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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 addresses LCIA arbitration conducted under the LCIA Rules 2020, which took effect on 1 October 2020. For practical guidance on proceedings under the earlier LCIA Rules 2014 and 1998, see the prior Practice Notes: LCIA arbitration—overview. The tribunal's powers relating to evidence In arbitration, unlike litigation, the nature and format of evidence vary from case to case. There are no hard-and-fast rules about what must or must not be filed. The tribunal controls how the proceedings are run, including deciding the types and forms of evidence that will feature in the case. Arbitration rules generally grant tribunals and parties fairly broad freedom over how evidence is compiled, presented and handled. The LCIA Rules set out some guidance on evidential matters but leave substantial leeway for the tribunal to tailor procedures to the dispute. Unless the parties agree otherwise, the tribunal holds the widest...
This Practice Note ought to be read alongside Practice Note: Arbitration in New Zealand—recognition and enforcement of arbitral awards. The New Zealand Arbitration Act 1996 The Arbitration Act 1996 (the Act) prescribes the framework governing domestic and international arbitrations in New Zealand. Any references in this Practice Note to sections, Sch 1 and its articles, and Sch 2 and its clauses, are references to the Act. The Act’s aims are to foster the use of arbitration at home and abroad, to secure coherence across international arbitral regimes and between those regimes and New Zealand’s domestic scheme, to uphold party autonomy in resolving disputes by arbitration, and to confine the oversight of New Zealand courts when asked to review or set aside arbitral outcomes. To meet these objectives, Schedule 1 establishes a unified set of rules for both international and domestic arbitrations. This scheme is derived from the...
The New York Convention and arbitration agreements The Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) prescribes the criteria for valid arbitration agreements, which States parties to the New York Convention commit to recognise. The binding obligation to acknowledge and give effect to valid arbitration agreements has been affirmed by legislation and court rulings across most jurisdictions. Although the New York Convention was, at first, conceived as an instrument confined to the recognition and enforcement of arbitral awards, a discrete clause addressing the recognition and enforcement of arbitration agreements was inserted in the closing weeks before the New York Convention was adopted (when the wording had largely been settled). This timing helps to account for the absence of that subject in the treaty’s title and in other provisions of the New York Convention where one might have...
Recognition and enforcement of international arbitration awards This Practice Note offers an introduction to key issues practitioners may face concerning the recognition and enforcement of international arbitration awards. Unless specified otherwise, the term ‘enforcement’ is used in a broad sense to cover both recognition and enforcement. The distinction between these concepts is explored below. Where relevant, this Practice Note should be read alongside: Practice Note: The New York Convention—the recognition and enforcement of arbitral awards—an introduction Practice Note: Enforcement of arbitral awards in England & Wales (note: England is used as shorthand for England, Wales and Northern Ireland in this Practice Note) International arbitration—enforcing international arbitral awards—overview, which includes links to practical guidance on the recognition and enforcement of international arbitral awards in many jurisdictions around the world Practice Note: State immunity and arbitration—general considerations and State immunity and...
The purpose of this Practice Note This Practice Note explores arbitration in the sphere of internal sporting proceedings and matters before the Court of Arbitration for Sport ( CAS), concentrating on: the benefits and drawbacks of arbitration in a sporting setting the circumstances in which internal sports proceedings qualify as arbitrations Arbitration is often promoted as superior to court litigation for its speed, cost-effectiveness and procedural adaptability. It is also, in general, a private process, meaning the substance and result of a case are kept confidential. These characteristics broadly hold true for sports disputes resolved by arbitration, though their application will ultimately turn on the particular context. Sports-related arbitrations may involve, for example, internal proceedings of a sports federation or other regulatory authority, appeals from those outcomes to CAS tribunals, challenges to anti-doping rulings before CAS tribunals, appeals concerning selection and eligibility for the Olympic Games to CAS...
ARCHIVED: This Practice Note is archived and no longer maintained. It offers contextual guidance on the main types and doctrines of EU law and legislation, and considers how Brexit affects EU-derived law and legislation in the UK, as background reading. For more detail on this topic, see the Practice Notes: Brexit—key legislation explained and Retained EU law and assimilated law. For broader Brexit materials, see: Brexit collection. This Practice Note is not maintained. Effect of Brexit on EU law in the UK The UK ended its EU membership at 11 pm on 31 January 2020 (exit day). From that moment, directly applicable EU law no longer applied to the UK under the EU Treaties, and the UK was no longer bound by duties under those treaties, which oblige Member States to ensure their domestic legislation complies with obligations set out in EU laws. EU law itself, and its...
