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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 offers an overview of the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As outlined in more detail below, the 2018 HKIAC Rules generally apply to HKIAC arbitrations commenced on or after 1 November 2018, unless the parties have agreed otherwise. For background on the HKIAC and its composition, see Practice Note: HKIAC—background to and structure of the institution. The HKIAC Administered Arbitration Rules 2018—scope of application ( HKIAC 2018, art 1) Absent a different party agreement, the 2018 HKIAC Rules govern all arbitrations where the Notice of Arbitration is filed on or after 1 November 2018 and the arbitration agreement (made either before or after a dispute arises): states that the 2018 HKIAC Rules apply; or provides for arbitration ‘administered by HKIAC’ or wording to similar effect ( HKIAC 2018, arts 1.4 and...
Request A party in need of urgent interim relief, before the Arbitral Tribunal is constituted, may apply for the appointment of an emergency arbitrator ( Rule 12.1). A request for an emergency arbitrator can be submitted ( Rule 12.2): before submitting the notice of arbitration; when submitting the notice of arbitration; or at any time prior to the constitution of the Arbitral Tribunal. If the request is made before the notice of arbitration, the notice must be filed within 7 days thereafter ( Rule 12.3)......
Introduction Interim remedies supporting arbitration are easily accessible to participants in Nigerian arbitral matters, either as (i) measures granted by the arbitral tribunal, or (ii) measures issued by the Nigerian courts. The entitlement to seek interim relief has been preserved—and widened—by the new Arbitration and Mediation Act, 2023 ( AMA). Interim reliefs in pre-2023 arbitral proceedings Under the earlier regime, the Arbitration and Conciliation Act 1998 ( ACA) authorised an arbitral tribunal to order interim measures of protection ( Section 13 ACA). Article 26 Rules (1) and (2) of the Arbitration Rules, in the First Schedule to the ACA, likewise enabled the tribunal to grant protective measures, including ‘measures for the conservation of the goods forming the subject-matter of the dispute’, by way of an interim award. Although the ACA did not expressly vest the courts with power to grant interim orders such as...
This Practice Note examines the Terms of Reference ( TOR) under the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration ( ICC Rules), as currently in force. The ICC Rules govern any ICC arbitration begun on or after 1 January 2021, unless the parties specifically agree that an older iteration of the ICC Rules will apply (eg in the arbitration clause itself). For links to further guidance on the 2017 and 2012 versions of the ICC Rules, see: ICC arbitration—overview. What are the Terms of Reference? The TOR are a document that distils essential details relevant to the ICC arbitration in question. Prepared by the arbitral tribunal in concert with all parties, they are produced within 30 days of the tribunal receiving the case file from the Secretariat. They set the course for the rest of the arbitration by outlining the merits of the dispute and...
ARCHIVED: This Practice Note has been archived and is not maintained . NOTE: On 5 September 2023, CIETAC announced amendments (the Revisions) to its existing 2015 arbitration rules, prompted by the increasing demands for adaptability and speed in the digital era and shifts in international arbitration practice following a revision programme launched in April 2021. Spanning more than 30 provisions, the Revisions address digital case administration, stepped arbitration clauses, jurisdictional matters, arbitrations arising from multiple contracts, procedural aspects and other complex topics. The Revisions take effect on 1 January 2024 and will govern all CIETAC arbitrations started on or after that date. CIETAC’s current arbitration rules have been in force since 1 January 2015 (the CIETAC Rules 2015). This Practice Note is UNDER REVIEW and presently mirrors CIETAC’s framework and functions as described in the CIETAC Rules 2015. This Practice Note concerns...
ARCHIVED: This Practice Note is archived, not maintained, and provided for background information only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulator for the US securities sector. As part of its remit, FINRA runs the largest dispute resolution forum in that market. It addresses monetary and commercial disagreements involving investors, brokerage firms and individual brokers, including conflicts within and between firms and brokers. Matters are handled through FINRA’s own arbitration system. 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. This note addresses the Customer Code only. For the Industry Code procedure, see Practice Note:...
This Practice Note examines the powers of the arbitral tribunal under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an introduction to the UNCITRAL Rules, see Practice Note: UNCITRAL Rules—background and introduction. For guidance on appointing the tribunal, see Practice Note: UNCITRAL Rules—appointment of the arbitral tribunal. A core feature of the UNCITRAL arbitration framework is the authority vested in the tribunal. The UNCITRAL Rules grant the arbitral tribunal extensive powers over the management and timetable of the proceedings, evidence, the making of awards, interim measures and the allocation of costs. General power of the arbitral tribunal The tribunal may conduct the proceedings in such manner as it deems appropriate, provided it treats the parties equally and affords each party a reasonable opportunity to present its case ( UNCITRAL Rules, Article 17(1)). The broad discretion conferred on the...
