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Tag Archives: dispute resolution

What Rules Will Apply to Jurisdiction and the Enforcement of Judgments After Brexit? Part Two

Four recent developments highlight the benefit of arbitration clauses amidst uncertainty about choice of court clauses. By Oliver Browne and Tom Watret Introduction With the end of the Brexit transition period on 31 December 2020 fast approaching, four new important and interrelated developments have highlighted uncertainty about which courts will have jurisdiction in cross-border disputes … Continue Reading

‘Iniquity Exception’ Extends to Breaches of a Director’s Statutory Duty

English High Court holds that alleged breaches of a director’s statutory duties can engage the ‘iniquity exception’, which disapplies legal professional privilege under certain conditions. By Stuart Alford QC and George Schurr In Barrowfen Properties v Girish Dahyanhai Patel & Ors.,[i] the English High Court held that the ‘iniquity exception’ to legal professional privilege will … Continue Reading

The Singapore Mediation Convention: Will It Enhance Mediation’s Effectiveness? … in 30 Seconds

The Convention, which entered into force this month, should allow courts in certain jurisdictions to recognize and enforce settlement agreements directly. By Oliver E. Browne and Philip Clifford QC Settling a dispute via mediation is one of the most time- and cost-effective approaches a party can take to resolve contentious issues. Mediation — a confidential … Continue Reading

English Legal Advice Privilege Can Apply to Communications With Foreign Lawyers

High Court holds that English law legal advice privilege can extend to such communications regardless of whether or not the lawyers are in-house practitioners. By George Schurr In PJSC Tatneft v Gennady Bogolyubov & Ors.,[i] the English High Court held that legal advice privilege can apply to communications with foreign lawyers in certain circumstances. Specifically, … Continue Reading

UK Supreme Court Narrows Scope of “Reflective Loss” Principle

The decision overturns a series of cases deemed to have over-expanded a principle preventing shareholders from claiming against third parties for falls in a company’s value. By Oliver Middleton and Thomas F. Lane On 15 July 2020, the UK Supreme Court unanimously overturned a Court of Appeal decision that had barred a creditor of companies … Continue Reading

Enforcement of an Award Adjourned Against a Non-Party to an Arbitration Agreement

Parties should avoid uncertainties by stipulating the applicable law to the arbitration agreement. By Eleanor M. Scogings and Robert Price The decision in J (Lebanon) v. K (Kuwait)[i] provides a useful analysis of which law (i.e., the law of the arbitration agreement or the law of the seat) governs the issue of whether a non-party … Continue Reading

Fraud Unravels All – Even Post-Judgment

English Supreme Court rules that there is no reasonable diligence requirement barring a fresh action to set aside a judgment obtained by fraud. Oliver E. Browne and Alex Cox Introduction In Takhar v Gracefield Developments Limited and others [2019] UKSC 13, the English Supreme Court considered whether a party applying to set aside an earlier … Continue Reading

Sections 68 and 69 of the Arbitration Act 1996 Have Bite!

A rare example of the English High Court varying an arbitral award. By Oliver E. Browne and Eleanor M. Scogings In Dakshu Patel v. Kesha Patel [2019] EWHC 298 (Ch), the English High Court upheld an appeal under section 69 of the Arbitration Act 1996 (the Act) against an arbitral award. The court concluded that … Continue Reading

English High Court: Public Interest Outweighed Confidentiality of Arbitration

Non-parties are entitled to obtain documents related to an arbitration if the case falls within the “interests of justice” exception. By Eleanor M. Scogings In The Chartered Institute of Arbitrators v B, C and D,[1] the English High Court granted the Chartered Institute of Arbitrators (Institute) access to documents related to an arbitration for use … Continue Reading

English High Court Upholds Privilege Claim Over Client Instructions to Provide Confirmations

The decision clarifies how lawyer-client privilege applies in the context of transactions. By Daniel Smith and James Fagan The recent English High Court decision Raiffeisen Bank International AG v Asia Coal Energy Ventures Limited and Ashurst provides guidance on the application of legal advice privilege in a transaction context, confirming that confidential client instructions can … Continue Reading

Chinese Court Takes Pro-Arbitration Approach to Validity of International Arbitration Agreement

Parties must draft arbitration agreements with Chinese parties clearly and precisely to ensure validity and avoid unwanted litigation. By Oliver E. Browne and Isuru Devendra A Beijing court recently adopted a pro-arbitration approach in upholding the validity of an arbitration agreement designating a non-existent arbitral institution. While the decision reflects the increasingly pro-arbitration attitude of … Continue Reading

