Arbitration in a Post-Brexit World
This article considers what the arbitration landscape will look like when (or perhaps if!) the UK leaves the EU and concludes that big changes are unlikely.
Cofely v Knowles – From Appointment to Disappointment
There have been two High Court cases within the last 15 months that lift the lid off what some perceive to be questionable practices (particularly in relation to the Eurocom case) that have developed over the last few years in the world of adjudication and arbitration in the UK. The first, in November 2014, was a decision of Ramsey J sitting in the Technology and Construction Court in Eurocom v Siemens PLC and the second, which is the focus of this article, was a decision of Hamblen J, in the Commercial Court in Cofely Limited v Anthony Bingham and Knowles Limited. Both of these cases illustrate the lengths to which some parties will go to steer the nomination process in order to secure the tribunal of their choice. Some view these practices as innocent forum shopping; others see them as tantamount to forum shop-lifting. What is becoming increasingly clear is that these practices have become by no means exceptional or even unusual. Hopefully the outcome of these cases will act as a real deterrent to these practices in the future.
Where Do FIDIC Cases Go?
FIDIC is arguably the most widely used standard form of international construction contract but reported FIDIC cases are rare. Is it time for an increased publication of FIDIC cases? There are three categories of decisions arising out of FIDIC dispute resolution provisions: 1. Decisions of the Engineer or the Dispute Adjudication Board (DAB), which will generally not be published or reported to anyone other than the parties involved in the dispute. 2. Decisions of arbitral tribunals, which are not usually made public although this is subject to certain exceptions. 3. Decisions of national courts, which are a relatively rare occurrence for the reasons discussed below.
FIDIC’s Sub-Clause 20.5 – A Condition Precedent to Arbitration
The 1999 FIDIC forms of contract contain a number of obligations and/or conditions precedent that require (a) a party to give notice of a claim (Sub-Clauses 20.1 and 2.5); (b) refer the claim to the Engineer (Sub-Clauses 20.1 and 3.5); and (c) submit the dispute to a Dispute Adjudication Board (“DAB”) (Sub-Clause 20.4). If either party gives a notice of dissatisfaction relating to the DAB’s Decision then Sub-Clause 20.5 provides that: “Where notice of dissatisfaction has been given under Sub-Clause 20.4 above, both Parties shall attempt to settle the dispute amicably before the commencement of arbitration. However, unless both Parties agree otherwise, arbitration may be commenced on or after the fifty-sixth day after the day on which notice of dissatisfaction was given, even if no attempt at amicable settlement has been made.”
Corbett & Co. Director contributes chapter to CIArb liber amicorum
Corbett & Co. Director Andrew Tweeddale has contributed a chapter to the Chartered Institute of Arbitration (CIArb) liber amicorum recently published in celebration of its centenary. Andrew has written a chapter entitled “Shifting the Burden of Proof: Revisiting Adjudication Decisions”. He comments: “I was delighted to be invited to contribute to this publication, especially as this is the CIArb’s centenary.”
Knowledge Hub – externally published articles
Articles on Arbitration The Need For Reasons - O, Reason
Corbett & Co. adds to expertise with hire of senior construction lawyer
Corbett & Co. is delighted to announce the recent arrival of Jo Clarke, an international disputes counsel and advocate with experience in the construction, engineering and power generation sectors.
Cutting the Gordian Knot: Enforcing Awards where an Application has been made to set aside the award at the seat of arbitration
One of the grounds where a New York Convention award may be refused recognition and enforcement is where the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. A similar provision exists in the English Arbitration Act 1996 s.103(2)(f). Under both the New York Convention and the Arbitration Act 1996 the word “may” is used which indicates that even if the award has been set aside at the seat of the arbitration it might still be enforced in another country. This article focuses on recent developments under English law as to how the courts have dealt with the enforcement of annulled awards. We also examine the Arbitration Act 1996 s.103(5) which provides that where an application for the setting aside or suspension of the award has been made to the relevant court, the court before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the recognition or enforcement of the award. In countries which have adopted modern arbitration laws there is an almost universally held pro-enforcement attitude when considering international arbitration awards. However, when an award is challenged, or has been set aside at the seat of the arbitration, the enforcing courts may have to consider the status of the award. One view is that an award that has been set aside at the seat has no legal status and therefore there is nothing to enforce. An opposing view is that the annulment of the award at the seat of the arbitration does not affect its validity. The English courts have, however, approached the question in a pragmatic way. They have rejected an approach based on legal theory and simply applied a test as to when an award, which has been set aside, should or should not be enforced.
Light at the end of the tunnel? Gibraltar dispute reviews key FIDIC Yellow Book provisions
As disputes under the FIDIC forms of contract are normally resolved in private Dispute Adjudication Board (“DAB”) proceedings or confidential arbitration proceedings, reported FIDIC cases are rare and often of considerable precdential value either formally or informally. In this article, originally published in The International Construction Law Review, Corbett & Co. Director Victoria Tyson considers one such recent decision which was transferred from the Gibraltar courts.
