Global developments brought to you monthly by the ITA Board of Reporters
General Editor: Roger Alford
Managing Editors: Crina Baltag & Monique Sasson
Volume XXII - Issue 1
January 2024
 
 
 
 
Recent Cases (42)
 
 
OGH – 2 Nc 60/23f, Supreme Court of Justice of Austria, 2 Nc 60/23f, 16 August 2023
 
In Austrian annulment proceedings, the independence and impartiality of the court is not impacted by the fact that individual judges of the court hearing respondent’s annulment plea previously participated in a court decision to appoint – on claimant’s request due to respondent's failure to appoint a co-arbitrator – a co-arbitrator in the tribunal that rendered the challenged award. (Austrian Supreme Court, Der Oberste Gerichtshof, OGH, 16 August 2023, 2 Nc 60/23f).
 
Author(s): Matthias Hofer, Freshfields Bruckhaus Deringer LLP; Katherine Khan, Freshfields Bruckhaus Deringer LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Austria; Austria
 
Austria Full text Full text as PDF
 
 
 
 
 
Russian Federation v. Luxtona Limited, Court of Appeal of Ontario (OCA), 2023 ONCA 393C70318, 02 June 2023
 
The court confirmed that on an application to set aside a tribunal's decision on jurisdiction, the application is in the nature of a proceeding de novo. As such, a court assessing a tribunal's decision on jurisdiction is not limited to the record that was before the tribunal and fresh evidence may be submitted to the court. However, a party's failure to raise evidence before the tribunal may be relevant as to the weight that the court should assign that evidence.
 
Author(s): Tina Cicchetti, Vancouver Arbitration Chambers
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Canada
 
Canada Full text Full text as PDF
 
 
 
 
 
Vento Motorcycles, Inc. v. The United Mexican States, Superior Court of Justice of Ontario (OSCJ), 2023 ONSC 5964CV-20-00649664-0000, 23 October 2023
 
The tribunal's refusal to allow a witness to testify in response to a recording used to impeach his credibility did not result in a failure to allow the claimant to present its case such that the award should be set aside for reasons of fairness or natural justice.

While the failure to disclose communications between Mexico and one of the arbitrators regarding opportunities to be included on certain rosters gave rise to a reasonable apprehension of bias, the Court exercised its discretion not to set aside the award because it found that the reasonable apprehension of bias did not undermine the reliability of the result and did not produce real unfairness or real practical injustice.
 
Author(s): Tina Cicchetti, Vancouver Arbitration Chambers
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Canada
 
Canada Full text Full text as PDF
 
 
 
 
 
Lin Manhong v. Fujian Jinjiang Sanmu Clothing Industry Co., Ltd., Intermediate People's Court of Beijing, (2022) Beijing 04 Minte No. 945, 10 April 2023
 
Article 3 of the Arbitration Law of the People's Republic China (“Arbitration Law”) provides that disputes concerning marriage, adoption, custody, fostering and succession, as well as administrative disputes shall, in accordance with the law, be dealt with by administrative bodies, are not arbitrable. However, in this case decided by Beijing Fourth Intermediate People's Court (“Court”), the court held that disputes concerning resolution made within a company, confirmation of shareholder's standing, and liquidation of a company, are disputes which are not allowed to be resolved by arbitration. It bears noting that this issue is to be clarified in the future.
 
Author(s): Arthur X. Dong, JunHe LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: China
 
China Full text Full text as PDF
 
 
 
 
 
Ryanair Designated Activity Company & Airport Marketing Services v. Syndicat Mixte des Aéroports de Charente, Council of State of France, 465761, 17 October 2023
 
Considering that the European Convention on International Commercial Arbitration of 21 April 1961 is applicable upon condition that both parties have their seat in one of the States parties to this Convention, the French Council of State in its decision of 17 October 2023 confirmed the rejection of the exequatur of an arbitral award outside the scope of this convention and thus not derogating from the principle of the prohibition for public entities to have recourse to arbitration.
 
Author(s): Nataliya Barysheva, MGC Arbitration; Valentine Chessa, MGC Arbitration
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: France; France
 
France Full text Full text as PDF
 
 
 
 
 
Egyptian General Petroleum Corporation (EGPC) v. National Gas Company (NATGAS), Court of Appeal of Paris, RG 10/16525, 24 November 2011
 
The French Court of Appeal confirms that a foreign award can be enforced in France notwithstanding its annulment at the seat of the arbitration.
 
Author(s): Nataliya Barysheva, MGC Arbitration; Valentine Chessa, MGC Arbitration
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: France; France
 
France Full text Full text as PDF
 
 
 
 
 
Jnah Development SAL v. Marriott International Hotels Inc., Court of Appeal of Paris, RG 12/07231, 17 December 2013
 
The Paris Court of Appeal considered that the validity of the power of a party’s representative is a question of jurisdiction leading to the annulment of the award.
 
Author(s): Nataliya Barysheva, MGC Arbitration; Valentine Chessa, MGC Arbitration
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: France; France
 
France Full text Full text as PDF
 
 
 
 
 
Song Lihua v. Lee Chee Hon (Former Name: Que Wenbin) [2023] HKCFI 1954, High Court of Hong Kong, Court of First Instance, HCCT 111/2022, 31 July 2023
 
The Hong Kong Court of First Instance considered whether arbitrators should be entitled to the same immunity available to judges in respect of their decision-making, absent fraud or bad faith.

The Court held that an arbitrator, when performing their function as an arbitrator, is entitled to immunity and cannot be compelled to give evidence on their decision-making where they have not acted fraudulently or in bad faith. The Court accordingly dismissed the Respondent’s summons to obtain a statement from an arbitrator.

