International arbitration is facing continued (if not increased) problems stemming from multitier arbitration clauses. What should happen when one party has not complied with a pre-arbitral step but nonetheless commenced arbitral proceedings? Typically, the parties have a satellite dispute: on one side, whether the commencement of the arbitration is void thus depriving the arbitral tribunal of all jurisdiction due to the non-compliance and on the other side, whether such non-compliance is an issue of admissibility that falls within the arbitral tribunal’s remit to address by way of procedural modification (for example, by ordering a stay of proceedings pending completion of a negotiation period).
Read moreMediation - The future for personal injury claims?
Concluding a personal injury or clinical negligence claim on behalf of a claimant is often a bittersweet victory. Even after achieving the best possible outcome for the claimant, ultimately, the claimant still has to live with the consequences of another individual's negligent act which caused them harm.
In my experience, there often remains resentment over why the accident occurred in the first place and why the claimant had to go through an often lengthy and stressful litigation process to succeed in recovering a fair level of compensation. Regardless of what that sum of money ultimately is, the fact remains that no amount of money can take away those negative emotions.
Read moreAnother route for resolving technology disputes?
If you want to take a technology dispute to court, you’re unlikely to get a trial date in the Technology and Construction Court in London for over a year if you are going to need a week or more of the court’s time. With Brexit and Covid causing ongoing commercial and financial uncertainty, is there another quicker option to resolve disputes that parties can consider? The short answer is yes.
Introduced in October 2019, the Society for Computers & Law Adjudication Scheme might be just what parties need. Taking its lead from the adjudication provisions used in construction disputes, the Scheme is designed to provide a fast provisionally binding decision in three months. It can be used for all “Technology disputes” which are defined as “any dispute arising from a contract for the provision of tech-related goods and services including software development contracts, outsourcing arrangements, system integration contracts, IT consultancy contracts, software licensing agreements, blockchain/smart contracts and cloud computing contracts”. There is no restriction on the size or scope of the dispute that can be referred other than that it must be capable of being resolved within three months.
Read moreCharity disputes and ADR
The recent case of Hussain v Chowdhury [2020] EWHC 790 (Ch) makes clear that, before giving permission to commence charity proceedings, the courts expect the parties to actively engage with alternative dispute resolution (ADR) procedures in trying to resolve their dispute.
Read moreAgreement on “non-binding” arbitration not an arbitration agreement
An agreement to submit to non-binding arbitration is not an enforceable arbitration agreement under the English Arbitration Act 1996. The court dismissed an application for stay of English court proceedings under s9, citing absence of a valid arbitration agreement between the parties. The court held that an arbitration agreement must provide for a binding determination of disputes: IS Prime Ltd v (1) TF Global Markets (UK) Ltd (2) TF Global Markets (AUST) PTY LTD (3) Think Capital Ltd (2020) [2020] EWHC 3375 (Comm)
Read moreConsultation on dispute resolution standard form process and clause for smart contracts and blockchain engagements
Sir Geoffrey Vos, Chancellor of the High Court, has announced that the UK Jurisdiction Taskforce of the Lawtech Delivery Panel (now known as Lawtech UK) will launch a public consultation on the introduction of a standard form English law and jurisdiction dispute resolution process and accompanying clause to be included in smart contracts and blockchain engagements.
Read moreWhy London continues to be an attractive seat for international arbitration post-Brexit
At 11:00 pm on 31 December 2020, the Brexit transition period ended, and the UK’s departure from the European Union (the “EU”) was complete. Whilst the UK and the EU concluded the Trade and Cooperation Agreement (“TCA”) on 24 December 2020, which would provisionally govern the future relationship from 1 January 2021 onwards, the UK and the EU did not – unsurprisingly perhaps – agree on any future regime governing cross-border judicial cooperation and enforcement of judgments in relation to civil and commercial matters. Whilst there remains considerable uncertainty regarding the legal regime governing UK-EU court proceedings, international arbitration as a tool for resolving cross-border disputes remains unaffected. Brexit may have, in fact, made English Law and London as a seat of arbitration more attractive. This article briefly discusses why London continues to be an attractive seat for international arbitration amongst users globally.
Read moreMediation in arbitration: insights from the London chamber of arbitration and mediation/ Herbert Smith freehills survey
The Herbert Smith Freehills arbitration team has partnered with the London Chamber of Arbitration and Mediation to conduct a snapshot survey of more than 50 mediators, exploring their experience of mediation in arbitration in 2019 and 2020. The results of the survey shed light on current take-up of mediation in arbitration, the stages of the dispute at which these mediations are most likely to occur, claim values, and settlement rates. In this blog post we discuss and reflect on mediator responses to the survey, examining what the survey results reveal about the current trends in mediation in international arbitration. You can also watch a short video summarising the key findings of our research here.
Read moreou Better Watch Out: Extensions of Time for Challenging Arbitration Awards
In the recent case of The Federal Republic of Nigeria v Process & Industrial Developments Limited [2020] EWHC 2379 (Comm), the High Court granted an extension of time to bring challenges to an arbitral award made under Sections 67 and 68 of the Arbitration Act 1996.
