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Contributions by Simmons & Simmons

22

Ad hoc arbitration—an introduction to the key features of ad hoc arbitration
Practice notes

This Practice Note provides information about arbitrations that are conducted without the supervision of an arbitral institution, known as ad hoc arbitration. Arbitration under national legislation such as the Arbitration Act 1996, or under the UNCITRAL Rules, which are not administered by an institution or by another body, would fall into this category. The Practice Note sets out the advantages and disadvantages of choosing ad hoc arbitration and gives recommendations for the contents of an ad hoc arbitration clause that may be used as an arbitration agreement. This topic could also be referred to as: what is ad hoc arbitration?; unadministered arbitration; ad-hoc arbitration; adhoc arbitration; Ad Hoc arbitration; international ad hoc arbitration; international commercial ad hoc arbitration; and, ad hoc arbitration rules.

Anti-arbitration injunctions (England and Wales)
Practice notes

This Practice Note sets out the courts of England and Wales’ jurisdiction under section 37 of the Senior Courts Act 1981 and sections 44 and 72 of the Arbitration Act 1996 to grant an anti-arbitration injunction. The Practice Note covers the impact of the decision in West Tankers, the test that the court will apply in determining whether to grant such an injunction, and how to apply. The Practice Note also provides examples of when the court has and has not found the ‘exceptional circumstances’ required to order an anti-arbitration injunction.

Arbitration—an introduction to the key features of arbitration
Practice notes

This Practice Note provides an introduction to arbitration, focusing on its key features, including party autonomy, procedural flexibility in arbitration, choice of seat or forum and arbitrators (the tribunal), privity and confidentiality, separability of the arbitration agreement, and enforcement of awards. The Practice Note may also be referred to as an intro to arbitration, an overview of arbitration or what is arbitration? The Practice Note also sets out why these matters are important and gives links to more detailed information in each of the specific areas. While the Practice Note focuses on arbitration under the English Arbitration Act 1996 (arbitration under the AA 1996), the features of arbitration are more widely applicable in ad hoc and institutional arbitration as well as arbitration in other jurisdictions.

Comparing arbitration and ADR
Practice notes

This Practice Note compares and contrasts the key differences between arbitration (and international arbitration) and other forms of alternative dispute resolution (ADR), namely: mediation, early neutral evaluation (ENE), adjudication and expert determination. It considers the key areas of procedure, decision makers' powers, confidentiality, cost, interim measures, appeals and enforcement. This topic may also be referred to as an overview and comparison of ADR processes or procedures.

Comparing the arbitration rules of major arbitral institutions and those of UNCITRAL
Practice notes

This Practice Note compares the arbitration rules of major, key or leading arbitral institutions and organisations, namely: the International Court of Arbitration of the International Chamber of Commerce (ICC), the London Court of International Arbitration (LCIA), the United Nations Commission on International Trade Law (UNCITRAL), the American Arbitration Association (AAA), the China International Economic and Trade Arbitration Commission (CIETAC), the Swiss Chambers’ Arbitration Institution (SCAI) (Swiss Rules), the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), and the Hong Kong International Arbitration Centre (HKIAC). It compares the rules on the key issues of arbitral procedure, grounds for challenge/appeal, the award and costs. This includes considerations of jurisdiction, confidentiality, evidence, appointment of the tribunal and the availability of interim relief. This Practice Note also gives some guidance on which institution may be most appropriate in different circumstances. It also covers the important issue of dealing with costs under each set of rules. This may be referred to as: a comparison of major international arbitration institutions; a quick guide to the rules of the leading arbitral institutions and organisations; which arbitral institution and why; comparative chart of international arbitration rules; and, arbitral organisations and procedural rules.

Disputes over documentary evidence in arbitration
Practice notes

This Practice Note covers how the parties, the tribunal and the court (under section 43 of the Arbitration Act 1996 (AA 1996) for English-seated arbitrations) may be involved in the resolution of disputes over documentary evidence in arbitration. The Practice Note includes discussion of the guidance set out in the International Bar Association Rules on the Taking of Evidence in International Arbitration (IBA Rules). The Practice Note also covers the consequences of a party's failure to comply with an order to produce documents issued by the tribunal. In resolving a dispute over documentary evidence, parties often make use of a Redfern schedule and this Practice Note contains a link to an example or precedent for this purpose.

Electronic evidence in arbitration
Practice notes

This Practice Note sets out how electronic documents (electronically stored information (ESI)) are dealt with in international arbitration. The Practice Note covers how the major arbitration institutions deal with electronic evidence and gives advice on what parties to arbitration should consider regarding electronic documents from the outset of the arbitration process. This topic may be referred to as e-disclosure, e-discovery or e-document production in international arbitration proceedings.