The Court also dismissed the Respondent’s summons to obtain a statement from the Tribunal Secretary on the basis that to do so would be disproportionate in circumstances where the limited evidence the Tribunal Secretary could provide was practically the same as evidence the Respondent could already obtain via other sources.
 
Author(s): Edward Taylor, Shearman & Sterling LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Song Lihua v. Lee Chee Hon (Former Name: Que Wenbin) [2023] HKCFI 2540, High Court of Hong Kong, Court of First Instance, HCCT 111/2022, 05 October 2023
 
The Hong Kong Court of First Instance considered whether enforcement in Hong Kong of a Mainland China arbitral award should be denied on public policy grounds pursuant to section 95 of the Hong Kong Arbitration Ordinance in circumstances where an arbitrator, Q, was alleged to have not paid attention to, or not heard, an arbitral hearing.

The Court held that Q’s conduct during the hearing had been “sufficiently egregious” to warrant denying enforcement of the award on public policy grounds. Accordingly, the Court set aside the enforcement order and refused enforcement of the award in Hong Kong.

Whether an arbitrator’s conduct is such that enforcement of an award would be contrary to public policy is to be measured against the standard of the objective and reasonable third-party observer. Q’s conduct in this case fell well below that objective standard.  

The fact that a Mainland China Court had rejected a challenge to the award based on Q’s conduct did not preclude a challenge to the enforcement of the same award before the Hong Kong Court on public policy grounds based on Q’s conduct. Hong Kong as the enforcement court has to apply its own standards and law when deciding whether it would be contrary to the public policy of Hong Kong to enforce an award.
 
Author(s): Edward Taylor, Shearman & Sterling LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Sky Power Construction Engineering Limited v. Iraero Airlines JSC [2023] HKCFI 1558, High Court of Hong Kong, Court of First Instance, HCCT 113/2022, 12 June 2023
 
The Hong Kong Court of First Instance declined a party’s request to extend the deadline for filing an application to set aside an enforcement order in respect of an arbitral award.  

Among other factors, the Court carefully considered the merits of the party’s setting aside application. The Court ultimately declined to extend the deadline having determined that the intended grounds of the party’s setting aside application, which was based on the Tribunal having held a virtual hearing despite that party’s objection to it, lacked merit.  
 
Author(s): Edward Taylor, Shearman & Sterling LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
BB v. KO [2023] HKCFI 2661, High Court of Hong Kong, Court of First Instance, HCCT 7/2020, 17 October 2023
 
The Hong Kong Court of First Instance declined a party’s request to extend the deadline for filing an application to set aside an enforcement order in respect of an arbitral award. 

Among other factors, the Court considered the merits of the party’s intended set aside application. The main ground for the set aside was that the arbitral award was contrary to public policy in Hong Kong because the contingency fee arrangement that was the subject of the award partly concerned litigation in Hong Kong and was therefore champertous. The Court was not satisfied that the party’s evidence demonstrated that the fee arrangement concerned litigation in Hong Kong. In addition, more than two years had passed since the expiry of the original deadline to file a set aside application, which was a substantial delay without good reason. The Court declined to extend the deadline.
 
Author(s): Edward Taylor, Shearman & Sterling LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Hong Kong
 
Hong Kong Full text Full text as PDF
 
 
 
 
 
Cox and Kings Ltd. v. SAP India Pvt. Ltd. & Another, Supreme Court of India, Arbitration Petition (Civil) No. 38 of 2020, 06 December 2023
 
The Group of Companies doctrine has an independent existence as a legal principle under Indian arbitration law.  The doctrine is a means of identifying the common intention of the parties to bind a non-signatory to arbitration agreement and which involves a fact-specific analysis of the (i) mutual intent of the parties; (ii) relationship of a non-signatory to a party which is a signatory to the agreement; (iii) commonality of the subject-matter; (iv) composite nature of the transactions; and (v) performance of the contract.
 
Author(s): Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
M/s. Larsen Air Conditioning and Refrigeration Company v. Union of India & Others, Supreme Court of India, Civil Appeal No. 3798 of 2023, 11 August 2023
 
In arbitrations governed by the Arbitration and Conciliation Act 1996, a court has no power to modify an award and can only partially, or wholly, set aside an award if any of the grounds under Section 34 of the Act are established.
 
Author(s): Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Nuovopignone International SRL v. Cargo Motors Private Limited & Another, High Court of Delhi, O.M.P. (EFA) (Comm.) No. 11 of 2021, 30 May 2023
 
Under Indian law, foreign consent awards are recognized and enforceable under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.
 
Author(s): Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
TATA Sons Pvt. Ltd. (Formerly TATA Sons Ltd.) v. Siva Industries and Holdings Ltd. & Others, Supreme Court of India, Miscellaneous Application No. 2680 of 2019 in Arbitration Case (Civil) No. 38 of 2017, 05 January 2023
 
In international commercial arbitrations, it is not mandatory for an arbitral tribunal to render an award within the timeline stipulated under Section 29A of the Arbitration and Conciliation Act 1996.  The award in such cases may be made as expeditiously as possible with an endeavour to dispose of the matter within a period of 12 months from the date of completion of pleadings.
 
Author(s): Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Tomorrow Sales Agency Private Limited v. SBS Holdings, Inc. and Others, High Court of Delhi, FAO(OS)(COMM) 59/2023 and CM Nos. 14793/2023 & 14794/2023, 29 May 2023
 
Under Indian law, an arbitral award cannot be enforced against a third-party funder who is neither a party to the arbitral proceedings nor the award.
 
