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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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ARCHIVED : This Practice Note is archived and no longer updated. CORONAVIRUS ( COVID-19): Numerous arbitral organisations have addressed the coronavirus outbreak by issuing practical guidance and/or modifying standard procedures and working practices. For details on how this material and related arbitration proceedings could be affected, consult Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For further background, see: Coronavirus ( COVID-19) and arbitration—overview. This Practice Note examines fees, advances and costs under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules), and points to the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ( ICC Note) for additional guidance. Unless stated otherwise, citations in this Practice Note to articles and appendices of the ICC Arbitration Rules are to the 2017 ICC Rules. The 2017 ICC Rules...
This Practice Note explores questions of arbitral jurisdiction in the Netherlands and outlines the avenues open to a party aiming to halt court proceedings... Introduction Where litigation is commenced in the Netherlands in breach of an arbitration clause, Dutch law is, as a rule, highly supportive of arbitration. The principal regime is found in Book 4 of the Dutch Code of Civil Procedure ( DCCP), commonly known as the Netherlands Arbitration Act... Challenging the jurisdiction of the court Contesting the court’s jurisdiction is the foremost and most effective route for a party facing court proceedings brought despite an arbitration agreement. Under Articles 1022 DCCP (for arbitrations seated in the Netherlands) and 1074 DCCP (for arbitrations seated abroad), the state court seised of the dispute must declare it lacks jurisdiction if a party promptly invokes the arbitration agreement. The state courts will uphold the...
Introduction This Practice Note outlines the legal framework for enforcing international arbitral awards in Egypt. That framework is found in the Egyptian Arbitration Law (the EAL), which draws on the UNCITRAL Model Law (the Model Law) and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the NY Convention), to which Egypt is a party. Egypt ratified the NY Convention on 9 March 1959, and it came into effect through parliamentary adoption and publication in the Official Gazette on 14 February 1959. The EAL governs enforcement of all international arbitral awards, whether issued within Egypt or abroad, provided they qualify as international awards. Under EAL Article 3, an international award is one made in an international arbitration; international arbitration is identified by several tests, so the initial step is to determine what constitutes an...
This Practice Note explores how state immunity interacts with arbitration proceedings in Sweden. For an overall primer on state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. In addition, for Practice Notes on state immunity across multiple jurisdictions worldwide (including England and Wales), see our ‘ State immunity’ subtopic: State immunity and arbitration—overview. Introduction— State immunity and international arbitration As a general principle, Swedish courts honour state immunity for sovereign acts but not for commercial conduct. Consequently, agreeing an arbitration clause typically amounts to a waiver of immunity for arbitral and court proceedings connected to a contract. Challenges may nevertheless emerge at the enforcement stage of an arbitral award. The key issue is whether the property targeted by enforcement measures is substantially used for official functions. If so, that property is shielded. If not, state immunity cannot be relied upon, as...
Background to the ADCCAC The Abu Dhabi Commercial Conciliation & Arbitration Centre ( ADCCAC) acts as the arbitration arm of the Abu Dhabi Chamber of Commerce & Industry, which serves as the voice of the Abu Dhabi business community. It is an autonomous institution indeed. Operating independently, the Centre was created in 1993 to handle both local and international commercial conciliation and arbitration. Its arbitration rules were modernised in 2013 (the 2013 Regulations), coming into force on 20 October 2013 irrespective of when proceedings were initiated, aligning the framework with prevailing international arbitration practice, unlike the earlier rules that featured a number of ADCCAC‑specific characteristics. Under the Transitional Provisions (arts 40–42) of the 2013 Regulations, the 1993 Arbitration Procedural Rules were revoked, replacing the earlier regime. Cases started under the 1993 Regulations continue, but are now subject to the 2013...
In the context of arbitration proceedings, this Practice Note introduces: the General Data Protection Regulation, Regulation ( EU) 2016/679 ( EU GDPR), which applies within the EEA and previously in force under UK law up to the close of the Brexit implementation period (11 pm UK time on 31 December 2020), and the United Kingdom General Data Protection Regulation, Retained Regulation ( EU) 2016/679 (the UK GDPR) regime, which applies under UK law from the very end of that implementation period Where a distinction between the two frameworks is unnecessary, this Practice Note uses ‘ GDPR’ as a convenient collective term. For routine processing of personal data, the UK GDPR and the Data Protection Act 2018 ( DPA 2018) should be read closely in tandem, as both sets of provisions apply directly. Practitioners are likely to find it most...
This Practice Note sets out a concise overview of the Istanbul Arbitration Centre ( ISTAC), the ISTAC Arbitration Rules ( ISTAC Rules), and how ISTAC’s governing bodies oversee the administration of arbitrations. Founded in 2015, ISTAC delivers a comprehensive and highly adaptable arbitration framework for resolving domestic and international disputes. Firmly grounded in international best practice, the ISTAC Arbitration Rules secure efficiency, impartiality and confidentiality. The ISTAC Rules provide pragmatic, workable solutions across a broad spectrum of disputes and are recognised for their flexibility, expedited procedures and cost-efficiency. Introduction to the ISTAC In general ISTAC is an independent institution offering arbitration and mediation services to both international and domestic parties. Its services are open to all organisations and individuals, without any membership requirement, making it an accessible forum for resolving disputes. ISTAC is noted for modern and flexible rules aligned with...
