Global International Arbitration Update - July 2016 Issue 003

Global International Arbitration Update Firm Updates MAYER BROWN JSM PARTNERS WITH JINGTIAN & GONGCHENG Mayer Brown JSM’s Hong Kong office has formed an association with Jingtian & Gongcheng, one of the first private and independent partnership law firms in China. Jingtian & Gongcheng is headquartered in Beijing, with offices in Shanghai, Shenzhen, Chengdu and Hong Kong. The association strengthens Mayer Brown’s International Arbitration Practice with the addition of notable arbitration practitioners Yang Zhao, Hongjiu Zhang, Xuejun Peng, Sanqiao Xu, Chungang Dong and Hu Ke. MAYER BROWN OPENS OFFICE IN DUBAI Mayer Brown has opened its office in Dubai, United Arab Emirates (UAE). The office serves as a hub for the Firm’s growing Middle East practice, strengthening our ability to provide counsel to multinational and local clients in a number of key areas, including corporate and commercial matters, disputes and international arbitration, major projects, finance transactions, construction, employment and compliance matters. Tahan (Tom) Thraya, leader of Mayer Brown’s Middle East corporate and commercial team, will serve as partner-in-charge of the Dubai office, located on the 11th Floor, Unit 1104 of the Index Tower in the Dubai International Financial Center. A fluent Arabic speaker, Tom has worked in the Middle East for nearly a decade and has particular experience in the UAE, Saudi Arabia, Qatar and Iraq. Charles Hallab will chair the Middle East practice and Raid Abu-Manneh and Dany Khayat will continue to lead the firm’s Dispute and International Arbitration practice in the region. With fluency and facility with the laws, practices, norms and trends of the Middle East, the Mayer Brown team in Dubai will work closely with colleagues in a wide range of practices across the firm’s extensive global platform to meet client needs. Brexit WILL LONDON’S POSITION AS A LEADING ARBITRATION CENTRE BE IMPACTED? The vote to leave the European Union in the UK referendum held on 23 June 2016 is widely considered as unlikely to impact London’s popularity as a seat of arbitration. London has gained its leading position due to the fact that English law and the Arbitration Act 1996 are established and respected globally, English courts are seen to be arbitration-friendly and the UK is a party to the New York Convention. None of these will change when Britain’s exit from the EU is negotiated. London-seated arbitration is likely to remain a preferred option for parties seeking a tried and tested dispute resolution framework, which is supported by a wealth of experienced practitioners based in London’s international arbitration community. July 2016 Issue 003 TABLE OF CONTENTS • Firm Updates .................................................................. p. 1 • Brexit................................................................................ p. 1 • Legal Updates ................................................................. p. 2 • Case Law.......................................................................... p. 4 • Mayer Brown Key Events .............................................. p. 7 • Mayer Brown Publications............................................ p. 7 2 Global International Arbitration Update Legal Updates ACICA REVISED RULES ENTER INTO FORCE 1 January 2016: The Arbitration Rules and Expedited Arbitration Rules of the Australian Centre for International Commercial Arbitration (ACICA) entered into force. The revised rules are aimed at providing quick, cost effective and fair arbitration proceedings, and include provisions relating to multi-party disputes, the conduct of legal representatives and the introduction of an expedited procedure for lower value or urgent matters. ICC POLICIES IMPLEMENTED TO BOOST TRANSPARENCY AND EFFICIENCY 1 January 2016: the ICC will now publish the names and nationalities of arbitrators sitting in all new ICC cases on its website, including details of who made the appointments and which arbitrator is the chairperson. Parties may opt out or request that further information also be published. The ICC has also imposed costs consequences on arbitrators for unjustified delays in submitting draft awards. Unless the ICC Court agrees that a delay is justified, it may lower arbitrators’ fees by: • 5-10% for draft awards submitted up to seven months from the last substantive hearing or written submissions; • 10-20% for draft awards submitted up to 10 months; and • 20% or more for draft awards submitted beyond 10 months. ICSID REPORTS ITS CASELOAD STATISTICS FOR 2015 27 January 2016: The International Centre for the Settlement of Investment Disputes (ICSID) reported that it registered 52 new cases in 2015, representing a 36.8% increase on 2014. Electric and energy disputes represented 42% of 2015 cases, with oil, gas and mining cases accounting for 19%. Bilateral Investment Treaties were relied upon in 46% of cases, with another 33% of cases being convened under the Energy Charter Treaty. For the first time since ICSID began publishing its statistics in 2010, Western European countries had the largest share of claims brought against them at 37%, followed by 23% against Eastern European and Central Asian states. 