Author(s): Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
Dharmaratnakara Rai Bahadur Arcot Narainswamy Mudaliar Chattram v. Bhaskar Raju and Brothers and Seka Dobric v. SA Eonsoftech Private Limited (In re: Interplay between Arbitration Agreements under The Arbitration and Conciliation Act 1996 and The Indian Stamp Act 1899), Supreme Court of India, Curative Petition (Civil) No. 44 of 2023 in Review Petition (Civil) No. 704 of 2021 in Civil Appeal no. 1599 of 2020 Arbitration Petition No. 25 of 2023, 13 December 2023
 
Unstamped or insufficiently stamped arbitration agreements although inadmissible in evidence are not void, invalid or unenforceable.  At the stage of referring a matter to arbitration under Section 8 or Section 11 of the Arbitration and Conciliation Act 1996, courts should only examine if a written arbitration agreement prima facie exists, and any objection as to stamping should be left for the arbitral tribunal to determine.
 
Author(s): Aditya Singh, White & Case LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: India
 
India Full text Full text as PDF
 
 
 
 
 
A U.S. Citizen v. A Japanese Company, District Court of Tokyo, , 12 October 2022
 
Plaintiff, a U.S. citizen, filed a lawsuit against Defendant before Tokyo District Court, claiming that he remained the position of an employee at the Defendant and requesting for compensation or salary payment from the date when Plaintiff received Defendant's notice of termination of the contract.

The court rejected the lawsuit on the ground that the arbitration agreement was valid.
 
Author(s): Akiko Inoue, Nagashima, Ohno & Tsunematsu; Hisaya Kimura, Nagashima, Ohno & Tsunematsu; Koki Yanagisawa, Nagashima, Ohno & Tsunematsu
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Japan; Japan; Japan
 
Japan Full text Full text as PDF
 
 
 
 
 
On Compliance of Section 534, 5341, 535, 536 and 537 with the first sentence of Article 92 of the Satversme of the Republic of Latvia, Constitutional Court of Latvia, No. 2022-03-01, 23 February 2023
 
Lack of set aside procedure in national arbitration law is incompatible with the Constitution of the Republic of Latvia
 
Author(s): Inga Kacevska, Law Office of Inga Kačevska
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Latvia
 
Latvia Full text Full text as PDF
 
 
 
 
 
Tiffany & Company v. The Swatch Group Ltd., Supreme Court of the Netherlands, 17/03478, 23 November 2018
 
This Dutch Supreme Court decision regards a setting aside claim against an Amsterdam-seated arbitral award rendered between Tiffany and Swatch under the NAI rules. The District Court of Amsterdam granted Tiffany's claim based on a violation of mandate (Article 1065(1)(c) DCCP), whereby the tribunal accepted that Tiffany had violated implied obligations under the parties' agreement, while the agreement prevented the tribunal from reading such obligations into it. The Court of Appeals of Amsterdam reversed, holding that the implied obligations followed from a good faith interpretation of the wording of the agreement. The Supreme Court confirmed the Court of Appeals' decision.
 
Author(s): Richard Hansen, Linklaters LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Netherlands
 
Netherlands Full text Full text as PDF
 
 
 
 
 
Combinatie MNO Vervat Wegen – Boskalis, Boskalis Nederland B.V., and Boskalis Nederland Infra B.V. v. Provincie Noord-Holland, Court of Appeal of Amsterdam, 200.218.425/01, 10 December 2019
 
This decision of the Court of Appeals of Amsterdam regards Boskalis's setting aside claim against an Amsterdam-seated award rendered between Boskalis and Noord-Holland under the rules of the Arbitration Board for the Building Industry. The claim was inter alia based on violation of mandate (Article 1065(1)(c) DCCP) in applying the wrong decision standard. The operative part of the (appeal) award stated that it was made ex aequo et bono instead of in accordance with the rules of law. The Court of Appeals denied the claim after the appeal tribunal amended the description of the decision standard under Article 1065a DCCP.
 
Author(s): Richard Hansen, Linklaters LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Netherlands
 
Netherlands Full text Full text as PDF
 
 
 
 
 
Stichting Elevator Cartel Claim v. Kone B.V., Kone Oyj, ThyssenKrupp Liften B.V., and ThyssenKrupp AG, District Court of Rotterdam, C/10/547149 / HA ZA 18-309, 23 October 2019
 
This decision of the District Court of Rotterdam inter alia regards whether the Court was competent to hear the dispute notwithstanding the existence of an arbitration clause in the elevator manufacturers' general terms and conditions. The Court held that the condition of foreseeability set out in the CJEU's CDC/Hydrogen Peroxide judgment also applies to arbitration clauses. Having regard to the content of the arbitration clauses, which refer in abstracto to disputes arising under the contractual relationships, the Court held that disputes regarding the damaging effect of cartel violations (Article 101 TFEU) cannot be considered to arise from the contractual relationships.
 
Author(s): Richard Hansen, Linklaters LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Netherlands
 
Netherlands Full text Full text as PDF
 
 
 
 
 
CNA Insurance Company Europe S.A. (voorheen CNA Insurance Company Ltd.) v. Appellees, Court of Appeal of Amsterdam, 200.267.493/01 SKG, 17 March 2020
 
This decision of the Court of Appeals of Amsterdam inter alia regards whether the Dutch courts were competent to hear the dispute notwithstanding the existence of an arbitration clause in the general terms and conditions applicable to the D&O liability insurance the Imtech supervisory directors claimed under. The supervisory directors may have become party to that insurance by claiming under it, but acceptance of the insurance's third-party clause alone does not constitute a voluntary and unambiguous waiver of the fundamental right of access to the courts under Article 6 ECHR (and Article 17 Dutch Constitution). The courts were thus competent.
 