The unusual aspect of this decision was that it had been several years since the arbitral award was made. The court found that the applicant had established a strong prima facie case of fraud affecting both the underlying contract and the arbitral proceedings, of which it had reasonably been unaware. This, along with other factors, merited the grant of an unprecedented extension.
Read moreWhat’s in Santa’s sack: what matters are caught by an arbitration clause?
Parties agree to arbitrate because they consider that to be the most appropriate method for finally resolving disputes that might arise out of their legal relationship. A positive choice to include an arbitration agreement in your contract will (in most cases) bring with it a further choice, namely to exclude the substantive jurisdiction of the national courts which would otherwise be able to hear claims between the parties. As you know, arbitration agreements are construed widely. English law takes the view that businessmen want all claims arising from one contract to be resolved before one tribunal.
Read moreUK Commercial Disputes: Winter Newsletter
2020 was a difficult and uncertain year, with unprecedented challenges across the globe, changing the world as we know it. At the start of 2021, the country remained in lockdown and Brexit materialised - with a deal - posing a further seismic shift. It remains unclear what the full effect of either will be on the economy. On the plus side, the active vaccination programme may offer us a route out of the pandemic. But one thing is clear, lawyers are resilient and our flexible fee structures and case funding options prove more important than ever. We are here, ready to help.
Read moreHaliburton v Chubb: The final say on an arbitrator’s duty of disclosure
An arbitrator’s independence and impartiality are among the foundations of arbitration. The recent Supreme Court case of Haliburton v Chubb clarifies the English law position on:
the arbitrator’s duty to disclose their appointments and involvement in other arbitrations;
whether and when disclosure is needed; and
whether the test under section 24 of the UK Arbitration Act (application to remove an arbitrator due to doubts as to impartiality) is the same as the common law test of bias.
The case is of significance for the wider international arbitration community and a significant number of arbitral institutions, namely the LCIA, ICC, CIArb, LMAA and GAFTA, were given permission by the Court to intervene given the importance of the issue.
Read moreBrexit: key practical implications for disputes and dispute resolution clauses
Despite the UK and EU having finalised a Trade and Cooperation Agreement to govern their trading and security relationship following the end of the Brexit transition period, there remain a number of uncertainties when it comes to commercial dispute resolution in cases involving the UK and the EU. In this post we look at some key practical points for parties to consider, taking into account both what we do know and what remains unclear.
Read moreWhat does it mean to finally determine a dispute?
When a dispute is finally determined it means that the dispute that was dealt with at adjudication is referred to court (or arbitration if that is what the contract requires) to have a final and binding decision on the dispute.
If the contract requires the dispute to be finally determined at arbitration then it will also likely either state the arbitrator it is to be referred to or the body that should appoint the arbitrator.
Read moreDrafting arbitration clauses: lessons learned in 2020
One of the many uncertainties of Brexit is the impact it will have on the enforcement of English court jurisdiction clauses and English court judgments across the EU. Despite the hopes of the legal community, the Trade and Cooperation Agreement does not contain any provisions on civil judicial cooperation, so there remains uncertainty over what will replace the previous regime as set out in the Brussels Recast Regulation and the Lugano Convention. The EU may agree to the UK acceding to the Lugano Convention but, for now, jurisdiction and enforcement of judgments will be determined by the Hague Convention on Choice of Court Agreements or national laws.
Read moreLitigating with a UK entity post Brexit
The Brexit transition period expired on 31 December 2020. From 1 January 2021 new rules apply when dealing with UK entities regarding which courts have jurisdiction to deal with disputes; how any UK court judgment can be enforced in Ireland and how to serve UK entities with Irish legal proceedings. This article considers each of these matters in turn. It is worth noting that neither arbitration nor mediation are affected by Brexit and those processes will remain as they currently are, including the ability to enforce Arbitration Awards under the New York Convention on the Recognition and Enforcement of Arbitration Awards, to which the UK and Ireland are both parties.
Read moreDoes the Supreme Court’s Halliburton judgment make a splash in the pool of arbitrators for global project arbitrations?
On 27 November 2020, the Supreme Court handed down its decision in Halliburton Company v Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd) [2020] UKSC 48, concerning whether and to what extent an arbitrator may accept multiple appointments in related matters without making disclosure to the party who is not the common party. Freshfields represented the London Court of International Arbitration (LCIA) in its intervention in the appeal.
Read moreFurther Guidance on Conflicts of Interest in International Arbitration: The Role of Experts
A recent English Court of Appeal judgment provides important guidance on the role of expert witnesses in international arbitration, with an emphasis on potential conflicts of interest and duties owed by expert witnesses to their clients.
Read moreCairn Energy wins retro tax arbitration; India ordered to pay USD 1.2 bn
New Delhi: UK's Cairn Energy Plc has won an arbitration against the Indian governmentlevying Rs 10,247 crore in retrospective taxes, the company said on Wednesday.
Read moreBrexit: governing law, jurisdiction and enforcing judgments
Relatively easy cross border enforcement of court judgments has been a quiet success of the EU. Now that we have the UK-EU Trade and Co-Operation Agreement we are able to report on how governing law, jurisdiction and enforcement of court judgments works post-Brexit between the UK and EU.
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