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This Practice Note outlines the law concerning criminal recklessness. The subjective test for recklessness Certain statutory and common law offences allow the prosecution to prove mens rea through ‘recklessness’. Put simply, recklessness is where the accused takes an unjustified risk that results in unlawful harm or damage. The House of Lords in R v G reaffirmed the subjective approach to recklessness. Before R v G, two distinct tests were used, depending on the offence charged: Subjective recklessness from R v Cunningham: the prosecution had to establish that the accused personally foresaw the risk. Objective recklessness from R v Caldwell: the prosecution only needed to show that the risk would have been obvious to a reasonable person, without proving the accused themselves foresaw it. In R v G, the House of Lords concluded that the objective test could operate unfairly where a defendant did not foresee the
This Practice Note examines the remedy of rescission, explaining when and in what manner a contract can be unwound (at common law, in equity and under statute) and thereby terminated and brought to an end. It covers the consequences and effects of rescission, the principal grounds for setting aside an agreement (misrepresentation, mistake, undue influence, duress, non‑disclosure, fiduciary misdealing and bribery) and the main obstacles to claiming rescission—affirmation, the intervention of third‑party rights and the impossibility of restitution. For further guidance on rescission in the context of misrepresentation, see Practice Note: Misrepresentation—rescission as a remedy. There are many ways in which a contract may reach its end; see: Terminating contracts—how and when a contract ends—overview for a brief and accessible summary, with links to the related further practical guidance, including Practice Note: Termination and expiry of contracts. For a table
What is a res judicata? A res judicata is a determination by a court or tribunal with jurisdiction over the cause of action and the parties, which finally disposes of the issues decided so they cannot be litigated again by those bound, save on appeal. Final judgments entered by default or by consent fall within this concept, whereas rulings on purely procedural points and any decision lacking finality do not. The doctrine’s aim is to bring litigation to an end and shield parties from being harassed by the same dispute twice. in personam—binds the parties and their privies in rem—binds all persons, privy or otherwise (ie a judgment binding the whole world) A party may rely on res judicata: as an estoppel to defeat an opponent’s claim or defence; and/or as the basis of their own claim or
The offence of causing grievous bodily harm with intent Wounding or causing grievous bodily harm (GBH) with intent can be tried solely in the Crown Court on indictment. Elements of the offence Under the Offences against the Person Act 1861 (OATPA 1861), the prosecution must establish that the defendant unlawfully and maliciously: wounded with the intention of causing GBH, or caused GBH with that intention, or wounded intending to resist or prevent the lawful arrest or detention of any person, or caused GBH intending to resist or prevent the lawful arrest or detention of any person ‘Unlawfully’ and ‘maliciously’ Unlawfully The wounding or causing of GBH must be unlawful. Such conduct may be lawful if used: in self-defence in defence of another in defence of property for the prevention of crime where the victim gave express or implied consent For further information on these defences, see below:
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This Practice Note explores the role of the Permanent Court of Arbitration ( PCA) as an appointing authority and, by default, as a designating authority in international arbitration, as well as its other administrative functions, including registry support, in cases not conducted under the institution’s own arbitration rules. For guidance on arbitration proceedings pursuant to the PCA Arbitration Rules, see: PCA arbitration-overview. History of the PCA and its institutions Before examining the PCA’s present, practical contribution to resolving international disputes, it is useful to consider aspects of its background. The PCA originated in the late 1880s, a turbulent period marked by mounting international frictions and advances in weaponry, when recourse to armed force was widely regarded as the principal method for states to pursue objectives and settle disputes ( S Rosenne, The Hague Peace Conferences of 1899 and 1907 and...
This resource kit This resource kit brings together the principal practical guidance available across Lexis+® UK on artificial intelligence ( AI). Organised by practice area, it is refreshed as new material appears. The rapid growth of AI technologies has led lawmakers, businesses and the public to focus more closely on the potential advantages and the risks that accompany AI use. AI gives rise to a range of legal and regulatory considerations across numerous disciplines, including: intellectual property ( IP) data protection and cybersecurity transactional work such as corporate and commercial employment healthcare and life sciences finance The UK government is developing an AI regulatory strategy that will determine how AI is governed here in future. In the EU, a legislative framework is being built to regulate AI, primarily via Regulation ( EU) 2024/1689 laying down harmonised rules on...
An introduction to commodities arbitration In commodities disputes, arbitration conducted pursuant to trade association rules is a defining feature. In some markets, sale contracts almost invariably stipulate that disagreements will be settled by arbitration under a trade association’s rules. This, in turn, supplies association arbitration departments with a steady flow of cases and supports a flourishing community of arbitrators, lawyers and trade representatives working within those bodies. A trade association is a membership organisation created to bring together the leading participants in a particular trade. For instance, the Grain and Feed Trade Association ( GAFTA) is made up of traders, brokers, superintendents, analysts, fumigators, arbitrators and other professionals active in the international grain trade. Note: guidance on arbitration under the GAFTA Arbitration Rules No. 125 is available in the following Practice...
