Use or lose clause meaning

In this issue: Arbitration in England & Wales International arbitration Investment arbitration treaty Institutional and ad hoc arbitration Other ADR and arbitration-related news The Arbitration Blog New Law Journal Daily and weekly news alerts New and updated content Arbitration in England & Wales High Court—anti-arbitration suits—use it or lose it? In Tyson v Partner Reinsurance [2023] EWHC 3243 (Comm), the court considered two applications: a stay in favour of arbitration, and an anti‑arbitration injunction. The matter was striking because the parties executed two reinsurance contracts only eight days apart, each addressing the same risk, term and counterparties. The first chose English law as the governing law and featured an exclusive jurisdiction clause for the English courts. The second selected New York law and incorporated a New York arbitration clause. The defendant, Partner Reinsurance, applied for a mandatory stay so the dispute could proceed to arbitration. The claimant, Tyson, asked the court to grant an...

Tyson International Company Ltd applicant and Partner Reinsurance Europe SE, [2023] EWHC 3243 (Comm) What are the practical implications of this case? This judgment stands out for three main reasons of practical significance. First, it addresses how to resolve clashing jurisdiction clauses within a suite of contracts. Secondly, it examines whether market custom and practice can influence the construction and understanding of a contract. Finally, it surveys the principles to be applied when dealing with anti-arbitration and anti-suit injunctions in this context. Where a single contract contains both an exclusive jurisdiction provision in favour of a court and an arbitration clause provision, English courts have previously read that seemingly pathological pairing as signifying that the designated court has supervisory jurisdiction as the seat of the arbitration, with the merits of the dispute to be determined by the stipulated arbitral process. This decision indicates that, if those inconsistent provisions appear in sequential contracts, entered one after another, the court is more likely to treat the later agreement as governing...

This glossary sets out numerous expressions frequently encountered in the restructuring arena. Words appearing in the definitions in bold are explained in other entries in this glossary. For further banking terminology, see the principal Banking & Finance Glossary. Restructuring glossary—A Acceleration: Acceleration means the agent, acting on directions from the majority lenders after an event of default, takes formal action, for example calling for early repayment of the facility. Ad-hoc committee: A temporary creditors’ group (often contrasted with a formal committee) that lacks any entitlement to official recognition. Administration: A process under the IA 1986 in which a financially distressed company is operated by an administrator as a going concern before longer-term outcomes, such as break-up and sale, are pursued. Administrator: An Insolvency Practitioner named by the court, a Qualifying floating charge holder, the directors or the company, to take control and fulfil one of the purposes in IA 1986, Sch B1. Administrative receivership: Arises when a company breaches the terms of...

This glossary sets out numerous expressions regularly encountered in the restructuring & insolvency sphere. Words shown in bold within definitions are themselves explained in other entries in this glossary as well. A Article X The MLIJ contains a single provision named Article X, aimed at jurisdictions that have already implemented the MLCBI, like England, or are weighing its adoption. Article X states: ‘Not withstanding any prior interpretation to the contrary, the relief available under [insert a cross-reference to the legislation of this State enacting Article 21 of the UNCITRAL Model Law on Cross-Border Insolvency] includes recognition and enforcement of a judgment’ (see Practice Note: UNCITRAL model law on recognition and enforcement of insolvency-related judgments (MLIJ): Article X). Asset-backed security (ABS) A form of security anchored by asset pools, for example loans, leases, and credit card receivables. Assimilated law From 1 January 2024, ‘retained law’ has been retitled ‘assimilated law’. The body of domestic law originally arising from EU obligations, created by the European...

Banking & Finance glossary A Auditing and Accounting Organisation for Islamic Financial Institutions (AAOIFI) The foremost Islamic, international, autonomous, independent, not-for-profit corporate body that develops and issues accounting, auditing, governance, ethics and Shari’ah benchmarks and standards for Islamic Financial Institutions (IFIs) and the wider Islamic finance sector. Founded in Bahrain in 1991, it is backed by a number of institutional members across more than 45 countries, including central banks and regulatory authorities, financial institutions, accounting and auditing practices, and legal firms. Its pronouncements are currently applied by leading Islamic financial institutions across the world and have advanced a progressive and gradual harmonisation of global Islamic finance practice. It also delivers professional qualification programmes—notably Certified Islamic Professional Accountant (CIPA), Certified Shari’ah Adviser and Auditor (CSAA), and the corporate compliance programme—in efforts to strengthen the industry’s human capital and governance frameworks. For further details, see Practice Note: Key participants in the Islamic finance industry—Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI). Acceleration Acceleration is the formal action...