Arbitration Law Monthly

In Mittal v Westbridge Ventures II Investment Holdings [2023] SGCA 1 the Singapore Court of Appeal has considered the decision of the High Court of Singapore, [2021] SGHC 244, on the important question of whether the validity of an arbitration clause on the grounds of arbitrability was to be determined by the law of the seat or the law applicable to the arbitration clause. It was important in this case because the law of the seat, Singapore, recognised the issue (minority shareholder oppression) as arbitrable whereas the law applicable to the arbitration clause, India, regarded the issue as non-arbitrable. The Court of Appeal rejected the High Court's reasoning, although reached the same ultimate conclusion on the facts of the case.

In Africa Sourcing Cameroun Ltd and Another v LMBS Société par Actions Simplifiée and Another [2023] EWHC 150 (Comm) Sir Ross Cranston considered whether the chairman of a Board of Appeal owed a duty to disclose that he may have acquired knowledge of a dispute in a way that influenced a decision by the Board not to extend a limitation period to which the claimants were subject. The judgment makes it clear that apparent bias is not a given where the arbitration takes place in the context of a trade association where the pool of arbitrators is relatively limited.

In Hulley Enterprises Ltd and Others v The Russian Federation [2023] EWHC 2704 (Comm) Cockerill J addressed the novel point of whether the principle of issue estoppel was available to preclude a foreign state from raising defences to the enforcement of an arbitration award dismissed by the curial courts. Where the defendant is a private person, issue estoppel is readily available, but the complicating factor where a foreign state is the defendant is that of sovereign immunity. In short, does issue estoppel allow recognition and enforcement of a foreign award without independent consideration of whether sovereign immunity is available?