Professor Pedro J. Martinez-Fraga publishes the second edition of “The American Influence on International Commercial Arbitration”

Professor Pedro J. Martinez-Fraga, a leading practitioner in the field of investor-State international arbitration, international commercial arbitration, and transnational litigation, the co-leader of Bryan Cave Leighton Paisner LLP’s International Arbitration Team, and Adjunct Professor at NYU School of Law, has just published the second edition of his acclaimed book entitled “The American Influence on International Commercial Arbitration” with Cambridge University Press. As Professor Jose Alvarez, NYU’s Herbert and Rose Rubin Professor of International Law, states, “Pedro J. Martinez-Fraga begins his masterful work on the United States’ influence on international commercial arbitration with the original vision of arbitration suggested by Goya’s painting ‘Duel with Clubs’ in the Museo del Prado. The idea that arbitration is as blunt an instrument for ‘dispute settlement’ as two men using deadly force against each other – admittedly efficient, expedient, and final – has, he says, been eclipsed by the recognition that arbitration has much in common with judicial proceedings. His book is an argument, driven by a careful examination of history, case law, and statute, that the actions and views of common law courts has had much to do with this change. His is a general (and rare) defense of what some would decry, namely the ‘Americanization’ of international arbitration. Readers should welcome this new up-to-date edition. It continues to be a valuable contribution to a healthy, ongoing debate.’’ According to Gary Born, the chair of WilmerHale’s International Arbitration Practice Group, the book contains a “thoughtful and provocative analysis of a very timely subject – replete with keen observations and original analysis.”

The book traces the contours of select US common law doctrinal developments concerning international commercial arbitration. The new edition supplements the foundational work contained in the first edition in order to produce a broader and deeper work. Professor Martinez-Fraga explores how the US common law may help bridge cross-cultural legal differences by focusing on the need to address these contrasting approaches through the nomenclature and goal of securing equality between party-autonomy and arbitrator discretion in international commercial arbitration. The book thus focuses on the common law development of arbitrator immunity, as well as the precepts of party-initiative and –autonomy forming part of the US common law discovery rubric that may contribute to promoting expediency, efficiency and transparency in international commercial arbitration proceedings. It does so by carefully analyzing, among other things, the International Bar Association (IBA) Rules on Evidence Gathering, the Prague Rules, and the role of 28 USC. §1782 in international arbitration.

Center hosts webinar titled “Transparency in International Arbitration: Publication of arbitral awards versus data protection”

The Center hosts, together with FGV Law, a webinar on “Transparency in International Arbitration: Publication of arbitral awards versus data protection” on September 24, 2020 at 12:45 PM to 2:15 PM ET (New York Time).

In recent years, many arbitral institutions across the world have been adopting new rules regarding, on one hand, the publication of arbitral awards and, on the other hand, data protection. Such topics are commonly intertwined and relate to a new era of transparency in international arbitration. To some extent, the call for more transparency in international arbitration may find limits and constraints in the regulation of data protection across countries. The issue of applicable law to data protection may also play a major role and limit the new policies put in place by arbitral institutions. A single arbitration may be subject to data protection laws from different countries, with different standards and requirements. Is there a role to be played by soft law? This panel will focus on this ongoing debate, with particular attention to the perspective of the arbitral institutions.

Panelists include Eleonora Coelho, Christian Leathley, Daniel Levy, and Anna Katharina Scheffer da Silveira. The panel is moderated by Franco Ferrari.  

To attend, please submit the webinar registration here.

Center hosts webinar titled “The Applicable Law to the Merits in International Arbitration and the Role of the Seat: Hardship, force majeure, and frustration”

The Center hosts, together with FGV Law, a webinar on “The Applicable Law to the Merits in International Arbitration and the Role of the Seat: Hardship, force majeure, and frustration” on September 16, 2020 at 12:45 PM to 2:15 PM ET (New York Time).

The idea that arbitrators would be bound by the law of the seat with respect to the merits of the case is no longer prevailing in international arbitration. For the past few decades, it has been well settled that international arbitrators have no lex fori and, within an autonomous conflict rules standpoint, enjoy relative discretion to determine the applicable law (respecting parties’ choice, if any) and finally decide on the merits of the arbitration, with fewer restrictions or limitations than courts. In the era after the COVID-10 pandemic, topics relating to the law applicable to the merits pose new challenges with respect to some specific legal grounds, such as hardship, force majeure, and frustration used to justify non-compliance with contractual obligations. More than ever, the parties’ choice and arbitrators’ determination of the applicable law to the merits will play a major role in defining the outcome of the dispute, as national laws differ significantly on such topics. The requirements and thresholds to avoid a specific obligation or even the contract in its entirety under such legal grounds are rather different depending on the applicable law. Absent parties’ choice, the arbitrators’ determination of the applicable law will also play a major role in determining the outcome of the arbitration. This panel will provide an overview on these new challenges and try to tackle some of the questions that may arise.

Panelists include Giuditta Cordero-Moss, Andre Abbud, Niccolò Landi, and Marco Torsello. The panel is moderated by Franco Ferrari.  

To attend, please submit the webinar registration here.

Center hosts webinar titled “International versus Domestic Standards Under the New York Convention: Due process and public policy limitations for the production of evidence in online arbitrations”

The Center hosts, together with FGV Law, a webinar on “International versus Domestic Standards Under the New York Convention: Due process and public policy limitations for the production of evidence in online arbitrations” on September 10, 2020 at 12:45 PM to 2:00 PM ET (New York Time).

Parties frequently invoke due process violations in order to resist recognition and enforcement of foreign arbitral awards under the New York Convention. While the New York Convention does not expressly use the term “due process,” various grounds for refusal of recognition and enforcement can be seen as a manifestation of due process protections. Most importantly, Article V (1) lit. b of the New York Convention allows for refusal of recognition and enforcement if a party was unable to present its case. Article V (1) lit. d of the New York Convention offers a ground for refusal of recognition and enforcement if the proceedings were not in line with the parties’ agreement or, failing such agreement, the law of the seat. And under Article V (2) lit. b of the New York Convention, a court can refuse to recognize and enforce an arbitral award if enforcement would be contrary to the public policy of the State where recognition and enforcement are sought.

Among other fields of application, these due process limitations are particularly important for the taking of evidence. In this respect, new challenges have arisen in the wake of the COVID-19 pandemic. Arbitrators, parties, and arbitral institutions have been confronted with intricate questions as to whether and how the taking of evidence can occur online, without any physical meeting. Are arbitrators entitled to schedule a video hearing, even against the will of one of the parties? How do due process guarantees limit the conduct of such hearings? This panel will address these questions. After a discussion of the applicable normative framework, panelists will discuss best practices with respect to the taking of evidence in online arbitrations.

Panelists include Rafael Alves, Yasmine Lahlou, and Friedrich Rosenfeld. The panel is moderated by Franco Ferrari.  

To attend, please submit the webinar registration here.

Center hosts webinar titled “Coronavirus and Exemption of Liability”

The Center hosts, together with the Singapore International Arbitration Centre (SIAC) and NYIAC, a webinar on the “Coronavirus and Exemption of Liability” on Friday, June 5, 2020 at 8:00 AM to 9:15 AM ET (New York Time).

COVID-19 has caused severe disruptions to international transactions and projects and has led many to seek relief from their contractual obligations. The webinar will address the following issues: Do international instruments such as the UNIDROIT Principles of International Commercial Contracts and the UN Convention on Contracts for the International Sale of Goods (CISG) provide relief for parties affected by COVID-19?

Force majeure certificates have been requested by parties affected by COVID-19 and issued by chambers of commerce in various countries. Do such certificates have any value in an arbitral proceeding?

How are the principles of force majeure and economic hardship treated under various legal systems and under public international law?

Panelists include Ms. Chiann Bao, Mr. Nigel Blackaby QC, Professor Franco Ferrari, and Dr. Jean Ho. The panel is moderated by Ms. Lucy Reed.

To attend, please submit the webinar registration information here.

Professor Franco Ferrari publishes commentary on the Rome Regulation on the Law Applicable to Contractual Obligations (Rome I)

Professor Ferrari, the Center’s Director, has just published with Oxford University Press the second edition of an article-by-article commentary on the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations, of which he is also a co-author.

