Recent Cases Show Increasing Support For Arbitration Globally

Author:Mr Peter Godwin, David Gilmore, Christopher Hunt, Emma Kratochvilova, Elaine Wong, Bree Farrugia and Conal McFadyen
Profession:Herbert Smith Freehills
 
FREE EXCERPT

 The past few months have seen a number of pro-arbitration decisions around the world, which should provide further comfort to Japanese companies considering arbitration for their dispute resolution mechanism. This newsletter summarises some examples from the UK, Hong Kong and Singapore.

Xstrata Coal Queensland Pty Ltd and others v Benxi Iron & Steel (Group) International Economic & Trading Co Ltd [2016] EWHC 2022 (Comm) BBW v BBX and others [2016] SGHC 190 American International Group, Inc and AIG Capital Corporation v X Company [2016] HCCT 60/2015 (30 August 2016) Conclusion Contacts Xstrata Coal Queensland Pty Ltd and others v Benxi Iron & Steel (Group) International Economic & Trading Co Ltd [2016] EWHC 2022 (Comm)

The English High Court has granted an application under s79 of the Arbitration Act 1996 to extend the time limit to apply to the Tribunal under Article 27 of the LCIA Rules 1998 (Rules) to correct an ambiguity relating to the identity of one of the Claimants.

Background

The Chinese Court refused recognition and enforcement of an LCIA award because one of the Claimants was not party to the contract (and arbitration agreement). The award was silent on the issue.

The Claimants sought to rely on Article 27.3 of the Rules, which provides for correction of awards. However, by the time the Chinese Court had made its decision, the 30 day time limit (from receipt of the award) to make such applications had long since expired.

The LCIA confirmed that the Tribunal had fulfilled its mandate and could not hear the application. The Claimants therefore applied to the Court for a retroactive extension of time under s79 to make the Article 27 application to the Tribunal.

Judgment

The Court observed that, in practice, the time limit under Article 27 of the Rules would almost always expire before the outcome of any enforcement attempt was known.

The Court concluded that enabling the Tribunal to provide an explanation would therefore be a "just and reasonable approach". The Court also found that there was no undue delay in making the s79 application (as it was reasonable to await the outcome of the Chinese proceedings). The Court accordingly granted the application.

Comment

This is another pragmatic and pro-arbitration decision by the English Court. This case is also a reminder to clearly and correctly define parties in complex multi-party or multi-contract transactions and to ensure that the proper parties are bringing the claims.

BBW v...

To continue reading

REQUEST YOUR TRIAL