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Commercial Disputes Weekly – Issue 932 November 2021

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BITE SIZE KNOW HOW FROM THE ENGLISH COURTS

"It would be illogical if the law governing the validity of the arbitration agreement were to differ depending on whether the question is raised before or after an award has been made."Kabab-Ji SAL v Kout Food Group

Arbitration
Following its decision in Enka v Chubb (2020), the Supreme Court has confirmed that, when determining whether an arbitration agreement is valid in the context of an application to enforce an arbitration award, the same approach to determining applicable law should be taken, and a choice of law clause in the underlying contract will thus normally be a sufficient “indication” of the law to which the parties have subjected the arbitration agreement.
Kabab-Ji SAL v Kout Food Group

Arbitration
In a decision which will be welcomed by parties looking to enforce arbitration awards in England and Wales, the Commercial Court has rejected arguments that a counterclaim or additional claim could be brought in the context of such proceedings, holding that while the relevant rules were not entirely clear, to permit a counterclaim would be likely to thwart or complicate enforcement.
Selevision Saudi Company v Bein Media Group LLC

Contract
In an interesting decision on the “battle of the forms” principle, the Court of Appeal has upheld a decision that a jurisdiction provision set out in a seller’s standard terms and conditions applied to their subsequent trading relationship with the buyer, even though the buyer’s terms and conditions had been attached to a subsequent order.  The seller’s terms had been signed by the buyer, which “clearly and precisely” demonstrated a consensus between the parties for the purposes of the Brussels Recast Regulation.
TRW Limited v Panasonic Industry Europe GmbH & Anr

Costs
In what appears to be the first application of its kind since the introduction of the rules on costs budgeting, the High Court has rejected an application for a costs capping order, commenting that it was highly unlikely that a costs capping order would ever be better than costs budgeting at controlling disproportionate costs.
Thomas v PGI Group Ltd

Judgments
Emphasising the importance of maintaining confidentiality in draft judgments prior to hand-down, the High Court has explained that where a breach of confidence occurs, it is essential to find out what happened with care, urgency and rigour, and to make clear and complete disclosure to the court and opposing party.
Optis Cellular Technology Inc & Ors v Apple Retail UK Limited & Ors

Should you wish to discuss any of these cases in further detail, please speak with a member of our London dispute resolution team below, or your regular contact at Watson Farley & Williams:

Andrew WardRebecca Williams
Ryland AshCharles Buss
Dev DesaiMarcus Dodds
Andrew HutcheonRobert Fidoe
Mike Phillips

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