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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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Introduction The practice of an investor from one EU Member State relying on intra‑ EU bilateral investment treaties ( BITs) and the Energy Charter Treaty ( ECT) to bring arbitration against another EU Member State as the host has sparked substantial controversy in recent years. That debate has underscored the friction between protections afforded by EU law and those conferred under BITs and the ECT. As explained further below, this issue is now, for the most part, resolved as a matter of EU law. Yet, strikingly, in almost all intra‑ EU investor‑state arbitrations (under either BITs or the ECT) to date, tribunals have declined to dismiss cases for lack of jurisdiction on the basis of the intra‑ EU objection. As a result, many EU investors are pursuing enforcement of arbitral awards against EU Member States outside the EU, and many others are opting to seat...
ARCHIVED: This Practice Note has been archived and is not maintained. Practice Note: Intra- EU investment disputes—an introduction This overview may interest practitioners. Investor reliance on intra- EU bilateral investment treaties ( BITs) has provoked substantial debate in recent years. That discussion reveals a tension between rights and protections derived from EU law and those contained in BITs concluded between Member States. This Practice Note sets out the key arbitration developments in this important sphere. A number of European institutions—most notably the European Commission and the European Court of Justice ( ECJ)—have maintained that intra- EU BITs are incompatible with EU law. Unsurprisingly, these concerns have received limited backing within the arbitration community so far. Nevertheless, following the Slovakia v Achmea decision (see below) and the declarations issued by all EU Member States in January 2019 to bring intra- EU BITs to an end (see...
Across numerous legal systems, there are few material distinctions between international and purely domestic arbitration proceedings overall. This Practice Note pinpoints circumstances where divergences can occur and evaluates how these variations may affect the arbitral process in practice. You might also wish to consult Practice Notes: Arbitration—an overview of arbitration’s key characteristics, Institutional arbitration—an overview of the principal features of institutional arbitration, Ad hoc arbitration—an overview of the principal features of ad hoc arbitration, and International arbitration—an overview of the principal features of international arbitration for reference. What makes an arbitration domestic or international? A domestic arbitration deals solely with national matters and domestic concerns alone. Broadly, every element of the proceedings connects to one jurisdiction and stays within that legal system at all. For instance, the parties’ nationalities, the contract’s governing law, the location for performance of the contract, and the factual...
Although arbitration has seen reduced use for UK domestic construction disputes owing to adjudication’s ongoing dominance, it is still widely chosen by parties to settle conflicts arising from construction projects where the contracting parties are from different jurisdictions across borders. The expense of international arbitration may mirror that of litigation, but this depends greatly on the particular circumstances of the matter, including its scale and complexity in play. Nevertheless, arbitration affords a range of benefits over litigation for parties, particularly for schemes undertaken in jurisdictions where local courts may lack sufficient experience or expertise, or where there are concerns about potential local bias in such circumstances. The main advantages of international arbitration are set out below: the parties’ ability to select a neutral forum and the laws that will govern the arbitration (the seat) chosen the ability to also choose...
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...
Judicial enforcement of international commercial arbitration awards in New York Arbitration has emerged as the predominant means by which parties across the globe settle disputes outside the courts. It rests on the parties’ consent—express or implied—typically recorded in an arbitration clause within a private contract or a treaty. Even when parties choose to arbitrate, the courts remain vital to ensuring the process is effective. Crucially, they may compel a resistant party to arbitrate or to honour an arbitral award. This Practice Note considers the judicial enforcement of international commercial arbitration awards in New York. In New York, enforcement is usually straightforward. The federal courts there possess deep experience and expertise in enforcing international arbitral awards. In doing so, they apply a robust federal common law policy favouring arbitration. See Mitsubishi Motors Corp. v Soler Chrysler- Plymouth, Inc., 473 U. S. 614, 631 (1985); Telenor Mobile Comms. AS v...
This Practice Note reviews the conduct of arbitration under the International Centre for Dispute Resolution ( ICDR) International Dispute Resolution Procedures (including the Mediation and Arbitration Rules) (the International Rules), revised with effect from 1 March 2021. For a primer on the International Rules, including how to commence and answer ICDR arbitration proceedings, see Practice Note: ICDR (2021)—introduction to the institution—commencing arbitration and responding to arbitration. For guidance on arbitrating under earlier editions of the International Rules, see: ICDR arbitration—overview. For guidance on the American Arbitration Association® ( AAA), see: AAA arbitration—overview. Pleadings The International Rules expressly envisage only the Notice of Arbitration, the Answer to the Notice of Arbitration, and any counterclaim with its answer. Parties may amend or supplement their claims, counterclaims or defences unless the tribunal finds it inappropriate, taking into account factors such as delay ( ICDR, art 10). In...