Author(s): Richard Hansen, Linklaters LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Netherlands
 
Netherlands Full text Full text as PDF
 
 
 
 
 
Milk New Zealand (Shanghai) Co. Ltd v Miraka Ltd [2019] NZHC 2713, High Court of New Zealand, CIV-2018-404-2433, 23 October 2019
 
Miraka Limited (Miraka) owned and operated a dairy processing plant. It contracted to supply UHT milk to MNZ New Zealand (Shanghai) Co. Ltd (MNZ) to be sold by MNZ in China (UHT Agreement). The UHT Agreement contained minimum agreed purchase volumes (Minimum Volume). MNZ failed to meet these. Miraka issued invoices for the shortfall and MNZ declined to pay those for seasons two and three. Miraka referred the dispute to arbitration and the arbitrator found in Miraka’s favour. MNZ appealed to the High Court on the basis that the arbitrator had erred in his interpretation of the UHT Agreement in respect of the Minimum Volume obligations, the available remedies and the applicability of the contractual interest rate. The High Court found for Miraka on all issues other than the application of interest. In particular, the Court found that Miraka was entitled to damages in addition to those provided for in a liquidated damages regime.
 
Author(s): Stephen Hunter, Shortland Chambers
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: New Zealand
 
New Zealand Full text Full text as PDF
 
 
 
 
 
Rau Paenga Limited v CPB Contractors Pty Limited [2023] NZHC 2974, High Court of New Zealand, CIV-2023-404-002246, 25 October 2023
 
This decision concerns the High Court’s power to grant interim measures to maintain the status quo pending the determination of a dispute by arbitration. The dispute arose under the standard NZS 3910 construction contract. The contractor gave notice of termination. The principal disputed the notice and sought an interim injunction to keep the contract on foot while the parties followed the dispute resolution procedures. The High Court adopted a generous approach to its interim measures jurisdiction: it granted the injunction; restrained the contractor from terminating; and thereby required ongoing performance of the contract pending arbitration.
 
Author(s): Stephen Hunter, Shortland Chambers
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: New Zealand
 
New Zealand Full text Full text as PDF
 
 
 
 
 
Maritime Mutual Insurance Association (NZ) Limited v. Silica Sandport Inc and Sri Commodities Import and Export Inc [2023] NZHC 793, High Court of New Zealand, CIV-2022-404-2394, 14 April 2023
 
This decision concerns the High Court’s authority to grant an interim anti-suit injunction, restraining the respondents from pursuing legal proceedings in a foreign court where the proceedings were commenced in breach of an arbitration agreement. The relevant agreement – an insurance policy – allowed the applicant (a New Zealand company) to select arbitration with an Auckland seat and governed by the New Zealand Arbitration Act 1996. The High Court granted the injunction to restrain two Guyana companies from pursuing proceedings in Guyana. The High Court determined it had sufficient interest in the matter to justify the indirect interference with the foreign court; that there were no strong reasons to refuse relief; and that it was in the interests of justice to grant the injunction.  
 
Author(s): Stephen Hunter, Shortland Chambers
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: New Zealand
 
New Zealand Full text Full text as PDF
 
 
 
 
 
Consorcio Parxin v. Municipalidad de Asunción, Court of Appeal in Civil and Commercial Affairs of Asunción, 140/2021, 17 November 2021
 
On November 17, 2021, an Asunción Appeals Court, via majority of its votes, rejected an annulment request based on Arts. 40 (a)(3) and 40 (b) of the Paraguayan Arbitration Law after concluding that the annulment application fails to sufficiently demonstrate the existence of any of the limited annulment grounds.
 
Author(s): José A. Moreno Rodríguez, Altra Legal
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Paraguay
 
Paraguay Full text Full text as PDF
 
 
 
 
 
Cencosud Retail Perú S.A. v. Inmuebles Panamericana S.A.C., Superior Court of Justice of Lima, Exp. No. 00191-2023-0 (EJE), 14 September 2023
 
The Commercial Chamber of the Superior Court of Justice of Lima declared the annulment of an award.
 
Author(s): Fernando Cantuarias Salaverry, Law School of Universidad del Pacìfico
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Peru
 
Peru Full text Full text as PDF
 
 
 
 
 
Limited liability company with its registered office in W. v. M.T., Court of Appeal of Poznan, I AGa 332/21, 28 October 2022
 
A Polish court of appeal (hereinafter the “Court”) dealt with a situation in which a party claimed it was deprived of the possibility to defend itself in consequence of the refusal of an arbitral tribunal to accept late evidence.
 
Author(s): Karolina Czarnecka, Queritius; Wojciech Sadowski, Queritius
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Poland; Poland
 
Poland Full text Full text as PDF
 
 
 
 
 
DBO and others v. DBP and others [2023] SGHC(I) 21, Singapore International Commercial Court (SICC), Originating Application No. 6 of 2023, 23 November 2023
 
This recent case decided by the Singapore International Commercial Court (the “SICC”) provided an illustration of an unsuccessful application to set aside a partial award (the “Partial Award”) made on an application for early dismissal (the “AED”) under Rule 29 of the Arbitration Rules of the Singapore International Arbitration Centre (6th Edition, 1 August 2016) (the “SIAC Rules”). The SICC discussed legal rules relating to AED situations and other established grounds of setting-aside.

