International Arbitration Newsletter - December 2020 | Regional Overview: Asia Pacific

China

Hong Kong and mainland China sign arrangement on mutual enforcement of awards

On 27 November 2020, a supplementary arrangement on the mutual enforcement of awards was signed between Hong Kong and mainland China. It clarifies the two-fold procedures for the recognition and enforcement of arbitral awards, removes the current restriction by allowing the enforcement of Hong Kong or mainland China awards in two jurisdictions simultaneously and allows courts to consider imposing post-award interim measures before or after accepting the application for enforcement of an award.

The supplementary arrangement also echoes the recent legal development in mainland China by implying that Hong Kong courts would enforce an award issued according to the PRC Arbitration Law, regardless of whether it comes from a Chinese or an international arbitration institution seated in mainland China. However, it is not clear whether mainland China-seated ad hoc arbitrations will be enforceable in Hong Kong under the supplementary arrangement since the PRC Arbitration Law still does not allow ad hoc arbitration.

Kazakhstan

Panel must rethink damages in mining dispute

A US$ 50 million award in favour of World Wide Minerals (WWM) has been set aside, after the London Commercial Court accepted that the quantum of the ruling was granted without giving Kazakhstan a fair chance to address the damages issue.

The Court said that the London-seated UNCITRAL tribunal not only awarded damages without giving Kazakhstan the opportunity to properly address the damages, but also awarded the sunk cost of the investment only accepting some of WWM claims on liability, when it had alleged damages on an all or nothing contention. 

The conflict arose in 2013 when WWM, which is a Canadian-based mining company, filed a claim against Kazakhstan, accusing the state of frustrating WWM’s operation contracts over the largest uranium facilities in the country. The Canadian company based its claim on a BIT between Canada and the former USSR, understanding that Kazakhstan was bound to the former treaty as a legal successor of the Soviet Union. Kazakhstan country was found liable for breaching the contracts.

Singapore

Singaporean businessman fails to overturn SIAC award

The Singapore High Court has upheld a SIAC US$ 2.4 million award in favour of an Indian investor, despite the objection of the counterparty, a Singaporean businessman, who claimed he had not misrepresented the financial situation of the company.

The dispute arose between 2014 and 2016, when the Indian investor invested US$ 2.9 million in a Singaporean building and construction company, acquiring a 50% stake in the business, while the Singaporean businessman held the remaining stake.

Almost immediately the relationship deteriorated as the investor alleged that he had been fraudulently induced to enter into business by a misrepresentation relating to the state of the company’s finances.

In 2019, a sole arbitrator issued the final award finding that the businessman had made serious fraudulent misrepresentations and had misapplied the project’s funds. The award ordered payment of the  amount invested minus the benefits received from the failed project.  

Insurance company’s stay fails in pandemic claim brought by hotel owners

In May 2020, Silverlink, holding company for the Aman Group, which manages a luxury hotel in Phuket, was forced to close because of the local lockdown measures due to the COVID-19 pandemic. Silverlink made a claim under its insurance policy with its insurer MS First based on the lockdown measures. After its claim was rejected, the hotel owner launched proceedings in May before Singaporean courts. The insurer applied for a stay on the basis that the dispute was covered by an arbitration agreement, but the stay was denied by an assistant registrar, leading to the latest appeal by MS First.

In the insurance policy, along with the arbitration clause, there is a dispute resolution clause stipulating that any dispute “regarding the interpretation or application” of the policy will be subject to a competent court in Singapore. By interpreting the parties’ intention, the Singapore High Court said the jurisdiction clause was placed in the policy to carve out disputes regarding the interpretation or application of the policy from the scope of the arbitration clause, which made commercial sense by allowing such disputes to be resolved efficiently. Based on above, the Singaporean court has allowed Silverlink to continue the litigation proceedings before the court.