Legal Practice Notes

This Practice Note This Practice Note reviews the availability of emergency and interim measures in aid of arbitration in New York, United States of America. New York is a jurisdiction supportive of arbitration, and its courts will, where warranted, issue emergency or interim relief to assist arbitral proceedings. Such relief can be pursued both before a claim is filed and during the pendency of the arbitration. The Note highlights the principal types of urgent remedies available under the United States Federal Arbitration Act (the FAA), which governs arbitrations involving interstate or international commerce, together with New York’s Civil Practice Law and Rules, the procedural code applied in the state courts of New York. At the outset, turning to a court may not be required. Many arbitral institutions provide mechanisms enabling parties to seek urgent measures from the arbitral tribunal, or from an...

Summary of enforcing arbitration awards in Morocco Morocco has been a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards since 1959. The July 2011 Constitution states in its preamble that duly ratified international conventions, even without reciprocity, take precedence over domestic legislation. The Dahir ( Royal Decree) no. 1-22-34 of 23 Chaoual 1443 (9 December 2022) brought into force Law no. 95-17 on Arbitration and Mediation dated 24 May 2022 (the “new law”), repealing and replacing Law no. 08-05 of 30 September 2007 on arbitration. Modelled on the UNCITRAL Model Law on International Commercial Arbitration and influenced by French law, the new law also integrates numerous solutions arising from the Moroccan Supreme Court’s arbitration case law. Key aspects include: a defined...

ARCHIVED: This Practice Note has been archived and is not maintained. NOTE: On 5 September 2023, CIETAC announced amendments (the Revisions) to its existing 2015 arbitration rules, prompted by the need for greater adaptability and efficiency in the digital age and by evolving international arbitration practice, following a revision plan launched in April 2021. Spanning over 30 provisions, the Revisions address: digital case management multi-tiered arbitration agreements jurisdiction multi-contract arbitrations arbitral procedures other challenging issues The Revisions take effect on 1 January 2024 and apply to all CIETAC arbitrations commenced from that date. CIETAC’s current arbitration rules have applied since 1 January 2015 (the CIETAC Rules 2015). This Practice Note is UNDER REVIEW—it presently reflects CIETAC’s structure and role as described in the CIETAC Rules 2015. It covers arbitration under the CIETAC Arbitration Rules 2015 ( CIETAC Rules), which govern...

ARCHIVED: This Practice Note has been archived and is not maintained NOTE: On 5 September 2023, CIETAC announced revisions (the Revisions) to its 2015 arbitration rules, aiming to enhance flexibility and efficiency for the digital era and to reflect developments in international arbitration, following a revision programme begun in April 2021. Covering more than 30 provisions, the updates address: digital case management multi-tiered arbitration agreements jurisdiction multi-contract arbitrations arbitral procedures other challenging issues The Revisions will take effect on 1 January 2024 and will apply to all CIETAC arbitrations commenced from that date. CIETAC’s current arbitration rules have been in force since 1 January 2015 (the CIETAC Rules 2015). This Practice Note is UNDER REVIEW—it presently reflects CIETAC’s structure and role as described in the CIETAC Rules 2015. It addresses arbitration under the CIETAC Arbitration Rules 2015 ( CIETAC...

This Practice Note sets out the principal obligations on experts and their instructing solicitors under the ‘ Guidance for the instruction of experts in civil claims’, effective from 1 December 2014. It provides direction on those key obligations while preserving the original intent and scope... This Practice Note should be considered in conjunction with: Practice Note: Instructing an expert Checklist—letter of instruction to expert precedent: Letter of instruction to own expert Note : ‘ Guidance’ means the Civil Justice Council’s Guidance for the instruction of experts in civil claims, which came into force on 1 December 2014... The focus of the Guidance is to ensure that: experts are engaged only when their evidence is necessary and required the appointed expert is the correct expert, suitably qualified to opine on the issues in dispute the expert is supplied with all...

P. R. I. M. E. Finance Arbitration Rules Updated in 2021, the P. R. I. M. E. Finance Arbitration Rules’ 2022 edition took effect on 1 January 2022 and applies to arbitrations begun on or after that date (the P. R. I. M. E. Finance Rules; the Rules). The Rules also contain model clauses and a model submission agreement. This Practice Note explains how to commence an arbitration under the P. R. I. M. E. Finance Rules. When a dispute emerges, parties should consult the relevant documents to review the dispute resolution clause(s). If a clause or agreement calls for arbitration, it is essential to check: the administering institution or the rules under which the arbitration will proceed (see Understanding institutional and ad hoc arbitration—overview) any applicable limitation period, contractual or statutory, by which the arbitration must be commenced (see Practice Notes:...

