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Category Archives: Dispute Resolution

Dispute Resolution – including bribery & corruption, fraud & white collar crime, arbitration, litigation

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When Can an Order Requiring Payment Stifle an Appeal?

By Daniel Harrison Recent UK Supreme Court decision could have far-reaching consequences for appeals In a split decision, the Supreme Court recently considered whether an order requiring an appellant to pay money (that the appellant does not have) into court to continue an appeal “stifles” the appeal and whether the order should be overturned. The … Continue Reading

Further Disclosure? Yes, but Not at Any Cost

By Oliver Browne and Hayley Pizzey In very broad terms, parties to English litigation disclose documents that they or their opponents may want to rely upon — even if the disclosed documents are adverse to the disclosing party. Parties may seek orders for further disclosure in certain circumstances. The rules on disclosure are set out … Continue Reading

How Will Court of Appeal Decision in Sabbagh v Khoury and others Affect Future Article 6(1) Cases?

By Oliver Browne and Daniel Harrison The Brussels Regulation provides for an exception to the general rule that a claimant must sue a defendant in the EU Member State where the defendant is domiciled. The exception allows a claimant to sue a defendant where a co-defendant (the “anchor” defendant) is domiciled instead, if the claims … Continue Reading

High Court Reiterates High Threshold for Enforcement of Annulled Awards

By Charles Rae A High Court decision has reiterated the difficulties international parties face in enforcing in England awards set aside by courts at the seat of arbitration. In Maximov v OJSC Novolipetsky Metallurgichesky Kombinat[1] the Claimant had applied for enforcement of an award made by the International Commercial Arbitration Court of the Chamber of … Continue Reading

Hong Kong Permits Third Party Funding of Arbitration

By Hanna Roos and Kavan Bakhda Hong Kong approved last week the awaited Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016 to permit third party funding of arbitration, as well as supporting court, emergency arbitration and mediation proceedings. The Hong Kong Legislative Council adopted the draft bill in the form of amendments made … Continue Reading

Another Key Decision on Corporate Separateness – High Court Finds That There is No Arguable Case for Unilever to be Held Liable for the Acts and Omissions of Kenyan Subsidiary

By Paul Davies, Michael Green, Samuel Pape and Charles Rae In a recent decision, the High Court has ruled that Unilever plc (Unilever), the ultimate holding company of the Unilever Group, does not owe a duty of care to protect the employees and residents of a tea plantation owned and operated by a Kenyan subsidiary … Continue Reading

Check Your Privilege: English Court Rules Internal Investigation Materials Cannot be Withheld from Prosecutor

By Stuart Alford QC, Daniel Smith and James Fagan  “Privilege is a fundamental human right guaranteed by the common law, and a principle which is central to the administration of justice. Once a document is subject to privilege, the privilege is absolute: it cannot be overridden by some countervailing rule of public policy”. These dicta … Continue Reading

Modern Slavery – An Update

By Paul Davies, Jumana Rahman and Michael Green 26 March 2017 marked two years since the introduction of the Modern Slavery Act 2015.  As the signature legislation of the then Home Secretary (Theresa May – now Prime Minister), it heralded greater focus on an issue that impacts many around the world.  The Modern Slavery Act … Continue Reading

ICSID Tribunal Upholds a State’s Right to Investigate Criminality in Arbitral Proceedings

By Charles Rae An ICSID tribunal has unanimously rejected a claimant’s attempt to temporarily suspend a State-initiated criminal investigation involving two of its witnesses. In Italba Corporation v Uruguay[1] Italba Corporation (Italba) had applied to the tribunal for provisional measures enjoining Uruguay from proceeding with its investigation until after completion of the arbitration, arguing that … Continue Reading

Rebalancing the Law on Asymmetric Jurisdiction Clauses

By Jumana Rahman and Hayley Pizzey Commerzbank Aktiengesellschaft v Liquimar Tankers Management Inc [2017] EWHC 161 (Comm) Summary The English High Court has held that asymmetric jurisdiction clauses are exclusive jurisdiction clauses for the purposes of the Recast Brussels Regulation[1] (the Recast Regulation). Where claims are issued by disputing parties in the courts of two … Continue Reading

Case of Insecurity? Supreme Court Explains the Limits to Orders for Security when Resisting Enforcement of a Foreign Award Under the New York Convention.

