GLOSSARY
International arbitration definition
What does International arbitration mean?
Generally, arbitration with features relating to two or more states. For example, an arbitration seated in London between an English company and a Singapore company concerning a construction project in London (or elsewhere) will generally be considered an international arbitration.
View the related practice notes about International arbitration
Dispute resolution—Singapore—Q&A guide [Archived, 2022 edition]
Dispute resolution—Singapore—Q&A guide [Archived, 2022 edition] This Practice Note contains a jurisdiction-specific Q&A guide to dispute resolution in Singapore published as part of the Lexology Getting the Deal Through series by Law Business Research (published: January 2022). Authors: Braddell Brothers LLP—Edmund Jerome Kronenburg; Angelia Thng 1. What is the structure of the civil court system? The judicial power of Singapore is vested in the Supreme Court and the state courts. The Supreme Court is a superior court of record and consists of the High Court and the Court of Appeal. As of 12 May 2021, the Supreme Court bench consists of 26 judges (including the Chief Justice, four Justices of the Court of Appeal, and three Judges of the Appellate Division), four judicial commissioners, three senior judges and 16 international judges. The chief justice, judges of appeal and judges of the High Court have tenure until the age of 65, unless further extended by approval of the president. Judicial commissioners are appointed on a short-term contract basis, but enjoy the same powers and immunities as a judge of the High Court during their term. The senior judges and international judges are appointed for a period of three years. With effect from 2 January 2021, the High Court was restructured into the General Division of the High Court and the Appellate Division of the High Court.The General Division of the High Court
Litigation funding—Luxembourg—Q&A guide
Litigation funding—Luxembourg—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to litigation funding in Luxembourg published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2022). Authors: Nivalion AG—Isabelle Berger 1. Is third-party litigation funding permitted? Is it commonly used? There are currently no specific rules concerning the financing of a dispute by a third party. Furthermore, the admissibility of third-party litigation funding has never been, as such, reviewed by the Luxembourg courts. However, recent practice shows that third-party litigation funding is in fact increasing in Luxembourg. 2. Are there limits on the fees and interest funders can charge? Due to the lack of legislative or regulatory provisions in the field of third-party funding, explicit limits on the fees and interest funders can charge do not exist. Indeed, the determination of fees and interest is subject to the parties' freedom of contract. However, French case law, to which Luxembourg judges often refer in contractual matters, considers that funders run the risk that courts could eventually reduce the contractually agreed funder's fee if the fee is considered excessive or disproportionate in comparison to the services rendered. 3. Are there any specific legislative or regulatory provisions applicable to third-party litigation funding? In Luxembourg, there are currently no specific regulatory or legislative provisions applicable to third-party funding. The general law of contracts therefore governs third-party funding agreements. Furthermore,
Litigation funding—France—Q&A guide
Litigation funding—France—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to litigation funding in France published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2022). Authors: Nivalion AG—Isabelle Berger 1. Is third-party litigation funding permitted? Is it commonly used? The legality of third-party litigation funding is well established in France. Nevertheless, the French market for third-party litigation funding is still comparatively small. Among other factors, this may be attributed to the fact that French law traditionally did not recognise class actions or punitive damages and that civil and commercial courts generally grant only limited cost awards for legal fees. However, recent practice shows that third-party litigation funding has increased in specific market segments, such as antitrust damages litigation or small mass consumer claims. In addition, the resort to third-party funding has grown significantly in the field of international arbitration over the past 10 years. Professional organisations support this evolution. The Paris Bar Council has explicitly endorsed the use of third-party funding, noting that third-party funding 'is favourable to the interest of litigants and attorneys of the Paris Bar, particularly in international arbitration' (Paris Bar Council, Resolution dated 21 February 2017, the Paris Bar Council Resolution or the Resolution). 2. Are there limits on the fees and interest funders can charge? There are no explicit limits on the fees and interest funders can charge. The determination of fees
Litigation funding—Sweden—Q&A guide
Litigation funding—Sweden—Q&A guide This Practice Note contains a jurisdiction-specific Q&A guide to litigation funding in Sweden published as part of the Lexology Getting the Deal Through series by Law Business Research (published: April 2022). Authors: Nivalion AG—Stefan Kirsten 1. Is third-party litigation funding permitted? Is it commonly used? Third-party funding (TPF) is not subject to regulation under Swedish law. Thus, the use of TPF is permitted. Although it is known that arbitral proceedings in Sweden from time to time have been funded by third parties, TPF is still considered a relatively new phenomenon in Sweden. Considering the confidential nature of arbitration, it is difficult to comment on how frequently TPF is used. However, the increase in the number of cases, internationally, that are funded by a third party, indicates that this is also the case in Sweden. The number and presence of international as well as local funders has increased on the Swedish market, indicating that the volume of funded disputes has increased as well. Considering that Stockholm is one of the world's leading venues for international arbitration, the potential market for TPF in Sweden is large. 2. Are there limits on the fees and interest funders can charge? There are no specific rules under Swedish law that impose restrictions on the fees and interest funders can charge for their services. 3. Are there any specific legislative or regulatory provisions applicable to
