39 Essex Chambers
24 Experts
5 Contributions by 39 Essex Chambers
PRACTICE NOTES
Any mention of Articles in this Practice Note refers to the Articles of the Dubai International Arbitration Centre’s 2022 Arbitration Rules (DIAC, the DIAC Rules).
The arbitration shall be governed by the DIAC Rules in force at the time DIAC arbitration proceedings commence, together with any subsequent amendments to those Rules, unless the parties have expressly chosen to apply the DIAC Rules in effect on the date the underlying arbitration agreement was concluded (Article 2.3).
Prior to commencing an arbitration
Before starting an arbitration under any institutional rules or on an ad hoc basis, reflect on the points below:
does the arbitration clause you invoke encompass the whole of the dispute you intend to advance in these proceedings?
have any pre-arbitration requirements been initiated, fully completed, and properly documented?
are there any limitation matters and prima facie questions concerning contract law formation,
Arbitration
PRACTICE NOTES
All Article citations in this Practice Note refer to the Arbitration Rules of the Dubai International Arbitration Centre (DIAC, the DIAC Rules). Consistent with other prominent institutional frameworks, the composition of the arbitral tribunal under the DIAC Rules is governed by the parties’ arbitration agreement (Article 10.1). Under the DIAC Rules, appointments can proceed in three ways:
appointment of a sole arbitrator
three-member tribunal—where three arbitrators are envisaged, each party designates one arbitrator and, unless agreed otherwise, the two party appointees nominate the third, who will serve as chairperson, for DIAC’s appointment
where the arbitration agreement is silent on whether there is to be one or three arbitrators, DIAC’s default applies so that the Tribunal is a sole arbitrator, unless DIAC decides, in the case’s circumstances, that a three-member tribunal is appropriate (Article 10.2)
Sole
Arbitration
PRACTICE NOTES
All references to Articles in this Practice Note are to the Articles of the Arbitration Rules of the Dubai International Arbitration Centre (DIAC and the DIAC Rules). Over the course of an arbitration, the tribunal may issue multiple awards, whether interim or partial. Each award (as opposed to an order) must follow the requirements set out below, save where it is expressly stated that a point applies only to the final award...
What an award must contain
An award must:
be in writing (Article 34.2)
state the date on which it was made (Article 34.4(j))
state the seat of the arbitration (Article 34.4(d))
set out the reasons on which it was based (unless the parties have agreed otherwise and the law applicable to the arbitration does not require reasons) (Article 34.4(g))
be signed by the
Arbitration
PRACTICE NOTES
This Practice Note considers the use of the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration (the IBA Rules) in international arbitration.
The IBA Rules are frequently incorporated, whether entirely or selectively, in international arbitration (both commercial and investment) to organise factual and expert proof, especially where participants hail from diverse legal traditions, often common law and civil law systems. Within the IBA Rules lies a blend of provisions: some sit nearer to common law practice (eg on witness evidence) whilst others are closer to civil law approaches (eg on document production requests). Elsewhere, provisions strike a balance between these two approaches. The IBA issues detailed commentary to accompany the Rules, offering practitioners helpful further guidance, and this explanatory material is also relied upon and cited within this Practice Note. The latest iteration of the IBA Rules was
Arbitration
PRACTICE NOTES
This Practice Note offers a primer on several key aspects of international arbitration. The Practice Note: Arbitration—an introduction to the key features of arbitration, mentioned below, may likewise be helpful to those wishing to understand arbitration as a method for the resolution of disputes, at a general, introductory level.
There is no universally authoritative definition of ‘international arbitration’. At its most basic, it is arbitration with some form of an international element. Although the meaning of ‘arbitration’ is well established, there is no broadly and consistently accepted description of the requisite ‘international’ character.
In addition, ‘international arbitration’ is often used to signify ‘international commercial arbitration’ (as contrasted, for example, with international investment arbitration) and, accordingly, it is important to determine what is truly ‘commercial’ for these purposes.
