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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 examines how arbitral awards are recognised and enforced in South Korea. Note: Korean court judgments cited in this Practice Note are not reported by Lexis Nexis® UK. Arbitral awards enforceable in South Korea Introduced in 1966, the Korean Arbitration Act ( KAA) provides the statutory basis for enforcing arbitral awards in South Korea. The KAA was revised in 1999 to incorporate the 1985 United Nations Commission on International Trade Law ( UNCITRAL) Model Law (the Model Law). On 30 November 2016, further amendments took effect, implementing the 2006 updates to the Model Law. South Korea acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) in 1973. Under the KAA, three categories of awards are enforceable in South Korea ( KAA, arts 37.1, 38–39): foreign arbitral awards to which the New York...
Introduction to the enforcement regime in Guernsey Guernsey’s system for recognising and enforcing arbitral awards rests on statute. The Arbitration ( Guernsey) Law 2016 (the 2016 Law) refreshed the island’s arbitration framework to mirror best-practice jurisdictions, whereas the Arbitration ( Guernsey) Law 1982 (the 1982 Law) governs domestic arbitral proceedings and the enforcement of awards (covering domestic, foreign and New York Convention Awards). The Royal Court has additionally promulgated the Royal Court ( Arbitration) ( Guernsey) Rules 1983 (the Rules), which prescribe the procedure for applications brought under the arbitration legislation. Guernsey is a contracting party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), whose territorial application was extended to the Island in 1985. Under the 2016 Law, recognition and enforcement of awards issued pursuant to an arbitration agreement in the territory of a state that is a New...
This Practice Note examines how Switzerland recognises and enforces international arbitral awards. Under Swiss law, distinct enforcement proceedings before different courts apply depending on whether the award orders payment of a sum of money or requires specific performance (see Articles 335(1)–(2) of the Swiss Code of Civil Procedure ( CCP)). Where an award grants both monetary and non-monetary relief, the successful party must pursue enforcement separately for each category of relief. The rules governing enforcement of monetary and non-monetary relief are outlined below. Only decisions of arbitral tribunals that dispose of all or part of the claims are enforceable in Switzerland, ie partial or final awards on the merits. The duration of enforcement varies with several factors, notably the complexity of the case, and typically ranges from six months to two years. Monetary claims (payment of...
Regulation of the recognition and enforcement of arbitral awards in Russia In the Russian Federation, enforcement of international arbitral awards is regulated by both domestic and international norms. Russia has signed and ratified the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the 1961 European ( Geneva) Convention on International Commercial Arbitration, and other international conventions, for example the ‘ Convention on the Settlement by Arbitration of Civil Disputes Arising from Relations of Economic and Scientific- Technical Cooperation’ (concluded in Moscow on 26.05.1972), as well as a range of bilateral treaties on legal co-operation that, inter alia, support recognition and enforcement of arbitral awards; however, the Russian Supreme Court has stated that the Kyiv Convention on Settling Disputes Related to Commercial Activities (1992) and the Minsk Convention on Legal Aid and Legal Relations in Civil, Family and Criminal Cases (1993) do not...
In Italy, the recognition and enforcement of international arbitral awards is governed by sections 839–840 of the Italian Civil Procedural Code ( CPC), which gives effect to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). The New York Convention was implemented in Italy by Law no. 62 of 19 January 1968. Petition to the President of the Court of Appeals Under CPC, s 839, a party wishing to enforce an international arbitral award in Italy must submit a petition to the President of the Court of Appeals for the district in which the counterparty resides. If the counterparty has no residence in Italy, the competent Court of Appeals is in Rome. With the petition, and in line with Article IV of the New York Convention, the petitioner must lodge: the original of the award the instrument containing the...
Recognition and enforcement of both New Zealand and foreign arbitral awards in New Zealand In New Zealand, the recognition and enforcement of domestic and overseas arbitral awards is governed by the Arbitration Act 1996 (the Act), Sch 1, arts 35 and 36. Those provisions effectively incorporate the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) into New Zealand law. Under this framework, a New Zealand court must treat an arbitral award as binding, regardless of the country in which it was made. As a result, awards issued abroad are recognised and can be enforced in New Zealand. Recognition of a foreign award follows automatically from art 35 and does not require the award to be entered as a judgment of the New Zealand court. Therefore, where a party seeks to defend fresh proceedings by relying on a cause of...
The manner in which witness evidence is presented is not governed by a rigid protocol and will, accordingly, differ from one arbitration to another. It falls to the tribunal to choose a process suited to the dispute and to decide whether there should be oral testimony and, if so, to what extent. The tribunal should settle the procedure at an early stage of the proceedings so that the parties are clear on how, and in what form, their evidence is to be given. Conventionally, international arbitral tribunals have favoured a model where witnesses testify in person and adversarial cross-examination then takes place. The IBA Rules on the Taking of Evidence in International Arbitration ( IBA Rules) reflect this model. By contrast, in December 2018 the Rules on the Efficient Conduct of Proceedings in International Arbitration (the Prague Rules) were signed, offering parties an...
