Global developments brought to you monthly by the ITA Board of Reporters
General Editor: Roger Alford
Managing Editors: Elina Mereminskaya & Monique Sasson
Volume XV - Issue 10-11
November 2017
 
 
 
 
Recent Cases and Awards (23)
 
 
In the matter of Infinite Plus Pty Ltd [2017] NSWSC 470, Supreme Court of New South Wales, 2016/299284, 27 April 2017
 
The Supreme Court of New South Wales (NSWSC) has enforced an arbitration agreement in the Shareholders Agreement of Infinite Plus, despite the fact that the dispute involved elements of the Australian statutory Corporations Law and there was a possibility that the remedies ultimately sought might be outside the scope of the powers of the arbitrator. 
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Hui v. Esposito Holdings Pty Ltd [2017] FCA 648 & [2017] FCA 728, Federal Court of Australia, Victoria District Registry, VID 1192 of 2016 & VID 1220 of 2016, 09 June 2017
 
The Federal Court of Australia (FCA) has made orders setting aside aspects of two partial arbitration awards and removing the arbitrator pursuant to the UNCITRAL Model Law.  In its judgment the FCA has warned parties to take particular care in determining the scope of any preliminary issues to be determined by split arbitration hearing.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Lahoud v. The Democratic Republic of Congo [2017] FCA 982, Federal Court of Australia, New South Wales District Registry, NSD 846 of 2017, 08 August 2017
 
The Federal Court of Australia (FCA) has granted an ex parte application to enforce an award of the International Centre for Settlement of Investment Disputes (ICSID) against the Democratic Republic of Congo (DRC) under s 35(4) of the International Arbitration Act 1974 (Cth) (IAA).  This is the first enforcement of an ICSID award by the FCA.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Mark Fitzpatrick v. Emerald Grain Pty Ltd [2017] WASC 206, Supreme Court of Western Australia, CIV 2437 of 2016, 31 July 2017
 
The Western Australian Supreme Court (WASC) has granted an application under s8 of the Commercial Arbitration Act 2012 (WA) (the Act) to stay proceedings regarding a trust dispute and refer the parties to arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Samsung C&T Corporation, in the matter of Samsung C&T Corporation [2017] FCA 1169, Federal Court of Australia, New South Wales District Registry, WAD 146 of 2017, 05 October 2017
 
The Federal Court of Australia (FCA) has refused leave to issue subpoenas to persons located in Australia for production of documents relevant to arbitral proceedings in Singapore under s23 of the International Arbitration Act 1974 (Cth) (the Act).  The FCA found that it does not have jurisdiction to issue subpoenas for foreign seated arbitrations.  
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Eriez Magnetics Pty Ltd v. Duro Felguera Australia Pty Ltd [2017] WASC 304, Supreme Court of Western Australia, CIV 2075 of 2017, 12 September 2017
 
The Western Australian Supreme Court (WASC) has granted an application under s7(2) of the International Arbitration Act 1974 (Cth) (the Act) to stay proceedings regarding a contractual dispute and refer the parties to arbitration.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Kennedy Miller Mitchell Films v. Warner Bros Feature Productions [2017] NSWSC 1526, Supreme Court of New South Wales, 2017/268450, 09 November 2017
 
The Supreme Court of New South Wales (NSWSC) has dismissed an application to stay court proceedings and refer a dispute regarding the production of the film Mad Max: Fury Road to arbitration under s7(2) of the International Arbitration Act 1974 (IAA), despite there being an arbitration clause in a related agreement between the parties.
 
Author(s): Damian Sturzaker, Marque Lawyers
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Australia
 
Australia Full text Full text as PDF
 
 
 
 
 
Hyundai Glovis Co. Ltd. v. Zhejing Qiying Energy Chemicals Co., Ltd., Intermediate People's Court of Ningbo, [2015] Zhe Yong Zhong Que Zi, No. 3, 13 January 2017
 
A Korean company, Hyundai Glovis Co,Ltd. (“Hyundai Glo”) applied for recognition and enforcement of a SIAC arbitral award before the Ningbo Intermediate People’s Court. The Defendant was a Chinese company, Zhejing Qiying Energy Chemicals Co., Ltd. (“ Qiying”).  On 13 January 2017, Ningbo Intermediate People’s Court (“Ningbo Court”) entered a judgment under which an SIAC arbitration award (SIAC Case No.004 of 2015) was recognized. ([2015] Zhe Yong Zhong Que Zi, No.3)
 
Author(s): Arthur X. Dong, AnJie Law Firm
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: China
 
China Full text Full text as PDF
 
 
 
 
 
Société Dresser-Rand Group, Inc et Société Dresser-Rand Holdings Spain, S.LU. v. Société Diana Capital I, F.C.R. et autres, Court of Appeal of Paris, , 28 February 2017
 
In a decision rendered on 28 February 2017, the Paris Court of Appeal addressed, for the first time in French case law, the possibility for arbitrators to draw adverse inferences on the basis of the IBA Rules on the Taking of Evidence in International Arbitration (the “IBA Rules”).
 