Interim measures in support of arbitration in Brazil
Interim measures in support of arbitration in Brazil Interim measures in Brazil are regulated by the Code of Civil Procedure (Federal Law No 13.105/2015 (the Code)), which sets out various types of available interim measures, each of them applicable to specific relief sought, with a general purpose to ensure the effectiveness of a final decision, either judicial or arbitral, and/or to secure assets or individuals. The current Code was enacted on 16 March 2015 and entered into force on March 2016. It changed and simplified the formal procedure to request interim measures, but it maintained the courts' entitlement to grant interim measures, even in support of arbitration. Also, the Brazilian Arbitration Act (BAA) (Federal Law No 9307/96) (the BAA was recently revised by the Federal Law No 13.129/2015). Among other changes, the new text of the BAA provides for clearer rules on interim measures in arbitration. The changes to the BAA were enacted on 26 May 2015 and entered in force 60 days therefrom. This note covers the current Code and revised BAA and differences they brought. Before the enactment of Federal Law No 13.129 in May 2015, the Brazilian Arbitration Act (Federal Law No 9307/96 (the BAA)), which regulates arbitration in Brazil, did not provide clear rules regarding the interim measures in support of arbitration save for one provision stating the courts’ assistance may be sought
ICDR (2021)—the tribunal—appointment, challenges and powers
ICDR (2021)—the tribunal—appointment, challenges and powers CORONAVIRUS (COVID-19): Many arbitral organisations have responded to the coronavirus pandemic with practical guidance and/or changes to their usual procedures and ways of working. For information on how this content and relevant arbitration proceedings may be impacted, see Practice Note: Arbitral organisations and coronavirus (COVID-19)—practical impact. For additional information, see: Coronavirus (COVID-19) and arbitration—overview. This Practice Note considers the role of the arbitral tribunal under the International Dispute Resolution Procedures (Including Mediation and Arbitration Rules) (the International Rules), amended and effective 1 March 2021. In particular, this Practice Note provides guidance on the appointment of the tribunal, challenges to arbitrators, and tribunal powers pursuant to the International Rules. For an introduction to the International Rules, and information on how to commence and respond to ICDR arbitration proceedings, see Practice Note: ICDR (2021)—introduction to the institution—commencing arbitration and responding to arbitration. For guidance on arbitrating under previous editions of the International Rules, see: ICDR arbitration—overview. For guidance on the American Arbitration Association® (AAA), see: AAA arbitration—overview. Appointment of arbitrators The parties may mutually agree upon any procedure for appointing arbitrators and inform the ICDR (ie the Administrator) of that procedure (ICDR, art 13(1)). If, within 45 days of the commencement of the arbitration, all parties have not mutually agreed on a procedure for appointing the
Arbitration in Bahrain—Getting the Deal Through guide [Archived]
Arbitration in Bahrain—Getting the Deal Through guide [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. Arbitration in Bahrain The Getting the Deal Through (GtDT) guide for Bahrain is presented in Q&A format. The questions are set out below. The 2015 guide (which is the most recent version) can be accessed here: This guide provides an introduction to arbitration in Bahrain covering the following topics: • laws and institutions, including: ◦ is your country a contracting state to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards? Since when has the Convention been in force? Were any declarations or notifications made under articles I, X and XI of the Convention? What other multilateral conventions relating to international commercial and investment arbitration is your country a party to? ◦ do bilateral investment treaties exist with other countries? ◦ what are the primary domestic sources of law relating to domestic and foreign arbitral proceedings, and recognition and enforcement of awards? ◦ is your domestic arbitration law based on the UNCITRAL Model Law? What are the major differences between your domestic arbitration law and the UNCITRAL Model Law? ◦ what are the mandatory domestic arbitration law provisions on procedure from which parties may not deviate? ◦ is there any rule in your domestic arbitration law that provides the arbitral tribunal with guidance as to which substantive law to apply to the
Comparing international investment arbitration rules
Comparing international investment arbitration rules Investment treaty arbitrations may be brought under the rules of many different institutions or ad hoc arbitration rules. Each institution or body has its own unique rules and associated collection of risks and benefits. The table below provides a quick reference guide for the investment arbitration rules of several key institutions, ie the Singapore International Arbitration Centre (SIAC), the Arbitration Institute of the Stockholm Chamber of Commerce (SCC), the International Centre for Settlement of Investment Disputes (ICSID), the United Nations Commission on International Trade Law (UNCITRAL), China International Economic Trade Arbitration Commission (CIETAC) and the Permanent Court of Arbitration (PCA). This is a high-level guide intended to provide an overview of the similarities and differences among some of the major institutional and ad hoc international arbitration rules. It is not intended as a substitute for detailed legal advice as to the procedures and laws which govern a particular dispute. Advice should be sought when agreeing to arbitration and at an early stage of any dispute. Quick reference guide table SIAC Investment Arbitration Rules 2017 SCC Rules 2017 ICSID Convention 1966 and ICSID Arbitration Rules 2006 UNCITRAL Arbitration Rules 2013 CIETAC International Investment Arbitration Rules 2017 PCA Arbitration Rules 2012 Nature of rules Standalone rules specifically drafted for investment disputes and/or disputes involving at
Enforcing international arbitration awards in Washington, DC
