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August-2017.Pdf ARBITRATION The International Journal of Arbitration, Mediation and Dispute Management Volume 83 Issue 3 August 2017 ISSN: 0003–7877 Editorial Board Dr Michael O’Reilly Editor Professor Derek Roebuck Editor Emeritus Senior Research Fellow, Institute of Advanced Legal Studies, University of London Dr Gordon Blanke, Book Review Editor Partner, DWF (Middle East) LLP (International Commercial and Investment Arbitration), DIFC, Dubai, UAE Dominique Brown-Berset Attorney-at-Law, Partner, Brown and Page, Geneva Hew R. Dundas Chartered Arbitrator Arthur Harverd Chartered Accountant and Chartered Arbitrator, London Julio César Betancourt Academic Visitor, University of Oxford and University of Salamanca Dr Colin Y.C. Ong QC Barrister; Dr Colin Ong Legal Services, Brunei and Associate Member, Stone Chambers, London This volume should be cited as (2017) 83 Arbitration. The International Journal of Arbitration, Mediation and Dispute Management is published by Thomson Reuters, trading as Sweet & Maxwell. Registered in England & Wales, Company No.1679046. Registered Office and address for service: 5 Canada Square, Canary Wharf, London, E14 5AQ. For further information on our products and services, visit: http://www.sweetandmaxwell.co.uk. Computerset by Sweet & Maxwell. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire. No natural forests were destroyed to make this product; only farmed timber was used and replanted. Copies of articles from The International Journal of Arbitration, Mediation and Dispute Management, and other articles, cases and related materials, can be obtained from DocDel at Sweet & Maxwell’s Yorkshire office. Current rates are: £7.50 + copyright charge + VAT per item for orders by post, DX and email. Fax delivery is guaranteed within 15 minutes of request and is charged at an additional £1.25 per page (£2.35 per page outside the UK). For full details, and how to order, please contact DocDel on Tel: 01422 888 019. Fax: 01422 888 001. Email: [email protected]. Go to: http://www.sweetandmaxwell.co.uk/our-businesses/docdel.aspx. Please note that all other enquiries should be directed to Customer Support (Email: [email protected]; Tel: 0345 600 9355). Orders by email to: [email protected]. Thomson Reuters, the Thomson Reuters Logo and Sweet & Maxwell ® are trademarks of Thomson Reuters. European Union material in this publication is acknowledged as © European Union, 1998–2017. Only EU legislation published in the electronic version of the Official Journal of the European Union is deemed authentic. Crown copyright material is reproduced with the permission of the Controller of HMSO and the Queen’s Printer for Scotland. All rights reserved. No part of this publication may be reproduced, or transmitted in any form, or by any means, or stored in any retrieval system of any nature, without prior written permission, except for permitted fair dealing under the Copyright, Designs and Patents Act 1988, or in accordance with the terms of a licence issued by the Copyright Licensing Agency in respect of photocopying and/or reprographic reproduction. Application for permission for other use of copyright material, including permission to reproduce extracts in other published works, shall be made to the publishers. Full acknowledgement of the author, publisher and source must be given. Published in association with Sweet & Maxwell. © 2017 Chartered Institute of Arbitrators Table of Contents Editorial Editorial Michael O’Reilly 253 Articles Does the Will of the Parties Supersede the Sovereignty of the State? Anti-suit Injunctions in the UK Post-Brexit David Ndolo and Margaret Liu 254 The European Commission in Arbitral Proceedings Dealing with EU Competition Law: A “Friend” or an “Unwelcome Guest”? Katarzyna Sadrak 267 Recent Developments of (International) Commercial Arbitration in the UAE (Part III) Gordon Blanke 271 Resolving Disputes and Improving Security in Post-Conflict Settings: An Example from Liberia Jessica Vapnek, Alfred Fofie, and Peter Boaz 288 Consistency and Predictability versus Finality under the Kenyan Arbitration Act Wilfred Mutubwa 302 CIArb Arbitration Practice Guidelines: An Overview Tim Hardy and Elina Zlatanska 308 Party-Appointed What? Derek Roebuck 313 Lectures and Presentation CIArb’s New Arbitration Guidelines: Safe Ports for Arbitral Storms II Tim Hardy, Simon Nesbitt and Paul Klaas 318 The Roebuck Lecture 2017 Improving Arbitration: Responsibilities and Rights Neil Andrews 330 Cases The Enforcement of Adjudicators’ Awards under the Housing Grants, Construction and Regeneration Act 1996: Pt 63 Kenneth T. Salmon 353 Challenge to Arbitral Award and Survey of Scottish Arbitral Jurisprudence Hew R. Dundas 368 Decision of the Paris Court of Appeal