Arbitration Without an Express Arbitration Clause

Arbitral tribunal had jurisdiction despite the lack of an express arbitration clause. By Eleanor M. Scogings and Robert Price In Sonact Group Limited v Premuda Spa [2018] EWHC 3820, the English High Court confirmed that an arbitral tribunal had jurisdiction over a dispute arising from an informal settlement agreement — despite the fact that the … Continue Reading

English Court Provides Guidance for Commencing Proceedings on Foreign Defendants

The English Court has set aside permission to bring proceedings against foreign defendants based on non-disclosures and subsequent conduct. By Dan Smith and Duncan Graves The recent decision in Punjab National Bank (International) Limited v Ravi Srinivasan and others [2019] EWHC 89 (Ch) provides guidance on the proper conduct of an application for service out … Continue Reading

Service of Proceedings on a Foreign State Is Mandatory

An arbitration award cannot be enforced in England against a foreign State without serving the proceedings on that State through the diplomatic channels. By Robert Price In General Dynamics UK Ltd v Libya [2019] EWHC 64 (Comm), Males LJ, sitting in the Commercial Court, set aside parts of an order granting permission to enforce an … Continue Reading

English Court of Appeal Upholds an Extension of Time to Commence Arbitration

The Court allows an application to extend time for bringing arbitration proceedings under section 12(3) of the Arbitration Act 1996. By Robert Price and Eleanor Scogings In the recent case of Haven Insurance Company Limited v EUI Limited (T/A Elephant Insurance)[i], the English Court of Appeal dismissed an appeal against a High Court decision granting … Continue Reading

English Court of Appeal Clarifies Test for Determining Jurisdictional Challenges

Applicants challenging jurisdiction must satisfy a single three-limbed test, rather than establish a ‘good arguable case’ and ‘better of the argument’. By Oliver E. Browne and George Schurr The English Court of Appeal has clarified the correct test to be applied by the English courts when adjudicating a jurisdictional challenge. In the recent case of … Continue Reading

English High Court Confirms the Scope of Freezing Injunctions in Relation to Third-Party Assets

Third-party assets controlled (de facto or de jure) by the respondent are ordinarily outside the scope of a freezing injunction unless exceptional circumstances can be established. By Oliver E. Browne and George Schurr In the recent case of FM Capital Partners Ltd v Frédéric Marino, Aurélien Bessot, Yoshiki Ohmura, and Marit Sjovaag [2018] EWHC 2889 … Continue Reading

English Appellate Court Restricts Scope of Litigation Privilege

A recent ruling in West Ham v E20 has clarified the scope of litigation privilege and the circumstances in which courts will inspect documents over which privilege has been claimed. By Daniel Smith and Clare Nida In a significant decision, the English Court of Appeal has restricted the scope of litigation privilege in relation to … Continue Reading

SFO Update: Lisa Osofsky’s First 50 Days

New SFO Director reaffirms her intentions and priorities for the agency. By Stuart Alford QC, Nathan Seltzer, and Christopher Ting Fifty days have passed since Lisa Osofsky took over at the UK’s Serious Fraud Office (SFO), pledging to be a “different kind” of director. In her first days, Osofsky set out her priorities for the … Continue Reading

UK Serious Fraud Office Director Outlines Priorities in Keynote Speech

New director Lisa Osofsky confirms her focus on cross-border and corporate cooperation. By Stuart Alford QC, Nate Seltzer, and Clare Nida On 3 September 2018, in her first speech, after only one week as head of the UK’s Serious Fraud Office (SFO), Lisa Osofsky laid out her plans for the agency. Upon announcement of her appointment, … Continue Reading

English Court Issues Anti-Arbitration Injunction Restraining Lebanese Arbitration Proceedings

Judgment clarifies the exceptional circumstances in which anti-arbitration injunctions against foreign-seated arbitrations might be granted. By Oliver E. Browne and Robert Price In Sabbagh v Khoury, Justice Knowles in the High Court issued an anti-arbitration injunction to restrain arbitration proceedings commenced in Lebanon on the basis that, contrary to the Lebanese arbitral tribunal’s findings, the … Continue Reading

English Court Cannot Issue Anti-Suit Injunctions Restraining Other EU Court Proceedings

Judgement clarifies that the Brussels Recast Regulation does not reverse the West Tankers decision. By Oliver E. Browne and Robert Price In Nori Holdings v Bank Otkritie, Justice Males in the High Court issued an anti-suit injunction to restrain court proceedings commenced in Russia in breach of an arbitration clause, but refused to issue an … Continue Reading
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