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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 work of the United Nations Commission on International Trade Law ( UNCITRAL) Working Group III: Investor- State Dispute Settlement ( ISDS) Reform and directs readers to their reports. Meeting twice yearly, Working Group III gathers to: review concerns about ISDS; judge whether reform is appropriate; and, if warranted, craft proposals for recommendation to UNCITRAL. This Practice Note shares the published reports of Working Group III. Note: For details on UNCITRAL Working Group II: Arbitration and Conciliation/ Dispute Settlement, see Practice Note: UNCITRAL Working Group II—reports. Working Group III session Report Subjects covered 53rd session, 12–16 January 2026 — Reform of ISDS — refer to the provisional agenda and any other documents available here 52nd session, 22–26 September 2025 — Reform of ISDS — refer to the provisional agenda and any other documents available here 51st session, part 2, 7–11 April 2025 — Reform of ISDS —...
What is the Model Law? As its title implies, the United Nations Commission on International Trade Law ( UNCITRAL) Model Law on International Commercial Arbitration (the Model Law) serves as a template for domestic arbitration legislation produced by UNCITRAL. First issued in 1985, its purpose was for states to adopt and implement it, thereby aligning national approaches to commercial arbitration and improving domestic arbitration laws. In that sense, it has achieved notable success. Iterations of the Model Law have been implemented, in full or with variations, in more than 100 jurisdictions worldwide. A list of states whose legislation is based on the Model Law is available on the UNCITRAL website. UNCITRAL also makes clear on that page that a model law is simply a suggested pattern for law-makers to consider when shaping their own legislation; since states are free to depart from the text when...
This Practice Note reviews and offers guidance on the United Nations Commission on International Trade Law ( UNCITRAL) Expedited Arbitration Rules for ad hoc arbitrations, which came into effect on 19 September 2021 (the Expedited Rules). Background to the UNCITRAL Expedited Rules The Expedited Rules form the newest addition to an expanding set of arbitration regimes created expressly for fast-track proceedings and tailored specifically for expedited arbitration. Cutting the duration and expense of arbitral processes remains a persistent theme within the arbitration community and a regular subject of debate. Some arbitration users have voiced concerns that cases are overly long, costly and excessively formal, particularly where disputes are simpler or of modest value in practice. Consequently, expedited mechanisms have attracted attention from numerous arbitral institutions and other arbitration bodies in recent years. While there is no uniform definition of ‘expedited arbitration’, recurring and commonly recognised...
This Practice Note reviews how arbitrations proceed under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For an overview of the UNCITRAL Rules, consult Practice Note: UNCITRAL Rules—background and introduction. Designed as a flexible ad hoc framework, the UNCITRAL Rules allow parties choosing arbitration as their dispute resolution method to adapt the process to their particular requirements. In this context, ‘procedure’ under the UNCITRAL Rules is not fixed; it will differ according to the parties’ specific needs and the discretion exercised by the arbitral tribunal. Nevertheless, certain general provisions apply and are considered below. UNCITRAL model arbitration clause The UNCITRAL Rules state that where parties agree to refer their dispute to UNCITRAL arbitration, the dispute will be determined in accordance with the UNCITRAL Rules ( UNCITRAL Rules, Article 1(1))......
This Practice Note provides an introduction to the overall structure of the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). The UNCITRAL Rules occupy a significant role in contemporary arbitration practice. They are crafted for ad hoc international commercial arbitrations—proceedings not administered by an arbitral institution and, typically, not conducted under that institution’s rules. The Rules may likewise be employed in investor–state arbitrations commenced under a treaty, such as a bilateral investment treaty, where the treaty permits arbitration conducted under those rules. Unless the parties stipulate otherwise, the UNCITRAL Rules govern arbitration agreements concluded on or after 15 August 2010, ie the date the revised Rules took effect. The earlier 1976 UNCITRAL Rules continue to apply to all arbitration agreements entered into before that date. Both the 1976 and 2010 UNCITRAL Rules are separate from UNCITRAL’s Model Law on...
This Practice Note examines how tribunals are appointed under the United Nations Commission on International Trade Law Arbitration Rules (the UNCITRAL Rules). For a primer on these Rules, refer to Practice Note: UNCITRAL Rules—background and introduction. A key benefit of UNCITRAL arbitration (indeed, arbitration generally) is the parties’ liberty and independence to select their arbitral tribunal. Articles 8–10 of the UNCITRAL Rules describe the mechanism for constituting the tribunal, whether the parties have opted for a sole arbitrator or a three-member panel, and apply irrespective of the structure chosen. The UNCITRAL Rules also prescribe what occurs if the parties cannot agree on one or more arbitrators, or if either party seeks to substitute an arbitrator, setting out a clear procedure. Use of an appointing authority UNCITRAL is not an arbitral institution and does not administer or supervise arbitrations conducted pursuant to the UNCITRAL Rules....