This Practice Note offers guidance on replying to a Notice of Arbitration under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). As outlined in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally apply to HKIAC arbitrations commenced on or after 1 June 2024, unless the parties agree otherwise; for proceedings started before 1 June 2024, the 2018 HKIAC Rules will (in general) govern, unless a different agreement was made by the parties. For an introduction to the HKIAC and its framework, see Practice Note: HKIAC—background to and structure of the institution. Under the 2024 HKIAC Rules, an arbitration is ordinarily commenced when a claimant communicates a Notice of Arbitration ( Notice) to the HKIAC and to the other party ( HKIAC 2024, art 4.1) (see...
Introduction This Practice Note provides guidance on arbitration proceedings overseen by the International and Ibero‑ American Arbitration Centre of Madrid (‘ CIIAM’ or the ‘ Centre’) (formerly CIAM‑ CIAR) under its arbitration rules in effect from 1 January 2024 (the Arbitration Rules). The Centre was long referred to as ‘ CIAM’ ( Madrid International Arbitration Centre) and, subsequently, as ‘ CIAM‑ CIAR’ following its integration with the Ibero‑ American Arbitration Centre. The present denomination, CIIAM, was adopted by the Centre in January 2026. Accordingly, official materials hosted on the Centre’s website, depending on the document and language, may mention it in the several forms noted. See: LNB News 21/01/2026 30. The Centre ranks among the most innovative arbitral institutions in the Ibero‑ American landscape, and its Arbitration Rules reflect international best practices tailored to the needs of modern...
The Transparency Rules—background and purpose Adopted on 1 April 2014 by the United Nations Commission on International Trade Law ( UNCITRAL), the Transparency Rules sit alongside UNCITRAL’s suite of instruments. Among its activities, UNCITRAL issues arbitration rules designed for ad hoc international proceedings—that is, cases not run by an arbitral institution. First promulgated in 1976 and updated in 2010, the UNCITRAL Arbitration Rules are widely relied upon for commercial disputes and investor–state cases under investment treaties. The 2013 iteration of those rules incorporates the Transparency Rules as paragraph 4 of article 1, while otherwise mirroring the 2010 text—see: UNCITRAL arbitration—overview. The Transparency Rules were crafted to respond to worries about the default confidentiality attaching to arbitrations under the UNCITRAL Rules when used in investor–state contexts. Such investor–state arbitrations arise under bilateral investment treaties ( BITs) (ie treaties between two states conferring rights on...
This Practice Note provides an overview of the Fast Track Rules of the AIDA Reinsurance and Insurance and Arbitration Society of the UK, or the ARIAS Fast Track Rules ( AFTAR Rules), in force from 3 October 2013, which regulate insurance and reinsurance arbitration proceedings. For a general introduction to ARIAS, see Practice Note: Arbitration under the ARIAS ( UK) Rules 2014. AFTAR was devised to address concerns within the insurance and reinsurance markets that conventional arbitration, even under the ARIAS Rules, was slow and not cost-effective owing to reliance on a three-person panel. AFTAR comprises both rules and explanatory notes. Where any explanatory note conflicts with the rules, the rules prevail. Key differences from the ARIAS Rules AFTAR broadly mirrors the framework of the ARIAS Rules, and many elements are materially the same: the procedures for commencing an arbitration and serving notice, the...
This Practice Note addresses hands-on considerations around deploying expert witness evidence in arbitration, spanning the instruction, co-ordination and oversight of such specialists. It should be read alongside Practice Note: Expert witnesses in arbitration, which outlines the framework governing the presentation of expert material in arbitral proceedings, and within which such evidence is advanced. Is expert evidence needed? Before deciding to retain an expert, delineate with maximum precision the questions that may require expert opinion at all. In particular, assess the following: Can those issues be set out clearly, and are they confined to a single field of expertise? If they span multiple disciplines, will you need more than one expert, or could one practitioner credibly address them all? If the topic is highly technical, might it be difficult to identify any suitably qualified expert at...
This Practice Note sets out an overview of the commercial arbitration process, whilst acknowledging that, broadly, there is no fixed template or uniform structure for arbitral proceedings. The capacity of the parties to shape, in a meaningful way, how their dispute is determined is frequently cited as a reason to choose arbitration rather than, for instance, litigating before national courts. For a primer on arbitration as a dispute resolution mechanism and on arbitral practice, see Practice Notes: Arbitration—an introduction to the key features of arbitration and Arbitration—new starter guide. For guidance on the often pivotal contribution made by in-house counsel to arbitration, see Practice Note: The role of in-house counsel in international arbitration. No defined structure for the arbitration process By contrast with litigation, which generally proceeds according to a settled pattern set out in a procedural code or similar instrument,...
