2018

2018

This subtopic is an archive of key news and case analysis articles published in 2018.

In addition, these articles are always stored against the relevant arbitration

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Latest Arbitration News

From Moscow to Marina Bay—state immunity meets its match in Hulley v Russian Federation

Arbitration analysis: In Hulley Enterprises Ltd v The Russian Federation [2025] SGHC(I) 19 (Hulley), the Singapore International Commercial Court (SICC) held that Russia was precluded from asserting state immunity to resist enforcement of arbitral awards rendered by tribunals constituted under the Energy Charter Treaty (ECT). The court found that the doctrine of transnational issue estoppel applied—even in circumstances where a claim of state immunity had been made, given that the Dutch appellate courts (as the courts of the seat) had already conclusively determined the issues of jurisdiction now before the SICC. This judgment is significant for arbitration practitioners as it affirms the enforceability of investor-state arbitral awards in Singapore, even against sovereign states, where the underlying jurisdictional issues have been finally resolved by competent foreign courts. by Amanda Lees and Jack McNally, King & Wood Mallesons (Singapore and Sydney).

Let the warrantor beware? Hong Kong court’s nuanced approach to locating the ‘Centre of Gravity’ of contractual indemnity claims (XX, YY & Others v ZZ)

Arbitration analysis: XX, YY & Others v ZZ illustrates the Hong Kong court’s approach to the jurisdictional conundrum, which arises from a very typical paradigm where a target company (and its associates) (the ‘Warrantors’) having given a contractual indemnity (in ‘Contract A’) in favour of an investor with respect to all losses resulting from the non-performance of a put option (which acts as an ‘exit mechanism’) contained in the company’s articles and/or a subsequent contractual agreement (‘Contract B’). In this case, the Warrantors’ attempt to avoid arbitral jurisdiction failed. The Warrantors’ argument that ‘the “centre of gravity” of the indemnity claim (which turns on the alleged failure to perform the put option) lies with Contract B’ was squarely rejected. In very simple terms, the net effect of this decision is that: for jurisdiction purposes, an indemnification claim which can only arise out of Contract A would (more likely) be treated as ‘closer’ to Contract A, even if the underlying dispute triggering the indemnity may fall within the scope of Contract B as well. Written by Adrian Lai, barrister at Des Voeux Chambers and Matthew Suen, barrister at Denis Chang’s Chambers.

Conditional stays, intention to arbitrate, and costs sanctions (DKB v DKC)

Arbitration analysis: In DKB v DKC, it was decided by the Singapore International Commercial Court (SICC) that, when an award creditor seeks to enforce an arbitral award, those enforcement proceedings can be stayed in favour of arbitration under section 6 of the Singapore International Arbitration Act 1994 (IAA 1994). A dispute over whether the award creditor could enforce the award had arisen out of a post-award settlement agreement which in turn contained an arbitral clause. The court granted a conditional stay requiring the award debtor to commence arbitration under the settlement agreement. Ultimately, the stay was lifted when the award debtor did not commence arbitration. In a subsequent costs decision (DKB v DKC), the court made no order as to costs for the stay application despite the award debtor’s success in obtaining a stay. According to the court, the award debtor’s post-hearing conduct showed that the award debtor did not intend to enforce the right to arbitrate which had formed the foundation of its stay application. The court reasoned that while post-hearing conduct is generally irrelevant to costs, where a party seeks relief based on rights it has no intention of exercising, fairness and justice require departure from the usual rule that costs follow the event. Written by A/Prof Darius Chan, deputy director, Singapore International Dispute Resolution Academy; director, Breakpoint LLC; Door Tenant, Fountain Court Chambers.

UNCTAD launches database to map investment facilitation provisions in IIAs

The United Nations Conference on Trade and Development (UNCTAD) has launched the IIA Facilitation Mapping Database to help countries better track and implement their international investment agreement (IIA) commitments on investment facilitation. The database maps over 400 IIAs concluded since 2010, including the Investment Facilitation for Development Agreement finalised by members of the World Trade Organization (WTO) in November 2023. It provides a clear and comparative overview of treaty provisions, highlighting areas of alignment—such as transparency—and divergence—such as procedural simplification. The tool is intended to support developing and least developed countries in navigating overlapping obligations and complements UNCTAD’s IIA Navigator. It also contributes to UNCTAD’s research, analysis and technical assistance activities related to investment facilitation.