What is an umbrella clause? An umbrella clause (also referred to as an umbrella agreement or an observance of undertakings clause) is a provision in a bilateral investment treaty ( BIT) by which a state undertakes to honour all obligations owed to foreign investors. For investors, such clauses can be particularly beneficial, as they may permit an argument that issues ordinarily governed by local law and courts—such as a state’s breach of contractual duties to the investor—also amount to a breach of the treaty by virtue of the umbrella clause. Consequently, the investor may attempt to bring all disputes with the state before an international forum under the BIT’s protective umbrella. However, whether a clause in fact elevates domestic law obligations in this way (and, if so, which obligations are elevated) turns on the proper interpretation of the clause. The...
On 23 June 2016, the United Kingdom held a referendum on its EU membership, with a majority opting for the UK to leave the EU. On 29 March 2017, the Prime Minister sent formal notice of the UK’s intention to withdraw, setting in motion the Article 50 TEU process. At 11 pm on 31 January 2020 (exit day), the UK’s withdrawal took effect in law and the UK ceased to be an EU Member State. Exit day signalled the close of the Article 50 withdrawal phase and the beginning of a time-limited transition/implementation period, during which the interim arrangements in Part 4 of the Withdrawal Agreement applied. These transitional measures created a standstill period while the UK and the EU set about implementing the Withdrawal Agreement and negotiating the legal terms governing their future relationship, to apply after the transition ended. The EU- UK Trade and...
ARCHIVED This Practice Note is archived and no longer maintained. This Practice Note reviews the evidence-taking rules as they apply between the UK’s departure from the EU on 31 January 2020 and the end of the implementation period, which the EU refers to as the transition period. It explores whether the implementation period can be extended, assesses the application of the evidence-taking regime under Regulation ( EC) 1206/2001—the Taking of Evidence Regulation—during that period, and outlines the position beyond the implementation period. Definitions This Practice Note uses the following definitions: European Union ( Withdrawal) Act 2018— EU( W) A 2018 European Union ( Withdrawal Agreement) Act 2020— EU( WA) A 2020 exit day—is defined in EU( W) A 2018, s 20 implementation period—is defined in EU( WA) A 2020, s 1......
ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note examines the rules for deciding which court has jurisdiction for the span between the UK’s departure from the EU on 31 January 2020 and the conclusion of the implementation period, which the EU refers to as the transition period. It considers whether the implementation period can be extended, whether the jurisdictional framework under the Brussels regime, including that set out in Regulation ( EU) 1215/2012, Brussels I (recast), applies during the implementation period, as well as the position after the implementation period. For a quick reference Brexit research aid that answers key questions on Brexit and includes helpful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and...
ARCHIVED : This Practice Note has been archived and is not maintained This Practice Note reviews the rules for identifying the applicable law, also described as governing law, as they operate between the UK’s exit from the EU on 31 January 2020 and the conclusion of the implementation period, which the EU refers to as the transition period. It addresses whether the implementation period can be extended, whether the applicable law frameworks in Regulation ( EC) 593/2008, Rome I, and Regulation ( EC) 864/2007, Rome II, continue to apply during that period, and what is expected at its end. For a quick reference Brexit research aid answering key questions on Brexit and offering useful Brexit updates, research tips and resources, see: Brexit Bulletin—key updates, research tips and...
This Practice Note outlines the function commonly undertaken by tribunal secretaries (also called arbitral or administrative secretaries) within international arbitration. It further looks at who fills the secretary role, highlights issues that have emerged regarding their engagement, and the extent to which certain institutional arbitration rules provide for their use. It also examines who ordinarily performs the secretary position and in what capacity. Provision for their engagement under certain institutional arbitration rules is likewise considered. The Practice Note does not take a position on whether appointing tribunal secretaries is appropriate. It does not endorse or oppose their use. Rather, it describes the tasks tribunal secretaries typically carry out, considers who is most suitably placed to do so, briefly addresses recurring concerns linked to their involvement, and records recent developments relating to their use by reference to selected...
This Practice Note This Practice Note explores the advantages and disadvantages of employing tribunal secretaries in international arbitration. It sets out the cases for and against their involvement and surveys the different forms of arbitration and the range of circumstances that may shape their value and the decision to appoint them. For the reasons explained below, whether—and to what extent—it is beneficial for a tribunal to rely on a secretary turns on several matters, in particular: the character and breadth of the dispute whether the arbitration is institutional or ad hoc, and the manner in which tribunal secretaries are appointed and managed Accordingly, this Practice Note does not aim to reach any general conclusion on whether the advantages of tribunal secretaries outweigh their possible downsides. Secretaries tend to be engaged in large and/or complex arbitrations, including disputes over...
This Practice Note explores the key idea of the seat of an arbitration, with a particular focus on the law of England and Wales and Northern Ireland ( England and English are used here as shorthand). See also Practice Note: Choosing the seat of arbitration. The importance of the arbitral seat The seat of arbitration is the juridical, or legal, place of the arbitration (often termed the locus arbitri). The law of that seat (the lex arbitri) governs many elements of the procedure and the award, and is inextricably linked to the courts’ curial or supervisory jurisdiction to support and enforce the arbitration ( Enka v Chubb). It indicates the connection between the arbitration and a system of law ( Process & Industrial Developments v Nigeria). In international arbitration, selecting the seat is one of the most significant choices because it shapes—and often...