Author(s): Nataliya Barysheva, CastaldiPartners; Valentine Chessa, CastaldiPartners
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: France; France
 
France Full text Full text as PDF
 
 
 
 
 
BGH – I ZB 69/16, Federal Court of Justice of Germany, I ZB 69/16, 06 April 2017
 
Since former Sec. 1027(2) of the Code of Civil Procedure (Zivilprozessordnung, or “ZPO”) was repealed, an arbitration agreement can no longer be concluded by implication through a commercial custom.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
BGH – I ZB 1/16, Federal Court of Justice of Germany, I ZB 1/16, 02 May 2017
 
The failure of a tribunal-appointed expert to disclose all circumstances that might give rise to concerns about his impartiality or independence constitutes a procedural error. If the arbitral award is based on such expert’s opinion, and the concealed facts would have justified a challenge on grounds of bias, the arbitral award must be annulled pursuant to Sec. 1059(2) of the German Code of Civil Procedure (Zivilprozessordnung, or “ZPO”).
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
OLG Munich – 23 U 1260/17, Regional Court of Munich, 23 U 1260/17, 13 July 2017
 
A contract provision according to which the parties agree to conclude a separate arbitration agreement does not by itself constitute an arbitration agreement.
 
Author(s): Richard H. Kreindler, Cleary Gottlieb Steen & Hamilton LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Germany
 
Germany Full text Full text as PDF
 
 
 
 
 
Company X v. Company Y, High Court of Tokyo, 2016 (Ra) 497, 19 August 2016
 
The Tokyo High Court affirmed the district court's decision, which dismissed Respondent’s claim for revocation of the arbitral award rendered in accordance with the rules of the Japan Commercial Arbitration Association, by denying that the proceeding and the contents of such award violated Japanese laws and public policy.
 
Author(s): Takiko Kadono, Nagashima, Ohno & Tsunematsu; Hisaya Kimura, Nagashima, Ohno & Tsunematsu; Koki Yanagisawa, Nagashima, Ohno & Tsunematsu
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Japan; Japan; Japan
 
Japan Full text Full text as PDF
 
 
 
 
 
Kuwait Finance House (Bahrain) BSC v. David John Teece [2017] NZHC 1308, High Court of New Zealand, CIV-2013-442-289, 14 June 2017
 
The plaintiff issued proceedings in the New Zealand High Court to enforce a decision of the Bahrain Chamber for Dispute Resolution (BCDR). The High Court was asked to determine as a preliminary issue whether the BCDR qualifies as a court for the purposes of New Zealand’s private international law rules for the recognition of foreign judgments. The BCDR exercises both a mandatory jurisdiction over certain categories of commercial disputes and a voluntary jurisdiction over other matters by agreement of the parties. The High Court held that when the BCDR is exercising its mandatory jurisdiction it forms part of the judicial system of the Kingdom of Bahrain and is a court for enforcement purposes in New Zealand.
 
Author(s): Stephen Hunter, Gilbert Walker
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: New Zealand
 
New Zealand Full text Full text as PDF
 
 
 
 
 
Ngāti Hurungaterangi & Ors v. Ngāti Wahiao [2017] NZCA 429, Court of Appeal of New Zealand, CA415/2016 and CA54/2017, 26 September 2017
 
This decision of the New Zealand Court of Appeal concerns the duty of arbitrators to deliver a reasoned award. The decision provides a robust affirmation of the need for reasons as a function of due process and therefore of justice. The Court analysed the award at issue – which concerned a dispute about historic land ownership – and set it aside as lacking the basic requirements for a properly reasoned decision. 
 
Author(s): Stephen Hunter, Gilbert Walker
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: New Zealand
 
New Zealand Full text Full text as PDF
 
 
 
 
 
Consorcio Victor Chavez Ingenieros SAC – Chavez Loaiza Victor Manuel Marcelino v. Ministerio de Educacion – Pronied, Superior Court of Justice of Lima, 358-2016-0-1817-1817-SP-CO-01, 26 May 2017
 
A Peruvian court rejected a request for annulment of an arbitral award. The reuquesting party alleged that the award was issued outside of the scope of jurisdiction of an Arbitral Tribunal. 
 
