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Category Archives: Dispute Resolution

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

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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

UK Supreme Court Adopts New “Range of Factors” Approach to Defence of Illegality

By Dan Smith and Anna Hyde The UK Supreme Court has rejected a formal “reliance” test to determine whether a defendant to a civil claim can rely on the claimant’s wrongdoing to defeat the claim, replacing it with a more fact-sensitive “range of factors” approach, which may expand cases in which the defence operates. “No … Continue Reading

We Come as Friends! – Amicus Briefs in Investor-State Arbitration

By Jonathan Hew Investor-state arbitrations frequently raise issues of public importance that parties other than those to proceedings, such as NGOs, may want to address. “Amicus briefs” afford them a limited opportunity to do so, as demonstrated in Infinito Gold v Costa Rica.[1] Amicus briefs Provisions on amicus briefs can be found in certain arbitral … Continue Reading

Do Not Delay! The Early Bird Catches the Anti-Suit Injunction

By Daniel Harrison The recent case of ADM Asia-Pacific Trading PTE Ltd v PT Budi Semesta Satria [1] illustrates the need for parties to act promptly and carefully when faced with proceedings contrary to an arbitration agreement. The court refused to grant an anti-suit injunction to restrain proceedings in favour of arbitration because the claimant … Continue Reading

Court Refuses to Expand Challenges of Arbitral Procedural Orders

By Daniel Harrison The recent case of Enterprise Insurance Company Plc v U-Drive Solutions (Gibraltar) Limited [1] illustrates the reluctance of courts to intervene in arbitrations despite the parties agreeing otherwise. The court dismissed an attack on two procedural orders pursuant to sections 68 and 69 of the Arbitration Act 1996 (Act) because there was … Continue Reading

The Competition Appeal Tribunal Hands Down its Highest Ever Damages Award in a Flurry of Firsts

By Hayley Pizzey The Competition Appeal Tribunal (CAT) has ordered MasterCard Incorporated (MasterCard) and others to pay £68.6 million in damages to Sainsbury’s Supermarkets Ltd (Sainsbury’s). The CAT held that MasterCard restricted competition by setting UK Multilateral Interchange Fees (MIFs) between December 2006 and December 2015 (the ‘relevant period’). This judgment represents the largest damages … Continue Reading

Looking Forward: Expedited Arbitration

By Robert Price The Stockholm Chamber of Commerce’s (SCC) revised draft Rules for Expedited Arbitration (the Expedited Rules) and the SCC’s draft Arbitration Rules (the Arbitration Rules) (together the Rules), due to come into force in January 2017, are a welcome innovation. Key provisions The Rules introduce provisions that aim to combat the longstanding criticisms … Continue Reading

Avoiding Defective Service in Arbitration

By Robert Price A recent High Court decision provides a timely reminder that parties to an arbitration agreement must take care to ensure that arbitration proceedings are properly served to avoid an award being set aside or refused enforcement due to defective service. In Sino Channel Asia Ltd v Dana Shipping and Trading PTE Singapore … Continue Reading
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