Landmark settlement of climate change-related litigation against superannuation fund A settlement has been reached in the landmark climate change litigation brought against one of Australia’s largest superannuation funds. The action, brought by one of the fund’s members, alleged that it had not acted in the best interests of beneficiaries by failing to disclose climate change-related business risks. As part of the settlement, the fund acknowledged that climate change is a material, direct and current financial risk to the superannuation fund and that it could have grave economic and social consequences. It committed to achieving net-zero emissions in its portfolio by 2050. Although the settlement does not create a legal precedent, it is nevertheless likely to lead to significant pressure on other funds and companies to follow suit, under threat of similar actions from members and shareholders. Read more.
PRC and Hong Kong sign supplemental arrangement on mutual enforcement of arbitral awards The government of the Hong Kong and China’s Supreme People's Court have signed a new supplemental arrangement concerning mutual enforcement of arbitral awards between Mainland China and Hong Kong. The Supplemental Arrangement seeks to refine the Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and Hong Kong that has been in force since February 2000 and includes amendments that are within the spirit of the New York Convention. A key feature includes a clarification that a party may apply for preservation measures before or after the court's acceptance of an application to enforce an arbitral award. Parties can also now make simultaneous applications to both Mainland China and Hong Kong courts for enforcement of an award. Read more.
Joint mediation service launched to focus on resolving disputes with Japanese companies The Japan International Mediation Center and the Singapore International Mediation Centre have introduced a new joint protocol for mediation providing for the efficient resolution of disputes with Japanese companies. Mediations will be jointly managed by JIMC and SIMC, and the request for mediation can be filed with either, for a fee of approximately USD 190. Cases will then be resolved by two experienced mediators, one from the JIMC and one from the SIMC. There is provision for mediations to be conducted online to address current limitations on international travel due to COVID-19. Any resulting settlement agreement may then be enforced in Singapore Convention signatory states. Read More.
Singapore accedes to the Apostille Convention Singapore has deposited its instrument of accession to the Hague Apostille Convention, becoming the 120th contracting party and the third ASEAN member state. The Convention facilitates the use of public documents abroad, by replacing the often long and costly process of legalizing documents with the issuance of a single apostille certificate by a competent authority in the place where the document originates. The Convention will come into effect for Singapore on 21 September 2021 and will be welcome news for foreign parties who do business there. Read more.
New Mediation Law takes effect A new law on mediation has come into effect in Vietnam. It formalizes the pilot program that has been in place in some provinces since 2018, including detailed provisions on the selection of a mediator, procedures for mediation, as well as procedures for recognizing the outcome. The court's decision on recognition of a successful mediation is legally effective and cannot be appealed unless the parties' agreement violates any of the grounds for recognition under the new law. It also contains specific regulations on confidentiality. To help implement the new law, the Supreme Court has issued a new circular which is also now in effect. This requires the court to notify plaintiffs regarding their right to opt for mediation and to designate a mediator for each case. Read more.
Supreme Court confirms tribunal’s decision to hold virtual hearing despite party’s objection The Austrian Supreme Court has ruled that the decision to conduct hearings via videoconference, even where this is strongly objected to by one of the parties, falls within the arbitral tribunal’s discretion. The court found that video-conferencing is an accepted and widespread means of conducting both arbitral and judicial proceedings, particularly during a pandemic. As such, holding a virtual hearing via video-conference against the objection of one party does not violate the parties’ right to a fair trial under article 6 of the European Convention on Human Rights. Read more.
New English-speaking commercial court opened The first English-language commercial court in Germany has opened. The court has two locations, in Stuttgart and Mannheim, and will decide disputes in international commercial law. Disputes will be heard by judges that are experts in commercial law and able to conduct proceedings in English. Appeals will be heard by specialized appellate bodies at the Higher Regional Court, applying the same procedural rules as the commercial court. The courts are viewed as a response to the ever-increasing popularity of international arbitration in Germany, with the stated aim of bringing major economic disputes back into state civil courts. Although there are already some English-speaking chambers for commercial matters in Germany, such as in Frankfurt am Main, this is the first dedicated English-language court. Read more.
