Allens

07 May 2013

We look at the fifth edition of the Singapore International Arbitration Centre's rules; the willingness of the Singapore High Court to give effect to pathological arbitration clauses; a case that reinforces the broad discretion of arbitral tribunals in deciding procedure and case management in Hong Kong; whether an agreement to negotiate in good faith in a multi-tiered dispute resolution clause is enforceable in different jurisdictions; and a court's refusal to recognise an arbitral award where the underlying agreement was executed under duress. This issue has been edited by Partner Andrea Martignoni, Special Counsel Nicola Nygh and Senior Associate James Morrison.

21 March 2013

The High Court has upheld the constitutional validity of recent amendments to federal arbitration legislation that were made to strengthen Australia's international arbitration regime by better providing for the finality of arbitral awards. This follows a recent decision by the Supreme Court of New South Wales which preserved corresponding amendments to state legislation governing domestic arbitrations for largely the same reasons. Partner Andrea Martignoni, Special Counsel Nicola Nygh, Senior Associate Tom Randall and Lawyer Catherine Li report.

13 December 2012

The WA Supreme Court recently held that Western Australia's proportionate liability legislation does not of its own force apply to arbitral proceedings for disputes governed by WA law. Partner Brian Millar and Senior Associate Lixian Liang report.

10 October 2012

We look at a decision of the High Court of India that should make it easier to enforce foreign awards in that country; whether judicial acts are 'acts of state' for the purpose of the act of state doctrine; a notice of investment dispute that has been issued to the Mongolian Government under the bilateral investment treaty between Singapore and Mongolia; competition law as a 'mandatory' law for arbitration in Australia; and a decision to stay court proceedings in favour of arbitration made in the context of multiple agreements governed by multiple laws.

18 June 2012

With potentially important consequences for parties entering into contracts that have international arbitration clauses, the English Court of Appeal recently held that English law governed an agreement in a contract to arbitrate disputes, even though the parties had agreed that the laws of Brazil governed the underlying contract. Partner Brian Millar and Lawyer Tom Levi consider the effect of this on the drafting of commercial contracts.

16 May 2012

We report on whether the recent amendments to section 21 of the International Arbitration Act 1974 (Cth) have retrospective effect; India's breach of the Australia-India bilateral investment treaty; a Federal Court of Australia decision enforcing an award made in England despite ongoing setting aside proceedings in India; a Queensland Supreme Court decision setting aside an award on due process grounds; proposed amendments to Singapore's International Arbitration Act; and New South Wales as a venue for international arbitration

10 January 2012

In brief: Hong Kong's pro-enforcement approach to arbitral awards has been confirmed by a recent Court of Appeal decision. It overturns the lower court's order refusing to enforce a PRC arbitral award on the ground of apprehended bias due to the way a 'med-arb' process was conducted. Partner Mun Yeow and Senior Associate Morgana Brady report

30 November 2011

In two recent related decisions, the NSW Supreme Court has lifted the statutory moratorium on proceedings against a company in administration and allowed a plaintiff to enforce an arbitral award against the company. Partner Michael Quinlan, Special Counsel Nicola Nygh and Lawyer Jonathan Adamopoulos report

13 October 2011

New International Chamber of Commerce Rules of Arbitration will streamline the arbitral process and aid its efficiency. The new rules also take into account the increasing complexity of arbitrations by better accommodating multiple parties and contracts. Partner Duncan Travis, Special Counsel Nicola Nygh and Law Graduate Edmund Robinson report

10 October 2011

A recent High Court decision is significant for all parties involved in arbitrations or whose contracts contain arbitration clauses, and for reinsurers whose contracts are subject to New South Wales law. Partner Michael Quinlan, Lawyer Mitch Riley and Paralegal Ashleigh Shand explain

06 October 2011

Could an arbitration agreement stipulate the religion of an arbitrator without breaching anti-discrimination laws? Partner Stephen McComish, Lawyer Kristian Maley and Law Graduate Samantha Lord report on an important decision of the UK Supreme Court that could have ramifications for businesses within our region

