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England & Wales

Introduction

In this article, we update you on developments in the UK [1] since the last European Arbitration Review in October 2018. First, we discuss the mandatory subject of Brexit and its implications and non-implications for arbitration, before focusing on developments in case law and beyond.

Brexit – the uncertainty continues

One subject continues to dominate headlines: Brexit. More even than royal weddings and babies. Since the referendum result was announced on 24 June 2016, the United Kingdom and the European Union have lived in uncertainty as to their futures. Each year we have tried, as far as is possible, to chart the alternative paths for arbitration. And each year, we have gone to press thinking and hoping that a new announcement would resolve at least some of the uncertainty one way or the other and render the work put into our annual review hopelessly out of date. In fact, the uncertainty continues and almost all of what we wrote in 2017 and 2018 still stands. Brexit fatigue has set in. And we risk sounding like a stuck record.

Is Brexit irrelevant (to arbitration)?

A lot has happened. But no progress. Will the UK leave the EU on Halloween? With or without a deal? But are the answers to these questions actually relevant to arbitration in the UK? As we explained in more detail in previous European Arbitration Reviews, there is an argument that the attractions of the UK as an arbitral seat are independent of its membership of the EU – and so the UK will remain just as attractive as a seat when it is independent of the EU. English awards will remain equally enforceable and English courts will remain equally arbitration-friendly. In the words of Lord Justice Gross, ‘London arbitration ought to be wholly unaffected by Brexit’. [2]

But note that Lord Justice Gross said ‘ought’, not ‘will’. It remains to be seen whether the fact that the foundations of UK arbitration are in principle already independent of the EU will translate into practice. Disputes are (to a degree) countercyclical: people often fall out as times get hard. But, simply put, it is unrealistic to think that international disputes in the UK could rise indefinitely on a falling tide: if international business flows away from London, it will also draw away some international disputes.

Is arbitration a port in a storm?

Foreign arbitration awards are enforced in EU member states (and 133 other jurisdictions) pursuant to the New York Convention. By contrast, EU court judgments are enforced within the EU pursuant to EU law. Hence – so long as there is no agreement between the UK and the EU – the straightforward enforcement of UK court judgments within the EU (and vice versa) is at risk. You may think that risk is small. As Sir Geoffrey Vos, the Chancellor of the High Court, said, ‘It is generally in the interests of all nations to enter into reciprocal enforcement mechanisms’ and ‘it is to the advantage of both the EU and the UK for such an agreement to be reached, so I would not expect it to be long delayed’. [3]

In principle, why take an added enforcement risk when you can simply include an arbitration clause? But again, it is not clear how that has transferred into practice. There is very little data beyond subjective impressions. For instance, Thomson Reuters surveys in early and late 2018 showed an increase from 39 per cent to 78 per cent in those intending to review their dispute resolution clauses in light of Brexit. [4] The number of those who said they were not considering a new approach fell from 65 per cent, but was still 54 per cent. These surveys, however, had a relatively small number of respondents (94 and 23) and both predated Boris Johnson’s ‘do or die’ Brexit pledge. Only time will tell whether the threat of a no-deal Brexit, specifically a no mutual enforcement of judgments deal Brexit, has created or will create a stronger move towards arbitration and, if so, in which sectors.

Investor-state dispute settlement post-Brexit

The nature of the UK’s future relationship with the EU is not the only uncertainty. The UK’s post-Brexit relationship with the rest of the world largely remains to be agreed. As it stands, the UK has agreed 12 trade continuity agreements with non-EU countries that have an equivalent agreement with the EU and another with Korea agreed in principle. The EU, however, has around 30 more trade agreements that the UK has yet to replicate. And those that the UK has so far managed to agree have a tendency to be on the small side: Fiji and Papua New Guinea, Palestine, Liechtenstein and the Faroe Islands. They include only one of the UK’s top 10 trading partners (Switzerland) and do not include the UK’s biggest single trading partner, the US. [5] The remaining eight of the top 10 are all EU member states.

