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.
In July 2021, the Supreme Court handed down a long awaited judgment in Triple Point Technology v PTT, overturning the earlier Court of Appeal decision and in doing so provided clarity on the applicability of a liquidated damages clause in circumstances where the contract has been terminated prior to its completion. The judgment also provided a helpful reminder of the correct interpretation of “negligence” when included in a limitation of liability clause.
Arbitration often involves resolving complex and technical matters which call for specific knowledge or experience, including determining the value or quantum of a claim. Expert witnesses are often instructed by parties to do this through written statements and oral testimony before the arbitral tribunal. Generally, in most high value, large and/or complex arbitrations, the parties will benefit from having a party-appointed expert to assess quantum, or to rebut an opposing party’s assessment of quantum. In some instances, relying on experts will simply be a prerequisite to convince the tribunal. In this article, we discuss key considerations when appointing such an expert.
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.
This article looks at the treatment of international arbitration agreements by the English courts, particularly at how the courts have upheld the decision of parties to resolve disputes through arbitration rather than through the courts.
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 recognise 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.
Enduring appeal of London arbitration for multinational parties unaffected by turbulent recent years for the UK.