Enforcing arbitration'>international arbitration awards in Washington, DC An introduction to the enforcement of arbitral awards in Washington, DC Parties to international arbitrations often choose Washington, DC, United States of America (USA or the US) as the seat of their proceedings. It has the advantage of being located in a jurisdiction, the US, which offers an arbitration-friendly legal regime and is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention). In particular, the United States Federal Arbitration Act (FAA) establishes a ‘federal policy favoring arbitration’ and provides for restrained review of arbitral awards (Shearson/Am Exp, Inc v McMahon, 482 US 220, 226 (1987); AT&T Mobility LLC v Concepcion, 563 US 333, 345 (2011) (‘our cases place it beyond dispute that the FAA was designed to promote arbitration’)). In addition, Washington, DC is often the seat of investment arbitrations. Investment arbitration concerns the resolution of disputes between foreign investors and host States. An investor’s right to pursue an investment arbitration claim against a sovereign or sovereign entity is generally provided for in a bilateral or multilateral investment treaty (BIT or MIT). For example, according to the 2017 World Investment Report issued by the United Nations Conference on Trade and Development (UNCTAD), there were 3,324 known BITs or MITs in force at the end of 2016. These international legal instruments contain
Video-conferencing in international arbitration and mediation proceedings, Chapter 53 of International Commercial Arbitration Practice: 21st Century Perspectives (Updated) [Archived]
Video-conferencing in arbitration'>international arbitration and mediation proceedings, Chapter 53 of International Commercial Arbitration Practice: 21st Century Perspectives (Updated) [Archived] ARCHIVED: This Practice Note has been archived and is not maintained. Practice Note: Remote hearings in international arbitration—a practical guide may be useful for those considering this topic. This Practice Note contains an updated version of chapter 53 of ‘International Commercial Arbitration Practice: 21st Century Perspectives’ written by Paul E. Mason (copyright 2020 Matthew Bender & Company, Inc, a LexisNexis® company, all rights reserved). The author commented: with the onset of the coronavirus (COVID-19) pandemic in early 2020, video-conferencing has taken on new attention and importance for use in international arbitration proceedings as well as in mediations coming from disputes in international arbitration or elsewhere. The original material for this article comes from a chapter by the author on this subject which was based on his experience arranging and participating in the world’s first international commercial mediation conducted by video-conference in 2006. Section 1—introduction to video-conferencing in international arbitration and mediation cases This article explores the use of video-conferencing in international arbitration and mediation. Its goal is to briefly introduce the technologies, discuss video-conferencing’s past and current status in international arbitration and mediation practice, provide an example of its usage from an early international arbitration-mediation in which the author of this article participated, provide updates on video technology and its
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Sales and marketing agency agreement for services—non-exclusive—pro-agent
Sales and marketing agency agreement for services—non-exclusive—pro-agent This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Principal); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Agent), (each of the Principal and the Agent being a party and together the Principal and the Agent are the parties). Background (A) The Principal supplies the Services (as defined below). (B) The Principal wishes to appoint the Agent as its non-exclusive agent in the Territory (as defined below) for the [marketing OR marketing and sale] of the Services on the terms of this Agreement. (C) The Agent has agreed to [market OR market and sell] the Services in the Territory on the Principal’s behalf on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Agreement • means the main body of this Agreement, its schedules and appendices, as each may be amended from time to time in accordance with their terms; Bribery Laws • means the Bribery Act 2010; Business Day • means a day other than
Sales and marketing agency agreement for services—exclusive—pro-principal
Sales and marketing agency agreement for services—exclusive—pro-principal This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Principal); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Agent), (each of the Principal and the Agent being a party and together the Principal and the Agent are the parties). Background (A) The Principal supplies the Services (as defined below). (B) The Principal wishes to appoint the Agent as its exclusive agent in the Territory (as defined below) for the [marketing OR marketing and sale] of the Services on the terms of this Agreement. (C) The Agent has agreed to [market OR market and sell] the Services in the Territory on the Principal’s behalf on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Agreement • means the main body of this Agreement, its schedules and appendices, as each may be amended from time to time in accordance with their terms; Bribery Laws • means the Bribery Act 2010 [and associated guidance published by the Secretary
MVNO agreement
MVNO agreement This Agreement is made on [insert date] Parties 1 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (Supplier); and 2 [insert name] a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at [insert address] (MVNO) (each of the Supplier and the MVNO being a party and together the Supplier and the MVNO are the parties). Background (A) The Supplier is a mobile network operator in the Territory. (B) The MVNO is a mobile virtual network operator in the Territory. (C) The Supplier has agreed to provide wholesale mobile electronic communications services to the MVNO for resale [on a pre-pay basis OR on a post-pay basis OR on a pre-pay and post-pay basis] in the Territory in accordance with the terms and conditions of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Account Manager • means the primary point of contact for each party as notified by each party to the other on or before the date of this Agreement (or in accordance with clause 20.3); Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Business Day • means a day other than a Saturday, Sunday or bank or public holiday in England; Charges • means any amounts that have been paid