International commercial arbitration has increased greatly over the past 40 years, partly as a consequence of the
Arbitration
15 Contributions by 39 Essex Chambers Experts
PRACTICE NOTES
This Practice Note explores the treatment of costs under the Arbitration Act 1996 (AA 1996), covering the tribunal’s cost-related powers and the manner in which costs are addressed in an award.
Understanding costs
Recovering costs is a significant feature of most arbitrations. When seeking, or opposing, a costs award before the tribunal, it is essential to be clear about:
any agreement on costs between the parties
what amounts to ‘the costs of the arbitration’
the tribunal’s jurisdiction to award costs and the principles on which they do so
how interest is to be awarded
the form of the costs award
the avenues to challenge a costs award
Costs agreements between the parties
The parties may not conclude, before any dispute arises, an agreement allocating arbitration costs so that one side must bear them whatever the outcome (AA 1996, s 60). This is the sole mandatory costs provision in the AA 1996...
Arbitration
PRACTICE NOTES
This Practice Note covers two forms of court procedure that arise in deprivation of liberty cases:
applications brought where the legality and validity of a person’s detention under the deprivation of liberty authorisation process is called into doubt or dispute
applications that a public authority may issue seeking authorisation to deprive a person of liberty beyond the ambit and outside the scope of the regime set out in Schedule A1 to the Mental Capacity Act 2005 (MCA 2005)
Both categories of procedure lie outside allocation to case pathways, as each is governed by their own distinct procedural requirements and rules. Note: at the time this note was prepared, the Court of Protection is reviewing the route for obtaining judicial authorisation of deprivation of liberty...
Private Client
PRACTICE NOTES
The powers of the Court of Protection
The Court of Protection is empowered to make one or more decisions about the personal welfare of a person who lacks capacity (P) to make those decisions themselves. It can also appoint a deputy to take such decisions (see Practice Note: Choosing the deputy for further details), though health and welfare deputies are relatively seldom appointed, for the reasons articulated by Hayden J, then Vice-President of the Court of Protection, in Re Lawson, Mottram and Hopton (appointment of personal welfare deputies). For commentary on that ruling, see Case Analysis: Principles governing the appointment of personal welfare deputies (Re Lawson; Re Mottram; Re Hopton). A recent application of the Lawson principles led to the appointment of a personal welfare deputy—see Case Analysis: Court of Protection—when is the criteria for appointing a Personal Welfare Deputy met (Parr v
Private Client
PRACTICE NOTES
This Practice Note examines the implications of replacing the DIAC Arbitration Rules 2007 with the 2022 rules, together with the impact of Decree No 34 of 2021 concerning the Dubai International Arbitration Centre (Decree No 34)...
Introduction
The Dubai International Arbitration Centre (DIAC) has released the DIAC Arbitration Rules 2022 (2022 Rules). Taking effect on 21 March 2022, the 2022 Rules superseded the earlier DIAC Arbitration Rules 2007 (2007 Rules). Their arrival follows the controversial Decree No 34 of 2021 concerning DIAC (Decree No 34)...
Decree No 34 abolished:
the DIFC Arbitration Institute (DAI), the body that had formed a joint venture with the London Court of International Arbitration (LCIA) to create the DIFC-LCIA Arbitration Centre; and
the Emirates Maritime Arbitration Centre (EMAC), with both DAI and EMAC being consolidated into DIAC...
Decree No 34 further provided that:
arbitration clauses
Arbitration
PRACTICE NOTES
In HL v United Kingdom (the Bournewood case), the European Court of Human Rights determined that, where a person with a mental disorder is cared for or treated in circumstances amounting to a deprivation of liberty, a procedure prescribed by law must be observed. Consequent upon that decision, the Mental Health Act 2007 (MHA 2007) inserted a series of provisions into the Mental Capacity Act 2005 (MCA 2005), which took effect on 1 April 2009. Notably, Schedule 1A to the MCA 2005 created what are now termed the Deprivation of Liberty Safeguards, or the DOLS regime. The powers conferred by the MHA 2007 upon the Court of Protection, together with the DOLS regime, were implemented to ensure suitable legal safeguards for incapacitated persons who are, or might be, deprived of their liberty outside the scheme of the Mental Health Act 1983 (MeHA 1983).
