English law, courts and arbitral tribunals may become more relevant and popular after Brexit, not less.

By Oliver Browne, Sophie J. Lamb QC, Sanjev D. Warna-kula-suriya, and Tom Watret

Introduction

English law, courts, and arbitral tribunals may become more relevant and popular after Brexit, not less, and parties should continue to feel confident about including English governing law and jurisdiction clauses in their agreements.

In particular, the breadth of English common law jurisdiction and the powerful tools at the English courts’ disposal – notably, the anti-suit injunction and damages for breach of jurisdiction clauses – are likely to ensure that jurisdiction clauses in favour of English courts and tribunals are complied with.

By Robert Price and Eleanor Scogings

Two recent English court decisions provide useful reminders that parties to arbitration agreements must take care to properly serve arbitration proceedings on the other party. In doing so, parties will avoid the risk of the court setting aside an award on the grounds that service was defective and that the tribunal did not have jurisdiction.

In Sino Channel, the Court of Appeal confirmed that only in rare cases will an agent have anything other than express actual authority to accept service of a notice of arbitration.[1] However, in the unusual circumstances in Sino Channel, the Court of Appeal held that the agent had both implied actual and ostensible authority to accept service. In Glencore Agriculture, the High Court confirmed that a notice of arbitration sent by email to a junior employee is unlikely to amount to effective service, unless the nature of that individual’s role implies that they possessed authority to accept service on their employer’s behalf.

By Charles Rae

In a revised practice note, the ICC Court of Arbitration has provided guidance on the procedure for determining applications for summary dismissal of unmeritorious claims and defences in arbitrations conducted under the ICC Rules. The revisions are important because the ICC Rules do not otherwise contain a process for dismissing claims or defences on a summary basis. The guidance is the latest signal from institutions that tribunals should consider summary procedures as a means of ensuring that disputes are resolved in an efficient and cost effective manner.

Revised Practice Note: Summary

The practice note seeks to promote efficiency in the way in which tribunals and parties deal with applications, by:

  • Requiring parties to make the application as promptly as possible after the filing of the relevant claims or defences
  • Confirming that the tribunal considers the need to ensure time and cost efficiency in determining whether or not to allow an application to proceed
  • Directing tribunals to promptly adopt procedural measures to deal with the application after consulting with the parties
  • Encouraging tribunals to adopt a streamlined process by allowing the presentation of evidence beyond the defendant’s response to the application only in exceptional circumstances, and considering whether any hearing (if required) can be conducted by video conference or telephone
  • Directing tribunals to decide the application as promptly as possible and provide concise reasons for its decision in either an award or order
  • Providing a one-week deadline for the ICC Court to scrutinise any award or order a tribunal makes