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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 In international arbitration, it is now commonplace for parts of the procedure to be handled remotely, with some or all attendees joining by video link or by telephone. Before the coronavirus ( COVID-19) pandemic, parties and tribunals would frequently agree to conduct elements of a case remotely for numerous reasons, such as convenience, reduced cost or other efficiencies, or out of necessity—for instance, where a witness could not attend in person. Telephone or videoconference hearings are also employed in emergency arbitrator applications and under expedited procedure rules. During the pandemic, many arbitrations proceeded entirely online, with most or all participants physically separated. This Practice Note is designed to guide the conduct of remote hearings in international arbitration and sets out the following... Available formats for remote hearings Possible advantages of remote hearings, as well as associated concerns Legal...
This Practice Note addresses London Court of International Arbitration ( LCIA) proceedings under the LCIA Arbitration Rules 2020 (the LCIA Rules), in force from 1 October 2020. For practical guidance on arbitrations conducted under the 2014 and 1998 LCIA Rules, refer to the relevant Practice Notes: LCIA arbitration—overview. Requirements of the award In general, on issuance of an award, parties ought to ensure it meets: the requirements of the arbitration rules governing the proceedings the laws of the seat of arbitration (in England, Wales and Northern Ireland, the Arbitration Act 1996 ( AA 1996)) the laws of the jurisdiction where enforcement is anticipated, to the extent needed for recognition and enforcement This Practice Note sets out the requirements applicable to an award made in an LCIA arbitration. For broader information on arbitral awards, see Practice Note: Arbitral awards—types and...
This Practice Note explores the place of state immunity within arbitration under German law. For a broad overview, see Practice Note: State immunity and arbitration—general considerations. For additional Practice Notes covering state immunity across multiple jurisdictions (including England and Wales), consult our ‘ State immunity’ subtopic: State immunity and arbitration. Note: the German decisions cited in this Practice Note are not reported by Lexis Nexis®. The law on state immunity in Germany Whether assets belonging to a foreign state can be enforced against in Germany is determined by German law, not by the law of the state targeted by enforcement. Germany has no standalone statute on state immunity; instead, international law applies directly. For most states, Article 25 of the German Constitution ( Grundgesetz ( GG)) and section 20 of the Court Constitution Act (...
ARCHIVED: This Practice Note is archived and not maintained On 2 April 2019, the Government of the Hong Kong Special Administrative Region ( HKSAR) and the Supreme People’s Court of the People’s Republic of China ( PRC) concluded the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings (the Arrangement). Through this Arrangement, Hong Kong became the first offshore jurisdiction with a formal mechanism with Mainland China enabling parties to seek interim relief from Mainland courts in support of institutional arbitrations seated in Hong Kong. Parties in institutional arbitrations seated in the Mainland may apply to the Hong Kong courts for comparable interim measures to support those proceedings. The Arrangement took effect on 1 October 2019. Background to the Arrangement Hong Kong and Mainland China already have reciprocal arrangements for the enforcement of arbitral awards and court judgments......
This Practice Note outlines how a dispute progresses under the third edition of the ARIAS ( UK) Rules, adopted in 2014 (the ARIAS Rules). For an introduction to ARIAS, see Practice Note: Arbitration under the ARIAS ( UK) Rules 2014. Formal requirements Under ARIAS Rule 17, an award must: be set out in writing ( ARIAS, rule 17.2) be in the primary language of the arbitration ( ARIAS, rule 17.2) state the seat of the arbitration ( ARIAS, rule 17.2) state the date of the award ( ARIAS, rule 17.2) give reasons (unless the parties agree otherwise, or the tribunal issues a consent award at the parties’ request) ( ARIAS, rule 17.10) be signed by the sole arbitrator, the umpire, or two of the three arbitrators, as appropriate ( ARIAS, rule 17.3) The ARIAS Rules do not prescribe a time frame for when the...
