Category: jurisdiction

The role of courts at the seat of arbitration – Law Society’s Gazette

Posted April 14th, 2021 in appeals, arbitration, case management, courts, jurisdiction, news by sally

‘It is well established in international commercial arbitration that the courts at the seat of arbitration will have supervisory jurisdiction over the arbitral proceedings, including hearing any challenges to the validity of the arbitral award. In the recent case of Minister of Finance (Incorporated) and 1 Malaysia Development Berhad v International Petroleum Investment Company and Aabar Investments PJS [2019] EWCA Civ 2080, the Court of Appeal (Sir Geoffrey Vos, chancellor of the High Court, Newey and Males LLJ) considered the issue of the courts’ powers in section 67 (challenging the award: substantive jurisdiction) and section 68 (challenging the award: serious irregularity) of the Arbitration Act 1996. This article focuses on the Court of Appeal’s important discussion of the role and functions of the court at the seat of arbitration and the impact this has on the law and practice of international commercial arbitration.’

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Law Society's Gazette, 12th April 2021

Source: www.lawgazette.co.uk

Deprivation of liberty and writs of habeas corpus – Local Government Lawyer

Posted April 1st, 2021 in autism, Court of Protection, deprivation of liberty safeguards, habeas corpus, jurisdiction, local government, news, school children by tracey

‘The Court of Protection has found that if a local authority does not apply for an order under the inherent jurisdiction, a parent can challenge the deprivation of liberty of their child in a specialist school by bringing a writ of habeas corpus. Joshua Swirsky analyses the ruling.’

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Local Government Lawyer, 1st April 2021

Source: www.localgovernmentlawyer.co.uk

Capacity to marry: NB v MI – Law & Religion UK

Posted March 29th, 2021 in families, family courts, Islam, islamic law, jurisdiction, marriage, news by tracey

‘In NB v MI [2021] EWHC 224 (Fam), Mostyn J set out a series of propositions on the legal nature of marriage in England & Wales.’

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Law & Religion UK, 26th March 2021

Source: lawandreligionuk.com

The jurisdictional challenge of internet regulation – OUP Blog

Posted March 24th, 2021 in data protection, international law, internet, jurisdiction, news, privacy by sally

‘We live in an increasingly automated, data-driven world where choices and decisions are made for us, and sometimes, against us, and in which we are being subconsciously manipulated, based on the data trail we leave behind us. As a consequence, increasingly humanity is losing agency in favour of globally operating technology and media companies, who are building empires based on big data, data mining, and artificial intelligence. Their wealth and power stems from targeted advertising, but increasingly rests on the wealth of data and profiles of individuals which can be packaged and re-packaged to be sold to the highest bidder. The data collected is not just used for advertising, but also for surveillance, differential pricing, influencing elections, targeted misinformation, predicting sentiments in investment markets, and selling the data for managing corporate risk to the detriment of the consumer, particularly in respect of credit and insurance. Likewise, cybercrime uses techniques of profiling and exploitation of the vulnerable. The global data-driven economy is wide-ranging, has many benefits, but equally, high risks.’

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OUP Blog, 24th March 2021

Source: blog.oup.com

Capitalisation of Child Maintenance: a very rare bird – Family Law Week

Posted March 22nd, 2021 in children, divorce, families, family courts, financial dispute resolution, financial provision, jurisdiction, news by tracey

‘Jo Carr-West, partner with Hunters, considers the implications of Mr Justice Mostyn’s recent judgment in AZ v FM.’

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Family Law Week, 16th March 2021

Source: www.familylawweek.co.uk

High Court: restructuring plans are ‘insolvency proceedings’ – OUT-LAW.com

Posted March 15th, 2021 in banking, brexit, company law, EC law, insolvency, jurisdiction, news by tracey

‘A recent High Court decision on the legal status of a UK statutory restructuring plan may impact on the way in which these proceedings are viewed by European courts post-Brexit.’

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OUT-LAW.com, 12th March 2021

Source: www.pinsentmasons.com

‘Not a mini-trial’: Supreme Court explains the correct approach in jurisdiction challenges – Littleton Chambers

Posted March 5th, 2021 in appeals, chambers articles, class actions, compensation, damages, duty of care, environmental health, environmental protection, jurisdiction, news, pollution, Supreme Court by sally

‘In The Spiliada [1987] AC 460, 465 Lord Templeman hoped that in jurisdiction disputes, “the judge will be allowed to study the evidence and refresh his memory of [the legal principles] in the quiet of his room without expense to the parties; that he will not be referred to other decisions on other facts; and that submissions will be measured in hours and not days.”‘

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Littleton Chambers, 3rd March 2021

Source: littletonchambers.com

The Effect of Foreign Jurisdiction Clauses on the Summary Enforcement of UK Adjudication Awards in Construction Contracts – 39 Essex Chambers

Posted February 25th, 2021 in chambers articles, construction industry, contracts, dispute resolution, enforcement, foreign jurisdictions, jurisdiction, news by sally

‘In the very interesting case of Motacus Constructions Ltd v Paolo Castelli SPA [2021] EWHC 356 (TCC), handed down on 22 February 2021 Judge Hodge QC determined:

“the apparently novel question whether the inclusion within a construction contracts for works in England of an exclusive jurisdiction clause in favour of a foreign court precludes the English court from entertaining proceedings for breach of the term implied by paragraph 23 of the Scheme [i.e. the Scheme for Construction Contracts] that the decision of an adjudicator binds the parties until the final determination of the dispute”.’

