Mark Handley – International Arbitration

November 14, 2024November 14, 2024 by Mark Handley

English court rejects arbitral appeal as out of time and refuses to grant 5 day extension

The decision in Friedhelm Eronat v CNPC International (Chad) Limited [2024] EWHC 2880 (Comm) underlines, with some emphasis, the strictness of the deadlines applied in relation to appeals brought under the Arbitration Act.

In this case the parties had contractually varied the period for making an appeal. They agreed on 30 days, overrising the 28 days in section 70(3) of the Arbitration Act.

The contractual 30-day period (as with the Act’s 28 day period) ran from the date the award was “made”, and not from when the parties received a copy of the award.

In this case the Award was made on 11 April, and was received on 16 April. The appellant to the English court filed its appeal on 16 May, which would have been 30 days from notification of the award, but outside that period when counting from the date of the award itself

The court granted an application to summarily dismiss the appeal as being time barred. The court also refused an application for a retrospective extension, holding that it was an “archetypal” case where no such extension should be given. This was in part because the party had not put in evidence explaining the delay, or why it was appropriate to grant the extension.

May 10, 2024 by Mark Handley

UK Supreme Court clarifies scope of an appeal under the Arbitration Act

The UK Supreme Court’s decision in Sharp Corp Ltd v Viterra BV [2024] UKSC 14, has clarified the scope of, and limitations to, an appeal of law under section 69 of the English Arbitration Act 1996.

In the earlier Court of Appeal decision the Court had made findings of fact additional to those made by the original Tribunal. These related to a finding that one of the contracts in question had been varied. Further, the Court of Appeal had decided a question of law which had not been put to the Tribunal.

On the second point, the Supreme Court swiftly concluded that a valid appeal requires that “the point has to [have been] fairly and squarely before the arbitration tribunal for determination“. If the issue had not been before the Tribunal in this way the proceedings cannot properly be an “appeal” on that point.

On the question of whether a court hearing an appeal has the authority to make findings of fact, this point was also dealt with quickly by the Supreme Court at [71]:

“The court’s jurisdiction under section 69 of the Act is limited to appeals on questions of law. It has no jurisdiction in relation to errors of fact and no power to make its own findings of fact“.

The decision is a clear statement of the limits of an appeal under section 69 of the Arbitration Act and serves as helpful guidance.

April 11, 2024 by Mark Handley

When does a contract waive a state’s immunity from enforcement?

The decision in General Dynamics (UK) Ltd v State of Libya [2024] EWHC 472 (Comm), turned on whether the sentence “Both parties agree that the decision of the arbitration panel shall be final, binding and wholly enforceable.”, did or did not operate to waive the State of Libya’s immunity from enforcement in accordance with the UK’s State Immunity Act 1978.

The contract was governed by Swiss Law, but the principles of contractual construction under Swiss law were not in dispute. Also not disputed was the fact that no particular form of words are required for a state to waive a part of its immunity.

Continue reading “When does a contract waive a state’s immunity from enforcement?”

March 5, 2024March 5, 2024 by Mark Handley

English court stays litigation in favour of arbitration

Seven companies have a claim against their former director for breach of fiduciary duties. Three of those companies have an arbitration agreement.

All seven companies bring a claim in the English court against the former director who applies to have the court proceedings stayed in favour of arbitration.

The three claimants with an arbitration agreement concede that they must sue in arbitration, and the question then becomes whether the court claims by the other claimants should be stayed in favour of the arbitration or not.

Continue reading “English court stays litigation in favour of arbitration”

February 20, 2024 by Mark Handley

English court decision on anti-arbitration injunctions

The High Court in London has granted an anti-arbitration injunction to prevent the commencement of an arbitration within the context of a series of long-running disputes between the parties.

The case is Sodzawiczny v Smith (Re Arbitration Claim) [2024] EWHC 231 (Comm). The decision contains a useful and detailed review of the case law regarding anti-arbitration injunctions.

Continue reading “English court decision on anti-arbitration injunctions”

September 7, 2023February 12, 2024 by Paul-Raphael Shehadeh

UK Law Commission Publishes Its Review of the Arbitration Act 1996: Final Report and Bill

On 6 September the Law Commission published its final report and recommendations on reforms to the Arbitration Act. The full report is available here.

Below follows a non-exhaustive summary of some of the key changes:

Statutory Rule on Governing Law of an Arbitration Agreement

English law has developed common law rules to determine which law governs an arbitration agreement. These rules were summarised by the UK Supreme Court in Enka Insaat ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, and largely confirmed in Kabab-Ji SAL v Kout Food Group [2021] UKSC 48. Broadly speaking, absent an agreement to the contrary the choice of law of the main contract would also apply to the arbitration agreement.

The proposed new Section 6A would alter that framework for agreements post-dating the new Act becoming law. The new Section 6A still recognises the parties’ positive choice of governing law in the arbitration agreement as determinative. Failing such choice, however, the law of the seat will be applied as the governing law.

Continue reading “UK Law Commission Publishes Its Review of the Arbitration Act 1996: Final Report and Bill”

August 11, 2023 by Mark Handley

New Code of Conduct for arbitrators in investment arbitration

The UN Commission on International Trade Law (UNCITRAL) has approved a Code of Conduct for arbitrators in international investment arbitration (available here). The Code is intended to apply to members of an ICSID arbitral tribunal or ad hoc committee, and to candidates for such roles, and also to apply to other investor-state arbitrations. The precise mechanics by which this will be achieved is unclear, and the commentary to the Code suggests that it may come to be incorporated into the UNCITRAL Arbitral Rules. Parties are free to agree that the Code should apply in their arbitrations and it is likely that this will become common.

The Code of Conduct is a mixture of codifying existing best practice, such as a prohibition on ex parte communications outside the remit of an initial appointment, and a requirement for independence and impartiality.

The Code also, however, contains a number of far-reaching new rules, in relation to so-called “double-hatting” where the same person acts as both arbitrator and party-appointed counsel in relation to the same actions by particular states or the same treaty provisions; in relation to the a requirement to maintain an arbitration’s confidentiality; and requirements for arbitrator disclosure.

Continue reading “New Code of Conduct for arbitrators in investment arbitration”