Dưới đây là tựa đề và tóm tắt các bài viết về giải quyết tranh chấp của các tác giả khác mà Ngữ vô tình thấy được bắt đầu từ ngày hôm nay (26/3/2021) và sẽ được cập nhật dần theo thời gian. Nhiều bài Ngữ cũng chỉ đọc qua tóm tắt và đưa lên đây chứ chưa kịp đọc hết. Click vào tựa đề để tải trọn bài từ nguồn chính chủ. Trang này sẽ ngày càng dài nên hãy sử dụng chức năng tìm kiếm (Ctrl + F) keywords. Nhưng trước hết là giới thiệu về một số blog & website có liên quan.
Given the growing predominance of electronic documents in transactions, a number of legal questions arise: How can the risks be controlled? Will electronic means completely replace ‘paper documents?’ Can data extracted from electronic means serve as evidence in disputes? What is the significance of electronic evidence in commercial contracts and dispute resolution?
Legal academics were once thought to be parasitic on the work of judges, so much so that citing academic work was said to weaken a judgment’s authority. Recent times have however seen prominent academics appointed to the highest courts, and judicial engagement with academic materials appears to have increased. In this light, this article empirically studies academic citation practices in the Singapore High Court. Using a dataset of 2,772 High Court judgments, we show that citation counts have indeed increased over time, even in this first-instance court. This increase was distributed across most legal areas, and was not limited to, though more pronounced in, judgments authored by judges with post-graduate law degrees. Books, not journal articles, have consistently accounted for the bulk of the court’s citations. The study sheds new statistical light on the evolving relationship between judges and academics, particularly in the context of an Asian court.
The competitive climate arising from the liberal regime guaranteed by favor arbitrandum principle is likely to create a breeding ground for fraud in the field of arbitration law. In order to identify this risk, it is necessary to draw a distinction between, on the one hand, the litigants who resort to arbitration for the regular resolution of their dispute and, on the other hand, those who try to divert it from its legitimate purpose or to manipulate arbitrators into rendering an award on the basis of procedural manoeuvres. Ensuring an equal treatment for these two categories of litigants would consist in denying the favor arbitrandum, by challenging the rule that a liberal regime should be recognized only to authentic arbitration proceedings. In order to demonstrate that arbitration is not necessarily destined to become a potential tool for fraud, it is essential to set out the limits of the problem. In this perspective, this paper first categorizes different types of frauds specific to the field of arbitration, called 'arbitral fraud' in this study. Secondly, the article takes into consideration the efforts that the arbitrators as well as the state courts will have to make in order to detect and to act against fraudulent arbitrations in the perspective of confronting the problem of arbitral frauds.
Như Montesquieu đã viết trong cuốn Tinh thần luật pháp (Spirit of Law), hoạt động của Tòa án trong việc giải quyết tranh chấp để bảo đảm hợp đồng được thực thi, bảo đảm quyền tài sản của cá nhân, tổ chức là một trong những yếu tố then chốt để thúc đẩy hoạt động đầu tư kinh doanh.
Trên tinh thần này, mục tiêu của Báo cáo Phân tích so sánh cơ chế đảm bảo liêm chính tư pháp để thúc đẩy kinh doanh tại một số nước và bài học cho Việt Nam ***.
The nature of fraud and asset tracing has becoming increasingly complex in light of globalisation and the almost seamless interconnectivity of the world's financial systems. The proceeds of fraud can now be dissipated in an instant across various jurisdictions, potentially frustrating any attempts at recovery whether via civil proceedings or by relying on the relevant government enforcement agencies. To increase the chances of recovery, it is important that fraudster(s) are quickly identified, with steps taken to trace any stolen assets in order to ascertain their location, after which the relevant applications should be filed to have them frozen to prevent further dissipation.
In the arbitration, an agreement was reached between the Claimants and the Respondent to select Hanoi as the place of the hearing. This agreement was recorded in the tribunal’s procedural order.
