Legal Practice Notes

This Practice Note examines the situations in which a party to arbitral proceedings seated in England, Wales or Northern Ireland may forfeit the ability (or right) to object to the tribunal’s substantive jurisdiction or to the arbitral procedure. Section 73 of the Arbitration Act 1996 ( AA 1996) is intended to ensure that any such objections are made without delay, rather than being kept back to be deployed later (perhaps for perceived tactical advantage), thereby wasting time and costs. As Mr Justice Knowles observed in Balochistan v Tethyan Copper Company, with reference to a number of authorities, the basic principle, or policy, is fairness, and justice understood as openness and fair dealing between the parties. From a practical standpoint, AA 1996, s 73, together with the leading authorities, strongly emphasises the need for parties to articulate objections as promptly, fully and clearly as they can in their...

Appealing arbitral awards on points of law Section 69 of the Arbitration Act 1996 ( AA 1996) allows parties to an arbitration seated in London to challenge an award solely on a ‘question of law’. This Practice Note explores how, for AA 1996, s 69, a question of law is distinguished from a question of fact. In practical terms, s 69 appeals seldom succeed, and the threshold for securing permission to appeal (which must first be obtained) is high. These thresholds, together with the key practical considerations arising on any AA 1996, s 69 appeal, are considered in Practice Notes: AA 1996—appealing the award—leave to appeal (s 69) and AA 1996—appealing the award—appealing on a point of law (s 69) Questions of law v questions of fact Because the avenue under AA 1996, s 69 is available only for questions of law (assuming the parties have not...

Correction of an arbitral award under AA 1996 Once an award is delivered, parties and their solicitors should review it meticulously to identify any mistakes arising from an accidental slip or omission, or any ambiguity that ought to be clarified or removed. Naturally, they will also be looking for substantive errors that might ground a challenge or an appeal, but they must also ensure the tribunal is given the chance to address any error capable of correction under the ‘slip rule’ in section 57 of the Arbitration Act 1996 ( AA 1996). That rule operates as an exception to the position that the tribunal is functus officio once it has given its award—meaning it no longer has power or authority over the arbitration (eg H v W)......

This Practice Note This Practice Note addresses applications and referrals to the courts of England and Wales (using English and England for convenience) that seek the determination of preliminary questions of law under section 45 of the Arbitration Act 1996 ( AA 1996). Ordinarily, in arbitral proceedings, legal issues are determined by the tribunal itself, subject always to any appeal to the court under AA 1996, s 69 (a route frequently, in practice, waived either expressly by the parties or via their selected rules, eg LCIA Arbitration Rules, art 26.8). Section 45 is not compulsory and, if not disapplied by the arbitration agreement (and the chosen rules), its scope is confined and exceptional; it ought not to be used, or appear to be used, as a device for sidestepping the parties’ commitment to arbitrate. The court’s jurisdiction is...

This Practice Note sets out how to apply to the courts of England and Wales for interim and/or emergency relief in support of arbitration, and should be read alongside Practice Note: AA 1996—interim and/or emergency relief—powers of the English court. The procedure for seeking relief from the court Claims to the court for assistance in aid of arbitral proceedings are made under section 44 of the Arbitration Act 1996 ( AA 1996). The process for securing interim or emergency relief (the expressions are used interchangeably) is the same whether or not arbitration has been commenced. Where no arbitration is yet underway, an undertaking to commence proceedings will typically form a necessary element of the application. A claim for emergency relief in support of an arbitration must be initiated by issuing an arbitration claim form in accordance with the CPR Part 8 procedure. The...

This Practice Note explores the treatment of costs under the Arbitration Act 1996 ( AA 1996), covering the tribunal’s cost-related powers and the manner in which costs are addressed in an award. Understanding costs Recovering costs is a significant feature of most arbitrations. When seeking, or opposing, a costs award before the tribunal, it is essential to be clear about: any agreement on costs between the parties what amounts to ‘the costs of the arbitration’ the tribunal’s jurisdiction to award costs and the principles on which they do so how interest is to be awarded the form of the costs award the avenues to challenge a costs award Costs agreements between the parties The parties may not conclude, before any dispute arises, an agreement allocating arbitration costs so that one side must bear them whatever the outcome ( AA 1996, s 60). This is the sole mandatory costs provision in the AA 1996......

This Practice Note now reflects the changes introduced by the Arbitration Act 2025. All references to the AA 1996 are to that legislation as amended, and applied consistently throughout this updated guidance note. Before any award is made, a party may contest an arbitral tribunal’s substantive jurisdiction by applying to the tribunal under section 31 of the Arbitration Act 1996 ( AA 1996) or to the court under AA 1996, s 32. Section 1A, added by the AA 2025, clarifies that an application under s 32 is confined to issues that have not yet been determined by the tribunal (s 32(1A))......