50% of appointed arbitrators, conciliators and ad hoc committee members came from Western Europe and 19% were from North America. ICC COURT OFFERS GUIDANCE TO ARBITRATORS ON CONFLICT DISCLOSURE 12 February 2016: The ICC has unanimously approved new guidance for arbitrators on arbitrator disclosure of conflicts, which has been incorporated into the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration. The Note sets out situations in which an arbitrator’s independence or impartiality may be compromised, in order for arbitrators to consider when a disclosure may be required. The fact that a disclosure is made does not necessarily imply the existence of a conflict. If a party challenges an arbitrator’s position, it will be for the ICC to assess whether there is a cause for disqualification. HKIAC LAUNCHES NEW PANEL OF ARBITRATORS FOR INTELLECTUAL PROPERTY DISPUTES 14 March 2016: The Hong Kong International Arbitration Centre (HKIAC) has launched a panel of Intellectual Property arbitrators, which includes Gabriela Kennedy, partner in Mayer Brown’s Intellectual Property Practice in Hong Kong and head of Mayer Brown JSM’s Asia IP and TMT group. The launch of the panel coincides with the Hong Kong Government’s proposal to amend the Hong Kong Arbitration Ordinance (Cap. 609), to clarify that disputes over the subsistence, scope, validity, ownership, infringement or any other aspect of an IP right can be submitted to arbitration in Hong Kong. Currently, the Arbitration Ordinance provides that enforcement of an award may be refused if it would be contrary to public policy or is in respect of a matter not capable of settlement by arbitration under the law of Hong Kong. LCIA SETS NEW CASELOAD RECORD IN 2015 12 April 2016: The London Court of International Arbitration (LCIA) published its 2015 Registrar’s report. The LCIA received 332 referrals in 2015, representing a 10% increase from 2014 and a new record level for the LCIA. 12.1% of the caseload comprised claims worth over US$50 million, and 6.4% of the caseload involved claims worth US$20-50 million. The top three users of the LCIA were the UK, Russia and Cyprus. In terms of appointments, the LCIA made 449 appointments of 227 different arbitrators, of which 71 appointments (15.8%) were of female arbitrators: 55 selected by the LCIA, 14 by the parties and 2 by the parties’ nominees. When compared to 2014, this represents an increase in the number of female candidates put forward by the parties or selected by the LCIA, but a decrease in the number of female candidates selected by nominees. mayer brown 3 DIS TO REVISE ITS ARBITRATION RULES 26 April 2016: The German Institution of Arbitration (DIS) announced the launch of the revision process for its arbitration rules which have been in force since 1998 in order to meet changes in arbitral practice. The new rules are intended to be suitable for the needs of domestic and international users and are aimed at enhancing the efficiency of arbitration. Furthermore, they will provide users with arbitration proceedings that are non-bureaucratic, flexible and open to party autonomy. It is envisaged that the new rules will take effect in the second half of 2017. All members of the DIS will have the opportunity to submit their suggestions for amendments and to participate in the rules revision expert committee. ICCA MAURITIUS 2016 IS THE FIRST ICCA CONGRESS HOSTED IN AFRICA 11 May 2016: ICCA Mauritius 2016 drew to a close after three days of debate. The 23rd ICCA Congress was the first to be held in Africa in the organisation’s 50-year history, and was attended by around 800 delegates, approximately one third of whom came from Africa. The event recognised the important role played by international arbitration across Africa. One of the main themes for discussion was international arbitration’s contribution to, and conformity with, the rule of law. In addition, the host committee demonstrated Mauritius’s development as a seat of arbitration during recent years, including its new arbitration law and the establishment of a new arbitral institution with the support of the LCIA. SICC ISSUES ITS FIRST DECISION 12 May 2016: The newly created Singapore International Commercial Court (SICC) issued its first decision since it launched in January 2015 as a “companion” to arbitration in Singapore. A threejudge panel ruled in a case concerning various breaches of a joint venture agreement between parties in Australia and Indonesia to produce and sell coal from eastern Indonesia using patented “binderless coal briquetting” technology, through which pollutants and moisture are removed from coal. EQUAL REPRESENTATION IN ARBITRATION PLEDGE IS LAUNCHED 18 May 2016: the Equal Representation in Arbitration (ERA) Pledge launched in London. Law firms, corporations, arbitral institutions and government bodies involved in the practice of international arbitration have been asked to sign the Pledge as a sign of commitment to improving the number of women appointed as arbitrators on an equal opportunity basis. Signatories are encouraged to take steps to ensure that lists of potential arbitrators, committees, governing bodies and conference panels include a fair proportion of women, with the ultimate goal of full gender equality within the international arbitration community. DIAC TO OPEN BRANCH IN THE DUBAI INTERNATIONAL FINANCIAL CENTRE TO PROMOTE ENFORCEMENT 24 May 2016: The Dubai Chamber of Commerce announced that the Dubai International Arbitration Centre (DIAC) has obtained preliminary approval to open an office in the offshore Dubai International Financial Centre (DIFC). Previously, parties only had the option of enforcing an arbitral award in the Dubai courts. The opening of a DIAC office in the DIFC will now give parties another enforcement option. The move strengthens the legal business environment and emphasises the importance of commercial arbitration in settling commercial disputes in Dubai. SIAC LAUNCHES INNOVATIVE NEW ARBITRATION RULES 1 June 2016: The Singapore International Arbitration Centre’s (SIAC) new arbitration rules took effect, aiming to combine the best features of commercial arbitration and specialist investment arbitration rules and provide an alternative set of procedural rules for the administration of investor-state disputes at SIAC. The rules include provisions addressing topical issues such as inefficiency, confidentiality, emergency arbitrators, early dismissal of unmeritorious claims, submissions from non-disputing parties and the disclosure of third party funding arrangements. KCAB REVISES RULES TO INCREASE ARBITRATION EFFICIENCY 1 June 2016: The Korean Commercial Arbitration Board (KCAB) revised rules entered into force in response to user demand. The new rules include features aimed at increasing efficiency and reducing the duration of proceedings, and allow for the joinder of parties, consolidation of claims, appointment of emergency arbitrators and the screening of arbitrators by KCAB before they are appointed. These features reflect recent trends and modern practices in international arbitration. 