By Philip Clifford and Robert Price On 1 March 2017 the Supreme Court[1] overturned an order of the Court of Appeal and decided that Nigerian National Petroleum Corporation (NNPC) could not be required to provide monetary security as a condition for resisting enforcement of a Nigerian arbitral award made in favour of IPCO (Nigeria) Limited … Continue Reading

Firsts for UK SFO with in principle false accounting DPA, and for FCA with market abuse compensation, against Tesco

By Stuart Alford QC, Daniel Smith and Yasmina Borhani Following a two-year investigation, Tesco PLC has announced that its subsidiary Tesco Stores Limited (Tesco Ltd) had agreed in principle the terms of a Deferred Prosecution Agreement (DPA) with the UK Serious Fraud Office (SFO), subject to final judicial approval at a hearing scheduled for 10 … Continue Reading

English Courts Stay Enforcement of ICSID Award

By Catriona E. Paterson On 20 January 2017, the English Commercial Court handed down an important judgment addressing the intersection of a State’s public international law obligations in investment treaty arbitration and its obligations under European Union law. In Micula & Ors v. Romania,[i] Mr Justice Blair stayed enforcement of an ICSID arbitration award on … Continue Reading

Reserving Privilege for the Few: The High Court Confirms the Narrow Interpretation of “Client” for the Purposes of Legal Advice Privilege

By Oliver Browne and Daniel Smith Following Three Rivers (No 5) [2003] EWCA Civ 474, the High Court has held that notes of interviews of employees, prepared as part of certain internal investigations by a bank’s solicitors, for the purpose of enabling the bank to seek and receive legal advice are not protected by legal … Continue Reading

The Precarious Nature of Trust Assets at Home and Abroad

By Daniel Smith In Akers (and others) v. Samba Financial Group [2017] UKSC 6, the UK Supreme Court has confirmed the limited nature of British insolvency officer-holders’ ability to void dispositions of a company’s assets held on trust.  The Supreme Court also highlighted the potential dangers inherent in holding on trust assets located in jurisdictions … Continue Reading

Competition Appeal Tribunal Refuses Interim Relief in Pharma Pricing Case

By Jonathan Parker, Hanna Roos, Hayley Pizzey and James Fagan The Competition Appeal Tribunal (the CAT) in the UK heard on 17 January 2017 an application by Flynn Pharma Ltd and Flynn Pharma (Holdings) Ltd (together Flynn) to suspend the Competition and Markets Authority’s (the CMA) direction to reduce the price of an epilepsy drug. … Continue Reading

Corporate Criminal Liability: the UK is Now Talking the Talk and Walking the Walk

By Daniel Smith, Clare Nida and Yasmina Borhani The UK’s growing focus on corporate criminal liability was seen in two recent pieces of news. Last Friday the government announced a consultation on extending the reach of corporate criminal liability to additional economic crimes, in order to avoid the current English law requirement to identify a … Continue Reading

Singapore to Permit Third Party Funding of International Arbitration

By Sophie Lamb, Hanna Roos and Kavan Bakhda The Singapore Parliament passed on Tuesday a bill to allow third party funding of international commercial arbitration proceedings seated in Singapore. The bill, known as the Civil Law (Amendment) Bill – Third Party Funding for Arbitration and Related Proceedings, reverses a prior ban on third party funding … Continue Reading

Cyber Security Issues in Arbitration

By Jennifer Archie and Hanna Roos  Cyber security breaches are now an everyday reality permeating all aspects of business and private life, including the world of international commercial and investment treaty arbitration. These breaches can relate to the subject matter of the dispute, communications between parties and their counsel or between tribunal members, or the … Continue Reading

Business and Human Rights – Recent IBA Guidance for Lawyers

By Daniel Harrison and Jonathan Hew Lawyers must have the intersection of business and human rights at the front of their minds, and in-house counsel are no exception. Human rights risks transcend borders and industries, and may lead to bet-the-company litigation and irreparable reputational harm.  Lawyers should therefore welcome and heed recent practical guidance from … Continue Reading

Brexit: New Arbitration Alternatives for Financial Disputes

By Sophie Lamb and Samuel Pape Recent innovations at a number of arbitral institutions have brought into sharp focus arbitration options for post Brexit financial disputes. The English Arbitration Act is in its 20th year. It provides a tried-and-tested framework for international arbitration. Brexit will not affect that framework. Brexit should have no impact on London’s … Continue Reading

Commercial or Consular? State Immunity Frustrates Enforcement of Arbitral Award

By Catriona E. Paterson In its recent decision in L R Avionics Technologies Limited v. The Federal Republic of Nigeria & Attorney General of the Federation of Nigeria[1], the Commercial Court found that that premises owned by Nigeria were not “in use […] for commercial purposes” within the meaning of section 13(4) of the State Immunity … Continue Reading
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