Private Client
PRACTICE NOTES
The matters to be decided within the welfare remit of the Court of Protection are frequently highly intimate, and commonly entail either the court endorsing the use of state authority, or exercising that authority itself, over an individual—such as by imposing limits on contact between the protected person (P) and their relatives. It is therefore no surprise that human rights run through every facet of the court’s decision-making...
The Human Rights Act 1998 and the European Convention on Human Rights
The European Convention on Human Rights (ECHR) was brought into domestic law by the Human Rights Act 1998 (HRA 1998), which renders it unlawful for any public authority to act in a way that violates a person’s human rights. This binds all local authorities and National Health Service (NHS) bodies, as well as the courts themselves. The Court of Protection has
Private Client
PRACTICE NOTES
When is it necessary to instruct a psychiatrist?
Psychiatrists are often invited to evaluate the decision‑making capacity of protected persons (Ps) who are the subject of proceedings before the Court of Protection. They are, on occasion, asked as well to offer a view on P’s best interests. For further guidance on mental capacity, see Practice Notes: Mental capacity—an introduction and Mental capacity—assessments and tests. It should be clearly recognised from the outset that instructing a psychiatrist is not invariably required in order to assess capacity. Capacity evaluations may properly and safely be undertaken by a broad range of professionals, including psychologists, general practitioners (GPs), social workers, and speech and language therapists. In some matters, particularly where P’s capacity is borderline or fluctuating, instructing a psychiatrist to assess capacity can prevent significant delay and wholly unnecessary cost. This is especially true where the
Private Client
PRACTICE NOTES
This Practice Note reviews the law and practice on awarding interest on damages and costs in international commercial arbitration, with specific reference to the law of England and Wales and the Arbitration Act 1996 (AA 1996). It also draws on comparative guidance from investment treaty arbitration. To compare this issue across jurisdictions globally, see our International Comparator Tool.
Which law determines the award of interest in arbitration proceedings?
The decision whether to award interest, and the appropriate rate, rests with the arbitral tribunal, which must first identify the basis for awarding interest. In doing so, the tribunal will assess:
any agreement between the parties (in the arbitration agreement, the main contract, or reached later)
the terms of any applicable arbitral rules or legislation (including provisions for statutory interest)
the relevant applicable law
In practice, any express agreement by the parties will be
Arbitration
PRACTICE NOTES
A key distinction between domestic arbitration and international arbitration is the need to determine which system of law governs specific questions. In a domestic arbitration, it is highly probable that a single jurisdiction’s law will regulate all matters. In international arbitration, the situation can be markedly different. The potential bodies of applicable law include:
the law governing the parties’ capacity to enter into the arbitration agreement
the law applicable to the substance of the dispute
the law applicable to the arbitration agreement
the law of the seat of the arbitration
the law and procedure of the courts for recognition and enforcement of an award
When making their choice of applicable law, parties should recognise the risk of inconsistencies between these various laws. For example, whether a particular dispute is capable of being referred to arbitration may attract
Arbitration
PRACTICE NOTES
Safeguarding concerns often underpin or arise during welfare proceedings in the Court of Protection, and this Practice Note explains how such matters should be approached.
What is safeguarding?
In its widest sense, ‘safeguarding’ covers every facet of a person’s welfare. This understanding of safeguarding guides local authorities’ approach to providing adult services within their functions and commissioning responsibilities too.
In proceedings before the Court of Protection, however, ‘safeguarding’ is usually shorthand for what is more precisely described legally as ‘adult protection’ within practice. That term relates to inquiries and interventions by a public authority where there is concern that someone has been, is at present, or could in future be, the victim of abuse.
