Currently, Hong Kong lawyers are prohibited from charging outcome related fees in arbitration, other than pursuant to third party funding arrangements (for more information about third party funding, please see the article in our September 2017 newsletter). On 17 December 2020, the Outcome Related Fee Structures for Arbitration Sub-committee of the Law Reform Commission (Sub-committee) published a consultation paper proposing changes to Hong Kong law to enable lawyers to use outcome related fee structures (ORFS) for arbitration taking place in and outside Hong Kong, with the objective of maintaining Hong Kong’s status as one of the world’s top arbitral seats and to enable it to compete on an even playing field with other leading arbitral seats which allow some form of ORFS. The Sub-committee’s view is that such fee arrangements are attractive to clients for many reasons, including financial risk management, access to justice, and a general desire that their lawyers share the risks inherent in litigating or arbitrating a claim.
Read moreCourt Sends Amazon Alexa BIPA Plaintiffs to Arbitration
Consumers who sued Amazon must now arbitrate claims that the company’s Alexa device, a digital assistant, illegally recorded their voices and stored their voiceprints in violation of the Illinois Biometric Information Privacy Act (BIPA). In its Feb. 5opinion, the court ruled on the parties’ dueling motions. It denied the plaintiffs’ request for remand to state court after agreeing with Amazon that the plaintiffs had Article III standing. As to two of the three named plaintiffs, the court granted Amazon’s motion to compel arbitration.
Read moreSwiss Supreme Court upholds the request for revision of an arbitral award based on the subsequent discovery of circumstances that justified the removal of an arbitrator
In a recent decision published on 15 January 2021, the Swiss Federal Supreme Court (“SFSC”) upheld a request for revision of an arbitral award of the Lausanne-based Court of Arbitration for Sport (“CAS”) regarding the Chinese swimmer Sun Yang on grounds of bias and lack of impartiality of the chairman of the CAS panel (case no. 4A_318/2021 (in French)).
Factual background
With its decision of February 28, 2020, the CAS imposed an eight-year ban on the Chinese swimmer Sun Yang for violation of doping rules. On June 15, 2020, Sun Yang filed an appeal against the CAS award with the SFSC. In the appeal, he raised doubts against the impartiality of the chairman of the CAS panel, Franco Frattini. In support thereof, Sun Yang submitted evidence according to which in 2018 and 2019, Franco Frattini had repeatedly published comments about the treatment of animals in China on his Twitter account, containing extreme anti-Chinese language.
Read moreRing Seeks to Compel Arbitration in Hacking Litigation
On Friday in the Central District of California, defendant home security company Ring filed a motion to compel individual arbitration for the plaintiffs in a case alleging that Ring is liable for the hacking of their Ring accounts and devices by bad actors and additionally for allegedly sharing their personal identifying information with third parties without consent.
Read moreDivorce During COVID – How We Have Adapted
Like almost everything else in life, the COVID-19 pandemic has greatly altered the practice of family law. With court closures and social distancing measures, the court system, attorneys, and clients have turned to technology to keep the legal process moving along. Family law matters such as divorce and paternity can be difficult and complex, so the idea of using a virtual meeting platform, like Zoom, for attorney-client consultations, mediations, and hearings was initially met with skepticism. As a client, you may wonder, as we once did, whether these meetings and proceedings can be effective if they are not handled in person. After all, divorce and paternity matters often involve highly sensitive issues such as parenting, time-sharing, child support, and alimony. A strong client-attorney bond built on human interaction and connection can provide you with much-needed support during such an emotional and challenging time.
Read moreICSID releases statistics for record year 2020
The International Centre for Settlement of Investment Disputes (“ICSID”) has released case statistics for 2020 (available here) showing a record number of new cases. While the figures confirm that the Covid-19 pandemic has not so far significantly affected the nature of those disputes, other changes – such as a shift to virtual hearings – are likely to affect investment arbitration in 2021 and beyond.
Read moreEnforcement and setting aside of an Arbitral Award in Thailand
Arbitration is one of the most effective Alternative Dispute Resolution (“ADR") approaches to resolving disputes outside the courts. Arbitration is often considered for the resolution of disputes, most commonly used in relation to international commercial transactions.
The parties to a contract can mutually agree to settle all or certain disputes arising between them by an arbitral tribunal, known as an arbitration agreement. In essence, the arbitral award rendered by the arbitral tribunal will bind the parties, which will be recognized and enforced by the courts of contracting states under the Convention on Recognition and Enforcement of Foreign Arbitral Awards (1958), commonly known as the “New York Convention”. Thailand is one of contracting stages to the New York Convention and has also adopted UNCITRAL Model Law as well as the New York Convention as a model for Thai Arbitration Act B.E. 2545 (2002) (the “Arbitration Act”).
Read moreUnderstanding the No Surprises Act
Starting January 1, 2022, it will be illegal for providers to bill patients for more than the in-network cost-sharing due under patients’ insurance in almost all scenarios where surprise out-of-network bills arise, with the notable exception of ground ambulance transport. Health plans must treat these out-of-network services as if they were in-network when calculating patient cost-sharing. The legislation also creates a new final-offer arbitration process to determine how much insurers must pay out-of-network providers. If an out-of-network provider is dissatisfied with a health plan’s payment, it can initiate arbitration. The arbitrator must select between the final offers submitted by each party, taking into consideration several factors including the health plan’s historical median in-network rate for similar services.
