International Arbitration Newsletter - Q2 2013

by DLA Piper
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QUALITATIVE SHIFT: SAUDI ARABIA’S NEW ENFORCEMENT LAW

By Amer Al Amr and Abdulrahman Alayoni, Riyadh

Saudi Arabia is currently going through major legislative and regulatory reforms.

One of the most significant is the new Enforcement Law, issued by Royal Decree No. M/53, which is now in effect in the Kingdom of Saudi Arabia (KSA).

The Law represents a qualitative shift in enforcement procedures in KSA and is a significant step forward in creating specialised forums to enforce judgments and awards that are rendered locally or internationally.

Learn more.


THIRD PARTIES AND ARBITRATION AGREEMENTS:
FORTRESS VALUE v. BLUE SKYE

By Elinor Thomas, London

In the recent case of Fortress Value Recovery Fund I LLC and others v Blue Skye Special Opportunities Fund LP and others the English Court of Appeal considered the relationship between the Arbitration Act 1996 and the Contracts (Rights of Third Parties) Act 1999 to determine the extent to which third parties to a contract will be subject to an arbitration clause in that contract.

The judgment underscores the need for extremely clear drafting if parties do intend that disputes involving third parties should be arbitrated.

Learn more about this judgment.


HKIAC’S NEWLY REVISED RULES ARE NOW IN EFFECT

By David Liu and Yu-JinTay, Singapore

The Hong Kong International Arbitration Centre’s revised Administered Arbitration Rules are now in effect.

The revised rules follow a year-long revision process and are the first update since the Rules were originally issued in 2008.

Key changes cover such areas as arbitrators’ fees and expenses; joinder; consolidation; emergency arbitration; and the prima facie power to proceed.

Learn more.


ENGLISH HIGH COURT ADDRESSES SEPARABILITY OF ARBITRATION CLAUSES

By Hannah Kennedy and James Carter, London

The English High Court in Beijing Jianlong Heavy Industry Group v Golden Ocean Group Limited & Ors recently addressed the issue of the separability of arbitration agreements and the circumstances in which public policy factors invalidating the underlying contract may also impeach an arbitration clause.

In its pro-arbitration conclusion, the court reinforced the strength of “powerful commercial factors” which weigh in favour of upholding an agreement to arbitrate.

Learn more.


HONG KONG DECISION REAFFIRMS PRO-ENFORCEMENT APPROACH TO ARBITRAL AWARDS

By Ernest Yang and Steve Cheng, Hong Kong

In Hong Kong, Article 34 of the UNCITRAL Model Law on International Commercial Arbitration provides the only redress available to a losing party in an international arbitration. In the latest development in the Grand Pacific case, which has been described as challenging Hong Kong’s reputation as an arbitration-friendly jurisdiction, leave to appeal to the Hong Kong Court of Final Appeal was refused, thereby affirming a Court of Appeal decision that overturned a first instance judgment and reinstating the arbitral award (which the first instance judgment had set aside).

The first instance judgment had been criticised as unduly interfering with the arbitral tribunal’s case management powers. By narrowly construing the grounds for setting aside an arbitral award pursuant to Article 34, this decision has reaffirmed Hong Kong’s pro-enforcement approach to arbitral awards and arguably closed the floodgates on a potential surge in attempts to set aside arbitral awards.

Given that a prospective Article 34 applicant now faces significant difficulties in order to set aside an arbitral award in Hong Kong, we provide some practical guidance on the six grounds for setting aside an arbitral award as stipulated in Article 34 and on Article 34 itself.

Learn more.


SIAC INTRODUCES SIGNIFICANT RULE CHANGES

By David Liu, Singapore

The Singapore International Arbitration Centre recently introduced significant changes to its rules, reflecting a major organisational and governance change with the introduction of a new SIAC Court of Arbitration. The SIAC has also introduced updated rules for the conduct of arbitration.

Learn more.


