By Justin D’Agostino, Martin Wallace and Yi-Shun Teoh
The Year of the Snake has begun auspiciously for arbitration in Hong Kong, with a recent decision of the Hong Kong Court of Final Appeal (“CFA”) underlining once again the jurisdiction’s arbitration-friendly credentials and the reluctance of its courts to interfere with the arbitral process and arbitral Awards.
On 19 February 2013, the CFA refused leave to appeal against the judgment of the Hong Kong Court of Appeal (“CA”) in Grand Pacific Holdings Ltd. v. Pacific China Holdings Ltd. (click here for a copy of the judgment). The CA’s judgment, which has been widely applauded in the arbitration community since being handed down in May 2012 [...]
by Kah Cheong Lye (Partner) and Chuan Tat Yeo (Associate), Norton Rose (Asia) LLP
Like computer programs, the length of time between updates for institutional rules seems to get shorter and shorter. New editions of institutional arbitral rules were introduced by the SIAC in 2010, the ICC in 2012, and the HKIAC’s revised Administered Arbitration Rules (Draft HKIAC Rules) are expected in the first quarter of 2013. A general theme in recent revisions is the desire of institutions to “brand” their arbitrations, and to move away from institutions being a mere postbox and appointing authority. Institutions now want the power to shape the arbitral process.
An expression of this them [...]
Arbitration is underpinned by natural justice. Article 18 of the Model Law, enshrining the right of the parties to be treated with equality, and given a full opportunity to present their case, was described by UNCITRAL in 1985 as the “Magna Carta of Arbitral Procedure”.
Yet the Model Law does not in Articles 34 and 36 give an unfettered right to challenge an arbitral award for any alleged breach of natural justice. The grounds for set-aside, or refusal of recognition and enforcement, are specific. That specificity assists in promoting both uniform interpretation and arbitral autonomy.
The wild card is, of course, the public policy ground in Articles 34(2)(b)(ii) and 36(1)(b)(ii). Aus [...]
It must be an arbitrator’s nightmare: Imagine a high-stake arbitration that goes on for years, the entire distance, including witness hearings and expert evidence, only for the final award to be set aside on procedural grounds. And this is exactly what the Frankfurt Court of Appeals (Oberlandesgericht Frankfurt) did in a judgment in February 2011: The post-M&A dispute between GEA and Flex-n-Gate began in October 2004. There were, for some time, parallel court proceedings in various jurisdictions. An interim award was made in 2006. The final award, rendered in 2010, was for EUR 210,658,362. In October 2012, the Frankfurt judgment which reversed it has been upheld by the Federal Supreme Court [...]
By Justin D’Agostino, Tracy Wu and Briana Young
The Hong Kong Court of Appeal recently awarded indemnity costs against an applicant who attempted unsuccessfully to set aside an arbitral award. In a decision that many will welcome, the Hong Kong court has sent another strong message of support for the finality of the arbitral process.
In Pacific China Holdings Ltd v Grand Pacific Holdings Ltd CACV 136/2011, the Hong Kong Court of First Instance set aside an ICC award in favour of Grand Pacific, a Hong Kong-based investment company, on the basis of breaches of Article 34(2)(a)(ii) and (iv) of the UNCITRAL Model Law. The Court held that Pacific China had been “unable to present its case”, an [...]
On 13 January 2011, the Belgian Supreme Court (Cour de cassation/Hof van cassatie) ruled that an arbitral award could be set aside by a Belgian judge on the basis of a contradiction in the award’s motivation. In so ruling, the Belgian Supreme Court took a view opposite to that of the French Supreme Court (Cour de cassation), which, reversing its previous case law on this point, has ruled since 1999 that contradictions in motivation of arbitral awards may not by itself justify their annulment, be it under the regime governing national arbitration or under the one governing international arbitration.
The grounds for annulment of arbitral awards in Belgium are laid down in Article 1704, 2, of [...]