Also, crucially, trade continuity agreements only go as far in preserving the pre-Brexit status quo as is possible. They do not create a brave new world of substantially new relationships between the UK and the rest. Neither the (relatively new) government nor its predecessor have set out an approach to trade and investment agreements. Recently, the parliamentary cross-party International Trade Committee issued an alarmed rebuke – ‘the government was unable to set out even basic lines of policy on post-Brexit UK [International Investment Agreements]’ – and call to action – ‘the government should clarify where it stands on investment protection standards and dispute resolution mechanisms for investors’. [6] The MPs considered that investor-state dispute settlement (ISDS) had ‘proved hugely controversial’ and that the government should ‘evaluate specific alternatives to conventional ISDS provisions’.

The government has yet to respond. Again, only time will tell – does the government favour conventional arbitration, an EU-style investment court, a multilateral investment court or even no ISDS at all? It would, still, be safe to assume that any future UK investment treaties will not simply copy and paste ISDS provisions from before 2009 when the EU took over negotiating.

Intra-EU bilateral investment treaties post-Brexit

The Court of Justice of the European Union (CJEU) 2018 judgment in Achmea is somewhat like Brexit: largely unpredicted, a creator of uncertainty and never far from our thoughts since. [7] The decision of the EU’s highest court that ISDS provisions are unlawful in an intra-EU bilateral investment treaty (BIT) sent shock waves through the arbitral world. In the last European Arbitration Review, we suggested that Brexit might make the UK more attractive to investors claiming against EU states (certainly it would not make the UK less attractive) because English courts would no longer be bound by the CJEU’s ‘troubling’ reasoning (to use Lord Justice Gross’ description). [8] Since Achmea, published arbitral awards have consistently held that the CJEU’s reasoning does not impinge upon the tribunal’s jurisdiction as a matter of international law (whatever the correct position under EU law). If asked the question post-Brexit, the English courts might well agree.

However, that difference may prove relatively short-lived. In January this year, EU member states declared that they would terminate all intra-EU BITs, with best efforts to do so by December. The UK was a signatory – it has 12 BITs with states that subsequently became EU members. The CJEU’s judgment that intra-EU ISDS in BITs is unlawful as a matter of EU law may become of academic interest only when there are no such BITs. It will be interesting to see how states attempt to limit sunset and grandfathering rights in the BITs. States may struggle to extinguish existing claims and accrued rights to ISDS in the eyes of arbitral tribunals applying international law – so there will be arbitrations based on intra-EU BITs for some years to come.

There is also the question of the plurilateral Energy Charter Treaty (ECT) – under which there have been more disputes than any other investment agreement. The majority of EU states and the EU Commission have taken the position that Achmea applies equally to outlaw intra-EU ISDS under the ECT. In contrast, Finland, Luxembourg, Malta, Slovenia, Sweden and Hungary declined to conclude that Achmea applied to the ECT, since the CJEU referred only to bilateral investment treaties – for them, the question remains open.

Negotiations to ‘modernise’ the ECT are due to begin this autumn. The EU will ultimately look to replace conventional arbitration in the ECT and to introduce wording such that the ECT does not apply as between EU member states. We will see how successful the EU is. But ISDS is not within the initial scope of the EU’s negotiating mandate and, given that there are 53 signatories to the ECT (albeit that half of those are EU member states who are most likely to follow the EU Commission’s line), nothing is likely to happen fast. The UK government itself has not set out its objectives for the negotiations – for which it has also received parliamentary criticism.

2019 developments

Meanwhile, away from the headlines of the popular press, the English courts have issued more than 70 judgments in support and supervision of arbitration since the last European Arbitration Review went to press. Below, we present a few of the most interesting – although, as ever, lack of space constrains us.

Third-party funding of arbitration

London is a leading centre for commercial funding of claims. It has long been legal here for an unconnected third party to fund litigation or arbitration in return for profit. The market continues to grow and evolve. Faced with increasing competition, funders look to innovate.

