Private client analysis: The Court of Protection held that the location of brain stem death testing must be determined according to the patient’s best interests under the Mental Capacity Act 2005. Where a viable option exists for testing abroad, treating doctors must consider evidence of the patient’s wishes, cultural connections and religious beliefs. The court authorised transfer to Country W for testing despite medical risks, given compelling evidence of the patient’s connection there. While narrow in application due to the requirement for private funding, the judgment provides guidance on balancing clinical considerations against cultural and religious factors in determining testing location. Practical implications written by Victoria Butler-Cole KC of 39 Essex Chambers.

Once the parties have decided that mediation is appropriate for seeking to resolve their dispute, or the court has ordered the parties to consider mediation, the parties’ legal representatives will be responsible for setting up the mediation. This Practice Note considers how to find and choose a mediator. A mediator will usually be selected with the consent of all parties, but where the parties cannot agree on the appointment of the mediator, they can be selected by a neutral third party such as an organisation which provides alternative dispute resolution (ADR) services. Depending on the court in which your matter is proceeding, you may also need to be mindful of additional provisions—see: Court specific guidance. For information on the mediator’s fee and other costs of a mediation, see Practice Note: Mediation costs—liability and recovery. For general information on the lawyer’s role in setting up a mediation, see Practice Note: Organising a mediation. Choosing a mediator—provision in the dispute resolution clause If the dispute relates to a contract, the contract may contain a dispute resolution clause which

This Flowchart illustrates the issues to be considered when choosing a method for termination of a commercial business-to-business (B2B) contract. It covers rights to terminate at common law for repudiatory breach and contractual rights to terminate, contract breach and no-fault termination scenarios. It is important to remember that rights to terminate a contract may arise at common law (for example, in the event of repudiatory breach) and under the express terms of the contract. Where an agreement is silent as to contract

Due to Austria’s geographical location and political neutrality, the country’s reputation for resolving international commercial disputes is traditionally strong. Accordingly, Austria can be considered one of the major centres for arbitral proceedings in Europe. This Practice Note considers information relevant for those considering Austria as a legal seat of arbitration. For more information on the arbitral seat, see Practice Notes: The seat of the arbitration and Choosing the seat of arbitration. Why Austria? • political neutrality • modern and well-developed arbitration law (a UNCITRAL Model Law country) • sophisticated international administering institution (Vienna International Arbitral Centre (VIAC)) • arbitration-friendly courts • proceedings to set-aside an arbitral award are to be decided by the Supreme Court as first and only instance • very active arbitration community • strong ties with Central and Eastern Europe as well South Eastern Europe, as well as increased ties with China The legal environment Austrian arbitration law forms part of the Austrian Code of Civil Procedure (sections 577

This Practice Note should be read in conjunction with: • Practice Notes: Expert evidence—general considerations, Applying for permission to adduce expert evidence, Instructing an expert, Instructing an expert under the Guidance for the instruction of experts in civil claims and Changing an expert witness • Checklist—letter of instruction to expert Duty of the solicitor When instructing experts you are expected to have regard to: • all relevant CPR Rules and Practice Directions • the Guidance for the instruction of experts in civil claims ('the Guidance') which came into effect on 1 December 2014, replacing a previous protocol for instructing experts • Practice Direction Pre-Action Conduct and Protocols Practical tip: you may wish to provide copies of these provisions to your expert to ensure they understand their duties. This may be particularly important if they are later cross-examined on their understanding. Under the Guidance an expert is required to confirm, in their report, that they understand, have complied with and will continue to comply with their overriding duty to the court and that

FORTHCOMING CHANGE: Further to the Government's response to the Ministry of Justice’s and Office of the Public Guardian (OPG)’s consultation Modernising Lasting Powers of Attorney, the Powers of Attorney Bill received Royal Assent on 18 September 2023, becoming the Powers of Attorney Act 2023 (PAA 2023). Most provisions of the Act are not yet in force, pending secondary legislation. When it does come into force, PAA 2023 will introduce changes to the Mental Capacity Act 2005 (MCA 2005) to create a more modern lasting power of attorney (LPA) service. The changes will include: (i) introducing regulations to allow those involved in making an LPA to select whether to sign the LPA digitally or on paper; (ii) removing the ability for attorneys to register an LPA so that only the donor will be permitted to register; (iii) introducing regulations governing identification verification requirements in relation to registration applications; (iv) providing for a single route for registration objections to the OPG and widening the group of people who can lodge an objection to