4 Global International Arbitration Update Case Law EQUATORIAL GUINEA WINS ITS FIRST ICSID CLAIM 4 December 2015: In Grupo Francisco Hernando Contreras, S.L. v Republic of Equatorial Guinea (ICSID Case No. ARB(AF)/12/2), Equatorial Guinea successfully defeated the claims brought against it in its first ICSID arbitration: a Spanish language ICSID Additional Facility arbitration brought under the Spain-Equatorial Guinea 2004 Bilateral Investment Treaty. The majority of the tribunal agreed with the State that Grupo Francisco Hernando Contreras, a Spanish construction group, had not proved the existence of binding contracts and therefore, under the law of Equatorial Guinea, their agreements did not qualify as an “investment”. The arbitrator nominated by the claimant issued a dissenting opinion, finding that there was “manifest common intention to contract”. FRENCH COUR DE CASSATION UPHOLDS UNENFORCEABILITY OF ALVAREZ DECISION DUE TO CONFLICTS OF INTEREST 16 December 2015: In SA Auto Guadeloupe Investissements (AIG) v Columbus Acquisitions Inc et al, the French Supreme Court upheld a Paris Court of Appeal ruling that a partial award in favour of Columbus Acquisitions Inc (the claimant) was unenforceable. The court concluded that the award was invalid because the sole arbitrator, Henri Alvarez, had failed to disclose that lawyers at his firm were assisting the defendant’s parent company in a major acquisition. The court held that the circumstances created reasonable doubt regarding the independence and impartiality of Alvarez in the eyes of AIG, satisfying the subjective test that applies in French law and rendering the tribunal irregularly constituted. This ruling emphasizes the importance of the principle of independence of arbitrators. ENGLISH HIGH COURT FINDS IT IS NOT CONTRARY TO PUBLIC POLICY TO ENFORCE A NEW YORK CONVENTION AWARD WHICH INCLUDES A PENALTY 19 January 2016: In Pencil Hill Ltd v US Città Di Palermo SpA (Case No. BA40MA109), the defendant owned an Italian football club and contracted to pay the claimant instalments for the acquisition of a particular player. Under the contract, failure to pay any of the instalments would result in all remaining amounts becoming due, with an additional penalty of double the outstanding sum. When the defendant failed to make payment, the claimant referred the dispute to the Court of Arbitration for Sport. The tribunal made an award in which it ordered payment of a reduced penalty, which was upheld by the Swiss Supreme Court. In proceedings for enforcement of the award in England, the court held that the policy in favour of enforcing international arbitration awards outweighed the English public policy of refusing to enforce penalty clauses. Provided that the contract in question did not offend Swiss law, the fact that English law might take a different view of it did not mean that the English court should refuse to enforce an award arising out of that contract. The decision demonstrates the pro-enforcement inclination of the English courts. ENGLISH COMMERCIAL COURT REMOVES ARBITRATOR DUE TO APPARENT BIAS 17 February 2016: In Cofely Limited v Anthony Bingham and Knowles Limited [2016] EWHC 240 (Comm), the English Commercial Court granted an application to remove an arbitrator under section 24(1)(a) of the English Arbitration Act 1996. The arbitrator, Anthony Bingham, was nominated by claims consultants Knowles Limited, the defendant in the case. The nomination was accepted by the CIArb. The claimant, Cofely Limited, requested information regarding their relationship and discovered that Bingham had been appointed as arbitrator or adjudicator in cases involving Knowles Limited 25 times in the past three years, and had derived 25% of his income as arbitrator/adjudicator over the past three years from those cases. However, Bingham had not disclosed any of that information on his ‘acceptance of nomination’ form when he was appointed. The claimant applied to the court for removal of the arbitrator, on the basis that circumstances existed which gave rise to justifiable doubts as to his impartiality. The court held that there was sufficient apparent bias to satisfy section 24 of the Arbitration Act 1996, as the arbitrator had failed to disclose the history of his relationship with the defendant and had responded to the claimant’s reasonable and appropriate enquiries in an “aggressive” way. It is of particular interest that the court took the latter factor into account when making their finding of apparent bias. mayer brown 5 UK HIGH COURT OVERTURNS ARBITRAL AWARD ON POINT OF LAW 23 February 2016: In Glory Wealth Shipping PTE Limited v Flame SA [2016] EWHC 293 (Comm), Glory Wealth successfully appealed an arbitral tribunal’s award on a point of law under section 69 of the English Arbitration Act 1996. This case is a rare example of a successful appeal on this ground, as the LCIA and ICC rules exclude the right to appeal and thereby prevent parties whose disputes are being heard by those institutions from attempting to do so. It demonstrates the English courts’ willingness to uphold appeals where they are persuaded that the tribunal has erred in law. Those in favour of retaining the right to appeal on a point of law will view this judgment, as well as the similar 11 May 2016 judgment in NYK Bulkship (Atlantic) NV v Cargill International SA [2016] UKSC 20, as illustrations as to why such right provides a valuable safeguard, while others will place a higher value on arbitration as a “one-stop” forum whose advantages outweigh the risk of not being able to correct errors of law. SWISS SUPREME COURT DECIDES THE CONSEQUENCE OF FAILURE TO COMPLY WITH OBLIGATORY PRE-ARBITRAL TIER 16 March 2016: In decision 4A_628/2015, the Swiss Supreme Court overturned an arbitral tribunal’s award, clarifying for the first time that failure to comply