Gabriel Mulero Clas
(Foreign Qualified Lawyer)
Gabriel Mulero Clas joined Corbett & Co. in 2013 as
Dominic Helps (Consultant)
Dominic, a solicitor who joined Corbett & Co. as a
Andrew Tweeddale (Director)
Andrew joined Corbett & Co. in 2005 as a solicitor.
Edward Corbett (Managing Director)
Edward is the managing director of Corbett & Co. He
Contracts rights of third parties act – Arbitration under the Contracts (Right of Third Parties) Act 1999 and Enforcement of an Award
The Contracts (Rights of Third Parties) Act 1999 has redressed many of the criticisms made against the English privity of contract rule. Regrettably, however, Parliament ignored the recommendations of the Law Commission and extended the application of the Contracts (Rights of Third Parties) Act 1999 to include arbitration. While this has little impact where a dispute is purely domestic it does have an impact where a dispute has an international character. It may surprise many foreign parties to contracts that are subject to the law of England and Wales that they have, by including reference to English law, potentially given rights to a third party. A third party who has obtained those rights will however find itself having an up-hill struggle to enforce an arbitration award that it might obtain in a foreign jurisdiction. This is because the third party is not a party to the arbitration agreement and the New York Convention applies only to parties to the arbitration agreement. There has not yet been a case on enforcement in a foreign jurisdiction of an award made under the Contracts (Rights of Third Parties) Act 1999 but as the Act is now being used more often this is an issue that may soon have to be addressed by the courts.
Are you in? Or are you out? An analysis of Section 69 of the English Arbitration Act 1996: Appeals on a question of law
This article is divided into five parts, namely: Introduction; How can the court’s jurisdiction be ousted (‘‘Are you out?’’); How can the court’s jurisdiction be included (‘‘Are you in?’’); When will the courts give permission to appeal; and Procedural aspects of s.69 of the English Arbitration Act 1996[1] (‘‘the 1996 Act’’). Introduction The fundamental message behind this article is that the parties should agree at as early a stage as possible on whether: they wish to oust the jurisdiction of the courts in relation to appeals on a question of law (Are you out?—s.69(1)) or whether they wish to agree to include the ability to appeal to the courts on a question of law (Are you in?—s.69(2)).
Confidentiality in Arbitration & The Public Interest Exception
The question whether arbitral proceedings are, or ought to be confidential, has been the source of much academic debate and was recently reviewed by the ICC Commission on Arbitration.[2] In much of Europe the prevailing view is that arbitral proceedings are confidential. However, even if they are confidential, that confidentiality cannot be absolute. As noted by Paulsson and Rawding, this would result in a paradox.[3] If the parties to an arbitration ever sat down and thought about the issue of confidentiality, they would inevitably conclude that neither of them would want a rule that arbitrations were confidential without exception. The parties may need to show the award to insurers or to a parent company. The parties may also want to enforce the award if it is not honoured and the only way to do this is in the courts, which will often be a public forum. In a number of countries which adopt the position that arbitrations are confidential there will be a list of exceptions to the confidentiality obligation. Some countries consider that where the arbitration raises issues which have a public interest, then this should be an exception to the confidentiality obligation. This 'public interest exception' has been considered recently in three international arbitrations. On each occasion the argument that there ought to be a public interest exception was rejected. This article does not seek to re-visit the question of whether there is or ought to be a duty of confidentiality in arbitration.[4] Its focus is on one question; namely, should there be an exception to the duty of confidentiality where the arbitration raises issues of public interest?
Enforcing Arbitration Awards Contrary to Public Policy in England
A number of cases have recently come before the English courts dealing with applications to set aside orders for the enforcement of awards on the basis that the award is contrary to public policy because of illegality. There has not been a coherent policy adopted by the English courts but rather these issues have been dealt with on a case by case basis. This article sets out the English public policy rule. It then continues with an analysis of how challenges under the public policy rule are made in England on domestic arbitration awards. The severability of the arbitration agreement to the underlying contract is thereafter discussed and an analysis is given of the approach of the courts of England and Wales to the enforcement of foreign arbitration awards. In this regard the courts differentiate between domestic and foreign awards. They have developed a complicated test in deciding whether enforcement of a foreign award will be refused. The courts have stated that they will not permit an award to be enforced in England that is universally repugnant. However, there is some uncertainty as to the full extent of this principle. Where breach of public policy is alleged but does not appear on the face of the award then the courts have been inconsistent in deciding whether they should re-open and re-examine the facts of the case. Finally, where the award permits an act contrary to public policy to be undertaken in a foreign, friendly state then again the courts have been inconsistent as to whether such an award is permitted to be enforced in England. For the purposes of this article references to domestic arbitrations are references to arbitrations conducted in England, Wales or Northern Ireland. Foreign arbitrations are references to arbitrations conducted outside this jurisdiction. Similarly, foreign awards and domestic awards should be construed accordingly.
