Enka v. Chubb in the Supreme Court: Which Law is it Anyway? – 4 New Square

‘Where the law governing a contract containing an arbitration agreement differs from the law of the nominated “seat” of the arbitration, which law – absent any express choice – governs the arbitration agreement itself? That was the question that the Supreme Court had to grapple with in Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb [2020] UKSC 38, in which judgment was handed down on 9 October 2020. George Spalton and Ian McDonald of 4 New Square consider the decision.’

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4 New Square, 14th October 2020

Source: www.4newsquare.com

Supreme Court decision on governing law of arbitration agreement – Littleton Chambers

‘The main issue was how to determine the governing law of an arbitration agreement when the law applicable to the contract containing it was not the law of the seat of the arbitration.’

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Littleton Chambers, 9th October 2020

Source: littletonchambers.com

Appealing an arbitration award – Transparency Project

‘The question the court had to decide recently was what was the test to be applied by the court in those cases where the parties had agreed to arbitration, but one party was dissatisfied with the award?’

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Transparency Project, 26th October 2020

Source: www.transparencyproject.org.uk

Implication and imputation; the Supreme Court’s decision in Enka – Six Pump Court

‘This article considers some of the particular aspects in the recent Supreme Court decision of Enka Insaat Ve Sanayi v OOO Insurance Company Chubb & Others [2020] UKSC 38. In particular it looks at the significance of the distinction between implication of agreement through application of ordinary contractual principles and imputation of terms by the application of conflict of law provisions contained in the Rome I Regulation or as established by the common law.’

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Six Pump Court, 20th October 2020

Source: www.6pumpcourt.co.uk

New Judgment: Enka Insaat Ve Sanayi A.S. v OOO Insurance Company Chubb [2020] UKSC 38 – UKSC Blog

‘The central issue on this appeal is how the governing law of an arbitration agreement is to be determined when the law applicable to the contract containing it differs from the law of the “seat” of the arbitration, the place chosen for the arbitration in the arbitration agreement.’

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UKSC Blog, 9th October 2020

Source: ukscblog.com

Virtual hearings deny young lawyers “huge amount” of training – Litigation Futures

‘A High Court judge has voiced concerns that young solicitors and barristers are missing out on a “huge amount” of training because of virtual hearings.’

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Litigation Futures, 8th September 2020

Source: www.litigationfutures.com

Arbitration Claims Under CPR Part 62: Is Forum Non Conveniens Relevant? – Hardwicke Chambers

Posted July 30th, 2020 in arbitration, choice of forum, civil procedure rules, news by sally

‘This article reviews the recent case of Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors (Rev 1) [2020] EWCA Civ 574.’

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Hardwicke Chambers, 23rd July 2020

Source: hardwicke.co.uk

Uber v Heller and the Prospects for a Transnational Judicial Dialogue on the Gig Economy – II – Oxford Human Rights Hub

‘In the coming days, labour lawyers from around the world will be tuning in to watch the arguments in Uber v Aslam. In terms of the wider ramifications of the reasoning in Heller, what are the prospects for the ‘contractual’ and the “constitutional” approaches in Aslam? As already noted, the wider doctrine of unconscionability in Heller is unlikely to find favour in the English courts. More importantly, disputes about the employment contract in English courts are rarely about the contract rights themselves. The (private) contract is a gateway into a suite of (public) statutory employment protections. It would make little sense for a worker to seek to set aside the contract by using unconscionability as a vitiating factor, when the statutory protections depend upon the contract being valid and enforceable. This limits the practical relevance of Heller’s expanded unconscionability doctrine, given the statutory context to most employment litigation in the UK.’

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Oxford Human Rights Hub, 20th July 2020

Source: ohrh.law.ox.ac.uk

Uber v Heller and the Prospects for a Transnational Judicial Dialogue on the Gig Economy – I – Oxford Human Rights Hub

‘Across the world, Gig employers are now facing a legal reckoning in the highest courts. On 21st July, the issue of whether Uber drivers are “workers” will be considered by a seven-member panel of the UK Supreme Court. This follows on from Mr Heller’s momentous victory in a recent decision of the Supreme Court of Canada (SCC) in Uber Technologies Inc. v. Heller which involved a legal challenge to a mandatory arbitration clause in a contract between Uber and an UberEATS driver. The arbitration clause required disputes to be referred to arbitration in Amsterdam, which would be subject to the law of the Netherlands. The clause also required the payment of US $14,500 as an upfront administrative cost. The appellant earned $20,800–$31,200 per year before taxes and expenses were deducted. Nor did the fee include other costs likely to be incurred in an arbitration, such as travel to Amsterdam, accommodation, and legal representation. Students of transnational labour law of a certain generation cut their teeth on great debates about “offshoring” and the disintegrative risks to labour standards posed by capital mobility. The Heller case is an important reminder that we are now in an era of juridical mobility: employing entities seek to escape national labour law systems without the cost and inconvenience of spatial mobility.’

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Oxford Human Rights Hub, 19th July 2020

Source: ohrh.law.ox.ac.uk

Inability to find a QC “not good reason” for arbitration no-show – Litigation Futures

Posted July 15th, 2020 in arbitration, barristers, legal representation, news, queen's counsel by tracey

‘A High Court judge has said there was no reason “at all” why a defendant in a €20m arbitration had to use the Bar and being unable to find counsel at short notice was not a good reason not to participate in the hearing.’