ARCHIVED: This Practice Note is archived and is not maintained, and no longer updated. It is supplied for background purposes only. On 22 August 2023, SIAC launched a public consultation on the Draft 7th Edition of the SIAC Rules. The draft of the 7th Edition SIAC Rules can be accessed here. This Practice Note outlines the actions a respondent should take upon receiving a notice of arbitration from the claimant, under the Singapore International Arbitration Centre Arbitration Rules (6th edition) 2016 (the 2016 SIAC Rules). This archived Practice Note considers those steps. The 2016 SIAC Rules govern arbitrations begun on or after 1 August 2016, unless the parties have agreed otherwise. An arbitration pursuant to the SIAC Rules is initiated when the claimant serves on the respondent a Notice of Arbitration (the Notice) in accordance with the 2016 SIAC Rules. For further guidance on...
UNCITRAL rules on costs Tribunal's fees and expenses This Practice Note addresses matters concerning costs in arbitrations under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL framework, including the role of appointing authorities in such proceedings, see Practice Note: UNCITRAL Rules—background and introduction. Where an appointing authority (often an arbitral institution) constitutes an UNCITRAL tribunal, the parties may also agree that the institution’s schedule for arbitrators’ fees applies. In that event, the tribunal will consider that schedule when fixing its remuneration ( UNCITRAL Rules, Article 41, para 2). Promptly after it is formed, the tribunal must tell the parties how it intends to set its fees and expenses, including any rates it proposes to use. A party may, within 15 days of receipt, submit this proposal to the appointing authority for review. The...
This Practice Note reviews evidential matters in arbitrations conducted under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, see Practice Note: UNCITRAL Rules—background and introduction. Under Article 17(1) of the UNCITRAL Rules, the tribunal may manage the arbitration in whatever manner it considers suitable. Each party carries the burden of proving the facts on which it relies ( Article 27(1)), and the tribunal decides on the admissibility, relevance, materiality and weight of any evidence presented ( Article 27(4)). Documentary evidence The notice of arbitration should specify the arbitration agreement relied upon and any contract or other legal instrument out of, or in relation to, which the dispute has arisen ( Article 3(3)(c)–(d)), copies of which should be included with the statement of claim where that is filed separately from the notice of...
This Practice Note reviews evidence in arbitrations brought under the Vienna International Arbitral Centre ( VIAC) Arbitration Rules 2021 (the Vienna Rules). The 2021 Vienna Rules entered into force on 1 July 2021 and govern any case filed on or after that date. If your case proceeds under the Vienna Rules 2018, effective 1 January 2018, you should refer to the earlier edition of the rules. What do the Vienna Rules provide on matters of evidence? As is typical of institutional arbitration, tribunals and parties are granted significant leeway in the preparation, presentation and handling of evidence. The Vienna Rules set only limited directions on evidential matters, reserving substantial procedural flexibility to the tribunal so it can tailor the process to the dispute. The key evidentiary provisions in the Vienna Rules are outlined below. Under article 28 of the Vienna Rules, the tribunal has broad...
ARCHIVED: This Practice Note is archived and is not maintained. It is provided for general background information purposes only. The Financial Industry Regulatory Authority ( FINRA) is an autonomous regulatory organisation overseeing the US securities industry. As part of this remit, FINRA operates the securities industry’s largest dispute resolution forum across the sector. It works to settle monetary and business disputes involving investors, brokerage firms and individual brokers, as well as disputes between and among brokerage firms and individual brokers. Such disputes are handled using FINRA’s own arbitration procedure. FINRA has two Codes of Arbitration Procedure: the Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—which governs arbitration between investors and industry parties, and the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA...
ARCHIVED: This Practice Note is archived and no longer updated; it is provided for background reference and context only. The Financial Industry Regulation Authority ( FINRA) sets out two Arbitration Procedure Codes in total: Code of Arbitration Procedure for Customer Disputes (the Customer Code, or Section 12000 of the FINRA Rules), governing arbitrations between investors and industry participants; and Code of Arbitration Procedure for Industry Disputes (the Industry Code, or Section 13000 of the FINRA Rules), governing arbitrations between industry participants. For further details on FINRA, see Practice Note: FINRA—background, structure and purpose under the Customer Code and the Industry Code. The steps for starting and answering investor claims appear in Part III of both the Customer Code and the Industry Code. This note addresses both Codes. For guidance on the statement of claim itself, see Practice Notes:...
ARCHIVED This Practice Note is archived and no longer maintained. It is provided for background information only. The Financial Industry Regulation Authority ( FINRA) maintains two Codes of Arbitration Procedure: Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules) — governing arbitrations between investors and industry parties Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules) — governing arbitrations between industry parties For more on FINRA, see Practice Note: FINRA—background, structure and purpose under the Customer Code and the Industry Code. FINRA’s powers Sending investor or industry disputes to FINRA arbitration does not limit or prevent FINRA’s authority. The Customer Code, Pt I, r 12104, and the Industry Code, Pt I, r 13104, preserve the rights, actions and determinations that FINRA is otherwise authorised to adopt,...