Third-party funding (or ‘legal finance’, as some leading funders prefer) does not attract any special regulation in the UK. By contrast, Hong Kong’s statutory Code of Practice for Third-Party Funding in Arbitration came into force earlier this year as a condition of the legalisation of third-party funding for arbitration (but not Hong Kong litigation) – something long anticipated since the legislature’s vote in 2017. Third-party funding of arbitration in the UK is often stated to be self-regulated by the Association of Litigation Funders of England and Wales (the ALF), a voluntary organisation following a code of conduct. In fact, as we highlighted in last year’s European Arbitration Review, the ALF’s code of conduct was amended in 2018 such that it no longer applies to funding of arbitrations (now being restricted to English litigation). [9]

Third-party funding was spared statutory regulation following Lord Justice Jackson’s influential 2009 review of litigation costs because the market was then ‘still nascent in England and Wales’ and a ‘satisfactory voluntary code’ was all that was required ‘in the first instance’. Lord Jackson caveated that ‘[i]n the future, however, if the use of third party funding expands, then full statutory regulation may well be required’. [10] Some might argue that we are now living in that future. Leading funders individually have multiples of all the ‘assets under management’ in the entire 2009 market. Others, however, would argue that growth alone is not a good reason to regulate a market. In any event, as third-party funding does not appear to have been mentioned by the government or in Parliament since the last European Arbitration Review, it seems that the politicians have other things on their minds.

So far, 2018–19 has produced a few English court judgments of interest to funders of arbitration.

In Stati v Kazakhstan, days before disclosure was due, the Statis discontinued enforcement proceedings in England of a US$500 million Swedish-seated award – having been confronted by allegations from Kazakhstan that they had obtained the award by fraud. Kazakhstan found itself in the unusual position for a defendant of arguing that the enforcement proceedings against it should continue, persuading the first-instance judge that the fraud defence should go to trial. [11] On appeal, however, the Statis were allowed to discontinue the proceedings on condition that they would never again in any circumstance attempt to enforce the award in England. [12] Costs were awarded against the Statis [13] and they were ordered to disclose the identity of their litigation funders and the terms of their funding arrangements, so that Kazakhstan might consider against which funders to seek a costs order. [14] This appears to be the first time the court has ordered disclosure of the terms of funding agreements in these circumstances, as opposed to simply the identity of the funders. [15]

In Koza v Akcil, the Court of Appeal declined to make a positive declaration that a company’s decision to fund a related company to pursue an ICSID arbitration against Turkey would comply with an undertaking not to dispose of its assets, except in the ‘ordinary and proper course of business’. [16] In other words, the court was open to the possibility – depending on the circumstances – that it could be in the ordinary course of business for one group company to fund another to pursue an arbitration. The court did not think the funding of the group company meant it was venturing into a new business of arbitration funding. Nor did the court think that the possibility of alternative funding from a third party necessarily meant that funding by the group company was not in its proper course of business.

In perhaps the year’s most important decision relating to third-party funding, a litigation funder was ordered by the court to pay all of the defendants’ costs on an indemnity basis. [17] In doing so, the judge refused to apply the ‘Arkin cap’, which would have limited the funder’s liability to the defendants to the level of funding it had provided to the claimant. The judge could not accept that the funding sector would be unable to factor in a risk of uncapped costs exposure in cases where a funded claimant behaved badly. The reality is that many commercial funders already recognise and price-in this risk when funding litigation. Further, in English-seated arbitrations there is no such risk because an arbitral tribunal has no equivalent power to order a third-party funder to pay costs. But it is of general relevance that the judge saw nothing amiss in the funding agreement’s mechanisms to monitor the claimant. The judge’s criticism was more that the funder had not used those mechanisms to manage its own potential liability. He has added to the weight of judicial authority that a close interest in the conduct of the funded claim is not improper, but is to be expected of a responsible funder.