As Professor Ferrari writes in the Preface to the book authored by an international group of academics and practitioners, parties to any transaction require predictability and legal certainty, as it is the predictability and legal certainty that allow the parties to assess the legal and economic risks involved in the transaction and, thus, allows them to decide whether to enter into the transaction at all. This need is felt even more strongly where the transaction is not a purely domestic one but is linked to more than one country. To reach the desired predictability and legal certainty in an international context, various approaches have been resorted to. The drafting of uniform rules of private international law is one such approach. It aims at guaranteeing that courts in the States where such uniform rules are in force will apply the same substantive rules no matter what court a dispute is brought before, thus reducing transactions costs by requiring a party to make provision for one law only. The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) sets forth such a set of uniform private international law rules for (most of) the member states of the EU. The book provides students and practitioners with a concise and instructive article-by-article commentary which explains the underlying concepts and suggests solutions for problems that have arisen or may arise in the application of the Regulation.

Center co-hosts webinar on “Arbitration online: law and practice”

The Center hosts, in conjunction with the Commercial Law Centre at Harris Manchester College, Oxford, the Centre for International Dispute Resolution at Bucerius Law School, the National University of Singapore, and the Centre for Commercial Law Studies at Queen Mary University of London a webinar entitled “Arbitration online: law and practice”. The event will take place on 20 May 2020, from 7.00 am. – 9.00 am (NY time).

The event will address the question of whether arbitration can ‘go online’ while preserving its promise of reliable and enforceable results. In this online event international arbitration scholars and practitioners will discuss the most important legal challenges and best practice responses associated with the delivery of arbitration online in the COVID-19 crisis and beyond. The event will address, among other issues, the validity and enforceability of the arbitral award; the right to be heard and ordre public: online hearings as “hearings” in legal terms; how to assure consent of the parties to online proceedings; the arbitral tribunals’ powers to order online hearings absent party consent; specific online “guerrilla tactics” and possible sanctions; the taking evidence online; best online practices to safeguard the arbitration procedure and the award.

You can register here: https://law-oxford.zoom.us/webinar/register/WN_8MEHAFyZQImzXj1muaGrZQ

Please note that the event will be recorded and proceedings may be made publicly available after the event. By registering you consent to this.

NYU-SIAC webinar on “CISG in International Arbitration” posted for viewing

On 8 May 2020, the Center hosted, together with the Singapore International Arbitration Centre (SIAC), a webinar on the “CISG in International Arbitration.” The seminar took stock of the impact of CISG on international arbitration on the occasion of the Convention’s 40th anniversary. The panelists examined how CISG applies in arbitration and how that differs from CISG’s application in courts, how economic hardship is treated under CISG, how arbitral awards have applied the substantive provisions of CISG, as well as CISG issues in setting aside applications before the Singapore courts.

The webinar was recorded to allow those unable to take part in the seminar to benefit from the talks by the panelists (Justice Francesco Cortesi from the Italian Supreme Court; Professor Gary F. Bell, National University of Singapore; Professor Franco Ferrari, the Center’s Director;  Professor Friedrich Rosenfeld, Global Professor at NYU/Paris; Professor Marco Torsello, Verona University; Mr. Alvin Yeo, Chairman & Senior Partner of WongPartnership LLP in Singapore) and the ensuing discussion. The recording is available here: https://www.youtube.com/watch?v=nmtNzBk4cfM

Professors Franco Ferrari and Marco Torsello cited by the Ontario Superior Court of Justice

On 17 April 2020, the Ontario Superior Court of Justice rendered its decision in  Best Theratronics Ltd. v. The ICICI Bank of Canada, 2020 ONSC 2246 (CanLII). It is decision, which evolved around a contract dispute between a claimant seated in Canada and the Republic of Korea, the Court had to address, inter alia, the question of whether the Ontario courts had subject-matter jurisdiction. In deciding the issue, the Court also referred to the 1980 United Nations Convention on Contracts for the International Sale of Goods, which the contract was subject to, and relied on a book co-authored by Professors Franco Ferrari, the Center’s Director, and Marco Torsello, professor of law at Verona University School of Law and two-time visiting professor at NYU School of Law.

Center hosts webinar titled “CISG in International Arbitration”

The Center hosts, together with the Singapore International Arbitration Centre (SIAC), a webinar on the “CISG in International Arbitration.” 


On the 40th anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG), SIAC and NYU Law jointly present a webinar to take stock of the impact of CISG on international arbitration. The panelists will examine how CISG applies in arbitration and how that differs from CISG’s application in courts, how economic hardship is treated under CISG, how arbitral awards have applied the substantive provisions of CISG, as well as CISG issues in setting aside applications before the Singapore courts.


The panelists are Prof. Gary F. Bell, Justice Franco Cortesi, Prof. Franco Ferrari, Dr. Friedrich Rosenfeld, Prof. Marco Torsello, and Mr. Alvin Yeo. The event will be moderated by Mr. Piyush Prasad. 

To attend, please submit the webinar registration information here.

Webinar - May 8

TO WHAT EXTENT CAN COURTS REWRITE POORLY DRAFTED ARBITRATION AGREEMENTS TO VALIDATE THEM? – A SINGAPORE CASE STUDY

– Sonal Jain

Introduction

When parties expressly include self-invalidating provisions in their arbitration agreements, to what extent can courts extrapolate such provisions and find the agreement valid to give effect to the parties’ intention to arbitrate?

In BNA v. BNB and another, [2019] SGHC 142,[1] the Singapore High Court was tasked to determine the validity of an arbitration agreement. Despite the court’s lengthy elucidation rejecting the “validation principle”[2] as part of Singapore law, the Court effectively rewrote the parties’ arbitration agreement to find it valid. Instead of holding the agreement invalid under the correct applicable law, the court took a one step further– it interpreted an express provision in the arbitration agreement (“arbitration in Shanghai”) to mean an arbitration seated in Singapore with Shanghai merely the “venue” of the arbitration. Although the decision was successfully appealed before the Court of Appeal,[3] its paradoxical nature makes it noteworthy.

Background

In 2016, the Defendants commenced arbitration under a Takeout Agreement. Article 14 of this agreement stated that it would be governed by the law of the People’s Republic of China (“the PRC”). It also provided for the parties’ arbitration agreement. In the arbitration clause, the parties expressly stipulated that their disputes shall be “…finally submitted to Singapore International Arbitration Centre (SIAC) for arbitration in Shanghai…”[4] The Plaintiff challenged the Tribunal’s jurisdiction alleging the invalidity of the arbitration agreement under the applicable law– PRC law– stating that under PRC law, an arbitration between two domestic parties cannot be administered by a foreign arbitration institution.[5] The majority of the Tribunal held the Tribunal had jurisdiction. Thereafter, the Plaintiff applied to the Singapore High Court under §10(3) of the Singapore International Arbitration Act[6] to seek a de novo determination that the Tribunal does not have jurisdiction. The Court held that Singapore law applied to the arbitration agreement rendering it valid, therefore, the tribunal had jurisdiction.

The Court’s Findings

Law Applicable to the Arbitration Agreement

The Court reiterated that Singapore courts have adopted the three-step test formulated by the English Court of Appeal in Sulamérica.[7] This approach requires an inquiry into three questions.

  • Have the parties made an express choice of law to govern the arbitration agreement?
  • In the absence of an express choice, have they impliedly chosen a law? (The law expressly chosen by the parties for the underlying contract is presumptively their implied choice of law for the arbitration agreement. However, the presumption is rebutted if the arbitration agreement is invalid under this law.)
  • If the parties have not made an express or implied choice of law, with which system of law does the arbitration agreement have the closest and most real connection?

Rejection of the Validation Principle

According to the validation principle, while determining the law applicable to the arbitration agreement, courts must always apply the law that would validate the arbitration agreement, rather than potentially applicable choices of law that would invalidate the agreement.[8] Previously, Singapore courts had not expressly dealt with the issue of whether the validation principle is part of Singapore law. Another decision of the High Court[9] was interpreted to accommodate the validation principle in Singapore law.[10] Thus, the Court’s decision in BNA is significant. The Court’s rejection of the validation principle is sound as a matter of principle and practice.