NEWS FROM THE ARBITRATION INSTITUTIONS

SIAC publishes Annual Report
On 19 February 2013, the Singapore International Arbitration Centre (SIAC) published its annual report. The report revealed an increase of 25 per cent in the number of new cases handled by the Centre, with 235 new cases taken on during 2012. The value of contracts in dispute was more than twice the amount for 2011, totalling SGD 3.61 billion in 2012. Cases involved parties from 39 jurisdictions and covered a variety of sectors such as energy, insurance, infrastructure and derivatives. The figures confirmed the SIAC as the fastest growing international arbitration centre in the world.

For more information see the SIAC press release.

Hong Kong Arbitration (Amendment) Bill 2013 Gazetted
On 28 March 2013, the Hong Kong Arbitration (Amendment) Bill 2013 was gazetted ahead of its introduction to the Legislative Council of Hong Kong on 24 April. The Bill will amend the existing Arbitration Ordinance (Cap. 609) to enable the implementation of the Arrangement Concerning Reciprocal Recognition and Enforcement of Arbitral Awards between Hong Kong and Macao, and will mean that awards made in Macao can be enforced in the Hong Kong courts and vice versa. The Bill also makes amendments in relation to the new edition of the Hong Kong International Arbitration Centre’s Administered Arbitration Rules to ensure that emergency relief granted by an emergency arbitrator is enforceable in the same way as a Court order.

For more information see this press release from the Hong Kong Justice Department.

SIAC launches new governance structure and issues amended Rules of Arbitration
On 1 April 2013, the SIAC announced that it had created a new governance structure with a new Court of Arbitration to manage the case administration and arbitral appointment functions of the SIAC, and the appointment of a new Board to oversee the Centre’s corporate and business development functions. On the same day, the SIAC published the fifth edition of its revised Rules of Arbitration. The new rules take into account the workings of the Court and outline best practice in the administration of arbitration cases.

See here for more detail of the new SIAC Board and members of the Court of Arbitration.

ICSID Convention ratified by Montenegro
The World Bank has notified all ICSID Convention signatory states that Montenegro ratified the ICSID Convention on 10 April 2013, pursuant to Article 75 of the Convention. The ratification followed the signing of the Convention by Montenegro on 19 July 2012. The Convention will come into force for Montenegro on 10 May 2013.

For more information see the ICSID press release.

ISDA consults on draft arbitration clauses
The International Swaps and Derivatives Association has issued draft model arbitration clauses for use with its ISDA Master Agreements for 2002 and 1992 following a lengthy consultation with its members which began in January 2011. Members of ISDA have until 31 May 2013 to comment on the draft clauses.

Paris Arbitration Rules unveiled
Paris Place d’Arbitrage (Paris, the Home of International Arbitration) a nonprofit association created to promote Paris as an arbitration centre has issued a set of Arbitration Rules at its annual conference in Paris. The newly drafted rules are based on the 2011 French Arbitration Law but can also be used alongside other arbitration laws and in other seats of arbitration, not just Paris. The rules are promoted by the association as an alternative to UNCITRAL.

See here for more information about the new Paris Arbitration Rules.


COMING SOON

APRAG Conference 2013
The 2013 Asia Pacific Regional Arbitration Group (APRAG) Conference will take place in Beijing between 27 and 29 June 2013. The Conference has been organised by the China International Economic and Trade Arbitration Commission (CIETAC), and has the theme “International Arbitration in Asia-Pacific Region in the Next Ten Years–Opportunities and Challenges”. The conference will discuss Asia Pacific’s future in arbitration as it looks to strengthen its foothold in the realm of international arbitration.

For more information see the APRAG Conference website.

CIArb 2013 International Arbitration Conference
The Malaysian branch of the Chartered Institute of Arbitrators is organising this conference to explore a plethora of issues and opportunities, ranging from the strategic to the tactical, across functions, regions, jurisdictions as well as deliberation on emerging trends.

Visit this page for more information.

ICC International Commercial Arbitration, Paris 30 September to 3 October 2013
This advanced level training will provide an in-depth understanding and first-hand experience of the ICC Arbitration procedure under the 2012 ICC Rules of Arbitration, using a practical case-study approach and role-plays to address a series of situations that arise during complex arbitral proceedings from drafting the request and the answer, to preparing witnesses and simulating an arbitral hearing.

Visit this page for more information about the training.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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