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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 not maintained On 15 January 2016 it was announced that, from 1 June 2016, the London Court of International Arbitration ( LCIA) would meet the needs of users of the LCIA India Rules from its London office. Consequently, arbitration and mediation under the LCIA India Rules will no longer be available. The LCIA will continue to support all ongoing matters, and from 1 June 2016 those cases will be administered in London. Likewise, fresh referrals under the LCIA India Rules arising from existing contracts and arbitration or mediation clauses will be handled in London. Owing to these changes, referrals based on agreements concluded after 1 June 2016 that include clauses naming LCIA India will not be taken on for administration, and the LCIA India Rules will be revised accordingly. The LCIA would be prepared to...
Arbitration clauses Arbitration clauses stipulate that disputes are resolved by a designated arbitral tribunal appointed for the purpose, and may feature in both domestic and cross‑border matters. Arbitration may proceed on an ad hoc footing—following a chosen set of rules, for example the London Maritime Arbitrators Association ( LMAA) Terms, and/or the applicable national arbitration statute—or be administered by an arbitral institution, ordinarily in accordance with that institution’s own procedural rules. A broad range of institutional rulebooks is available for incorporation into arbitration agreements; prominent options include, in particular, the International Chamber of Commerce’s ICC Rules and the London Court of International Arbitration’s LCIA Rules. By way of illustration, this Practice Note, applying the law of England and Wales, considers the LCIA’s recommended arbitration clause for future disputes arising, while noting that the points raised may equally bear on other...
This Practice Note concerns London Court of International Arbitration ( LCIA) arbitration proceedings pursuant to the LCIA Rules 2020(the LCIA Rules) effective 1 October 2020. For practical guidance on arbitration under the LCIA Rules 2014 and 1998, the earlier versions, consult the relevant Practice Notes here: LCIA arbitration—overview. Under the LCIA Rules, proceedings begin when the claimant submits a Request for Arbitration (the Request) to the LCIA Registrar (the Registrar)—see Practice Note: LCIA (2020)—starting an arbitration. The claimant must at the same moment send a copy of the Request to every respondent. The default channel for communications, including the Request, is email or other electronic means ( LCIA, art 4.1). Any respondent cognisant of a dispute should vigilantly monitor email inboxes and any messaging platforms, such as Whats App and We Chat, that may have been used in the transactions in question. The Request will be sent by the...
Procedure for appointment of the Arbitral Tribunal The process for constituting the Arbitral Tribunal starts once the LCAM Board has the Respondent’s Answer and, where necessary, any additional information it has requested under Article 5. Under Article 13.2 of the LCAM Rules, the parties are free to agree any method for appointing the Arbitral Tribunal. If, however, the parties fail to agree the number of arbitrator(s) or who they should be within the deadline they have set, the LCAM Rules provide for the appointment of an arbitrator, as described below. Every appointment in LCAM arbitrations, whether made by the parties or by the LCAM Board, requires the LCAM Board’s confirmation ( Article 13.1) once the arbitrator’s statement of impartiality has been received. That confirmation is at the LCAM Board’s absolute discretion, and the parties cannot contract out of this...
Under Articles 9.1 and 10, the LCAM Board may decide that LCAM plainly has no jurisdiction over the dispute and, accordingly, may dismiss the case, in full or in part, as appropriate. Article 19.3 of the LCAM Rules likewise affirms that an arbitral tribunal can determine its own jurisdiction. Accordingly, a party may invite the LCAM Board to dispose of the matter on jurisdictional grounds, thereby avoiding the time and expense of constituting an Arbitral Tribunal at that stage. However, the Board will exercise this authority to decide any alleged ‘manifest lack of jurisdiction’ only before the case is referred to the Arbitral Tribunal under Article 18, and not after that procedural step. Once referral occurs, it is anticipated that all questions of jurisdiction should be addressed by the Arbitral Tribunal rather than by the Board. While it might seem more...
Background Several arbitral bodies, including UNCITRAL, have in recent years introduced expedited or fast‑track regimes aimed at lower‑value claims and at parties seeking to avoid a protracted arbitration process. Ordinarily, such frameworks compress the timetable, with a final award expected to be issued within three or six months of commencement. For a general discussion of Expedited Rules, refer to Practice Note: Expedited (aka fast‑track) arbitration. This note reviews LCAM’s Expedited Arbitration Rules (the Expedited Rules), which have been in force since 1 September 2022; see also Practice Note: LCIA (2020)—guidance on creation of a fast‑track procedure. Under Article 1.2 of the Expedited Rules, the scheme comprises a complete, self‑contained, documents‑only route for the resolution of disputes through arbitration before a sole arbitrator appointed by LCAM. The LCAM‑administered process under the Rules is designed to be...
Consolidation and Joinder The LCAM Rules adopt a more restrained (and plain) position on joinder and consolidation, by comparison with the wider powers afforded under some of the other arbitral institutions’ rules elsewhere. Under Consolidation Article 11.1, where two or more arbitrations are initiated that relate to a legal relationship binding the same parties, the LCAM Board may, upon a party’s application, resolve to merge those arbitrations. Any such determination is contingent on prior consultation with the parties and the Arbitral Tribunal(s), if already constituted therein......