Challenges to arbitrators

Since the European Arbitration Review 2018, very few bias challenges have been heard by the English court and none appears to have successfully justified doubt about an arbitrator’s impartiality. The rarity partly reflects that the Arbitration Act requires that an applicant must first exhaust any available recourse under the applicable arbitral rules. [18] As a result, many challenges are resolved without reaching the English court. In 2018, the London Court of International Arbitration (LCIA) received six challenges, of which four were rejected and two remained pending. [19] The International Chamber of Commerce (ICC) heard 45 challenges, accepting the merits of seven (16 per cent). [20]

In Koshigi v Donna Union Foundation, the applicants challenged two awards, alleging bias on the part of the tribunal chairman for his past connections with lawyers acting for the other side. [21] But shortly before a hearing for security for costs against them, the challengers discontinued their challenges. Although the discontinued allegations did not go to a full hearing, the judge applied the International Bar Association Guidelines [22] as ‘a useful indication of international best practice’ (although the English court is not bound by the guidelines) and found that the allegations represented a very weak case of bias. Given the weakness of the bias challenge and the late hour in which the challenge was dropped, the judge awarded indemnity costs against the erstwhile challengers.

In Chartered Institute of Arbitrators v B, the English court supported disciplinary proceedings by the Chartered Institute of Arbitrators (CIArb) against one of its members – by giving CIArb access to certain documents relating to the arbitrator’s appointment, an arbitral hearing on whether he was conflicted (in which the arbitrator himself found no conflict) and subsequent court proceedings that removed the arbitrator on grounds of apparent bias. [23] While one of the parties objected, the court found an exception to the general rule that arbitral proceedings should be kept confidential, because of the public interest in upholding the standards of arbitrators. The judge reminded himself that ‘it is important that the courts do not allow vague principles of open justice to cause them to pay mere lip service to the confidentiality of arbitration proceedings, while permitting inroads into that regime, unless it is really necessary to give access in the interests of justice.’ [24] But in this case, the interests of justice lay in supporting CIArb to maintain the integrity of alternative dispute resolution. Nonetheless, the judge did not give access to all the documents requested, saw minimal harm to the objecting party, and was mindful that the documents did not disclose details of the underlying dispute.

In RJ v HB, Mr Justice Baker set aside an award for serious irregularity under section 68 of the Arbitration Act – the arbitrator had declared that the claimant party was the beneficial owner of certain bank shares, when no party had argued that the claimant had taken a shareholding. [25] The judge saw nothing during the proceedings that should have alerted the parties that the arbitrator intended to make such an award. Given the extent of the irregularity, the award was set aside rather than remitted back to the existing arbitrator. Nonetheless, the judge did not remove the arbitrator – the nature of the irregularity did not mean the arbitrator could no longer be trusted to start his consideration afresh. Further, the judge doubted whether he had the power to remove the arbitrator as the claimants had made no application to remove the arbitrator under section 24 of the Arbitration Act and so the arbitrator was not a defendant in the proceedings. Practitioners should take note of this technicality. [26]

The biggest decision on arbitral conflicts of interest is yet to come. Last year, we reported on the 2018 Court of Appeal judgment in Halliburton Co v Chubb Bermuda Insurance, considering the extent to which an arbitrator could accept appointments by the same party in multiple arbitrations arising out of the Deepwater Horizon disaster in the Gulf of Mexico. [27] Permission was subsequently given to appeal, with the application to appeal supported by the LCIA, ICC and CIArb. The Supreme Court is set to hear the issues in November 2019. We can hope that the Supreme Court justices will take the opportunity to set out some definitive guidance not only on this question of multiple appointments, but questions of conflicts and disclosure more widely, as a resource to apply to new questions arising in the years to come.

Judges as arbitrators

It is perhaps not widely known that an English judge may sit as a sole arbitrator in a confidential arbitration. [28] The practice is intended to be mutually beneficial: arbitration benefits from a learned arbitrator and the court benefits from having judges experienced in arbitration. A judge can only be appointed with permission, given the busyness of the High Court and all fees payable to the judge-arbitrator are paid to the High Court – full-time English judges are not permitted to moonlight as arbitrators on their own account, although retired English judges are an important source of distinguished international arbitrators.