21 September 2011

Multiple defendants will find it easier to attract proportionate liability to claims made against them under draft model legislation to reform Australia's proportionate liability laws. Partner Paul Nicols and Senior Associate Philip Hopley report on the proposals, which have been released for public consultation

15 September 2011

The Victorian Court of Appeal has clarified a number of important issues regarding the enforcement of foreign arbitral awards in Australia. Partner Peter O'Donahoo, Senior Associate Andrew Barraclough and Lawyer Tim Maxwell report

12 September 2011

A recent Federal Court decision gives insight into the circumstances under which a court may adjourn the enforcement of a foreign arbitral award that is the subject of an appeal in the courts of the seat of the arbitration. Partner Nick Rudge, Special Counsel Nicola Nygh and Lawyer Tom Levi report on a case that deals with the uniformity of recognition and enforcement of foreign arbitral awards

27 July 2011

The new Arbitration Ordinance simplifies Hong Kong's arbitration law, unifying the different regimes for 'domestic' and 'international' arbitration. This should strengthen its status as a leading jurisdiction for international dispute resolution. Partner Simon McConnell and Senior Associate Kieran Humphrey discuss the key changes

19 July 2011

A recent United States Supreme Court decision found that arbitration clauses with class action waivers can be used in standard form customer contracts. Partner Duncan Travis spoke to Boardroom Radio about the reasoning behind the decision and the possible implications for Australian businesses

08 July 2011

The Court of Appeal of Singapore recently upheld a High Court decision that insolvency related avoidance claims are not arbitrable, as they relate to a type of dispute that only the courts can resolve. Partner Matthew Skinner, Senior Associate Justin Simpkins and Lawyer Tom Levi report

07 July 2011

A recent New South Wales Court of Appeal decision has continued the trend of interpreting alternative dispute resolution clauses consistently with commercial commonsense. Partner Brian Millar and Senior Associate Matthew Senescall report on the decision, and consider the lessons for parties interpreting existing dispute resolution procedures and negotiating those clauses in future contracts

29 June 2011

Hong Kong's Court of Final Appeal recently held that no state may be sued in Hong Kong's courts unless the state waives its immunity, and that submitting to arbitration does not constitute a waiver. This will have a major impact on any business wanting to enforce a claim against a state's assets in Hong Kong. For the first time, the court also referred questions about the interpretation of Hong Kong's Basic Law to the standing committee of the National People's Congress in Beijing. Partner Simon McConnell, Special Counsel Nicola Nygh, and Law Graduate Edmund Robinson report on the court's decision

07 June 2011

Proponents of some recent landmark Australian infrastructure projects, such as the Gateway Upgrade in Queensland, the Harvey Dam in Western Australia, and the desalination plants in Adelaide and Sydney, have chosen to administer their contracts using dispute review boards, reflecting their success in avoiding disputes, or preventing disputes from escalating while construction works are in progress. Partner Brian Millar, Lawyer Michael Tollman and Law Graduate Tom Tian report on a growing trend

20 May 2011

The Federal Court recently declined to stay or adjourn court proceedings in respect of a shipping dispute pending the outcome of related arbitration proceedings in Singapore. Partner Oscar Shub, Senior Associate Damian Watkin and Lawyer Tom Levi report on the decision in the context of international arbitration in Australia

30 March 2011

The Commonwealth and Victorian parliaments have recently enacted legislation concerning mandatory pre-litigation dispute resolution procedures. While the Commonwealth Parliament has mandated 'genuine steps' to resolve disputes, the Victorian Parliament has repealed the mandatory pre-litigation requirements prescribed by previous legislation (but it has given the courts the power to determine what pre-litigation requirements should be followed). Partner Andrew Maher and Senior Associate Eleanor Fletcher look at the differing approaches

08 March 2011

The Federal Court has confirmed that Australian courts will adopt a pro-arbitration approach in relation to the enforcement of foreign awards. Partner Stephen McComish and Lawyer Kristian Maley report

15 February 2011

Potential litigants in Victoria should be aware that the Victorian Government is taking steps to repeal the 'pre-litigation requirements' of the State's new Civil Procedure Act. Partner Andrew Maher and Senior Associate Matthew McCarthy report

