Insights

On 6 September 2023, the Law Commission published its final “Review of the Arbitration Act 1996” (the “Report”). 

In this alert we briefly address the impact of Brexit on jurisdiction and governing law clauses in commercial contracts.

The London Court of International Arbitration (the LCIA) released an update to its Arbitration Rules, which took effect on October 1, 2020 (the 2020 Rules). While the LCIA has characterised the 2020 Rules as a “light touch”1 update on the 2014 edition of the rules (the 2014 Rules), there are some notable developments which bring the 2020 Rules in line with modern practice and other institutions’ rules.

In our previous alert An English Law Perspective on COVID-19 and Contractual Disruption concerning force majeure events we noted that “beyond reasonable control” can mean that a business is expected to run itself well. In a recent case,1 the English High Court has issued a timely reminder that parties will not be able to rely upon force majeure clauses if they have not taken reasonable steps to guard against the particular event or circumstance in question.

While most courts are closed except for emergency matters, and parties in litigation are scrambling to determine how to amend their case schedules and respond to the uncertainties resulting from the COVID-19 outbreak, the arbitration world has emphatically responded: “The show must go on.” The flexibility of arbitration shines bright during this time of uncertainty and economic volatility, and allows for the conception of creative solutions for parties to resolve their disputes with minimal disruption.

In the recent case Rock Advertising Limited v MWB Business Exchange Centres Limited,1 the Supreme Court of the United Kingdom considered whether a contractual term, which purported to preclude oral variations to a contract, was of legal effect. In holding that it was, the Court has significantly shifted English contract law. Previously, such terms were typically found to be ineffective; that is no longer the case.

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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.

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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 a judgment dated 24 January 2017, by a majority of 8 to 3,1 the Supreme Court has upheld the High Court’s ruling in November 2016 that an Act of Parliament is required before the UK Government may give notice under Article 50 of the Treaty of the European Union (TEU), thereby beginning the formal process of Britain’s withdrawal from the EU. However, the Court found unanimously that no pre-approval is required from the devolved governments of Scotland, Wales and Northern Ireland. A summary of the judgment is available here.

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In a judgment dated 3 November 2016, the High Court ruled that the government of the United Kingdom does not have the power to invoke Article 50 of the Treaty on the Functioning of the European Union (TFEU) to begin the formal process of Britain’s withdrawal from the EU. Instead, an Act of Parliament is required. A summary of the judgment is available here. The government intends to appeal the judgment to the Supreme Court, which, we understand, has indicated that the full panel of eleven judges will hear the case over four days during the week of 5 December 2016.

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.

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This alert forms part of a series of updates designed to help businesses prepare for the post-Brexit world. Here, we consider London’s position as one of the world’s leading centres for international commercial arbitration, and argue this will be unaffected by Brexit. Put simply, the attributes that make English law and London-seated arbitrations attractive to commercial parties are largely independent of the U.K.’s membership of the EU.

As part of a series of updates following developments in the post-Brexit referendum landscape, we consider the potential roadmap to the U.K.'s actual withdrawal from the EU.

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.