ARCHIVED: This Practice Note is archived and no longer actively maintained. It is provided for background purposes only, for reference. It is not being updated further at this time. The Financial Industry Regulatory Authority ( FINRA) is an independent regulatory organisation overseeing the US securities industry. As part of its broad remit, FINRA operates the sector’s largest dispute resolution forum. It routinely handles monetary and commercial conflicts involving investors, brokerage firms and individual brokers, as well as disputes between and among brokerage firms and individual brokers. These cases are resolved through FINRA’s arbitration process. FINRA has two Codes of Arbitration Procedure: the Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—governing arbitrations between investors and industry parties, and the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA...
ARCHIVED: This Practice Note is archived and is no longer maintained. It is provided for background information only. The Industry Code The Finance Industry Regulatory Authority ( FINRA) maintains two Codes of Arbitration Procedure. One is the Code of Arbitration Procedure for Industry Disputes (the Industry Code), which regulates arbitrations among industry participants. For guidance on starting an arbitration under the other code, the Code of Arbitration Procedure for Customer Disputes (the Customer Code), refer to Practice Note: FINRA—commencing an arbitration under the Customer Code [ Archived]. Starting an arbitration When an industry dispute occurs, FINRA arbitration will be compulsory in certain situations. In other instances, the parties may decide to arbitrate a dispute under the Industry Code. In every case, a claim must be submitted within six years of the events that gave rise to the dispute (the Industry Code, Pt II, r...
ARCHIVED: This Practice Note is archived and not maintained. It is supplied for background reference only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulator for the US securities market. It also operates the industry’s largest forum for dispute resolution, addressing monetary and commercial disagreements involving investors, brokerage firms and individual brokers, as well as conflicts arising between and among brokerage firms and individual brokers. These cases are determined through FINRA’s own arbitration process. FINRA has two Arbitration Procedure Codes: the Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—which governs arbitration between investors and industry parties, and the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules)—which governs arbitration between industry parties. Investor disputes Under the Customer Code, FINRA arbitration must be used in...
ARCHIVED: This Practice Note is archived and no longer maintained. The Transatlantic Treaty Investment Partnership ( TTIP) The Transatlantic Treaty Investment Partnership ( TTIP) was envisaged as a far‑reaching EU– US accord on trade and investment, intended to set common rules across virtually every area of transatlantic commerce and capital flows. It aimed to liberalise trade in the vast majority of goods, creating duty‑free access across both markets. In practice, EU products would incur no import duty on entry to the US, which would make EU goods cheaper within the EU. Conversely, US items would become less expensive in the EU, intensifying competition with goods manufactured in the EU (see News Analysis: Should civil society be concerned by the TTIP?). Although a range of criticisms has been raised, the element drawing the greatest scrutiny is the Investor‑ State Dispute Settlement ( ISDS) mechanism, which has prompted...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It examines the recognition and enforcement of New York Convention arbitral awards under Hong Kong law. It should be read together with Practice Note: Hong Kong—enforcement— New York Convention arbitration awards—grounds of refusal, and the other ‘ Related documents’. The legal framework for the recognition and enforcement of New York Convention awards in Hong Kong The New York Convention is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, adopted by the United Nations Conference on the International Commercial Arbitration and held in New York on 10 June 1958. For an introduction, see Practice Note: The New York Convention—the recognition and enforcement of arbitral awards—an introduction. In Hong Kong, the enforcement of a New York Convention award is addressed by section 87 of the Arbitration Ordinance, Chapter 609 ( AO), and rule 10 of...
ARCHIVED: This Practice Note has been archived and is not maintained UNDER REVIEW: This Practice Note is under review in light of Dickson Valora Group v Fan Ji Qian [2019] HKCU 638 General principle—minimal interference The Arbitration Ordinance, Chapter 609 ( AO), is crafted to uphold party autonomy in arbitration with the least possible court involvement. A fundamental AO principle is that judicial interference in an arbitral dispute arises only where the ordinance expressly permits it. The AO gives effect to article 5 of the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), which provides that courts shall not intervene in arbitral proceedings except as set out in the law. Under the AO, the Hong Kong courts are nevertheless vested with specific powers to assist the arbitral process. In particular, pursuant to AO, ss 45 and 60, the Hong Kong courts possess...
ARCHIVED: This Practice Note has been archived and is not maintained. Scope of the Arbitration Ordinance The Arbitration Ordinance, Chapter 609 ( AO), governs arbitrations conducted under an arbitration agreement that designates Hong Kong as the seat. This holds true irrespective of whether the agreement was entered into in Hong Kong. The AO applies to both domestic and international arbitrations. Where the seat is outside Hong Kong, only particular AO provisions continue to apply, namely: the stay of any court proceedings where the matter is subject to an arbitration agreement ( AO, s 20) interim measures ordered by the court in support of arbitration within and outside Hong Kong ( AO, ss 21, 45, 60) enforcement of emergency relief granted by emergency arbitrators ( AO, ss 22A, 22B) enforcement of orders and directions made by the arbitral tribunal ( AO, s 61) ...
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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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