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Litigation Futures, 15th July 2020

Source: www.litigationfutures.com

OHL v Qatar Foundation and tribunal’s powers to correct awards and scope of permissible challenges – Atkin Chambers

‘Challenges were brought by a contractor (JV) under sections 67 and 68(2)(b) of the Arbitration Act 1996 (AA 1996) in respect of an addendum award (the Addendum) issued by an International Chamber of Commerce (ICC) tribunal. The Addendum was issued following an application by the employer to correct a fourth partial award. JV’s challenges were dismissed and the judge gave helpful guidance as to the scope of AA 1996, ss 67 and 68 and the scope of a tribunal’s power to correct and/or interpret its award. Written by Simon Lofthouse QC and Zulfikar Khayum, barristers, at Atkin Chambers, and counsel for Qatar Foundation.’

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Atkin Chambers, 6th July 2020

Source: www.atkinchambers.com

Recent Cases on the Law of an Arbitration Agreement and Anti-Suit Injunctions – 39 Essex Chambers

Posted June 3rd, 2020 in arbitration, chambers articles, injunctions, news, podcasts by sally

‘In this podcast, Niraj Modha considers two recent decisions: Enka v Chubb [2020] EWCA Civ 574 and Times Trading Corporation v National Bank of Fujairah [2020] EWHC 1078 (Comm).’

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39 Essex Chambers, 1st June 2020

Source: www.39essex.com

IFLA Children Scheme: Binding Decisions With Minimal Delay – Pump Court Chambers

Posted April 24th, 2020 in arbitration, chambers articles, children, dispute resolution, families, news by sally

‘Following the successful launch and running of the financial remedy and property arbitration scheme set up by Institute of Family Law Arbitrators (IFLA)[1] in February 2012, in July 2016 IFLA commenced the Children Scheme. Its aim is to provide parties with an alternative to Court, and is particularly useful when a dispute has reached the point that mediation is likely to be ineffective and where a neutral third party needs to make a decision as to what is in the child’s best interests in a particular circumstance.’

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Pump Court Chambers, 21st April 2020

Source: www.pumpcourtchambers.com

Coronavirus & Arbitration: Institutional Responses, Challenges and Practical Tips (Part Two) – 39 Essex Chambers

‘In the second of two articles looking at the impact of coronavirus on international arbitration,[1] we consider the following two questions:

1. What challenges must arbitration overcome in order to fully adapt to the demands of remote working?
2. How, practically, can these challenges be met?’

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39 Essex Chambers, 23rd April 2020

Source: www.39essex.com

Coronavirus & Arbitration: Institutional Responses, Challenges and Practical Tips (Part One) – 39 Essex Chambers

‘The ongoing global pandemic created by Covid-19 (‘coronavirus’) has led to unprecedented restrictions on how we conduct our professional lives. In a matter of weeks, businesses around the world have had to make adjustments which, under different circumstances, would have been made over years – or not at all. The dispute resolution sector is no different.’

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39 Essex Chambers, 20th April 2020

Source: www.39essex.com

When is it unfair to conduct a hearing remotely? A look at Re P (A Child: Remote Hearing) [2020] EWFC 32 – St Philips Chambers

‘In the current climate the court and all parties are having to grapple with the thorny issue of the appropriateness for a family law hearing to proceed remotely; particularly concerning contested issues.’

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St Philips Chambers, 22nd April 2020

Source: st-philips.com

Covid-19 – Delayed appeals: arbitrate or mediate? – 33 Bedford Row

‘Many small to medium sized businesses will, thankfully, rarely be involved in litigation. As a result, they will have little experience of what is to follow once they commence a dispute resolution process regardless of the nature of that process. In many cases, disputes will be addressed via litigation[1]. In many instances the perceived wrong done by the other side will drive the dispute forward. It is only perhaps when some of the initial expectation of a quick positive trial outcome fades, whilst the pre-trial process winds on, that parties will wonder ‘should this have gone on for so long’ and/or ‘was there a quicker way to do this?’ Nevertheless, once litigation is commenced it takes on an energy of its own and many parties are able to see the case through to an initial judgment. Matters may thereafter get more complex as (further) fatigue potentially sets in.’

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33 Bedford Row, 10th April 2020

Source: www.33bedfordrow.co.uk

Family Law Arbitration: Is it for me? – Pump Court Chambers

Posted April 20th, 2020 in arbitration, chambers articles, dispute resolution, families, news by sally

‘On 22nd February 2012 a new method of alternative dispute resolution was launched to assist parties to resolve their family problems: arbitration. Arbitration in Family Law developed at around the time when the scope of legal aid was being restricted as a result of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Regulations made pursuant to that Act.’

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Pump Court Chambers, 8th April 2020

Source: www.pumpcourtchambers.com

What I talk about when I talk about arbitrator diversity… Why and how to make arbitral tribunals us, rather than them – Radcliffe Chambers

Posted April 16th, 2020 in arbitration, chambers articles, diversity, news by sally

‘While the range of parties before tribunals has globalised, the typical composition of those tribunals has not. The international arbitrator community has long been said to comprise a club of “elderly white men”. If that was ever quite true, it is certainly less true now, but the international arbitrator community still lags well behind its users when it comes to diversity. Does this matter?’

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Radcliffe Chambers, 15th April 2020

Source: radcliffechambers.com

A word on Covid- 19, the use of arbitration and the Expansion of the Children’s Arbitration Scheme to include Relocation of Children – Family Law Week

‘On the 6th April 2020 the much talked about expansion of the children arbitration scheme came into effect. This is a significant change to the now well established scheme launched in 2016. The scheme has had amendments to its rules along the way but until now, it has not received an extension of its scope. In summary, the scope of scheme has been expanded to include both temporary and permanent relocation of children to foreign jurisdictions that fall within article 2.2(c) below. This development could not be timelier, serving to reinforce arbitration as a strong and worthy contender to litigation.’

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Family Law Week, 14th April 2020

Source: www.familylawweek.co.uk