"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Saturday, June 15, 2013

Recent Developments in English Law on Arbitration

We bring to your attention a recent decision of the UK Supreme Court in Ust-Kamenogorsk- Hydropower Plant JSC v. AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35. In the said decision, the question before the Supreme Court pertainined to the power of English court to order anti-suit injunction in courts outside the European regime where there is an arbitration agreement even if there is no intent on the Applicant to invoke arbitration. The question, in other words, was whether an English Court could injunct non-European foreign court proceedings if the contract provided for London seated arbitration even if the Applicant did not prefer to invoke arbitration.
 
In a unanimous decision, the UK Supreme Court held that such a power existed under Section 37 of the Senior Courts Act, 1981. The effect of the decision is to preserve the efficacy of choosing London as the venue of arbitration.
 
[hat tip: Herbert Smith Freehills Arbitration Notes- can be accessed from here.]

In Mauritius Commercial Bank Ltd v Hestia Holdings Ltd and Another [2013] EWHC 1328 (Comm), the English High Court (Commercial Court) has held valid an exlcusive jurisdiction clause which gives the option to one of the parties to initiate proceedings elsewhere than the agreed jurisdiction. In the case, the contract provided that the courts at England would have exclsuive jurisdiction to settle any dispute  in respect of the Agreement. In addition, it also provided, "...the Lender shall not be prevented from taking proceedings related to a Dispute in any other court in any jurisdiction. To the extent allowed by law the Lender may take concurrent proceedings in any number of jurisdictions."
 
[hat tip: Herbert Smith Freehills Arbitration Notes- can be accessed from here.]

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