Recently, the daily rate for a judge-arbitrator was decreased to £610, from £1,800 or more. [29] Many will consider this expertise cheap at the price. Earlier in the year, the scheme was extended from two kinds of judge – Commercial Court or Technology and Construction Court – to any High Court judge. [30] This, over 20 years later, fulfils the aspirations of the drafters of the Arbitration Act in 1996, who were ‘firmly of the view that provision should be made for any judge to be appointed as an arbitrator’ but could not obtain agreement from governmental departments in time. [31] The amendment will now allow judges in the Chancery Division, with expertise including partnerships, trusts and patents, to take arbitral appointments. As awareness grows, it will be interesting to see if the increase in the range of choice and the decrease in costs leads to an increase in demand – and how this will be handled alongside the already-significant demands on judges’ time. It also remains to be seen if an increased availability of judge-arbitrators will contribute at all to a widening in the range of contracts that typically contain arbitration clauses, for instance regarding intellectual property.

To date, whether for reasons of cost, availability or lack of awareness, judge-arbitrators have been appointed rarely. This year, in Equitas Insurance v Municipal Mutual Insurance, the Court of Appeal allowed an appeal on difficult questions of law against a decision of Lord Justice Flaux, one of their own, who had sat as a judge-arbitrator. [32] When a judge is appointed as arbitrator, he or she sits in the single capacity of an arbitrator like any other, whose award can be challenged like any other.

Appeals on points of law

Appeals from an arbitral award on a point of law are themselves relatively infrequent (when compared to challenges for serious irregularity or for lack of jurisdiction). Section 69 of the Arbitration Act gives a right to appeal to the court on a point of law. Unless both sides agree to allow the appeal to proceed (rare for obvious reasons), the court will only give permission to appeal if the arbitral decision was ‘obviously wrong’ or, alternatively, if ‘open to serious doubt’ and the ‘question is one of general public importance’. [33] The right to appeal, further, is non-mandatory and may be excluded by the parties’ agreement. [34] In other words, it is possible to opt out of appeals on law. By contrast, the Singaporean International Arbitration Act (unlike its domestic counterpart) does not allow appeals on any question of law – although, in June, the Singapore Ministry of Law launched a consultation on allowing parties to opt in.

Both the LCIA and ICC Rules, as important examples, waive any right of appeal to the extent that is legally possible. [35] That said, certain other arbitral rules do not exclude appeals. The London Maritime Arbitrators Association (LMAA) Rules, for example, leave the section 69 right unmodified: in 2018, there were an estimated 1,560 references under the LMAA Rules (which may well understate the complete figure since LMAA arbitrations can go on unbeknown to the LMAA). [36] Appeals have tended to be maritime-related: of the 15 reported appeals since the European Arbitration Review 2018, nine related to ships or cargo. [37] The majority of these maritime appeals interpreted various standard form charterparties and bills of lading, thereby providing a valuable service to pre-empt future disputes under these same agreements.

Two section 69 judgments were of general interest. In Merthyr v Cwmbargoed Estates, a tenant’s application to appeal under section 69 was refused because the award was not ‘obviously wrong’ when the applicant felt obliged to make very lengthy and detailed arguments. [38] The parties had chosen to arbitrate their disputes before a professional arbitrator experienced in their particular business and the judge saw ‘no reason why they should not be left with his decision’. In The Labhauler, the applicants failed to obtain permission to an appeal from one judge, and then lost their appeal against that refusal before another judge. [39] The appeal judge considered the oral hearing over which he had presided to be a waste of resources, when the appeal could simply have been decided on the papers by the original judge. Hence, would-be appellants against an arbitral award may not have their day (or rather, half hour) in court, if writing will do.

Anti-suit injunctions

Anti-suit injunctions are an important defence of arbitration. The English court is able and willing to assist a party to an arbitration agreement that finds itself a defendant in foreign litigation wrongly brought in breach of the arbitration clause (most commonly where the seat of the agreed arbitration would be in England or Wales). Many anti-suit injunctions are simply given ex tempore (at the time), without a published written judgment (at least initially), often between the perennially quarrelsome A and B. [40] Since the last European Arbitration Review, however, there have been some notable judgments published.