Principally, the rules of contractual interpretation in Singapore directly conflict with the “nakedly instrumental” objective of the validation principle.[11] The Court of Appeal has previously held that arbitration agreements, like any other commercial contracts, should be interpreted in light of the words used by the parties, although to give effect to the parties’ intention to arbitrate.[12] In this vein, the Court in BNA rightly stated that analysis under the three-step test is driven by a desire to give effect to the parties’ intention to arbitrate insofar as the language chosen by them makes it possible.[13] The purpose of the analysis is not to achieve a predetermined objective of validating the agreement regardless.[14]

Practically, if arbitration agreements are construed without actually giving effect to the parties’ intentions by interpreting the words chosen (as may be the case when applying the validation principle) there is a serious possibility that the award may not be enforced if the enforcing court finds that the arbitration agreement was invalid under the law applicable to it.[15]

The Court’s Decision in BNA

Law Governing the Arbitration Agreement– The Three-step Test

The Court applied the three-step test to Article 14 of the Takeout Agreement and concluded the following:

  1. the parties had not made an express choice of law for the arbitration agreement; the choice of PRC law to the Takeout Agreement was insufficient to constitute an express choice of law to the arbitration agreement.
  2. PRC law presumptively applied to the arbitration agreement as parties’ implied choice. However, this presumption was rebutted because the arbitration agreement would be invalid under PRC law. Since the arbitration was seated in Singapore, the law of the seat– Singapore law– applied.
  3. there is no need to proceed to the third step having concluded Singapore law applies on the second step; assuming the inquiry under the third step ought to be conducted, Singapore law will still apply to the arbitration agreement.

Seat of Arbitration

The Court concluded that the seat of arbitration was Singapore notwithstanding the reference to Shanghai in the arbitration agreement. The parties expressly chose to conduct their arbitration according to the arbitration Rules of SIAC (“SIAC Rules 2013”). Rule 18.1 of the SIAC Rules 2013 (“Rule 18.1”) provides that the default seat of arbitration is Singapore, absent a contrary agreement of the parties or a contrary determination by the tribunal.[16] The Court found that the arbitration agreement referred to two geographical locations– Singapore and Shanghai. It held that reference to Shanghai did not constitute a contrary agreement as contemplated in Rule 18.1, because “there

[was]

nothing in the words chosen by the parties to refer to Shanghai which compels the construction that the PRC is to be the seat.”[17] Then, it justified itself by stating that out of the two geographical locations in the parties arbitration agreement, Singapore is a law district whereas Shanghai is merely a city.

Comment

As commendable the Court’s reasoning is for the rejection of the validation principle, its application of the three-step test to the facts of the case has failed to garner the same degree of fidelity. Particularly, the Court’s analysis on the seat of the arbitration is not only incongruent but also fraught with several difficulties.

To begin with, it is apparent from a plain reading of the arbitration agreement that there is a reference to only one geographical location in the agreement– Shanghai. Relying on the Court of Appeal’s decision in PT Garuda,[18] the Court itself reckoned that “if an arbitration agreement provides for any future arbitration to take place in a single geographic location, that location will be the seat of the arbitration unless the parties otherwise agree.”[19] There are other authorities that have interpreted such geographical references to mean a parties’ choice of “seat of arbitration”. In Naviera,[20] the English Court of Appeal opined that the phrase “arbitration in London” is the “colloquial way of referring to London as the seat of the arbitration.”[21] The Court should have concluded its inquiry in favor of Shanghai as the seat of the arbitration.

Likewise, the Court’s interpretation of Rule 18.1 is incoherent. As per Rule 18.1, first, the parties have a right to agree on a seat of arbitration. The default seat provision comes into effect only if at this first step there is no agreement between the parties.[22] Instead, the court interpreted Rule 18.1 inversely. To determine if the phrase “arbitration in Shanghai” constituted a contrary agreement, the Court assumed first that there is no such agreement, consequently, the arbitration agreement referred to two geographical locations– Singapore and Shanghai. This is logically inconsistent. Accordingly, the Court should have first determined if the words “arbitration in Shanghai” constituted an agreement between the parties on the seat of arbitration, independent of the default seat provision.

Additionally, it is ambiguous which law the Court applied to interpret the arbitration agreement. The Court’s decision is devoid of any conflict-of-laws analysis to determine the law applicable to the interpretation of the arbitration agreement. Either PRC law or Singapore law could have applied to is (as the law governing the underlying contract or the lex fori, respectively). Assuming the Court applied Singapore law, its application of the law was erroneous due to a clear departure from the existing precedent.[23] As regards PRC law, it may very well have been that PRC law would interpret “arbitration in Shanghai” to mean an arbitration seated in PRC. This would have been a question of foreign law, to be determined by way of expert evidence.[24]

This case may also be understood to have created a presumption that lack of the word “seat,” or merely referring to a city (as opposed to a country) in the arbitration agreement, will not constitute a choice of seat. Such a presumption would open the floodgates for jurisdictional arguments on the question of choice of seat, as it is not uncommon for parties to fail to designate the geographical location as “seat,” or simply refer to a city while choosing the seat.[25]

From the foregoing, the seat of the arbitration should have been decided as the PRC. Had the Court proceeded on that basis, it would have concluded on the second step of its three-step analysis that neither the law governing the underlying contract nor the law of the seat (both being PRC Law) would have applied to the arbitration agreement. The Court would have had to proceed to the third step and identified the law with which the arbitration agreement had the closest and most real connection. At this stage too, the Court should have concluded that PRC law governed the arbitration agreement because the proper law of the Takeout Agreement was PRC law and the seat of the arbitration was Shanghai. With this analysis, the court would have no alternative but to conclude that the arbitration agreement was invalid, and the tribunal lacked jurisdiction.

Accordingly, it is evident that the Court’s analysis in BNA was guided with the objective of finding the arbitration agreement valid. There is a clear dissonance between the Court’s jurisprudential discussion on the inapplicability of the validation principle in Singapore and its analysis in the present case. The Court effectively took the approach that would validate the arbitration agreement, despite the agreement’s apparent invalidity.

Closing Remarks

Although the Court’s decision is understandable due to Singapore’s pro-arbitration policy,[26] the Court of Appeal rightly reversed the Court’s decision finding that PRC law applied to the arbitration agreement. In one of its conclusory remarks, the Court noted that the three-step inquiry may operate arbitrarily due to the mere choice of arbitral rules. In this author’s opinion, it is not arbitrary, although it may have been an “unintended effect”.[27] Suppose the parties’ dispute arose just a year later and the SIAC Rules 2016[28] applied vis-à-vis SIAC Rules 2013, the parties’ arbitration agreement would have been invalid. Conversely, suppose PRC laws changed before the parties commenced their arbitration, the agreement would have been valid. These hypothetical outcomes do not reflect the arbitrariness of the judicial approach of determining the law applicable to the arbitration agreement. Instead, they remind the parties to survey their local laws before including self-invalidating provisions in their arbitration agreements and also to pay closer attention to drafting the clauses generally. After all, courts do not and should not be in the business of rewriting contractual bargains.[29] Though the Court in BNA erred in its findings, it correctly stated that “there is only so much which the law can do to save an inapt and inept arbitration agreement.”

[This article was written when the Singapore Court of Appeals had not issued the written grounds of decision. The grounds of decision were released on 27 December 2019. This article should not be construed as a summation of the Court of Appeals decision.]

Sonal Jain is an LL.M. Candidate in the International Business Regulation, Litigation and Arbitration Program at NYU School of Law.  Prior to enrolling at NYU, Sonal got her first degree in law from ILS Law College, Pune (India).


[1] BNA v. BNB and another, [2019] SGHC 142 (Singapore High Court) (Decision of July 1, 2019).

[2] See, Gary Born, International Commercial Arbitration(2nd ed., 2014) at p. 545.

[3] The grounds of appeal are awaited. See, Tom Jones, No Singapore seat for Chinese dispute, rules appeal court, Global Arbitration Review (22 October 2019), available at rb.gy/bqb1sn.

[4] BNA, supra n.1at [3] (emphasis added).