For many years, technology has, to varying degrees, been used at every phase of arbitration. The coronavirus ( COVID-19) crisis, with its travel bans and lockdowns, forced a sharper emphasis on how practitioners and arbitrators could deploy technology to ensure fair and efficient proceedings across the globe. In addition, swift advances in tools adopted by clients and the legal sector (including developments in artificial intelligence ( AI)), coupled with rising cost and ESG pressures on practitioners, have thrown a clear spotlight on the manner in which technology is applied in arbitration. Historically, when speaking about technology in arbitration, people have tended to think chiefly of e-discovery, electronic bundling, and remote or hybrid hearings. Yet technological considerations should, and do, permeate almost every facet of an arbitration, from the arbitration agreement and assessment of the relevant laws and procedural rules, to the choice of...
Note: the Swiss cases mentioned below are not included in Lexis Nexis® reports. Introduction Swiss domestic and Swiss international arbitration Swiss law draws a line between domestic and international forms of ‘ Swiss’ arbitration. The former is set out in Part 3 of the Swiss Code of Civil Procedure of 19 December 2008 (the ‘ Swiss CCP’; minor revisions to Part 3 most recently took effect on 1 January 2025), while the latter is governed by Chapter 12 of the Swiss Private International Law Act of 18 December 1987 (the ‘ PILA’; overhauled in 2021). Each framework addresses largely the same topics as the UNCITRAL Model Law on International Commercial Arbitration of 1985, as amended in 2006 (the ‘ Model Law’), yet neither follows the Model Law’s architecture, preserving their autonomy and distinctive character. Swiss arbitration legislation applies solely to proceedings seated in...
The Swiss Rules of International Arbitration, updated on 1 June 2021 (the Swiss Rules), govern—unless the parties agree otherwise—all arbitrations begun on or after 1 June 2021 where the arbitration agreement cites the Swiss Rules or the former rules of chambers or organisations that have acceded to, or placed their proceedings under, the Swiss Rules. This Practice Note outlines key aspects of the Swiss Rules and how they are overseen by the Swiss Arbitration Centre ( SAC). Additional detail on many of these points appears in related Practice Notes listed under ‘ Related documents’. For material on the 2012 Swiss Rules, see Swiss Rules arbitration—overview. Limited involvement of institution in proceedings Compared with certain other institutional regimes, administration under the Swiss Rules is deliberately light-touch, with the institution’s role and intervention kept to a minimum. The SAC’s Arbitration Court is responsible for...
The Swiss Rules of International Arbitration, updated on 1 June 2021 (the Swiss Rules), govern—unless the parties agree otherwise—any arbitration begun on or after 1 June 2021 on the basis of an arbitration agreement where the clause refers to the Swiss Rules, or to the former rules of chambers or organisations that adopted the Swiss Rules or placed their proceedings under them. For commentary on the 2012 Swiss Rules, see: Swiss Rules arbitration—overview. A recurring element of institutional arbitration frameworks, including the Swiss Rules, is the institution’s involvement in setting and administering arbitration costs. Under the Swiss Rules, though, arbitral tribunals enjoy broader powers on costs than under several other prominent institutional regimes, such as those of the International Chamber of Commerce ( ICC) and the London Court of International Arbitration ( LCIA). This Practice Note addresses costs and security for costs under the Swiss...
This Practice Note presents the Swiss Arbitration Centre and the Swiss Rules of International Arbitration (the Swiss Rules). Development of the Swiss Rules Several local Swiss Chambers of Commerce had been providing arbitration services as early as in the latter half of the nineteenth century. The Chambers of Commerce and Industry of Basel, Bern, Geneva, Neuchâtel, Ticino, Vaud and Zurich each operated for years under their own arbitration rules until 2004, when those local regimes were superseded by the 2004 Swiss Rules of International Arbitration (the 2004 Swiss Rules). The 2004 Swiss Rules drew on the 1976 UNCITRAL Arbitration Rules (the UNCITRAL Rules), while introducing some notable and practical adjustments. In particular, in contrast to the UNCITRAL Rules, cases under the Swiss Rules are formally overseen by an administering institution. In 2010, a working group was set up to...
Interim remedies from the tribunal The Swedish Arbitration Act ( SAA) applies to all arbitrations seated in Sweden, irrespective of any international nexus ( Section 46 SAA). An official translation into English is available through the SCC Arbitration Institute. Under Section 25, paragraph 4 of the SAA, interim relief—described as “provisional and conservatory measures”—can be granted in international arbitration proceedings in Sweden. That provision states that, unless the parties have agreed otherwise, an arbitral tribunal may, at the request of one party, order provisional or conservatory measures. The tribunal may additionally require the requesting party to provide reasonable security for the damages that the opposing party may incur as a result of such an interim measure. These measures are expressly available in international arbitrations seated in Sweden. A comparable rule empowering tribunals to order interim measures is contained in the 2023...
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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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