The court has restrained a Chinese claimant from continuing Chinese court proceedings, seeking repayment of a sum transferred under a settlement agreement between two other parties that contained a London arbitration clause – even though the Chinese proceedings were over a year old when the anti-suit injunction was sought. [41] However – although the Chinese courts had dealt with a question of which Chinese court had internal jurisdiction – no Chinese court had yet considered the question of whether the arbitration clause was binding on the claimant, so the English court was not second guessing any Chinese decision.

Elsewhere, the English court injuncted a Chilean insurer from pursuing proceedings in the Chilean court in which it sought to appoint an arbitrator in breach of a London arbitration clause. Initially, the English court ordered the successful applicant for the anti-suit injunction to ‘fortify’ its undertaking in damages with £20,000 paid into its English lawyers’ client account – to be available to compensate the Chilean party if it was subsequently determined that the anti-suit injunction should not have been ordered. At the full hearing, however, the judge held that the risk of the injunction being wrongly granted was so small that there was nothing to fortify. [42]

A Jordanian company successfully obtained an anti-suit injunction against a French construction company from continuing Jordanian proceedings to declare a law unconstitutional that founded their International Federation of Consulting Engineers [43] construction contact (containing an arbitration agreement). [44] The constitutional claim to invalidate the law was not itself arbitrable. However, the English court considered that the arbitration agreement also amounted to an agreement not to pursue a constitutional claim. Somewhat inconsistently, the would-be claimant in Jordan had already commenced and lost an arbitration, which it had also failed to persuade the English court to set aside on allegations, inter alia, of the arbitrator’s failure to make continuing disclosure. [45]

The English court has also restrained a litigious American man in the serendipitously named XL v Little. [46] Mr Little’s New York lawyers accused the English anti-suit proceedings of being ‘sneaky’, but, in a reversal of David versus Goliath, the English court enforced the arbitration agreement in the insurance policy.

In all the above, the English court granted anti-suit injunctions restraining parties from foreign litigation in favour of London arbitration. This year, the English Court of Appeal confirmed that the English court has power to grant an anti-arbitration injunction to restrain a foreign arbitration (in this case, in Lebanon) which is vexatious – even though the English court was not itself the natural forum for the dispute. [47] The foreign arbitration was, however, permitted with respect to one part of the claim that did fall within the arbitration agreement and the judgment presents a difficult threshold for future applicants, unless their case is also exceptional.

Within the EU, the English court’s powers are presently very different with respect to anti-suit injunctions. As we have explained in previous European Arbitration Reviews, a 2009 decision of the CJEU disagreed with UK’s Supreme Court [48] and prevented any EU state court from injuncting parties from proceeding in another EU state court. Brexit may change this. The English court’s hands are tied by EU law and so the UK’s departure from the EU would free English judges in this respect (unless, of course, some other deal is struck on this point). The English judiciary may welcome the restoration of their former power – and it would be an added attraction to England.

Sanctions – contempt of court and costs

Anti-suit injunctions can have teeth. In an August 2018 decision that was published in full only in 2019, Mr Justice Jacobs sentenced His Royal Highness Governor of Al Bahah Province Prince Hussam bin Saud bin Abdulaziz Al Saud to a year in prison for breaching an anti-suit injunction. [49] The Saudi prince and businessman had ‘flouted’ an anti-suit injunction by reviving litigation in Saudi Arabia when he had lost a London arbitration under a loan agreement (having fully participated in the arbitration). The prince did not attend the hearing and will presumably avoid the jurisdiction in the future, lest he risk being detained at another royal’s pleasure in HM Prison Pentonville. The judgment against the prince illustrates the importance the English court holds in protecting valid London arbitration clauses and valid London arbitral awards.