ARCHIVED: This Practice Note is archived and no longer maintained. For the 2019 tracker, refer to Practice Note: Investment treaty arbitration—2019—key arbitral awards and decisions tracker [ Archived]. This Practice Note records details of notable awards and determinations issued by tribunals in investment treaty arbitration matters, chiefly those run by the International Centre for the Settlement of Investment Disputes ( ICSID). It also includes pertinent awards and decisions from proceedings under the United Nations Commission on International Trade Law ( UNCITRAL) Arbitration Rules and those overseen by other arbitral bodies, including the Arbitration Institute of the Stockholm Chamber of Commerce ( SCC), the Permanent Court of Arbitration ( PCA) and the International Court of Arbitration of the International Chamber of Commerce ( ICC). Although investment treaty arbitration has no recognised doctrine of precedent, earlier rulings are frequently invoked by parties and considered by arbitral tribunals in their...
This Practice Note explains how a tribunal reaches a decision or award under the PCA Arbitration Rules 2012 (with Optional Protocols adopted in 2024) (the PCA Rules). It summarises provisions concerning: the form and effect of the award, applicable law or amiable compositeur, settlement or termination of proceedings in circumstances other than the issue of an award. It also outlines how a party may apply for interpretation or correction of an award, and how a party may seek an additional award. Decisions PCA Rules, art 33(1) states that, where there is more than one arbitrator, awards or decisions are made by a majority. Under PCA Rules, art 33(2), on procedural matters the presiding arbitrator may decide alone if there is no majority, or if the tribunal so authorises, with that decision remaining subject to revision by the tribunal. This mirrors the UNCITRAL...
The London Maritime Arbitrators Association ( LMAA) Terms 2021 (the Terms) govern arbitrations begun on or after 1 May 2021 where the parties have agreed to their use. They superseded the 2017 edition ( LMAA Terms 2017), which governs arbitrations started between 1 May 2017 and 30 April 2021. Securing an enforceable award is the core objective of any arbitration; accordingly, care must be taken to ensure any award issued conforms with the rules under which it is made. That focus makes it vital the procedure and award align with the governing rules. For general guidance on awards, see: AA 1996—the arbitral award— England and Wales—overview. Timing of awards Under the Terms, tribunals are expected, in ordinary circumstances, to make awards available no later than six weeks after the close of proceedings, and in many...
P. R. I. M. E. Finance Arbitration Rules In 2021, the P. R. I. M. E. Finance Arbitration Rules were updated, and the 2022 edition took effect on 1 January 2022, governing arbitrations begun on or after that date (the P. R. I. M. E. Finance Rules; the Rules). The Rules also set out model clauses together with a model submission agreement. This Practice Note explains how to deal with a notice of arbitration under the P. R. I. M. E. Finance Rules. A respondent is required to send its response to the Permanent Court of Arbitration ( PCA) within 30 days of receiving a notice of arbitration under the P. R. I. M. E......
This Practice Note This Practice Note outlines the narrow bases on which a party to international arbitration may seek the correction, review or interpretation of an award from either the arbitral tribunal or the administering institution, under institutional rules including: International Court of Arbitration of the International Chamber of Commerce ( ICC) London Court of International Arbitration ( LCIA) Hong Kong International Arbitration Centre ( HKIAC) Singapore International Arbitration Centre ( SIAC) Dubai International Arbitration Centre ( DIAC) International Centre for Dispute Resolution ( ICDR) United Nations Commission on International Trade Law ( UNCITRAL) arbitration rules It also considers whether, under these frameworks, parties may challenge or appeal arbitral awards before tribunals or institutions, where applicable, and concludes that such avenues are generally unavailable within the institutional process and must instead be pursued before the courts at the seat of...
This Practice Note explains how to seek leave to appeal (or permission to appeal) an arbitral award on a point (or question) of law to the courts of England and Wales under section 69 of the Arbitration Act 1996 ( AA 1996) ( England and English are used throughout as convenient shorthand). For an overview and general introduction to challenging and appealing arbitral awards under AA 1996, see Practice Note: AA 1996—challenging and appealing arbitral awards in the English court. Leave to appeal an arbitral award—the statutory and procedural framework Appealing an arbitration award on a point of law under AA 1996, s 69 typically unfolds in two stages as follows: obtaining leave to appeal from the English court (which is required in all cases unless every party to the relevant arbitration agrees to an appeal ( AA 1996, s 69(2))), and 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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