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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 outlines the steps a respondent ought to take when served with a Request for Arbitration under the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration ( ICC Rules). The 2021 ICC Rules govern ICC arbitrations begun on or after 1 January 2021, unless the parties have expressly chosen an earlier version (for example, in the arbitration clause). For an overview of the 2021 ICC Rules, see Practice Note: ICC (2021)—introduction to the ICC and arbitration under the ICC Rules. For materials on the 2017 and 2012 ICC Rules, see: ICC arbitration—overview. What to do on receiving the Request for Arbitration An ICC arbitration starts when the claimant files a Request for Arbitration ( Request) with the ICC Secretariat. For further guidance on initiating an ICC arbitration, see: Practice Note: ICC (2021)—starting an arbitration Checklist: Starting an ICC (2021)...
Note This Practice Note should be read alongside Practice Note: Arbitrability in international arbitration. In broad terms, arbitration is a consensual means of resolving disputes—it occurs where the parties choose arbitration instead of court proceedings or other avenues. Although there is no statutory definition, the Arbitration Act 1996 ( AA 1996) (applicable in England, Wales and Northern Ireland; England is used here as a convenient shorthand) provides that arbitration is grounded in principles that: parties obtain a fair determination of disputes by an impartial tribunal, avoiding unnecessary cost and delay parties are free to settle the procedure for their arbitration, subject to public interest requirements arbitration is a private dispute resolution process and courts should not intervene unless AA 1996 so provides Accordingly, as a general rule, any civil dispute may be referred to arbitration, provided the parties consent. However, national legal...
This Practice Note examines the recognition and enforcement of arbitral awards in the Netherlands. Introduction The Netherlands is an arbitration-friendly jurisdiction with a modern, pragmatic system of Arbitration Law. Dutch arbitration law is contained in the 4th book of the Dutch Code of Civil Procedure (‘ DCCP’), often called the Netherlands Arbitration Act. For enforcement, the Act distinguishes between domestic awards, meaning awards issued in arbitrations seated in the Netherlands, and foreign awards, meaning awards issued in arbitrations seated outside the Netherlands. In essence, domestic awards are those rendered with the seat in the Netherlands, whereas foreign awards are those rendered with the seat abroad. Both categories only become enforceable once leave to enforce, also termed an exequatur, has been granted. After that leave is obtained, an award can be enforced in the Netherlands in the same way as an enforceable State court...
ARCHIVED This Practice Note has been archived and is not being maintained. CORONAVIRUS ( COVID-19) Many arbitral organisations have addressed the coronavirus pandemic by issuing practical guidance and/or altering their usual procedures and methods of working. For insight into how this content and related arbitration proceedings may be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact [ Archived] [ Archived]. For more information, see: Coronavirus ( COVID-19) and arbitration—overview. This Practice Note explains what a respondent should do when it receives a Request for Arbitration under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). It also cites the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ( ICC Note). References in this Practice Note to articles and appendices of the ICC Arbitration Rules are to the 2017 ICC Rules...
ARCHIVED : This Practice Note has been archived and is not maintained . CORONAVIRUS ( COVID-19): Numerous arbitral organisations have addressed the coronavirus pandemic by issuing practical guidance and adjusting their standard procedures and working practices. For details on how this content and associated 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 considers the requirements for an award under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). The 2017 ICC Rules govern any ICC arbitration begun on or after 1 March 2017, unless the parties have chosen the rules current at the date of their arbitration agreement (which is improbable). The 2017 ICC Rules include: an expedited procedure that applies by default where the...
This Practice Note addresses arbitrations conducted under the CIETAC Arbitration Rules 2024 ( CIETAC Rules), which typically govern cases accepted by CIETAC from 1 January 2024 onwards, or where the parties have expressly chosen the 2024 CIETAC Arbitration Rules ( CIETAC, art 88). The 2015 rules continue to apply to arbitrations taken on by CIETAC between 1 January 2015 and 31 December 2023. This Note concerns international or foreign-related matters, as well as disputes connected to Hong Kong SAR, Macao SAR, or the Taiwan region ( CIETAC, art 3.2). CIETAC provides distinct regimes for summary arbitration (see Practice Note: CIETAC (2024)-summary procedure (and early dismissal)) and for domestic cases; these fall outside the scope of this Note. Arbitrations administered by the CIETAC Hong Kong Arbitration Centre are likewise governed by separate provisions ( CIETAC, art 76) and are not addressed here. The 2024 Rules...