Procedural order for a remote hearing in international arbitration
Procedural order for a remote hearing in arbitration'>international arbitration PROCEDURAL ORDER NO. [insert number] Having considered the parties’ submissions, the Tribunal orders as follows: 1 Hearing by video-conference 1.1 The [insert hearing description] (the Hearing) shall be conducted by video-conference, using [insert name of video-conferencing platform] as the video-conferencing platform (the Platform). The Tribunal considers that this is a reasonable alternative to an in-person hearing [eg, in light of the coronavirus (COVID-19) pandemic, lockdown measures, social distancing orders and travel limitations.] It will provide the parties with a fair and reasonable opportunity to be heard and allow the arbitration to proceed in accordance with [insert reference to any duties set out in the applicable rules of arbitration or under the arbitral law of the seat to conduct proceedings expeditiously, efficiently and without unnecessary delay]. 2 [Prior directions concerning the Hearing] 2.1 [This Procedural Order supersedes [insert references to any prior directions to the extent inconsistent with this Procedural Order or no longer applicable].] 2.2 [[Insert references to any provisions of prior Procedural Orders or other directions by the Tribunal concerning the Hearing that are to continue to apply] shall continue to apply.] 3 Hosting [and technical support] 3.1 [[The institutional case manager/tribunal secretary/case monitor/other person] shall act as the host for the Hearing (the Host). The Host shall liaise with the Tribunal and parties to ensure that the Hearing is held in accordance
Agile software development agreement
Agile software agreement'>development agreement This Agreement is made on [date] Parties 1 [insert name of supplier] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Supplier); and 2 [insert name of customer] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Customer) (each of the Supplier and the Customer being a party and together the Supplier and the Customer are the parties). Background (A) The Customer [insert information about the business of the Customer] wishes to [insert objectives of the project]. (B) The Supplier is a provider of [insert business of the Supplier] and has experience in [insert services being procured]. (C) The parties have agreed to contract with each other in accordance with the terms and conditions set out below. THE PARTIES AGREE: 1 Definitions 1.1 In this Agreement: Acceptance Criteria • in respect of an Iteration means criteria formulated by the Development Team that determine whether Software developed in respect of that Iteration is of satisfactory quality and, in respect of a Release, whether the Features are of satisfactory quality, in each case as approved by the relevant Product Owner; Acceptance Testing • means the testing of any Deliverables for conformance with the relevant Acceptance Criteria; Actual Cost • has the meaning given in paragraph 2.4.2 of Schedule 3; Adjustment Ratio • has the
Trade mark assignment—pro-assignor
Trade mark assignment—pro-assignor This Agreement is dated [insert date] Parties 1 [insert name] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Assignor); and 2 [insert name] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Assignee) (each of the Assignor and the Assignee being a party and together the Assignor and the Assignee are the parties). Background (A) The Assignor is the [registered] owner of certain trade marks. (B) The Assignee is [insert description of the Assignee’s background/background to assignment or relevant transaction]. (C) [On [insert date] the Assignor submitted an application to the [United Kingdom Intellectual Property Office OR European Union Intellectual Property Office] to register a proposed trade mark.] (D) The Assignor agrees to assign its rights in those marks [and in the application for the proposed trade mark] to the Assignee and the Assignee agrees to accept the assignment in accordance with the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Affiliate • in respect to any entity, means any other entity that directly or indirectly Controls, is Controlled by, or is under common Control with that entity; Business Day • means a day other than a Saturday, Sunday or public holiday[, on which clearing banks are open for non-automated commercial business in
Sales and marketing agency agreement for goods—non-exclusive—pro-principal
Sales and marketing agency agreement for goods—non-exclusive—pro-principal This Agreement is made on [date] Parties 1 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Principal); and 2 [insert name of party] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Agent), (each of the Principal and the Agent being a party and together the Principal and the Agent are the parties). Background (A) The Principal [manufactures OR manufactures and sells] the Products (as defined below). (B) The Principal wishes to appoint the Agent as its non-exclusive agent in the Territory (as defined below) for the [marketing OR marketing and sale] of the Products on the terms of this Agreement. (C) The Agent has agreed to [market OR market and sell] the Products in the Territory on the Principal’s behalf on the terms of this Agreement. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement, unless otherwise provided: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Agency Regulations • means the Commercial Agents (Council Directive) Regulations 1993, SI 1993/3053; Agreement • means the main body of this Agreement, its schedules and appendices, as each may be amended from time to time in accordance with
Services agreement—ongoing supply (with TUPE)—pro-supplier