This Practice Note considers the role of state immunity in relation to arbitration proceedings in general terms. For fuller and more detailed guidance on state immunity and arbitration in the United Kingdom under the State Immunity Act 1978 ( SIA 1978), consult Practice Note: State immunity in proceedings relating to arbitration ( England & Wales). In addition, for additional Practice Notes covering state immunity across a range of jurisdictions around the world (including China, Russia and Singapore), refer to the ‘ State immunity’ subtopic: State immunity and arbitration—overview. In the modern global economy, commercial actors regularly deal with states and entities owned or controlled by states when pursuing overseas investment prospects or entering into cross-border agreements. As with dealings exclusively between private parties, participants in such international arrangements are increasingly selecting international arbitration to resolve prospective disputes rather than pursuing court...
This Practice Note examines the place of state immunity in connection with arbitration proceedings in the British Virgin Islands ( BVI), and its interaction with arbitral processes. For an overview of state immunity and arbitration, see Practice Note: State immunity and arbitration—general considerations. In addition, for Practice Notes on state immunity across jurisdictions around the world (including England and Wales), see our ‘ State immunity’ subtopic: State immunity and arbitration—overview. Introduction and background This Practice Note explores the subtle yet significant topic of state immunity in the BVI within the sphere of commercial arbitration agreements. When a state or a state-owned body joins a commercial contract, the private counterparty will invariably wish to be confident that any dispute between them and any resulting award against that entity can be properly enforced. This concern is particularly acute where the state may assert ‘state immunity’ in order to...
This Practice Note explains the rules for serving notices and other documents during arbitration, pursuant to sections 76–77 of the Arbitration Act 1996 ( AA 1996). It should be read alongside the guidance on commencing arbitration under the AA 1996—see, for example, Practice Note: AA 1996—starting an arbitration. The approach to service adopted by the AA 1996 is adaptable, intended to guarantee that some means of service can be achieved in almost all cases, save for the exceptional situations outlined below. The parties are equally at liberty to determine how service is to occur in their arbitration, and the court has no authority to disturb that agreement ( AA 1996, s 76, a non-mandatory provision of the Act). Service of notices and other documents Note that section 76(5) makes plain that section 76 does not apply to the service of documents for the purposes of legal...
The framework for international arbitration in Canada Canada operates as a federation made up of ten provinces and three territories. All provinces and territories follow the common law, apart from Quebec, which is a civil law jurisdiction. Federally, and across every common law province and territory, there is specific legislation that governs international commercial arbitration: United Nations Foreign Arbitral Awards Convention Act, RSC 1985, c 16 (2nd Supp) Commercial Arbitration Act, RSC 1985, c 17 (2nd Supp) Alberta: International Commercial Arbitration Act, RSA 2000, c I-5 British Columbia: International Commercial Arbitration Act, RSBC 1996, c 233 Foreign Arbitral Awards Act, RSBC 1996, c 154 Manitoba: International Commercial Arbitration Act, CCSM c C151 New Brunswick:...
This Practice Note This Practice Note addresses London Court of International Arbitration ( LCIA) arbitration proceedings conducted under the LCIA Arbitration Rules 2020 (the LCIA Rules), which took effect on 1 October 2020. For practical guidance on arbitrations under the earlier LCIA Arbitration Rules 2014 and 1998, see the corresponding Practice Notes here: LCIA arbitration—overview. As a general point, when a dispute arises, parties and their advisers should scrutinise the dispute resolution clause in the relevant agreement. If the clause mandates arbitration, they ought to confirm: any limitation period (contractual or statutory) within which the arbitration must be commenced—see Practice Notes: Limitation periods in arbitration ( England & Wales) and Foreign Limitation Periods Act 1984 any pre-arbitration steps (particularly any form of alternative dispute resolution ( ADR)) that are to be undertaken before commencing arbitration—see Practice Note: AA...
Procedural directions and timetable Once the LCAM Board has confirmed the appointment ( Article 18.1), the LCAM Secretariat passes the matter to the Arbitration Tribunal. Under the LCAM Rules, the Arbitral Tribunal enjoys broad latitude in shaping the procedure and managing the progress of the arbitration. Articles 19.1 and 19.2 provide that, subject to the Rules and any party agreement, the Tribunal may run the arbitration as it deems suitable, provided it acts impartially, pragmatically and expeditiously, while ensuring each party has an equal and reasonable opportunity to present its case. This discretion must be exercised within the framework of the LCAM Rules and any arrangements reached by the parties, and at all times the Tribunal should balance efficiency with fairness. Nevertheless, there are several key features of the LCAM Rules that both the Tribunal and the parties should keep in...