with a mandatory pre-arbitral tier leads to the stay of the arbitration proceedings until the prearbitral tier has been completed. The court also held that the tribunal should decide the time frame in which, should the dispute remain unresolved, the arbitration process will resume. This approach contrasts with that adopted in other jurisdictions. Commercial contracts sometimes contain multi-tier arbitration clauses, which may include a binding obligation to comply with pre-arbitral steps such as negotiation, mediation or adjudication before commencing arbitration, in order to reduce costs. These types of clauses are treated in different ways in different jurisdictions. DUBAI COURT OF APPEAL QUESTIONS UK MEMBERSHIP OF THE NEW YORK CONVENTION 30 March 2016: In Fluor Transworld Services v Petrixo Oil & Gas, the Dubai Court of Appeal refused to enforce an ICC London-seated arbitration award. The court controversially claimed there was a lack of sufficient evidence that the UK has signed and ratified the 1958 New York Convention, despite the fact that the UK is clearly listed on the New York Convention website as having done so on 24 September 1975. The Dubai Court of Appeal invoked Articles 235 and 236 of the UAE Civil Transactions Code, according to which foreign awards without an international enforcement instrument must originate from countries whose courts enforce awards originating in the UAE. As there has been no English court precedent for enforcing a UAE award, the court declined enforcement on the basis of lack of reciprocity. It did so despite neither party having raised this as a ground for refusal to enforce the award, and the fact that the UAE signed up to the New York Convention in 2006 without entering into a ‘reciprocity reservation’. The case demonstrates that the enforcement of foreign arbitral awards in the UAE courts remains unpredictable. However, the case has been appealed to the Dubai Court of Cassation, which has a history of confirming that the UAE should be an ‘arbitration friendly’ jurisdiction when it comes to the enforcement of foreign awards. UNITED STATES DISTRICT COURT ENFORCES SUBPOENAS TO AID ENFORCEMENT OF AWARD ON FOREIGN NATIONAL 13 April 2016: In Probulk Carriers Limited v. Marvel International Management and Transportation (Case No. 14-cv-8338), the United States District Court for the Southern District of New York (the “District Court”) enforced two subpoenas to aid enforcement of an arbitration award that had been served on a foreign national temporarily present in the United States. The foreign national, a Turkish citizen, was the son of a principal of the losing party in the arbitration and had been served with the subpoenas while he was in Boston, Massachusetts for a film festival. One subpoena required his deposition; the second required him to produce documents. He moved to quash the subpoenas on grounds that they circumvented the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”). 6 Global International Arbitration Update The District Court rejected his arguments, reasoning that the Hague Convention was not the exclusive means for obtaining discovery from a foreign entity in the United States, nor was it the means of first resort. It also reasoned that the parties to the arbitration should have known that the prevailing party would likely seek to enforce the award in New York, because both were licensed to do business there. While rejecting the notion that sitting for a deposition was not burdensome in and of itself, it modified the subpoenas to permit the deposition and document production to occur in Istanbul, and not New York, “halfway across the world” from where the foreign national lived. US$50 BILLION YUKOS AWARD SET ASIDE BY HAGUE DISTRICT COURT 20 April 2016: In The Russian Federation v Veteran Petroleum Limited, Yukos Universal Limited and Hulley Enterprises Limited, the Hague District Court set aside the interim and final Energy Charter Treaty (ECT) awards issued by a PCA tribunal in favour of the former majority shareholders in Yukos against Russia worth over US$50 billion. The Hague District Court held that although Russia had signed the ECT, it had never ratified it, so its arbitration provision did not apply and the tribunal did not have jurisdiction to consider the dispute. The Yukos majority shareholders will appeal the decision and continue with enforcement proceedings already underway in jurisdictions other than the Netherlands, as Article V(1)(e) of the New York Convention grants enforcing courts discretion to enforce an award that has been annulled by the courts of the seat of the arbitration. Russia will seek the dismissal of those proceedings on the basis that the award has been set aside. PCA TRIBUNAL PUBLISHES AWARD ON JURISDICTION AND ADMISSIBILITY IN PHILIP MORRIS CASE 16 May 2016: The tribunal hearing the case of Philip Morris Asia Limited v The Commonwealth of Australia (UNCITRAL) (PCA Case No. 2012-12) published its redacted award on jurisdiction and admissibility. Philip Morris Asia Limited (“Philip Morris”) had claimed that the enactment and enforcement of Australia’s Tobacco Plain Packaging Act 2011 had deprived it of its intellectual property and infringed upon its investments. It had commenced arbitration under the 1993 Agreement between the Government of Hong Kong and the Government of Australia for the Promotion and Protection of Investments. In the award dated 17 December 2015, the tribunal at the Permanent Court of Arbitration (PCA) decided that the initiation of the arbitration constituted an abuse of rights, as the corporate restructuring by which Philip Morris had acquired Australian subsidiaries was carried out for the principal, if not sole, purpose of gaining treaty protection. Accordingly, its claims were inadmissible and the tribunal was precluded from exercising jurisdiction over the dispute. ENFORCEMENT OF ICC AWARD IN SAUDI ARABIA IS A POSITIVE DEVELOPMENT FOR ARBITRATION June 2016: Reports that a US$18.5 million ICC London-seated award will be enforced in the Kingdom of Saudi Arabia