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.
May 25, 2016
In the 2015 case of KB v S, Hong Kong strengthened its reputation as a pro-arbitration judiciary, by setting out ten principles underpinning the enforcement of arbitral awards.
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.
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.
Good news: by the end of 2016, HKIAC, SIAC and the ICC will all have opened offices in the Shanghai Free-Trade Zone. This signals a new era of closer cooperation with China’s arbitration commissions and a higher profile for best practice training.
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.
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.
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.
Privilege is a fundamental legal right. It allows individuals and corporate entities to resist disclosure of confidential and sensitive material. There are strict rules on when privilege applies under English law: not all communications with lawyers and other advisers will be protected. Privilege can be lost by circulating privileged material without adequate safeguards.
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