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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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Issuing interim and emergency (urgent) measures Invoking interim and emergency (urgent) measures is a key means by which national courts and arbitral tribunals can bolster the arbitration process. The term ‘interim and emergency’ embraces a broad spectrum of steps, including injunctions and preservation orders, which, in essence, protect the arbitral process from being undermined by making any award incapable of performance or pointless. The measures or relief a tribunal may grant will be shaped, at least in part, by the arbitration rules (if any) adopted by the parties, and those seeking such orders should be sure of the relevant tribunal’s powers. The law of the seat will also usually be pertinent when defining the extent of those powers. Parties may, and should, also turn to courts with jurisdiction over their arbitration (that is, the courts of the seat) for assistance, either in addition to or in...
Introduction Korea has developed into an emerging arbitration hub in Northeast Asia over the past two decades, enjoying a well-earned status as an arbitration-friendly venue. The Korean Arbitration Act ( KAA) provides the statutory backbone for arbitration in Korea. First enacted in 1966, it was comprehensively revised in 1999 to align with the UNCITRAL Model Law 1985, later adjusted in part to reflect the updates introduced by the UNCITRAL Model Law 2006, and amended again in 2020 to incorporate revisions arising from the Arbitration Industry Promotion Act. As one of the earliest Asian adopters of the UNCITRAL Model Law on International Commercial Arbitration, Korea has built a dependable legal regime for arbitral proceedings, making it a reliable place for arbitration in Korea. Korean courts are widely viewed as supportive of arbitration, upholding arbitration agreements between the parties and exercising restraint in...
The framework for international arbitration in Canada Canada has implemented the 1985 United Nations Commission on International Trade Law ( UNCITRAL) Model Law (the Model Law). As a federation, Canada allocates international arbitration legislation to both the federal order and each province and territory. Those statutes either reproduce the Model Law—for instance, Ontario’s International Commercial Arbitration Act, 2017, SO 2017, c 2, Sch 5 (the ‘ International Commercial Arbitration Act 2017’) appends the Model Law as a Schedule—or adopt its core tenets. Federally, Canada has not yet enacted the 2006 amendments to the Model Law. At the provincial level, Ontario and British Columbia are currently the only provinces to have incorporated those revisions, seen respectively in Schedule 2 to the International Commercial Arbitration Act 2017 and the International Commercial Arbitration Act, RSBC 1996, c 233. Challenging the jurisdiction of an...
The International Arbitration Act 1974 ( IAA 1974) The International Arbitration Act 1974 ( IAA 1974), Australia’s statutory framework for international commercial arbitration, gives effect to: the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) without any reservations ( Sch 1) the United Nations Commission on International Trade Law ( UNCITRAL) Model Law 1985, as amended in 2006 (the Model Law) ( Sch 2) the International Centre for Settlement of Investment Disputes ( ICSID) Convention ( Sch 3) The IAA 1974 embodies pro‑arbitration and pro‑enforcement policies that apply to all international arbitral proceedings with an Australian seat, and to the recognition and enforcement of foreign arbitral awards. The Act was amended in 2015 following the Civil Law and Justice ( Omnibus Amendments) Act 2015, with further amendments in October 2018 by the Civil Law and Justice...
Introduction This Practice Note aims to present a succinct outline of the arbitration environment in the Territory of the Virgin Islands (the ‘ BVI’). For background purposes, the BVI is a British Overseas Territory. It possesses its own constitution (the Virgin Islands Constitution Order 2007, which superseded the Virgin Islands Constitution Order 1976), its own legislature, which is responsible for enacting laws, and its own distinct system of government. UK law forms part of BVI law where it is expressly received into local law or where it constitutes an element of the common law ( Common Law Declaration of Application Act ( Cap 13), section 2). Note: the cases mentioned below are reported by Lexis Nexis® The legislative framework The BVI’s first arbitration statute was the Arbitration Act 1976 (the ‘1976 Act’). The 1976 Act was not amended or updated following its original enactment and...
