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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 reviews evidential issues under the International Centre for Dispute Resolution ( ICDR) International Dispute Resolution Procedures ( Including Mediation and Arbitration Rules) (the International Rules), as revised with effect from 1 March 2021. It covers mediation and arbitration within those procedures in detail. For an overview of the International Rules, covering initiation of ICDR arbitrations and replies to claims, consult Practice Note: ICDR (2021)—introduction to the institution—commencing arbitration and responding to arbitration. For commentary on arbitrations conducted under earlier versions of the International Rules, see: ICDR arbitration—overview. For material on the American Arbitration Association® ( AAA), refer to: AAA arbitration—overview. Powers of the tribunal in relation to evidence The tribunal’s core obligation is to secure equal treatment of the parties, safeguard each side’s right to be heard, and provide a fair chance to present its case ( ICDR, art...
This Practice Note examines how costs and security for costs are addressed under the International Centre for Dispute Resolution ( ICDR) International Dispute Resolution Procedures (including Mediation and Arbitration Rules) (the International Rules), amended and effective 1 March 2021. For an introduction to the International Rules, covering how to start and formally 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 iterations of the International Rules, see: ICDR arbitration—overview. For information on the American Arbitration Association® ( AAA), see: AAA arbitration—overview. Administrative/institutional fees Under the International Rules, each party bringing claims or counterclaims must elect between two fee arrangements: the Standard Fee Schedule and the Flexible Fee Schedule. The Flexible Fee Schedule is available only for claims above US$150,000. The Standard Fee Schedule has two payment triggers; the Flexible Fee...
Origins of the ICDR The International Centre for Dispute Resolution ( ICDR) was formed in 1996 as the arm of the American Arbitration Association® ( AAA). Recognised as the pre-eminent domestic arbitration body in the US, the AAA created the ICDR as a distinct division to oversee arbitration matters and deliver its global alternative dispute resolution ( ADR) offerings. The ICDR’s principal base is in New York; however, it maintains offices across the United States of America, with full-case administration centres in Singapore and Canada. Administration and application of the ICDR International Rules The ICDR conducts arbitrations under its International Dispute Resolution Procedures (covering Mediation and Arbitration Rules) (the International Rules), as revised and taking effect from 1 March 2021. It also continues to administer matters under earlier versions of the International Rules (including the 2014 iteration), for which guidance is available at: ICDR...
This Practice Note explores the function and operation of the arbitral tribunal under the International Dispute Resolution Procedures ( Including Mediation and Arbitration Rules) (the International Rules), as revised and in force from 1 March 2021. In particular, it offers practical guidance on constituting the tribunal, contesting arbitrators, and the scope of tribunal authority under the International Rules. For an overview of the International Rules, and details on initiating and answering ICDR arbitration proceedings in practice, see Practice Note: ICDR (2021)—introduction to the institution—commencing arbitration and responding to arbitration. For guidance on arbitrations under earlier versions of the International Rules, see: ICDR arbitration—overview. For further information on the American Arbitration Association® ( AAA), see: AAA arbitration—overview. Appointment of arbitrators The parties may, by agreement, adopt any method for appointing arbitrators and promptly notify the ICDR (ie the Administrator) of that method ( ICDR, art 13(1)). If...
This Practice Note examines interim and emergency relief available from tribunals under the International Centre for Dispute Resolution ( ICDR) International Dispute Resolution Procedures (including the Mediation and Arbitration Rules) (the International Rules), as revised with effect from 1 March 2021. For a primer on the International Rules, covering commencement of and responses to ICDR arbitration, see Practice Note: ICDR (2021)—introduction to the institution—commencing arbitration and responding to arbitration. For direction on arbitrating under earlier versions of the International Rules, see: ICDR arbitration—overview. For material on the American Arbitration Association® ( AAA), see: AAA arbitration—overview. The availability of interim relief—post-constitution of the tribunal Once the arbitral tribunal is in place, the International Rules empower it to grant interim measures, such as injunctive orders with steps to safeguard or preserve assets ( ICDR, art 27). Under ICDR, art 27(3) of the...
This Practice Note examines matters arising in arbitrations with multiple parties and/or multiple contracts conducted under the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration ( ICC Rules). Situations may include adding further participants through a request for joinder submitted before or after the confirmation or appointment of any arbitrator, advancing claims among several parties and/or against additional parties, pursuing claims under more than one contract and/or multiple arbitration agreements, and consolidating related proceedings. The 2021 ICC Rules apply to any ICC arbitration commenced on or after 1 January 2021, unless the parties expressly agree that an earlier version of the ICC Rules will govern (eg, 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...
