INTERNATIONAL ARBITRATION 1/3LY
NEWS IN BRIEF 41
NOTABLE CASES
FORTHCOMING EVENTS 2016/2017
> ICSID TRIBUNAL: FOR THE FIRST TIME IN ICSID’S HISTORY, A TRIBUNAL HAS RECONSIDERED ONE OF ITS DECISIONS AFTER FINDING IT HAD BEEN MISLED IN A DISPUTE OVER A TANZANIAN POWER PLANT IN STANDARD CHARTERED BANK (HONG KONG) V TANZANIA ELECTRIC SUPPLY COMPANY LIMITED (ICSID CASE NO. ARB/10/20). IN AN AWARD ON 12 SEPTEMBER, A TRIBUNAL CHAIRED BY CANADIAN-NEW ZEALANDER DONALD MCRAE ORDERED TANZANIA’S STATE-OWNED POWER COMPANY TANESCO TO PAY US$148 MILLION PLUS INTEREST TO THE HONG KONG ARM OF THE UK’S STANDARD CHARTERED BANK WHILE, IN 2014, IT HAD ISSUED A DECISION ON JURISDICTION AND LIABILITY IN STANDARD CHARTERED’S FAVOUR BUT DECLINED TO AWARD DAMAGES. > S INGAPORE HIGH COURT : IN BBW V BBX [2016] SGHC 190 A SINGAPORE HIGH COURT JUDGE RULED THAT SINGAPOREAN COURTS HAVE THE INHERENT POWER TO SEAL DOCUMENTS TO KEEP ARBITRATION PROCEEDINGS SECRET, EVEN THOUGH THE COUNTRY’S INTERNATIONAL ARBITRATION ACT DOES NOT EXPLICITLY SAY SO. > E NGLISH COMMERCIAL COURT: IN ESSAR OILFIELD SERVICES LIMITED V NORSCOT RIG MANAGEMENT PVT LIMITED [2016] QBD (COMM), JUDGE WAKSMAN QC REJECTED AN ATTEMPT BY ESSAR OILFIELD SERVICES (ESSAR) TO SET ASIDE THE 2015 PARTIAL AWARD OF ICC ARBITRATOR SIR PHILIP OTTON ALLOWING A PARTY TO RECOVER ITS THIRD-PARTY FUNDING COSTS. ESSAR WAS ORDERED TO REIMBURSE NORSCOT RIG MANAGEMENT USD1.9 MILLION THAT IT HAD PAID TO LONDON-BASED WOODSFORD LITIGATION FUNDING. OTTON FOUND THAT ESSAR HAD DELIBERATELY PUT NORSCOT IN A POSITION WHERE IT COULD NOT FUND THE ARBITRATION OUT OF ITS OWN RESOURCES AND THAT IT HAD BEEN REASONABLE FOR IT TO OBTAIN £647,000 FUNDING. JUDGE WAKSMAN EXPRESSED THE VIEW THAT OTTON HAD BEEN CORRECT TO CONSTRUE THE TERM (LEGAL AND OTHER COSTS) IN THE ARBITRATION ACT 1996 (THE ACT) AS INCLUDING THIRD- PARTY FUNDING.
> ICSID TRIBUNAL: IN RESUBMISSION PROCEEDINGS FOLLOWING THE PARTIAL ANNULMENT OF AN AWARD, AN ICSID TRIBUNAL REFUSED TO AWARD ANY COMPENSATION TO THE CLAIMANTS IN VICTOR PEY CASADO AND PRESIDENT ALLENDE FOUNDATION V REPUBLIC OF CHILE (ICSID CASE NO. ARB/98/2) BECAUSE THEY HAD FAILED TO ADDRESS OR SATISFY THE BURDEN OF ESTABLISHING LOSS AND DAMAGE AND CAUSATION. > B RAZILIAN SUPERIOR COURT OF JUSTICE: IN CHAVAL NAVEGAÇÃO LTDA (CHAVAL) V LIEBHERR BRASIL – GUINDASTES E MÁQUIAS OPERATRIZES LTDA (LIEBHERR), SPECIAL APPEAL N.1.500.667/RJ (2013/0229745-5), THE COURT CONSIDERED WHETHER AN ARBITRATORS’ REFUSAL TO GRANT A REQUEST FOR INDEPENDENT EXPERT EVIDENCE CONSTITUTED A VIOLATION OF THE ADVERSARIAL PRINCIPLE JUSTIFYING A SET-ASIDE OF THE ARBITRAL AWARD. ACCORDING TO THE STJ, ARBITRATORS ARE FREE TO DECIDE ON ALL PROCEDURAL ISSUES INVOLVING THE ARBITRATION, PROVIDED THEY DO NOT VIOLATE A PARTY’S RIGHT TO DUE PROCESS. TO ALLOW A COURT TO REVIEW SUCH DECISIONS DE NOVO COULD BE DEEMED TO CONSTITUTE A VIOLATION OF THE PRINCIPLE OF KOMPETENZ-KOMPETENZ AND A SUPPRESSION OF THE ARBITRAL TRIBUNAL’S JURISDICTION. THUS, THE ARBITRAL AWARD WAS DECLARED VALID AND ENFORCEABLE. > TAIZHOU INTERMEDIATE PEOPLE’S COURT: IN TAIZHOU HAOPU INVESTMENT CO., LTD. V WICOR HOLDING AG, TAIZHOU COURT, P. R. CHINA, CASE DOCKET NUMBER: [2015] TAI ZHONG SHANG ZHONG SHEN ZI, NO. 00004 (2 JUNE 2016), THE TAIZHOU INTERMEDIATE PEOPLE’S COURT OF JIANGSU PROVINCE DENIED THE RECOGNITION AND ENFORCEMENT OF AN ICC AWARD ON THE BASIS OF THE PUBLIC POLICY EXCEPTION UNDER ARTICLE 7 OF THE ARRANGEMENT CONCERNING MUTUAL ENFORCEMENT OF ARBITRAL AWARDS BETWEEN THE MAINLAND AND THE HONG KONG SAR. THIS IS NOT THE FIRST TIME A CHINESE COURT HAS RELIED ON THE PUBLIC POLICY EXCEPTION TO REFUSE ENFORCEMENT AND RECOGNITION OF A FOREIGN ARBITRAL AWARD.
NOVEMBER 13/15 ICC Miami Conference on International Arbitration [Miami] 13/17 Dubai Arbitration Week [Dubai] 16 CIArb Alexander Lecture: Use and abuse of due process in international arbitration [London] 17 3rd Annual GAR Live Dubai [Dubai] 25 4th Annual GAR Live Paris [Paris] 30 ICC United Kingdom – Annual Arbitration Conference [London]
DECEMBER 01/02 IBA Mediation v Arbitration: Best Friends or Best Enemies? A view from Asia [Hong Kong] 09 33rd AAA-ICC-ICSID Joint Colloquium on International Arbitration [Paris]
FEBRUARY 22 2nd Annual GAR Live Abu Dhabi [Abu Dhabi]
MARCH 22 2nd Annual GAR Live Abu Dhabi [Abu Dhabi] 30/31 IBA 20th Annual International Arbitration Day [Milan, Italy]
APRIL 01 LCIA European Users’ Council Symposium, A one-day symposium following the IBA International Arbitration Day 03 5th ICC MENA Conference on International Arbitration [Dubai, United Arab Emirates] 24 1st ICC European Conference on International Arbitration [Paris, France]
Made with FlippingBook Online newsletter