When resolving disputes seated in the United States of America ( USA or US) through arbitration, domestic parties may select from several arbitral bodies to run the case management and administration. This Practice Note aims to familiarise legal practitioners with the arbitral providers most often engaged in the US: the American Arbitration Association ( AAA); the International Institute for Conflict Prevention and Resolution ( CPR); and JAMS. It sets out the principal distinctions among these organisations regarding panel (tribunal) appointment, governing rules, and arbitration charges, together with other notable aspects. In this Practice Note, the following rules are referenced, unless indicated otherwise: AAA Commercial Arbitration Rules and Mediation Procedures (2022) in force 1 September 2022 ( AAA Rules; AAA) CPR Rules for Administered Arbitration (2019) in force 1 March 2019 ( CPR Administered Rules; CPR) JAMS Comprehensive Arbitration Rules & Procedures (2014) in force 1 June 2021 ( JAMS...
This Practice Note outlines the core principles for recovering damages arising from contractual breach. It addresses the compensatory purpose of damages; categories covering pecuniary and non-pecuniary loss; nominal damages; damages available under the Sale of Goods Act 1979 ( SGA 1979); the operation of default damages clauses; contractual mechanisms for remedying a breach; and the availability of interest. As stated by Baron Parke in Robinson v Harman, the party who suffers loss through breach should, in terms of damages, be placed in the position they would have occupied had the contract been performed... Compensatory function of damages for breach of contract The ordinary role of contractual damages mirrors that in tort: they are compensatory (see, for example, British Westinghouse v Underground Electric Rlys). The purpose is to make good the actual loss sustained by the innocent party and, so far as money can achieve it, to place them in...
Note: elements of the guidance in this Practice Note were derived in part from material first prepared in collaboration with Professor Robert Merkin and CMS. This Practice Note also contains further practical guidance kindly contributed by Richard Power of Clyde & Co LLP and has been substantially maintained by Jeremy Mash, Partner, CMS. Scope of this Practice Note This Practice Note addresses the recognition and enforcement of arbitral awards in England and Wales ( England and English are employed as convenient shorthand in this Practice Note for ease of reference). Such awards include: awards issued where the legal seat of the arbitration was England, and foreign awards, ie awards rendered with the seat of the arbitration located in a jurisdiction other than England Foreign awards include: New York Convention awards, ie awards issued where the seat of the arbitration lay in states that have...
Dealings between private enterprises and governments, or state-owned bodies, are commonplace in the spheres of foreign investment and cross‑border contracting across numerous jurisdictions. Parties to cross‑border frameworks often opt to refer prospective disputes to international arbitration rather than litigate in court. The underlying logic is clear and compelling. First, arbitration removes the quarrel from the reach of the state party’s own courts and places it before an impartial, independent tribunal. Second, well‑known international treaties, including the Convention on the Settlement of Investment Disputes between States and Nationals of Other States ( ICSID Convention) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ( New York Convention), have markedly eased the recognition and enforcement of arbitration clauses and awards. Notwithstanding these benefits, state immunity may present a significant barrier to effective dispute resolution in practice when engaging with states or...
ARCHIVED This Practice Note has been archived and is not maintained. STOP PRESS This Practice Note is being reassessed in view of the ruling in Xiamen Xinjingdi Group Co Ltd v Eton Properties Limited and Others [2020] HKCFA 32. A party that succeeds in arbitration may enforce the award in Hong Kong in one of two ways: under statute, via the summary procedure set out in the Arbitration Ordinance ( Cap 609), or at common law, by bringing proceedings founded on an implied undertaking to comply with the award (often described as an ‘action on the award’) ( Xiamen Xinjingdi Group Co Ltd v Eton Properties Ltd [2016] 2 HKLRD 1106) This Practice Note examines actions on the arbitration award under Hong Kong law. For guidance on statutory enforcement in Hong Kong, see Practice Notes: Hong...