This Practice Note examines challenges and appeals concerning international and domestic arbitral awards in Australia. The relevant legislative framework The International Arbitration Act 1974 ( Cth) ( IA Act) regulates foreign awards and the forms of recourse available against them within Australia. The IA Act gives effect to the 1958 New York Convention on the Recognition and Enforcement of Arbitration Awards (the New York Convention) and the United Nations Commission on International Trade Law ( UNCITRAL) Model Law on International Commercial Arbitration (the Model Law). Domestic awards are governed by harmonised state-based statutes operating in every state and territory, ensuring a coherent regime throughout the country. For the purposes of this Practice Note, all citations to State-based legislation refer to the Commercial Arbitration Act 2010 ( NSW) (the CA Act), which applies in New South Wales, unless otherwise indicated. Because the CA Act is largely...
This Practice Note sets out a primer on the Australian Centre for International Commercial Arbitration ( ACICA) and summarises how to arbitrate under the institution’s latest arbitration rules, which became effective on 1 April 2021. It is not a comprehensive guide to ACICA arbitration, nor a replacement for closely analysing the application of the ACICA arbitration rules to your dispute. What is ACICA? ACICA is Australia’s international body for resolving disputes. Founded in 1985 as an independent, not-for-profit organisation, its purpose is to encourage and enable the efficient settlement of commercial disputes in Australia and abroad through arbitration and mediation, aiming to provide speed and neutrality of process, enforceable outcomes, and commercial confidentiality for disputing parties. ACICA is the exclusive default appointing authority with competence to carry out arbitrator appointment functions under the International Arbitration Act 1974 ( Cth). The ACICA Arbitration Rules The current ACICA...
As a general rule, the English courts refrain from interfering in arbitral proceedings ( AA 1996, s 1(c)). That said, there are specific provisions within the Arbitration Act 1996 ( AA 1996) which permit the courts to ‘assist’ the arbitration process where appropriate. Under AA 1996, s 42, and absent a different party agreement, the court can order a party to obey a peremptory direction issued by the tribunal ( AA 1996, s 41(5)) or, following the Arbitration Act 2025 ( AA 2025), by an emergency arbitrator. This mechanism supports the parties, as well as the tribunal or the emergency arbitrator, where a recalcitrant party declines to comply with such directions. Tribunals and emergency arbitrators have authority to issue peremptory orders under AA 1996, s 41(5) and s 41( A), again save where the parties expressly agree otherwise in their...
Applications to stay litigation in favour of arbitration under section 9 of the Arbitration Act 1996 This Practice Note addresses applications to the courts of England and Wales ( England and English are used as convenient shorthand) seeking a stay of court proceedings in favour of arbitration under section 9 of the Arbitration Act 1996 ( AA 1996). Even where the parties have inserted arbitration clauses into their substantive contracts, once a dispute surfaces one party may decide it no longer wishes to arbitrate. In that scenario, the party may instead issue court proceedings so that the dispute is resolved by the court. The motivations for doing so can differ, for example: the dispute involves three or more parties, at least one of whom is not a party to the arbitration agreement; the parties have concluded several substantive agreements with inconsistent...
The Swiss Rules of International Arbitration, updated on 1 June 2021 (the Swiss Rules), govern-unless the parties agree otherwise-any arbitration started on or after 1 June 2021 where an arbitration agreement refers to the Swiss Rules or to the former rules of chambers or organisations that have joined the Swiss Rules or brought their proceedings under them. This Practice Note looks at commencing arbitration under the Swiss Rules. For guidance on the 2012 Swiss Rules, see: Swiss Rules arbitration-overview. Submitting a Notice of Arbitration An arbitration conducted under the Swiss Rules and administered by the Swiss Arbitration Centre (the SAC) is initiated by serving a Notice of Arbitration ( Swiss Rules, art 3). Electronic submission: send the Notice of Arbitration to...
The Swiss Rules of International Arbitration, updated on 1 June 2021 (the Swiss Rules), govern-unless the parties agree otherwise-any arbitration begun on or after 1 June 2021 where the arbitration clause refers to the Swiss Rules or to the earlier rules of chambers or organisations that have acceded to, or placed their proceedings under, the Swiss Rules. This Practice Note addresses procedural aspects under the Swiss Rules. For commentary on the 2012 Swiss Rules, see: Swiss Rules arbitration-overview... General remarks The Swiss Rules grant the arbitral tribunal broad latitude to manage the proceedings. Arbitrators may run the case as they consider appropriate, provided they uphold equality between the parties and safeguard each party’s right to be heard ( Swiss Rules, art 19.1). Crucially, all parties must use their best endeavours to secure an efficient process and to avoid superfluous costs and delay ( Swiss Rules, art...
This Practice Note This Practice Note explains how to address a notice of arbitration ( Notice) served under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, refer to Practice Note: UNCITRAL Rules—background and introduction. To initiate arbitration pursuant to the UNCITRAL Rules, the claimant is required to formally deliver a Notice to the respondent—see Practice Note: UNCITRAL Rules—starting an arbitration......
