Arbitration analysis: In this decision, the Hong Kong Court of First Instance dismissed an application under section 34 of the Arbitration Ordinance (Cap 609) challenging an arbitral tribunal’s jurisdiction over a shareholder dispute involving allegations of oppressive and discriminatory conduct. The court held that such claims while potentially relevant to a future winding-up petition under the Cayman Islands Companies Act, were both arbitrable and within the scope of the parties’ arbitration agreement. Drawing on the Privy Council’s reasoning in FamilyMart China Holding Co Ltd v Ting Chuan (Cayman Islands) Holding Corp, the court clarified that arbitral tribunals may determine factual disputes underlying such petitions even if statutory remedies remain solely within the Cayman courts. This decision confirms Hong Kong’s alignment with a pro-arbitration position in corporate disputes involving offshore structures. Written by Julien Chaisse, Professor at City University of Hong Kong School of Law.

This Practice Note considers the impact of the Contract (Right of Third Parties) Act 1999 (C(RTP)A 1999) on arbitration, in particular the established principle that only the parties to the arbitration agreement can be bound by that agreement, participate in the arbitration proceedings and be bound by any resulting arbitral award. The conditional benefit principle is considered. The Practice Note considers the leading cases of Nisshin Shipping Co Ltd v Cleaves and Fortress Value Recovery Fund v Blue Sky Special Opportunities Fund. This topic may be referred to as privity of contract in international arbitration proceedings, the interplay between C(RTP)A 1999 and arbitration, and 3rd parties and arbitration. Under English common law, the established rules on privity of contract dictate that, broadly speaking, only parties to the contract have rights under it and only parties to the contract have liabilities under it. As an arbitration agreement is a contract, it follows that, at common law, only the parties to the arbitration agreement can be bound by it or can

This Checklist should be read in conjunction with Practice Note: Arbitration and the Contracts (Rights of Third Parties) Act 1999. It lists points to think about when considering whether arbitration agreements in contracts also bind the third party under the Contracts (Rights of Third Parties) Act 1999 (C(RTP)A 1999): • does the contract in question exclude C(RTP)A? Many contracts exclude C(RTP)A 1999 • is the contract governed by English law? If it is not governed by English law, then C(RTP)A 1999 may not apply to the contract • if the contract is not governed by English law, but the arbitration agreement is, then C(RTP)A 1999 might still apply to the arbitration agreement (see eg AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC) • check the date of the contract. The C(RTP)A 1999 does not apply to contracts entered into before 11 May 2000 (C(RTP)A 1999, s 10(2) and Mulchrone v Swiss Life (UK) plc • does

ARCHIVED :  This Practice Note has been archived and is not maintained. This year’s Arbitration annual round-up for England & Wales reviews some of the most significant judgments of 2017 and previews what is on the horizon for 2018. This includes key decisions of the Supreme Court, Court of Appeal and High Court spanning our enforcement, challenges and appeals, tribunal, and jurisdiction topics. Also included are updates on LexisNexis®’s content, including news of exciting developments from the past year and what is coming up in the next 12 months. Reviewing 2017 Enforcement of arbitral awards What happened? In 2017, the subject of recognition and enforcement of arbitral awards was dominated by two judgments of the UK Supreme Court. Arguably, the more significant of the two was IPCO v NNPC [2017] UKSC 16, where Lord Mance (with whom the other justices agreed) concluded that the court had no power to make an award debtor’s properly arguable right to resist enforcement (on the grounds provided by section 103(2) or 103(3) of the Arbitration

ARCHIVED :  This Practice Note has been archived and is not maintained. This year’s Arbitration institutions annual round-up reviews some of the most significant developments of 2017 and previews what is on the horizon for 2018. This includes revised SCC Arbitration Rules in force from 1 January 2017, revised ICC Arbitration Rules in force from 1 March 2017, the LMAA’s updated Terms in force from 1 May 2017, statistics from the institutions and revised rules expected from HKIAC and CIArb. Also included are updates on LexisNexis®’s content, including news of exciting developments from the past year and what is coming up in the next 12 months. Reviewing 2017 ICC—revised rules for 2017 and key developments What happened? On 1 March 2017, the ICC’s revised arbitration rules entered into force (the 2017 ICC Rules). The 2017 ICC Rules apply to any ICC arbitrations commenced on or after that date, unless the parties have agreed to submit to the rules in force on the date of their arbitration agreement. Alongside the publication

ARCHIVED :  This Practice Note has been archived and is not maintained. This year’s annual roundup on international arbitration—key seats reviews some of the most significant developments of 2017 and previews what is on the horizon for 2018. This includes key cases and legislative developments from the USA, UAE, China, Singapore, Hong Kong, India and others. Also included are updates on LexisNexis®’s content, including news of exciting developments from the past year and what is coming up in the next 12 months. Given the potential breadth of this review, we have limited our coverage to only a selection of the key developments. Reviewing 2017 Arbitration in the Americas What happened? In the USA, Steve Finizio, partner at WilmerHale, comments, ‘it has been a quieter year with regard to international arbitration developments, and the US Supreme Court has not issued any decisions on arbitration-related issues that appear likely to be significant for international arbitration. There have been, however, several recent cases that reflect the fact that US courts continue to

ARCHIVED :  This Practice Note has been archived and is not maintained. This year’s annual round-up reviews some of the most significant investment treaty arbitration developments of 2017 and previews what is on the horizon for 2018. This includes key awards in International Centre for Settlement of Investment Disputes (ICSID) and other investment treaty arbitration proceedings, the release of bespoke investment arbitration rules by leading institutions, and broader developments in the field of investor-state dispute settlement. Also included are updates on LexisNexis®’s content, including news of exciting developments from the past year and what is coming up in the next 12 months. Reviewing 2017 ICSID arbitration What happened? The ICSID announced in October 2016 that work had begun on updating and modernising the centre’s rules and regulations. ICSID invited comments and suggestions from ICSID Contracting States and, in February 2017, the wider public were encouraged to participate, including the arbitration community. It is the fourth such review and revision process in ICSID history, with the first three taking place in 1984,

