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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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Swedish law differentiates between ‘ Swedish arbitral awards’ and ‘foreign arbitral awards’. Domestic awards are enforceable in the same manner as judgments of Swedish courts, and, notably, they proceed without any exequatur requirement. In contrast, to execute a foreign arbitral award in Sweden, one must first secure exequatur from the Court of Appeal and then apply to the Swedish Enforcement Authority for execution of the award. In practice, the procedure is straightforward and will usually take a few weeks, unless the counterparty raises objections, in which event the process may become considerably lengthier. This practice note deals solely with the enforcement of foreign arbitral awards and does not consider domestic awards within this context and scope. Before examining the rules governing enforcement of foreign arbitral awards in Sweden, a brief outline concerning invalidity and the setting aside of an arbitral award will be provided for...
The Tribunal’s Power to Determine its Own Jurisdiction ( kompetenz-kompetenz ) This Practice Note examines issues of tribunal jurisdiction under Swedish law. Section 2 of the Swedish Arbitration Act ( SAA) states that: Arbitrators are empowered to decide their own jurisdiction over the dispute. If they conclude that they have jurisdiction, any party may appeal to the Court of Appeal within 30 days of receiving the decision. The arbitral proceedings may continue while the court considers the appeal. Sections 34 and 36 apply to any action challenging an arbitral award that includes a decision on jurisdiction. In consequence, Swedish law endorses the principle of kompetenz-kompetenz (la compétance de la compétance), meaning arbitrators have authority to rule on their own competence. In doing so, they should also observe the separability doctrine, which the SAA has codified (see: No Jurisdiction below)......
This Practice Note examines how state immunity affects arbitration proceedings with their seat in France. For a broader overview of state immunity in arbitration, consult Practice Note: State immunity and arbitration—general considerations. For guidance across multiple jurisdictions, see the State immunity subtopic: State immunity—overview... Note: the French authorities cited below are not reported by Lexis Nexis® UK... The notion of state immunity in France: general principles French law recognises two categories of state immunity: State immunity from jurisdiction—this doctrine bars a court or tribunal from assuming jurisdiction over a state that enjoys such immunity. The applicable rules are developed through case law. French courts at times look to the United Nations Convention on Jurisdictional Immunities of States and Their Property dated 2 December 2004 as a persuasive point of reference... State immunity from enforcement—this principle prevents a court or tribunal from enforcing an award or...
This Practice Note sets out how to initiate arbitration under the 2021 International Chamber of Commerce ( ICC) Rules of Arbitration ( ICC Rules). The ICC Rules govern any ICC arbitrations begun on or after 1 January 2021, unless the parties expressly agree that an earlier version will apply. For an overview of the 2021 ICC Rules, see Practice Note: ICC (2021)—introduction to the ICC and arbitration under the ICC Rules. For guidance on the 2017 and 2012 ICC Rules, see: ICC arbitration—overview. Prior to commencing an arbitration pursuant to the ICC Rules When a dispute arises, it is crucial for parties and their advisers to check the dispute resolution clause in the relevant contract. If it provides for arbitration under the ICC Rules, at the outset the parties should consider, among other points: any limitation period (whether contractual or statutory) by which the...
This Practice Note sets out guidance on initiating arbitration under the Hong Kong International Arbitration Centre ( HKIAC) Administered Arbitration Rules 2018 (the 2018 HKIAC Rules; HKIAC 2018). As noted in Practice Note: HKIAC (2018)—the HKIAC Administered Arbitration Rules—application and key features, the 2018 HKIAC Rules generally govern HKIAC arbitrations begun on or after 1 November 2018, unless the parties agree otherwise; for proceedings started before 1 November 2018, the 2013 HKIAC Rules will usually apply, save where the parties have agreed differently. For an introduction to HKIAC and its structure, see Practice Note: HKIAC—background to and structure of the institution. How to commence an HKIAC arbitration The process for launching an arbitration under the 2018 HKIAC Rules broadly mirrors that of other institutional rule sets. A party wishing to commence an arbitration (ie the claimant(s)) under the 2018 HKIAC Rules must...