However, during the course of the proceedings, in response to the tribunal’s decision to apply interim relief (ordering the Respondent to pay a security deposit of funds), the Respondent filed a petition to the Hanoi Court against the arbitral tribunal and two of the foreign arbitrators (the chairman and the Claimants’ party-appointed arbitrator). By this petition, the Respondent sought to hold the tribunal, and the foreign arbitrators in their personal capacity, liable for losses caused by the tribunal’s decision. This would mark the first known instance of an arbitral tribunal or arbitrators being sued at a Vietnamese court for decisions made in exercise of their adjudicative tasks in an arbitration.
There are no provisions that govern arbitrator immunity under Vietnamese law. Concerned over their personal liability, the tribunal exercised its discretion to change the location of the hearing to Osaka and Singapore.
The Hanoi Court found that this was sufficient to warrant setting aside of the arbitral award, as the change of hearing venue had departed from the parties’ original agreement reached during the arbitration.
Arbitration as a means to solve contractual disputes often involving a variety of international parties, multinational concerns, global financial institutions and multi-lateral organizations is rapidly on the rise in Asia. This development goes hand in hand with growth in the region, with more arbitral institutions being set up in Asia in recent years and better capacity development in terms of handling complex and multivariate international matters. Arbitration, crucially, is increasingly seen as a better alternative to conventional litigation especially when it comes to cross-border disputes. Thanks to the New York Convention to which most countries are signatories, awards are easier to enforce in other jurisdictions than local court orders and the relevant parties are spared the problems of conflicting legislation or other local idiosyncrasies and disparities.
Nonetheless, parties to arbitration may still face practical challenges in the enforcement of their awards. While a greater general consensus around the efficiency and efficacy of enforcing international arbitral awards takes on fuller shape in Asia; nuances in national arbitration laws and practices across countries that may impact arbitral award enforcement must be considered. It thus remains essential that parties be advised by competent specialist practitioners attuned to certain local cultural sensitivities and fully-familiarized with enforcement proceedings in Asian courts.
In pursuit of these goals, this brief aims to cast greater light on the practical issues surrounding the enforceability of arbitral awards in Bangladesh, Cambodia, Hong Kong, Indonesia, the Lao PDR, Myanmar, Thailand and Vietnam.
As someone whose career started as a litigator and who came to the general counsel role through the litigation side (rare), I managed a lot of litigation and I understand how risky, painful and frustrating litigation can be for in-house lawyers. Additionally, if you are not someone who spends a lot of time with litigation, it can be a bear to manage and keep from becoming a runaway time-suck and money pit. I have written about what to do when you first receive a lawsuit, how to explain litigation to the business, and in-house counsel’s role during trial, but I have overlooked a truly important task, i.e., how to manage litigation. This edition of “Ten Things” looks to remedy that oversight.
On 25 September 2020 the Ministry of Justice introduced a database containing basic information on the recognition and enforcement of foreign court judgements and decisions and arbitral awards in Vietnam that were rendered from 1 January 2012 to 30 September 2019 (the “Database”). 1 Although the Database is not comprehensive and has not been updated regularly since its launch, its promulgation marks a breakthrough in access to data about the recognition and enforcement of foreign court judgements and decisions and arbitral awards in Vietnam.
It is not clear if under Vietnamese law, the parties can agree in an arbitration agreement that the award of the tribunal must be a unanimous award instead of a majority award.
In Vietnam, it is becoming more common to have an arbitration tribunal constituted under the rules of a foreign arbitration institution (such as the International Chamber of Commerce or ICC) but with the seat in Vietnam. Such a tribunal will conduct the proceeding in Vietnam under the Vietnamese Commercial Arbitration Law (CAL). However, when such a tribunal renders an award, Vietnamese courts have on a number of occasions viewed this as a foreign award to be recognised and enforced under the New York Convention and the Vietnamese Civil Procedures Code (CPC).1 This article suggests that this award should be viewed as a domestic one, to avoid an anomaly and to bring Vietnam closer to the spirit of the New York Convention and international practices, making it more attractive for parties to arbitrate in Vietnam.
In our oral history programme, we have the privilege of speaking to some of the best trial lawyers in Singapore. When asked to recall their most memorable cases, it is often not surprising to hear that these are not their headline trials but occasions where they manage to uncover a gem of evidence that turned the tide in their favour.