against a Saudi-domiciled award debtor represent a positive development for the enforcement of foreign arbitral awards in Saudi Arabia. The Kingdom implemented a new Arbitration Law in 2012, which overhauled the procedures for the appointment of arbitrators, the conduct of the arbitration proceedings and, significantly, implemented a regime for the enforcement of both domestic and foreign arbitral awards. An enforcement judge may enforce a foreign arbitral award only on the basis of principles of reciprocity and if the party seeking enforcement can satisfy a series of criteria. Saudi Arabia’s enforcement regime is still relatively new, and further instances of enforcement decisions will be needed to evidence its effectiveness. Furthermore, in light of the Kingdom’s policy to diversify its economy away from oil and its interest in attracting inbound foreign investment, this development is a welcome indication of a significantly improved landscape for resolving disputes through arbitration and enforcing any resultant award against Saudi-domiciled parties who have no identifiable assets outside of the Kingdom in a New York Convention State. mayer brown 7 Mayer Brown Key Events EUROPEAN LAW STUDENTS’ ASSOCIATION QUEEN MARY UNIVERSITY OF LONDON INTERNATIONAL ARBITRATION & COMMERCIAL LAW ACADEMY – 6 JULY 2016 – LONDON Rachael O’Grady, senior associate in Mayer Brown’s International Arbitration practice in London, will be speaking at the European Law Students’ Association International Arbitration & Commercial Law Academy at Queen Mary University of London on 6 July 2016. Rachael will be speaking about enforcement issues as part of the academic programme, which is running from 3 to 10 July 2016 and is being sponsored by Mayer Brown. HONG KONG INSTITUTE OF ARBITRATORS ASSOCIATES ENTRY COURSE AT THE HONG KONG INTERNATIONAL ARBITRATION CENTRE – 15-16 JULY 2016 – HONG KONG Bill Amos, partner in Mayer Brown’s International Arbitration practice in Hong Kong, will be speaking at the Hong Kong Institute of Arbitrators Associates entry course at the Hong Kong International Arbitration Centre on 15 & 16 July 2016. The course will offer suitably qualified professionals a 2-day course leading to entry to the Institute as an Associate, and will cover subjects including arbitration clauses, applicable law, constitution of the tribunal, powers of the arbitrators as well as content and enforcement of awards. ICC YAF EUROPE REGIONAL CONFERENCE 2016 – 15-16 JULY 2016 – ATHENS Rachael O’Grady, senior associate in Mayer Brown’s International Arbitration practice in London, will be speaking at the ICC Young Arbitrators Forum (YAF) 3rd Europe Chapter Regional Conference in Athens, Greece on 16 July 2016. Rachael will take part in a debate entitled “The future of international arbitration is as clear as the Paris and London skies” and will be opposing the motion. INTERNATIONAL ARBITRATION WEBINAR SERIES – 11 AUGUST 2016 Mayer Brown’s International Arbitration practice will be hosting its fifth webinar on 11 August 2016. Gustavo Fernandes de Andrade, partner in Mayer Brown’s International Arbitration practice in Rio de Janeiro, and Allison Stowell, senior associate in Mayer Brown’s International Arbitration practice in New York, will be discussing topics regarding international arbitration and Brazil. INTERNATIONAL ARBITRATION WEBINAR SERIES – 3 NOVEMBER 2016 Mayer Brown’s International Arbitration practice will be hosting its sixth webinar on 3 November 2016. Dany Khayat, partner in Mayer Brown’s International Arbitration Practice in Paris and Rachael O’Grady, senior associate in Mayer Brown’s International Arbitration Practice in London will be discussing treaty arbitrations. 14TH ICC MIAMI CONFERENCE ON INTERNATIONAL ARBITRATION – 13-15 NOVEMBER 2016 Mayer Brown will be sponsoring the ICC’s annual Miami conference on international commercial arbitration in Latin America, taking place from 13-15 November 2016. The conference aims to provide an update on developments in international arbitration in the region, and will include advanced training on oral advocacy. It is expected that 550 participants from 40 countries will attend. Mayer Brown Publications ARBITRATION IN AFRICA 14 January 2016: Arbitration in Africa by Jonathan Hosie, partner in Mayer Brown’s International Arbitration practice in London, was published in Mining Journal. The article discusses the economic and geo-political climate affecting mining projects in Africa, as well as the use of international arbitration to resolve mining disputes. To read the full article, click here. COUNTRY REFERENCE GUIDE FOR INTERNATIONAL ARBITRATION IN SUB-SAHARAN AFRICA February 2016: Mayer Brown’s International Arbitration Group has updated its Country by Country Reference Guide to International Arbitration in Sub-Saharan Africa for 2016. Covering 49 countries, this Guide covers the key facts, considerations and risks in relation to arbitration in the region. The guide is designed to provide a useful point of reference for international parties contracting in the region, and answers the following questions: • What are the latest developments, issues and trends with regard to arbitration in Sub-Saharan Africa? • What are the local arbitral laws and institutions in each country, and how can they assist international contracting parties? • When and where can international conventions such as the New York Convention and the ICSID Convention provide assistance? 