Services agreement—ongoing supply (with TUPE)—pro-supplier STOP PRESS: The Retained Vertical Agreements Block Exemption, Retained Regulation (EU) No 330/2010 (UK VBER) expires on 31 May 2022. On 9 May 2022, the UK Government laid before Parliament The Competition Act 1998 (Vertical Agreements Block Exemption) Order 2022 (UK VABEO). The UK VABEO will replace the UK Retained VBER on 1 June 2022. See Practice Note: UK block exemptions revision—tracker. The EU Vertical Restraints Block Exemption, Regulation (EU) No 330/2010 (outgoing EU VBER) expires on 31 May 2022. On 10 May 2022, the European Commission adopted the EU Vertical Restraints Block Exemption, Regulation (EU) No [ref]/2022 (new EU VBER) and Vertical Guidelines that will replace the outgoing EU VBER on 1 June 2022. See Practice Note: EU block exemptions revision—tracker. This Precedent reflects the requirements of the outgoing block exemptions until 31 May 2022. It is under review and will be updated to reflect the requirements of the new block exemptions in due course. This Agreement is made on [date] Parties 1 [insert name of supplier] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is at] [insert address] (Supplier); and 2 [insert name of customer] [of OR a company incorporated in [England and Wales] under number [insert registered number] whose registered office is
Dubai International Arbitration Centre (DIAC) model arbitration clause and model submission agreement
The Dubai arbitration'>International Arbitration Centre (DIAC) model arbitration clause is as follows. • ‘Any dispute arising out of the formation, performance, interpretation, nullification, termination or invalidation of this contract or arising therefrom or related thereto in any manner whatsoever, shall be settled
IP evaluation and option agreement—pro-licensee
IP evaluation and option agreement—pro-licensee This Agreement is made on [insert date] Parties 1 [insert licensor name] [of OR a [company OR partnership OR limited liability partnership OR [incorporated OR constituted OR in [insert jurisdiction, eg England and Wales] whose registered number is [insert company or LLP number] and whose [registered office OR principal place of business OR is at OR [insert address] (Licensor); and 2 [insert licensee name] of OR a company OR partnership OR limited liability partnership] incorporated OR constituted] in [insert jurisdiction, eg England and Wales] whose registered number is [insert company or LLP number] and whose registered office OR principal place of business] is at] [insert address] (Licensee) (each of the Licensor and the Licensee being a party and together the Licensor and the Licensee are the parties). Background (A) The Licensor owns the Technology IP. (B) The Licensee has agreed to evaluate the Technology IP so that it can decide whether to take a licence of it according to the terms below. The parties agree: 1 Definitions and interpretation 1.1 In this Agreement: Affiliate • means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with, another entity; Commencement Date • means [the date of this Agreement OR [insert fixed date]]; Control • [has the meaning given to it in section 1124 of the Corporation Tax Act 2010
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In light of coronavirus (COVID-19), is arbitration preferable over litigation as a method of dispute resolution given the increased flexibility inherent in arbitration proceedings generally?
In light of coronavirus (COVID-19), is arbitration preferable over litigation as a method of dispute resolution given the increased flexibility inherent in arbitration proceedings generally? Clare Ambrose, Twenty Essex This is a ‘once in a generation’ challenge. We will see over the next months how the court system and the arbitration community respond. Arbitration is more flexible, and it is already common for directions to be made electronically, CMCs to be heard by telephone and disputes to be resolved by documents only. It is hoped that arbitration will be agile to meet the needs of parties. If so, and virtual hearings (or even partially virtual hearings) start to work well, then they will become an attractive feature. Corporations weathering this crisis will be mindful of resilience for the next one. Arbitration will be attractive if it is seen to work in times of crisis. If it becomes cheaper and more sustainable too then that must be a bonus. Hamish Lal, Akin Gump The tangible and significant impacts of coronavirus further support the notion that arbitration is preferable over litigation as a method of dispute resolution given the increased flexibility inherent in arbitration proceedings. The ability for the parties to consensually amend the Procedure and the Procedural Timetable should not be under-estimated. The parties can agree to drop certain steps (for example, document production) if a sorter process is
In an arbitration under the London Court of International Arbitration Rules 2014 (LCIA Rules 2014), how does a respondent learn of the date of commencement of the arbitration? Does that date correspond to the date on which the LCIA notifies the respondent of its receipt of the request for arbitration and of the registration fee?
In an arbitration under the London Court of International Arbitration Rules 2014 (LCIA Rules 2014), how does a respondent learn of the date of commencement of the arbitration? Does that date correspond to the date on which the LCIA notifies the respondent of its receipt of the request for arbitration and of the registration fee? The date of commencement of an arbitration under the London Court of International Arbitration Rules 2014 An arbitration in the London Court of International Arbitration (LCIA) is commenced by the claimant delivering the request for arbitration to the LCIA Registrar (the Registrar) (LCIA, Art 1). As this Q&A has identified, the date of commencement of an LCIA arbitration is the date of receipt of the request by the Registrar, subject to the actual receipt of the registration fee as provided by LCIA, Art 1.4. A respondent will learn of the date of the commencement from the LCIA secretariat. As a matter of practice, the LCIA secretariat will notify all parties simultaneously of the receipt of the request for arbitration and of the registration fee. If the fee is received later than the request, notification of its receipt will follow separately. This is confirmed in the LCIA Notes for Parties which states at para 27: ‘The LCIA will write to the parties to the arbitration within one working day of our receipt of a Request
When a planning committee refuses an application for planning permission and that refusal is subject to an appeal or judicial review, can the local planning authority settle either an appeal or a judicial review in advance and if so would any settlement need to be agreed with the planning committee or its chairman?
