Asia Pacific Arbitration Roundup 2019 ASIA PACIFIC ARBITRATION ROUNDUP 2019 2 WWW.DLAPIPER.COM Table of contents Regional overview…………………………………………………………………………...... 04 Regional contacts ……………………………………………………..…………………....... 05 Australia ………………………………………………………………………………………....... 07 China .……………………………………………………………..……………………………....... 10 Hong Kong ………………………………………………………………………………….….... 13 Japan ……….……………………………………………………………………………………...... 16 New Zealand …………………………………………………………………………………..... 18 Singapore ……………………………………………………………………………………….... 20 South Korea …………………………………………………………………………………….... 25 Thailand …………………………………………………………………………………..………... 28 Key contacts ……………………………………………………………………………………... 30 3 ASIA PACIFIC ARBITRATION ROUNDUP 2019 Asia Pacific Arbitration Roundup 2019 Welcome to the first edition of our Asia Pacific Arbitration Roundup. 2019 was an eventful and active year for international arbitration. Various notable cases were decided demonstrating a generally consistent pro-arbitration approach across the Asia Pacific region. Governments and arbitration institutions continued to innovate and seek changes to their rules and policies for bigger market shares. In this new series, we highlight some of the major developments for international arbitration across Asia Pacific in 2019. We welcome any questions or feedback. AUSTRALIA The Beijing Arbitration Commission and A liberal pro-arbitration approach was affirmed by Beijing International Arbitration Centre released the High Court in Rinehart v Hancock Prospecting Pty, new draft international investment arbitration rules which ruled that disputes about the validity of settlement for public comment. deeds were disputes “under” those deeds and therefore were subject to the arbitration clause. Various decisions and interpretations were issued by the Supreme People’s Court relating to arbitration. In Infrastructure Services Luxembourg S.A.R.L v Kingdom of Spain, the Federal Court ruled that sovereign immunity Click here to know more. does not deprive the court of its subject matter jurisdiction to make procedural orders in enforcement proceedings. HONG KONG The Arrangement Concerning Mutual Assistance in The Western Australia Supreme Court raised the bar for Court-ordered Interim Measures in Aid of Arbitral establishing urgency under an “urgent relief” carve out to Proceedings by the Courts of the Mainland and of the arbitration agreement in Duro Felguera Australia Pty Ltd v Hong Kong Special Administrative Region came into Samsung C&T Corporation. force, allowing parties to Hong Kong arbitrations to seek interim measures in Chinese courts. Click here to know more. The principles of anti-suit injunctions were confirmed CHINA by the Hong Kong Court, which reaffirmed its robust The first Judgments of the China International pro-arbitration approach in Dickson Valora Group Commercial Courts (CICC) were published in (Holdings) Co Ltd v Fan Ji Qian, Giorgio Armani SpA v Elan September 2019, in which the CICC confirmed its Cloths Co Ltd, AIG Insurance Hong Kong Limited v Lynn jurisdiction to hear disputes on the validity of arbitration McCullough and William McCullough, and GM1 v KC. agreements without the need to gain approval from the tiered reporting system applied to the lower courts. The Court of Appeal ruled on arbitration clauses in winding-up proceedings in light of the controversial ruling The new “Framework Plan for the New Lingang Area in Lasmos Limited v Southwest Pacific Bauxite (HK) Limited. of China (Shanghai) Pilot Free Trade Zone” now allows foreign administered arbitration in Lingang, Shanghai. Click here to know more. 4 WWW.DLAPIPER.COM JAPAN In Sun Travels & Tours Pvt Ltd v Hilton Manage (Maldives) The Japan Commercial Arbitration Association (JCAA) Pvt Ltd, the High Court held that delay may forfeit the amended its Administrative Arbitration Rules and availability of anti-suit and anti-enforcement injunctions. Commercial Arbitration Rules and introduced a new set of Interactive Rules. Click here to know more. A new bill has been introduced to expand the scope SOUTH KOREA for foreign lawyers to conduct international arbitration The Supreme Court of Korea reaffirmed the high bar for in Japan. setting aside arbitral awards in two cases. Click here to know more. The Korean Commercial Arbitration Board (KCAB) continued its outward expansion, officially opening its NEW ZEALAND overseas liaison office in Hanoi, Vietnam. Two amendments were made to the Arbitration Act 1996 to align with recent developments in domestic and KCAB prepares to release final video conferencing international case law and arbitration practice. protocol following the release of the Draft Protocol in late 2018. In Wai-iti Developments Ltd v General Distributors, the Court favoured