This decision makes clear that in deciding AEDs, arbitral tribunals only have to assume the facts supporting the relevant contentions to be true, instead of the contentions themselves. It is also clear that as long as there is no procedural irregularity, rulings on AEDs will not be easily challenged for being in breach of natural justice or in excess of the tribunal’s jurisdiction.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
The Republic of India v. Deutsche Telekom AG [2023] SGCA(I) 10, Supreme Court of Singapore, Court of Appeal, Civil Appeal No. 1 of 2023, 15 December 2023
 
This landmark case settled Singapore’s position on the doctrine of transnational issue estoppel, making clear that the doctrine applies equally to international commercial arbitration as in litigation, effectively prohibiting parties which did not succeed in setting-aside proceedings from raising the same arguments in the enforcement proceedings when Singapore is the enforcement court. On the applicability and scope of the “Primacy Principle”, however, Mance IJ took a different view from the majority, questioning whether there is room for such a principle when the elements of issue estoppel are not satisfied. 

On the facts of the case, the Singapore Court of Appeal was satisfied that all elements of the doctrine were present, and dismissed the Appellant’s submissions in the enforcement proceedings, which had already been heard and dismissed by the seat court in Switzerland during the setting-aside proceedings. 
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
Anupam Mittal v. Westbridge Ventures II Investment Holdings [2023] SGCA 1, Supreme Court of Singapore, Court of Appeal, Civil Appeal No. 64 of 2021, 06 January 2023
 
This significant decision departs from previous practice by establishing that a dispute must be arbitrable under both the law of the arbitration agreement as well as the law of the seat at the pre-award stage. The Court of Appeal held that a two-stage approach should be adopted. First, the Court must address the question if the dispute is arbitrable under the law of the arbitration agreement. Second, if the dispute is arbitrable under the governing law of the arbitration agreement, then the court must also ask whether the dispute is arbitrable under the law of the seat. The dispute must be arbitrable under both systems of law in order for the case to proceed and for the arbitration agreement to be upheld.

In light of this decision, disputing parties are advised to specify their choice of the governing law of the arbitration agreement, taking into account the arbitrability of their disputes under both the law of the arbitration agreement and the law of the seat. Singapore’s position is now different fromthat of England and Wales, where the Arbitration Bill (which has been introduced in Parliament on 21 November 2023) provides a default rule that the law governing the arbitration agreement will be the law of the seat, unless the parties agree otherwise.

It is suggested that the most desirable solution can be found in the landmark case of Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57. In that case, the Singapore Court of Appeal opined that the fact that the relief might be beyond the power of the tribunal to grant does not in and of itself make the subject matter of the dispute non-arbitrable. Conceptually, there is nothing to preclude the underlying dispute from being resolved by the tribunal, with the parties remaining free to apply to the court for any specific remedies which might be appropriate in the light of the finding of the tribunal, e.g. an order for winding-up or a buy-out by the offending shareholders of a minority stake. On the facts of the case, the arbitral tribunal should be allowed to decide the parties’ rights and obligations under the SHA, while leaving the parties to apply to the court for any statutory remedies which the tribunal itself cannot grant. If this approach were to be adopted, the dispute under a shareholders’ agreement could be arbitrable as within the legitimate scope of the tribunal’s jurisdiction. This would be so even if the matters complained of could be viewed as  matters justifying an order of court relating to oppression and mismanagement, as any remedies sought for proven oppression and mismanagement could be left for the court to decide based on the tribunal’s findings of oppression and mismanagement.

 

 
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
CXG and another v. CXI and others [2023] SGHC 244, Supreme Court of Singapore, High Court, Originating Application No. 710 of 2022 (Summonses Nos 4335 and 4336 of 2022), 12 September 2023
 
In a significant legal development in the case of CXG and another v CXI and others [2023] SGHC 244, the High Court (per Justice Hri Kumar Nair) dismissed arguments challenging Singapore as the proper forum for enforcing interim measures arising from an SIAC arbitration. The decision, dated 12 September 2023, solidifies the court's stance against applying the doctrine of forum non conveniens (“FNC”) in the context of applications to enforce interim measures issued in Singapore-seated arbitrations.

This case clarified that FNC considerations do not apply in the context of enforcement of the tribunal’s interim measures. This conclusion coheres with the design of the IAA, the legal principles underlying the FNC doctrine, party autonomy and the policy consideration of certainty.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
CZT v. CZU [2023] SGHC(I) 11, Singapore International Commercial Court (SICC), Originating Summons No. 1 of 2023 (Summonses Nos 788, 789 and 790 of 2023), 28 June 2023
 
This case confirmed the application of the implied obligation of confidentiality under Singapore law for tribunal deliberations, and set out the two-stage test to be satisfied for an exception to confidentiality: whether the allegations against the tribunal were sufficiently serious, and if so, whether the allegations have a real prospect of success. The Singapore International Commerical Court (the “SICC”) further clarified that the relevant civil procedure objections to the production of documents (in this case the Rules of Court 2014) also applied, above and beyond satisfying the two-stage test for disclosure of the records of deliberation.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
Singapore Full text Full text as PDF
 
 
 
 
 
CZQ and CZR v. CZS [2023] SGHC(I) 16, Singapore International Commercial Court (SICC), Originating Application No. 4 of 2023, 27 October 2023
 
The case of CZQ v CZS [2023] SGHC(I) 16 (“CZQ”), decided by the Singapore International Commercial Court (the “SICC”), provided valuable insights into the intricacies of multi-tier dispute resolution clauses. Specifically, the decision underscored the importance of meticulous drafting and addressed uncertainties related to the dispute resolution mechanism within the FIDIC Conditions of Contract for Plant and Design Build (First Edition, 1999) (the “1999 FIDIC Conditions”). The ruling as delivered by Justice Andre Maniam highlighted the necessity for parties to employ clear and explicit language when establishing mandatory preconditions to arbitration.