Under the Abu Dhabi Commercial Conciliation & Arbitration Centre ( ADCCAC) 2013 Procedural Regulations of Arbitration (the 2013 Regulations), proceedings start when the claimant files a Request for Arbitration (the Request). This practice note relies on the 'official' English text of the 2013 Regulations. Differences exist between the Arabic and English versions in how compulsory or permissive terms are rendered. The authentic text is Arabic and, if any argument arises about the 2013 Regulations, the Arabic version will take precedence. Accordingly, where the texts diverge, Arabic governs. Request for Arbitration An arbitration governed by the 2013 Regulations begins once the claimant formally submits a Request to the Centre—see: Arbitrating under the ADCCAC Regulations 2013— Roles and definitions. The claimant must provide the Centre with enough copies of the Request for each party to the arbitration (art 5.1). At this stage, all...
Introduction Although sovereign immunity does not hinder arbitration, the prevailing position is that states remain immune from the reach of Spanish courts. Still, issues concerning state immunity can surface when a claim is lodged in court against a state to challenge or enforce an award, or to secure an injunction in support of arbitration. The State Immunity Act 2015: General Provisions The Spanish State Immunity Act 2015 ( SIA) transposes into the Spanish legal order the U. N. Convention on State Immunity 2004, despite the convention not having entered into force. Under the SIA, s 4, any foreign State and its assets enjoy immunity from jurisdiction and enforcement before Spanish courts on the terms and conditions laid down in this statute. However, the SIA, s 16 provides a single exception to jurisdictional immunity where there is an arbitration agreement between the State and an...
This Practice Note considers the availability of interim and emergency measures from arbitral tribunals and the Korean courts under the law of South Korea. The Korean Arbitration Act ( KAA) is founded on the 1985 UNCITRAL Model Law, and embraces the Model Law’s provisions dealing with interim relief. With effect from 30 November 2016, amendments to the KAA took effect, allowing enforcement of interim measures granted in arbitral proceedings governed by the Act—that is, arbitrations seated in South Korea—by incorporating the interim measures regime set out in the 2006 version of the Model Law. Those updated provisions on interim measures apply to matters commenced after that effective date. Under Korean law, interim relief is not the exclusive preserve of either the courts or arbitral tribunals; parties may request such measures from the court ( KAA, art 10) or from the arbitral tribunal ( KAA, art 18). The...
What is the 100 day arbitration procedure? Published in 2004 by the Society of Construction Arbitrators, the 100 Day Arbitration Procedure is a framework parties may adopt by agreement. It sets out how the reference will be managed, including deadlines within which procedural steps must be completed. The Society introduced it in response to concerns that certain adjudications had become prohibitively costly, especially given that an adjudicator’s decision is only binding on an interim basis unless and until it is finally determined by litigation, arbitration or agreement (see Practice Note: Adjudication decision). The 100 day procedure is intended to enable disputes to be resolved relatively swiftly with a binding outcome, yet still afford the parties adequate time to present their cases and, where appropriate, to have a full hearing. Without such a scheme, arbitration proceedings typically last significantly longer. That said, the 100 day...
Third-party funding in Singapore arbitration This Practice Note centres on the statutory scheme governing third-party funding in Singapore arbitration, together with guidance derived from case law and relevant soft law instruments. For an overview of third-party funding in international arbitration generally, see Practice Note: Third-party funding and arbitration. Since its legalisation in 2017, the use of third-party funding has grown across Singapore litigation and arbitration. Although not novel to international arbitration, leading arbitral hubs—including London, Paris and Geneva—have long allowed such funding. Singapore’s statutory framework was introduced in 2017 and, under section 5B of the Civil Law Act, applied to specified dispute resolution proceedings. At the outset, this captured international arbitration and court or mediation proceedings associated with that arbitration. In 2021, the Civil Law ( Third- Party Funding) ( Amendment) Regulations 2021 broadened the regime to domestic arbitration proceedings, certain proceedings before the Singapore...