16 November 2010

In the first judicial consideration of the new commercial arbitration legislation, the NSW Supreme Court has found that a party lost its right to arbitrate by defending an application for an interlocutory injunction. Partner Brian Millar, Special Counsel Nicola Nygh and Law Graduate Alison Matthews comment on the decision

15 October 2010

New South Wales was the first state to enact model legislation after the Standing Committee of Attorneys-General agreed to adopt draft uniform legislation relating to domestic arbitration. The legislation recently commenced, and Partner Brian Millar, Special Counsel Nicola Nygh and Lawyer Tristan Garcia report on the implications for domestic arbitration

11 August 2010

The United Nations Commission on International Trade Law has pre-released the updated UNCITRAL Arbitration Rules 2010. The new UNCITRAL Rules are an attempt to provide a more effective dispute resolution process in light of some pervasive issues that did not exist when the original rules were created in 1976. Special Counsel Nicola Nygh and Lawyer Dr Sam Luttrell report on the changes

03 August 2010

In a recent case concerning an application for a stay in favour of arbitration, the High Court of Singapore has decided that insolvency related avoidance claims are not arbitrable as they relate to a type of dispute that can only be resolved by the courts. Partner Matthew Skinner and Senior Associate Justin Simpkins report

01 July 2010

The International Arbitration Amendment Act 2009 (Cth) has been passed by Federal Parliament, placing Australia at the forefront of international arbitration lawmaking. Special Counsel Nicola Nygh, Lawyer Dr Sam Luttrell and Law Graduate Alison Matthews report

22 June 2010

Federal Parliament has passed amendments to the International Arbitration Act 1974 as part of a revamp of arbitration in Australia. Special Counsel Nicola Nygh speaks to Boardroom Radio about the changes introduced by these amendments and how the federal arbitration law will work with proposed amendments made at state level

07 June 2010

Recently, the Federal Attorney-General announced that new legislation will be introduced into Parliament that will require disputing parties to take 'genuine steps' to attempt to resolve their differences before commencing litigation in federal courts and tribunals. Partner Andrew Maher and Law Graduate Cara Stevens report.

13 May 2010

The Standing Committee of Attorneys-General has agreed to adopt a new model commercial arbitration Bill based on the Model Law on International Commercial Arbitration. This will fundamentally change the way arbitrations are conducted by parties and supervised by state courts. Partner Stephen McComish, Special Counsel Nicola Nygh and Lawyer Dr Sam Luttrell report

05 May 2010

he Supreme Courts of Victoria and Queensland have handed down decisions that seek to provide clarification on the extent of reasons required in an award issued under the State Commercial Arbitration Acts. Partner Nick Rudge and Lawyer Cameron Miles analyse these decisions

29 March 2010

A Victorian Court of Appeal decision, which granted a stay of court proceedings so that a dispute could be referred to arbitration, has provided further support for the view that Australia is an 'arbitration friendly' jurisdiction. Partner Andrea Martignoni, Special Counsel Nicola Nygh and Lawyers Sam Luttrell and Mark Hare report.

02 March 2010

The Permanent Court of Arbitration at The Hague recently upheld a challenge that a state-respondent had brought against a leading arbitrator, holding that comments the arbitrator had made to the media gave rise to doubts regarding his impartiality or independence. Partner Matt Skinner, Research Assistant James Pearse and Lawyer Dr Sam Luttrell report

16 December 2009

Amendments to clarify the operation of the International Arbitration Act 1974 and support the practice of international arbitration in Australia have been introduced into Federal Parliament. Partner Stephen McComish, Special Counsel Nicola Nygh and Lawyer Dr Sam Luttrell look at the amending legislation

14 December 2009

The Standing Committee of Attorneys General has released a consultation draft of the Commercial Arbitration Bill 2009. The proposed new State Commercial Arbitration Acts will be based on the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration 1985, with certain additional provisions intended to clarify the operation of the law and support the practice of arbitration in Australia. Special Counsel Nicola Nygh and Lawyer Dr Sam Luttrell report on the Bill.

