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.
May 25, 2016
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.
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.
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.
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.
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.
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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