Author(s): Fernando Cantuarias Salaverry, Law School of Universidad del Pacìfico
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Peru
 
Peru Full text Full text as PDF
 
 
 
 
 
C.K. v. K.L., Supreme Court of Poland, II CSK 444/16, 28 March 2017
 
In this case, an arbitral award underwent setting aside proceedings on the public policy grounds in accordance with the previously existing two-instance court proceedings, and then it reached the Supreme Court through a cassation appeal. The Supreme Court adopted a strict approach to the public policy grounds, stating that only the most egregious infringements of the principal rules of Polish law allow setting aside an arbitral award. The court decided that decreasing the agent’s fee for the successful transfer of a football player by ca. 60% from the amount agreed by the parties in the contract does not violate the public policy.
 
Author(s): Wojciech Sadowski, K&L Gates LLP; Ewelina Wetrys, K&L Gates LLP
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Poland; Poland
 
Poland Full text Full text as PDF
 
 
 
 
 
BMO v. BMP [2017] SGHC 127, Supreme Court of Singapore, High Court, Originating Summons No 501 of 2016, 26 May 2017
 
Does the initiation of litigation automatically render an arbitration agreement void?

In this judgment, the Singapore High Court clarified the scope, interpretation and operability of arbitration agreements. The SulAmerica approach was adopted in determining parties’ implied choice of law for arbitration agreements. Importantly, the court held that the initiation of litigation does not necessarily render an arbitration agreement void, and carried out a detailed analysis on the circumstances in which a right to arbitrate is lost by a party commencing litigation.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
BC Andaman Co Ltd and others v. Xie Ning Yun and another [2017] SGHC 64, Supreme Court of Singapore, High Court, Originating Summons No 884 of 2016, 04 April 2017
 
In this judgment, the High Court offered clarification on the protection of rights which parties enjoy under arbitration agreements and the resulting awards. The court re-examined principles regarding the grant of anti-suit injunctions (“ASI”), and indeed granted a permanent anti-suit injunction in aid of Singapore-seated arbitration. The court also clarified the difference between the enforcement of a contractual right and protection from vexatious and oppressive conduct.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
BGE – 4A_277/2017, Federal Supreme Court of Switzerland, 1st Civil Law Chamber, 4A_277/2017, 28 August 2017
 
The Swiss Federal Supreme Court (hereinafter the "Supreme Court") rejected an appeal against an arbitral award based on an alleged violation of the right to be heard. In its decision, the Supreme Court confirmed the principle that the appointment of an independent expert is a right of the parties, but refined it by subjecting it to certain conditions, which were not met in the case at hand.

The key point of the Supreme Court's decision revolves around the requirement that the facts to be demonstrated by an independent expert's report have to be relevant to the outcome of the proceedings. As a result of this requirement, the Supreme Court's review with regard to alleged violations of the right to be heard is very restricted.
 
Author(s): Georg von Segesser, von Segesser Law Offices
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Switzerland
 
Switzerland Full text Full text as PDF
 
 
 
 
 
BGE – 4A_600/2016, Federal Supreme Court of Switzerland, 1st Civil Law Chamber, 4A_600/2016, 29 June 2017
 
The Swiss Federal Supreme Court (hereinafter the "Supreme Court") declined an appeal against a Court of Arbitration for Sport (hereinafter "CAS") award barring Michel Platini, the former President of UEFA (the European Football Association), from all football related activities for four years and condemning him to payment of a fine. The Supreme Court reviewed the CAS award under domestic arbitration rules and rejected Platini's claim that it was arbitrary.

The decision marks a departure from the established jurisprudence of the Supreme Court according to which the provisions of the (domestic) civil procedure code can only be applicable in an international arbitration if the parties have validly concluded an agreement to opt out of the application of Title 12 of the Swiss Private International Law Act (hereinafter "PILA") in favor of the application of the domestic arbitration rules. Under this new decision, parties can rely on their statement of intent or simple lack of objection to seeing the domestic rules applied to their dispute. Whereas opting-out agreements previously were subject to very strict requirements of form, parties now have to expect that an agreement between them and the tribunal to have the domestic arbitration rules applied to their dispute will be binding for a potential appeal before the Supreme Court

The decision failed to address the question of the consequences of a change of the applicable arbitration rules in a very late stage of the proceedings. Arguably, the parties can agree such a change until shortly before the rendering of the award. However, this leaves open the question of the impact such a change would have on previous procedural orders and decisions.
 