Any party who ignores an arbitration clause and starts English litigation will face costs sanctions – even one who genuinely believes the arbitration clause does not apply. In Schillings International v Scott, the court confirmed that indemnity costs will generally apply against a party who unsuccessfully brings proceedings in breach of an arbitration clause, since the successful party should not have to bear any proportion of the costs reasonably incurred facing a dispute in court when arbitration had been agreed. [50]

A new arbitral hearing centre for London

While the quality of London’s arbitration practitioners and its supportive courts may not have been in doubt since the Arbitration Act, there have been more complaints about London’s physical arbitration infrastructure – such as its hearing venues. The crisp white and slick air-conditioning of Maxwell Chambers in Singapore has certainly not harmed the rise of that seat’s popularity. In London, for almost 20 years, the International Dispute Resolution Centre on Fleet Street has faced competition largely from ad hoc compromises. But February saw the launch of the new International Arbitration Centre nearby. We have yet to personally experience its ‘five-star’ delights, but the stories are positive, which can only be good for London arbitration.


Notes

[1] Strictly, the UK is a United Kingdom because it unites the separate jurisdictions of England, Wales, Northern Island and Scotland. The Arbitration Act 1996 is the principal legislation applicable to arbitrations seated in England, Wales or Northern Ireland. The English case law discussed in this chapter is largely concerned with the application of the Arbitration Act 1996. Scotland has its own arbitration legislation – the Arbitration (Scotland) Act 2010 – which does reflect the English/Welsh/Northern Irish statute in a number of respects. Hence, English case law also provides useful guidance in Scotland. Generally, we refer to the ‘UK’ loosely for convenience.

[2] ‘London Common Law & Commercial Bar Association Annual Lecture’, January 2019, p. 15.

[3] ‘The Future for the UK’s jurisdiction and English law after Brexit’, Munich, 13 May 2019, pp. 4 & 9.

[4] ‘The impact of Brexit on dispute resolution clauses – survey report’, dated 23 July 2018 (survey from 31 January to February 2018); ‘The Impact of Brexit on Dispute Resolution Clauses: Revised Survey’, dated 29 November 2018 (survey from 28 September to 15 October 2018), Practical Law, Thomson Reuters.

[5] The UK has also reached agreements with the US, Australia and New Zealand on mutual recognition of product standards, but not free trade.

[6] ‘UK investment policy’, House of Commons International Trade Committee, Seventh Report of Session 2017–19, printed 24 July 2019.

[7] Slovak Republic v Achmea BV (Case C-284/16), 6 March 2018.

[8] ‘Courts and Arbitration’, Lord Justice Gross, 1 May 2018, paragraph 38.

[9] See definition of ‘Relevant Disputes’ in Code of Conduct of Litigation Funders, dated January 2018.

[10] Review of Civil Litigation Costs: Final Report, dated 21 December 29, Rupert Jackson, paragraph 2.4.

[11] Stati v Kazakhstan [2018] EWHC 1130 (Comm).

[12] Stati v Kazakhstan [2018] EWCA Civ 1896.

[13] Some on an indemnity basis: Stati v Kazakhstan [2019] EWHC 1715 (Comm).

[14] Stati v Kazakhstan [2019] 5 WLUK 275. Perhaps regrettably, the Statis did not oppose this application: the judgment was given ex tempore and a transcript is not widely available.

[15] But see also Automotive Latch Systems Ltd v Honeywell International Inc [2008] EWHC 3442 (Comm).

[16] Koza Ltd v Akcil [2019] EWCA Civ 891.

[17] Davey v Money [2019] EWHC 997 (Ch).

[18] Arbitration Act 1996, s24(2).

[19] 2018 Annual Casework Report, London Court of International Arbitration, dated 1 April 2019, p. 15.

[20] 2018 Dispute Resolution Statistics, International Chamber of Commerce, dated 11 June 2019, p. 11. The Stockholm Chamber of Commerce (SCC), for 2016–2018, received 551 new arbitrations and 46 arbitrator challenges (1/12): three arbitrators resigned voluntarily or by party agreement; eight challenges were upheld (1/5) and 35 were rejected (4/5) (‘SCC Board Decisions on Challenges to Arbitrators 2016-2018’, SCC Practice Note, Anja Ipp, Rodrigo Carè and Valeryia Dubeshk, August 2019).