[5] However, this position is somewhat unclear. See, Arthur Ma et. al., GAR Know How: Commercial Arbitration: China: Infrastructure, ¶5 (last updated 2 May 2019), available at rb.gy/ndthzc; see also, Martin Rogers & Noble Mak, Foreign Administered Arbitration in China: The Emergence of a Framework Plan for the Shanghai Pilot Free Trade Zone, Kluwer Arbitration Blog (6 September 2019), available at rb.gy/gkrhwn.

[6] International Arbitration Act Cap. 134A (revised ed., 2002).

[7] Sulamérica Cia Nacional de Seguros SA v. Enesa Engelharia SA, [2013] 1 WLR 102 (English Court of Appeal); see, BCY v. BCZ, [2016] SGHC 249 (Singapore High Court).

[8] See, Born, supra n.2.

[9] BCY, supra n.7.

[10] See, Leong & Tan, The Law Governing Arbitration Agreement: BCY v. BCZ and Beyond, (2018) 30 SAcLJ 70.

[11] See, BNA, supra n.1 at [53].

[12] Insigma Technology Co. Ltd. v. Alstom Technology Ltd.,[2009] 3 SLR(R) 936, at [30], [31] (Singapore Court of Appeal).

[13] BNA, supra n.1 at [55].

[14] Id. at [53].

[15] Under the New York Convention, Article V(1)(a) courts may refuse enforcement of an award if the parties’ arbitration agreement was invalid under the law parties have subjected it to. This clause includes both parties’ express and implied choice of law. See, Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a Uniform Judicial Interpretation (1981) at p. 282.

[16] SIAC Rules (5th ed., 2013), available at rb.gy/nevm8v.

[17] BNA, supra n.1 at [109].

[18] PT Garuda Indonesia v. Birgen Air, [2002] 1 SLR(R) 401 (Singapore Court of Appeal).

[19] BNA, supra n.1 at [103] (emphasis supplied).

[20] Naviera Amazomica Peruana SA v. Compania Internacional de Seguros del Peru, [1988] 1 Lloyd’s Rep 116 (English Court of Appeal).

[21] Id. at 119; a similar interpretation ensued in ABB Lummus Global Ltd. v. Keppel Fels Ltd, [1999] 2 Lloyd’s Rep 24 (English High Court) (finding that “arbitration in London” or “arbitration in New York” is the ordinary language used to describe the seat of the arbitration); see also, Shagang South-Asia (Hong Kong) Trading Co. Ltd. v. Daewoo Logistics, [2015] All ER (Comm) 545 (English Commercial Court) (finding that an arbitration clause with the phrase “arbitration in London” refers to a choice of seat of arbitration).

[22] Rule 18.1 reads, “the parties may agree on the seat of arbitration Failing such agreement, the seat of arbitration shall be Singapore…”, supra n.16.

[23] See, PT Garuda, supra n.18.

[24] See, BNA, supra n.1 at [116].

[25] See, Born, supra n.2 at pp. 2074, 2075 (citing cases wherein arbitration clauses making references merely cities, without any context, were held to be the seat of arbitration).

[26] Singapore Parl. Debates, Vol 63, Sitting No 7, Title: International Arbitration Bill, Cols. 625-627 [31 October 1994], available at rb.gy/tifhld; See also Harisankar K.S., International Commercial Arbitration in Asia and the Choice of Law Determination, (2013) 30 J. Int. Arb. 621 at p. 625.

[27] BNA, supra n.1 at [122].

[28] SIAC amended its rules in 2016 and eliminated the default seat rule in order to present a more global reach. See, Rule 21.1 SIAC Rules (6th ed., 2016), available at rb.gy/9z69x8; See also, Olga Boltenko and Priscilla Lua, The SIAC Rules 2016: a watershed in the history of arbitration in Singapore, Kluwer Arbitration Blog (July 12, 2016), available at rb.gy/ypfhtw.

[29] TMT Co. Ltd v The Royal Bank of Scotland plc, [2017] SGHC 21, at [68] (Singapore High Court).

Mainland China’s Courts May Order Interim Measures in Aid of Arbitral Proceedings in Hong Kong

Xin MA

The Supreme People’s Court of the People’s Republic of China (SPC) and the government of Hong Kong Special Administration Region (HKSAR) signedthe Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administration Region (hereinafter Arrangement) on April 2, 2019. This Arrangement came into force on October 1, 2019 both in Mainland China and in the HKSAR. The SPC promulgated it in the form of Judicial Interpretation,[1] according it national mandatory force.[2] This Arrangement for the first time allows the People’s court to order interim measures in aid of commercial arbitral proceedings[3] outside Mainland China,[4] though limited to those seated in Hong Kong.

Up to now, the SPC and the HKSAR have already signed six arrangements[5] in relation to mutual judicial assistance in civil and commercial matters. In addition to this Arrangement, the SPC intends to strengthen Hong Kong as a unique seat for Sino-related alternative dispute resolution in the Asia-Pacific area. This short article tries to clarify several implications of this Arrangement for foreign parties, in the context of negotiating and drafting arbitration clauses with a Sino party, and in the context of seeking court-ordered interim measures in a People’s court against a Sino party.

What Interim Measures Can Be Ordered by A People’s Court?

While the HKSAR is a common law jurisdiction and has adopted the Model Law, Mainland China is a civil law jurisdiction and its arbitration law does not resemble the Model Law. Thus, “Interim Measure” as defined in the Model Law, does not exactly correspond to its Mainland China counterpart.

Article 1 of this Arrangement defines Interim Measure in Mainland China as “property preservation, evidence preservation, and conduct preservation.”[6] If because of one party’s conduct, or for other reasons, enforcing an arbitral award becomes difficult, or any other damage may be caused to the applicant, the applicant may apply for the preservation of that party’s property, or for an order compelling that party to perform certain conduct or abstain from certain conduct.[7] If there is a likelihood that evidence may be destroyed, or lost, or difficult to obtain later, the applicant may apply for the preservation of evidence.[8] Parties can apply for such interim measures before or after the relevant arbitral institution or permanent office has accepted the arbitration case.[9] However, applications before the start of the arbitral proceedings face stricter judicial review in regard to the urgency of the circumstances.[10]

Ad hoc vs. Institutional Arbitration & Which Arbitral Institution to Choose?

Two issues should be considered when negotiating an arbitration clause in light of this Arrangement. First, Mainland China has not yet allowed ad hoc arbitration in its own jurisdiction.[11] Its attitude towards ad hoc arbitration is also reflected in this Arrangement: only institutional arbitral proceedings seated in Hong Kong are qualified to seek court-ordered interim measures in a People’s court. Though the award of ad hoc arbitration seated in Hong Kong could be enforced by a People’s court,[12] if a foreign party intends to fully benefit from Hong Kong’s preferential arrangements with Mainland China, institutional arbitration in Hong Kong would be a more valuable choice than ad hoc arbitration.

Shanghai Marine Court granted the first application pursuant to this Arrangement on October 8, 2019 for a settlement agreement enforcement arbitration submitted to HKIAC.[13] Notice, however, that the parties initially conducted an ad hoc arbitration to solve the original contract dispute and reached that settlement agreement agreeing upon HKIAC arbitration thereof. If such an institutional arbitration clause had not been negotiated and included in that settlement agreement, this application could not have been granted.  

Second, the choice of arbitration institution should be deliberately considered because not all of the institutional arbitration seated in Hong Kong is entitled to such court-ordered interim measure aid. The arbitral institutions or permanent offices which administer “arbitral proceeding in Hong Kong” for the purpose of this Arrangement have to satisfy certain requirements,[14] then apply to the HKSAR government and obtain mutual confirmation from both the SPC and the HKSAR government to be qualified.[15] The first confirmed arbitral institutions have been promulgated[16] and other arbitral institutions can be confirmed upon application in the future. Of those first six arbitral institutions or permanent offices, CIETAC Hong Kong office and SCIAC (Hong Kong) are permanent offices of arbitral institutions which are organized and registered in Mainland China. They excel in Chinese arbitration practice. Compared to ICC Asia Office and HKIAC, however, they may be less attractive because they are from the same jurisdiction as Sino parties. 