This Practice Note monitors the development of UK legislation brought forward under the legislative programme linked to the UK’s departure from the EU. It also features a Brexit SI database that compiles details of both draft and made secondary legislation related to Brexit. Quick links Use the links below to go directly to the relevant section or tracker. Practice area trackers Follow the links below for trackers focused on Brexit legislation across specific practice areas: Commercial Corporate Crime Dispute Resolution Employment Energy Environment Financial Services Information Law Intellectual Property Life Sciences Local Government Pensions Property R& I Tax For further updates and guidance tailored to individual practice areas, see: Brexit collection......
This Practice Note considers anti-suit injunctions This Practice Note reviews anti-suit injunctions, a species of injunctive relief deployed to prevent a party from starting or pursuing court proceedings, whether at the outset or mid‑course. It outlines what an anti-suit injunction entails and the jurisdiction of the courts to issue such orders. It also examines the grounds on which this relief may properly be declined or allowed. Further, it addresses the consequences of breaching an anti-suit injunction, as well as the influence of foreign anti-suit orders on litigation before the courts of England and Wales. For guidance on: bringing an application for an anti-suit injunction, see Practice Note: Anti-suit injunctions—making an application anti-suit injunctions and the EU, see Practice Note: Anti-suit injunctions and EU court proceedings—pre and post Brexit anti-suit injunctions in support of arbitration, see Practice Note: Anti-suit injunctions in support of arbitration ( England and...
This Practice Note examines the practical steps involved in appointing an arbitrator, particularly the information an arbitrator will need to determine whether they can accept a nomination or appointment. Appointing an arbitrator The method of appointment will turn on: any term in the relevant arbitration agreement any provision in the applicable arbitration rules or laws any other arrangement agreed by the parties Always confirm the correct appointment route before you approach a prospective arbitrator. Where the arbitration clause delegates appointment to a third party, including by adopting rules that vest this role in an institution (for example, the London Court of International Arbitration ( LCIA) rules), the parties may only put forward nominees to that body. The third party then appoints subject to any objections, the applicable rules and its discretion. For guidance on appointments generally, see Practice Notes: AA...
This Practice Note offers an introductory overview of arbitration, arbitration lawyers and the nature of their work, together with key topics and concepts relevant to such practitioners. It is intended for trainee-level and newly-qualified lawyers, as well as others new to arbitration as a practice area or a method of dispute resolution. This Practice Note also signposts relevant Lexis Nexis® sources and materials. What is arbitration? Put simply, arbitration is a means of resolving disputes. It exists in various forms and is practised across a wide range of sectors and industries, giving rise to many different kinds of disputes. Although different forms or types of arbitration usually share core features, they can also vary significantly. In practice, the term ‘arbitration’ generally refers to a private, final and binding process overseen by an appointed arbitral tribunal acting in a...
Impact of national insolvency on domestic or foreign arbitration ( England and Wales) This Practice Note reviews how insolvency proceedings begun in England and Wales influence arbitration obligations where one of the parties is insolvent. The IBA toolkit on insolvency and arbitration Drawing on the National Report for England and Wales within the IBA Toolkit on Insolvency and Arbitration ( IBA Toolkit), and reproduced with permission, this Practice Note summarises key guidance. The IBA Toolkit offers direction to parties, counsel and arbitrators when an arbitration participant is also in insolvency proceedings in one or more jurisdictions. Alongside the England and Wales Report, the IBA Toolkit includes multiple other National Reports. For clarity, the National Report informing this Practice Note is not intended to constitute legal advice tailored to particular facts. Non-application of EU Recast Regulation on Insolvency following Brexit This Practice Note addresses insolvency cases commenced after 11 pm on 31...
This Practice Note examines the challenge of arbitration awards in Germany under German law. Note: German judgments are not reported by Lexis Nexis®. Challenging awards in Germany-the relevant legal framework The principal legal regime appears in sections 1059 et seqq. of the 10th Book of the Code of Civil Procedure, the Zivilprozessordnung ( ZPO). The ZPO distinguishes between domestic and foreign awards by whether the arbitral tribunal that issued the award had its seat in Germany or abroad. For domestic awards, the grounds for setting aside and for refusing recognition and enforcement are contained in ZPO, ss 1059, 1060(2), and they mirror Article 34 of the UNCITRAL Model Law on International Arbitration ( Model Law). For foreign awards, recognition and enforcement are governed by ZPO, s 1061(1), which makes the New York Convention directly applicable. Only minor differences exist between the bases for...