When a planning committee refuses an application for planning permission and that refusal is subject to an appeal or judicial review, can the local planning authority settle either an appeal or a judicial review in advance and if so would any settlement need to be agreed with the planning committee or its chairman? When a planning committee refuses an application for planning permission and that refusal is subject to an appeal or judicial review, the local planning authority (LPA) can settle an appeal or a judicial review, however, it will have to make a fresh determination. It cannot simply agree and recover jurisdiction, as the LPA is functus officio (ie cannot re-examine that decision). This principle is well established in international arbitration, and is accepted in many
Will the Malaysian courts recognise and enforce an award issued by an arbitral tribunal seated in Singapore, where the period for setting aside the award before the Singapore courts has not expired?
Will the Malaysian courts recognise and enforce an award issued by an arbitral tribunal seated in Singapore, where the period for setting aside the award before the Singapore courts has not expired? Malaysia is a party to the New York convention and will recognise and enforce an award provided that the award is final and binding. In Malaysia, section 38 of the Arbitration Act 2005 (AA 2005) gives recognition to arbitration awards made in an arbitration, either where the seat of arbitration is in Malaysia or where the award is issued from a foreign state. Such awards will be recognised by the Malaysian courts as being binding and enforceable in Malaysia and be entered as a judgment of the Malaysian courts, subject only to limited circumstances where such awards may be set aside, which includes where the award has not yet become binding on the parties or has been set aside or suspended by a court at the seat (AA 2005, s 39(a)(vii)). For more information, see Practice Note: Arbitration in Malaysia—Getting the Deal Through guide, and in particular Q44 of the
Can you apply for a European order for payment where the underlying contract includes an arbitration clause?
Can you apply for a European order for payment where the underlying contract includes an arbitration clause? European orders for payment (EOPs) were introduced through Regulation (EC) No 1896/2006 (the Regulation). EOPs are a means by which a claimant can seek payment from a defendant for an uncontested specific money claim without having to initiate court proceedings. The Regulation (EC) No 1896/2006 does not contain an express exception for arbitration unlike, for example, Brussels I (Regulation (EC) 44/2001) or the Brussels I (recast) (Regulation (EC)1215/2012). Article 2(1) of the Regulation provides that it applies to civil and commercial matters in cross-border cases, irrespective of the nature of the court or tribunal (note: tribunal is not defined, although court is). Certain exclusions are expressed, however arbitration is not expressed. It would therefore appear that EOPs may apply even where the underlying contract contains an arbitration clause. The procedure for an EOP in England and Wales is, in part, set out in CPR 78 and its practice direction,
Can I apply for an expedited SIAC arbitration if proceedings have already commenced?
Can I apply for an expedited SIAC arbitration if proceedings have already commenced? Applying for expedited SIAC arbitration If you have already started a SIAC arbitration on behalf of a client, you can apply for an expedited procedure under r 5 of the SIAC Rules as long as the tribunal has not yet been constituted. However, the expedited procedure will only be applied where: • the sum in dispute (aggregate of the claim, counterclaim and any set off) does not exceed the equivalent of S$ 5 million (approximately, £2.5 million), or • the parties agree, or • there is exceptional urgency Therefore, the question of whether you can apply for an expedited SIAC arbitration will depend upon whether the circumstances of your case satisfy any one of these three criteria. For more information, see Practice Note: SIAC (2013)—commencing arbitration [Archived]—Expedited procedure under rule 5. If you are not able to satisfy any of the criteria for the application of the expedited procedure, there
What are the CIETAC sub-commissions called now?
What are the CIETAC sub-commissions called now? The schism between CIETAC and its former and current sub-commissions has caused confusion for those who have provided for CIETAC arbitration in their arbitration agreements—see Practice Note: CIETAC—former sub-commissions [Archived]. This is a glossary of the various names/terms which may be of use: • CIETAC—China International Economic and Trade Arbitration Commission • Shanghai International Arbitration Centre (SHIAC)—the former CIETAC Shanghai sub-commission that broke away from CIETAC in 2012 and reconstituted as SHIAC, autonomous of CIETAC • Shenzhen Court of International Arbitration (SCIA)—the former CIETAC South China/Shenzen sub-commission that broke away from CIETAC in 2012 and reconstituted as SCIA, autonomous of CIETAC • CIETAC South China Sub-commission—this is also sometimes known as CIETAC Shenzhen. This was the name of the sub-commission that split from CIETAC in 2012 to form SCIA. After the split, CIETAC re-established a sub-commission under this name so, as of today, it is the name of CIETAC's South China (or Shenzhen) sub-commission. That said, recent court decisions have shown that where an arbitration agreement provided for arbitration by this sub-commission prior CIETAC's formation of its new sub-commission, they intended arbitration by the entity that is now SCIA, not the entity that now goes by this name—see news analyses: Beijing court backs SHIAC and SCIA and
Is it possible to refer a question of valuation, or determination of a fair price, to an arbitrator rather than an expert? Is there specific wording you suggest be included in an arbitration agreement to achieve this?
