration in England & Wales International Arbitration Institutional and ad hoc arbitration and related news Daily and weekly news alerts New and updated content Arbitration in England & Wales King's Speech 2024—key arbitration announcements The Prime Minister’s Office has released background briefing notes for the King’s Speech 2024 containing details of the Arbitration Bill. The notes set out the Bill’s territorial reach and its purpose—namely to implement the proposals arising from the Law Commission’s 2022 review of Arbitration Law, and to do so across the specified jurisdictions. Commentary on the Bill’s inclusion is provided by Matthew Saunders, partner at Ashurst LLP, and Jason Raeburn, partner at Paul Hastings LLP. See: LNB News 17/07/2024 63. CIArb—recommendations for UK government following 2024 election The Chartered Institute of Arbitrators ( CIArb) has presented seven proposals for the UK government after the 2024 general...

What are the practical implications of this case? By this ruling, the Paris Court of Appeal reiterates that it will not police compliance with compulsory, pre-arbitration settlement steps, as such matters concern the admissibility of claims rather than any of the limited grounds for annulment set out in Article 1520 of the French code of civil procedure (the ‘ FCCP’). Accordingly, where parties bypass those provisions and the tribunal nonetheless finds the claim admissible, the court will decline to quash the award (see French Court of Cassation, civ 1, 1 February 2023, No 21-25.024). More broadly, this line of authority is to be applauded: setting aside an award due to a failure to negotiate would squander years of proceedings and expense, and leave the parties mired in uncertainty. What was the background? In 2017, Todini and the Georgian Roads Department (‘ GRD’) concluded a contract to build a...

Narendra Thillainathan v Mohomed Khan and others [ SC Appeal Nos 200/2018, 200A/2018, 200B/2018 & 200C/2018] Supreme Court of Sri Lanka What are the practical implications of this case? Section 27 of the Act, addressing the rectification of arbitral awards, derives from Article 33 of the UNCITRAL Model Law. Jurisprudence remains sparse on both the ambit and the process governing a tribunal’s power to correct its award. First, the Court examined whether the amendments ran counter to the tribunal’s own reasoning in the Original Award, and whether they fell outside ‘errors in computation, clerical or typographical slips, omissions, or comparable mistakes’. The Court concluded that this argument was legally misguided: the Tribunal had never dismissed the claim for the Return sought in the Statement of Claim, as asserted by the Borrowers. The failure to include the Return was, therefore, a plain omission by the...

In this issue: International Arbitration Institutional and ad hoc arbitration Other arbitration and ADR-related news and developments Useful Information Daily and weekly news alerts International Arbitration Hong Kong— High Court—classification of orders v awards In [ L v R], the High Court of Hong Kong determined that a ‘procedural order’ bringing arbitration to a close without addressing the merits can constitute an arbitral award, attracting the same enforcement and challenge framework, where its substance and effect warrant that treatment. The court further concluded that a settlement agreement not embodied in an award may nonetheless be regarded as an award for the purposes of contesting or resisting its enforcement. The decision indicates that the legal character of a tribunal’s order is driven by its practical consequences rather than its heading, and may influence how procedural orders are managed in future Hong...

M/s Arif Azim Co Ltd v M/s Aptech Ltd [ Arbitration Petition No. 29 of 2023] What are the practical implications of this case? This ruling delivers several important, real-world consequences for arbitration practice: The SC confirmed that the Limitation Act, 1963 applies across arbitral matters, including requests to appoint arbitrators under Section 11(6) of the A& C Act. It further noted the need for a legislative amendment to fix a bespoke limitation period for Section 11(6) applications, observing that the currently applicable three-year period—arising from a gap in the A& C Act—is unduly long and undermines the Act’s objective of resolving commercial disputes promptly and within strict timelines The SC also highlighted the clear separation between the time limit for submitting a Section 11(6) application under the A& C Act and the limitation period for commencing arbitration itself (i.e. serving a notice...