8 Global International Arbitration Update To register for your free copy of Mayer Brown’s Guide to International Arbitration in Sub-Saharan Africa please click here. To view the Chinese language version, which was launched on 1 March 2016 at the Africa Investment & Dispute Resolution Seminar co-hosted by Mayer Brown and Jingtian & Gongcheng in Beijing, click here. LEGAL UPDATE ON NEW MYANMAR ARBITRATION LAW 16 February 2016: Mayer Brown JSM has published a Legal Update on the topic of Myanmar’s new arbitration law. Up until very recently, the legislation that governed arbitrations in Myanmar was the antiquated Arbitration Act 1944. The 1944 Act mirrored India’s Arbitration Act 1940 and was generally regarded as outdated and defunct. As such, reform of Myanmar’s arbitration regime was urgently required. In the last few years, as the country has become more accessible to foreign investors with the implementation of political and market reforms, Myanmar has seen a number of changes which will dramatically impact the conduct of arbitrations in the country. It will also affect how arbitral awards can be enforced, recently culminating in the enactment and coming into force of Myanmar’s Arbitration Law (Union Law 5/2016) on 5 January 2016. To read the full article, click here. CONSTRUCTION ARBITRATOR RESIGNS FOLLOWING COURT RULING 23 February 2016: Raid Abu-Manneh, partner in Mayer Brown’s London office and global co-head of Mayer Brown’s International Arbitration Group, was quoted in Construction Arbitrator Resigns Following Court Ruling in Global Arbitration Review, discussing the importance for arbitrators to disclose previous appointments and the courts’ application of the IBA guidelines when considering conflicts in light of the judgment in the case of Cofely Limited v Anthony Bingham and Knowles Limited [2016] EWHC 240 (Comm). To read the full article, click here (subscription required). SPACE MINING RACE HEATS UP, BUT WHOSE ASTEROID IS IT ANYWAY? 26 February 2016: Rachael O’Grady, senior associate in Mayer Brown’s International Arbitration practice in London, is quoted in Reuters article Space Mining Race Heats up, but Whose Asteroid is it Anyway? discussing the lack of legal framework for private operators to mine asteroids. A similar article entitled Whose Asteroid Is it Anyway? also appeared in Fortune on 26 February 2016. To read the full article, click here. 10 THINGS YOU SHOULD KNOW ABOUT ARBITRATION 7 March 2016: 10 Things You Should Know About Arbitration, an article by Raid Abu-Manneh, partner in Mayer Brown’s London office and global co-head of Mayer Brown’s International Arbitration Group, and Mark McMahon, associate in Mayer Brown’s International Arbitration practice in London, was published in Construction News. The article addresses some of the key questions parties may have when considering whether to resolve their dispute through international arbitration. To read the full article, click here. MAYER BROWN RECOGNIZED AS AN ARBITRATION LEADER IN GLOBAL ARBITRATION REVIEW’S GAR 100 GUIDE 10 March 2016: Mayer Brown has once again been recognized in the 2016 edition of Global Arbitration Review’s GAR 100, a guide to the world’s leading international arbitration firms. The publication highlighted some of Mayer Brown’s accomplishments in 2015: • Advising the Panama Canal Authority on multiple disputes that have arisen between the Authority and the European-led construction consortium, ranging from pre-arbitral, contract-based adjudication board proceedings to significant arbitration matters before the ICC; • Acting on behalf of Kuwait’s Fouad Alghanim & Sons Group on a US$150 million ICSID telecoms claim against Jordan; and • The addition of B. Ted Howes (New York) to its practice, who leads the International Arbitration group in the US and serves as a member of the firm’s global leadership team for International Arbitration. WORK REMAINS IN ELEVATING DUBAI’S INTERNATIONAL ARBITRATION STATUS 25 March 2016: Raid Abu-Manneh, partner in Mayer Brown’s London office and global co-head of Mayer Brown’s International Arbitration Group, is quoted extensively in Work Remains In Elevating Dubai’s Int’l Arbitration Status in Law360, discussing the changing perceptions regarding international arbitration in the Middle East, as well as the rise of the Middle East as a global economic player. To read the full article, click here. mayer brown 9 WHY ASTEROID MINING IS THE FUTURE – AND A LEGAL MINEFIELD 31 March 2016: Why Asteroid Mining Is The Future – And A Legal Minefield, an article by Ian Coles, partner in Mayer Brown’s Finance practice in London, and Rachael O’Grady, senior associate in Mayer Brown’s International Arbitration practice in London, was published in The Times Law. The article discusses the lack of clarity in international law regarding the substantive rights of states and their nationals to mine asteroids, as well as the need for international law to be updated to keep up with modern advances and technologies. To read the full article, click here. ARBITRATOR IMPARTIALITY – THE IMPORTANCE OF FULL DISCLOSURE 31 March 2016: Arbitrator Impartiality – The Importance Of Full Disclosure, an article by Raid Abu-Manneh, partner in Mayer Brown’s London office and global co-head of Mayer Brown’s International Arbitration Group, and Wisam Sirhan, senior associate in Mayer Brown’s International Arbitration practice in London, was published in Construction News discussing the importance of arbitrator impartiality. To read the full article, click here (subscription required). THE CONSOLIDATION DILEMMA: IS THERE FINALLY A PRAGMATIC SOLUTION? April 2016: B. Ted Howes, partner in Mayer Brown’s New York office and head of Mayer Brown’s International Arbitration Practice in the United States, and Allison Stowell, senior associate in Mayer Brown’s International Arbitration practice in New York, published an article in the IBA Dispute Resolution International journal. The article discusses the inefficacy of the current regime of international arbitration rules for the consolidation of multi-contract transactional disputes, and the trend that contrary to the consolidation requirements of the leading rules, few respondents consent to consolidation after a dispute arises and fewer multi-contract transactions fall into the neat pattern of the “same parties” signing each contract. The article proposes that a solution to the consolidation dilemma be considered by the major arbitral institutions, as disputes that should naturally be unified before a single arbitration panel are currently being divided, at great cost to the parties and to the efficacy and reputation of the system. To read the full article, click