Although the Court of Protection (the court) can make a one-off order in respect of a person who lacks capacity, this is not always the best solution. When it is not, the court can order that a deputy be appointed to deal with the issue in question or to act on an ongoing basis, particularly if the incapacity is likely to continue into the future. The power of the court to appoint a deputy is contained in section 16 of the Mental Capacity Act 2005 (MCA 2005). The appointment of deputies for health and welfare is much less common than the appointment of deputies for property and financial affairs as there is adequate protection in MCA 2005, ss 5 and 6 to deal with most everyday health and welfare decisions. The factors the court will consider when deciding when it is appropriate to appoint a health and welfare deputy are set out below. When will it be appropriate to appoint a health and welfare deputy? The circumstances in which it will be appropriate to appoint a health and

This Practice Note identifies the factors to consider when choosing which form of procurement to use for a construction project. It looks at factors relating to time (both the time available before work starts and the duration of the project), the nature and scope of the works, quality control and cost certainty. In certain situations, the choice of procurement or form of contract may be determined by external factors such as the funding arrangements or a developer's company policy to always use the same form of procurement. Alternatively an architect may have decided on a particular method based on the nature and complexity of a project. However, where a choice is still to be made, the decision needs to be made carefully and with proper consideration given to the various factors. It is important to note that the form of contract cannot be settled until the method of procurement and type of contract has been established. The remainder of this Practice Note lists the issues which a developer and its professional team should consider

The choice of the seat or legal place of the arbitration is one of the most important matters to be considered when drafting an international arbitration agreement as the seat is the juridical (legal) domicile of the arbitration. For more information on the importance of the arbitral seat and how it is determined, see Practice Note: The seat of the arbitration. Relevant criteria to be considered by parties and practitioners when choosing a seat of arbitration, and questions to be asked relating to them, are set out in the table below, although the appropriate seat for a particular arbitration agreement within a particular contract will, of course, be informed by the circumstances of the case. By way of example, Debevoise & Plimpton set out their top five seats generally recommended in their 2018 publication, Debevoise International Arbitration Clause Handbook, which are (in alphabetical order): Hong Kong, London, New York, Paris and Singapore. The Queen Mary University of London international arbitration surveys also indicate which seats are considered popular or preferred among respondents. In the

Appointing the right arbitral tribunal is key to the success of the arbitration in both administrative and legal terms. Those involved in the appointment/nomination of the tribunal should take this stage of proceedings seriously to ensure that the correct people are appointed. In-house counsel are likely to play a role in this process—see Practice Note: The role of in-house counsel in international arbitration. The relevance of the arbitration agreement The first step is to check what provisions the arbitration agreement makes (if any) for the appointment of the tribunal: • what does your arbitration agreement require? Are there specific requirements as to the qualifications, skill set, language, level of experience or importantly the nationality of your arbitrator(s)? • does the choice of seat or legal place of the arbitration impact on this (eg requirement to be a lawyer, or a national of a certain jurisdiction)? • provisions of any relevant arbitration rules—if the arbitration agreement incorporates a set of arbitration rules then those rules will usually determine how the tribunal will be appointed and the timescale for doing so.

Restructuring & Insolvency analysis: The water industry in the UK is constantly under pressure from significant financial and regulatory controls. This article explores the current challenges facing the water industry and the potential solutions used to overcome the challenges, particularly, from an insolvency perspective. Written by Emma Gateaud, counsel, Chris Mo, associate, and Eloise Hood, trainee solicitor, at Freshfields Bruckhaus Deringer LLP.

A right to something such as a payment of a debt or other contractual right that can be recovered through legal action