[21] Koshigi Ltd v Donna Union Foundation [2019] EWHC 122 (Comm).

[22] The International Bar Association Guidelines on Conflicts of Interest in International Arbitration, 2014.

[23] Chartered Institute of Arbitrators v B [2019] EWHC 460 (Comm).

[24] Glidepath BV v Thompson [2005] EWHC 818 (Comm).

[25] RJ v HB QBD (Comm) [2018] EWHC 2833 (Comm).

[26] Relatedly, in K v P [2019] EWHC 589 (Comm), Sir Jeremy Cooke found serious irregularities with respect to an arbitral award, but, considering the duplication of work, remitted the award to the existing tribunal. The question of whether a specific s24 challenge was required to remove the existing tribunal and remit the award to a new tribunal does not appear to have been discussed.

[27] Halliburton Co v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817.

[28] Arbitration Act 1996, s93.

[29] Court Fees (Miscellaneous Amendments) Order 2019.

[30] Courts and Tribunals (Judiciary and Functions of Staff) Act 2018.

[31] Report on the Arbitration Bill, Departmental Advisory Committee on Arbitration Law, February 1996, paragraph 340.

[32] Equitas Insurance Ltd v Municipal Mutual Insurance Ltd [2019] EWCA Civ 718.

[33] Arbitration Act 1996, s69(3).

[34] Arbitration Act 1996, s69(1).

[35] LCIA Rules 2014, article 26.8; ICC Rules 2017, article 35(6).

[36] 2018 Statistics, LMAA, dated 29 March 2019.

[37] At least three appeals arose from partnership agreements (dentists, solicitors and estate agents respectively: Patel v Patel [2019] EWHC 298 (Ch); Sternberg Reed Solicitors v Andrew Paul Harrison [2019] EWHC 2065 (Ch); Martin v Harris [2019] EWHC 1962 (Ch)).

[38] Merthyr (South Wales) Ltd v Cwmbargoed Estates Ltd and another [2019] EWHC 704 (Ch).

[39] Midnight Marine Ltd v Thomas Miller Speciality Underwriting Agency Ltd (formerly Osprey Underwriting Agency Ltd), The Labhauler [2018] EWHC 3431 (Comm).

[40] A v B is the most common anonymisation used by the English court when reporting confidential proceedings arising out of arbitration. For example, in 2018–19, in A v B (unreported; [2019] 7 WLUK 420), the court injuncted the defendants (B) from continuing proceedings in Israel, but without publically naming any of the several parties involved.

[41] Qingdao Huiquan Shipping Company v Shanghai Dong He Xin Industry Group Co Ltd [2018] EWHC 3009 (Comm).

[42] W Bockstiegel GmbH & Co Reederei KG MS BBC Colorado v Chilena Consolidada Seguros Generales SA, The BBC Colorado [2018] EWHC 3690 (Comm).

[43] The International Federation of Consulting Engineers (known as FIDIC from the French Fédération Internationale Des Ingénieurs-Conseils).

[44] Aqaba Container Terminal (Pvt) Co v Soletanche Bachy France SAS [2019] EWHC 471 (Comm).

[45] Soletanche Bachy France SAS v Aqaba Container Terminal (Pvt) Co [2019] EWHC 362 (Comm).

[46] XL Insurance Co SE v Little [2019] EWHC 1284 (Comm).

[47] Sabbagh v Khoury [2019] EWCA Civ 1219.

[48] The Appellate Committee of The House of Lords as it then was.

[49] Mobile Telecommunications Co KSC v HRH Prince Hussam Bin Abdulaziz Au Saud [2018] EWHC 3749 (Comm).

[50] Schillings International LLP v Scott [2019] 7 WLUK 472 (unreported).

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