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39 Essex Chambers, 24th February 2021

Source: www.39essex.com

Capacity to consent to marriage, nullity and declarations under the inherent jurisdiction considered (NB v MI) – 1GC: Family Law

Posted February 25th, 2021 in consent, family courts, islamic law, jurisdiction, marriage, news by sally

‘The High Court was presented with an application for a declaration of nonrecognition of a Muslim marriage and a petition for nullity. The parties were married in Pakistan under Sharia law in June 2013. The applicant sought to argue, relying on two expert reports, that she did not have capacity to consent to marriage at the time. The court had to consider the issue of her capacity and then consider whether to make a declaration of non-recognition, or alternatively annul the marriage. The High Court refused the applications as it considered, on the facts of this case, the applicant had capacity to consent at the relevant time. The marriage was therefore valid under English law at its formation. Even if he had formed the opposite view, Mr Justice Mostyn made clear the court would still not have made a declaration under the court’s inherent jurisdiction as he was prevented by statute. Tahmina Rahman, barrister at 1GC Family, considers the case.’

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1GC: Family Law, 16th February 2021

Source: 1gc.com

Case Note: Município de Mariana & Ors v BHP Group plc, BHP Billiton plc and BHP Group Ltd – Blackstone Chambers

Posted February 18th, 2021 in abuse of process, choice of forum, class actions, compensation, EC law, enforcement, jurisdiction, news, pollution, stay of proceedings, striking out, water by sally

‘This note considers the judgment of Turner J in the Technology and Construction Court of 10 November 2020 in the case of Município de Mariana & Ors v BHP Group plc, BHP Billiton plc and BHP Group Ltd. In that judgment, Turner J struck out a claim by a very large group of claimants for compensation for damage caused by the 2015 collapse of the Fundão Dam in South Eastern Brazil, in which over 40 million cubic metres of tailings washed into the Doce River with massive human, environmental, and economic cost. This note presents the factual background of the case and sets out the most relevant features of the judgment for the practice of mass tort litigation in the multinational context.’

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Blackstone Chambers, 15th February 2021

Source: www.blackstonechambers.com

New Judgment: Okpabi & Ors v Royal Dutch Shell Plc & Anor [2021] UKSC 3 – UKSC Blog

Posted February 15th, 2021 in appeals, civil procedure rules, class actions, damages, duty of care, environmental health, environmental protection, health, jurisdiction, negligence, news, personal injuries, proportionality by sally

‘Royal Dutch Shell Plc (‘RDS’) is the parent company of the Shell group of companies, incorporated in the UK. The Shell Petroleum Company of Nigeria Limited (‘SPDC’, the other Respondent) is an exploration and production company incorporated in Nigeria and is a subsidiary of RDS.’

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UKSC Blog, 12th February 2021

Source: ukscblog.com

Principle of finality in litigation – Law Society’s Gazette

Posted January 19th, 2021 in delay, enforcement, judgments, jurisdiction, news, sanctions by sally

‘A judgment made in open court takes effect when it is made and not when it is subsequently sealed. The lapse of time between the making of an order in open court and sealing it may be taken by the unsuccessful party as an opportunity to rehearse legal arguments or to produce new evidence to persuade the court to revisit and amend its order before it is sealed.’

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Law Society's Gazette, 18th January 2021

Source: www.lawgazette.co.uk

HMRC v IGE USA Investments Ltd [2020] EWHC 1716 (Ch) – the role of statements of case and Lists of Issues for Disclosure in applications to vary an order for Extended Disclosure under the Disclosure Pilot Scheme – Hardwicke Chambers

Posted January 12th, 2021 in case management, civil procedure rules, disclosure, jurisdiction, misrepresentation, news, pilot schemes by sally

‘Whilst Standard Disclosure (under CPR 31) remains in force, the Disclosure Pilot has provided a more flexible menu of disclosure options for the majority of cases in the Business and Property Courts. There is a degree of overlap between CPR 31 and the Pilot Scheme, but there are some significant divergences. One of those is paragraph 18 of the Pilot Scheme, which allows variations of pre-existing orders for Extended Disclosure. The scope of the court’s jurisdiction under paragraph 18 of the Disclosure Pilot was central to this appeal.’

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Hardwicke Chambers, 8th January 2021

Source: hardwicke.co.uk

Developments following Ground Developments… or not – Practical Law: Construction Blog

Posted December 15th, 2020 in construction industry, dispute resolution, enforcement, jurisdiction, news, summary judgments by tracey

‘Writing on this blog almost exactly four years ago, David Pliener noted a potentially interesting change in the TCC’s approach to enforcing adjudicators’ decisions. In the case of Ground Developments Ltd v FCC Construction, Fraser J signalled that, perhaps, a claimant applying for summary judgment to enforce an adjudicator’s decision might not need to meet the summary judgment test after all. Now that Ground Developments has had time to mature, it might be a good time to check in and see how things have gone since. Has Fraser J’s judgment heralded a brave new world?’