here (subscription required). WING BO RULING BOLSTERS HONG KONG’S ARBITRATION PRESTIGE 1 April 2016: Menachem Hasofer, partner in Mayer Brown JSM’s Hong Kong office and global co-head of Mayer Brown’s International Arbitration Group, is quoted in Wing Bo Ruling Bolsters Hong Kong’s Arbitration Prestige in Law360, discussing the Hong Kong courts’ pro-arbitration approach. To read the full article, click here. HKIAC HOPING TO CASH IN ON INCREASED IP ARBITRATION 8 April 2016: In HKIAC Hoping To Cash In On Increased IP Arbitration in Law360, B. Ted Howes, partner in Mayer Brown’s New York office and head of Mayer Brown’s International Arbitration Practice in the United States, is quoted discussing the rising awareness of the importance of international arbitration in patents transactions. To read the full article, click here. 3 ADVANTAGES OF ARBITRATING IP DISPUTES 11 April 2016: B. Ted Howes, partner in Mayer Brown’s New York office and head of Mayer Brown’s International Arbitration Practice in the United States, is quoted in 3 Advantages Of Arbitrating IP Disputes in Law360, discussing some of the advantages that arbitration offers over litigation. To read the full article, click here. GEMALTO TELLS TEXAS JUDGE RETAILERS OWE $46M ARBITRAL AWARD 14 April 2016: Carmine Zarlenga, partner in Mayer Brown’s Litigation & Dispute Resolution Practice in Washington DC, is quoted extensively in Gemalto Tells Texas Judge Retailers Owe $46m Arbitral Award in Law360, discussing the Merchant Customer Exchange LLC v. Gemalto Inc. arbitration in which Mayer Brown secured a US$42.8 million award for Gemalto. To read the full article, click here. US STORES MUST PAY FOR PHONE PAYMENT TECHNOLOGY, RULES ALL-TEXAN TRIBUNAL 15 April 2016: In US Stores Must Pay for Phone Payment Technology, Rules All-Texan Tribunal, Carmine Zarlenga, partner in Mayer Brown’s Litigation & Dispute Resolution Practice in Washington DC, is quoted discussing an American Arbitration Association tribunal’s order to a US consortium of retailers to pay over US$45 million to a Dutch digital security company in a dispute over technology to enable payment using smart phones. To read the full article, click here (subscription required). 10 Global International Arbitration Update SUPREME PEOPLE’S COURT GUIDING CASE NO. 37 EXTENDS TIME LIMIT FOR BRINGING ENFORCEMENT ACTION ON A FOREIGN-RELATED ARBITRATION AWARD IN MAINLAND CHINA 19 April 2016: Mayer Brown JSM has published a Legal Update regarding the extension of the period for applying for enforcement of an award to two years in mainland China, pursuant to Article 239 of the PRC Civil Procedure Law (2012 Amendment). The period shall start from the last day of the performance period specified in a legal instrument, or the effective date of a legal instrument if it does not specify a period of performance. However, following guiding case no. 37 between Shanghai Jwell Machinery Co., Ltd and Retech Aktiengesellschaft from Switzerland, the court takes the view that this time-bar provision is subject to the general principle that Chinese courts do not have the power to execute a foreign-related award unless the person subject to enforcement of the award, or the property of that person, is in mainland China at the material time. To read the full article, click here. PCA’S MIDDLE EAST OUTREACH UNDERSCORES GROWING IMPORTANCE 26 April 2016: Dany Khayat, partner in Mayer Brown’s International Arbitration Practice in Paris, is quoted extensively in PCA’s Middle East Outreach Underscores Growing Importance in Law360, discussing the rise in investors’ awareness of treaties across the Middle East region in recent years. To read the full article, click here. DRAFT BILL REFLECTS SOUTH AFRICA’S MIXED VIEWS ON ARBITRATION 10 May 2016: Kwadwo Sarkodie, partner in Mayer Brown’s International Arbitration Practice in London, is quoted in Draft Bill Reflects S. Africa’s Mixed Views On Arbitration in Law360, discussing South Africa’s draft international arbitration bill set to replace South Africa’s Arbitration Act 42 of 1965, which does not expressly deal with international arbitration and is not based on the UNCITRAL model law. To read the full article, click here. ICC STATS FOR 2015 PROVOKE STRONG RESPONSE 13 May 2016: Mark Stefanini, partner in Mayer Brown’s International Arbitration Practice in London, was quoted in ICC Stats For 2015 Provoke Strong Response in Global Arbitration Review, discussing the ICC’s position as a “formidable competitor” to other institutions and the fact that competition between arbitral institutions and courts for cases will increase the quality of service provided by all institutions and ultimately improve the attraction of London as a dispute resolution centre. To read the full article, click here (subscription required). UNILATERAL JURISDICTION CLAUSES: ONE WAY OR NO WAY? 20 May 2016: Unilateral Jurisdiction Clauses: One Way Or No Way?, an article by Mark Stefanini, partner, and Stephen Moi, senior associate, both in Mayer Brown’s International Arbitration Practice in London, was published in International Financial Law Review. The article compares the current legal position in six dispute resolution centres regarding so-called unilateral jurisdiction clauses, and discusses why they are, and should be, enforceable as a matter of principle and policy. To read the full article, click here (subscription required). ROAD TO MOROCCO 20 May 2016: Raid Abu-Manneh, partner in Mayer Brown’s London office and global co-head of Mayer Brown’s International Arbitration Group, and Dany Khayat, head of Mayer Brown’s International Arbitration practice in Paris, published an article in Building discussing Morocco’s potential as a gateway to Africa for UK construction companies. To read the full article, click here (subscription required). 