Read moreDealing with VIP Privilege in Mediation
Working with egos and emotions is considered an obvious task for a Mediator and this responsibility is heightened when the parties involved are high profile individuals or global brands. I was recently appointed to mediate a contractual dispute between a celebrity and a multi-national brand. From the beginning, both made it clear (through their attorneys and power of attorneys) that they were “very important people” in their own rights, and therefore, will not be seeking to compromise on what they regard as righteous and reasonable.
Read moreSingapore’s mandatory breach notification regime is now in force
From 1 February 2021, most of the recent amendments to the Personal Data Protection (Amendment) Act 2020 (No. 40 of 2020) are now in force. The amendments update Singapore's regulatory framework and seek to balance economic needs with the protection of consumers' data rights.
The amendments have four primary aims:
Strengthening consumer trust through organisational accountability;
Ensuring the effectiveness of enforcement;
Enhancing consumer autonomy; and
Supporting data use for innovation.
Some key sections, including those covering data portability and the increase in the amounts of fines, are not yet in force but we expect that they will be implemented this year.
Read moreThe power of alternative dispute resolution
Not every disagreement needs to end up in court.
Sometimes, patience and the principles of peacemaking are enough to bring the parties involved to an agreeable resolution. Jeff Steele, who coaches an International Academy of Dispute Resolution Mock Mediation Team at Principia College in Illinois, shared his insights Wednesday with the Fulton Rotary Club.
As Steele explained, there are three main forms of legally binding dispute resolution.
Read moreTenet appeals $10M arbitration award to whistleblower physicians
Tenet Healthcare Corp. is appealing a ruling Monday by the U.S. District Court in Detroit that refused to vacate or seal a $10 million arbitration award to two whistleblower physicians.
Dr. Amir Kaki and Dr. Mahir Elder are two prominent cardiologists who held directorships and other privileges at Detroit Medical Center until defendants including Dallas-based Tenet refused to renew them, according to the ruling by the U.S. District Court in Dr. Amir Kaki et al. v. Tenet Healthcare Corp., et al.
Read moreMediation in a virtual world
The COVID-19 pandemic has brought new challenges to all manner of dispute resolution. Whether it is becoming accustomed to addressing a judge from your bedroom via Zoom, taking instruction from your client on WhatsApp, or trying to guess your opponent’s hobbies from their home office bookshelves, the new world of remote-working has brought new difficulties and forms of workplace and entertainment in equal measure. What has not changed, however, is the demand from parties to resolve their disputes expeditiously and efficiently, including through mediation. This begs the question: how do mediations and practitioners need to adapt in this brave new world? It is likely to be here to stay, so here are five top tips for surviving and getting the most from a virtual mediation.
Read morePaper Excellence wins arbitration to complete acquisition of Brazil's Eldorado
SAO PAULO, Feb 3 (Reuters)- Netherlands-based Paper Excellence BV has won an arbitration case against Brazilian group J&F Investimentos SA to complete the acquisition of paper mill Eldorado Brasil Celulose SA, two sources with knowledge of the matter said on Wednesday.
Read moreEgypt’s highest court spearheads arbitration-friendly stance by recognising progressive arbitration principles and practices
In a landmark judgment issued on 27 October 2020, Egypt’s Court of Cassation (the “Court”) upheld a decision of the Cairo Court of Appeal refusing to set aside an award issued by the Cairo Regional Center for International Commercial Arbitration (“CRCICA”).
In what is likely to become a leading authority on arbitration principles and practices in Egypt, the judgment asserts the Egyptian courts’ progressive stance towards arbitration. In particular, the Court broke new ground by (i) recognising and detailing the legal test for the principle of estoppel under Egyptian law, even in the absence of express legal provisions to that effect, (ii) affirming the parties’ general right under Egyptian law to appoint non-lawyers to represent them in arbitration proceedings, and (iii) hinting at the compatibility of virtual hearings with Egyptian law.
Read moreWinner Takes All: B.C. Court Confirms Indemnification Costs as the Normal Rule in Commercial Arbitrations
In domestic and international commercial arbitrations, it is common for successful parties to be awarded their actual reasonable legal fees and disbursements. The legislation governing domestic commercial arbitrations in British Columbia permits arbitrators to exercise their discretion to award such costs.
The Supreme Court of British Columbia discussed the law applicable to indemnification cost awards in its recent decision in Allard v. The University of British Columbia. In Allard, the successful party to an arbitration had sought – and been awarded – its actual reasonable costs. In awarding these costs, the arbitrator rejected an argument that indemnity costs represent “elevated” costs in the arbitration context, noting:
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 moreHuawei agreeing to ‘mediation’ with Verizon a positive gesture?
Chinese telecom giant Huawei Technologies has reportedly agreed to “private mediation” in one of the two lawsuits it brought against US carrier Verizon over patent royalties, in what could be a positive development in the Chinese firm’s troubled standing in the US.
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 moreRecent joint venture dispute trends in mining sector
This article considers the duties, both express and implied, which joint venture partners may be under when dealing with each other. Can a party simply look out for itself or must it consider its partners' interests when conducting joint venture business? How do arbitrators approach these questions?
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