The International Swaps and Derivatives Association (ISDA) has published the 2013 ISDA Arbitration Guide, which sets out an overview of arbitration and includes a number of model arbitration clauses designed to be used with the 1992 and 2002 ISDA Master Agreements. The publication of the guide is a welcome step and reflects the growing use of arbitration in financial disputes.
Evidence of the adverse impact of the COVID-19 pandemic on the claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court. Although this decision demonstrates the court's willingness to consider the impact of the pandemic and the looming economic downturn in considering a party's financial viability for the purposes of a security for costs application, general evidence of the pandemic's economic impact will not suffice.
Where parties have entered into separate but related contracts, a breach of one contract does not necessarily preclude the recovery of damages under another. In a recent ruling, the Privy Council summarised the law in respect of remoteness of damage for breach of contract. In principle, the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if their rights had been observed.
The Court of Appeal recently sought to impose some order on an unfair prejudice petition which had been mired in wrangling over pleadings for six years. The decision shows that parties presenting an unfair prejudice petition should ensure that it sets out the grounds for relief as these cannot, in general, later be extended in the points of claim. Where points of claim lack particularity or disclose no basis for the relief sought, requests for further information or applications to strike out should be brought promptly.
A party's attempt to circumvent a jurisdiction clause by bringing tortious claims against a third party has been thwarted by the High Court. In granting an anti-suit injunction, the court explored the substance of the claims and found them to be vexatious and oppressive and designed to evade the exclusive jurisdiction clause. This case demonstrates the courts' willingness to look into the substance of an impugned foreign claim in order to assess whether it is a tactic designed to evade an exclusive jurisdiction clause.
The High Court recently struck out a claim by the beneficial owner of certain notes that had sought a declaration that an event of default had occurred. The case illustrates how administrative decisions in a foreign state in relation to EU directives are recognised in the English courts and the reluctance of courts to make decisions based on the anticipated outcome of foreign proceedings.
The test for inducement in cases of fraudulent misrepresentation is whether 'but for' the misrepresentation, the claimant 'might' have acted differently. The lower hurdle was clarified by the High Court in Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises and represents a departure from previous authorities, in which the test had been said to be whether but for the misrepresentation the claimant would have entered into the contract anyway.
The Court of Appeal recently provided helpful clarification on what constitutes 'knowledge' for the purposes of Section 14A of the Limitation Act 1980. The judgment reiterates that it is not when the claimant first knew they might have a claim for damages against the defendant that is relevant; rather, it is when they knew enough to make it reasonable to investigate further and, if necessary, obtain professional advice.
In a recent case, the Supreme Court considered the application of Section 21(1)(b) of the Limitation Act 1980 with respect to claims against the directors of a company for an unlawful distribution of the shareholding. The court acknowledged that Section 21 was primarily aimed at express trustees, and that it was found to be applicable to company directors "by what may fairly be described as a process of analogy".
The Commercial Court was recently faced with an application by the defendants to strike out claims against them on the basis that the claimant had failed to serve claim forms that it had issued several years earlier. The claimant made a cross-application for alternative service or alternatively for service to be dispensed with under the Civil Procedure Rules. The court refused the cross-application and struck out the claim forms. The judgment contains a useful distillation of the principles relevant in this area.
The High Court has rejected applications by an English parent company and its Zambian subsidiary that claims brought against them in London should be dismissed in favour of proceedings in Zambia. The claimants benefited from the recast EU Brussels Regulation's provision that an EU-domiciled defendant can be sued in its state of domicile and a recent court decision that parent companies can be liable for the activities of their foreign subsidiaries.
The Supreme Court has clarified the law on implied terms: in order for a term to be implied, it must be necessary for business efficacy or alternatively be so obvious as to go without saying. In practice, it will be a rare case where one of these conditions is satisfied, but not the other. Although the case related to a property transaction, the decision has wider implications across all commercial contracts.
In Arcadia Group Brands Ltd v Visa Inc the Court of Appeal held that a group of well-known high-street retailers could not plead their claims in relation to alleged inflated multilateral interchange fees between 1977 and 2007 on the basis that they were time barred. The decision is a major setback for claimants bringing actions in this field, in particular since the claims struck out in this case were valued at around £500 million.
The High Court recently considered ongoing damages claims brought by merchants against Visa and MasterCard for breaches of competition law in relation to the charging of interchange fees. The case illustrates that claimants should be alive to any information related to an alleged cartel in the public domain and consider the effect it may have on limitation issues in deciding whether and when to issue a claim.
The High Court has held that 'additional representations' in a Schedule to the International Swaps and Derivatives Association Master Agreement relating to a counterparty's ability to enter into derivative transactions were enforceable warranties. The court held that breach of these warranties led to a contractual estoppel. This novel application of contractual estoppel is an important precedent for finance lawyers and banking litigators.
Following recent Supreme Court decisions, the principles governing contractual interpretation under English law are reasonably well established. As a recent Court of Appeal case demonstrates, the difficulty comes in applying them to particular factual situations. The court's decision clarifies that commercial considerations should infuse any discussion of contractual interpretation.
A recent case before the Commercial Court confirms that the powers granted under Section 68 of the Arbitration Act will be exercised sparingly by the courts. A challenge under Section 68 must meet a high hurdle and the vast majority of applications fail. Applicants may be tempted to use Section 68 as a way of indirectly challenging the court's findings of fact, but this is a wholly inappropriate approach.
A recent Commercial Court case reinforces the importance of providing for a governing law in contracts and the need to make this expressly clear should the parties wish that an arbitration agreement be governed by a different law from the law of the seat. Careful consideration of the dispute resolution provisions in a contract at the drafting stage is likely to be a more efficient use of time and money than a satellite dispute.
A recent Supreme Court judgment clarifies the powers of the court to grant anti-suit injunctions against proceedings commenced overseas in breach of an arbitration agreement, as well as the legal basis of such powers. The court had to determine its power to prevent the commencement or continuation of foreign proceedings brought in a jurisdiction outside the European Union when a valid arbitration agreement exists.
The Supreme Court has confirmed that allowing the corporate veil to be pierced so as to treat a third party as a co-contracting party is contrary to both authority and principle. Regarding the issue of appropriate forum also raised in this case, the court held that it is inappropriate for matters involving a balancing exercise by a lower court to be re-opened unless the lower court erred in principle.
A recent case is an interesting commentary on the interplay between related arbitral and court proceedings. The abuse of process doctrine can apply where proceedings amount to a collateral attack on a previous arbitral award, but in the absence of special circumstances of the type present in this case, bringing court proceedings against an entity not party to a previous arbitration will not amount to abuse of process.