Freezing injunctions in support of arbitration (England and Wales)
Practice notes

This Practice Note considers how a freezing injunction (or freezing order) can be used in support of arbitration in England and Wales. The Practice Note covers whether tribunals have the power to order injunctions, the court’s jurisdiction to do so, the test for obtaining an injunction and the process for application. The Practice Note also covers enforcement of a freezing injunction and the use of such relief to enforce a New York Convention award obtained abroad. This topic may be referred to as: applying and applications for freezing orders in support of international arbitration; the power or jurisdiction of the arbitral tribunal to issue, make or grant freezing order relief; and, freezing orders and the Arbitration Act 1996.

Giving witness evidence in arbitration
Practice notes

This Practice Note discusses the way in which witness evidence may be given in arbitration. The procedure is governed by the tribunal so is not uniform across all arbitrations. The Practice Note covers how evidence will usually be given, including the taking of oaths and cross-examination. It also gives practical tips about how to assist a witness before and during the arbitration. This Practice Note also covers the tribunal’s and court’s powers in the event of non-attendance of a witness.

Hong Kong—what disputes can be arbitrated?
Practice notes

This Practice Note considers arbitrability (ie what disputes can and cannot be resolved by arbitration) under the law of Hong Kong, including the Arbitration Ordinance (AO) (Cap 609). It sets out the importance of the arbitration agreement and ensuring that the agreement covers the dispute in question. It also considers the arbitrability of issues of criminality and illegality and whether consumer contracts can be arbitrated (pursuant to the Control of Exemption Clauses Ordinance (CECO) (Cap 71)).

ICC (2012)—evidence [Archived]
Practice notes

This Practice Note has been archived and is not maintained. This Practice Note considers the provisions under the 2012 International Chamber of Commerce (ICC) Rules of Arbitration (2012 ICC Rules) for dealing with documentary, witness and expert evidence (or testimony) in an ICC arbitration. It includes details of techniques used by the tribunal to manage evidence. It also considers the role of documentary evidence in relation to the Request for Arbitration and the Answer to the Request, as well as in relation to statements of case or memorials. This topic may be referred to as: disclosure, document production, requests to produce, discovery or fact-finding in ICC arbitration; factual evidence in ICC arbitration; and, rules of evidence in ICC arbitration.

ICC (2017)—evidence
Practice notes

This Practice Note considers the provisions under the 2017 International Chamber of Commerce (ICC) Rules of Arbitration (2017 ICC Rules) for dealing with documentary, witness and expert evidence (or testimony) in ICC arbitration proceedings. It includes details of techniques used by ICC tribunals to manage evidence. It also considers the role of documentary evidence in relation to the Request for Arbitration and the Answer to the Request, as well as in relation to statements of case or memorials. This topic may be referred to as: disclosure, document production, requests to produce, discovery or fact-finding in ICC arbitration; factual evidence in ICC arbitration; and, rules of evidence in ICC arbitration.

Institutional arbitration—an introduction to the key features of institutional arbitration
Practice notes

This Practice Note introduces what it means for a dispute to be referred to arbitration under a set of institutional arbitration rules (or institutional rules of arbitration). It gives details of the major international institutional arbitration bodies (also referred to as arbitral or arbitration institutions) and links to bespoke content about them. The Practice Note also discusses when institutional arbitration may be appropriate and sets out the advantages and disadvantages (pros and cons; merits and demerits) of arbitrating under international institutional rules. An institutional arbitration is one that is administered by an institution (and may be referred to as administered arbitration).

LCIA (1998)—evidence [Archived]
Practice notes

This Practice Note has been archived and is not maintained. This Practice Note covers the provisions made by the LCIA Rules for the management of documentary, witness and expert evidence in an LCIA arbitration including the documentary evidence that should be submitted with the Request for Arbitration.

Preparing witness evidence for arbitration
Practice notes

This Practice Note gives guidance on how to prepare witness evidence for arbitration proceedings (international and domestic). The Practice Note includes details of how a witness statement should be prepared, its format and key elements and what it should include, including details of the witness and a statement of truth. The Practice Note also covers the extent to which a witness can be prepared for the arbitration and how the approach differs across different legal jurisdictions.

Privilege in arbitration (England and Wales)
Practice notes

This Practice Note introduces the subject of privilege in arbitration proceedings and how it is dealt with under English law, the major institutional arbitration rules and the IBA Rules on the Taking of Evidence in International Arbitration. The Practice Note also provides practical tips about considering the issue of privilege throughout the course of the arbitral process.

The role of documentary evidence in arbitration
Practice notes

This Practice Note explains the importance of documentary evidence in arbitration (international and domestic) and highlights how it is treated differently compared with court litigation. It provides practical tips about introducing documentary evidence into arbitration proceedings, about how a tribunal may apply rules of evidence and how to deal with evidence in the hands of third parties to the arbitration. The Practice Note also refers to the significance of the IBA Rules on the Taking of Evidence in International Arbitration (the IBA Rules). This topic may also be referred to as: disclosure, discovery and document production in international arbitration; requests to produce in arbitration; rules of evidence in arbitration; disclosure under the Arbitration Act 1996 (AA 1996); and factual evidence in arbitration.

