Disputes over contractual interpretation find their way to the courts relatively frequently, leaving judges to unpick the wording of complex commercial agreements which will often have been negotiated in detail over many months. The courts will have to weigh up the natural meaning of the words in the contract after hearing arguments driven by the commercial implications of different interpretations for the parties involved, and what one might conclude after applying business common sense. The establishment of the Financial List is itself testament to the complexities encountered by the court in resolving financial markets disputes, and in these types of cases the exercise of contractual interpretation can involve more complexities than most.
Continue reading “Signature Litigation: Contractual interpretation – eyes on the Financial List”
‘As arbitration clauses are widespread in some sectors of economic activity, there has been a serious impediment to the development of the common law by the courts in the UK [though] the UK has not reached the stark example… in the United States, where mandatory arbitration clauses in contracts are removing whole classes of claim from the jurisdiction of the courts and undermining aspects of the law’s development,’ noted Lord Chief Justice Thomas in his 2016 Bailii lecture. As he tries to reverse the arbitration tide so the common law can continue to develop public precedents, others are still promoting arbitration as the best way forward.
Continue reading “Hardwicke: International commercial arbitration: security for costs and third-party funding”
In recent times, a lot has been said and written in favour of, or against, transparency in international commercial arbitration. The transparency discussion has thus far culminated in the promulgation of the UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration and the new policy adopted by the International Chamber of Commerce (ICC) International Court of Arbitration to publish certain information on arbitrators also in commercial arbitration. According to the ICC Court website, the new policy is ‘aimed at enhancing the efficiency and transparency of arbitration proceedings’. Parties can opt out of this limited disclosure and can request the ICC Court publish additional information about their case. The new rules and policies promoting transparency in arbitration seem to be an attempt by the ICC Court and others to address the increased criticism launched against arbitration in recent times as being an inefficient means to resolve disputes.
Continue reading “Niederer Kraft & Frey: Does transparency make arbitration more efficient?”
In the opening speech for our 2016 litigation summit, Essex Court heavyweight Sir Bernard Eder reflects on the challenges facing the Commercial Court
The Commercial Court was established in 1895. At that stage, it was called the Commercial List, but I am not sure that matters. The reason why it was set up may be found in a brilliant article, which appears at the beginning of volume one of a set of law reports now no longer referred to, generally called Commercial Cases. That article is a must-read for anyone interested in modern commercial litigation. It is as if nothing has changed in 120 years.
Continue reading “The Commercial Litigation Summit 2016: The modern Commercial Court”
In a centrepiece debate, a group of heavyweight disputes veterans came together to discuss London’s much-lauded new finance court. Can it live up to expectations?
Even amid a packed programme at Legal Business‘s second annual Commercial Litigation Summit, the discussion on the newly-launched Financial List, the dedicated court backed by specialist judges and an innovative appeals track, was a highlight of the day.
Continue reading “The Commercial Litigation Summit 2016: Marked to market”
In an unusual session, Legal Business united top M&A lawyers and litigators to forecast the next wave of disputes to come when the deal cycle turns
It is a received wisdom of the legal industry that the economic cycle inevitably turns from market excesses and greed of the boom to the recrimination and disputes in the following recession. Yet in detail, the pattern – and corresponding risks – never play out the same way.
Continue reading “The Commercial Litigation Summit 2016: Dangerous territory”
Hong Kong remains Asia’s disputes capital but Singapore continues to close the gap with sustained investment attracting more litigation and arbitration work
For so long the epicentre of dispute resolution in Asia, events have conspired in recent history to undermine Hong Kong’s status. Two years ago, hundreds of members of the judiciary led a silent march in response to a diktat from Beijing challenging the judicial independence of Hong Kong from the mainland. It was the start of what became known as the ‘umbrella movement’ protests.
Continue reading “Duelling dragons – the Asia disputes outlook”
There is a price war raging in the London arbitration market that has led law firm leaders to question their commitment to the practice. Is the bubble bursting?
Arbitration was a practice area until recently seen by many managing partners as reliably high margin and partner-driven but for how much longer? According to a growing number of industry veterans, a softening arbitration market has resulted in a spate of lowballing, particularly in London. While the average legal cost of arbitration at the International Centre for Settlement of Investment Disputes (ICSID) stands at $4.5m, according to a 2014 report by Allen & Overy, some advisers are winning work by promising to run the entire case for less than a tenth of that sum. While such claims are anecdotal, the Lebanese government recently released pitch information that showed 11 international law firms had pitched between $350,000 and $1m to defend it against an ICSID claim. The lowest bidder, Paris-based Bredin Prat, won the instruction.
Continue reading “Everything must go – the London arbitration price war”
I have been incredibly fortunate in my career. I feel that very strongly.
I come from a long line of doctors. It wasn’t my calling. Around 14, I got interested in law. I’ve always been argumentative and difficult. I grew up in North West London. There’s German on both sides of my family. All refugees. Striving and ambitious.
Continue reading “Perspectives: Toby Landau QC”
My parents were professional ballroom dancers. My father managed the Arthur Murray studios on 5th Avenue. They met in the office and had a secret relationship. One day they got on the subway down to City Hall and got married on their lunch hour. Have you heard the saying: ‘The cobbler’s son goes shoeless?’ Well, the dancing instructor’s son went without dancing ability!
Continue reading “Perspectives: Robert Khuzami”