Introduction This practice note reviews the ‘ Without Prejudice’ ( WP) principle under the onshore civil law of the United Arab Emirates (‘ UAE’), its policy foundations, and its application in Dubai‑seated arbitration, in light of the recent Dubai Court of Cassation Case ( DCC Case) No. 486/2024. The WP doctrine traces its lineage to English common law. Among the leading authorities on WP in correspondence, the UK Court of Appeal’s decision in Walker v Wilsher (1889) 23 QBD 335 affirmed a stringent approach to WP in the nineteenth century. Concerned that the very aim of the limitation might be defeated, the Appeal Court agreed it would be ill‑advised for courts to admit as evidence the conduct of litigants contained in letters written without prejudice. At that time, there was no exception regarding costs. The formulation ‘without prejudice save as to costs’ arose much later, in the...
This Practice Note outlines when a contract may be treated as void and the consequences that follow. It differentiates void, voidable and unenforceable agreements, and explores voidness arising from: common mistake, a unilateral mistake as to contractual terms where the other party is aware, mistaken identity, non est factum, and statutory avoidance, while also recognising illegality as a distinct category. For a tabular overview of illustrative judgments on contract law since 1 January 2020, see Practice Notes: Contract disputes—illustrative decisions (2026) Contract disputes—illustrative decisions (2024–2025) [ Archived] Contract disputes—key and illustrative decisions (2020–2023) [ Archived] When is a contract a void contract? A void contract is one with no legal effect whatsoever. A contract will be void where: the parties have contracted under a fundamental common mistake one party agrees on mistaken terms and the other party knows of that...
This Practice Note explores the background and structure of the Vienna International Arbitral Centre ( VIAC) and its Arbitration Rules 2021 (the Vienna Rules). With effect from 1 July 2021, the VIAC Rules are arranged in three parts: Part I, the Vienna Rules or Vienna Arbitration Rules; Part II, the Vienna Mediation Rules; and Part III, the Appendices to both sets of rules. Collectively, these are referred to as the Vienna Rules and Vienna Mediation Rules 2021. The Vienna Rules and Vienna Mediation Rules entered into force on 1 July 2021 and apply to all proceedings begun on or after that date. If your arbitration proceeds under the Vienna Rules 2018, which took effect on 1 January 2018, make sure you consult the earlier version of the rules. The development of the Vienna Rules Founded in 1975 as a division of the Austrian Federal...
This Practice Note reviews the appointment and removal of the arbitral tribunal in proceedings brought under the Vienna International Arbitral Centre ( VIAC) Arbitration Rules 2021 (the Vienna Rules). The Vienna Rules 2021 took effect on 1 July 2021 and apply to all cases commenced on or after that date. If your arbitration is proceeding under the Vienna Rules 2018, which came into force on 1 January 2018, you should consult the earlier version. The provisions on appointing and removing arbitrators are largely aligned with those of other leading arbitral institutions and with domestic arbitration laws... The arbitrators Subject to any further qualification requirements agreed by the parties, any natural person with full legal capacity may act as an arbitrator under the Vienna Rules ( Vienna Rules, art 16(1)), a position that essentially mirrors section 586 of the Austrian Code of Civil...
This Practice Note explores specific aspects of arbitrations brought under the Vienna International Arbitral Centre ( VIAC) Arbitration Rules 2021 (the Vienna Rules), such as joinder and consolidation. The 2021 Vienna Rules entered into force on 1 July 2021 and govern any cases commenced on or after that day. Where your arbitration proceeds under the Vienna Rules 2018, which took effect on 1 January 2018, ensure you consult the earlier version of the rules. Joinder of third parties Vienna Rules, art 14 regulates the joinder of third parties to arbitrations under the Vienna Rules. In short, whether a third party is joined will be determined by the arbitral tribunal after it receives a Request for Joinder from a party or a third party, having (1) heard all parties to the arbitration and (2) considered all relevant circumstances ( Vienna Rules, art 14(1)). A request to join a...
ARCHIVED This Practice Note is archived and is not being maintained. CORONAVIRUS ( COVID-19): Many arbitral organisations have reacted to the coronavirus pandemic with practical guidance and/or alterations to their usual procedures and ways of working. For details on how this content and related arbitration proceedings might be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact. For further information, see: Coronavirus ( COVID-19) and arbitration—overview. Parties using arbitration may nominate an arbitral institution, such as the International Chamber of Commerce ( ICC), to administer the arbitration under its rules, or proceed ad hoc outside an institutional framework. In ad hoc proceedings, the parties may agree that the ICC acts as appointing authority, which may include appointing any arbitrator where the parties cannot agree. It should also be noted that parties may choose an appointing authority even where the arbitration is...
Practice Note This Practice Note delivers practical guidance on the use of damages (quantum) experts in international arbitration. It aims to: familiarise lawyers who are newer to damages with key considerations offer perspectives for more experienced damages practitioners to reflect on and potentially refine their approach The emphasis is on procedural and strategic matters when instructing damages experts, showing counsel how to collaborate effectively without needing to become maths or ‘ Excel’ modelling specialists. It covers: when appointing a damages expert is warranted advantages and disadvantages of using experts retaining and instructing damages experts selecting suitable experts practical tips for working with experts Although focused on damages experts, much of the guidance is equally relevant to other expert disciplines. Further reading on experts in international arbitration includes the following Practice Notes: Expert witnesses in arbitration ...