Third-party funding and arbitration
Practice notes

This Practice Note discusses third-party funding in international arbitration including a description of what amounts to third-party funding, how third-party funding works (including the role of the solicitor in advising on costs of disputes), the potential advantages for the funder and the client, and potential problems. The Practice Note also considers: evidence of third-party funding in (often confidential) commercial arbitration proceedings; the use of or activity of third-party funders in ICSID and other investment treaty arbitration proceedings; attitudes to third-party funding internationally; the ICCA-QMUL Task Force on Third-Party Funding; disclosure of third-party funding and security for costs; funding, disclosure, and conflicts of interest with arbitrators and arbitral tribunals; champerty, maintenance and control; the role of third-party funding when it comes to determining costs and enforcement. Litigation funders usually also offer funding for arbitration proceedings.

What disputes can be arbitrated? (England and Wales)
Practice notes

This Practice Note deals with the issue of arbitrability (ie what disputes can and cannot be resolved by arbitration) in England and Wales and considerations of enforcement in other countries. The Practice Note considers the importance of the arbitration agreement and ensuring that the agreement covers the dispute in question. The Practice Note also considers the arbitrability of issues of criminality and illegality and whether consumer contracts can be arbitrated.

Redfern schedule—arbitration
Precedents

This is a Precedent example Redfern schedule, which is a disclosure schedule used during the document production stage of (international) arbitration proceedings. It may also be referred to as discovery schedule. This document production schedule is used to record the exchange of document requests and requests for documentary evidence, party submissions, objections and responses, and tribunal or arbitrator responses (or decisions) on each document or category of document request. The specimen Redfern schedule assumes that the parties have adopted IBA Rules on the Taking of Evidence in International Arbitration and includes columns for document description, relevance and materiality, response, reply and the tribunal’s order.

Contributions by Simmons & Simmons Experts

9

CPS Guidelines for bribery and other criminal offences involving the media
Practice notes

This Practice Note explains the Crown Prosecution Service (CPS) Guidelines which apply when deciding whether to prosecute journalists or public officials following investigations for bribery or misconduct in public office. The guidelines were produced following the Leveson Inquiry in 2012 and Project Elvedon in 2014/15.

ISDA's EMIR protocols
Practice notes

This Practice Note explains the protocols which the International Swaps and Derivatives Association (ISDA) has published to assist derivatives counterparties in complying with Regulation (EU) 648/2012 (EMIR). It explains the issues addressed by the (i) ISDA 2013 EMIR NFC Representation Protocol, (ii) ISDA 2013 EMIR Portfolio Reconciliation, Dispute Resolution and Disclosure Protocol and (iii) ISDA 2013 Reporting Protocol and the advantages of adhering to them

Lifetime allowance protections—quick guide
Practice notes

This Practice Note provides a quick guide to the different forms of protection against the lifetime allowance (LTA) charge: fixed protection 2016 (FP 2016), individual protection 2016 (IP 2016), fixed protection 2014 (FP 2014), individual protection 2014 (IP 2014), fixed protection 2012 (FP 2012), primary protection and enhanced protection.

Summary of SFO's bribery guidance and policies
Practice notes

This Practice Note provides a summary of the Serious Fraud Office’s (SFO’s) policies on bribery including its policy on facilitation payments and gifts and hospitality (business expenditure), which sits alongside the SFO’s guidance on corporate self-reporting, its corporate co-operation guidance and its internal guidance on evaluating a corporate compliance programme to inform a decision to prosecute, the availability of an adequate procedures defence, the suitability of a DPA or sentencing exercises. This Practice Note summarises the SFO’s approach to compliance self-reporting and the approach where a company has relied on the previous policy, as well as the current policy on adequate procedures, facilitation payments and business expenditure.

The UK tax treatment of dual contracts [Archived]
Practice notes

ARCHIVED: This Practice Note has been archived and is not maintained. It examines the evolution of the tax treatment of dual contract arrangements, including HMRC’s evolving approach and how Finance Act 2014 essentially ended the regular use of these arrangements.

UK employment tax issues for cross-border employment
Practice notes

This Practice Note summarises the main UK tax issues that arise in different cross-border employment scenarios, namely when non-UK entities employ UK-based individuals, when UK entities employ non-UK individuals in the UK and when UK entities’ UK employees operate outside the UK. The tax implications of secondments and short-term business visitors (STBVs) to the UK are also detailed, and the issue of tax equalisation agreements is briefly considered. This Practice Note was produced in partnership with Darren Oswick of Simmons & Simmons LLP.

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