This case serves as a reminder for the importance of meticulous drafting in the formulation of multi-tier dispute resolution clauses. The decision underscores the need for explicit language, providing practical guidance for parties in drafting agreements. Additionally, the ruling addressesuncertainties in the application of the 1999 FIDIC Conditions, offering clarity on the role of settlement discussions as a mandatory precondition to arbitration. This clarification had far-reaching implications for contractual parties, influencing negotiation strategies and pre-arbitration preparations within the framework of the standard FIDIC terms.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
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Maxx Engineering Works Pte Ltd v. PQ Builders Pte Ltd [2023] SGHC 71, Supreme Court of Singapore, High Court, Originating Application No. 621 of 2022, 27 March 2023
 
In the case of Maxx Engineering Works Pte Ltd v PQ Builders Pte Ltd [2023] SGHC 71, the Singapore High Court grappled with the enforcement of mandatory mediation clauses in a sub-contract between Maxx and PQ. The court affirmed that the imperative language in the mediation clause, stating "shall refer," imposed a legal obligation on both parties to engage in mediation before resorting to arbitration. Noteworthy was PQ's apparent lack of willingness to mediate, as it directly referred the dispute to arbitration. Nonetheless, the court found it just and equitable to order specific performance, considering factors such as the inadequacy of damages and the promotion of amicable dispute resolution. This landmark decision established a precedent for the enforceability of specific performance in cases involving mandatory mediationclauses, emphasizing Singapore's commitment to foster amicable dispute resolution.

This notable decision has illustrated legal principles in ordering specific performance to give effect to mandatory mediation clauses. The judgment's significance extends beyond the immediate dispute, offering critical guidance to parties navigating multi-tiered dispute resolution clauses. 

In a broader context, the judgment aligns with Singapore’s legal landscape that encourages amicable dispute resolution. The court's readiness to direct parties to attempt amicable resolution, even in the absence of one party’s willingness to mediate, signifies a progressive stance. While this ruling is straightforward, its application in future cases may vary based on the nuances presented in individual cases. The court's willingness to order specific performance is contingent on the specific circumstances of each case. Future cases may introduce variations, especially concerning evidence of substantial hardship or specific wording of the relevant clauses, contributing to the evolving application of specific performance in mediation-related disputes.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
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The Republic of India v. Deutsche Telekom AG [2023] SGCA(I) 4, Supreme Court of Singapore, Court of Appeal, Civil Appeal No. 1 of 2023 (Summons No. 4 of 2023), 09 June 2023
 
In a crucial decision, the Singapore Court of Appeal, in The Republic of India v Deutsche Telekom AG [2023] SGCA(I) 4, declined to grant a privacy order in proceedings enforcing an arbitral award, on the basis that the confidentiality of the underlying arbitration had already been significantly compromised.

This decision underscores the critical importance of maintaining confidentiality in arbitration proceedings. The court's stance, guided by the principle of open justice, signals that seeking a privacy order becomes futile once the confidentiality of an arbitration is substantially compromised. The ruling serves as a reminder to parties involved in arbitration to be vigilant in preventing public disclosures and highlights the need for securing privacy orders in related proceedings across jurisdictions to enhance the prospects of confidentiality protection. Moreover, the decision prompts contemplation on the circumstances under which privacy orders may be granted when certain information related to the arbitration has already entered the public domain and where courts will draw that line of how much disclosure is too much disclosure.
 
Author(s): Michael Hwang, Michael Hwang Chambers LLC
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: Singapore
 
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Tidewater Investment SRL, Tidewater Caribe S.A. et al. v. Bolivarian Republic of Venezuela, United States District Court, District of Delaware, Misc. No. 19-79-LPSMisc. No. 21-18-LPSMisc. No. 22-131-LPSMisc. No. 22-263-LPSMisc. No. 23-298-LPSMisc. No. 23-340-LPSMisc. No. 23-360-LPSMisc. No. 23-361-LPSMisc. No. 23-378-LPSMisc. No. 23-379-LPSMisc. No. 23-397-LPS, 01 November 2023
 
A group of seven creditors with judgments against Venezuela (“Seven Creditors”) registered their judgments in the District of Delaware and filed writs of attachment fieri facias against the shares of Delaware corporation PDVH, which is a wholly-owned subsidiary of Petróleos de Venezuela, S.A. (“PDVSA”), Venezuela’s state-owned oil and gas company. These creditors followed several other judgment creditors of Venezuela who also registered their judgments in the District of Delaware and sought attachment of PDVH shares. In these prior proceedings, the U.S. District Court of the District of Delaware (“District Court”) found that PDVSA was Venezuela’s alter ego, and that PDVSA’s assets could be attached to satisfy Venezuela’s debts. 

Venezuela opposed the Seven Creditors’ motions for writs of attachment. PDVSA intervened and filed cross-motions to dismiss on the basis that the District Court lacked jurisdiction over PDVSA, and PDVSA’s assets are immune from attachment and execution. Venezuela and PDVSA argued that the judgment creditors may not attach the PDVH shares to satisfy the judgments against Venezuela under Federal Rule of Civil Procedure (“FRCP”) 69(a) and “Delaware alter ego principles,” which together require the judgment creditors to demonstrate fraud or similar injustice for attachment.