This Practice Note outlines retained EU law as it operated in 2021–23, setting out key definitions and concepts with pointers to the relevant provisions of the European Union ( Withdrawal) Act 2018 ( EU( W) A 2018). It further considers the overhaul of retained EU law and its re-labelling as assimilated law from 2024. Wider aspects of the EU( W) A 2018, together with the distinct arrangements and divergences for the UK’s devolved administrations, fall outside the scope of this Practice Note. Evaluation of particular instruments, provisions or rights, and whether they are retained, is likewise excluded. what’s the difference? Both “retained EU law” and “assimilated law” describe the residual body of domestic law that originally stemmed from the UK’s membership of the EU. The labels mark two phases in the domestic legal system’s adjustment to...
ARCHIVED : This archived Practice Note examined the consequences of the UK's withdrawal from the EU at the close of the implementation period on 31 December 2020. It sets out the position for proceedings in the sphere of civil and commercial matters. It reviews the operation in the UK of EU law and international conventions, and signposts core considerations when dealing with: applicable law jurisdiction service of documents taking of evidence mediation cross-border process recognition and enforcement of judgments It is also essential to recognise that the ramifications are not confined to EU Member States. They extend to the other contracting states to the Lugano Convention 2007 ( Iceland, Norway and Switzerland) and, in certain situations, to contracting states to the Hague Convention on Choice of Court Agreements ( Mexico, Montenegro and...
This Practice Note explores the place of state immunity in connection with arbitration proceedings in Portugal. For a broad primer on state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. Additionally, for Practice Notes covering state immunity across a range of jurisdictions worldwide (including England and Wales), consult our ‘ State immunity’ subtopic: State immunity and arbitration—overview. State immunity in Portugal State immunity is not a rule of law presently operating within the Portuguese legal order. Indeed, there is no explicit statutory norm enacting the maxim ‘par in parem non habet judicio’ (state immunity). While Portugal is a party to the United Nations Convention on Jurisdictional Immunities of States and their Property, adopted in New York on 17 January 2005 ( Portugal acceded to the New York Convention on State Immunity by Decree of the President of the Portuguese Republic No 57/2006 of 20 June...
What is the PCA? The Permanent Court of Arbitration ( PCA) is the oldest intergovernmental organisation devoted to enabling the peaceful settlement of international disputes. Based in The Hague, it was created by the 1899 Convention for the Pacific Settlement of International Disputes, signed at the close of the first Hague Peace Conference in 1899. Initially centred on state‑to‑state arbitration, the PCA now administers and offers related services for matters involving states, state‑controlled entities, intergovernmental organisations and private parties... The PCA Arbitration Rules In December 2012, the PCA issued its Arbitration Rules (the PCA Rules). These Rules superseded and replaced four earlier PCA rule sets: 1992 Optional Rules for Arbitrating Disputes between Two States ( PCA State/ State Rules) 1993 Optional Rules for Arbitrating Disputes between Two Parties of Which Only One is a State ( PCA State/...
Appointing authority This Practice Note outlines the automatic designation of the Secretary- General of the Permanent Court of Arbitration ( PCA) as the appointing authority under the PCA Arbitration Rules 2012 (the PCA Rules), the specific manner in which a tribunal is formed under the PCA Rules, and the procedures for both challenging and replacing arbitrators. It further addresses the exclusion of liability for the tribunal and any persons it appoints. Under PCA Rules, art 6(1), the Secretary- General of the PCA is designated to act as appointing authority under the PCA Rules. The appointing authority’s central and primary function is to facilitate the constitution of an appropriate tribunal, by resolving difficulties that occur in putting the tribunal in place, for example when the parties fail to agree on a nominee for a sole or presiding arbitrator. In that capacity, the PCA...
The P. R. I. M. E. Finance Arbitration Rules The P. R. I. M. E. Finance Arbitration Rules (the P. R. I. M. E. Finance Rules; the Rules) provide an arbitration framework with features tailored to the needs of the financial markets. The latest edition took effect on 1 January 2022, following a comprehensive 2021 review, and governs arbitrations begun on or after that date. The Rules also contain model clauses together with a model submission agreement. This Practice Note serves as an introduction to P. R. I. M. E. Finance and its Rules. P. R. I. M. E. Finance stands for the Panel of Recognised International Market Experts in Finance, an independent, not-for-profit foundation headquartered in The Hague. By convening these Experts, we aim to promote certainty and lessen risk across the global financial markets. We work to foresee where...
In 2021, the P. R. I. M. E. Finance Arbitration Rules were substantively updated, with the 2022 version taking effect on 1 January 2022, covering arbitrations filed from that date onwards (the P. R. I. M. E. Finance Rules; the Rules). They also contain model clauses and a standard-form submission agreement document. This Practice Note examines the authority of arbitral tribunals constituted under the P. R. I. M. E. Finance Rules. A tribunal holds a broad discretion to manage the proceedings as it deems most suitable, so long as the parties are treated equally and each is afforded a reasonable opportunity to present their case. When using that discretion, the tribunal must avoid unnecessary delay and cost and ensure a fair, proportionate and efficient mechanism for resolving the dispute (art 16.1). Place, location, language and rule of law Among other relevant matters, where the parties have not...
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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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