Practical Concerns When Seeking Interim Measures in A People’s Court

Some specific and practical concerns should also be addressed when seeking interim measures in a People’s court. Procedural as they may be, they can affect the success of the application. The first concern is to decide to which court to apply. The applicant may apply to the Intermediate People’s Court of the place of residence of the party against whom the application is made, or to the Intermediate People’s Court of the place where the property or evidence is situated.[17] However, this Arrangement requires that the People’s court which accepts the interim measure application be the same as the one to accept the enforcement application.[18] This requirement comes out of consideration for judicial efficiency; the ultimate purpose of interim measures is to guarantee the enforcement of the arbitral award.[19] Thus, there may be a trade-off between one court that is more advantageous for ordering interim measures and another that is more convenient for enforcing the arbitral award. Considering the urgency required for the interim measure, it might be practical to apply to the court where the interim measure can be directly implemented, since it has no need to ask for further assistance from another court, which may prolong the implementation process.      

The second concern is with regard to the notarization and authentication requirement. A foreign applicant’s documents of identity, as part of the materials for the interim measure application,[20] must be notarized and authenticated before their submission. The People’s Court bears a fairly rigid judicial attitude towards evidence formed outside Mainland China, requesting that all such evidence, including documents of identity, be notarized and authenticated.[21] Note that although notarization and authentication are a matter of formality, failing to complete those steps in a timely manner would jeopardize an application.

Another concern is with regard to security provision. The People’s courts may at their discretion require the foreign applicant to provide security for ordering property preservation or conduct preservation. Further, if such application is made before the relevant institution or permanent office has accepted the arbitration case, security must be provided.[22] Though there are legitimate policy justifications for requiring security provision, and Sino applicants face the same requirement,[23] it may in reality constitute an obstacle to the application’s success. Once required by the People’s court, failure to provide security may lead to the refusal to grant an interim measure.[24] Nevertheless, the foreign applicant may own no property in Mainland China, or the value of such property located in Mainland China may be not sufficient to satisfy the security requirement. Thus, a practical solution may be to ask a local or national guarantee company to provide security at some consideration; however, to do so entails hasty and expeditious negotiations at costs. It still remains to be seen how the People’s courts will exercise their discretion pursuant to this Agreement in regard to security provision. However, it is wiser for foreign applicants to prepare themselves in advance for such a security provision request.

On the other hand, certain conveniences related to the “pass-on” requirement in light of this Arrangement are noteworthy. Article 3 paragraph 2 of this Arrangement requires interim measure application materials produced by the applicant to be passed on to the relevant arbitral institution or permanent office, together with a pass-on letter addressed by such relevant arbitral institution or permanent office to the People’s court.[25] However, in practice, the SPC allows applicants submitting the interim measure application materials with the pass-on letter to proceed directly to the relevant People’s court, considering that the rigidity of the pass-on requirement may, given the urgency of the circumstances, jeopardize the application since Hong Kong is located outside Mainland China.[26] In the first application under this Arrangement, this is how HKIAC and the applicant proceeded.[27]

Conclusion

In light of this Arrangement, institutional arbitration is recommended. Parties should deliberately consider the suitable arbitration institution during arbitration clause negotiation, and choose the suitable court among the competent People’s courts for granting an interim measure. Besides other procedural concerns this article has mentioned, an applicant should prepare well in advance for how to satisfy the possible security provision requirement to ensure a successful application. Nevertheless, this Arrangement’s importancefor Sino-related arbitration “cannot be overstated”,[28] as Sarah Grimmer, Secretary-General of HKIAC has commented. Hong Kong will surely become a more attractive arbitration seat henceforth. 


[1] Judicial Interpretation2019No.14

[2] As the highest court in the People’s Republic of China, the SPC also functions as a de-facto rule-making power holder. Its judicial interpretation has played an important role directing judicial practice in Mainland China. Regarding the legal status, functions and limits of the SPC’s Judicial Interpretation, please see Li Wei, Judicial Interpretation in China, 5 Willamette J. Int’l L. & Dis. Res. 87 (1997).

[3] Investment arbitrations between a state party and a private party are not covered by this Arrangement.

[4] Please see Part One of<最高人民法院关于内地与香港特别行政区法院就仲裁程序相互助保全的安排>的理解与适用》(The Interpretation and Application of the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administration Region), (Sep. 26, 2019),

http://rmfyb.chinacourt.org/paper/html/2019-09/26/content_160433.htm?div=-1.

[5] The Arrangement on Mutual Entrustment in Service of Judicial Documents in Civil and Commercial Matters 1998; the Arrangement Concerning Mutual Enforcement of Arbitral Awards 1999; the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters Pursuant to Choice of Court Agreements between Parties Concerned 2006; the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters 2016; the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters (signed in January 2019, but has not come into force yet. The Choice of Court Arrangement will be superseded upon its commencement). Another arrangement is the Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases 2017.

[6] See Interim Measure Arrangement, Article 1, “Interim measure” referred to in this Arrangement includes, in the case of the Mainland, property preservation, evidence preservation and conduct preservation.

[7] See Article 100 of the Civil Procedure Law of PRC.

[8] See Article 81 ofthe Civil Procedure Law of PRC.

[9] See Id. Article 81, Article 100.

[10] See Wang, Shizhou, Civil Procedure in China 159 (2014).

[11] Article 16 of the Arbitration Law of PRC requires that an arbitration agreement must contain a designated arbitration commission; otherwise the agreement will be invalid. Regarding the consensus that ad hoc arbitration is not admitted in Mainland China, please see Shahla F. Ali & Tom Ginsburg, International Commercial Arbitration in Aisa 88-90 (2013).

[12]最高人民法院关于香港仲裁裁决在内地行的有关问题的通知法[2009415 (Notice of the Supreme People’s Court on Issues concerning the Execution of Hong Kong Arbitral Awards in the MainlandNo. 415 [2009]).

[13] See 全国首例!上海海事法院裁定准香港仲裁程序中的保全申, (the First Instance! Shanghai Marine Court Granted an Interim Measure Application in Aid of A Hong Kong Arbitral Proceeding), (Oct. 9, 2019),

https://shhsfy.gov.cn/hsfyytwx/hsfyytwx/spgk1356/spdt1420/2019/10/09/09b080ba6dac0657016dae2f47970000.html?tm=1574068535096.

[14] See Interim Measure Arrangement, Article 2 paragraph 1.

[15] See Interim Measure Arrangement, Article 2 paragraph 2.

[16] These arbitral institutions are: Hong Kong International Arbitration Centre, China International Economic and Trade Arbitration Commission Hong Kong Arbitration Center, The Asia Office (Hong Kong) of the International Chamber of Commerce (ICC) International Court of Arbitration, Hong Kong Maritime Arbitration Group, South China International Arbitration Center (Hong Kong) and eBRAM International Online Dispute Resolution Centre.

[17] See Interim Measure Arrangement, Article 3 paragraph 1.

[18] See Supra note 4, (4) of Part Two.

[19] Id.

[20] See Interim Measure Arrangement, Article 4 paragraph 1, paragraph2.

[21] Wang, Shizhou, Supra note 10, at 23-24.

[22] Id. at 159-160.

[23] Id. at 160.

[24] Id.

[25] See Article 272 of the Civil Procedure Law of PRC.

[26] See Supra note 4, (2) of Part Five.

[27] “HKIAC Receives Five Applications under Hong Kong-Mainland Arrangement on Interim Measures”, (Oct.11, 2019), https://www.hkiac.org/news/five-interim-relief-applications-under-new-arrangement.

[28] Id.

Section 68 of the Arbitration Act 1996 (UK): can “inadequate reasons” constitute a “serious irregularity”?

— Jack Davies

Section 68 of the Arbitration Act (UK) enables parties to challenge an arbitral award on the basis of a “serious irregularity affecting the tribunal, the proceedings or the award”.[1]  The section sets out an exhaustive list of irregularities on which an award may be challenged, including s 68(2)(d) — “failure by the tribunal to deal with all the issues that were put to it” — and s 68(2)(h) — “failure to comply with the requirements as to the form of the award”.[2]  In holding that “inadequate” or “insufficient” reasons cannot found a legitimate challenge under either s 68(2)(d) or s 68(2)(h), the English High Court’s decision in Islamic Republic of Pakistan v Broadsheet LLC has helpfully clarified the scope of those subsections.[3]  In short, the Court has taken a narrow, arbitration‑friendly approach to s 68, one which aligns with the purposes of s 68, the objectives of the wider Arbitration Act and international practice.  The Court also denounced prior case law that suggested a wider approach ought to be taken to the interpretation of s 68: this criticism was well warranted, and should lead to clarity in the law. 