This Practice Note examines challenges to arbitral jurisdiction and the availability of anti-suit relief under Austrian law. Note: the decisions of the Austrian Supreme Court ( Oberster Gerichtshof) ( OGH) referenced below are not reported by Lexis Nexis®. Determination of jurisdiction by the arbitral tribunal Power of arbitrators to rule on their own jurisdiction/ Principle of Kompetenz- Kompetenz In keeping with international arbitral practice, Austrian Arbitration Law—specifically section 592(1) of the Austrian Civil Code of Procedure ( Zivilprozessordnung, the ACCP)—which in substance follows Article 16 of the United Nations Commission on International Trade Law ( UNCITRAL) Model Law, recognises the arbitral tribunal’s authority to decide on its own jurisdiction (the principle of Kompetenz- Kompetenz). This authority encompasses determinations on the existence and validity of the arbitration agreement. ACCP, s 592 ( Competence of the Arbitral Tribunal to Rule on its own...

ARCHIVED: This Practice Note has been archived and is not maintained. It outlines the principal revisions to the Criminal Procedure Rules 2020 ( Crim PR), SI 2020/759 introduced by the Criminal Procedure ( Amendment) Rules 2023, SI 2023/44, effective from 3 April 2023. The amendments add provisions on pre-charge bail to reflect changes made by the Police, Crime, Sentencing and Courts Act 2022 ( PCSCA 2022), and refresh rules on: service of documents on court officers, requests for information from the court about ongoing cases, time limits for commencing proceedings, applications to withdraw witness summonses. Overall, the majority of changes aim to make the Crim PR simpler and clearer. Pre-charge bail Crim PR, SI 2020/759, rr 14.18 and 14.19 are revised to align with amendments to the Police and Criminal Evidence Act 1984 ( PACE 1984) made by the PCSCA 2022...

Automatic enrolment Automatic Enrolment ( Earnings Trigger and Qualifying Earnings Band) Order 2017 Under section 13 of the Pensions Act 2008 ( Pen A 2008), an individual’s qualifying earnings are those exceeding the amount in subsection (1)(a) and not surpassing the amount in subsection (1)(b). The earnings trigger for automatic enrolment and re-enrolment is the pay level at which employers must automatically place eligible jobholders into a qualifying workplace pension scheme. For money purchase arrangements, the qualifying earnings band identifies the slice of pay on which employers and workers must make at least the minimum contributions. Each tax year, the Secretary of State must review: the automatic enrolment earnings trigger the automatic re-enrolment earnings trigger the qualifying earnings band If the Secretary of State considers that any figures should be altered, they are amended by statutory instrument. Provisions under Pen A 2008, sections 14 and 15A,...

ARCHIVED : This Practice Note has been archived and is not maintained. This Practice Note offers a comparative overview, in tabular form, of the updated CPR 36 that came into force on 6 April 2015, set against the previous Part 36 regime (in effect before 6 April 2015). Note: although the new CPR 36 applies in full only to Part 36 offers made on or after 6 April 2015, from that date certain provisions also apply to offers made earlier where the trial (of the whole claim or any part/issue) is due to begin on or after 6 April 2015, including: CPR 36.3: definitions CPR 36.11: acceptance of a Part 36 offer CPR 36.12: acceptance of a Part 36 offer in a split trial case CPR 36.16: restriction on disclosure of a Part 36 offer See Practice Note:...

ARCHIVED: This Practice Note is archived, is no longer maintained, and is supplied for background information only. In addition, some links may not take you to the provisions as they stood on the date this Practice Note’s guidance was issued. For details of earlier and/or later amendments to the CPR, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note provides a synopsis of forthcoming CPR amendments. The new measures commence on 5 and 6 April 2015. The principal reform is the replacement Part 36 and the consequential revisions to the costs rules. Further alterations concern children and protected parties, transfer of proceedings, judicial review and fixed costs. The amendments also give effect to sections 84 and 87 of the Criminal Justice and Courts Act 2015 in relation to judicial review. The changes are contained in SI 2014/3299 and its making document, and in SI...

ARCHIVED This archived Practice Note is not maintained and is provided for background reference only. In addition, some links may not lead to the provisions as they stood on the date this guidance was issued. For details of earlier and/or later CPR amendments, see: CPR updates—overview and Procedure Rule Committee minutes—overview. This Practice Note has been updated to reflect SI 2014/867, published on 2 April 2014. Throughout April 2014, various changes to the CPR and practice directions take effect on different dates. Below we give a brief outline and, for ease, list the CPR changes in a table so the effective dates are clear. Unless otherwise indicated, the amendments are made under SI 2014/407. The SIs coming into force Currently, four SIs are bringing changes to the CPR into effect. It is expected that a further SI will address the new 28‑day extension of time by...