Bài viết dưới đây gợi thảo luận về các vấn đề sau: (i) Vì sao người dân không có nghiệp vụ lại được tạo cơ hội tham gia các hội đồng xét xử tại tòa án cùng với các thẩm phán chuyên nghiệp? (ii) Việc tạo điều kiện cho người dân tham gia xét xử tại tòa án có thể đặt ra những rủi ro gì? (iii) Các gợi ý chính sách làm cho người dân tham gia có hiệu quả hơn vào hoạt động xét xử của tòa án.
There is no statutory provision that covers derivative actions by shareholders in India. However, the chapter on Prevention of Oppression and Mismanagement in the Companies Act, 2013 (“the Companies Act”) comes the closest. While Indian courts have generally adopted a stance against the arbitrability of oppression and mismanagement matters (Rakesh Malhotra v. Rajinder Malhotra, Sporting Pastime India Ltd. v. Kasturi & Sons Ltd.), their stance on derivative action suits is unclear. At the outset, oppression, mismanagement, and class action claims are considered to be quite different from typical derivative action suits in the Indian context because of two reasons: (1) derivative suits implicate corporate/economic rights of the shareholders instead of their personal rights; and (2) due to this, in oppression, mismanagement, and class action lawsuits, the shareholders file applications on behalf of members for personal reliefs to protect themselves, whereas in derivative actions remedies are sought on behalf of the company. In that regard, the rationale to justify the non-arbitrability of oppression and mismanagement matters cannot always apply to derivative action suits. Thus, derivative action claims were first held to be arbitrable in “Rashmi Mehra”) by the Bombay High Court that distinguishes them from oppression and mismanagement cases.
In recent years, we have seen the Vietnam courts recognise a growing number of foreign arbitral awards while increasingly declining to set aside domestic arbitral awards. This signals a positive and pro-arbitration landscape in Vietnam, as well as the willingness and openness of Vietnamese courts to recognise and enforce both foreign and domestic arbitral awards.
Despite the improvement, however, certain challenges remain with respect to the enforcement of arbitral awards in Vietnam. One challenge that has persisted until today is the uncertainty surrounding the “fundamental principles of Vietnamese law”, a ground on which a domestic award may be set aside or a foreign award may not be recognised.
Every transaction has the potential to go wrong and international commercial contracts are not spared this plight. It is when an international commercial contract fails – irrespective of the reasons, that the impact of different legal and cultural backgrounds of the parties come to light. The obvious venue for commercial disputes to be decided is generally understood to be in court (litigation) or before an arbitral tribunal (arbitration). However, there are numerous other alternative dispute mechanisms available to parties that are less well known and also deserve consideration; not least because they offer parties methods of resolving the dispute between them in a more time and cost-efficient manner, and with a stronger focus on the commercial interest of the parties. Mediation is one of these mechanisms.
This chapter provides an overview of the basic concepts of mediation; how it distinguishes itself from but can also be employed together with other dispute resolution mechanisms such as, in particular, arbitration; the legal framework; and practical guidelines when drafting a mediation agreement in the context of international commercial contracts.
Conflicts of interest between parties and arbitrators are common in arbitration proceedings. However, the academic community has not yet examined whether arbitral institutions may also run into conflicts of interest. This post will deal with this question and also examine measures that can mitigate any such risks of conflicts of interest for arbitral institutions.
The purpose of this article is to present an overview of the changes in Vietnam’s legal framework with regard to the enforcement of foreign arbitral awards and to emphasize the most urgent issues Vietnam needs to amend or to legislate on.
This Note examines two dominant ways of understanding the goals of class actions: one side thinks of class actions as a tool for efficiency, while the other side thinks of them as a tool for representation. These two views not only represent a doctrinal disagreement, but are also motivating a political and legislative battle between Republicans and Democrats over how to reform class actions and arbitration agreements. This Note proposes a way to conceptually reconcile the two views, thereby providing a more complete framework for courts to understand the goals of class actions. This Note also argue that it is possible to craft legislation that is reasonably compatible with both views.