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Practical Law: Construction Blog, 15th December 2020

Source: constructionblog.practicallaw.com

The law applicable to an arbitration agreement: Part 1 of our analysis of Enka v OOO Insurance – Hardwicke Chambers

Posted December 4th, 2020 in accidents, appeals, arbitration, chambers articles, contracts, fire, foreign jurisdictions, insurance, jurisdiction, news, Russia, Supreme Court by sally

‘In the eagerly awaited judgment in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38, the Supreme Court finally settled an important issue in the law of arbitration that has long divided the authorities and commentary: in the absence of a choice by the parties, where the law applicable to the main contract differs from that of the seat, it is the law of the seat that governs the validity and scope of the arbitration agreement. Our Overview on the decision sets out the key holdings; Part I (below) of our commentary on the decision examines the reasoning of the Majority in greater depth.’

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Hardwicke Chambers, 2nd December 2020

Source: hardwicke.co.uk

High Court strikes out group action as an abuse of process: Municipo de Mariana v BHP Group PLC [2020] EWHC 2930 (TCC) – Henderson Chambers

Posted December 1st, 2020 in abuse of process, choice of forum, class actions, compensation, EC law, enforcement, jurisdiction, news, pollution, stay of proceedings, striking out, water by sally

‘The High Court has struck out claims brought by more than 200,000 Brazilian claimants in the English courts against British and Australian holding companies in relation to the collapse of the Fundao Dam in Brazil in 2015. In Municipo de Mariana v BHP Group PLC ([2020] EWHC 2930 (TCC)) Turner J found the claims to be an abuse of process and also considered that, in the alternative, the proceedings should be stayed under the Recast Brussels Regulation and on the basis of forum non conveniens. While Turner J emphasised that the factual background of this case was central to his conclusions, his judgment contains a detailed analysis of the relevant caselaw and his consideration of the facts surrounding the claim will no doubt be of interest to parties involved in similar cross-jurisdictional and group actions. Charles Gibson QC led the Counsel team for the Defendants.’

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Henderson Chambers, 19th November 2020

Source: www.hendersonchambers.co.uk

The cart before the horse when requesting an adjudicator: Land End Developments Construction Limited v Kingstone Civil Engineering Limited [2020] EWHC 2338 – Hardwicke Chambers

Posted November 25th, 2020 in chambers articles, construction industry, contracts, estoppel, jurisdiction, news, statutory interpretation by sally

‘These proceedings related to an adjudicator’s decision dated 27th April 2020 (“the 27th April Decision”) under the Scheme for Construction Contracts (England and Wales) Regulations 1998 as amended (“the Scheme”). Lane End Developments Construction Limited (“Lane End”) was the main contractor on a housing development (“the Development”) and Kingstone Civil Engineering Limited (“Kingstone”) was sub-contracted to carry out enabling works for the Development. On 2nd March 2020, Kingstone issued Interim Payment Application No. 17 in the sum of £356,439.19, but Lane End did not serve a Pay Less Notice nor, until 26th March, did it serve a Payment Notice.’

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Hardwicke Chambers, 13th November 2020

Source: hardwicke.co.uk

Mirchandani v Lord Chancellor [2020] EWCA Civ 1260 – CrimeCast.Law

Posted November 25th, 2020 in appeals, compensation, confiscation, costs, fraud, jurisdiction, news, podcasts, private prosecutions by sally

‘The case was concerned with a private prosecution for fraud offences, which had ultimately resulted in a £20 million confiscation order and £17 million compensation orders. The private prosecutor’s unsuccessful submissions against a third party in proceedings to enforce the confiscation order had led to the unusual spectacle of the Lord Chancellor intervening and persuading a High Court judge to reverse her decision on a jurisdictional question and set aside the order she had previously made. It prompted the Court of Appeal (Civil Division) to conduct a comprehensive review of the primary and secondary legislation and the authorities on private prosecutions, confiscation, costs and the sometimes blurred lines between criminal and civil proceedings.’

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CrimeCast.Law, 24th November 2020

Source: crimecast.law

Deprivation of liberty: Unlawful placements of children – Transparency Project

Posted November 23rd, 2020 in appeals, children, detention, jurisdiction, local government, mental health, news, statutory interpretation, Supreme Court, Wales by sally

‘Can an English family court order the unlawful detention of a Welsh child?’

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Transparency Project, 22nd November 2020

Source: www.transparencyproject.org.uk

Who has jurisdiction and under what circumstances? – Falcon Chambers

Posted November 19th, 2020 in civil procedure rules, county courts, dispute resolution, jurisdiction, news, practice directions, tribunals by sally

‘This paper deals with one of life’s big questions: “why are we here?”, albeit the “here” refers to one or more of the County Court, the First Tier Tribunal and the Upper Tribunal (Lands Chamber), and sometimes two of them at the same time.’

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Falcon Chambers, 2nd November 2020

Source: www.falcon-chambers.com