Arbitration analysis: In a decision dated 12 July 2023 published on 1 September 2023, the Swiss Federal Supreme Court (‘SFSC’) considered whether to refer parties to arbitration pursuant to Article II(3) of the New York Convention (‘NYC’) following the dismissal by the lower state courts of a jurisdictional objection based on an arbitration agreement which provided for institutional arbitration in Russia. Since the Russian arbitral institution referred to in the arbitration agreement had ceasefartd to exist, the central question was whether such agreement could be interpreted as providing for ad hoc arbitration in Moscow, as argued by the defendant. After examining the validity of the arbitration agreement under Russian law, the SFSC upheld the decision of the first instance and superior courts dismissing the arbitration defence. The SFSC first examined the question of the law applicable to the validity of the arbitration clause and held, in line with its earlier case law (SFSC 5C.215/1994 of 21 March 1995 cons 2b; cf also SFSC 4A_279/2010 of 25 October 2010 cons 2) that the question whether an arbitration agreement was "null and void, inoperative or incapable of being performed" within the meaning of Article II(3) of NYC had to be determined according to the national law chosen by the parties or the national law at the seat of arbitration, based on an application of Article V(1)(a) of NYC by analogy, and not on the basis of an autonomous interpretation of the NYC nor on the lex fori (in casu Swiss law). The SFSC indeed recalled that Article II(3) of NYC did not provide a substantive rule to assess the validity of the arbitration agreement and that its terms had to be interpreted in light of the law applicable to the arbitration agreement. In the case at hand, since the parties had chosen Moscow as the seat of the arbitration and had not made a choice of law for their arbitration agreement (the parties had agreed on Russian law as the substantive applicable law for the main contract only), the SFSC held that arbitration agreement had to be interpreted, and its validity assessed, in light of Russian law. The SFSC thus upheld the decision of the lower courts which had found, following a detailed analysis of the Russian law provisions and case law, that the arbitration agreement had to be interpreted according to its wording and that, based on such literal interpretation, it was clear that the parties had intended to resort to arbitration before a specific Russian arbitral institution (which however no longer existed) and not to ad hoc arbitration. The SFSC decision is a reminder of the importance of the seat of the arbitration as well as the substantive law (and case law) applicable to the arbitration agreement, since both factors will have significant consequences on the interpretation and validity of an arbitration agreement. Written by Alexandra Johnson, partner at Pestalozzi attorneys at Law and Mery Canella, associate at Pestalozzi Attorneys at Law.

The liability of a party for defects in their workmanship.

ARCHIVED: One of the difficulties for dispute resolution practitioners is keeping up to date with developments in case law that affect their practice area, or, which impact civil litigation procedure generally. This Practice Note summarises the key appeal cases in England and Wales (ie decisions of the Court of Appeal and Supreme Court, and, where relevant, some judgments of the Court of Justice of the European Union (Court of Justice), which we have reported on, allowing users ease of access in finding those decisions, see: Key civil litigation appeals in review—2021. This content can be browsed through the table of contents in the left margin. Alternatively, this tracker can be searched using [CTRL]+[F]. In addition, this Practice Note covers a selection of forthcoming appeals, where known, to assist in horizon scanning. This content is not intended to provide an exhaustive list of all appeals and/or key decisions relevant to dispute resolution practitioners. Note: in relation to anonymity of natural litigants where a reference for a preliminary ruling is made to the Court of

Until the implementation of the CA 2006, it was practice to refer to any general meeting of the company other than the AGM as an ‘extraordinary general meeting’ or EGM. The CA 2006 now only refers to a general meeting or an AGM. The label ‘extraordinary’ should only be used if required by the articles of association or by contract (such as a shareholders’ agreement).

