Insights

The English Court of Appeal has recently handed down a helpful judgment, clarifying the test for breach of duty in cases of alleged negligence by valuers. In short: (i) the valuation must fall outside a reasonable margin of error of the ‘correct’ valuation; and (ii) the valuer must have carried out the valuation in a way that no reasonably competent valuer could have done (the Bolam test).

This alert follows our previous review of the judgment of the U.K. Supreme Court in IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation [2017] UKSC 16 (IPCO). That case concerned a challenge to enforcement of a New York Convention arbitration award and considered whether the provision of security on the award value could be made a prerequisite to launching such a challenge. In a unanimous judgment, the Supreme Court held the provision of security may only be made a prerequisite in cases of adjournment pending resolution of a challenge in the courts of the seat of arbitration.

In IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation [2017] UKSC 16, a unanimous bench of five members of the Supreme Court held that the English courts may not condition a New York Convention award debtor’s challenge to award enforcement under the Convention and Arbitration Act 1996 upon payment of security on the award’s value, except in cases of adjournment pending resolution of a challenge in the courts of the seat of arbitration. The judgment, dated 1 March 2017, is available here.

In the recent English High Court judgment Gerald Metals S.A. v Timis & Ors [2016] EWHC 2327 (Ch), Mr Justice Leggatt provided the first guidance regarding the interaction of the Court’s powers to grant interim or conservatory measures in support of arbitration with the provisions for emergency measures in arbitration. Such emergency provisions, including expedited appointment of arbitration tribunals and emergency arbitrators, have proliferated among institutional rules in recent years. His guidance suggests that, where arbitral rules provide for such procedures, but the arbitral institution has declined to activate them in support of a party’s application, the English Court will now be loath to interpose its own measures.

Last year, we reported on the judgment of the High Court in the case of Fulton Shipping v Globalia Business Travel [2014] EWHC 1547 (Comm). In that case, the charterers of a vessel had, in breach of contract, returned her to the owners two years early. The owners then sold the vessel at a price far higher than they would have achieved at the end of the charterparty. An arbitrator had determined that the level of damages awarded to the owners for the charterers' repudiation of the charterparty should be reduced to account for this unexpected windfall. The Court upheld the owner's appeal against the arbitration award on the basis that the arbitrator had erred in law. 

The International Centre for Dispute Resolution (ICDR), the international division of the American Arbitration Association (AAA), has recently issued a revised set of International Dispute Resolution Procedures, effective from 1 June 2014 (Rules). Although the ICDR has modified its original rules since first issuing them in 1991 (1991 Rules), it has not undertaken a wholesale revision of them until now. Below we summarise and comment upon some of the more notable changes the ICDR has made.

In early 2014, the Drafting Sub-Committee of the London Court of International Arbitration (LCIA) published a "final draft" of its new Arbitration Rules, available online here. Before finalising these updates to the standing 1998 rules, the LCIA will hold a debate at Tylney Hall in May. Given the rapid expansion of the field of international commercial arbitration in the last sixteen years, the LCIA's decision to review its rules has been widely welcomed. 

In late December 2013, it was reported that the Supreme Court had refused permission to appeal against the decision of the Court of Appeal in Secretary of State for Health and others v Servier Laboratories Ltd and others; National Grid Electricity Transmission plc v ABB Ltd and others [2013] EWCA Civ 1234. In so doing, Britain's highest court brought to an end a recent line of litigation concerning a problem which had caused headaches for investigators, litigators, and the English court itself for some years. Surprisingly, perhaps, this problem was a result of a piece of French domestic legislation, the so-called Blocking Statute. 

The International Court of Arbitration of the International Chamber of Commerce (the "ICC") launched its long-awaited revised version of the Rules of Arbitration (the "Rules") on 12 September 2011.  The Rules come into effect for arbitrations commenced on or after 1 January 2012.  The revision process, initiated in 2008, was intended to address the growing complexity of business transactions, to enhance transparency, and to meet the demands for greater speed and cost-efficiency. 

28 USC 1782 is a US statute authorizing federal courts to grant discovery assistance to persons and entities involved in disputes before a tribunal outside the US. In In re Application of Babcock Borsig AG, CA No. 08-mc-10128-DPW, Oct. 30, 2008, a federal district court in Massachusetts held that the ICC is a "tribunal" within the meaning of section 1782, and thus, the court had the statutory authority to order a person or entity within the US to provide documents or testimony for use in a foreign proceeding(here, an ICC proceeding). In this particular case, however, the court decided not to exercise its discretion to grant the discovery request until it received evidence that the ICC panel would be receptive to material obtained pursuant to section 1782. The growing body of law on this point highlights the importance of section 1782 as a strategic consideration for those involved in disputes outside of the US, if there is a person or entity in the US with evidence bearing on the issues, whether or not that person is a party to the proceedings outside the US.