04 December 2009

A recent decision of an arbitral Tribunal convened under the auspices of the International Centre for the Settlement of Investment Disputes contributes to the emerging notion of abuse of process in the jurisprudence of investment treaty arbitration. This line of authority has implications for treaty shoppers, insofar as it may limit investors' ability to change or acquire nationality for the purposes of Bilateral Investment Treaty claims by selling or assigning their claims to entities incorporated in other countries. Partner Stephen McComish and Lawyer Dr Sam Luttrell report

03 December 2009

Recent announcements has led doubts to how foreign investors with exposure to Dubai can enforce their contractual rights. Partner Matthew Skinner speaks to Boardroom Radio about the impact of these announcements on foreign investors

02 December 2009

Last week's announcement that a Dubai state trading entity, Dubai World, would suspend debt repayments for six months has raised the possibility of a significant sovereign default. Many foreign investors with exposure in Dubai are now asking how they can enforce their contractual rights in the troubled emirate. Partner Stephen McComish and Lawyer Dr Sam Luttrell report on the options available

30 October 2009

A Bill passed by the Senate this week will give the Federal Court concurrent jurisdiction with state and territory Supreme Courts in international arbitration matters. Partner Stephen McComish and Lawyer Dr Sam Luttrell report

01 October 2009

In two recent decisions, the NSW Supreme Court has declined to intervene in determinations made by arbitrators. In Yang v S & L Consulting, the court enforced a Chinese arbitral award under the International Arbitration Act 1974, despite opposition by the award debtor that to do so would be contrary to public policy. In Goodman Holdings v Hughes, the court refused leave to appeal from a domestic arbitral award on the grounds of manifest error of law or technical misconduct of the arbitrator under the Commercial Arbitration Act 1984. Partner Andrea Martignoni, Special Counsel Nicola Nygh and Lawyer Tom Randall report

15 June 2009

Special Counsel Gordon Smith, Partner Stephen McComish, Lawyer Sam Luttrell and Law Graduate Caroline Spencer report on the significance of 'nationality planning' in connection with bilateral investment treaties in order to maximise foreign investors' rights in Asia

07 May 2009

The state and territory Attorneys-General have agreed to draft new uniform state Commercial Arbitration Acts based on the UNCITRAL Model Law on International Commercial Arbitration. Special Counsel Nicola Nygh and Lawyer Sam Luttrell report

02 March 2009

On 27 February 2009, the trade ministers of all ten ASEAN members, Australia and New Zealand signed the Agreement Establishing the ASEAN-Australia-New Zealand Free Trade Area (to be referred to by the somewhat unwieldy acronym AANZFTA). One of our South East Asia-based partners, Marcus Clark, was at the signing as a delegate of the Australia-ASEAN Business Council and reports on the implications of this important trade initiative

02 December 2008

Partner Andrea Martignoni, Special Counsel Nicola Nygh and lawyer Anna Brown comment on the recent announcement made by the Attorney-General regarding the review of the International Arbitration Act 1974 (Cth) and the promising signs of reform in the arena of international arbitration

25 August 2008

The Western Australian Court of Appeal recently held that an arbitration clause in a contract did not cover a related dispute between the contracting parties where the dispute also involved the liability of a third party. This arguably goes against the general trend of a broader interpretation of arbitration clauses. Senior Associate Brian Millar and Law Graduate Clara Wren look at the decision and its implications.

17 July 2008

The Western Australian Court of Appeal recently held that an arbitration clause in a contract did not cover a related dispute between the contracting parties where the dispute also involved the liability of a third party. This arguably goes against the general trend of a broader interpretation of arbitration clauses. Senior Associate Brian Millar and Law Graduate Clara Wren look at the decision and its implications

31 March 2008

The Hong Kong Department of Justice recently released its consultation paper and draft legislation for reforming Hong Kong's arbitration law. Partner Simon McConnell and Lawyer Kieran Humphrey discuss the background and likely impact of these reforms.

12 December 2007

Special Counsel Nicola Nygh and Lawyer Anna Brown comment on a recent Victorian Court of Appeal decision regarding the adequacy of reasons given in an arbitral award and the implications for parties in their choice of arbitral law and the exercise of appeal rights