L v R [2024] HKCFI 1611 What are the practical implications of this case? The High Court held that a procedural order bringing an arbitration to a formal end may amount to an arbitral award, emphasising that it is the substance of a decision, not the tribunal’s label, that fixes its legal status. Because orders and awards are subject to different enforcement regimes and thus varying levels of judicial scrutiny, tribunals should carefully anticipate how Hong Kong courts are likely to characterise their determinations in enforcement or challenge proceedings. Likewise, counsel should take care when deciding whether, and by what route, to contest a tribunal’s decision issued as a procedural order. In separating procedural orders from awards, practitioners must carefully concentrate on the decision’s substantive effect. Key considerations include whether the order is intended to conclude the arbitration or merely deal with...

In this issue: Arbitration in England and Wales International Arbitration Investmenty treaty arbitration Institutional and ad hoc arbitration Sector- and industry-specific arbitration Other arbitration and ADR-related news and developments General Election 2024 New Law Journal Lex Talk®Arbitration: a Lexis®Nexis community Daily and weekly news alerts Arbitration in England and Wales Privy Council—insolvency proceedings vs choice of forum clauses In Sian Participation v Halimeda [2024] UKPC 16, the Privy Council ruled that the Salford approach should be dispensed with. Even where the debt stems from a contract containing an arbitration clause or an exclusive jurisdiction clause, a creditor may petition to wind up the debtor company unless the company can show the liability is disputed on genuine substantial grounds. The mere presence of a choice of forum clause within the underlying agreement does not affect the ordinary threshold test that applies......

In a 28 June 2024 filing seeking to compel arbitration, the image platform informed the court that lead plaintiff, Larion Krayzman, agreed to user terms through his subscription, which encompass a privacy policy and a content licence. According to the company, that licence obliges him to resolve any disputes arising under the agreement through arbitration. Krayzman alleges i Stock Photo breached the federal Video Privacy Protection Act ( VPPA) by deploying Facebook’s Meta Pixel to target i Stock users with adverts on the platform. As i Stock Photo summarised, the plaintiff argues this routine, widely used tactic violates the VPPA by purportedly transmitting his and the putative classes’ personally identifiable information to Facebook......

Parliamentary process On 22 May 2024, the Prime Minister, Rishi Sunak, asked the King to dissolve Parliament so a general election could take place on 4 July 2024, and the King consented. As a result, Parliament was prorogued on 24 May 2024 and formally dissolved on 30 May 2024. The parliamentary timetable is set out below: 22 May: The Prime Minister asked the King to use the prerogative to dissolve Parliament 22 May: King Charles approved the request and a general election was announced nationwide 23 May: ‘ Wash-up’ period begins 24 May: Parliament is prorogued 25 May: Pre-election period of sensitivity begins (previously known as ‘purdah’) 30 May: Parliament is dissolved 30 May: Pre-election period starts 4 July: General election 17 July: State Opening of Parliament For an explanation of the ‘wash-up’ period and the period of...

Briggs Marine Contractors Ltd v Bakkafrost Scotland Ltd [2024] CSOH 63 What are the practical implications of this case? This ruling matters for advisers handling disputes subject to arbitration agreements. The court reaffirmed that it retains control over its own rolls, notwithstanding statutory mechanisms such as A( S) A 2010, s 10. Although an arbitration agreement may compel a sist, the court is not obliged to let proceedings sit on the shelf forever without considering whether that course is sensible and worthwhile. Practitioners should caution clients that the existence of an arbitration clause does not secure a perpetual stay. This decision highlights the need to set out specific, tangible reasons for leaving an action sisted when a motion to dismiss is tabled. It follows that a mandatory sist arising from an arbitration agreement co-exists with the court’s ongoing...

Swiss Federal Court Dismisses Challenge to Arbitrator for Repeat Appointments ( A & B v C) — 4A_575/2023, Bundesgericht ( Schweiz) What are the practical implications of this case? The Swiss Federal Court has long been sceptical of attempts to demonstrate apparent bias by piecing together several circumstances, and this decision follows that approach. Procedural missteps that drew no timely objection are treated as irrevocably waived; parties cannot revive them later, not even as part of a broad, retrospective review of the arbitrator’s behaviour. As a result, allegations of bias that rest on a constellation of events or factors have become even harder to sustain. The judgment also considers repeat appointments. Under the 2024 IBA Guidelines on Conflicts of Interest in International Arbitration (‘ BA Guidelines’), three or more appointments by the same counsel or law firm within the previous three years appear on the Orange List...