ARCHIVED : This Practice Note is archived and is no longer maintained. CORONAVIRUS ( COVID-19): Numerous arbitral organisations have reacted to the coronavirus pandemic by issuing practical guidance and by adjusting their standard procedures and working methods. For details on how this content and related arbitration proceedings may be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For further information, see: Coronavirus ( COVID-19) and arbitration—overview. This Practice Note examines the expedited procedure contained in the International Chamber of Commerce ( ICC) Rules of Arbitration effective from 1 March 2017 (2017 ICC Rules). The introduction of an expedited process was the most notable change brought by the 2017 ICC Rules and aligned the ICC’s Rules with other arbitral institutions, such as the Singapore International Arbitration Centre and the Arbitration Institute of the Stockholm Chamber of Commerce, which offer...
ARCHIVED This Practice Note is archived and no longer maintained. CORONAVIRUS ( COVID-19) Many arbitral organisations have reacted to the coronavirus pandemic with practical guidance and/or adjustments to their standard procedures and working methods. For details on how this material and any related arbitration proceedings may be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For further background, see: Coronavirus ( COVID-19) and arbitration—overview. Such measures cover guidance and changes to usual procedures and ways of working. This Practice Note examines issues arising in multi-party and/or multi-contract arbitrations under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). It also 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 guidance. The 2017 ICC Rules apply to ICC...
This Practice Note This Practice Note provides an overview of the International Chamber of Commerce ( ICC), its International Court of Arbitration (the ICC Court), the 2021 ICC Rules of Arbitration (the ICC Rules or 2021 ICC Rules), and the ICC Note to Parties and Arbitral Tribunals on the conduct of arbitrations under the ICC Rules of Arbitration (the ICC Note). Released in December 2020, the 2021 ICC Rules govern any ICC arbitration commenced on or after 1 January 2021, unless the parties expressly opt for an earlier edition (for example, in their arbitration clause). They contain amendments to the prior edition designed to promote greater efficiency, flexibility and transparency. Among other things, the 2021 ICC Rules: acknowledge and mirror the growing use of technology in arbitration proceedings; expand and clarify provisions on joinder and...
This Practice Note examines the expedited pathway in the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration, effective from 1 January 2021 ( ICC Rules). The ICC Rules govern any ICC arbitration started on or after 1 January 2021, unless the parties clearly agree that an earlier version will govern (eg, by wording in the arbitration clause). The ICC’s expedited arbitration route was launched in the 2017 edition of the ICC Rules, aligning the ICC framework with other arbitral institutions, such as the Singapore International Arbitration Centre ( SIAC) and the Arbitration Institute of the Stockholm Chamber of Commerce ( SCC), which offer fast-track mechanisms for resolving disputes. Using the ICC expedited route, a case can be finalised within six months. For references to materials on the 2017 and 2012 editions of the ICC Rules, see: ICC...
ARCHIVED : This Practice Note is archived and not maintained. CORONAVIRUS ( COVID-19): Numerous arbitral organisations have reacted to the coronavirus pandemic by issuing practical guidance and/or adjusting their usual procedures and ways of working. For details on how this content and related arbitration proceedings may be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For further information, see: Coronavirus ( COVID-19) and arbitration—overview. This Practice Note examines the ICC Terms of Reference ( TOR) under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). It also points to the guidance in the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ( ICC Note). Unless stated otherwise, references here to articles and appendices of the ICC Arbitration Rules are to the 2017 ICC Rules. The 2017 ICC...
This Practice Note examines the emergency arbitration route available to parties under the 2021 Rules of Arbitration of the International Chamber of Commerce ( ICC Rules), which permits parties to seek emergency interim or conservatory relief before an arbitral tribunal has been formed. The 2021 ICC Rules govern ICC arbitrations begun on or after 1 January 2021 unless the parties expressly agree that an earlier edition of the ICC Rules will apply. For links to guidance on the 2017 and 2012 editions of the ICC Rules, see: ICC arbitration—overview. ICC emergency arbitrator provisions—introduction The ICC’s emergency arbitrator provisions are intended to allow a party to secure urgent interim or conservatory measures where they cannot wait for the constitution of an arbitral tribunal ( ICC, art 29(1)). ICC emergency arbitrator proceedings are governed by ICC, art 29 and the ICC Emergency Arbitrator Rules set out in ICC, App V...
ARCHIVED : This Practice Note is archived and is not being actively maintained at present. CORONAVIRUS ( COVID-19): Many arbitral organisations have reacted to the coronavirus outbreak by issuing practical guidance and/or modifying their standard processes and usual ways of working. For details on how this material and relevant arbitration proceedings might be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For further information, see: Coronavirus ( COVID-19) and arbitration—overview. This Practice Note outlines the emergency arbitration process available to parties under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules), in order to enable parties to seek urgent interim or conservatory measures before a tribunal has been formed. The 2017 ICC Rules apply to any ICC arbitration commenced on or after 1 March 2017, unless the parties have agreed to adopt the rules in force on the...
