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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 interim remedies available to arbitral tribunals seated in France. For analysis of measures obtainable from French courts in aid of arbitration, see Practice Note: Interim remedies granted by French courts in support of arbitration proceedings. Power of arbitral tribunals seated in France to grant interim remedies Article 1468, paragraph 1 of the French Code of Civil Procedure ( FCCP) expressly vests arbitral tribunals seated in France with authority to order interim relief. It provides that a tribunal may, on terms it sets and, where necessary, backed by a fine, impose any conservatory or provisional measure it considers appropriate. On this basis, a tribunal may: Order whatever interim remedy it judges suitable; Determine the conditions governing that remedy; Attach, if required, a penalty to secure the remedy’s...
ARCHIVED : This Practice Note has been archived and is not maintained . CORONAVIRUS ( COVID-19): Numerous arbitral organisations have responded to the coronavirus pandemic by providing practical guidance and/or revising their usual procedures and working practices. For details on how this content and related 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 outlines how to commence an arbitration under the 2017 International Chamber of Commerce ( ICC) Rules of Arbitration (2017 ICC Rules). It also refers to the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ( ICC Note). The 2017 ICC Rules apply to any ICC arbitration commenced on or after 1 March 2017, unless the parties agree to adopt the rules in...
This Practice Note offers guidance on evidential matters arising under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2024 (the 2024 HKIAC Rules; HKIAC 2024). Practice Note: HKIAC (2024)—arbitration procedure may likewise be of interest. As outlined in Practice Note: HKIAC (2024)—the HKIAC Administered Arbitration Rules—application and key features, the 2024 HKIAC Rules generally apply to HKIAC arbitrations commenced on or after 1 June 2024, unless the parties agree otherwise; for HKIAC arbitrations begun before 1 June 2024, the 2018 HKIAC Rules will generally apply, unless the parties agreed otherwise. For an introduction to the HKIAC and its organisational set-up, see Practice Note: HKIAC—background to and structure of the institution. Evidence under the 2024 HKIAC Rules Under the 2024 HKIAC Rules, each party bears the burden of proving the facts relied upon in support of its case ( HKIAC 2024, art 22.1). The...
Although parties may have entered into an arbitration agreement, once a dispute materialises one party might decide it no longer wishes to arbitrate. In those circumstances, that party may issue court proceedings to resolve the dispute. The motivations can differ, for instance where three parties are involved and one is not bound by the arbitration agreement ( Section 20 of the Arbitration Ordinance ( Cap 609) ( AO)). Note: Hong Kong judgments below are not reported by Lexis Nexis®. Note: The Arbitration Ordinance ( Cap 609) abolished the previous dual track for ‘international’ and ‘domestic’ arbitrations and introduced a single framework governing all arbitration in Hong Kong, while preserving the principal features of the former ‘domestic’ regime through a set of ‘opt-in’ provisions contained in Schedule 2 of the new Ordinance. Local advice should be sought on the current approach of the Hong Kong courts to...
This Practice Note sets out guidance on arbitral awards in proceedings under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (2018 HKIAC Rules; HKIAC 2018). As explained in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations commenced on or after 1 November 2018, save where the parties agree otherwise; for HKIAC arbitrations begun before 1 November 2018, the 2013 HKIAC Rules will generally apply unless the parties agreed otherwise. For an overview of the HKIAC and how it is organised, see Practice Note: HKIAC—background to and structure of the institution. Awards in HKIAC arbitrations In line with most institutional regimes, under the 2018 HKIAC Rules a tribunal may render interim, interlocutory, or partial awards and, in addition to a final award, may issue interim awards as to costs ( HKIAC 2018, art...
Purpose of the CAS ad hoc Division This division was created to arbitrate disputes that emerge during major sporting events and that must be conclusively resolved within a 24-hour deadline. These cases are determined in line with the CAS Arbitration Rules applicable to the CAS ad hoc division for the Olympic Games ( CAS ad hoc Rules). Usage of the CAS ad hoc Rules The CAS ad hoc Rules have been applied at the following events: the Olympic Games, since 1996 the Commonwealth Games, since 1998 the UEFA European Championship, since 2000 the FIFA World Cup, in 2006, 2018, and 2022 the Asian Games, since 2014 the FIBA Basketball World Cup, in 2023 the UEFA WEURO, in 2025 the FIFA CWC, in 2025 The present CAS ad hoc Rules were established in 2003......