The District Court held that collateral estoppel precludes Venezuela and PDVSA from arguing that Delaware alter ego principles apply, and even if collateral estoppel did not apply, federal law governs the alter ego analysis which does not require a showing of fraud or injustice.

The District Court conditionally granted the Seven Creditors’ motions for writs of attachment fieri facias and denied PDVSA’s motions to dismiss.
 
Author(s): Emma S. Nguyen, King & Spalding LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: United States of America
 
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Winslow Strong v. Cashbet Alderney Limited, et al., United States District Court, Northern District of California, No. 3:23-cv-02081-JSC, 11 October 2023
 
Petitioner Winslow Strong (“Strong”) initiated arbitration against Cashbet Alderney (“Cashbet”) and other individuals involved with the marketing of Cashbet Coins, a cryptocurrency offered for sale through an initial coin offering. Strong sought arbitration after he invested in Cashbet Coins and the price plummeted. The parties agreed to arbitrate before an International Center for Dispute Resolution (“ICDR”) Tribunal in San Francisco.

The hearing took place from October 12-20, 2021, and the final award was rendered by the Tribunal on December 22, 2021. The Respondents did not attempt to vacate or set aside the award. A month after the award was issued, the Respondents paid the award in full.

16 months later, however, Strong sought confirmation of the award in the Northern District of California. Strong sought confirmation under 9 U.S.C. § 1 of the Federal Arbitration Act and included with his petition a motion to file a partially redacted version of the award. In response, the Respondents moved to seal the award, which was not yet public pursuant to an ICDR confidentiality order.

The N.D.C.A. denied Strong’s petition to confirm the award. It based this decision on the issue of standing: under Article III of the United States Constitution, Strong had the burden to identify an injury that he would have suffered if the award were not confirmed. Because the award had already been paid in full, there was no injury, and thus no standing.

The N.D.C.A. went further, and granted the Respondents’ motion to seal the award in its entirety. The N.D.C.A. noted that court proceedings are generally predisposed toward public access and apply a strong presumption in favor of publication. However, it noted that the dispositive nature of Strong’s petition was a compelling reason to seal the award. It found that Strong’s petition to confirm the award had been an attempt to circumvent the ICDR confidentiality order and enter the award into the public record.

Because Strong’s petition had been mooted months before it was even filed, the N.D.C.A. dismissed his claims and permanently sealed the award.
 
Author(s): Daniel Rosenberg, King & Spalding LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: United States of America
 
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ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V., ConocoPhillips Gulf of Paria B.V., and ConocoPhillips Company v. Bolivarian Republic of Venezuela, United States District Court, District of Delaware, Misc. No. 22-464-LPS, 20 December 2023
 
After Venezuela nationalized three crude oil projects that ConocoPhillips (and several related entities) operated alongside Venezuelan company Petróleos de Venezuela S.A. (“PDVSA”), ConocoPhillips filed a treaty arbitration before the International Centre for Settlement of Investment Disputes (“ICSID”). Separately, ConocoPhillips filed a commercial arbitration before the International Chamber of Commerce (“ICC”). After receiving a USD$ 8.5 billion and USD$ 1.9 billion award in the ICSID and ICC cases, respectively, ConocoPhillips moved to enforce the ICSID award in the United States District Court for the District of Columbia.

After the court granted ConocoPhillips’s request to confirm and enforce the ICSID award, ConocoPhillips filed for a writ of attachment for the shares of PDV Holding, Inc., owned by PDVSA, in a suit against Venezuela in the United States District Court for the District of Delaware. PDVSA intervened in the suit, and filed a motion to dismiss, arguing the court lacked subject matter jurisdiction, as ConocoPhillips was allegedly estopped from arguing Venezuela and PDVSA and its subsidiaries were alter egos due to statements and rulings made in the ICSID and ICC arbitrations.

But in a December 20, 2023 memorandum opinion Judge Stark rejected PDVSA’s motion to dismiss and conditionally granted ConocoPhillips’s writ of attachment. The court rejected PDVSA’s argument that estoppel applied because ConocoPhillips allegedly argued Venezuela and PDVSA were alter egos in the ICSID arbitration. The court held that PDVSA did not satisfy all three requirements for judicial estoppel, namely that ConocoPhillips (1) took two irreconcilably inconsistent positions; (2) acted in bad faith; and (3) caused harm which could only be remedied by applying judicial estoppel.

The court also rejected PDVSA’s argument that collateral estoppel applied because allegedly the issue of whether Venezuela and PDVSA were alter egos was litigated in the ICC arbitration. The court noted that for collateral estoppel to apply, PDVSA must (but could not) show that (1) an identical issue was previously litigated and adjudicated, (2) that the prior determination was necessary to the decision, and (3) that ConocoPhillips was fully represented in the prior action. The court noted the issues in the ICC arbitration, including the underlying facts and law, were different from the present case. Also, following the OI European Group B.V. v. Bolivarian Republic of Venezuela, 73 F.4th 157 (3d Cir. 2023) case, the court noted the time periods between the ICC arbitration and the present case were significantly different, and so did not support applying collateral estoppel.

After rejecting PDVSA’s argument that the large writs of attachment ConocoPhillips sought were inequitable compared to other creditors, the court rejected PDVSA’s motion to dismiss, and conditionally granted ConocoPhillips’s request for a writ of attachment.
 