In approving the Raptors’ December bid to compel arbitration (but staying the action until arbitration is finished, rather than dismissing it, as the Raptors had urged), US District Judge Jessica GL. Clarke systematically struck out the Knicks’ catalogue of contentions raised since first suing last August to keep the dispute in court and out of arbitration. She wrote the matter concerns NBA competition and falls squarely within the sort of dispute about cheating to win over which the NBA constitution vests the commissioner with exclusive jurisdiction, and she stated in her order that the court need not deliberate over the hypothetical limits of the NBA constitution’s arbitration clause because this case clearly appears squarely within its intended scope......

The doughnut itself The doughnut itself—namely the first, outer ring—symbolises the parties’ merits dispute, such as a breach of contract claim. That substantive quarrel is not at issue when arbitrability is challenged. It remains untouched in such proceedings. Where a contract between the parties includes an arbitration clause, they may fall out not only over the merits but also over the forum in which the merits should be determined—before arbitrators or in court. For example, one party might insist the court should hear the case because the arbitration clause is invalid, or argue the controversy sits beyond its scope. Such attacks on arbitration clauses are called arbitrability challenges. In the doughnut analogy, they are the hole—the second ring. In 1967, the Supreme Court in Prima Paint Corp v Flood & Conklin Manufacturing Co held that any arbitrability challenge must be aimed...

The decision is noteworthy because the CCE overturned an Ecuadorean first‑instance court’s determination that the ICC arbitral award had to be homologated before it could be executed and collected. As a pronouncement of the CCE, it also insulates a foreign arbitral award from constitutional challenges—a tactic, outlined below, often used by parties aiming to sidestep enforcement in Latin American countries’ domestic courts. By way of context, “homologation” or “exequatur” is the judicial endorsement within a jurisdiction that confers binding force on acts or decisions of an external body, so that the outside institution’s determination is effective where the approving court sits and exercises authority. On this footing, courts in a country must scrutinise an arbitral award issued outside that country’s court system to confirm its validity and enforceability within that particular country. Homologation is a doctrine commonly found in civil law systems, but not in...

In this issue: Arbitration in England & Wales International arbitration Institutional and ad hoc arbitration Other ADR and arbitration-related developments Daily and weekly news alerts New and updated content Arbitration in England & Wales Court of Appeal—enforcement— New York Convention Award In Eternity Sky v Zhang [2024] EWCA Civ 630, the Court of Appeal confirmed the established English approach that New York Convention awards should, in the main, be enforced. The public policy defence is interpreted with great stringency, and any party relying on it must plead and prove it with clarity and precision. The court also recognised that meaningful consumer protection forms a key strand of public policy, embedded in the Consumer Rights Act 2015 ( CRA 2015). Where the CRA’s substantive criteria are satisfied—namely that the party is a consumer, the contract bears a close connection with the UK, and a core term lacks transparency and is...

Sian Participation Corp (in liquidation) v Halimeda International Ltd ( Virgin Islands) [2024] UKPC 16 What are the practical implications of this case? For insolvency practitioners, the decision confirms that, even where the underlying liability is governed by an arbitration clause, the court’s threshold on a winding-up petition remains the familiar one: is the debt genuinely disputed on substantial grounds, rather than a mere ‘cloud of objection’? It is no longer sufficient for the company simply to decline to admit the debt, as under the former Salford approach. One would anticipate the same stance being taken across other insolvency processes, such as a petition for administration. In tandem, the ruling removes any distinction in treatment between exclusive jurisdiction clauses and arbitration clauses. The policy objective of encouraging arbitration does not warrant treating arbitration clauses differently from exclusive jurisdiction clauses when deciding whether a winding-up petition should be...

Eternity Sky Investments Ltd v Xiaomin Zhang [2024] EWCA Civ 630 What are the practical implications of this case? The Court of Appeal reiterated English law’s established stance (mirrored in Hong Kong, as noted in Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111) that public policy is a narrowly drawn, limited exception, and that, in nearly all situations, New York Convention awards would be enforced. The court also made clear that this policy reasoning should likewise extend to disputes where individuals are parties to arbitration agreements—save to the extent that statute provides to the contrary......