An introduction to witness conferencing in arbitration Witness conferencing (often referred to as ‘hot-tubbing’ or ‘concurrent evidence’) describes a method of taking evidence in which two or more factual or expert witnesses address overlapping questions simultaneously, a practice increasingly prevalent in international arbitration. Used appropriately, witness conferencing can reduce time and expense and promote a streamlined assessment of the merits of a dispute. Conversely, if mishandled, it can muddle the parties’ cases and introduce avoidable delay and cost. As outlined below, a proposal to employ witness conferencing may come from the arbitral tribunal or the parties, and there is wide latitude in designing the process. The format can be tailored to the particular issues contested, the size of the witness pool and the nature of the evidence to be presented. In some matters, witness conferencing occurs alongside counsel’s...
ARCHIVED: This Practice Note is archived and not kept up to date. Practical implications of West Tankers In short, the current position arising from the West Tankers saga (so far) is: Any EU Member State court seised of proceedings must rule on its own jurisdiction to determine the dispute. Under Brussels I and Brussels I (recast), courts of another Member State cannot remove that competence from it. An arbitral tribunal has jurisdiction to award damages for breach of an obligation to arbitrate. Where jurisdiction is disputed (as it often is), consider advising clients to obtain a standalone final award addressing jurisdiction at the outset, and then seek to have it recognised and enforced by the court (the application would be made under the procedure set out in CPR 62). This should prevent a conflicting court judgment taking precedence, on the basis of issue...
This Practice Note examines the scope of the arbitral tribunal’s powers in arbitrations commenced under the Vienna International Arbitral Centre ( VIAC) Arbitration Rules 2021 (the Vienna Rules). The Vienna Rules 2021 came into force on 1 July 2021 and apply to any proceedings started on or after that date. If your arbitration proceeds under the Vienna Rules 2018, effective from 1 January 2018, ensure you consult the prior version of the rules. Conducting the proceedings The Vienna Rules grant the tribunal significant latitude in managing the procedure. Although it must honour any agreement between the parties, treat them fairly, and safeguard their right to be heard, the tribunal may adapt the process to the case’s particular needs ( Vienna Rules, art 28). Other responsibilities of the tribunal under the Vienna Rules include: setting the timetable and the number of written...
This Practice Note explains how to deal with arbitration started under the Vienna International Arbitral Centre ( VIAC) Arbitration Rules 2021 (the Vienna Rules). The 2021 Vienna Rules have applied from 1 July 2021 to all proceedings filed on or after that date. If your case is under the Vienna Rules 2018, in force from 1 January 2018, make sure you consult that earlier set of rules... How to file the Answer to the Statement of Claim The respondent must submit an Answer to the Statement of Claim within 30 days of service of the Statement of Claim ( Vienna Rules, art 8(1)). The Answer must be delivered to VIAC both electronically and in hard copy. Each submission must be accompanied by exhibits in a sufficient number of sets for the Secretariat, every arbitrator and each party to the arbitration ( Vienna Rules, art...
ARCHIVED: This Practice Note has been archived and is not maintained. It is provided for background information only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulatory organisation supervising the US securities market. As part of its remit, FINRA runs the securities industry’s largest dispute resolution forum. It addresses financial and commercial disagreements between investors, brokerage firms and individual brokers, as well as disputes within and between brokerage firms and brokers. Matters are resolved through FINRA’s own arbitration process. FINRA maintains 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 arbitrations between investors and industry participants, and the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules), which governs arbitrations between industry...
ARCHIVED: This Practice Note has been archived and is not maintained. It is for background information only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulator for the US securities sector. It operates the industry’s largest forum for resolving disputes, addressing financial and commercial disagreements involving investors, brokerage firms and individual brokers, as well as conflicts within and between brokerage firms and brokers. These matters are determined 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)—governing arbitration between investors and industry participants the Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules)—governing arbitration between industry participants This note deals solely with the Industry Code. For details on the arbitral panel under the...
This Practice Note considers how to commence arbitration proceedings pursuant to the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules) This Practice Note explains how to commence arbitration 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 responding to an UNCITRAL arbitration claim, see Practice Note: UNCITRAL Rules—responding to a Notice of Arbitration. When a dispute arises, it is crucial for the parties and their advisers to examine the dispute resolution clause in the applicable contract. Where arbitration is specified, they should confirm: any time limit (contractual or statutory) by which the arbitration must be initiated any pre-arbitration steps (particularly any ADR) that must be undertaken before commencing arbitration which...
This Practice Note offers a primer on arbitration within Thailand. Note: Thai court decisions mentioned in this Practice Note are not currently published by Lexis Nexis® UK. Arbitration in Thailand—the legislative framework The Arbitration Act 2002 ( B. E. 2545) ( AA 2002) regulates every arbitration seated in Thailand, whether domestic or international......