The statutory basis of safeguarding applications
Under the Care Act 2014 (CA 2014), local authorities in England have defined safeguarding duties. In Wales, comparable obligations arise under the Social Services and
Private Client
PRACTICE NOTES
Medical treatment of those without capacity to consent
As a general rule, it is a patient’s (P’s) consent that renders invasive medical intervention lawful. Where P cannot provide consent, treatment that is necessary and in P’s best interests may lawfully be given. Section 5 of the Mental Capacity Act 2005 (MCA 2005) supplies a general defence for acts undertaken in connection with a person’s care or treatment, provided the actor has first taken reasonable steps to assess whether the individual lacks capacity in relation to the decision and reasonably believes both that capacity is absent and that the act is in that person’s best interests. In 2018, the Supreme Court in NHS Trust v Y confirmed that, if the MCA 2005 is complied with, relevant professional guidance is observed and the Code of Practice guidance followed, including the conduct of the
Private Client
PRACTICE NOTES
Introduction
The adoption of sewers is the mechanism by which sewers are vested in the sewerage undertaker or an appointed sewerage company, after which the undertaker meets the cost of maintenance. A sewer adoption agreement (described in this Practice Note as a ‘section 104 agreement’) is the contract that developers or, in Ofwat’s terminology, ‘self-lay providers’ (SLPs) enter into with the undertaker when the developer wishes the undertaker to assume responsibility for sewerage infrastructure they have built so that it becomes a public sewer. A sewer adoption agreement can likewise be used where a section 160 Water Industry Act 1991 (WIA 1991) arrangement exists under which the undertaker agrees to carry out works connected with constructing sewerage infrastructure at the relevant person’s expense. The statutory basis for undertakers to enter such agreements is WIA 1991, s 104.
The approach to adopting new sewerage
Planning
PRACTICE NOTES
Local authorities (LAs) are under a duty, in specified circumstances, to ensure that children and young persons with special educational needs receive the special educational provision required. In carrying out these functions, a local authority will set out a child’s identified needs within an Education Health and Care Plan (EHCP), differentiating educational needs from health or social care needs. While preparing the plan, the authority identifies what constitutes educational provision—intended to meet educational needs—and what amounts to provision for health and social care. This divide matters because it determines who is responsible for delivering the necessary provision and how it can be enforced. For an LA, this bears on budgets; for a parent or young person, it concerns practical delivery. This Practice Note describes the process for identifying SEN provision in England and explores the distinction between educational needs and other needs. For the
Local Government
PRACTICE NOTES
Introduction
On occasion, it becomes necessary to make an urgent application to the Court of Protection in one of two scenarios:
when no proceedings are on foot, yet urgent relief from the court is required before the preliminary steps to issue can be completed; or
when proceedings are already underway and an unforeseen development means the court must be approached swiftly during those proceedings
In essence, the same principles apply in either scenario (and they apply equally whether the application concerns the person’s health and welfare or their property and affairs). Under Practice Direction 3B on case pathways (PD 3B), more formal requirements govern how the first category above should be brought. See Practice Note: Making an application to the Court of Protection.
The particular requirements for medical treatment cases (despite their inclusion within the personal welfare case management pathway) are covered in
Private Client
PRECEDENTS
IN THE COUNTY COURT AT [ insert ]
Claim No:
BETWEEN [ A.B. ] Claimant-and-[ C.D. ] Defendant
PARTICULARS OF CLAIM
At the relevant times, the Claimant was the [ owner and ] driver of a [ make, model ] motor vehicle, registration [ insert registration number ], whilst the Defendant was driving a [ make, model ] motor vehicle with registration [ insert registration number ].
[ Details of accident ]
[ The Claimant relies upon an admission of liability made by the Defendant/the Defendant’s insurance company on [ insert day/month/year ] ]. [ The accident was caused by the negligence of the Defendant. ] [ PARTICULARS OF NEGLIGENCE ]
3.1 [ particulars relevant to case ]
3.2 [ … ]
As a
PI & Clinical Negligence
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