This Practice Note discusses how expert witness evidence is used in international arbitration proceedings. It also considers the factors which impact how expert evidence is used and presented, including relevant arbitration rules (those of the ICC, LCIA and UNCITRAL are covered), the law of the seat of the proceedings, arbitrators’ backgrounds and any relevant applicable guidelines such as the IBA Rules on the Taking of Evidence in International Arbitration, the ICC Commission Report: Controlling Time and Costs in Arbitration, the UNCITRAL Notes on Organizing Arbitral Proceedings and the CPR 35 Guidance on the Instruction of Experts in Civil Claims. It also discusses rules on tribunal appointed experts and civil and common law differences in relation to expert evidence in arbitrations.
This Practice Note discusses the consequences of the doctrine of separability of the arbitration clause and considers how a court or tribunal, in England and Wales, determines the applicable law of the arbitration agreement in the absence of an express choice, whether in the clause itself or by incorporation of arbitration rules, and also looks at why this can be important.
This Practice Note considers the law governing the procedural aspects of the arbitration (also referred to as the curial law or lex arbitri) and how it is determined pursuant to the law of England and Wales. The Practice Note also considers whether the procedural law of the arbitration can be different from the law of the seat, and the effect of that distinction.
This Practice Note looks at several practical issues that arise during the instruction of experts in arbitration proceedings and considers steps that can be taken to ensure the use of the expert is effective and to keep costs to a minimum.
This Practice Note on damages as a remedy for a misrepresentation considers: the assessment of damages for both fraudulent and negligent misrepresentation under the Misrepresentation Act 1967, the date for assessing loss, a comparison with damages claims for breach of contract and negligent misstatement, practical considerations involved in assessing damages for misrepresentation (including dealing with hypothetical scenarios) and assessing damages awarded in lieu of rescission for misrepresentation.
This Practice Note considers the requirement for falsity in a misrepresentation claim, whether to plead fraudulent misrepresentation, negligent misrepresentation or innocent misrepresentation (ie was the false statement made innocently, negligently or fraudulently) and how to assess the merits of a misrepresentation claim.
This Practice Note on rescinding a contract for misrepresentation considers when, why and how to rescind and when bars to rescission may arise. Rescission is an equitable remedy available whether the misrepresentation was fraudulent, negligent or innocent, provided the statement made induced the representee to enter into the contract and it was false. Restitution must be possible for a contract to be rescinded, so matters such as impossibility of restitution due to affirmation, intervention of third party rights, delay etc are considered.
This Practice Note considers when parties can exclude or limit liability for misrepresentations, disclaimers for misrepresentations, with reference to the Misrepresentation Act 1967, s 3 and the reasonableness test under the Unfair Contract Terms Act 1977, s 11; considers also entire agreement and non-reliance clauses, and the concept of contractual estoppel.
This Practice Note considers the inducement (reliance) requirement in a misrepresentation claim, that the claimant must have been induced by the misrepresentation to enter into the contract, including the 'but for test' and requirement for the representor to have intended such reliance and inducement.
This Practice Note defines a misrepresentation claim, innocent, negligent or fraudulent, its governance under the Misrepresentation Act 1967, parties to a misrepresentation claim, comparison with similar claims of breach of contract, mistake, negligent misstatement and deceit.
This Practice Note considers a false statement of fact as one of the required elements of an actionable misrepresentation and covers express/implied representations, statements of intention, silence, materiality and the relevance of context in assessing such statements.
This Practice Note considers the substantive laws an arbitral tribunal seated in England and Wales should apply when making its substantive award and the rules it should follow to determine those laws where the parties have made no express choice. This topic may be referred to as: the applicable law of the arbitration or the governing law of the contract in international arbitration proceedings.
This is a Precedent letter of instruction to an expert in an arbitration (domestic or international) giving the information the expert needs to know about the parties and the arbitration, the commitment required from the expert and their availability to attend the hearing, what the report should contain and how it should be presented. The Precedent also sets out clearly the questions the expert is expected to answer in their report.
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