This Practice Note considers the application of the ( FLPA 1984). This Practice Note explores how the ( FLPA 1984) is applied. It outlines the default position that English law is not automatically engaged when fixing limitation periods in proceedings with an international dimension, and examines when and in what manner the FLPA 1984 operates in practice. It reviews the ruling in the Iraqi Civilian litigation and identifies exceptions that may arise under the FLPA 1984, including public policy and undue hardship exemptions. It also addresses section 8, which enables sections 1, 2 and 4 of the Act to be disapplied. The regime the English courts use to decide the applicable law turns on whether the claim is contractual or tortious, and on either the date the contract was concluded or the date of the harmful event. This area has been...

Foreign direct investment ( FDI) remains an ever more significant driver within the world economy today, and its importance continues to grow. For multinational groups, and any enterprise hoping to launch operations in another jurisdiction, a key consideration is the legal stability of that location when entering a host market. Careful investors will wish to be confident their capital is safe and shielded from improper intervention by the host state, both now and in future. Shifts in political or economic conditions can prompt state action that may, directly or indirectly, diminish an investment; in the most severe cases, the nationalisation of industries or sectors may lead to expropriation of assets (see, for example, Practice Note: Expropriation—investment treaty arbitration). In those situations, investors might possess rights and remedies arising under the contractual frameworks through which the investment was made, depending on the terms agreed. Often,...

Interim and conservatory measures from the tribunal Within arbitrations governed by the Dubai International Arbitration Centre Arbitration Rules ( DIAC and the DIAC Rules), the tribunal holds authority to make provisional directions or impose other interim or conservatory steps (including injunctions) it considers necessary in the proceedings, such as preserving relevant goods comprising any element of the dispute's subject matter ( Appendix II, Article 1)......

Arbitration is commonly presumed to be confidential because proceedings take place in private. Many users identify ‘confidentiality’ as a key benefit when compared with court litigation. Yet there is an important distinction between privacy, which concerns the closed nature of the hearing, and confidentiality, which may or may not cover the information, materials and documents exchanged between the parties, including the award. Here, confidentiality denotes an obligation on the parties not to disclose information about the arbitration to third parties. National legal systems adopt differing approaches to whether arbitration is confidential by default and to the breadth of any implied duties. How far confidentiality applies in any case will turn on: the agreement reached by the parties; the applicable law; the chosen arbitral institution or any ad hoc procedural...

This Practice Note reviews the content of the arbitration agreement, with particular emphasis on the position under English and Welsh law (using England and English as shorthand throughout)... You should, in particular, read this Practice Note alongside Practice Notes: Arbitration agreements—definition, purpose and interpretation, and Arbitration agreements—the in writing requirement... Further Practice Notes on arbitration agreements are also available in the ‘ Related documents’ pod... Contractual requirements for arbitration agreements Under English law, an ‘arbitration agreement’ must be concluded in line with ordinary contractual principles... Whether compliance with those principles is achieved will be determined by the law applicable to the arbitration agreement (about which, see below)... In Black Sea Commodities v Lemarc Agromond, the court made plain that the doctrine of separability of the arbitration agreement did not modify that general position... An arbitration agreement cannot be deemed agreed if there was no consensus ad idem to the...

This Practice Note explores the use of expedited (fast-track) procedures in international arbitration practice. For additional guidance on the related topic of the early disposal of claims and defences in international arbitration, see Practice Note: Early dismissal, summary dismissal and strike out in arbitration proceedings. Why choose expedited (aka fast-track) arbitration proceedings? Parties aiming to sidestep protracted dispute resolution and unnecessary cost and expense may opt for a fast-track route; the same logic can hold even where disputes are sizeable, technically complex and intricate in nature. An expedited track typically entails compressed and shortened procedural timetables for exchanging submissions and evidence, together with restrictions on the volume of material filed and relied upon. Although the parties can provide for an expedited pathway when drafting the arbitration agreement, because the scope and context of a future dispute are unknown at that stage, doing so is...

Parties to contracts seldom weigh the fees and charges of various arbitral bodies when framing their arbitration clauses, though this ought, ideally, to be part of an informed choice about which institution to use when arbitration is contemplated. Even so, arbitration professionals should grasp the fee scales and cost rules of the leading institutions in order to advise clients effectively both at the drafting stage of an arbitration clause and when a dispute materialises......

This Practice Note outlines the background and structure of the Hong Kong International Arbitration Centre ( HKIAC). What is the Hong Kong International Arbitration Centre ( HKIAC)? HKIAC is a leading dispute resolution provider in the Asia- Pacific and worldwide. Set up in 1985 by senior business figures to address growing demand for arbitration in Asia, especially Hong Kong, it started as a non-profit making body supported by the Hong Kong government and the business community. It now manages its own operations, is financially self-sufficient, and remains entirely free and independent of any influence or control. HKIAC promotes arbitration in the region, notably through the organisation of Hong Kong Arbitration Week. Founded to encourage arbitration as a dispute resolution method, its main role is to support and facilitate arbitrations conducted in Hong Kong. It supplies a range of services to arbitrators and parties,...

