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Category Archives: Dispute Resolution

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

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Court Rules that Arbitrators Must Disclose Related or Overlapping Appointments

Arbitrators should disclose subsequent appointments to related arbitration proceedings, particularly if cases materially overlap. By Oliver E. Browne and Robert Price In the Halliburton v Chubb ruling, the Court of Appeal held that an arbitrator who did not disclose subsequent appointments to related arbitration proceedings should have disclosed those subsequent appointments both as a matter … Continue Reading

Is Good Faith a Bad Choice Under English Law?

By Oliver Browne Although there remains no widely accepted definition of good faith under English law, and English law has committed itself to no overriding principle of good faith, English law has developed piecemeal solutions in response to demonstrated problems of unfairness. The variety of these solutions, and the pace with which they are being … Continue Reading

High Court Decision in Norske Skog: Puh! (Norwegian for Phew!)

Ruling confirms majority noteholder should not be disenfranchised from voting By Simon J. Baskerville, Sophie J. Lamb QC, Bradley J. Weyland, and Eleanor M. Scogings The English High Court held that it had jurisdiction in a cross-border dispute involving the Norske Skog group (Norske Skog), and confirmed that a majority noteholder did not “control” the … Continue Reading

English High Court Applies New “Range of Factors” Test to Defence of Illegality

New “range of factors” test suggests broad use in future civil matters and fairer, more nuanced outcomes. By Daniel Smith and Alanna Andrew The High Court has applied the new fact-sensitive “range of factors” test in Harb v Aziz[i] to determine whether a defendant to a civil claim can rely on the claimant’s wrongdoing to … Continue Reading

Jukes: English Appellate Decision on Litigation Privilege in Internal Investigations

By Stuart Alford QC, Daniel Smith and Clare Nida The English Court of Appeal provides further guidance, approving ENRC, on when litigation privilege will not apply to information gathering materials. The English Court of Appeal (Criminal Division) has ruled that litigation privilege does not apply to a statement an employee makes to his employer’s solicitors … Continue Reading

Bilta v. RBS: When Will Litigation Privilege Apply to Information Gathering in Internal Investigations

High Court decision provides practical lessons for companies conducting investigations. By Stuart Alford QC, Daniel Smith and Clare Nida The English High Court has reconfirmed that litigation privilege can apply to information gathering in internal investigations. Specifically, lawyers must have engaged in the information gathering for the dominant purpose of conducting litigation, and this can include … Continue Reading

Parties Must Take Care to Avoid Risk of Defective Service in Arbitration

By Robert Price and Eleanor Scogings Two recent English court decisions provide useful reminders that parties to arbitration agreements must take care to properly serve arbitration proceedings on the other party. In doing so, parties will avoid the risk of the court setting aside an award on the grounds that service was defective and that the … Continue Reading

ICC Court Clarifies Summary Dismissal Procedure in Arbitration

By Charles Rae In a revised practice note, the ICC Court of Arbitration has provided guidance on the procedure for determining applications for summary dismissal of unmeritorious claims and defences in arbitrations conducted under the ICC Rules. The revisions are important because the ICC Rules do not otherwise contain a process for dismissing claims or … Continue Reading

UK Budgets for Fintech Growth

By Andrew Moyle and Stuart Davis The UK government’s 2017 Autumn Budget included some measures of particular interest for fintech firms, demonstrating the government’s continued commitment to making the UK a world-leading fintech hub. The government has provided only scant detail on these measures at present, but no doubt firms will be watching closely to … Continue Reading

High Court Ruling Helps Protect Confidentiality of Arbitral Awards

By Daniel Harrison The High Court recently held that a party was not free to disclose an arbitral award even though that award had already entered the public domain. Notably, the ruling may have significant implications for parties considering whether or not to resolve disputes through arbitration. Background: UMS Holdings Limited v Great Station Properties … Continue Reading

UK Supreme Court Redefines Criminal Dishonesty Test

By Stuart Alford QC, Daniel Smith and Clare Nida The UK Supreme Court has unanimously ruled that the criminal dishonesty test in R v Ghosh is wrong and that courts should no longer follow this test. The recent decision in Ivey v Genting Casinos clarifies that the test for dishonesty in all proceedings (criminal and … Continue Reading

No Serious Irregularity in Arbitral Award for Failure to Take Account of Evidence

By Oliver Browne, Daniel Harrison, and Eleanor Scogings The English High Court recently dismissed a challenge to an arbitral award, holding that the tribunal’s alleged failure to take account of evidence did not amount to a serious irregularity under section 68 of the Arbitration Act 1996 (the Act).[i] The Challenge Under Section 68 (Serious Irregularity) … Continue Reading

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
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