Context The London Chamber of Arbitration and Mediation ( LCAM) has partnered with Immunefi, a blockchain security platform, to develop the LCAM Blockchain Expedited Arbitration Rules (the ' Rules'), a bespoke arbitration framework designed for actors in the security vulnerability market. Immunefi is an online hub linking blockchain projects with security researchers, offering tooling to run security testing and to report the weaknesses they uncover, helping to prevent hacks. When these researchers — often called 'whitehat hackers' — find qualifying on-chain vulnerabilities, they can seek a reward known as a 'bug bounty', with advertised sums reaching multimillion-dollar levels. In this setting, bug bounty disputes emerge where a blockchain project and a security researcher fall out over the security work performed on the project. Such disagreements may manifest in several ways, including arguments about whether the reported vulnerability exists at all, debates over its alleged...
Costs of the Arbitration Under the LCAM Rules, the “ Costs of the Arbitration” comprise three elements: the fees of the Arbitral Tribunal the Administrative Fee (which includes the Registration Fee) the expenses of the Arbitral Tribunal and LCAM ( Article 44.1) The amounts for each are detailed in the Schedule of Costs at Appendix II. Registration Fee LCAM’s Registration Fee is £1,500, as set out in Appendix II, Article 1 of the Rules. This fee is applied as a credit towards the Advance on Costs payable by the Claimant under Article 46. If the Registration Fee is not paid when the Request for Arbitration is filed, the Secretariat will specify a deadline for payment. If it remains unpaid after that period, the Secretariat will dismiss the Request for Arbitration. Where the Registration Fee has not cleared, the arbitration will not be treated as...
Awards Article 36 outlines the rules governing the power to issue awards and determinations, setting the general framework for decisions generally. Decision making Where the Arbitral Tribunal consists of a panel of three or more arbitrators, its awards or other determinations are to be decided by a majority of the Tribunal ( Article 36.1). Under Article 36.2, the Arbitral Tribunal may resolve to authorise the Chairperson to make procedural rulings alone. Any such arrangement ought to be notified to the parties, commonly by way of a procedural order......
Background Established in 1966, the Korean Commercial Arbitration Board ( KCAB) unveiled a distinct set of International Rules in 2007, which were updated in 2011 and then again in 2016. The KCAB’s 2016 International Arbitration Rules (2016 International Rules) entered into force on 1 June 2016, mirroring developments in international arbitration practice at the time. Their issuance marked KCAB’s 50th anniversary and coincided with the first major revision of the Korean Arbitration Act since 1999. Passage of the Arbitration Industry Promotion Act in June 2017 signalled continuing governmental backing to advance Korea as a leading centre for international arbitration, including public funding for arbitral institutions such as the KCAB, alongside support for practitioners, research activity and arbitration infrastructure within Korea. KCAB International was launched in April 2018 as a specialised arm within KCAB to administer cross-border cases under the KCAB...
The major arbitral institutions Leading arbitral bodies are familiar with overseeing disputes across the technology, media and telecoms ( TMT) arena. The 2016 International Dispute Resolution Survey by Queen Mary University of London and Pinsent Masons, ‘ Pre‑empting and Resolving Technology, Media and Telecoms Disputes’, found that the International Chamber of Commerce ( ICC) was used by a clear majority (64% had instructed it on TMT disputes in the preceding five years). It was followed by the World Intellectual Property Organisation ( WIPO) at 38%—especially for IP matters—and the London Court of International Arbitration ( LCIA) at 29%. As to preferences reported in the 2021 International Arbitration Survey by Queen Mary University of London and White & Case, ‘ Adapting Arbitration to a Changing World’, users most favoured: ICC (57%) Singapore International Arbitration Centre ( SIAC) (49%) Hong Kong...
The primary gateway question for any claim under a bilateral investment treaty ( BIT), multilateral investment treaty ( MIT) or foreign investment laws is whether the claimant truly qualifies as an ‘investor’ and whether its interests in the host state amount to an ‘investment’. If a prospective claimant is not a qualifying investor holding a qualifying investment under the relevant treaty or law, the substantive protections will not engage and there will be no lawful jurisdictional basis for pursuing investor–state arbitration. The definitions of ‘investor’ and ‘investment’ differ across BITs, yet common themes emerge and certain components recur. This Practice Note provides an overview of those themes and the typical issues arising around the definitions of ‘investor’ and ‘investment’. The meaning of investor An investor will typically be an individual citizen of the investor’s home state or a company incorporated in the...
This Practice Note reviews how state immunity intersects with arbitration proceedings in Italy. For a general introduction to state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. For Practice Notes on state immunity across multiple jurisdictions (including England and Wales), consult our state immunity subtopic: State immunity and arbitration—overview. The Italian approach to state immunity Italy has long contributed to the development of the doctrine of state immunity, moving from an absolute model—anchored in the traditional principle par in parem non habet iudicium—towards a more refined restrictive approach. Italian courts, together with their Belgian counterparts, were among the first to challenge absolute immunity in the early twentieth century. At present, Italy follows the restrictive doctrine, limiting immunity to acts performed iure imperii—namely, manifestations of sovereign authority—while excluding acts undertaken iure gestionis, including those of a commercial or private-law character....