5 TIPS FOR ASPIRING INTERNATIONAL ARBITRATION ATTORNEYS 23 May 2016: Raid Abu-Manneh, partner in Mayer Brown’s London office and global co-head of Mayer Brown’s International Arbitration Group, is quoted extensively in 5 Tips For Aspiring International Arbitration Attorneys in Law360, discussing the importance for young lawyers interested in the field of international arbitration to make connections and participate in events in the community in order to build their network and profile among peers and seniors. To read the full article, click here. mayer brown 11 NEW SAUDI ARBITRATION REGIME DIVERTS FROM CHECKERED PAST 16 June 2016: Raid Abu-Manneh, partner in Mayer Brown’s London office and global co-head of Mayer Brown’s International Arbitration Group, is quoted extensively in New Saudi Arbitration Regime Diverts From Checkered Past in Law360 discussing the significance of the decision by a Saudi Arabian court to enforce an $18.5 million international arbitration award. To read the full article, click here. IS ARBITRATION DAMAGING THE COMMON LAW? 22 June 2016: Raid Abu-Manneh, partner and global co-head of Mayer Brown’s International Arbitration Group, Mark Stefanini, partner, and Jeremy Holden, associate, all in Mayer Brown’s International Arbitration Practice in London, published an article in International Arbitration Law Review. The article addresses the challenges facing the English courts and arbitral institutions in the coming years in light of recent criticisms, as well as proposed solutions to these challenges. To request a copy of the full article, please email [email protected] RULES CHANGES IN INTERNATIONAL ARBITRATION: KEY LESSONS FOR PRACTITIONERS 24 May 2016: James Ferguson, partner, and Sarah Reynolds, associate, both in Mayer Brown’s International Arbitration practice in Chicago, have published a recording and presentation slides from the webinar they hosted with Steven Andersen, Vice President of the International Centre for Dispute Resolution, on the topic of Rules Changes In International Arbitration: Key Lessons For Practitioners. During the webinar, the speakers analyzed the recent rules changes and discussed how they can be used in drafting more effective dispute resolution clauses and in preparing cases for hearings in international arbitral forums. To view the webinar recording, click here. COUNTRY REFERENCE GUIDE FOR INTERNATIONAL ARBITRATION IN LATIN AMERICA June 2016: Mayer Brown’s International Arbitration Group has published its Country by Country Reference Guide to International Arbitration in Latin America. The Chinese language version was launched on 2 March 2016 at the Latin America Investment & Dispute Resolution Seminar, co-hosted by Mayer Brown and Jingtian & Gongcheng in Shanghai. To view the guide in Chinese, click here. To request a copy of the forthcoming guide in English, please email [email protected] 4 TIPS FOR KEEPING THRIFTY ARBITRATION CLIENTS HAPPY 2 June 2016: B. Ted Howes, partner in Mayer Brown’s New York office and head of Mayer Brown’s International Arbitration Practice in the United States is quoted in 4 Tips For Keeping Thrifty Arbitration Clients Happy in Law360 discussing tips to ensure that arbitration clients are not left footing an unwanted and unanticipated bill. To read the full article, click here. 0499con Mayer Brown is a global legal services provider advising many of the world’s largest companies, including a significant portion of the Fortune 100, FTSE 100, CAC 40, DAX, Hang Seng and Nikkei index companies and more than half of the world’s largest banks. Our legal services include banking and finance; corporate and securities; litigation and dispute resolution; antitrust and competition; US Supreme Court and appellate matters; employment and benefits; environmental; financial services regulatory and enforcement; government and global trade; intellectual property; real estate; tax; restructuring, bankruptcy and insolvency; and wealth management. Please visit www.mayerbrown.com for comprehensive contact information for all Mayer Brown offices. This Mayer Brown publication provides information and comments on legal issues and developments of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein. Mayer Brown is a global legal services organization advising clients across the Americas, Asia, Europe and the Middle East. Our presence in the world’s leading markets enables us to offer clients access to local market knowledge combined with global reach. We are noted for our commitment to client service and our ability to assist clients with their most complex and demanding legal and business challenges worldwide. We serve many of the world’s largest companies, including a significant proportion of the Fortune 100, FTSE 100, CAC 40, DAX, Hang Seng and Nikkei index companies and more than half of the world’s largest banks. We provide legal services in areas such as: banking and finance; corporate and securities; litigation, arbitration, and other dispute resolution; antitrust and competition; US Supreme Court and appellate; employment and benefits; environmental; financial services regulatory and enforcement; government and global trade; intellectual property; real estate; tax; restructuring, bankruptcy and insolvency; and wealth management. “Mayer Brown” and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions. © 2016 The Mayer Brown Practices. All rights reserved. Contacts: Raid Abu-Manneh Global co-head of Mayer Brown’s International Arbitration Practice London +44 20 3130 3773 [email protected] Menachem M. Hasofer Global co-head of Mayer Brown’s International Arbitration Practice Hong Kong +852 2843 2384 [email protected] For more information about Mayer Brown’s International Arbitration practice, and for contact details of other team members, click here or please see: http://www.mayerbrown.com/experience/ International-Arbitration/?section=people Regional Contacts: UNITED STATES: B. Ted Howes +1 212 506 2279 [email protected] UNITED KINGDOM: Kwadwo Sarkodie +44 20 3130 3335 [email protected] Mark Stefanini +44 20 3130 3704 [email protected] FRANCE: Dany Khayat +33 1 53 53 36 31 [email protected] Alejandro López Ortiz +33 1 53 53 18 62 [email protected] GERMANY: Dr. Jan Kraayvanger +49 69 7941 2071 [email protected] HONG KONG: Thomas S.T. So +852 2843 4502 [email protected]