Is it possible to refer a question of valuation, or determination of a fair price, to an arbitrator rather than an expert? Is there specific wording you suggest be included in an arbitration agreement to achieve this? Is it possible to refer a question of valuation to an arbitrator? It is indeed possible to refer a question of valuation to arbitration. This approach is often taken, for example, in the context of gas price disputes. Many gas supply agreements will provide for a price review upon the occurrence of specified trigger events, and, in the event of a dispute arising out of that price review (eg whether or not a trigger event has occurred or indeed the level of the revised price), the gas supply agreement will often provide for arbitration as the method of dispute resolution. The gas supply agreement will usually include a clause (or set of clauses) that covers the price review process and which cross-refers, in the event of a dispute, to an arbitration clause contained elsewhere in the contract (although it is possible to include your arbitration agreement in the same clause(s) as your price review provisions). Have you considered other methods of dispute resolution? You may be interested in our Practice Note that compares arbitration with other forms of alternative dispute resolution (ADR): • Arbitration and ADR compared Of course,
How does a new arbitrator get their first appointment?
How does a new arbitrator get their first appointment? A common gripe at 'Young' Arbitration conferences is the difficulty of getting a first appointment as an arbitrator, do you think this is fair? It is a difficult question. While there is little empirical evidence on the subject, in Western Europe, the more precocious arbitrators I know seem to have seen their arbitrator career take off in the latter part of their thirties or in their early forties. Is that old? It is debatable… • On the one hand, you need to have the right skillset before you can be considered for appointment, and this, I think, requires suitable experience of arbitration as counsel, tribunal secretary or otherwise. You can acquire a good theoretical understanding of arbitration by taking a degree or diploma in arbitration like the ones we have been offering at Queen Mary University for the past thirty years, but ultimately there is no substitute for experience. • On the other hand, the statistics published by the leading arbitral institutions confirm that there are hundreds upon hundreds of relatively small international disputes referred to arbitration each year. Parties and institutions need to have access to a pool of qualified and reliable young arbitrators willing to give to these smaller disputes the time and attention they deserve. Therefore, the opportunities for appointment exist. What is perhaps difficult in the process
Which edition of the SIAC Arbitration Rules applies to my dispute?
Which edition of the SIAC Arbitration Rules applies to my dispute? On 1 August 2016, the 6th edition of the SIAC Rules was launched (2016 SIAC Rules), and applies to SIAC arbitration proceedings commenced on or after 1 August 2016, unless the parties agree otherwise (SIAC, rule 1.2). The meaning of 'commenced' pursuant to the 2016 SIAC Rules is discussed below. The previous, 5th edition of the SIAC Rules came into force on 1 April 2013 (2013 SIAC Rules), and applies to arbitrations commenced on or after that date, unless the parties agree otherwise (SIAC, rule 1.2). When a dispute arises between the parties, as a first step, it is important to examine the precise wording and scope of any applicable arbitration agreement. It is assumed for the purposes of this Q&A that the parties have agreed in writing to arbitrate pursuant to the SIAC Rules. Note: this Q&A does not address the position in respect of arbitrations commenced before 1 April 2013. In the event that this is relevant for your dispute, please consult the edition of the SIAC Rules applicable to your dispute. Commencing arbitration on or after 1 August 2016—which rules apply? If a party commences SIAC arbitration proceedings on or after 1 August 2016, the 2016 SIAC Rules will apply to the arbitration by default, unless the parties agree otherwise. Commencing arbitration on or after 1 April 2013 but
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Construction weekly highlights—23 June 2022
This week's edition of Construction weekly highlights includes a case in which the Court of Appeal held that statutory adjudication rights under the Housing Grants, Construction and Regeneration Act 1996 (HGCRA 1996) extended to a collateral warranty (Abbey Healthcare v Simply Construct), a case in which the Technology and Construction Court (TCC) decided that a claim for remedial work costs under a collateral warranty was not too remote (Orchard Plaza Management v Balfour Beatty Regional), a case in which the TCC declined to enforce an adjudicator’s decision in favour of a company subject to a Company Voluntary Arrangement (FTH v Varis Developments), analyses of the impacts of the Building Safety Act 2022 (BSA 2022) from an insurance and Scottish perspective, and the publication of the Government Commercial Function’s guide to the Procurement Bill.
Tribunal dismisses US$78m solar claim under intra-EU objection (Green Power Partners K/S and SCS Solar Don Benito APS v Spain)
Law360: An investor-state tribunal has dismissed a claim brought by renewable energy investors against Spain under an intra-EU jurisdictional objection, marking the first time that a tribunal has concluded that such a claim is barred with reference to several recent decisions from Court of Justice.