Every transaction has the potential to go wrong and international commercial contracts are not spared this plight. It is when an international commercial contract fails – irrespective of the reasons, that the impact of different legal and cultural backgrounds of the parties come to light. The obvious venue for commercial disputes to be decided is generally understood to be in court (litigation) or before an arbitral tribunal (arbitration). However, there are numerous other alternative dispute mechanisms available to parties that are less well known and also deserve consideration; not least because they offer parties methods of resolving the dispute between them in a more time and cost-efficient manner, and with a stronger focus on the commercial interest of the parties. Mediation is one of these mechanisms. This chapter provides an overview of the basic concepts of mediation; how it distinguishes itself from but can also be employed together with other dispute resolution mechanisms such as, in particular, arbitration; the legal framework; and practical guidelines when drafting a mediation agreement in the context of international commercial contracts.
With the COVID-19 pandemic continuing to shine a spotlight on supply chains, we look at how to avoid, mitigate and resolve supply chain disputes. We also offer practical “Top 10 tips” for drafting arbitration agreements and explain how a well-drafted clause will mitigate the risk of cross-border disputes.
On a related topic, and continuing our series on Investor-State Dispute Settlement (ISDS), we look at joint venture disputes between investors and states and how to mitigate the risks when transacting with states and state-owned entities.
We offer an opinion piece on arbitrator conduct in international arbitration, as well as succinct updates on recently revised rules of arbitration including the ICC, ICDR and ACICA Rules; all of which have revisions aimed at increasing the efficiency and effectiveness of arbitration and modernising the institutional response to new and developing issues being experienced by arbitral participants.
Last but not least, in our case law updates, we cover recent jurisprudence on how to recover costs of enforcement and interest when confirming arbitral awards in the U.S., and provide a succinct round-up of a number of other recent UK and U.S. arbitration-related court decisions.
When drafting the terms of a dispute resolution clause, parties to cross-border transactions are well advised to select international arbitration. International arbitration offers several advantages over foreign litigation, including the right to a single, neutral forum and to receive an award that is readily enforceable in most any jurisdiction.
Winston & Strawn’s Pocket Guide to International Arbitration summarizes key principles of international commercial arbitration. This guide is designed to describe the basics of international commercial arbitration for those who do not specialize in this area. In particular, this guide describes: (i) the reasons for selecting international arbitration over foreign litigation; (ii) a checklist for drafting an effective arbitration clause; (iii) how a typical arbitration proceeding unfolds; (iv) challenges and enforcement of awards; and (v) the costs of arbitration.
For those parties that may face disputes against foreign governments, this 2021 guide also describes the rights such parties may have under investment treaties, including the right to bring foreign governments to arbitration instead of being confined to foreign courts.
This essay is the first attempt to understand the trajectory of the FAA and its relationship to the civil justice system in historical perspective. It argues that the FAA has been transformed in three stages. In Phase One, which lasted from 1925 until the mid-1980s, proponents saw arbitration as an aspect of business self-regulation that the business community valued. In Phase Two, lasting from the early 1980s until about 2000, both conservatives and liberal judges, as well as lawyers, legal scholars, and outside observers, saw arbitration as an antidote to many of the perceived shortcomings of the judicial system. Arbitration was, to them, a method of dispute resolution that avoided the expense, lengthy timelines, and excessive technicality of the courts. However, in the current phase, that began in the early 2000s, many have come to see the dangers and pitfalls of the previous approaches even as the Court continues to expand arbitration’s role in the modern legal system. This essay describes each of these phases and then assess what this history can tell us about the FAA and the appropriate role of arbitration in the civil justice system going forward.
The below diagram summarises the key steps in an arbitration proceeding at Vietnam International Arbitration Center (VIAC) and Singapore International Arbitration Center (SIAC). A pdf version can be downloaded here.
This post includes the Table of Contents, Introduction, and first three Chapters -- (1) Stipulations and Judicial Notice (2) Relevance (3) Unfair Prejudice -- of an innovative, new, low-cost Evidence casebook intended for use in American law schools.
Notably, among the new cases handled in 2020 by SIAC, there were 54 cases in which either party had Vietnamese origin, which even surpasses VIAC’s number of foreign-related cases. For Vietnamese arbitration institutions and arbitrators, such fierce competition is a real driving force for improvement. In addition, Vietnamese legal practitioners should also pay attention as not to miss such a big market.