Note: the Swiss cases referred to below are not reported by Lexis Nexis®. Introduction and the Structure of this Note The question of immunity arises most often in relation to diplomats, and also consular officials and employees. Immunity is enjoyed by foreign states; numerous intergovernmental and international organisations under headquarters agreements with the Swiss Confederation; the assets of foreign central banks; and state cultural property, whether brought to Switzerland with or without a return guarantee. No immunity applies to foreign state-owned enterprises or to ordinary foreign state-owned banks. Immunity operates solely as a shield. Where an individual, entity, or state benefits from it, the host state may neither exercise jurisdiction over them nor enforce against their assets. Nevertheless, they remain part of legal life and may choose to participate in legal transactions within this forum. Swiss law, like most systems,...
This Practice Note examines the use of expedited (or fast-track) arbitration procedures pursuant to the London Court of International Arbitration ( LCIA) Arbitration Rules 2020 (the LCIA Rules), effective from 1 October 2020. The LCIA does not presently provide a fast-track variant within the LCIA Arbitration Rules. Even so, parties are free to embed a bespoke fast-track process in (i) an arbitration clause; or (ii) a submission agreement concluded before, or upon, commencing an LCIA arbitration. For practical guidance on arbitrations conducted pursuant to the LCIA Rules 2020 and 2014, please refer to the relevant Practice Notes here: LCIA arbitration—overview. For guidance on the general subject of expedited (aka fast-track) arbitration, see Practice Note: Expedited (aka fast-track) arbitration. Fast-track arbitration procedure under the LCIA Rules Expedited arbitration regimes typically supply users with a non-exhaustive suite of procedural tools aimed at ensuring the...
Arbitration under the Abu Dhabi Commercial Conciliation & Arbitration Centre ( ADCCAC) Where an arbitration clause designates the ADCCAC, the proceedings are governed by its Procedural Regulations of Arbitration 2013 (the 2013 Regulations). This Practice Note relies on the ‘official’ English text of the 2013 Regulations. Translation inconsistencies exist between Arabic and English regarding whether terms are mandatory or permissive, particularly in the rendering of compulsory and discretionary wording. The authoritative version is Arabic, which will prevail if any controversy arises over the meaning of the 2013 Regulations. For enforcement purposes, it is essential that any arbitral award satisfies all requirements imposed by the rules under which it is made, and strict adherence to procedural form is required. The provisions extend to every arbitral award, not solely a final award; the Panel (the ADCCAC expression for the tribunal) may issue...
This Practice Note sets out guidance on the emergency arbitrator mechanism in Schedule 4 to the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). As outlined in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 June 2024, unless the parties decide otherwise; where proceedings were initiated before 1 June 2024, the 2018 HKIAC Rules will usually apply, subject to any different party agreement. See below for further guidance on any potential limits to the use of the emergency arbitrator procedures. For an introduction to the HKIAC and how it is organised, see Practice Note: HKIAC—background to and structure of the institution. The emergency arbitrator procedures under the 2018 HKIAC Rules Under the 2024 HKIAC Rules, parties may request urgent interim or...
Note: The Hong Kong judgments listed below are not reported by Lexis Nexis®. Introduction Arbitral awards arising from arbitrations seated in Hong Kong, together with non- New York Convention awards and awards that are neither Mainland nor Macao awards, regardless of where made, fall under a single enforcement framework in the Arbitration Ordinance ( Cap 609) ( AO) ( AO, s 84). A successful party may enforce the award in Hong Kong by either route: under the common law, by issuing proceedings founded on an implied undertaking to honour the award (often termed an ‘action on the award’); or under statute, using the summary route set out in the Arbitration Ordinance ( Cap 609). This statutory route dispenses with the full formalities of bringing an action to enforce an award. The successful party to the arbitration may apply ex parte, with a...
Updated in 2021, the P. R. I. M. E. Finance Arbitration Rules’ 2022 version took effect on 1 January 2022, governing arbitrations begun on or after that day (the P. R. I. M. E. Finance Rules; the Rules). The Rules also contain model clauses as well as a model submission agreement. This Practice Note examines expediting arbitration proceedings under the P. R. I. M. E. Finance Rules. Under Article 17 of the Rules, the P. R. I. M. E. Finance Rules make available expedited proceedings. Expedited proceedings can be commenced if the sum in dispute does not exceed €4,000,000 at the time the response to the notice of arbitration under Article 17 ......
This Practice Note offers guidance on the overall conduct of an arbitration under 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, unless the parties agree otherwise; for arbitrations initiated before 1 November 2018, the 2013 HKIAC Rules will generally apply, again subject to party agreement. For an introduction to the HKIAC and its structure, see Practice Note: HKIAC—background to and structure of the institution. For guidance on commencing and answering proceedings, see Practice Notes: HKIAC (2018)—starting an arbitration and HKIAC (2018)—responding to a HKIAC arbitration. The overall approach to procedure in a HKIAC arbitration Each arbitration is unique, and a chief attraction of this form 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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