As a rule, US policy strongly favours recognising and enforcing arbitral awards. That pro-enforcement approach also embraces awards under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (the New York Convention). Under the New York Convention, awards are presumed enforceable, subject only to narrow, Convention-grounded defences. Practitioners should be alert to enforcement pitfalls and instruct skilled counsel on complex points, notably: personal or quasi in rem jurisdiction forum non conveniens state immunity In all matters, parties should seek advice on local rules and procedure and confirm the latest case law for any specific New York Convention enforcement. For guidance on US defences, see Practice Note: Defences to enforcement of an arbitral award in the USA under the New York Convention. Note: the US case law cited in this Practice Note is not...
ARCHIVED: This Practice Note has been archived and is no longer maintained; it is provided for background only. On 22 August 2023, SIAC opened a public consultation on the Draft 7th Edition of the SIAC Rules. The draft SIAC Rules, 7th Edition, can be accessed here. This Practice Note addresses how to commence arbitration under the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (6th edition) 2016 (the 2016 SIAC Rules). The 2016 SIAC Rules apply to arbitrations commenced on or after 1 August 2016, unless the parties have agreed otherwise. Note: Singapore judgments cited in this Practice Note are not reported by Lexis Nexis® UK. Prior to commencing an arbitration Before starting proceedings, there must be a ‘dispute’ that can be referred to arbitration. At the outset, consider whether an arbitration agreement exists and whether there is a ‘dispute’ capable of referral to...
This Practice Note outlines how to initiate arbitration under the Vienna International Arbitral Centre ( VIAC)’s Arbitration Rules 2021 (the Vienna Rules), including options for joinder and consolidation. The 2021 Vienna Rules came into force on 1 July 2021 and apply to all proceedings begun on or after that date. If your arbitration proceeds under the Vienna Rules 2018, which took effect on 1 January 2018, you should consult the earlier version of the rules. Jurisdiction of VIAC As set out in article 1 of the Vienna Rules, VIAC is the Permanent International Arbitration Institution of the Austrian Federal Economic Chamber. VIAC is empowered to administer arbitral proceedings of a domestic or international nature. VIAC is also competent to administer mediation proceedings. How to commence a VIAC arbitration Submitting a Statement of Claim Under the Vienna Rules, proceedings are initiated by filing a Statement of Claim with the...
The LMAA The London Maritime Arbitrators Association ( LMAA) was established on 12 February 1960 after a meeting of arbitrators from the Baltic Exchange Approved List, yet it claims a heritage and practices extending back over three centuries. From the outset, it was conceived as an association of individuals who regularly, and with reasonable frequency, acted as arbitrators in London maritime disputes, either sitting alone or alongside other LMAA members (see the LMAA Guidelines for Full Membership). As an organisation, the LMAA operates without a secretariat and does not administer arbitrations brought under the LMAA Terms 2021 (the Terms); that responsibility lies with the arbitrators and, to some extent, the parties. This streamlined arrangement can facilitate rapid formation of tribunals and lower overall costs when set against arbitration conducted under other well-known sets of international arbitration rules......
Note: The Hong Kong judgments mentioned below are not reported by Lexis Nexis®. Introduction The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) was adopted by the United Nations Conference on International Commercial Arbitration held in New York on 10 June 1958. In the Arbitration Ordinance ( Cap 609) ( AO), the New York Convention is described as the Convention. Section 87 of the AO and Order 73, rule 10 of the Rules of the High Court ( Cap 4A) ( RHC) govern the enforcement of a Convention Award: Evidence required for enforcing Convention awards ( AO, s 88) Refusal of enforcement of Convention awards ( AO, s 89) Convention awards A Convention award means an arbitral award made in a state, or in the territory of a state, other than China or any part of China, which is a party to the...
ARCHIVED: This Practice Note is archived and is not maintained. Under the Arbitration Ordinance, Chapter 609 ( AO), the Hong Kong court may grant a range of interim measures in aid of arbitration proceedings. Such measures are principally intended to uphold the arbitral process, avoid frustration of the award, regulate how the parties conduct themselves, and protect assets or evidence. The arbitral tribunal also has corresponding powers to grant interim measures under AO, s 35. Note: the Hong Kong judgments below are not reported by Lexis Nexis® UK. Power of the court to stay court proceedings in favour of arbitration Where a party so requests, the court can stay its proceedings and refer the parties to arbitration if the action is brought in a matter that is subject to an arbitration agreement, unless that agreement is invalid, inoperative, or incapable of being performed ( AO, s 20). When...
ARCHIVED: This Practice Note is archived and not maintained An introduction to the recognition and enforcement of non- New York Convention and non- Mainland China awards Enforcement of arbitral awards: arising from arbitrations seated in Hong Kong falling outside the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (i.e. non- New York Convention awards), and non- Mainland awards rendered either within or beyond Hong Kong are all governed by, and subject to the same enforcement regime under, the Arbitration Ordinance, Chapter 609 ( AO). Relevant AO provisions Any award issued by an arbitral tribunal, whether made in or outside Hong Kong, is enforceable in the same way as a judgment of the High Court’s Court of First Instance with equivalent effect, but only with the court’s leave. This is qualified by the court’s discretion to refuse leave to enforce an award made by 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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