ARCHIVED This Practice Note is archived and is not maintained. This year’s Arbitration annual review of trends and hot topics within the international arbitration community considers key developments in 2017 and looks ahead to what 2018 may bring. Headline issues in 2017 comprised diversity on arbitral tribunals, third-party funding and transparency. We chart movements across these themes, spanning surveys, case law, legislation, rule revisions, conventions and guidelines. Also featured are updates on Lexis Nexis®’s content, including highlights from the past year and what to expect over the next 12 months. Reviewing 2017 Diversity on arbitral tribunals What happened? In January 2017, Berwin Leighton Paisner ( BLP) published the findings of its annual international arbitration survey, concentrating on diversity within arbitral tribunals. The survey examined the significance respondents attributed to gender and ethnicity/national identity when appointing an arbitrator, and whether statistics on diversity assisted in selecting an arbitral...
Practitioners engaged in cross-border arbitration often presume that observing the ethical code of their own jurisdiction—the place where they are authorised and supervised—is sufficient. The reality is frequently far more intricate: those standards may or may not extend beyond national borders and, if they do, they can clash with norms governing the legal seat, with requirements set by the administering arbitral body, or with provisions embedded in the parties’ contract. Whether a lawyer’s ‘home’ rules govern foreign or international proceedings is regularly unclear or equivocal, especially for counsel admitted in several jurisdictions. Nor is it an entirely simple exercise to identify which other frameworks might bite. Even where the applicable professional obligations can be pinpointed, counsel and parties within the same tribunal process commonly hail from diverse legal traditions and cultures. Consequently, they may act in line with differing views of what amounts to...
This Practice Note This Practice Note offers practical guidance to lawyers less familiar with damages on several key issues. It also shares insights for practitioners with greater damages experience to reflect on alongside their own practice and potentially refine their approach. The focus is how lawyers can collaborate effectively in matters involving models to: understand the model’s foundations test the assumptions against the available evidence communicate the issues clearly to the tribunal All without needing to become a modelling expert. For thoughts on when a damages expert is required, the advantages and disadvantages of using experts, how to identify and engage them, and tips for working with experts, see Practice Note: Damages experts in international arbitration. The central message is that if you, as advocate, do not grasp the core matters underpinning a damages claim, you will be unable to convey them...
This Practice Note explores the place of costs in international arbitration proceedings. Further guidance on this topic appears in Practice Notes: AA 1996—costs, Interest on costs and damages in arbitration, Costs and fees of key arbitral institutions, and the ‘ Related documents’ pod. To compare the answers to questions relating to arbitration costs (and funding) in jurisdictions around the world, please consult our International Comparator Tool. Relevance of costs in international arbitration This review of costs is aimed chiefly at two objectives—enabling arbitrants to keep expenditure under control and, where they succeed, to recover it from the opposing side. Unchecked dispute costs can rapidly make pursuit of proceedings uneconomic and cause disputants to regret commencing proceedings. By understanding the different categories of cost, parties can introduce greater control and help ensure that the sums incurred are recovered from the opponent......
The summary below provides statistics from several prominent international arbitral organisations and related bodies on caseload and associated points. Be aware that institutions release caseload data in different formats and with varying emphases, so direct like-for-like comparison can be difficult. Accordingly, caution should be exercised when comparing figures across different bodies. Arbitral institution/body; arbitration cases filed; number of female arbitrators appointed (total in brackets); Lexis+® UK legal updates and News Analysis; original source. CIETAC — China International Economic and Trade Arbitration Commission See: CIETAC arbitration—overview The following data reflects CIETAC’s foreign-related caseload across recent years. Cases recorded in 2025: 806 Cases recorded in 2024: 758 Cases recorded in 2023: 645 Cases recorded in 2022: 642 Cases recorded in 2021: 636 Cases recorded in 2020: 739 Cases recorded in 2019: 617 Cases recorded in 2018: 522 Cases recorded in 2017: 476 ...
ARCHIVED : This Practice Note has been archived and is not maintained. This year’s annual roundup on international arbitration—key seats spotlights many of 2017’s most notable developments and signals what lies ahead in 2018. The review covers key cases and legislative moves across the USA, UAE, China, Singapore, Hong Kong, India and others. It also features updates to Lexis Nexis® content, with news of exciting developments over the last year and what is scheduled for the next 12 months. Given the potential scope of this survey, we have confined our coverage to a selection of the principal developments. Reviewing 2017 Arbitration in the Americas What happened? In the USA, Steve Finizio, partner at Wilmer Hale, notes that it has been a relatively quiet year for international arbitration, and the US Supreme Court has issued no rulings on...