Sierra Leone joins New York Convention Sierra Leone has deposited an instrument of accession to the Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958, known as the New York Convention, becoming the 166th jurisdiction to do so. The Convention requires contracting states to recognize and enforce arbitral awards made in other contracting states in the same way they would for a domestic award, subject to certain limited exceptions. The Convention entered into force in Sierra Leone on 26 January 2021. Read more.
Brexit agreement fails to include mutual enforcement of court judgments The UK and EU have reached a deal on the future relationship between them after the Brexit transition period, which ended on 31 December. However, the agreement did not include the EU’s consent to the UK’s accession to the Lugano Convention 2007, which requires the unanimous consent of all current Convention states. Even if consent is subsequently given by the EU, the Convention will not come into effect for the UK for a further three months. As such, there will now be a period during which parties seeking to enforce a UK judgment in Brussels or Lugano jurisdictions will need to rely on alternative provisions, such as the less expansive Hague Choice of Court Convention. Read more.
Supreme Court judgment confirms approach to certification in UK class actions regime The UK Supreme Court has confirmed the finding of the Court of Appeal that a representative applying for certification of a class must show that they have a method with a realistic prospect of assessing loss across the whole class and that the data required to apply that methodology is likely to be available at trial. This is a relatively low bar to meet and means that it will be relatively straightforward to pursue class action litigation in the UK and to secure funding to do so, avoiding US-style mini-trials poring over evidence at the certification stage. The court did acknowledge that the Competition Appeal Tribunal has wide discretion in determining whether to certify and could have dismissed the application on other grounds, but must now reconsider the Respondent's certification application. Read more.
Re-examination of pre-arbitral court injunction by arbitral tribunal permitted by STJ The Superior Court of Justice (STJ), Brazil’s highest appellate court for non-constitutional questions of federal law, has unanimously recognized that an arbitral tribunal may review a decision rendered by a state court on a pre-arbitral injunction. The SJT ruled that once the arbitral tribunal is constituted, the state court no longer has jurisdiction, and so the arbitral tribunal had jurisdiction to re-examine the court's decisions. In this case, the decision related to the payment of attorneys’ fees resulting from injunctions before the constitution of the arbitral tribunal. This is the first decision that deals specifically with this issue and reinforces the principle that the state court's jurisdiction before the commencement of arbitration is temporary and provisional. Read more. Mexico PCA and Mexico sign framework cooperation agreement The Permanent Court of Arbitration and the Mexican Ministry of Foreign Affairs have signed a Framework Cooperation Agreement. The Agreement aims to promote the use of peaceful means of dispute settlement such as arbitration, mediation and conciliation, and building Mexico’s capacity in these matters. It is the first agreement of its kind in Mexico and represents the first step towards a Host Country Agreement between the parties, which would allow the Permanent Court of Arbitration to establish a facility in Mexico. Read more.
California votes to revise and expand California Consumer Privacy Act Voters in California have overwhelmingly approved Proposition 24, a ballot measure that creates the California Privacy Rights Act. The CPRA revises and expands the existing California Consumer Privacy Act, which only came into effect in January last year and was already considered the most comprehensive privacy regime in the US. Changes include introducing a new category of “sensitive personal information;” the creation of new and expanded GDPR-style privacy rights for consumers and obligations for business; establishing a new privacy enforcement authority and expanding private rights of action for data breaches. The majority of changes will take effect in January 2023. Read more.
Supreme Court petitioned to rule on scope of discovery and resolve major District Court split A petition has been submitted to the US Supreme Court, asking it to resolve the ongoing split between US District Courts as to whether a US court may order discovery for use in private international commercial arbitrations under Section 1782. Section 1782 is a US federal statute that allows non-US litigants to obtain discovery from persons located in the US for use in foreign legal proceedings. The Fourth and Sixth Circuits have previously found that Section 1782 discovery is available in aid of private international commercial arbitration, whereas the Second, Fifth and Seventh Circuits have ruled to the contrary. The petitioning party was involved in two separate legal actions last year arising from the same facts but before two different circuit courts, which produced contradictory decisions as to whether discovery in international arbitration was permissable under Section 1782. If the petition is accepted by the Supreme Court, the case would likely be heard later this year. Read more.