A fixed annuity is a contract under which an insurer or pension provider promises to pay the annuitant a guaranteed income, usually for life or a specified term, calculated by reference to a fixed interest rate and not directly linked to investment performance. In legal practice it commonly arises in pensions, retirement planning, divorce/financial remedies, tax and estate planning.In the UK and Ireland, “fixed annuity” is a market and contractual description rather than a term with a single statutory definition. The detailed rights and obligations are governed by the annuity contract, pensions and insurance regulation, and general contract and consumer protection law.Key legal features include: an irrevocable purchase using a lump sum (for example from a defined contribution pension pot); a guaranteed minimum payment; options on single‑life or joint‑life cover; and possible guaranteed periods or escalation provisions. Once in payment, income is usually inflexible, which is significant for advising on suitability compared with drawdown or investment‑linked annuities.Usage and understanding of fixed annuities are broadly consistent across England and Wales, Scotland, Northern Ireland and Ireland, though the tax treatment, regulatory framework and pensions legislation differ between the UK and Irish jurisdictions.

In a lien, the creditor retains possession of goods previously delivered to him for some other purpose.

An agreement which is usually executed as a deed which is provided by the Construction Contractor, a construction sub-contractor or consultant (the promisor) as well as other parties in the PFI structure. The agreement provides a party (the beneficiary) who has an interest in the project but who is not a party to the original contract (eg the Authority or the Funder) with rights and remedies against the promisor if there is a problem with the services or works that have been provided by the promisor. Direct Agreements are very similar to Collateral Warranties but tend to have more detailed step-in and step-out rights which allow the beneficiary to step into the contract and take over the role of the original paying party in the event that there has been a default by the paying party.

An intended beneficiary is a person or entity that the parties to a legal arrangement mean to benefit, even though that person may not be a direct party to the contract, trust, will or other instrument. In practice, the term is used descriptively rather than as a defined statutory concept, and its precise legal effect depends on the context and jurisdiction. In contract law in England and Wales and Northern Ireland, questions about intended beneficiaries commonly arise under the Contracts (Rights of Third Parties) Act 1999 and analogous Northern Irish legislation, which confer enforceable rights on third parties where the contract expressly provides a benefit or purports to do so. In Ireland and Scotland, where the privity doctrine operates differently, the focus is on whether the parties’ intention to benefit a third party can be given effect through recognised mechanisms (for example, jus quaesitum tertio in Scots law or trust-style devices). In trust and succession law across all four jurisdictions, the test is generally whether the relevant instrument, properly construed, demonstrates an intention to confer a benefit on the person in question, which has consequences for enforceability of rights and standing to sue.

generally taken to refer to processes by which the generation, execution and enforcement of contractual obligations can be automated. One simple example of such a contract would be where a service is automatically stopped if the monthly subscription payment for that service is not received and registered on time’ (Lord Sales, Law and the Digital World, see: LNB News 27/04/2021 47—Lord Sales discusses challenges and benefits of digitalisation in law)

A party providing finance for a development, usually to a developer. A fund will usually review the terms of the building contracts and consultants' appointments before approving the investment, and is likely to influence the terms that the employer will accept in the building contract as it will want to protect its investment. The fund will require the issue of suitable collateral warranties from the contractor, consultants and some, if not all, sub-contractors (usually including step-in rights).

A schedule used for tendering where exact quantities are unknown or in a lump sum contract for the pricing of variations (where it is sometimes known as a Bill of Quantities). The tenderer gives a unit price for each item of work to be done, as described in the schedule. The unit price is then later multiplied by the actual quantity of such item determined by the remeasurement.

A type of derivative contract in which two parties agree to exchange the difference in value of a specified asset—eg currency, commodity, share or index—between the time the contract is opened and the time it is closed. The contract payout will be the difference in the price of the asset between these two times. Contracts for difference (CFDs) are similar to spread betting. CFDs may potentially be used for insider dealing and market manipulation and are therefore within the scope for the Market Abuse Regulation (EU) 596/2014. CFDs are a potential source of harm to retail investors. The Financial Conduct Authority (FCA) has imposed restrictions on the terms on which retail customers may enter into CFDs, including limits on a customer’s leverage, closing out a customer’s position when their funds fall to 50% of the margin needed to maintain their open positions on their CFD account, and a requirement that a client cannot lose more than the total funds in their CFD account.