This Practice Note explains the apprenticeship levy in detail, describing a charge payable by certain employers and set at 0.5% of the employer’s total annual pay bill. An annual allowance of £15,000 for employers applies, meaning the levy falls due only where an organisation’s annual pay bill exceeds £3m. The apprenticeship levy is run by HMRC within the real time information ( RTI) reporting system, and employers account for and pay it through the PAYE mechanism. History of the apprenticeship levy The apprenticeship levy has been in place, and payable, since 6 April 2017. It was brought into effect by the Finance Act 2016 ( FA 2016), having first been flagged in the Summer Budget 2015. Its purpose was to significantly raise both the volume and the quality of apprenticeships in England, through the creation of an...

Which sums are apportioned at completion? When a property is sold, the parties must set out clearly in the contract how income and outgoings are to be treated at the point of completion. The contract ought to address the apportionment of occupational lease yearly rents and, where the property is leasehold, any sums due under the headlease. In this note we proceed on the footing that rents are paid in advance (as is customary) rather than in arrears. If rents are instead paid in arrears, the buyer’s only obligation is to account to the seller once the rent is received on the quarter day immediately after the completion date, and the contract should include a specific clause to record that arrangement. Which sums are not apportioned? The following are not generally included within the apportionment...

In most cases, the trust deed contains provisions for naming successor trustees (see Practice Note: Trustees—appointment of trustees), though this is not invariably so. At times, judicial involvement becomes necessary. This, however, is not universal, and exceptional situations may require the court’s supervision to secure an appointment. Appointment by the court If appointing trustees without the court’s help is found to be inexpedient, difficult, or impracticable, an application can be brought to appoint a trustee either in substitution for, or alongside, an existing office-holder. The statutory jurisdiction to appoint fresh trustees is broadly framed, and in effect permits the court to remove or discharge a trustee by naming a replacement. Ordinarily, a trustee will not be discharged unless another is appointed in their stead. In deciding, the court focuses solely on preserving the trust estate and promoting the...

This Practice Note sets out the principal regulatory considerations when replacing the trustee of an authorised unit trust ( AUT), covering the steps to implement the change, the approach to selecting a new trustee, and the related disclosure and notification obligations. What is an authorised unit trust An AUT is an investment fund and, under section 237(3) of the Financial Services and Markets Act 2000 ( FSMA 2000), means a unit trust scheme authorised by an order made under section 243 of FSMA 2000. an undertaking for the collective investment of transferable securities ( UCITS) a non- UCITS retail scheme ( NURS) a qualified investor scheme ( QIS) a long term asset fund ( LTAF) a charity authorised investment fund In some respects, the Financial Conduct Authority’s ( FCA) rules for AUTs vary according to...

This Practice Note addresses the supplementary employment obligations specific to local government regarding the recruitment and removal of statutory post-holders, including the Joint Negotiating Committee ( JNC) for Local Authority Chief Officers terms, green book provisions, occupation-specific conditions of service, and authorities’ rules on employment procedures. It sets out the varying rules that apply to different categories of officers. It further outlines the part played by leaders or elected mayors and the cabinet under executive arrangements, together with the Chief Executive, in these processes as applicable. Discussion of employment issues in local government fall into three areas: routine employment law issues, such as those concerning discrimination, fair or unfair dismissal (including redundancy), TUPE, etc contractual obligations, which necessitate consultation with national conditions of service except where local agreements have been made ......

Original trustees Trustees are ordinarily designated by the document that establishes the trust. That instrument should also allow for any further appointments that might be required whilst the trust continues over time. The Trustee Act 1925 ( TA 1925) contains provisions for making additional appointments, though its operation can be expressly excluded by the terms of the instrument. The settlor will typically identify those they wish to serve as trustees and, where the settlement is created during the settlor’s lifetime, the trustees will usually be parties to the trust deed itself. If the settlor simply states an intention to hold some of their property on trust going forwards, they will act as the sole trustee. Alternatively, they may choose to appoint additional trustees and take the necessary steps to vest the property jointly in themselves and their co-trustees. Where a trust arises under a Will, it is...

Practice Note This Practice Note sets out guidance on when it is proper for the Official Solicitor to be named as litigation friend in family proceedings, together with the criteria, requirements and process for making such an appointment. It further considers funding arrangements and liability for costs. The Official Solicitor is an officer of the Supreme Court, appointed by the Lord Chancellor. The Official Solicitor’s team comprises seasoned solicitors who specialise in Court of Protection matters and in representing children and individuals who lack capacity in legal proceedings, but only where no other suitable person or agency is available to assume this role. Where an application seeks the Official Solicitor’s appointment as litigation friend, adequate security must be arranged for the costs of legal representation of the protected party, to the Official Solicitor’s satisfaction. Moreover, the Official Solicitor will be appointed solely as a...