Sovereign immunity under FSIA waived by agreement to arbitrate in New York Convention state The US District Court for the District of Colombia has ruled that Nigeria waived its right to claim sovereign immunity under the Foreign Sovereign Immunities Act when it agreed to arbitration proceedings in London, on the basis that the UK is a signatory of the New York Convention. The claimant sought to have the arbitration award in its favor confirmed in the US, against which Nigeria sought to claim sovereign immunity. In rejecting Nigeria’s arguments, the court relied on the language of the Convention, which states that the terms of the Convention "shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought," and that "each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon." Read more.
IBA evidence rules set for revision The International Bar Association has announced a revision of its Rules on the Taking of Evidence, the first update in over a decade. The rules are widely used in international arbitration to govern the use of document production and evidence presentation, especially where parties come from diverse legal systems. The final draft has not yet been published, but it is thought that it will include new provisions regarding remote hearings, the use of translations and the exclusion of illegally obtained evidence. The new rules are to be considered by the IBA Council in the coming months, and if approved, are expected to go into force a short time later. Read more.
New ICC Rules come into effect The revised ICC rules of arbitration have come into effect. The ICC rules, believed to be the most widely used arbitral rules in the world, were last revised in 2017. The 2021 rules represent an evolution of the 2017 rules, rather than a wholesale redraft, but with several notable changes. These include provision for virtual hearings and a shift away from paper filings; increased disclosure requirements for third-party funding; new rules facilitating consolidation and joinder; and an increase the opt-out threshold for expedited arbitration provisions from USD 2 million to USD 3 million. There are also two new provisions relating to investment treaty arbitration, including restrictions on an arbitrator being of the same nationality as any party, and a provision making clear that emergency arbitration is not available in investor-State disputes. Read more.
International commercial courts update memorandum on enforcement of money judgments The Standing International Forum of Commercial Courts has published the second edition of its Multilateral Memorandum on Enforcement of Commercial Judgments for Money. The Memorandum is the product of contributions from more than 30 jurisdictions across six continents, outlining the procedures necessary for the enforcement of monetary judgments of one jurisdiction in the courts of another. The SIFoCC was formed in 2017 to facilitate collaboration and the sharing of best practice, and the first edition of the Memorandum was published in June 2019. A group of judges from across the SIFoCC will now start work on a commentary, which is due to be published this year. Read more.
UNCTAD release International Investment Agreements reform accelerator The United Nations Conference on Trade and Development has released its new International Investment Agreements (IIA) reform accelerator. The Accelerator aims to expedite the modernization of the around 2,500 old-generation IIAs that are currently in force by focusing on eight IIA provisions that are most in need of reform. For each provision, the Accelerator identifies sustainable development-oriented policy options and proposes ready-to-use model language that implements these options, alongside illustrations of how these options have been used in recent IIAs and model BITs. In doing so, it provides a tool for coordination, focused discussion and consensus-building on joint reform between multiple countries. It can be used for joint interpretation, amendment or replacement of old treaty provisions. Read more.
UNCITRAL Working Group III issues report on 39th session UNCITRAL's Working Group III, which is considering reform of investor-state dispute settlement, has released its report on the 39th session, which was held in Vienna in October last year. The working group focused on possible reform of dispute prevention, mitigation and mediation; treaty interpretation by Statef parties; security for costs and frivolous claims; multiple proceedings and counterclaims; and a multilateral instrument on ISDS reform. An agreed work and resourcing plan will be presented for approval at the next session, and if accepted, will be presented to UNCITRAL as the working group’s plan. The working group also released the latest draft of its working papers on the "Selection and Appointment of ISDS tribunal members" and "Appellate mechanism and enforcement issues." The working group is due to meet again in Vienna in February. Read more.