ARCHIVED: This Practice Note is archived and no longer updated. It is provided for background reference only. The Customer Code The Finance Industry Regulatory Authority ( FINRA) maintains two Codes of Arbitration Procedure. One is the Code of Arbitration Procedure for Customer Disputes (the Customer Code), which oversees arbitrations between investors and industry participants. For details on starting an arbitration under the alternative code, the Code of Arbitration Procedure for Industry Disputes (the Industry Code), see Practice Note: FINRA—commencing an arbitration under the Industry Code. Starting an arbitration When an investor dispute occurs, FINRA arbitration will be obligatory in defined scenarios. In other situations, the parties may choose to arbitrate under the Customer Code. In every case, claims must be brought within six years of the events underpinning the dispute (the Customer Code, Pt II, r 12206). Under the Customer Code, Pt II, r 12200, FINRA...
This Practice Note examines the validity of arbitration agreements, concentrating on the law of England and Wales (with ' English' and ' England' used as shorthand throughout), while also drawing on comparative examples from other jurisdictions. It should be read in conjunction with the Practice Notes: Arbitration agreements—definition, purpose and interpretation; Arbitration agreements—the in writing requirement; and Arbitration agreements—content. Requirements of an arbitration agreement Under English law, an arbitration agreement must, among other requirements, be in writing and sufficiently certain to be enforceable—see the Practice Notes mentioned above. The Arbitration Act 2025 inserts AA 1996, s 6A (law applicable to the arbitration agreement). If the parties want the arbitration agreement to be governed by a law other than the law of the seat, they must make an express choice; a governing law clause for the principal contract does not, by itself, amount to an express choice of law for...
Archived note: This Practice Note is no longer maintained and is provided for background only. The Financial Industry Regulatory Authority ( FINRA) is an independent regulatory organisation for the US securities market. It runs the sector’s largest dispute resolution forum, addressing financial and commercial disagreements between investors, brokerage firms and individual brokers, as well as conflicts within and between brokerage firms and brokers. These matters are handled through FINRA’s own arbitration process Code of Arbitration Procedure for Customer Disputes (the Customer Code or Section 12000 of the FINRA Rules)—governs arbitrations between investors and industry participants Code of Arbitration Procedure for Industry Disputes (the Industry Code or Section 13000 of the FINRA Rules)—governs arbitrations between industry parties This note concerns issues relating to the arbitral panel (the panel) under the Customer Code. For guidance on the panel under the Industry Code, see...
Class action litigation has long been a fixture of US courts, its modern trajectory often linked to the US Supreme Court’s decision in Green Tree Financial Corp v Bazzle, 539 U. S. 444 (2003) ( Bazzle). US case law recognises that class disputes may proceed in arbitration where an arbitration agreement allows it. Persistent uncertainties remain, however, about what amounts to consent to class arbitration and whether that gateway issue is for a court or an arbitral tribunal to decide. Nevertheless, several prominent arbitral institutions have introduced rules addressing class arbitration. Note: the US judgments mentioned in this Practice Note are not reported by Lexis Nexis UK. What is class action dispute resolution? Class actions were created to manage alike claims held by many claimants within a single proceeding. A representative plaintiff brings the case on behalf of others in comparable positions and applies to the court to...
This Practice Note reviews how unilateral option clauses are dealt with across these jurisdictions: China, England and Wales, France, Germany, Hong Kong, India, Italy, Japan, Malaysia, Russia, Singapore, Spain, the UAE and the United States of America. It should be considered alongside the Practice Notes, Unilateral option clauses—an introduction, and Types of dispute resolution clauses—litigation, mediation, multi‑tier, hybrid and carve‑out clauses. Note: Lexis Nexis® UK does not report every international judgment. China The position under Chinese law remains uncertain, and the judicial stance remains unsettled at present. Article 16 of the 1994 Arbitration Law of the People’s Republic of China stipulates that an arbitration agreement must, inter alia and among other matters, express the parties’ intention to submit to arbitration to resolve disputes. Accordingly, there is apprehension that Chinese courts may refuse to uphold unilateral option clauses, on the footing that they do not embody the...
Unilateral option clauses defined Unilateral option clauses are dispute resolution provisions in contracts that confer on a single party, or a subset of parties (but not everyone), the ability to choose between arbitration or court proceedings to settle a dispute. They are also known as one-sided, non‑mutual, asymmetrical or sole option clauses. Such a clause affords the freedom to pick the dispute resolution mechanism best suited to the circumstances of the matter. They appear frequently in finance agreements, where a lender aims to preserve flexibility to recover sums due and otherwise uphold its rights against a buyer who has failed to meet its obligations. Unilateral option clauses sit within the family of hybrid dispute resolution clauses—see Practice Note: Types of dispute resolution clauses—litigation, mediation, multi‑tier, hybrid and carve‑out clauses for further detail. Note: judgments from non‑ UK jurisdictions mentioned in this Practice Note are not...
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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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