the prima facie review test over a Click here to know more. ‘full review’ approach when considering whether to grant a stay. THAILAND In April 2019, the National Legislative Assembly Click here to know more. amended the Thai Arbitration Act, formally allowing foreign arbitrators and counsel to perform their duties SINGAPORE as an arbitrator or a representative of the disputing The Court of Appeal confirmed the principles on parties in arbitral proceedings in Thailand. deciding the proper law of an arbitration agreement in BNA v BNB and another. The Supreme Administrative Court overturned the ruling of the Central Administrative Court in relation to the The Court of Appeal considered the preclusive effect Arbitration Award in the Hopewell Project Dispute. of Article 16(3) of the UNCITRAL Model Law in Rakna Arakshaka Lanka Ltd v Avant Garde Maritime Services Click here to know more. (Pte) Ltd. Regional contacts Ernest Yang Gitanjali Bajaj Partner, Hong Kong Partner, Sydney Co-Head of International Co-Head of International Arbitration, Asia Pacific Arbitration, Asia Pacific +852 2103 0768 +61 2 9286 8440 [email protected] [email protected] 5 ASIA PACIFIC ARBITRATION ROUNDUP 2019 6 WWW.DLAPIPER.COM Australia Major developments In reaching this conclusion, the High Court unanimously and cases in Australia confirmed that arbitration agreements should be construed just like any other commercial agreement, Gitanjali Bajaj, Corey Steel, Samuel Cho, Erin Gourlay by reference to the language used by the parties, In this article, we discuss three significant arbitration- the surrounding circumstances, and the purposes related cases decided by Australian courts in 2019 and objects to be secured by the contract. While there namely, Rinehart v Hancock Prospecting Pty Ltd [2019] may be cases which have to be resolved largely, if not HCA 13, Infrastructure Services Luxembourg S.A.R.L v entirely, by reference to the language of the arbitral Kingdom of Spain [2019] FCA 1220 and Duro Felguera clause, in this case, the context and purpose of the Australia Pty Ltd v Samsung C&T Corporation [2019] Deeds clearly indicated that the scope of the arbitral WASC 90. clause was wide enough to cover disputes about the validity of the Deeds. Relevantly, the Court considered Rinehart v Hancock Prospecting that the underlying rationale for the Deeds was to Pty Ltd [2019] HCA 13 address risks of commercial and reputational damage High Court of Australia affirms liberal pro-arbitration to the Hancock Group from publicity, and that all approach and the importance of arbitration in disputes relating to the Deeds including as to their confidential disputes validity (closely interlinked with substantive issues) were intended to be the subject of confidential processes The case concerned a dispute raised by of dispute resolution, i.e. arbitration, for that reason. Ms Bianca Rinehart and Mr John Hancock (as beneficiaries of trusts administered by their The High Court also considered a cross-appeal by three mother Mrs Gina Rinehart and others) in of the respondents who were not parties to the Deeds relation to the trustees’ conduct which was alleged (Third Parties) to stay claims brought against them by to have diminished the assets of the trusts. the beneficiaries (concerning tenements transferred to them by Hancock Prospecting Pty Ltd (HPPL) allegedly The beneficiaries commenced proceedings in the in breach of trust) under s 8(1) of the Act on the basis Federal Court of Australia in relation to the alleged that they were a person claiming “through or under” misconduct, and Mrs Rinehart sought to have the a party to the Deeds. The majority (with Edelman J proceedings referred to arbitration on the basis that dissenting), relying on Tanning Research Laboratories the dispute was the subject of an arbitration agreement Inc v O’Brien,1 held that the Third Parties were persons pursuant to s 8(1) of the Commercial Arbitration claiming through or under a party because an essential Act 2010 (NSW) (Act). Mrs Rinehart relied upon a element of their defence was whether or not HPPL had number of settlement deeds entered into between committed a breach of trust or had been absolved of the parties (Deeds) which came into existence against responsibility for the breach, and therefore stood in the background of public threats of litigation by the same position vis-à-vis the appellants as HPPL. Mr Hancock about Mrs Rinehart’s wrongdoing. Each of the Deeds contained an arbitral clause providing that Infrastructure Services Luxembourg any disputes “under” the Deeds were to be resolved in a S.A.R.L v Kingdom of Spain [2019] confidential arbitration. FCA 1220 Australian Court confirms that a foreign State’s claim for The beneficiaries asserted that they were not bound