We speak with Richard Naimark, Senior Vice President of ICDR Global Operations, about the ICDR’s extensive presence in Latin America, its efforts to address party and counsel misbehavior, and its unique experience with implementing and managing emergency arbitrators.
May 25, 2016
Philip Morris Asia’s claim against Australia concerning Australia’s plain packaging laws has come to an end. The tribunal ruled (in December 2015) that it had no jurisdiction to decide the claim, which was filed in 2011, under the 1993 HK–Australia BIT.
The current methods of enforcement for international mediated settlement agreements – by way of litigation or arbitration; enabling legislation; and consent awards – are considered inadequate. To address this matter, UNCITRAL has undertaken work on creating a new legal instrument for the expedited enforcement of such agreements.
For clients whose commercial contract includes a Chinese element or whose dispute resolution clause specifies China-seated arbitration – our Hong Kong arbitration lawyers share their practical experience of ‘mediation-arbitration’, a form of dispute resolution growing in popularity in the People’s Republic of China.
The Hague Convention on Choice of Court Agreements might achieve for litigation what the New York Convention managed for arbitration. It should be taken into account in any strategic planning around disputes and dispute resolution, although it has not had time to build up a hinterland of case law and academic publishing.
Where a non-signatory is involved in performing a contract it may be bound by the arbitration agreement. ‘Good faith’ will play a role, as case law concerning the ‘group of companies’ doctrine reveals. The solution is to be absolutely clear in your arbitration agreement as to whether you wish it to extend to non-signatories involved in a project.
Res judicata and issue estoppel exist at the intersection of procedural and substantive law. Deciding what law should apply remains at the discretion of arbitration tribunals. This makes res judicata a potential area of uncertainty in the arbitration process.
In Australia, any attempt to derail the arbitration process by involving the courts will be looked upon unfavourably. If you are unhappy with the process, go to the tribunal, wait for them to decide on the issues you raise, and do not seek court intervention prematurely. This point was underlined in 2015 when the Federal Court of Australia dismissed a challenge to the appointment of two arbitrators in the Sino Dragon v Noble Resources dispute.
Update from the US: Atlanta now has a specialized court to handle international arbitration as well as a centre for international arbitration and mediation (established 2015) and an arbitration code (enacted 2012) based on the UNCITRAL model law.
The Trans-Pacific Partnership Agreement (TPP) is a comprehensive, multi-lateral free trade agreement (FTA) among 12 States representing nearly a third of the world’s trade.
Try searching our global site instead