ARCHIVED :  This Practice Note has been archived and is not maintained. This year’s Arbitration annual round-up of trends and hot topics in the international arbitration community reviews some significant developments in 2017 and previews what is on the horizon for 2018. Topics which were in the headlines in 2017 included diversity on arbitral tribunals, third-party funding and transparency. We review developments in relation to these topics, including surveys, case law, legislation, rule changes, conventions and guidelines. Also included are updates on LexisNexis®’s content, including news of exciting developments from the past year and what is coming up in the next 12 months. Reviewing 2017 Diversity on arbitral tribunals What happened? In January 2017, Berwin Leighton Paisner (BLP) released the results of its annual international arbitration survey, which focused on the issue of diversity on arbitral tribunals. The survey looked at how important issues of gender and ethnicity/national identity were to respondents when selecting an arbitrator, and whether statistics on diversity were useful in selecting an arbitral institution.

With a population of over 700,000 and an area of 33 square kilometres, Macau is a Special Administrative Region of the People’s Republic of China (PRC) under the ‘one country, two systems’ principle. As a result, Macau retains a high degree of autonomy in economic matters. Macau is considered to be a separate customs territory, with a liberal economy and a free port. Gaming and tourism are the mainstays of its economy and over the years, Macau has attracted many thousands of tourists from PRC and Hong Kong Special Administrative Region (HKSAR). It should be noted that a significant portion of Macau’s economy remains dependent on the gambling industry, which generates over 70% of the country’s tax revenue and employs one-fifth of its workforce. In this regard, tourism and recreation are being promoted by the government as a means of diversifying the economy. Besides, these two most dominant sectors, other industries have been growing little. These include finance, insurance, construction, real estate, retail, and meetings, incentives,

Arbitration analysis: The Court of Appeal refused permission to appeal under section 69 of the Arbitration Act 1996 (AA 1996), holding that, in the parties’ agreement, the term ‘rendered’ referred to the date an award was made, not the date when an award was received. The parties’ contractually agreed 30-day limit to bring an appeal therefore began to run from the making of the award, and no statutory power to extend time was available. This decision shows the courts’ willingness to give effect to precise contractual language in arbitration clauses, even where an outcome may appear harsh. Practitioners should note the risk of short contractual deadlines in this context, which deadlines are tied to the making rather than receipt of an award. Those risks might be particularly stark in cross-border disputes where communication delays can arise. The judgment highlights the need for careful drafting to avoid the unintended loss of appeal rights and confirms that agreed procedural timeframes can override the provisions of the AA 1996 in the absence of contrary wording. Practitioners might be much better off using standard arbitration clauses provided by arbitral institutions rather than crafting bespoke provisions which do not work as expected. Written by Oliver Browne, partner, at Paul Hastings (Europe) LLP.

Arbitration analysis: The case arises from an ICC award in July 2019 ordering several oil companies, including DNO Yemen AS (DNO) and Petrolin Trading (Petrolin), to pay damages to Yemen’s Ministry of Oil and Minerals (the ’Ministry’) and Yemen Oil and Gas Corporation (YOGC). Under Article 2 (2) of Regulation No 1352/2014 (the ’Regulation’), the EU prohibits making funds or economic resources ‘directly or indirectly’ available to certain persons sanctioned for supporting activities that threaten Yemen’s peace and security. Although neither the Ministry nor YOGC is sanctioned under the Regulation, the oil companies sought annulment of the award in the French courts, arguing, in particular, that the arbitration award was contrary to international public policy in that its enforcement could cause funds to be made indirectly available to persons sanctioned under the Regulation. They argued that certain sanctioned Houthi-rebels in Yemeni exercised de facto influence within these entities, creating a real risk that any payment under the award could ultimately benefit those persons and thus fall within the prohibition in the Regulation. Following a referral by the French courts to the Court of Justice of the European Union (CJEU), Advocate General Szpunar proposed in his opinion that an arbitral award payment to a non-sanctioned entity over which sanctioned and non-sanctioned persons exercise competing influences may fall within the scope of the Regulation, where there is a risk that the funds could be passed on to sanctioned persons. He however clarified that the mere fact that sanctioned persons exercise competing influence within a non-sanctioned public entity does not permit a presumption that they control that entity. That said, where the evidence before a national court indicates a reasonable risk that sanctioned persons may benefit from the funds, the burden of proof shifts to the non-sanctioned entity to demonstrate that no such risk exists. Written by Dr Ademola Bamgbose, solicitor advocate and senior associate at Hogan Lovells, London and Valerie Awogu, associate at Hogan Lovells, London.

Arbitration analysis: The Court of Appeal of Paris upheld a decision of the Paris Judicial Court, declining jurisdiction over claims seeking annulment of a copyright assignment agreement and, alternatively, termination of a joint venture agreement relating to audiovisual exploitation rights in the ‘SAS’ novels. The court held that the relevant arbitration clause was not manifestly invalid and extended to disputes concerning the existence, validity and termination of the underlying agreements. The judgment reaffirms the autonomy of the arbitration clause and the principle of compétence-compétence (ie the arbitral tribunal’s power to determine its own jurisdiction). For practitioners, it illustrates the breadth of arbitration agreements in international copyright exploitation arrangements and the difficulty of avoiding arbitration by characterising disputes as matters connected with moral rights.