Relevant facts

Broadsheet was engaged by Pakistan to trace and locate assets taken from various state-run institutions, and transfer them back to the government.[4]  As compensation, Broadsheet was to receive 20 per cent of the “amount available to be transferred”.  Approximately two years after signing its contract with Broadsheet, Pakistan (via the National Accountability Bureau) gave notice to rescind the contract, alleging that Broadsheet had committed repudiatory breaches of contract.  Broadsheet denied that allegation, and commenced arbitration proceedings against Pakistan.  The tribunal awarded Broadsheet USD 21,589,460 in damages.  Approximately USD 19m of that figure related to Broadsheet’s “loss of a chance” claim in relation to the Sharif family. 

Pakistan then challenged the award in the English High Court under s 68, alleging a serious irregularity that caused it substantial injustice. 

The High Court’s decision

Pakistan’s primary complaint was that the tribunal did not explain, in any material way, the method by which it calculated the value of the Sharif family claim (i.e. the value of the chance that Broadsheet lost to receive payment in respect of recoveries made from Mr Sharif and his family).[5]  Pakistan relied principally on another recent High Court decision, Compton Beauchamp Estates Ltd v Spence, to contend that a failure of reasoning may constitute a valid challenge under s 68(2).[6]

Moulder J did not accept Pakistan’s submissions.  The Judge’s reasoning comprised three primary points.  First, as a matter of statutory interpretation, the Judge said the juxtaposition of ss 57 and 70(4) with s 68 means that “inadequate reasons” cannot found a legitimate challenge against an award under s 68.[7]  Section 57 entitles a party to apply to the tribunal to correct its award, or to issue an additional award.  Section 70(4) allows an English court to require an arbitral tribunal to state the reasons for its award in further detail, if the court considers that the tribunal’s reasons are insufficient, or perhaps “inadequate”, such that the court is unable to properly consider the merits of a challenge to the award under s 68.

Secondly, Moulder J did not accept the reasoning in the Compton decision as representing good law;[8] instead, the Judge preferred the contrary analysis given in Margulead Ltd v Exide Technologies[9]and UMS Holding Ltd v Great Station Properties SA.[10]  Because all relevant prior case law comprised other High Court decisions, the Judge was free to choose between the various analyses under the English system of stare decisis

Finally, Moulder J noted that a major purpose of the Arbitration Act was to reduce intervention by the English judiciary in arbitrations and arbitral awards.[11]  She considered that to allow challenges premised on “inadequate reasons” would be to expand unduly the scope of the High Court’s supervisory function in light of the Arbitration Act’s principles and objectives.[12] 

Analysis and appraisal of the decision

Moulder J’s decision should be applauded.  The Judge’s reasoning reflects an informed and pragmatic     approach to a section that, if interpreted erroneously, might have serious consequences for the future of arbitration in England.

First, the Judge’s statutory-interpretation point is correct.  If the UK Parliament had intended an inadequacy of reasons to be able to found a challenge under s 68, and such a challenge might lead to the award being set aside with the result that the parties have to “start from scratch”, then why would it provide the tribunal with the ability to give further reasons either on application of a party (s 57) or direction of the High Court (s 70(4))?  From reading the judgment, it appears, crucially, that Pakistan was never able to answer that question.  Inadequacy of reasons is not listed as one of the nine enumerated grounds in s 68(2).    The specificity of those available grounds means it is clear that the UK Parliament gave them substantial thought.  A traditional canon of English statutory interpretation is expressio unius est exclusio alterius.[13]  Where a statutory proposition might have covered many factors but only mentions some, unless those mentioned are listed merely by way of example, the rest are taken to be excluded from the proposition.[14]  Although not discussed by Moulder J, that canon applies with full force to s 68(2) and reinforces her reasoning.

Secondly, the Judge was correct to reject the analysis of Morgan J in Compton.  In that case, Morgan J stressed the importance of reasons in an arbitral award: “an arbitrator should explain why he has decided the essential issues in the way in which he has”.[15]  He reasoned, therefore, that “[a]n award which did not contain such reasoning would not comply with [the duty of an arbitrator to give reasons under s 52(4)][16] and that would give rise to an irregularity within s 68(2) of the 1996 Act”.[17]  No judge, in any of the relevant cases, has argued that an arbitral tribunal does not have a duty to give reasons for its award under s 52.  And no judge has doubted the importance of such reasons.  It is only natural and correct that parties are entitled to know the grounds upon which the tribunal has come to its conclusions, unless they waive that right.[18]  But that point still does not answer the question that Moulder J asked above: if a deficiency of reasons can be cured by a further award or clarification under either s 57 or s 70(4), then why should an award be liable to be set aside under s 68?  That remains the most crucial point of interpretation when evaluating the correctness of the decision in Islamic Republic.  Setting aside an award is simply too drastic a course of action to have available to litigants, when the relevant deficiencies can be cured with no prejudice to the complaining party.

Lastly, Moulder J’s reliance on the Arbitration Act’s objective of reducing judicial intervention in arbitration deserves both elaboration and applause.  The Judge made that point briefly, and did not cite any of the Act’s legislative history.  However, when that history is examined, it becomes clear that this is perhaps the strongest point in favor of disallowing an inadequacy of reasons to found a valid challenge under s 68.  Aside from the Bill itself, the most important piece of les travaux préparatoires to the Arbitration Act is the Departmental Advisory Committee’s 1996 report on the Arbitration Bill, where all provisions of the Bill were discussed in detail by the drafters, including the clause which was to be enacted as s 68.[19]  The drafters said that s 68 was intended only to be applied “by way of support for the arbitral process, not by way of interference with that process”.[20]  Furthermore, that s 68 was “really designed as a long stop, only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected”.[21]  In the light of these statements, it is very hard to see how the UK Parliament envisaged judges to be entitled to cast critical eyes over the reasoning in arbitral awards with an eye to invalidating them, particularly when further reasons are able to be requested or mandated under other provisions of the Arbitration Act.  The Act’s legislative history, then, adds further weight to Moulder J’s conclusions. 

An international comparison also highlights the propriety of the decision in Islamic Republic.  In enacting s 68, the UK Parliament deliberately provided for a variety of procedural challenges to awards that are not be able to be made under standard international practice.[22]  For example, under s 68, an award may be challenged on the grounds that the arbitral tribunal failed “to comply with the requirements as to the form of the award”.[23]  In contrast, art 34 of the UNCITRAL Model Law on International Commercial Arbitration contains comparatively few provisions upon which a party may apply to set aside an arbitral award rendered in an international arbitration.[24]  Those provisions parallel art 36 of the Model Law, which sets out the grounds on which a court may refuse to recognize or enforce an arbitral award.  Those grounds, in turn, parallel the grounds listed under art V of the New York Convention.[25]  In short, art V only allows for setting aside on grounds of incapacity, lack of jurisdiction, or major violations of due process.

In contrast, the longer list of procedural irregularities which may found a challenge under s 68 reflects the old English judicial tradition of heightened interference in arbitration.[26]  It must therefore be recognized that, if the approach taken by Morgan J in Compton was to stand — the same approach urged upon Moulder J by Pakistan in Islamic Republic — English judicial supervision of arbitration could substantially increase.  England already allows for heightened scrutiny of awards in contrast to international practice on this point and, should supervision from the bench extend to assessing the “adequacy” or “sufficiency” of a tribunal’s reasoning, parties might seriously think twice before choosing to seat their arbitrations in London.  After all, one of the key selling points of arbitration is a streamlined adjudicatory process.  Even acknowledging that international arbitration is far more complex and time-consuming than it was 50 years ago, it remains that a lack of a right of appeal on the merits can be a drawcard in attracting parties to arbitration.[27]  Allowing parties to challenge the adequacy of a tribunal’s reasons would undermine this.