Dispute Resolution weekly highlights—23 June 2022
This week's edition of Dispute Resolution weekly highlights includes: analysis of a number of key DR developments and key judicial decisions including that of the Court of Appeal in Schofield v Smith (Rhino v Clyde & Co) (interpreting settlement agreements) and of the High Court in Axnoller v Brake (address for service and indemnity costs); dates for your diary; details of our most recently published content; and other information of general interest to dispute resolution practitioners.
Arbitration weekly highlights—23 June 2022
This week's edition of Arbitration weekly highlights includes: further coverage of a decision of the Commercial Court where it dismissed an appeal against an arbitral award as barred by res judicata; coverage of arbitration-related decisions from courts in Australia and the USA; and, investment treaty arbitration developments with the release of the final versions of the 2022 ICSID Rules and Regulations, and a decision on an ICSID annulment committee which rejected an application from Spain to annul an award along with coverage of Spain’s success in Stockholm dismissing jurisdiction to arbitrate an intra-EU member state dispute. All this, and more, in our weekly highlights.
USA—US Supreme Court refuse to review US$18bn award against Chevron (Al-Qarqani v Chevron)
Law360: The US Supreme Court refused to revive a dispute over an US$18bn arbitral award against Chevron for back rent, despite arguments from the heirs of a Saudi sheikh that the Ninth Circuit wrongly dismissed the case.
Requirements for seeking a subpoena from the court in support of an arbitration (Mountain View Productions LLC v Keri Lee Charters Pty Ltd)
Arbitration analysis: Similar to litigation proceedings, there may be instances in an arbitration where a party may require a non-party to the arbitration to produce documents or provide evidence at a hearing that is relevant to the subject matter of the dispute. This case reiterates the guiding principles for Australian courts to consider when deciding whether to grant a subpoena against a third party in support of an international arbitration. The court emphasised that although courts should not rubber stamp an arbitral tribunal's decision to grant a subpoena request, the conditions for granting a subpoena are not overly strict. What is required from the party requesting the subpoena is to be purposive with respect to the scope of the request. In this case, the court held that save for a few modifications with respect to the scope of the subpoena, the grant of such would be reasonable in the proceedings. Written by Jo Delaney, partner at HFW Australia and Nivedita Venkatraman, associate at HFW Australia.
US Supreme Court closes section 1782 discovery avenue to foreign arbitration traffic (ZF Automotive v Luxshare)
Arbitration analysis: The US Supreme Court held that 28 U.S.C. §1782 (section 1782) discovery is not available to foreign arbitration proceedings, whether private commercial or investment treaty arbitration. This is a seminal decision for the global arbitration community; it resolves a long-standing circuit split and removes the greater discovery powers seemingly allowed to foreign arbitrations under section 1782 than to domestic ones under the Federal Arbitration Act 1925 (FAA 1925). Clients are advised to discontinue any pending s 1782 applications in support of arbitration proceedings. Written by Rumen Cholakov, barrister at 3 Verulam Buildings Chambers.
Abuse of process in international arbitration
Arbitration analysis: In Union of India v Reliance Industries Ltd and another, the English Commercial Court considered whether an arbitral tribunal was right to reject a party’s submission on the basis that it should have been raised earlier in the arbitration. The court agreed with the tribunal that it was an abuse of process for the submission to be made, when it could have been made earlier, and the court also said that the tribunal’s decision was in accordance with its duty under the Arbitration Act 1996 (AA 1996) to avoid unnecessary delay or expense in an arbitration. The tribunal’s award of US$111m was upheld. Ben Giaretta, partner and co-head of international arbitration at Fox Williams considers the implications of this decision.
Arbitration weekly highlights—16 June 2022
This week's edition of Arbitration weekly highlights includes: initial coverage of a decision of the Commercial Court where it dismissed an appeal against an arbitral award as barred by res judicata; coverage of arbitration-related decisions from courts in Hong Kong, Singapore, and the USA; the appointment of a new Secretary General and a new Deputy Secretary General at the Hong Kong International Arbitration Centre (HKIAC); investment treaty arbitration developments with the publication of the United Nations Conference on Trade and Development (UNCTAD)’s World Investment Report 2022 which includes trends about national investment policy measures and international investment agreements, and the publication of a communication by the International Energy Charter following the 14th negotiation round on the modernisation of the Energy Charter Treaty (ECT). All this and more in our weekly highlights.
Do witness preparation techniques assist witnesses of fact in relation to a civil court's obligation to reach a just determination of the issues before it?
Dispute Resolution analysis: Giving evidence is invariably an unfamiliar and highly unusual experience. Cross-examination in particular bears little resemblance to the way in which human beings ordinarily communicate with one another, therefore it seems inconceivable that anyone would realistically believe that a witness should be sent in to give evidence without appropriate preparation. Jason Galbraith-Marten QC and Ed Williams QC, Co-Founders of UK’s leading witness preparation company, Assurety, analyse the effectiveness of witness preparation techniques.
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