This Practice Note This Practice Note explores the wide-ranging functions in-house legal teams may assume in international arbitration and connected issues. It is intended as direct guidance for in-house counsel (though, stylistically, we refer to such lawyers in neutral terms). It should equally assist practitioners collaborating with in-house teams, or seeking clearer insight into their place within the arbitral workflow. Much of the pragmatic advice could also apply where the chosen dispute resolution route is, for instance, litigation or mediation. Although the emphasis is on the contribution of in-house counsel to international commercial arbitration, the discussion and pointers may likewise inform in-house lawyers involved in international investment arbitration (investor–state dispute resolution), particularly viewed from the perspective of investors. Introductory Practice Notes that may help include: Arbitration-new starter guide Arbitration-an introduction to the key features of arbitration ...
Limitation periods in arbitration ( England & Wales) When considering whether to begin arbitration, it is vital to check limitation carefully so that any claim or cause of action is not already time‑barred. As with issuing proceedings in the domestic courts, commencing an arbitration governed by the law of England and Wales is constrained by a range of statutory rules. It is equally necessary to take into account any contractual arrangements between the parties that address limitation. For the clock to stop, the arbitration must be “commenced”. The point of commencement is fixed by the applicable legislation and/or the arbitration rules under which the reference proceeds. If commencement is not effected correctly, a claim can become time‑barred, whether by statutory limitation or a contractual time bar. The steps required to commence arbitration are usually less burdensome than those for starting court...
The UK’s formal withdrawal from the EU took effect at 11 pm on 31 January 2020 (exit day). At that point, the withdrawal period under Article 50 TEU concluded, and the ratified Withdrawal Agreement, which set the legal terms of the UK’s departure, entered into force. On exit day, the ratified Withdrawal Agreement was released in the Official Journal of the European Union, together with the Political Declaration outlining the framework for the future relationship between the UK and the EU: Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, OJ L 29 31.01.20, p 7-187 Political declaration setting out the framework for the future relationship between the European Union and the United Kingdom, OJ C 34 31.01.20, p 1-16 Exit day stood as a significant milestone, being the date on which the UK...
This Practice Note provides practical guidance on how to respond to a Notice of Arbitration under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As outlined in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations started on or after 1 November 2018, unless the parties agree otherwise; for HKIAC cases begun before 1 November 2018, the 2013 HKIAC Rules generally apply, save where the parties agreed differently. For a general overview of the HKIAC and its organisational structure, see Practice Note: HKIAC—background to and structure of the institution. Under the 2018 HKIAC Rules, proceedings, in general terms, commence when the claimant ‘communicates’ a Notice of Arbitration ( Notice) to the HKIAC—see Practice Note: HKIAC...
This Practice Note reviews the requirements of an arbitral award under the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration ( ICC Rules). The ICC Rules govern any ICC arbitration begun on or after 1 January 2021, unless the parties expressly opt for an earlier edition (for example, in the arbitration clause). For an introduction to the 2021 ICC Rules, see Practice Note: ICC (2021)—introduction to the ICC and arbitration under the ICC Rules. For links to guidance on the 2017 and 2012 editions, see: ICC arbitration—overview. Requirements of an award Once an arbitral tribunal issues an award, the parties should swiftly confirm that it complies with: the requirements of the arbitration rules under which the proceedings were conducted the law of the seat of arbitration (in England, the Arbitration Act 1996 ( AA 1996)) the laws of the...
This Practice Note considers the role of state immunity in relation to arbitration proceedings in Austria. For an introductory guide to state immunity within the arbitration context, see Practice Note: State immunity and arbitration—general considerations. For further Practice Notes covering state immunity across numerous jurisdictions worldwide, including England and Wales, refer to our State immunity subtopic: State immunity—overview. States and state-owned enterprises regularly participate in cross-border commercial dealings. Agreements concluded by states—particularly those with private counterparties from other nations—commonly incorporate arbitration clauses. Consequently, states frequently become participants in international arbitral proceedings. The involvement of states in arbitration brings the doctrine of state immunity to the fore. A central question is whether a state may rely on immunity during the arbitral process itself or subsequently to resist recognition and enforcement of an arbitral award. A 2012 decision discussed in this Practice Note illustrates the Austrian Supreme Court’s...