Key takeaways and conclusions

Moulder J’s decision in Islamic Republic is an excellent one.  She has taken an arbitration-friendly approach to s 68 of the Arbitration Act and has ruled that English judges cannot invalidate an arbitral award for want of reasons on the tribunal’s part.  Instead, they have the power to request additional reasons, or an additional award, from the tribunal to address any perceived deficiencies in this regard.  Parties can have confidence that their arbitral awards will not be scrutinized in painful detail, as judges pore over every aspect of the tribunal’s thinking.  Moulder J’s decision supports the intention of the drafters of the Arbitration Act that s 68 really only function as a “long stop … in extreme cases”. 

The fact remains, however, that Moulder J’s decision is only another High Court judgment to add to the list that was cited to her by the parties in Islamic Republic.  Putting its compelling reasoning to one side, the judgment technically has no more authority than the contrary decision in Compton, given the English tradition of stare decisis.  Furthermore, it has not yet been cited or endorsed by any other cases.  Until appellate guidance is given, or Parliament amends the wording of the Arbitration Act to clarify matters, the issue remains unresolved.  That said, I consider that practically speaking, Moulder J’s analysis is persuasive and future High Court judges are likely to apply it.

Jack Davies is an LL.M. Candidate in the International Business Regulation, Litigation and Arbitration Program at NYU School of Law.  Prior to enrolling at NYU, Jack clerked for the current Chief Justice of New Zealand, Dame Helen Winkelmann, and then practiced commercial litigation in Auckland.


[1]           Arbitration Act 1996 (UK), s 68(1). 

[2]           For any of the enumerated irregularities to lead to a successful challenge, the irregularity must have caused, or will cause, “substantial injustice” to the applicant: s 68(1).  Note also, in relation to s 68(2)(h), that pursuant to s 52(4) — a section titled “Form of award” — the award must “contain the reasons for the award unless … the parties have agreed to dispense with reasons”. 

[3]           Islamic Republic of Pakistan v Broadsheet LLC [2019] EWHC 1832 (Comm), [2019] WLR(D) 402. 

[4]           A broader summary of the background facts is given at [5]–[11] of the Court’s decision. 

[5]           See at [18(iii)]. 

[6]           Compton Beauchamp Estates Ltd v Spence [2013] EWHC 1101 (Ch). 

[7]           Islamic Republic of Pakistan v Broadsheet LLC, supra n 4, at [42].

[8]           Ibid. 

[9]           Margulead Ltd v Exide Technologies [2004] EWHC 1019 (Comm), [2005] 1 Lloyd’s Rep 324.

[10]          UMS Holding Ltd v Great Station Properties SA [2017] EWHC 2398 (Comm), [2018] Bus LR 650.

[11]          Islamic Republic of Pakistan v Broadsheet LLC, supra n 4, at [42].

[12]          Ibid.

[13]         FAR Bennion Understanding Common Law Legislation: Drafting and Interpretation (OUP, 2001, Oxford) at 88.

[14]          Ibid.

[15]         Compton Beauchamp Estates Ltd v Spence, above n 7, at [51].  Morgan J cited an older decision, Benaim (UK) Ltd v Davies Middleton (2005) 102 Cons LR 1 (QB), where the Court said in reference to s 68 at [95]: “It is strongly arguable that unless a party knows the reasons for an award there is automatically substantial injustice to him”. 

[16]          See footnote 3, supra. 

[17]          Compton Beauchamp Estates Ltd v Spence, above n 7, at [51].

[18]          See Arbitration Act 1996 (UK), s 52(4).

[19]         Departmental Advisory Committee on Arbitration Law “1996 Report on the Arbitration Bill” (1997) 13 Arbitration International 276.  See also Andrew Tweeddale and Keren Tweeddale Arbitration of Commercial Disputes: International and English Law and Practice (OUP, Oxford, 2005) at 765. 

[20]          At [280]. 

[21]          Ibid. 

[22]         Jean-François Poudret and Sébastien Besson Comparative Law of International Arbitration (2nd ed, 2007, Sweet & Maxwell, London) at 721. 

[23]          Section 68(2)(h). 

[24]         United Nations Commission on International Trade Law UNCITRAL Model Law on International Commercial Arbitration (1985, with amendments as adopted in 2006) accessible at: <https://www.uncitral.org/pdf/english/texts/arbitration/ml-arb/07-86998_Ebook.pdf>.

[25]         Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) (opened for signature 10 June 1958, entered into force 7 June 1959).   

[26]          Poudret and Besson, supra n 23, at 721. 

[27]         Frank-Bernd Weigand and Antje Baumann “Introduction” in Frank-Bernd Weigand (ed) Practitioner’s Handbook on International Commercial Arbitration (2nd ed, OUP, 2009, Oxford) 1 at 28.

Center hosts a conference entitled “The IBA Rules on the Taking of Evidence in International Arbitration”

On Tuesday, February 4th, 2020 (from 6.00 – 8.00 pm, in the Lester Pollack Colloquium Room, Furman Hall 900, 245 Sullivan Street, New York, NY 10012), the Center for Transnational Litigation, Arbitration, and Commercial Law will host a conference on the occasion of which the book authored by Roman Khodykin & Carol Mulcahy, “A Guide to the IBA Rules on the Taking of Evidence”,  Consultant Editor Nicholas Fletcher QC (Oxford University Press, 2019) will be discussed.

It is a great pleasure to be able to announce that Dirk De Meulemeester and Friedrich Rosenfeld will comment on the aforementioned book and that the co-authors Carol Mulcahy and Roman Khodykin will be present and respond to the comments.

Carol Mulcahy is a partner in the International Arbitration department of law firm Bryan Cave Leighton Paisner LLP. She has over 30 years of experience of dealing with commercial disputes in relation to a wide variety of transactions and industry sectors including disputes relating to joint ventures, energy projects, oil-trading, shareholder disputes and outsourcing agreements. Her arbitration practice includes proceedings under LCIA, SIAC, ICC and UNCITRAL rules, and with a variety of seats.  Carol is a Chartered Arbitrator and, in addition to her work as counsel, she sits as arbitrator in arbitrations conducted under the LCIA Rules. Carol also writes regularly for publications on a variety of topics related to international arbitration and other forms of dispute resolution. 

Roman Khodykin is a Partner at Bryan Cave Leighton Paisner LLP, and a Visiting Professor at the Centre for Commercial Law Studies at Queen Mary University of London. Roman is a dual qualified solicitor of the Senior Courts of England and Wales and a Russian advocate. He holds a PhD in Conflict of Laws. Between 2015 and 2018 Roman was an alternate member for Russia of the ICC International Court of Arbitration. In recent years Roman has acted in ICSID, LCIA, ICC, AAA and MKAS arbitrations. Roman also represented athletes before the Ad Hoc Division of the Court of Arbitration for Sport. In addition to his work as counsel he has sat as an arbitrator under the LCIA, SCC and  ICC Rules.  Roman is ranked as one of Who’s Who Legal’s Future Leaders 2018 in International Arbitration.  He is also named as Lawyer of the Year for work in International Arbitration in The Best Lawyers™ in Russia.

Dirk De Meulemeester is a partner at DMDB Law, a boutique law firm in Brussels and President of the Belgian Center for Arbitration and Mediation (CEPANI). He is a professor at the University of Gent and a visiting professor at the University of Leiden. He is a member of the Bar of Brussels and Paris (till 2017). Practicing dispute resolution for over 20 years, in both national and international commercial arbitration. Acting as counsel or arbitrator (co-arbitrator, sole arbitrator or presiding arbitrator) in over sixty arbitration proceedings, administered (incl. ICC, Swiss Rules, ICSID, PCA, CEPANI, WIPO, NAI) and ad hoc, governed by various procedural and substantive laws, both civil law and common law, and by international law. Extensive experience in Mediation, Mini-Trial, MedArb. Areas of specialization include joint venture, share purchase, M&A, sales, agency, distribution, IT, construction, energy, the pharmaceutical sector and investment arbitration.