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 of Wong Partnership LLP, Singapore. The 7th Edition of the SIAC Rules took effect on 1 January 2025 and can be accessed here. This Practice Note examines the provisions concerning awards and costs under the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (7th edition) 2025 (2025 SIAC Rules). The 2025 SIAC Rules apply to arbitrations begun on or after 1 January 2025, unless the parties have agreed otherwise. Note: Singapore judgments cited in this Practice Note are not reported by Lexis Nexis UK. Definition of the award Under the SIAC Rules, an award encompasses interim, interlocutory, consent, partial, final, or additional awards, and also includes an...
Prepared in collaboration with Ms Koh Swee Yen, Senior Counsel and Partner, Mr Joel Quek, Partner, Ms Magdalene Ong, Partner, and foreign lawyers Ms Divya Harchandani and Ms Thea Elyssa Vega, all from Wong Partnership LLP, Singapore. The SIAC Rules, Seventh Edition, took effect on 1 January 2025 and can be accessed here. This Practice Note outlines what a respondent should do upon receiving a notice of arbitration from the claimant, pursuant to the Singapore International Arbitration Centre ( SIAC) Arbitration Rules, 2025, Seventh Edition (the 2025 SIAC Rules). It addresses respondent steps upon receipt of a Notice under the 2025 SIAC Rules. These Rules took effect on 1 January 2025. Unless the parties have agreed differently, the 2025 SIAC Rules govern arbitrations initiated on or after 1 January 2025. Note: Singapore judgments mentioned in this Practice Note are not reported by Lexis Nexis®...
Challenging the jurisdiction of the tribunal pre-award— Singapore’s Arbitration Act and International Arbitration Act Singapore operates a dual-track arbitration framework: the Arbitration Act, 2001 ( AA) applies to domestic references, while the International Arbitration Act 1994 ( IAA) governs international arbitrations whether the seat is in Singapore or abroad, including those conducted outside Singapore. Both statutes recognise separability, treating the arbitration agreement or clause as autonomous, distinct and independent from the underlying contract. They likewise embody the doctrine of Kompetenz- Kompetenz, vesting the tribunal with competence to rule on its own jurisdiction—including the conclusion that it lacks authority over the parties’ dispute should that be the case. The High Court of Singapore in Malini Ventura v Knight Capital Pte Ltd observed that the UNCITRAL Model Law on International Commercial Arbitration ( Model Law) empowers the arbitral tribunal to decide if it has...
ARCHIVED: This Practice Note has been archived and is no longer maintained. It is provided for background purposes only. On 22 August 2023, SIAC opened a public consultation on the Draft 7th Edition of the SIAC Rules. The draft SIAC Rules, 7th Edition, can be accessed here. This Practice Note discusses issues concerning the appointment of the arbitral tribunal under the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (6th edition) 2016 (2016 SIAC Rules). The 2016 SIAC Rules apply to arbitrations commenced on or after 1 August 2016, unless the parties have agreed otherwise. For guidance on the 2013 SIAC Rules, see: SIAC arbitration—overview. Number of arbitrators Under the 2016 SIAC Rules, the default is that a sole arbitrator will be appointed to resolve the dispute (2016 SIAC Rules, r 9.1). There are two exceptions to that position: more than one...
An introduction to the SIAC Investment Arbitration Rules (2017) From 1 January 2017, the Singapore International Arbitration Centre ( SIAC) Investment Arbitration Rules ( SIAC IA Rules) took effect, applying—where agreed—to investment arbitrations begun on or after that date. Although tailored for disputes involving states, state-controlled entities or intergovernmental organisations, the SIAC IA Rules draw on features of SIAC’s international commercial arbitration rules to make investment proceedings more straightforward and efficient. They seek to respond to common user concerns, notably the belief that cases last too long and that the process can lack openness. The SIAC IA Rules also introduce several novel provisions tackling current themes, including third-party funding and emergency interim relief. These Rules emerged from a wide public consultation launched on 1 February 2016, when SIAC circulated a draft of the SIAC IA Rules for feedback—see News Analysis: Draft SIAC...