It is important to first define what are hybrid mechanisms in international dispute resolution. As Voltaire once stated, ‘If you wish to converse with me, define your terms’. Hybrid mechanisms refer to processes that involve and combine more than one dispute resolution mechanism. Hybrid mechanisms take a variety of forms. By way of illustration, Singapore International Arbitration Centre (SIAC) and Singapore International Mediation Centre (SIMC) jointly provide the Arb-Med-Arb Protocol.
Issues relating to hybrid mechanisms have been covered in previous posts. Emmanuel Chua, in this Blog, discussed the perspectives of Arb-Med-Arb Protocol in Singapore and how it represented a boost for ADR in Asia. The use of mediation at different stages of the arbitral process is not a novel feature and a number of jurisdictions had already provided such a possibility before the adoption of Arb-Med-Arb Protocol. By way of example, Emmanuel Chua refers to sections 16 and 17 of the International Arbitration Act of Singapore, which states that an arbitrator may act as a conciliator if parties consent in writing. The same possibility exists under sections 32 and 33 of the Arbitration Ordinance of Hong Kong.
On 21 April 2021, the CIArb’s London Branch hosted its annual Keynote Speech, which was held online this year. In her speech on “The Proper Law of the Arbitration Agreement”, Professor Dr. Maxi Scherer discussed the different approaches taken by jurisdictions worldwide in determining the law governing the arbitration agreement. She further compared those approaches against the solution adopted by the U.K. Supreme Court’s landmark decision in Enka v. Chubb [2020] UKSC 38 (“Enka”). Professor Scherer also unveiled her recent comparative research—discussed below—on the different approaches followed in 80 jurisdictions worldwide for determining the proper law governing the arbitration agreement, highlighting the lack of a clear, uniform answer to this fundamental question. Professor Scherer noted that, historically, Article V(1)(a) of the New York Convention favors the law chosen by the parties or the law of the seat (in the absence of the parties’ agreement) as the applicable law to the arbitration agreement. However, diverse interpretations and applications of this article have resulted in a lack of a harmonized, uniform approach.
The statutes and rules governing the disclosures of conflicts of interest by arbitrators, which failed to provide much clarity even prior to the advent of social media, do not provide any concrete guidance about the disclosure of an arbitrator’s social media connections with the participants in an arbitration. The absence of clear, consistent standards governing social media disclosures is problematic for both arbitrators and the parties who select and appear before them. This problem will only get worse as arbitrators make increasing use of social media for personal and professional purposes and challenges to arbitration awards based on inadequate disclosure of social media activity work their way through the courts. Arbitrators who fail to make adequate disclosures about their social media activity expose themselves to ethical and reputational risk and their awards to vacatur. Arbitrators who search for and fully disclose their social media connections—in an era when many of their peers do not—are likely to be unfairly punished for their transparency in the marketplace for arbitration services. And in today’s uncertain environment, the parties to an arbitration do not know how to interpret an arbitral disclosure that does not contain any reference to social media activity. Does it mean that there are no social media connections between the arbitrator and the participants in the arbitration to the best of the arbitrator’s recollection? Does it mean that the arbitrator searched the social media platforms she uses and identified no such connections? Or does it mean that the arbitrator has social media connections to the participants in the arbitration, but views those connections as immaterial? Unfortunately, absent a uniform approach, there is no way to know the answers to these questions. Arbitrators need clearer guidance to ensure compliance with ethical rules and the standards governing vacatur of arbitral awards. They also need to know that they will not be competitively disadvantaged by being more transparent about their social media connections than their peers. And the parties to an arbitration are entitled to consistent disclosures about social media activity so they can realize one of the primary benefits of arbitration—the ability to meaningfully participate in the selection of an impartial arbiter. This Article proposes the first comprehensive set of guidelines for the disclosure of an arbitrator’s social media connections. If adopted by the arbitral community, these guidelines will level the playing field and yield consistent disclosures that will benefit all the participants in an arbitration and safeguard the integrity of the arbitration process.