This Practice Note considers the availability of freezing injunctions in support of arbitration under the law of England and Wales and pursuant to the Arbitration Act 1996 ( AA 1996) ( England and English are used as convenient shorthands). A freezing injunction, also termed a freezing order (formerly a ‘ Mareva’ injunction), is an interim measure that prevents a defendant from transferring assets out of the jurisdiction (that is, England and Wales) or, where assets are located abroad, from dealing with them at all (commonly called a worldwide freezing order or WFO). The objective is to preserve the defendant’s assets so that, if the claimant later obtains judgment, there are funds available to meet damages and costs. Numerous categories of property can be restrained, including bank accounts. These orders are personal in character (operating in personam); they bind the defendant and are distinct from court...

The Arbitration Act 1996 ( AA 1996) supplies a route for parties who wish to start arbitration but are unable to do so within a contractually fixed period, whatever the reason, to seek from the courts of England, Wales and Northern Ireland (with ‘ English’ and ‘ England’ used throughout) an extension of time. The threshold set by section 12 AA 1996 is stringent, and the English courts are slow to grant extra time. The Act gives primacy to party autonomy and relinquishes any notion that the courts possess a general supervisory jurisdiction over arbitrations, as confirmed in Haven Insurance v EUI (t/a Elephant Insurance). Extension of contractual time limit— AA 1996, s 12 Section 12(1) AA 1996 permits the court to extend a contractual deadline where an arbitration agreement dealing with ‘future disputes’ stipulates a time limit for taking ‘some step…to begin’...

This Practice Note examines matters arising from the settlement of disputes within the framework of arbitration proceedings. The discussion draws on common practice in international arbitration and the pertinent provisions of the Arbitration Act 1996 ( AA 1996) as applicable in England, Wales and Northern Ireland, and also on certain selected arbitration rules. Settlement negotiations and arbitration As a rule, it serves a party’s best interests to assess every bona fide chance to settle, in light of the time, expense, uncertainty of outcome, reputation, relationship, and other possible consequences that flow from engaging in any form of dispute. Parties may enter into settlement talks or pursue an alternative dispute resolution ( ADR) route, such as mediation, at a pre-arbitration stage, before any proceedings have been envisaged or formally initiated by either side. Where an early attempt to settle succeeds, they will ordinarily set out their shared...

Recognition and enforcement of foreign awards The International Arbitration Act 1974 ( IAA 1974), the statute that regulates international commercial arbitration in Australia, embodies a strongly pro-arbitration, pro-enforcement approach and is the legislative regime for such matters. Through it, Australia gives effect to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) without reservations. The enforcement of foreign arbitration agreements and awards is dealt with in Pt II of the IAA 1974. The Civil Law and Justice ( Omnibus Amendments) Act 2015 amended IAA 1974, Pt II in respect of the enforcement of foreign arbitration agreements and awards. That reform repealed s 8(4) of the IAA 1974, which had barred enforcement of awards made in non- Convention states unless the party seeking enforcement was domiciled or ordinarily resident in Australia or a Convention country. As a...

This Practice Note sets out how arbitration operates in family matters, available for financial disputes from March 2012 and for children issues from July 2016. It reviews, in particular, the applicable rules, explains the part played by a solicitor acting for a party in achieving a binding arbitration, and highlights the principal benefits of arbitration. It also describes the reach and application of the Institute of Family Arbitrators ( IFLA) scheme and the arbitrator’s powers. For practical guidance on the courts’ role and approach in relation to arbitral awards or determinations, see Practice Note: Family arbitration—the role of the courts. What is arbitration? Arbitration is a formal method of dispute resolution in this context. The parties enter into an agreement by which they appoint a suitably qualified individual (an arbitrator) to decide their dispute and issue an award. Family law disputes have been...

This Practice Note outlines the purpose and functions of sea carriage documents in relation to the delivery of cargo, with particular attention to bills of lading and sea waybills. It explains that a bill of lading may be issued as a charterers’ bill or an owner’s bill, and that such documents operate both as evidence of the contract of carriage and as security for finance. Sea carriage documents A sea carriage document is produced to obtain release of goods, either at the port of discharge or at the nominated place of delivery, depending on the form issued by the carrier to the shipper. That document will be either: a bill of lading a sea waybill For more detail on bills of lading and sea waybills, see the Practice Note: Bills of lading and sea waybills. Bill of lading A bill of lading may be: bearer bill of...