For arbitration proceedings seated in Italy and commenced after 28 February 2023, the reformed CPC (s 818) authorises arbitral tribunals to grant interim measures where the parties have agreed in advance, including by incorporating third‑party rules within their arbitral agreement, before the start of the arbitration proceeding. The 2023 Reform The amended CPC, s 818 now provides that arbitrators may issue interim measures only if that power is expressly conferred in either: the arbitration agreement, also by incorporating third‑entities’ regulations (eg rules of national or international arbitral institutions); or a written agreement entered into before the commencement of the arbitration proceeding. As noted, this regime applies to arbitration proceedings begun after 28 February 2023. Arbitral tribunals shall have exclusive jurisdiction in relation to interim measures after the acceptance of the appointment by the tribunal. Before this moment, or if the arbitral tribunal is not expressly granted such power...
This Practice Note reviews provisions on multi-party and multi-contract matters in the International Dispute Resolution Procedures ( Including Mediation and Arbitration Rules) (the International Rules), revised and effective 1 March 2021. For an introduction to the International Rules, and guidance on commencing and responding to ICDR arbitration proceedings, see Practice Note: ICDR (2021)—introduction to the institution—commencing arbitration and responding to arbitration. For guidance on arbitrating under earlier editions of the International Rules, see: ICDR arbitration—overview. For guidance on the American Arbitration Association® ( AAA), see: AAA arbitration—overview. Consolidation and joinder—the 2021 amendments to the International Rules The consolidation and joinder provisions are considered in detail below. Because these procedural rules are extensive, it is useful to emphasise the purpose and effect of the 2021 amendments to the International Rules. The ICDR has indicated that the revisions set out in ICDR, arts 8 ( Joinder) and 9 (...
ARCHIVED This Practice Note has been archived and is not maintained. STOP PRESS This Practice Note is under review in light of the decision in Sit Kwong Lam v Petrolimex Singapore Pte Ltd [2019] HKCA 1220 and related jurisprudence. Even where the parties have agreed an arbitration clause, once a dispute arises, one side may decide it no longer wishes to arbitrate. In those circumstances, that party might commence court proceedings to resolve the dispute instead, through the courts. The reasons for such a stance can be varied; for example, the dispute may involve three parties, one of whom is not bound by the arbitration agreement. Where litigation is issued notwithstanding a valid arbitration agreement, the counterparty may: consent to the court determining the matter, in which case the court proceedings will then continue apply to the court to stay the court...
This Practice Note examines the recognition and enforcement of arbitral awards in the British Virgin Islands ( BVI). The Arbitration Act 2013—an introduction to recognition and enforcement of arbitral awards in the BVI On 1 October 2014, the Arbitration Act 2013 (the Arbitration Act 2013) took legal effect in the BVI. The Arbitration Act 2013 superseded the Arbitration Ordinance 1976 (the old Act) and constitutes a modern arbitration statute. The Arbitration Act 2013 was crafted to address the deficiencies of the old Act. It adopted the UNCITRAL Model Law, with certain limited amendments and supplementary provisions. As one would anticipate of legislation rooted in comity, the Arbitration Act 2013 expressly stipulates that, when interpreting its provisions, the courts must take account of its international origin and the necessity of promoting both uniformity in its application, and the consistent observance of good faith. As a further complement to the...
ARCHIVED : This Practice Note has been archived and is not maintained . This Practice Note explores how state immunity is addressed in Hong Kong, with a particular emphasis on arbitration. Once a British colony, Hong Kong was returned to the People’s Republic of China ( PRC) on 1 July 1997. Since then, the PRC has exercised sovereign authority over the Hong Kong Special Administrative Region ( HKSAR) under the ‘ One country, Two systems’ principle set out in The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, Chapter 2101 (the Basic Law), the HKSAR’s constitutional charter. The HKSAR enjoys a substantial degree of autonomy and maintains an independent judiciary distinct from China. In particular, art 2 of the Basic Law provides that the National People’s Congress authorises the HKSAR to exercise a high degree of...
This Practice Note closely examines the capacity of parties to conclude an arbitration agreement and to participate effectively in arbitral proceedings. It should be borne in mind that an arbitration clause may continue to operate even where the principal contract in which it sits is invalid—see Practice Notes: Arbitration agreements—the doctrine of separability ( England and Wales) and Separability of arbitration agreements in international arbitration. From a capacity standpoint, this implies a party might lack capacity to enter the main contract yet still have capacity to agree to arbitrate as a matter of law. Consequences of incapacity Both parties entering into an agreement must possess the necessary legal capacity to do so, failing which the agreement is void. An agreement to arbitrate is in absolutely no way different in this respect from any other type of contract—see Practice Note: Forming enforceable...
ARCHIVED: This Practice Note is archived and no longer maintained. It is supplied for background information only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulator for the US securities industry. As part of its remit, FINRA operates the sector’s largest dispute resolution forum. It addresses financial and business disagreements between investors, brokerage firms and individual brokers, as well as disputes between and amongst brokerage firms and brokers. These matters are handled through FINRA’s own 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)—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 This note relates only to the Industry Code. For...
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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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