on the Set Aside Application in García v Venezuela Marine De Bailleul 383 Book Reviews Gordon Blanke 388 Gordon Blanke 389 Contributors NEIL ANDREWS: University of Cambridge, Professor of Civil Justice and Private Law MARINE DE BAILLEUL: Attorney at Quinn Emanuel Urquhart & Sullivan LLP, London GORDON BLANKE: Partner, DWF (Middle East) LLP (International Commercial and Investment Arbitration), DIFC, Dubai, UAE PETER BOAZ: B.A., George Washington University; J.D., U.C. Hastings College of the Law. Tetra Tech DPK Project Officer, former Tetra Tech DPK Global Law & Development Fellow (Liberia) HEW R. DUNDAS: Chartered Arbitrator; DipICArb; CEDR-Accredited Mediator; International Arbitrator, Mediator and Expert Determiner ALFRED FOFIE: L.L.B., L.L.M., University of Ghana; J.S.D., L.L.M., New York University School of Law. Chief of Team, Mitigating Local Disputes in Liberia Program Phase I TIM HARDY: Partner at CMS Cameron McKenna Nabarro and Chair of the CIArb’s Practice and Standards Committee PAUL KLAAS: English barrister and member of the Minnesota (USA) Bar, FCIArb, FCCA and Fellow of the American College of Trial Lawyers, member of Maitland Chambers DR MARGARET LIU: Solicitor, Senior Law Lecturer, Coventry University WILFRED A. MUTUBWA: MCIArb, Partner in Lubulellah and Associates, Nairobi, Kenya DAVID NDOLO: PhD Student, Coventry University SIMON NESBITT QC: Arbitrator and arbitration counsel, FCIArb, Barrister, Maitland Chambers, London DEREK ROEBUCK: Senior Research Fellow, Institute of Advanced Legal Studies, University of London KATARZYNA SADRAK: PhD candidate at the University of Heidelberg KENNETH T. SALMON: MCIArb, Solicitor, CIArb Accredited Mediator JESSICA VAPNEK: B.A.Yale University; J.D., Boalt Hall School of Law. Lecturer, UC Hastings College of the Law, San Francisco ELINA ZLATANSKA: FCIArb, CIArb Visiting Research Fellow Editorial As indicated in the most recent issue, a new Editor of the Journal is to be appointed from 2018. I can confirm that this will be Professor Stavros Brekoulakis of Queen Mary University of London. Professor Brekoulakis invites submissions from Issue 1 of 2018 onwards. Please send them for his attention to the two Assistant Editors, Dr Mary Mitsior or Mr Ahmed El Far at [email protected]. In this issue, we are pleased to present the usual range of articles from a variety of jurisdictions around the world, dealing with a diverse range of topics. David Ndolo and Margaret Liu discuss the potential effects of Brexit on anti-suit injunctions. Katarzyna Sadrak addresses the possibility of the European Commission intervening in arbitral proceedings where questions of EU competition law arise. Gordon Blanke continues his review of recent developments in international commercial arbitration in the UAE. Jessica Vapnek, Alfred Fofie and Peter Boaz examine the resolution of disputes and security improvement in post-conflict settings, using Liberia as a case study. Wilfred Mutubwa considers the balance between consistency, predictability and finality in the context of the Kenyan Arbitration Act. Tim Hardy and Elina Zlatanska present an overview of the new suite of CIArb Arbitration Practice Guidelines. And Derek Roebuck takes a historical look at the question of party-appointed arbitrators. In the lectures and presentations section Tim Hardy, Simon Nesbitt and Paul Klaas preside over a debate on the CIArb’s New Arbitration Guidelines. We then include a paper based on the Roebuck Lecture 2017, delivered this year by Professor Neil Andrews and entitled Improving Arbitration: Responsibilities and Rights. In the cases section Kenneth Salmon presents his continuing review of enforcement of construction adjudication under the UK legislation, which, as always, raises themes of wider international interest. Hew Dundas discusses a Scottish case dealing with a challenge to an arbitral award as well as surveying Scottish arbitral jurisprudence more widely. And Marine de Bailleul considers the decision of the Paris Court of Appeal on the set aside application in Serafín García Armas and Karina García Gruber v Bolivarian Republic of Venezuela. Finally, we carry a number of book reviews. As always, we are grateful to all authors and reviewers and greatly appreciate the time they spend ensuring that the Journal continues to be a key reference in this field. Michael O’Reilly Editor (2017) 83 Arbitration, Issue 3 © 2017 Chartered Institute of Arbitrators 253 Articles Does the Will of the Parties Supersede the Sovereignty of the State? Anti-suit Injunctions in the UK Post-Brexit David Ndolo Margaret Liu 1. Anti-Suit Injunctions Anti-suit injunctions are often sought in national courts to restrain foreign proceedings in favour of arbitration. This article will critically
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