ARCHIVED This Practice Note is archived and no longer maintained. This year’s annual round-up of arbitration institutions highlights major developments from 2017 and looks ahead to what 2018 may bring. SCC Arbitration Rules revised, effective from 1 January 2017. ICC Arbitration Rules updated, in force from 1 March 2017. LMAA Terms refreshed, operative from 1 May 2017. Statistics issued by the institutions. Forthcoming rule revisions anticipated from HKIAC and CIArb. Updates on Lexis Nexis®’s content also feature, noting key advances over the past year and what is expected in the next twelve months. Reviewing 2017 ICC—revised rules for 2017 and key developments What happened? From 1 March 2017, the ICC’s updated arbitration rules took effect (the 2017 ICC Rules). These apply to ICC arbitrations begun on or after that date, unless the parties have opted for the rules in force when they signed their...
Enforcement under Indonesia’s Arbitration Law Indonesia’s Law Concerning Arbitration and Alternative Dispute Resolution, Law No. 30 of 1999 (the Arbitration Law), differentiates between domestic and international arbitral awards. Proceedings seated in Indonesia are treated as domestic, whereas those seated abroad are categorised as international. This has been reinforced by Constitutional Court Decision No. 100/ PUU- XXII/2024. Enforcement pathways depend on that classification; this Practice Note addresses how international awards are enforced. The enforcement procedure in Indonesia Indonesia has ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), subject to reciprocity and commercial exceptions. Among other things, it enables enforcement in one signatory state of awards made in the territory of another. The Arbitration Law gives domestic effect to these treaty duties. Notably, the grounds to resist enforcement of an international award under the...
Arbitrability As a broad rule, arbitration can be invoked to determine almost any claim or quarrel about legal rights. This approach is widely recognised. Courts have described this as a presumption in favour of arbitrability (see, for instance, remarks of the Singapore Court of Appeal in Larsen Oil and Gas Pte v Petroprod). Yet most legal systems, England and Wales included, recognise carve-outs from that rule. Consistently with the doctrine of non-arbitrability, some matters cannot be decided by an arbitral tribunal even where they appear to fall within a valid arbitration clause (see, for example, the English High Court in River Rock Securities v International Bank of St Petersburg). Although it is broadly acknowledged that some types of dispute are arbitrable while others are not, drawing the exact line between those classes is often difficult. In truth,...
As is typical within civil law systems, notably in the Middle East, interim remedies are generally harder to obtain than in common law venues like England and Wales or the United States. For arbitrations seated in the Sultanate of Oman (' Oman'), the Oman Arbitration Act ( Royal Decree No. 47 of 1997, as amended) serves as the lex arbitri, having taken effect on 28 June 1997 and later amended in 2007. That Act draws on the UNCITRAL Model Law. It is complemented by the Civil Procedure Law ( Royal Decree No. 29 of 2002) and Oman’s accession to the New York Convention ( Royal Decree No. 36 of 1998). Oman has also advanced in recent years with the creation of the Oman Commercial Arbitration Centre (' OAC') in 2018 (established by Royal Decree No. 26 of 2018) and the...
Interim remedies are available in the arbitral proceeding in Macau Interim remedies, also known as interim measures, are temporary orders that a court or arbitral tribunal may issue before or during a dispute resolution process. They are separate from final remedies, which typically form part of a final judgment, order, or arbitral award that settles the dispute in full. These interim measures are designed to preserve the parties’ rights and interests until the case is finally resolved by the court or tribunal. At the same time, they may function as stand-alone measures as well. An anti-suit injunction is one such measure, preventing a party from commencing or continuing legal proceedings in a given forum. That latter measure is not provided for by Macau arbitration law currently. Macau published a new arbitration law on 5 November 2019, Law No. 19/2019, which entered into force on 4 May 2020. The new...
Interim remedies in arbitrations relating to Australia This Practice Note examines interim remedies in arbitrations connected with Australia. Such measures can be ordered by the arbitral tribunal, or by a court in aid of the arbitral process. The need for interim measures can surface in any category of dispute, at various stages of the case, and they may be fashioned in several forms. They may be sought at different times during the proceedings. In international arbitration, the avenues to obtain interim protection differ depending on a number of factors, including the nature of the measure sought and the jurisdiction where enforcement is required. By way of illustration, parties may need a worldwide freezing order where assets are spread across numerous jurisdictions, or a freezing order in a jurisdiction other than the seat of the arbitration because the relevant assets are situated there....
Although arbitration is a consensual, private mechanism distinct from the judicial system of any jurisdiction, there are recognised occasions and circumstances when parties may wish, or be required, to turn to the courts for supportive relief in aid of the arbitration itself. Former arbitration legal framework in Portugal The earlier Portuguese Arbitration Law ( Law No 31/86 of 29 August 1986) (the Old PAL) contained no express or specific rules on preliminary orders or interim measures available to parties during arbitral proceedings, or even before they were commenced. Nonetheless, it was commonly accepted that the state courts could be asked to issue such measures or orders in aid of arbitration. At the same time, a long-running discussion among academics, commentators and the case law addressed whether arbitral tribunals themselves possessed authority to order interim measures or preliminary orders. The overwhelming trend in decisions of the...
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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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