This Practice Note examines questions of arbitral jurisdiction in arbitration conducted under German law. Note: all German judgments mentioned in this Practice Note are not reported by Lexis Nexis®. Introduction to jurisdiction under German arbitration law Germany is widely regarded as an arbitration-friendly forum. Its arbitration regime is contained in Book 10 (sections 1025–1066) of the Code of Civil Procedure, the Zivilprozessordnung ( ZPO), which is closely aligned with the UNCITRAL Model Law on International Arbitration (the Model Law). An unofficial English version of the ZPO has been issued by the German Ministry of Justice, and the quotations from the ZPO in this Practice Note rely on that translation. With respect to objections to an arbitral tribunal’s jurisdiction, German law does not confer ultimate authority on the tribunal to rule on its own competence. In other words, German law does not recognise exclusive ‘...
Introduction On 26 May 2023, the Arbitration and Mediation Act, 2023 ( AMA) took effect, repealing the Arbitration and Conciliation Act, 1998 ( ACA). The AMA fills several gaps left by the ACA and settles a number of contentious Nigerian court decisions on arbitration. This Practice Note also points to the key changes introduced by the new legislation. Status of arbitral awards Under Nigerian law, an arbitral award is final and binding. Section 31 of the ACA confirmed this under the previous framework, and section 57(1) of the AMA restates it, expressly recognising that both domestic and foreign awards bind the parties. It provides that an arbitral award, regardless of the country or state where it is made, shall be recognised as binding and, upon a written application to the Court, shall be enforced by the Court. The form and contents of arbitral awards (section 47 of the AMA and...
Because arbitration is inherently cross-border, parties and tribunals routinely grapple with multiple currencies, sometimes within a single case and often simultaneously across claims, with claims advanced, and frequently granted, in several denominations. It is common for the same proceedings to feature distinct heads of claim tied to different monies. Importance of currency Selecting the currency for the award is often an early question for the tribunal, and at times one of the hardest in practice, in reality, largely owing to exchange-rate volatility; the choice of currency can spell the difference between a mere trifle and a sizeable fortune. The difficulty is commonly significantly magnified by the lengthy gap between the loss being sustained, the proceedings being started, and any award (if any) in favour of the injured party. As rates move, the outcome may become an unforeseen windfall or an unanticipated penalty; whichever direction the currency takes, one side...
This Practice Note outlines the steps for commencing an arbitration and replying to a notice of arbitration in line with the third edition of the ARIAS ( UK) Rules, adopted in 2014 (the ARIAS Rules). Those Rules govern any ARIAS reference begun on or after 1 January 2014. ARIAS arbitrations started before 1 January 2014 are subject to the ARIAS Rules 1997 (click here for the second edition). For an introduction to ARIAS, see Practice Note: Arbitration under the ARIAS ( UK) Rules 2014. For guidance on agreeing to adopt the ARIAS Rules for resolving disputes, see Practice Note: ARIAS (2014)—general procedure. Starting an arbitration Notice of Arbitration The party initiating the arbitration (the claimant) does this by serving the intended respondent with a written notice of arbitration ( ARIAS, rule 4.1)......
This Practice Note considers serious irregularity challenges in England and Wales where an arbitral award is tainted by fraud, or the award, or its procurement, offends public policy under section 68(2)(g) of the Arbitration Act 1996 ( AA 1996). Where appropriate, it should be read alongside the Practice Notes: AA 1996—challenging the award on grounds of serious irregularity (s 68) and AA 1996—challenging the award—categories of serious irregularity (s 68). Grounds of serious irregularity—obtained by fraud or contrary to public policy AA 1996, s 68 sets out nine exhaustive categories of serious irregularity by which a party may impeach an arbitral award. Under s 68(2)(g), serious irregularity arises where: the award is procured by fraud, or the award, or the manner in which it was obtained, is contrary to public policy As with every alleged serious irregularity, the English court’s approach to s...