The Alternative Dispute Resolution ("ADR") is an alternative conflict settlement strategy. It follows the main objective of solving conflicts between parties stunningly through the help of independent professionals and renowned personalities. Today the role of the ADR is more important, and the number of agreements with ADR is increasing. One of the reasons for this development is that the ADR is usually more efficient and time-saving compared to normal justice delivering procedures. The current paper examines the most popular techniques for the solution of alternative disputes within the EU, through mediation. This paper associates ADR development and the European Law Legislative International Trade Conciliation (2002) along with other Laws and ADR services, such as ICC and different Laws related to the services. It then conjointly makes comparisons between the bound “member state” MS Courts to observe problems concerning ADR. Additionally, it recognizes the ADR in the light of the right to valid remedy (European Union Principles). To administer a deep insight into the subject, the paper describes additionally the ADR origin, its features, and relevance. Hence, this paper will shed light on the issues faced by parties in ADR concerning agreements and shall thereby, provide a solution to overcome the same.
An asymmetric dispute resolution clause is one that is constructed to limit the right to dispute resolution of one party to, for example, a particular jurisdiction or dispute resolution method, while giving the other party or parties the right to flexibly choose between different options. Although this type of clause would clearly favor the party with the right to choose between options, by providing an effective risk management mechanism, the favor will only apply in countries which recognize the validity and enforceability of asymmetric clauses.
In Vietnam, the validity and enforceability of such clauses has been an open question due to a lack of statutory guidance. To shed some light on this matter, we can assess an ongoing case where a Vietnamese court has considered the enforceability of an asymmetric dispute resolution clause.
The dispute in question arose between a Thai company and a Vietnamese company in relation to a distribution contract. The Thai company filed a civil suit with a Vietnamese court to seek remedies for a breach of contract committed by the Vietnamese party. While the dispute clause of the contract provides that the Vietnamese party must submit to the jurisdiction of the courts of Hong Kong to settle all relevant disputes, there is no similar requirement for the Thai company. Moreover, the laws of Hong Kong are the governing law of the contract.
the tribunal handling the complaint upheld the Thai company’s arguments and further concluded that the legal perspectives of both the first-instance court and the procuracy [initially deciding not to accept the suit] were inappropriate and groundless.
Although there is still not sufficient supporting practice to definitively conclude that Vietnamese courts recognize the validity and enforceability of asymmetric jurisdiction clauses, and there is still no statutory guidance, the fact that a Vietnamese court accepted the dispute above for settlement suggests that there is certainly a chance for an asymmetric dispute resolution clause in a commercial agreement to be valid and enforced in Vietnam.
This article considers the enforcement mechanism for international mediated settlement agreements proposed by the Singapore Convention on Mediation and critically examines this mode of enforcement as against enforcement as an arbitral award in Asia, including through a hybrid process like Arb-Med-Arb. Similarities and differences between the New York Convention and the Singapore Convention on Mediation will be discussed and used to consider how Asian jurisdictions may respond to the Singapore Convention on Mediation and what lessons may be learnt from the arbitration context.
This chapter explores various arbitration issues from East-West and common law-civil law comparative viewpoints…Various arbitration issues will be examined. First, the relationship between alternative dispute resolution (ADR) and arbitration at a conceptual level in differing legal cultures is discussed. Next, the different permutations underlying the formation and operation of the arbitral tribunal across the surveyed jurisdictions will be analyzed, before examining the issue of juridification of arbitration tribunal processes. Finally, dispute resolution traditions are discussed and the diverse attitudes toward med-arb among legal systems and cultures are analyzed. In each section, this chapter explores whether and to what extent the aforementioned three driving forces contribute to the jurisdictional differences.
In this article, the author discusses the paradox between the fundamentality of arbitrator impartiality and independence and the fluidity of the applicable norms. These norms differ over time and place, and vary depending on the type of arbitration, the stage of the proceedings and the applicable rules and laws. While standards applicable to judges have some relevance for this discussion, they cannot be equated with the standards for arbitrators.
