Anglo-French approaches to arbitration

Dr Manuel Penades provided welcome remarks, shedding light on how French and English courts often agree to disagree when dealing with arbitration matters.

The first panel dealt with corruption in arbitration. The panel was moderated by the organiser of the conference, Reef Alfahad, PhD Candidate at King’s College London. The panel featured Jason Fry KC, the Global Head of the International Arbitration Group, and Partner, at Clifford Chance and Visiting Fellow at King's College London, Prof. Dr. Jan Kleinheisterkamp, Arbitrator and Mediator at JK ADR and Visiting Professor at LSE Law School, and Karolina Latasz, Senior Associate at Squire Patton Boggs.

Corruption may raise different questions throughout the lifecycle of an arbitration. The way in which arbitration deals with corruption, in its many manifestations, has been a concern for the arbitration community. This is evidenced by the various debates on the topic with the occasion of the review of the English Arbitration Act of 1996. It is also evidenced by the recent high-profile French and English cases on the matter.

With this in mind, the panel discussed the role of courts and arbitral tribunals in rooting out corruption in France and England - what do courts do, how much leeway do they give the arbitrators, and how much are they willing to step in. The panel then assessed whether the role of arbitrators, combined with the French and English approaches on the review of awards, provide a sound mechanism to root out cases of corruption. Finally, the panellists addressed whether the introduction of an express duty upon the arbitrator to safeguard against corruption in the English Arbitration Act would help or hinder promoting London as a seat of arbitration.

The second panel discussed anti-suit injunctions for foreign seated arbitration, particularly in light of the recent UK Supreme Court decision in UniCredit v RusChemAlliance. The panel was moderated by Marie Berard, Partner and Head of the London International Commercial Arbitration Group at Clifford Chance. The panellists included the leading counsels for both parties in UniCredit v RusChemAlliance, Alexander Gunning KC, Barrister at One Essex Court, and Professor Jonathan Harris KC (Hon.), Barrister at Serle Court and Professor at King’s College London, and the French law expert involved in the case, Raphael Kaminsky, Partner at Teynier Pic.

The discussion revolved around the UK Supreme Court’s decision, addressing the key points made in the judgement and its implications. The panel considered how the court addressed the points made as to the governing law of the arbitration agreement and the appropriate forum for the claim. It then addressed the approach that has been taken in the Arbitration Bill and how this might impact the availability of anti-suit injunctions in support of foreign seated arbitration in the future. The panel also drew insights from the French legal perspective. It addressed the mechanisms the French courts have to uphold arbitration agreements. After sharing their experiences in this case, the panellists gave their closing remarks on the role of anti-suit injunctions in shaping the competitive dynamics between Paris and London as leading seats for international arbitration.

The discussions of both panels, in line with Dr Penades’ welcome remarks, confirmed that French and English courts have again adopted different approaches when dealing with corruption in arbitration and anti-suit injunctions.

This conference was organised by Reef Alfahad, PhD Candidate at King’s College London and was sponsored by Clifford Chance.