Author(s): Thomas Sekula, King & Spalding LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Valores Mundiales, S.L. and Consorcio Andino, S.L. v. Bolivarian Republic of Venezuela, Ministerio Del Poder Popular Para Relaciones Exteriores, United States Court of Appeals, District of Columbia Circuit, No. 23-7077, 08 December 2023
 
Appellees Valores Mundiales, S.L. and Consorcio Andino, S.L. (the “Appellees”) obtained an ICSID award against Venezuela in the amount of $430,000,000 for mistreatment of their investments in Venezuela. Venezuela sought to annul the award, and the District Court for the District of Columbia (the “D.D.C.”) stayed enforcement, pending the annulment proceeding. In the middle of the annulment proceeding, the National Assembly of Venezuela recognized Juan Guaidó as President of the Interim Government and ceased recognizing Nicolás Maduro. The Interim Government then sought to replace Venezuela’s lawyers in the annulment proceeding with its own lawyers.

The ICSID ad hoc Committee considered this application and ultimately denied it, holding that Venezuela’s initial legal team should continue with their representation. The ad hoc Committee also eventually rejected the annulment application and ordered Venezuela to pay attorneys’ fees and costs to the Appellees.

The Appellees then restarted their enforcement efforts in the D.D.C. Venezuela, however, argued that its due process rights were deprived by the ad hoc Committee’s refusal to recognize their proposed substitute counsel. Venezuela specifically pointed to the United States’ recognition of the Guaidó Interim Government as evidence of the impropriety of the ad hoc Committee’s refusal. Venezuela further argued that the formal recognition of the Guaidó regime meant that the D.D.C. should not enforce ICSID awards issued against Venezuela, and that the Appellees had forfeited their claim to attorneys’ fees and costs that the ad hoc Committee had awarded.

The D.D.C. disagreed, holding that 22 U.S.C. § 1650a required the Court to treat the contested award as binding, because ICSID itself would treat the award as binding. The Court found that it was not permitted to examine the award’s merits, and the enforcement of the award was not a recognition of a particular regime as the official government of Venezuela. The D.D.C. therefore granted summary judgment to the Appellees.

The D.C. Circuit agreed with the D.D.C. It held that both the ICSID Convention and Section 1650a required courts to give full faith and credit to ICSID awards such as this one and affirmed the summary judgment on behalf of the Appellees.
 
Author(s): Daniel Rosenberg, King & Spalding LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
RSM Production Corporation v. Gaz du Cameroun, S.A., United States District Court, Southern District of Texas, Civil Action No. 4:22-CV-03611, 06 November 2023
 
Plaintiff RSM Production Corporation ("RSM") brought an International Chamber of Commerce ("ICC") arbitration against Gaz du Cameroun ("GdC") (jointly, the "Parties") for an accounting and contract dispute arising out of a joint venture for a natural gas project in Cameroon. On March 23, 2022, the Arbitral Tribunal issued an Award in favor of RSM for damages in the amount of US$ 10,578,123.28 (the "Award"). Then, on July 21, 2022, the Tribunal rendered an Addendum Award, reducing the amount awarded to RSM to US$ 6,566,497.38 (the "Addendum Award", together with the Award, the "Awards").

In October 2022, RSM filed a motion to partially vacate the portion of the Addendum Award reducing its recovery and to partially confirm the Awards before the U.S. District Court for the Southern District of Texas, Houston Division. On November 6, 2023, the Court granted the motion in favor of RSM. It partially vacated the Addendum Award, finding that the Tribunal had exceeded its authority when it reduced RSM’s damages. It also confirmed the remaining portion of the Awards, as requested by RSM.

On December 15, 2023, GdC filed an appeal, which is currently pending before the United States Court of Appeals for the Fifth Circuit (No. 23-20583).
 
Author(s): Alex Levin Canal, King & Spalding LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: United States of America
 
United States of America Full text Full text as PDF
 
 
 
 
 
Legislation (2)
 
 
CIETAC Arbitration Rules 2024
 
In order to adapt to the development of arbitration work under the new situation, meet the needs of domestic and foreign parties for dispute resolution, and enhance the attractiveness, competitiveness, and influence of arbitration, China International Economic and Trade Arbitration Commission ("CIETAC")  steadily carried out the revision of its arbitration rules over the past two years. The revised version of the Arbitration Rules was reviewed and approved by the Conference of Directors of CIETAC on August 22, 2023, and was submitted to the China Council for the Promotion of International Trade for approval on September 2, 2023. The new rules will come into effect on January 1, 2024.
 
Author(s): Arthur X. Dong, JunHe LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: China
 
China Full text
 
 
 
 
 
SHIAC Arbitration Rules 2024
 
On November 7, 2023, the Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center, “SHIAC”) officially introduced its brand-new version of arbitration rules, which will take effects on January 1, 2024. The new arbitration rules of SHIAC is a combination of multiple instruments, comprising the SHIAC Arbitration Rules (2024), the SHIAC Special Arbitration Rules for Aviation, the SHIAC Special Arbitration Rules for Data, and two instruments of SHIAC Guidance respectively for the online arbitration and the services for arbitration applying ad hoc rules. The new SHIAC Arbitration Rules (2024) will replace the institution's current effective rules which were made in 2015. The update of rules is a gesture in need when the Chinese arbitration market is on rapid growth, reaching an annual growth of 14.3% and 14.7% in the number of arbitration cases and amounts in dispute in 2022.  The SHIAC Arbitration Rules (2024) are formulated from the users' perspective and infused with the quintessence of SHIAC's effective administration of domestic and international arbitration, representing a re-balance among the principle of party autonomy, the arbitrators' procedural management power and the needed safeguard and support from the institution throughout the lifespan of an arbitration.
 
Author(s): Arthur X. Dong, JunHe LLP
 
Source: A contribution by the ITA Board of Reporters Date: 31 Jan 2024
 
Reporter for: China
 
China Full text
 
 
 
 
 
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