State immunity This Practice Note explores how state immunity operates within Canadian arbitration. For a broader introduction to state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. Further materials covering multiple jurisdictions worldwide, including England and Wales, are available under our ‘ State immunity’ subtopic: State immunity and arbitration—overview. State immunity functions as an organising norm among independent states. It preserves fidelity to the twin principles of sovereignty and equality within the international order. Sovereignty secures a state’s power to regulate persons and events on its territory without undue external interference. Equality embodies the idea that no state ranks above another internationally. These principles are reflected in the doctrine of state immunity ( Kazemi Estate v Islamic Republic of Iran). The pragmatic realities of international relations in an imperfect world also support the doctrine: because domestic judgments against foreign states are, in...
The London Maritime Arbitrators Association ( LMAA) Terms 2021 (the Terms) govern arbitrations begun on or after 1 May 2021 where the parties have agreed to their use. The Terms superseded the 2017 edition ( LMAA Terms 2017), which apply to arbitrations started between 1 May 2017 and 30 April 2021. Documentary evidence Submissions ought to be filed with supporting material that is pertinent to the issues ( Second Schedule, paragraph 1(c)). This is usually confined to the relevant contractual papers and principal items of correspondence or reports. A fuller exchange of relevant documents typically follows the completion of LMAA Questionnaires (see Practice Note: LMAA—commencement and arbitration procedure), although either party may seek disclosure of relevant material at any point (paragraph 9 of the Second Schedule). Where the parties cannot agree, the tribunal will determine the scope of disclosure to be provided. The Terms also set out...
Legal framework On 23 December 2003, Spain enacted Law 60/2003 on arbitration (the Arbitration Law), drawing on the United Nations’ 1985 Model Law on International Commercial Arbitration (the Model Law). On 20 August 2015, Law 29/2015 on International Legal Cooperation (the LCJI) entered into force to govern, inter alia, the recognition of foreign arbitral awards and other judicial rulings ( LCJI, arts. 52–55). In addition, Organic Law 6/1985 on the Judiciary ( LOPJ) together with the Code of Civil Procedure ( LEC 2000) regulate all procedural issues outside the scope of the Arbitration Law. Note: references in this Practice Note to Spanish court decisions are not reported by Lexis Nexis UK. Domestic, international and foreign arbitral awards The route to enforce an arbitral award differs depending on whether the award is domestic, international or foreign. Domestic and international arbitral awards The Arbitration Law extends to every...
This Practice Note explores and outlines the remedies that an arbitral tribunal can grant in awards made under the Arbitration Act 1996 ( AA 1996). Related Practice Notes you may find relevant and helpful include: Damages in international arbitration, Non-pecuniary remedies in international arbitration, and Arbitral awards—types, requirements and effect. Available remedies under the AA 1996 AA 1996, s 46 states that the arbitral tribunal shall resolve the dispute in accordance with the law chosen by the parties as applicable to the substance of the dispute, or, where the parties agree, in accordance with such other considerations as are agreed by them or as determined by the tribunal. For guidance on this topic, see Practice Note: Substantive law of the dispute in arbitration ( England and Wales). Unless the parties agree otherwise, the tribunal may issue more than one award at different times,...
This Practice Note sets out the legal framework and practical issues around bills of lading and sea waybills used in the context of arrangements for transporting goods by sea. It outlines how bearer bills, order bills and seaway bills differ, in practice, and describes the roles of a bill of lading as receipt, title document and contractual instrument. The Note also identifies the parties to the carriage contract, how they interact with third parties, and, in particular, the means by which rights under the paperwork can be effectively transferred. A bill of lading: is issued by or on behalf of the sea carrier to the person with whom the carriage contract is concluded records or evidences that contract and its terms serves as evidence of receipt of the cargo operates as a document of title Types of...
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When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...
This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...
Date [ date ] Parties [ name of Landlord ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Landlord) [ name of Tenant ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Tenant) [ [ name of Guarantor ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Guarantor) ] [ [ name of Mortgagee ] [ of OR incorporated in England and Wales (company registration number [ number ]) with its registered office at ] [ address ] (Mortgagee) ] Definitions Within this Deed, the terms below shall be interpreted as follows: [ Annual Rent • the annual sum reserved under the Lease; ] [ Insurance Rent • the Tenant’s share of the Landlord’s costs of insuring the Property (as set out in the Lease); ] Lease • the lease of the Property dated [ date ], entered into between (1) [ the Landlord OR [ name ...
I, [ name ], of [ address ], solemnly and sincerely state that: [ Matters to be verified, set out in numbered paragraphs ] I make this solemn statement in good conscience, believing it to be true, and pursuant to the provisions of the Statutory Declarations Act 1835. DECLARED at [ details ] this [ day ] day of [ month and year ] Before me ................................................................................ [ signature of the person before whom the declaration is made ] A [ commissioner for oaths OR [ solicitor OR [ insert other qualification ] ] authorised to administer oaths ]...
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