Revised on 1 June 2021, the Swiss Rules of International Arbitration ( Swiss Rules) apply—unless the parties agree otherwise—to all arbitrations started on or after 1 June 2021 where the arbitration agreement refers to the Swiss Rules, or to the earlier rules of chambers or bodies that have joined or placed their proceedings under the Swiss Rules. This Practice Note reviews the arbitral tribunal’s powers under the Swiss Rules. For commentary on the 2012 Swiss Rules, see Swiss Rules arbitration—overview. Under the Swiss Rules, tribunals enjoy extensive authority and discretion across the conduct of the case. In principle, the tribunal may manage the arbitration as it considers appropriate, while safeguarding equal treatment of the parties and their right to be heard ( Swiss Rules, art 19.1). This expressly encompasses steps to enhance procedural...
The Swiss Rules of International Arbitration, updated on 1 June 2021 (the Swiss Rules), apply—unless the parties agree otherwise—to any arbitration begun on or after 1 June 2021 under an arbitration agreement referring either to the Swiss Rules or to the prior rules of chambers or organisations that joined the Swiss Rules or brought their proceedings within them. This Practice Note examines the appointment of the arbitral tribunal under the Swiss Rules. The provisions regulating constitution of the tribunal are, for the most part, consistent with those in most other widely used arbitration rules, though there are a handful of particularities. For guidance on the 2012 Swiss Rules, see: Swiss Rules arbitration—overview. This note highlights similarities and specific features when constituting tribunals, within the context of these Swiss Rules and notes areas of...
As formally updated on 1 June 2021, the Swiss Rules of International Arbitration (the Swiss Rules) govern—save where the parties expressly stipulate otherwise—any arbitration proceedings begun on or after 1 June 2021 under an arbitration agreement that expressly refers either to the Swiss Rules or to the prior rules of the chambers or organisations that joined the Swiss Rules or placed their respective proceedings under the Swiss Rules. This Practice Note addresses matters relating to evidence under the Swiss Rules. For guidance on the 2012 Swiss Rules, see: Swiss Rules arbitration—overview. General remarks Under the Swiss Rules, the arbitral tribunal establishes the facts of the dispute principally through documentary, witness testimony, and expert evidence submitted by the parties ( Swiss Rules, art 26.1). In addition, at any point during the arbitration, the tribunal may require the parties to produce further documents, exhibits, or other...
This Practice Note has been prepared in collaboration with Ms Koh Swee Yen, Senior Counsel and Partner, Mr Joel Quek, Partner, Ms Magdalene Ong, Partner, Ms Divya Harchandani, Foreign Lawyer, and Ms Thea Elyssa Vega, Foreign Lawyer, all from Wong Partnership LLP, Singapore. The seventh edition of the SIAC Rules took effect on 1 January 2025 and can be accessed here. This note addresses how to initiate arbitration under the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (7th edition) 2025 (the 2025 SIAC Rules). Please note that Singapore judgments mentioned in this Practice Note are not reported by Lexis Nexis® UK. Prior to commencing an arbitration Before beginning an arbitration, there must be a ‘dispute’ that is capable of referral to arbitration. At the outset, assess whether an arbitration agreement exists and whether there is a ‘dispute’ that may properly be...
This Practice Note addresses the 2023 Rules for Expedited Arbitrations of the Stockholm Chamber of Commerce ( SCC) Arbitration Institute (the 2023 SCC Expedited Rules). The 2023 SCC Expedited Rules govern relevant arbitrations begun on or after 1 January 2023, unless the parties have agreed to the contrary. They are designed for straightforward disputes or those with comparatively modest amounts in issue. They are available for both domestic and international cases. The procedure The provisions for an expedited arbitration largely mirror the ordinary 2023 SCC Rules. However, there are notable distinctions, including: When starting an arbitration under the 2023 SCC Expedited Rules, the claimant must lodge a complete Statement of Claim, rather than merely a brief Request for Arbitration (a key hallmark of the 2023 SCC Expedited Rules) As under the 2017 SCC Expedited Rules, the expedited regime provides only for a sole...
This Practice Note explains the steps and prerequisites necessary for securing recognition and enforcement of international arbitration awards in France, namely international arbitral awards made in France and those delivered abroad. Please note: the French decisions mentioned are not reported by Lexis Nexis® UK. The rules applicable to the recognition and enforcement of international arbitral awards appear in Book IV of the French Code of Civil Procedure ( FCCP), which sets the legal framework. It outlines the procedure to follow in practice. Procedure and conditions to obtain the recognition and enforcement of international arbitral awards in France International arbitral awards are enforced through an enforcement order (ordonnance d’exequatur) granted by the judicial court (tribunal judiciaire) at the seat of the award for international awards made in France, or by the judicial court (tribunal judiciaire) of Paris for awards rendered overseas. 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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