Author(s): Georg von Segesser, von Segesser Law Offices
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Switzerland
 
Switzerland Full text Full text as PDF
 
 
 
 
 
International Investors v. Syrian Investors (Syrian Sugar Refinery Case) (Award), LCIA Case No. 111939, 14 April 2016
 
LCIA Arbitral Award in Case No. 111939 - Rendered in London in a Dispute among International and Syrian Investors over the Ownership of a Sugar Refinery in Syria, and Denying Various Jurisdictional Objections Based on the Exclusive or Primary Jurisdiction of Syrian Courts.

On April 14, 2016, an LCIA arbitral Tribunal composed of Michael Polkinghorne (Chairman), Michael Pryles and Raed Fathallah (members), unanimously rendered an arbitral award in LCIA Case No. 111939 in respect of a dispute over multiple breaches of a shareholders’ agreement concluded between major international commodities investors (International Investors), on the one hand, and a family of Syrian commodities merchants (Syrian Investors), on the other hand, for the construction and operation of a multi-million USD sugar refinery in Syria.  Although the arbitration was confidential, the award has become public as a result of enforcement proceedings in the Syrian courts. This author acted as co-counsel together with Freshfields, on behalf of the claimants during the arbitral proceedings.
 
Author(s): Abdulhay Sayed, Sayed & Sayed
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Syria
 
Syria Full text Full text as PDF
 
 
 
 
 
LG Electronics v. ANT YAPI Turkey, Court of Appeals of the City of Kiev, 22-ц/796/7347/2017, 10 August 2017
 
Ukrainian appeal court sets aside the Ukrainian ICAC award due to a violation of the procedure for signing the arbitration clause. 
 
Author(s): Yaroslav Petrov, Asters
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: Ukraine
 
Ukraine Full text Full text as PDF
 
 
 
 
 
Legislation (1)
 
 
CIETAC International Investment Arbitration (Trial) Rules 2017
 
On 19 September 2017, the China International Economic and Trade Arbitration Commission (“CIETAC”) held a press conference to introduce China’s very first investor-state arbitration rules. 

China’s International Investment Arbitration (Trial) Rules were drafted by a group of experienced investor-state arbitration experts, under organization of the CIETAC. The rules cover a comprehensive range of issues in investor-state arbitration. It is the first time China introduces such arbitration rules. Practitioners believe it will help China move a great step towards establishing a more international, transparent and convenient investment environment, together with the Belt and Road Initiative. 

Note: At the time of writing, only a Chinese version was available.
 
Author(s): Arthur X. Dong, AnJie Law Firm
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
Reporter for: China
 
China Full text
 
 
 
 
 
Publication (2)
 
 
Houston, TX: 5th ITA-IEL-ICC Joint Conference on International Energy Arbitration (18-19 January 2018)
 
The definitive annual program on international arbitration in the energy sector, the ITA, IEL and ICC join again this year to bring speakers from around the globe and across the industry to focus on the key issues in this practice – from a keynote address on the role of geopolitics in the genesis of disputes in the sector, through the uncertainty of cross-border resource development involving undelimited maritime boundaries to the increasing sophistication of “resource nationalism” in emerging markets. Procedural issues such as arbitrator selection and emergency arbitrators will be explored, and the new era of disputes in the Mexican energy industry examined. The program includes three ever-popular features: the Corporate Counsel Roundtable, tackling practical topics such as the challenging nature of the ‘bargain’ with host governments in a low-price environment, this year’s luncheon interview with David R. Haigh, Q.C., one of the deans of the practice, and all you need to know about last year’s energy disputes: the Year in Review.

The conference is presented by The Institute for Transnational Arbitration and The Institute for Energy Law of The Center for American and International Law and The ICC International Court of Arbitration.

Co-Sponsored by the Houston International Arbitration Club, Kay Bailey Hutchison Center for Energy, Law, and Business at The University of Texas at Austin and the University of Dundee Centre for Energy, Petroleum & Mineral Law & Policy.

The ITA, IEL and ICC combine again to present their 5th annual review of the year past and the year ahead in the arbitration of international disputes in the energy industry.
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
United States of America Full text
 
 
 
 
 
Washington, DC: 15th Annual ITA-ASIL Conference (4 April 2018)
 
The ½-day ITA-ASIL Conference is presented annually in Washington, D.C. by the ITA Academic Council with the American Society for International Law (ASIL) immediately preceding the ASIL Annual Meeting. Scholarship is a hallmark of this conference. The conference concludes with a networking luncheon.
 
Author(s): Reporter ITA
 
Source: A contribution by the ITA Board of ReportersDate: 30 Nov 2017
 
United States of America Full text
 
 
 
 
 
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