Can an arbitral tribunal undertake its own research? The answer is ‘ “it depends” – as is often the case in international arbitration. The question of whether a tribunal has gone beyond the scope of the arbitration will often arise in a challenge to the enforcement of an arbitral award.

International arbitration as a method for resolving cross-border disputes continues to gain popularity. However, when considering which of the arbitral institutions’ rules to include in an arbitration agreement, there are two practical points to consider: (i) the likely duration and (ii) the likely cost of any arbitration.

With sufficient time and resources, an in-house counsel can ensure that each arbitration clause their organisation signs onto is carefully crafted and reviewed. But we recognize that time and resources are rarely sufficient and believe that these three rules of thumb can help ensure that arbitral clauses do not create an unacceptable level of risk.

In this article we discuss challenges to arbitration awards in the context of alleged ‘serious irregularity’ in the award given by the arbitral tribunal. This was addressed in the recent decision by the Privy Council in London, on appeal from the courts of the Bahamas, in RAV Bahamas Ltd and another v Therapy Beach Club Incorporated [2021] UKPC 8.

The referral of a dispute to arbitration does not mean parties have to be stuck on a straight track to a hearing with an award issued by the tribunal. Very often, arbitration can lead to or support parties in reaching a negotiated settlement in advance of any hearing or award. In some cases, commencing arbitration can be used as a strategy to encourage parties to negotiate. The fact of arbitral proceedings getting underway should certainly not lead parties to automatically forgo all hopes of settling the dispute.

On 23 July 2021, in a decision with potentially far-reaching implications for the shipbuilding industry and for guarantees generally, the Court of Appeal issued a judgment addressing what makes a guarantee issued by an entity other than a financial institution a “demand guarantee" rather than a “see to it guarantee”.

There are various forms of tiered dispute resolution clauses requiring negotiation and/or mediation before arbitration, and difficulties may arise when the procedure is not followed. A recent English case, NWA and Other v NVF and Others [2021] EWHC 2666, has added further insight to the interpretation of these clauses and the need for clarity in their drafting.

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Shawn is an international dispute resolution specialist with a particular focus on complex commercial disputes before arbitral institutions and courts around the world.

Shawn is dual-qualified as an English solicitor and as a barrister and solicitor in New Zealand. His contentious work has included acting in ICC, LCIA, SIAC, LMAA, UNCITRAL and ad hoc arbitrations subject to numerous governing laws, as well as in English court proceedings and in an advisory capacity in relation to court proceedings in many other jurisdictions.

Based on his dispute experience, Shawn is also often asked to assist clients in the negotiation of high value contracts, particularly in the energy, construction and shipbuilding arenas.

Shawn led the WR team which won "Deal of the Year: Disputes" in the Latin Lawyer Awards 2021 and he is recognised in the Legal 500 rankings with clients describing him as "extremely pragmatic and [a] solution maker" (Legal 500, 2023: Projects, Energy & Natural Resources: Oil & Gas).

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Shawn is an international dispute resolution specialist. He is dual-qualified as an English solicitor and as a barrister and solicitor in New Zealand.

Shawn Kirby

Associate/Senior Associate/Managing Associate

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