ARCHIVED: This Practice Note has been archived and is not maintained. It is provided for background information only. On 22 August 2023, SIAC announced the public consultation of the Draft 7th Edition of the SIAC Rules. The draft of the SIAC Rules, 7th Edition can be accessed here. SIAC’s multi-party and multi-contract rules This Practice Note considers the position of multiple contracts, joinder and consolidation under the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (6th edition) 2016 (2016 SIAC Rules). The 2016 SIAC Rules apply to arbitrations commenced on or after 1 August 2016, unless the parties have agreed otherwise. The 2016 SIAC Rules contain detailed provisions covering: multiple contracts (2016 SIAC Rules, r 6) joinder (2016 SIAC Rules, r 7) consolidation (2016 SIAC Rules, r 8) In this regard, SIAC follows other international arbitral institutions which have made similar...
ARCHIVED: This Practice Note is archived and no longer maintained. It is provided solely for background information. On 22 August 2023, SIAC announced the opening of a public consultation on the Draft 7th Edition of the SIAC Rules. The draft SIAC Rules, 7th Edition, are available to access here. This Practice Note reviews the early dismissal of claims and defences under the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (6th edition) 2016 (2016 SIAC Rules). The 2016 SIAC Rules govern arbitrations started on or after 1 August 2016, unless the parties have agreed to a different position. Early dismissal under the 2016 SIAC Rules, r 29 SIAC was among the first leading international commercial arbitration bodies to adopt a mechanism for the early dismissal of claims and defences. The purpose of the rule introduced in the 2016 SIAC Rules is to save time and...
This Practice Note is 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 7th Edition of the SIAC Rules took effect on 1 January 2025 and is available here. This Practice Note reviews the principal provisions of the Arbitration Rules of the Singapore International Arbitration Centre ( SIAC) (7th edition) 2025 (2025 SIAC Rules) on the presentation of evidence. The 2025 SIAC Rules apply to arbitrations commenced on or after 1 January 2025, unless the parties have agreed otherwise. Evidence and conduct of proceedings Under the 2025 SIAC Rules, the tribunal may conduct the arbitration as it deems appropriate, whilst at all times acting fairly and impartially, and with diligence and...
This Practice Note offers a concise overview of the Singapore International Arbitration Centre ( SIAC) (‘the SIAC’). Further detailed guidance on SIAC arbitration proceedings is available for readers in the ‘ Related documents’ pod. On 22 August 2023, SIAC began a public consultation on the Draft 7th Edition of the SIAC Rules (the ‘ Consultation Draft’). That draft puts forward substantial changes to the existing 6th Edition of the SIAC Rules currently in place. Notable proposals include: the introduction of a Streamlined Procedure, requirements on disclosure of Third- Party Funding, and new provisions that expand and clarify tribunal powers. SIAC additionally proposes implementation of a new comprehensive institution-hosted electronic case and document system. See News Analysis: SIAC commences consultation on revisions to its arbitration rules. On 9 December 2024, SIAC formally announced the release of the 7th Edition of the SIAC...
This Practice Note considers challenging arbitral awards under the law of the Kingdom of Saudi Arabia ( KSA, Saudi or Saudi Arabia) This subject is also described as seeking to set aside, or annul, arbitration awards under Saudi law. Broadly, and examined in more detail below, inconsistency with Sharia or with Saudi public policy provides the foundation for nullifying, or declining to recognise and enforce, arbitral awards in Saudi Arabia... The relevant legal framework The Saudi Arbitration Law, promulgated by Royal Decree No. M/34 on 16 April 2012 (the Arbitration Law), which is based on the UNICTRAL Model Law on International Commercial Arbitration. The Arbitration Law governs arbitration conducted in Saudi Arabia, and also proceedings held outside Saudi Arabia where the parties agree that the Arbitration Law will be the governing law of the proceedings ( Arbitration Law, Article 2) The...
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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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