This Practice Note closely explores the function of state immunity in connection with arbitration proceedings in the Russian Federation. For a concise introductory guide to state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. In addition, for further Practice Notes addressing state immunity across a broad range of jurisdictions worldwide (including England and Wales), please see our ‘ State immunity’ subtopic: State immunity and arbitration—overview. State immunity—the Russian legal framework The Russian Federation ( Russia) follows a restrictive, rather than absolute, approach to state immunity. This was not always the position. Russia’s restrictive stance on state immunity took effect on 1 January 2016, when Federal Law No 297- FZ ‘ On jurisdictional immunities of foreign state and property of foreign state in the Russian Federation’ of 3 November 2015 (the Law on Immunities) entered into force. The Law on...
This Practice Note concerns arbitration proceedings under the London Court of International Arbitration ( LCIA) Arbitration Rules 2020, effective 1 October 2020. For practical guidance on arbitrations under the LCIA Rules 2014 and 1998, see the relevant Practice Notes here: LCIA arbitration—overview. For further information on issues arising in multi-party arbitration and for comparisons with the arbitration rules of other institutions, see Practice Note: Multi-party and multi-contract arbitration—an introduction. Multi-party arbitration The LCIA Rules contain some, though not extensive, provisions specific to multi-party cases. This Practice Note highlights stages of an arbitration at which the LCIA Rules include pertinent provisions. Issues of joinder and consolidation of multiple arbitrations are addressed separately in Practice Note: LCIA (2020)—tribunal's duties and powers. In brief, an LCIA tribunal may add a third person to an arbitration with the express agreement of that person and the applying party ( LCIA, art...
This Practice Note provides guidance on costs pursuant to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). This note offers direction on costs under the 2024 HKIAC Administered Arbitration Rules. As outlined in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 June 2024, unless the parties decide otherwise; where proceedings were commenced before 1 June 2024, the 2018 HKIAC Rules will usually apply, save where the parties agreed otherwise. A specific ‘2024 Schedule of Fees’ applies to arbitrations administered pursuant to the 2024 HKIAC Rules. The two HKIAC Practice Notes on Costs of Arbitration, based on HKIAC 2018, Sch 2/hourly rates and Sch 3/sums in dispute (the Practice Notes on Costs), effective from 11 March 2019, continue to apply...
Scope The Arbitration Ordinance ( Cap 609) ( AO) governs any arbitration pursuant to an arbitration agreement that designates Hong Kong as the seat, irrespective of whether the agreement was concluded in Hong Kong. AO applies to both domestic and international arbitrations. If the seat lies outside Hong Kong, only selected provisions of AO apply, including: stay of court proceedings where the dispute is subject to an arbitration agreement ( AO, s 20) interim measures ordered by a court in support of an arbitration ( AO, ss 21, 45, 60) enforcement of emergency relief issued by emergency arbitrators ( AO, ss 22A–22B) enforcement of the arbitral tribunal’s orders and directions ( AO, s 61) recognition and enforcement of awards ( AO, ss 82–98) The provisions of AO (subject to limited exceptions) also extend to statutory arbitrations under other ordinances, so long as AO is consistent with that ordinance ( AO, s 5)....
This Practice Note provides guidance on multi-party and/or multi-contract arbitrations pursuant to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As outlined in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 November 2018, save where the parties agree otherwise; for arbitrations started before that date, the 2013 HKIAC Rules generally apply unless the parties agreed differently. Be aware that the provisions on consolidation and on a single arbitration across multiple contracts described below are inapplicable where the underlying arbitration agreement was made before 1 November 2013, unless the parties consent otherwise ( HKIAC 2018, art 1.5). For a primer on HKIAC and its organisation, see Practice Note: HKIAC—background to and structure 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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