Around the world, there are divergent approaches towards the enforceability of arbitration agreements in consumer contracts. Vietnamese laws protect consumers, who are buyers or users of goods or services for consumption or daily activities, against mandatory arbitration. The Council of Justices of the Supreme People’s Court (“Council”) recently adopted a court decision as a Precedent that reinforces the current pro-consumer approach in Vietnam.
In 2020 and early 2021, the International Chamber issued its first rulings on international arbitration cases. Many involved a fundamental issue directly related to the requirement that arbitrators be independent and impartial: the duty to disclose any circumstances that might affect that independence or impartiality. No fewer than three rulings have been handed down on this question since January 2020...These rulings indicate that, while the International Chamber is very much following in the footsteps of previous French case law, it also aims to build up and refine French case law on arbitrators’ duty of disclosure…
It is trite that the law does not usually recognise a fiduciary relationship beyond established categories. However, can an expert witness that has been contractually engaged to deal with a specific issue in the context of arbitration owe a fiduciary duty to its client? The case of Secretariat Consulting Pte Ltd and Others v A Company, which is the subject of this note, considered this question.
According to the statistics issued by various arbitration institutions, (i) shareholders’ agreements, (ii) share purchase agreements and (iii) joint venture agreements represent a substantial part of their caseload. For instance, these agreements represent 14% of the cases administered by the LCIA in 2019. According to the SIAC’s 2019 Annual Report, corporate disputes amounted to 29% of all disputes in 2019, making it the most popular sector. This rise in popularity is understandable given that some of arbitration’s advantages fit particularly well with the structure of M&A transactions. These include confidentiality, the possibility of appointing experts in the field as arbitrators and ease of enforcement.
[Agreements to mediate are enforceable if] they are drafted appropriately. In this post we review a recent English judgment which sets outs guidelines for the enforceability of agreements to mediate under English law.
In order for agreements to mediate to be enforceable, they have to be drafted meticulously using clear, instructive and mandatory terms. Anything less than this – such as an undertaking by parties to seek to resolve a dispute at mediation – may result in an unsuccessful enforcement application…
In its civil ruling (2018) Yue 03 Min Te No 719 on 26 April 2020, [the Court] set aside an award made by a local arbitral institution in Shenzhen (the “Award”) [...] The Award was set aside on the ground of infringement of Chinese mainland public interest […]
The Court found that the Notice and the Announcement prohibit illegal activities that would disrupt financial order and stability. The Award, which granted the Claimants the redeemed value of the cryptocurrencies Gao held in possession for Li and supported the exchange of the cryptocurrency with fiat currency, if enforced, would have facilitated circulation of Bitcoins in PRC which is against the spirit of the Notice, as well as the Announcement which prohibits exchange services between tokens and fiat currency, and therefore would disrupt the “integrity and security” of the finance system and in turn, the public policy of PRC. […]
[It] leaves open the question as to whether the SPC will or should apply the same reasoning, when it is asked to enforce arbitral awards relating to “integrity and security” of finance systems in other jurisdictions. To shed light on this topic, we may look at the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the Hong Kong Special Administrative Region, pursuant to which a PRC court may refuse enforcement of an arbitral award if it would be contrary to the public interest of the Chinese mainland only.
[T]he Supreme People’s Court rejected 46% of applications for enforcement of foreign arbitral awards (24 out of 52) from 2005 to 2014.
[T]he Court considered the UK arbitral tribunal’s (Grain and Feed Trade Association) granting of liquidated damages to be in conflict Vietnamese law on actual and direct damages and, therefore, Article 11 of the Civil Code requiring compliance with Vietnamese law.
In 2014, the issuance of the Resolution specifically sought to tackle the number of arbitral awards being unreasonably rejected for breaching a principle of Vietnamese law. Pursuant to Article 14.2 of the Resolution, the Vietnamese court reviewing the application must consider the following two questions: (a) whether the principle that is alleged to have been breached is one of the “basic principles on conduct, of which effects are most overriding in respect of the development and implementation of Vietnamese legal system”; and (b) whether the award “violates the interests of the government, and the legitimate rights and interests of third party(ies)”. However, there remains significant room for interpretation in relation to the Resolution and the principles set out in the Civil Code.
