Arbitration Regional Overview: Asia Pacific
Arbitration Regional Overview: Asia Pacific
Arbitration Newsletter April 2018
The most relevant Asia Pacific updates from the global International Arbitration and ADR practice group at Garrigues.
West Shelf Project arbitration
South Korean state-owned entity, Korea Gas Corporation (KOGAS), is pursuing a price review arbitration against the owners of one of Australia’s largest natural resources projects under a contract for the supply of liquefied natural gas. KOGAS launched the claim against Australia’s North West Shelf joint venture under a supply contract that ended in 2016. It is understood that the case concerned a difference over an agreed price renegotiation during a mid-term supply contract.
Legacy mining contracts lead to LCIA claim
Nyrstar, a Belgian metals processing company, has brought an LCIA claim against an Australian mining company, New Century Resources, arguing that it owns 90% of the zinc of a recently rehabilitated mine in Queensland under legacy contracts. The claim is based on “life of mine” agreements that Nyrstar says it signed more than 10 years and entitle it to the lion’s share of 1.5 tonnes of zinc from the mine, which New Century put out for tender at the end of the last year.
Casino dispute heads to arbitration
An Australian casino operator, Donaco International, has brought a US$120 million SIAC claim against a former Thai business partner, Somboon Sukcharoenkraisri, alleging he breached a non-compete agreement after selling the company a casino by running his own gambling operation next door and another concealed in a supermarket.
Judicial Interpretations on Arbitration Review
On 26 December 2017, the Supreme People’s Court of China (the SPC) published two judicial interpretations on judicial review of arbitration (the Interpretations) which came into force on 1 January 2018. The Interpretations provide greater consistency between the judicial review process of domestic, foreign-related and foreign arbitrations in China, which consist of a reporting process from lower courts up to the SPC on setting aside the arbitration award. The Interpretations also further clarified the governing law of arbitration agreement and jurisdiction on judicial review cases.
ArcelorMittal seeks to enforce billion dollar award
ArcelorMittal, the world’s largest steel company, has asked a US court to enforce a US$1.4 billion ICC award against Indian conglomerate Essar arising from a Minneapolis-seated arbitration.
ArcelorMittal USA lodged a petition in the US District Court for the District of Minnesota on 11 January 2018 to enforce the award against Essar Steel – the Mauritian-registered subsidiary of Essar Global.
The dispute between the parties concerned an agreement by which Essar agreed to supply ArcelorMittal with a significant volume of iron ore pellets – a crucial component in the production of steel – from a mine Essar was developing in Nashwauk, Minnesota.
Delhi court enforces pharma award
An Indian court has granted enforcement of a US$550 million ICC award won by Japanese drugmaker Daiichi Sankyo against sibling pharmaceutical investors but not against their children – while a set-aside application in Singapore is still pending.
The Delhi High Court rejected all objections posed to enforcement by Indian brothers Malvinder and Shivender Mohan Singh and their empire of companies, ruling that the award was in line with Indian public policy. However, the court denied attempts to enforce the award against assets in the name of the Singh brothers’ children, which it said were “shockingly disproportionate”.
The dispute related to the Singh brothers’ sale of their 63% interest in Indian pharmaceutical company Ranbaxy Laboratories to the Japanese drugmaker for US$4.6 billion in 2008, at a time when Ranbaxy was under investigation by the US Food and Drug Administration and Department of Justice.
Further law reform under way
India’s cabinet chaired by Prime Minister Narendra Modi has approved a bill with further reforms to the 1996 Arbitration Act following those in 2015 – paving the way for the creation of an independent body to set standards for institutional arbitration and the scrapping of a controversial timeline for the issue of awards for international cases.
The amendments approved will help it achieve its goal of encouraging and improving institutional arbitration in India, through making the process more party friendly and cost effective and ensuring timely disposal of arbitration cases.
Dutch court lifts multibillion Kazakh asset freeze
A Dutch court has lifted an attachment order that led to the freezing of more than US$22 billion in assets owned by a Kazakhstan sovereign fund, Samruk-Kazyna, in Dutch entity KMG Kashagan, through which Kazakhstan's national oil and gas company KazMunayGas participates in the international consortium that runs the Kashagan field, one of the largest offshore oil fields in the Caspian Sea – after finding that the arbitral creditor that won the order concealed information from the court.
In a summary judgment, the Amsterdam District Court granted a motion by the National Bank of Kazakhstan to lift an ex parte attachment order obtained by Moldovan investors Anatolie and Gabriel Stati and their companies Ascom Group and Terra Raf Trans.
The Statis are seeking to enforce a US$520 million Energy Charter Treaty award that they obtained in a Stockholm Chamber of Commerce arbitration against Kazakhstan in 2013 over the seizure of their oil and gas operations. The shares have a nominal value of US$5.2 billion.
Kazakhstan seeks to annul another ICSID award
Kazakhstan has applied to annul a US$25 million ICSID award in favour of a Turkish company, Aktau Petrol Ticaret, whose investments in oil transhipment and storage facilities at the port of Aktau on the Caspian Sea were seized by court bailiffs. The state’s request for annulment was registered on the ICSID website on 27 February 2018.
Hong Kong tribunal orders payment by Gobi Desert mining company
A Hong Kong-seated tribunal has ordered SouthGobi Resources, a Canadian mining company operating in Mongolia's Gobi Desert via its Mongolian subsidiary, SouthGobi Sands, to return a US$11.5 million payment to First Concept, a subsidiary of Hong Kong investment company National United Resources, in a dispute over an agreement to supply coal.
International court to hear arbitration-related cases in Singapore
Singapore has passed a bill allowing parties to submit cases under its international arbitration act to the Singapore International Commercial Court (SICC) for consideration by a bench of judges from all over the world – but only Singapore qualified lawyers will be able to argue them.
The SICC was formed three years ago as a division of the Singapore High Court to be a neutral venue for international commercial litigation for parties with little or no connection to Singapore who need strong rule of law, experienced and respected judges and access to high quality legal and professional services.
Airbus to pay Taiwan over arms deal
A tribunal in an ICC arbitration has ordered Airbus to pay Taiwan €104 million in a dispute over its role in an arms deal. In a press release on its website, Airbus confirmed that its subsidiary Matra Défense SAS has been held liable for a breach of contract in a case brought by Taiwan over a 1992 purchase agreement for the sale of missiles.