Under bilateral investment treaties ( BITs) and other investment protection treaties such as multilateral investment treaties ( MITs), host states generally commit to provide baseline standards of protection and treatment to foreign investors. These baseline standards can range from an undertaking not to discriminate against foreign investors in favour of domestic companies, through to a commitment not to nationalise or expropriate an investment without the payment of adequate compensation. Among other reasons, appreciating the nature and extent of these safeguards is important for advising on related disputes. This Practice Note summarises the forms of protection typically available under BITs and MITs, including: fair and equitable treatment ( FET) of investors (sometimes referred to as the FET standard) full protection and security of investments 'national treatment' of investors 'most favoured nation' ( MFN) treatment of investors, and ...
This Practice Note offers an overview of investment treaty arbitration. In essence, investment treaty arbitration concerns resolving, usually, a foreign investor’s claim against a respondent state, alleging violations of investor safeguards set out in an investment treaty concluded between two states or a bloc of states, under an arbitration agreement embedded in the treaty’s investor–state dispute settlement clauses. Such claims are brought pursuant to the arbitration agreement set within the treaty’s investor–state dispute settlement provisions. ' Investment treaty arbitration' is often contrasted with 'international commercial arbitration'; both are frequently grouped under 'international arbitration'. See Practice Note: International arbitration—an introduction to the key features of international arbitration, for discussion of the term 'international commercial arbitration'. Investment treaties Bilateral investment treaties ( BITs) and multilateral investment treaties ( MITs) are central to any consideration of investment treaty...
This Practice Note monitors significant awards and rulings delivered by tribunals in investment treaty arbitration, chiefly those run by the International Centre for the Settlement of Investment Disputes ( ICSID). It also encompasses pertinent awards and decisions arising under the United Nations Commission on International Trade Law ( UNCITRAL) Arbitration Rules and proceedings overseen by other institutions, including the Arbitration Institute of the Stockholm Chamber of Commerce ( SCC), the Permanent Court of Arbitration ( PCA) and the International Court of Arbitration of the International Chamber of Commerce ( ICC). Determinations of ad hoc Committees in ICSID annulment cases are captured as well. Although investment treaty arbitration has no recognised doctrine of precedent, parties often rely on earlier decisions during their cases and tribunals frequently reference them in their reasoning. This Practice Note is confined to awards and decisions published in 2022, though in some...
ARCHIVED: This Practice Note has been archived and is not maintained. This Practice Note charts the details of significant awards and determinations issued by tribunals in investment treaty arbitration, predominantly those overseen by the International Centre for the Settlement of Investment Disputes ( ICSID). It additionally includes pertinent awards and decisions arising from proceedings under the United Nations Commission on International Trade Law ( UNCITRAL) Arbitration Rules and from cases administered by other arbitral bodies, including the Arbitration Institute of the Stockholm Chamber of Commerce ( SCC), the Permanent Court of Arbitration ( PCA) and the International Court of Arbitration of the International Chamber of Commerce ( ICC). Decisions by ad hoc Committees in ICSID annulment proceedings are likewise comprehensively captured. Although investment treaty arbitration lacks a recognised system of precedent, earlier decisions are frequently relied upon by parties during cases and are taken into...
ARCHIVED : This Practice Note has been archived and is not maintained. This year’s annual overview surveys standout investment treaty arbitration milestones from 2017 and signals what to expect in 2018, setting out what is on the horizon for that year. It covers notable awards in the International Centre for Settlement of Investment Disputes ( ICSID) and other investment treaty arbitration proceedings, the publication of bespoke investment arbitration rules by leading institutions, and wider shifts affecting investor–state dispute settlement. Also included are updates on Lexis Nexis®’s content, with news of exciting developments from the past year and what is coming up in the next 12 months. Reviewing 2017 ICSID arbitration — What happened? In October 2016, the ICSID revealed that a project had started to revise and modernise the Centre’s rules and regulations. ICSID sought input, comments and suggestions from ICSID Contracting States and, in...
This Practice Note focuses on the substantive protections afforded by the Energy Charter Treaty ( ECT). It does not address who qualifies as an investor or investment, denial of benefits, or the ECT’s dispute settlement procedures and architecture (including arbitration). For further information on those topics, see Practice Note: Investment treaty arbitration under the Energy Charter Treaty. The expressions investor, investment and Contracting Party are used here as defined in that Practice Note. Part III of the ECT sets out a suite of provisions conferring a robust level of protection on foreign investments made within the territories of host states that are Contracting Parties to the ECT. Among the most significant clauses in Part III are Articles 10 and 13. In December 2024, the Energy Charter Conference adopted a ‘ Modernised ECT’, which adjusts the substantive standards and tightens the scope 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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