Friedrich Rosenfeld is a partner at the arbitration boutique Hanefeld in Hamburg, Germany. Apart from his work as counsel in international arbitrations, Friedrich frequently sits as arbitrator. He has acted as president, co-arbitrator and sole arbitrator in arbitrations seated in Austria, Denmark, Germany, Greece, Israel, Switzerland and the United States. During this coming semester, Friedrich will teach international commercial arbitration at NYU School of Law as Global Hauser Professor from Practice. He is also a Visiting Professor at the International Hellenic University in Thessaloniki and a Lecturer at Bucerius Law School in Hamburg. Friedrich has published in leading journals on international arbitration. Most recently, he has co-edited and authored the book entitled “Inherent Powers in International Arbitration” (Juris, 2019).

There is no need to register for the event. Seats will be assigned on a first-come-first-served basis.

The Chatham House rule applies.

Center hosts conference on “CISG in International Arbitration”

The Center hosts, together with the International Centre for Dispute Resolution (ICDR) – the international branch of the American Arbitration Association (AAA), a conference on the “CISG in International Arbitration”. The CISG’s 40th anniversary seems an appropriate occasion to analyze some issues which are still generating controversy, such as the CISG’s applicability in international arbitration, the battle of the forms, the remedies available in case of fundamental breach of contract, as well as whether the CISG covers economic hardship. The event will take place on February 3, 2020, at NYU School of Law’s Furman Hall, 245 Sullivan St., Lester Pollack Colloquium Room, 9th floor, from 3:30-7:30 pm.

The event’s speakers are Prof. Kevin Davis (NYU), Prof. Clayton P. Gillette (NYU), Dr. Friedrich Rosenfeld (Visiting Professor, NYU), Prof. Marco Torsello (Verona University),  and Gretta Walters (Chaffetz Lindsey LLP, New York). The event will be moderated by Mr. Rafael Carmona (ICDR) and Prof. Franco Ferrari, the Center’s Director.

Professor Franco Ferrari appointed to the Advisory Committee of the Saudi Center for Commercial Arbitration

At the end of November 2019, Professor Franco Ferrari, the Center’s Director, was appointed as a member of the Advisory Committee of the Saudi Center for Commercial Arbitration (SCCA). The Advisory Committee is composed of 14 Committee members (residing in 11 different countries with 10 different nationalities), each of whom was selected after a vigorous process of identifying leading international arbitration specialists. The Committee’s main task will be to advise the SCCA on its services and products to secure and promote international best practices and standards. In particular, the Committee will provide guidance on future revisions of the SCCA’s rules and procedures.

Professor Ferrari reappointed as President of the Thailand Arbitrator Committee

On September 23, 2019, Professor Ferrari, the Director of the Center, was reappointed as President of the Thailand Arbitrator Committee established at the Thailand Arbitration Center (THAC) for a period of three years. The tasks of the President of the Arbitrators Committee are outlined in the Arbitrator Committee Rules. In light of these Rules, Professor Ferrari will preside of the meetings in which the Thailand Arbitrator Committee will take decisions regarding the challenges to arbitrators. As President of the Arbitrator Committee, Professor Ferrari will, however, be the sole responsible for appointments and removals of arbitrators.

The Center hosts Italian Supreme Court Justice Francesco Cortesi

The Center will once again host Italian Supreme Court Justice Francesco Cortesi, a two-time scholar-in-residence at the Center, for this coming week. Justice Cortesi, who graduated in 1994 cum laude from Bologna University School of Law, and specialized in international commercial law at Tilburg University School of Law (Netherlands) under the supervision of Professor Franco Ferrari, the Center’s Director who at the time was professor at Tilburg University, was appointed Judge at Court of Bologna in 1999. In 2001, he was assigned to the Court of Rimini, where he mainly dealt with disputes regarding contracts, consumer law issues and professional malpractice torts. In 2007, he moved to the Court of Forlì, where he was able to focus on those very same areas of law. During his tenure there, he also rendered some of the most relevant decisions concerning the United Nations Convention on Contracts for the International Sales of Goods, many of which have been translated into various languages, including English. In 2006, Justice Cortesi was appointed to the Government Committee for the revision of the Italian Civil Code. In January 2016, Justice Cortesi was appointed to the Italian Supreme Court, thus becoming one of the two youngest justices ever appointed to the Italian Supreme Court. During his visit, Justice Cortesi will meet with graduate and post-graduate students. Justice Cortesi will also give a talk at conference to take place on Thursday, October 17th, 2019, at the Thurgood Marshall U.S. Courthouse, 40 Foley Square, Courtroom 506, New York, NY. Professor Franco Ferrari, the Center’s Director, will also participate in the conference, which will provide an overview of the methods by which U.S. litigators obtain evidence in foreign jurisdictions for use in U.S. legal proceedings. The conference will be moderated by Honorable Reena Raggi, U.S. Circuit Judge for the U.S. Court of Appeals for the Second Circuit.

Micula vs Achmea = Investment Law vs EU Law?

The Center is pleased to announce a seminar entitled “Micula vs Achmea = Investment Law vs EU Law?”. The event will take place on Wednesday, October 16, 2019, from 6:00 PM to 8:00 PM, in the Lester Pollack Colloquium Room, Furman Hall 900 (245 Sullivan Street, New York, NY 10012).

It is a great pleasure to be able to announce that Ms. Nathalie Colin, Mr. Alexandre Hublet and Kevin D. Benish agreed to present their views on different aspects of the relationship between EU and Investment Law.

Nathalie Colin is a partner and the head of the Disputes practice of the Brussels office of White & Case. Nathalie has been a commercial litigator since 1994, and has extensive experience of cross-border and domestic litigation, arbitration and white collar/investigations. In the field of arbitration, Nathalie acts as counsel and arbitrator, and was recently appointed President of a CEPANI arbitral tribunal. Nathalie obtained a landmark decision from the Brussels Court of Appeal in 2016 in an important precedent for enforcement of foreign arbitral awards under Belgian law.  She regularly publishes articles and is a speaker at conferences on international arbitration matters. Since June 2019, she has been a member of the Board of Directors of the CEPANI.  Nathalie is currently working on the Belgian enforcement efforts in the Micula case.

Alexandre Hublet is an associate at the Brussels office of White & Case .We represents domestic and foreign clients in litigation, arbitration and white collar/investigations. Alexandre was recently appointed sole arbitrator by the CEPANI, and often acts as secretary of arbitral tribunals. Alexandre is a teaching assistant in international private law at the Université Libre de Bruxelles. He is a regular speaker at conferences and has also authored various publications on international arbitration. He holds an LLM degreed from NYU, where he specialized in international arbitration. He is admitted to the New York bar. Like Nathalie, Alexandre is currently working on the Belgian enforcement efforts in the Micula case

Kevin D. Benish is an associate at Holwell Shuster & Goldberg LLP, were he represents domestic and international clients in matters involving transnational litigation, arbitration, and matters of constitutional law. He is also an adjunct professor at the New York University School of Law, where he co teaches International Litigation and Arbitration with Professor Linda Silberman. As an experienced litigator, Kevin has advised clients on judgment- and award-enforcement matters under the Foreign Sovereign Immunities Act and the ICSID Convention, and is regularly involved in U.S. proceedings in aid of foreign litigation and arbitrations. In addition to his practice, Kevin is a frequent author and commentator on topics related to transnational litigation, civil procedure, conflict of laws, and comparative law. Recently, he was an External Scientific Fellow at the Max Planck Institute for Procedural Law in Luxembourg.

Please note that the Chatham House rule applies.

Due Process Conference in International Arbitration

The Center is pleased to announce a conference entitled “Due Process in International Arbitration.” The event will take place on Friday, October 18, 2019, from 8:30 AM to 6:15 PM, in the Lester Pollack Colloquium Room, Furman Hall 900 (245 Sullivan Street, New York, NY 10012).

This event will discuss the topics addressed in the national reports drafted on the basis of a questionnaire prepared by Professors Franco Ferrari, Dietmar Czernich, and Friedrich Rosenfeld. The ultimate goal behind the national reports and the discussion that will take place at the conference is to provide the background information for those involved in litigation as to the decision courts may take.

The Center for Transnational Litigation, Arbitration, and Commercial Law aims at the advancement of the study and practice of international business transactions and the way to solve related disputes either through litigation or arbitration. As commercial transactions become increasingly international, it is vital to the legal and business communities to understand and analyze the practices and legal principles that govern relationships between firms and between firms and consumers in the international arena