Third-party funding or litigation finance agreements have become increasingly popular and accepted methods to finance commercial disputes. While some U.S. jurisdictions prohibit enforcement of finance agreements under champerty and similar laws, the majority of jurisdictions now permit them. Examples of champerty state law restrictions on enforcement of funding agreements are discussed in my recent article titled “Champerty re-emerges: an overview of recent US Circuit Court rulings on third-party funding” appearing in the May 2020 Issue of the IBA’s International Litigation News.
Read moreCanada: Mediator Selection: Skills Often More Important Than Expertise
As per Rule 24.1 of Ontario's Rules of Civil Procedure, certain court proceedings in Ontario are subject to mandatory mediation. Even if it is not mandatory in a particular proceeding, mediation is a form of alternate dispute resolution that parties may want to consider to avoid a full trial, reduce the costs of litigation, and hopefully arrive at a settlement that is agreeable to everyone involved. Whether or not a mediation is successful is, in large part, dependant on the choice of mediator.
Read moreAustralian media firms squeeze more from Google as new law looms
Australia claimed an early win in a protracted licencing battle with Google on Wednesday as media companies lined up to announce content deals with the internet giant that were reportedly far more lucrative than their global rivals.
A month after the Alphabet Inc-owned company threatened to shut down its search engine in Australia to avoid what it called “unworkable” content laws, the country’s two largest free-to-air television broadcasters have struck deals collectively worth A$60 million ($47 million) a year, according to media reports.
Read moreAgreement on “non-binding” arbitration not an arbitration agreement
An agreement to submit to non-binding arbitration is not an enforceable arbitration agreement under the English Arbitration Act 1996. The court dismissed an application for stay of English court proceedings under s9, citing absence of a valid arbitration agreement between the parties. The court held that an arbitration agreement must provide for a binding determination of disputes: IS Prime Ltd v (1) TF Global Markets (UK) Ltd (2) TF Global Markets (AUST) PTY LTD (3) Think Capital Ltd (2020) [2020] EWHC 3375 (Comm)
Read moreAgreement on “non-binding” arbitration not an arbitration agreement
An agreement to submit to non-binding arbitration is not an enforceable arbitration agreement under the English Arbitration Act 1996. The court dismissed an application for stay of English court proceedings under s9, citing absence of a valid arbitration agreement between the parties. The court held that an arbitration agreement must provide for a binding determination of disputes: IS Prime Ltd v (1) TF Global Markets (UK) Ltd (2) TF Global Markets (AUST) PTY LTD (3) Think Capital Ltd(2020) [2020] EWHC 3375 (Comm)
Read moreWinner Takes All: B.C. Court Confirms Indemnification Costs as the Normal Rule in Commercial Arbitrations
In domestic and international commercial arbitrations, it is common for successful parties to be awarded their actual reasonable legal fees and disbursements. The legislation governing domestic commercial arbitrations in British Columbia permits arbitrators to exercise their discretion to award such costs.
The Supreme Court of British Columbia discussed the law applicable to indemnification cost awards in its recent decision in Allard v. The University of British Columbia. In Allard, the successful party to an arbitration had sought – and been awarded – its actual reasonable costs. In awarding these costs, the arbitrator rejected an argument that indemnity costs represent “elevated” costs in the arbitration context, noting:
Read morePredictions for the New Year in Commercial Disputes, International Arbitration, and Judgment Enforcement
First Tuesday Update is our monthly take on current issues in commercial disputes, international arbitration, and judgment enforcement.
As we focus on the New Year and a new Biden administration, we make a prediction in each area we cover. In commercial disputes, we believe that a Biden administration is likely to suspend the private right to bring claims under the Helms-Burton Act. In international arbitration, despite some of Biden's statements to the contrary during the campaign, we believe there are likely to be more trade deals and perhaps some reform to the system of settling investment disputes, but international arbitration is here to stay. Finally, in judgment enforcement, we predict that with the continued presence of COVID-19, the states and perhaps even the federal government will limit or preclude certain judgment enforcement tools intended to protect consumers, but the limits could have broader implications.
Read moreDoes the Supreme Court’s Halliburton judgment make a splash in the pool of arbitrators for global project arbitrations?
On 27 November 2020, the Supreme Court handed down its decision in Halliburton Company v Chubb Bermuda Insurance Ltd (formerly known as Ace Bermuda Insurance Ltd) [2020] UKSC 48, concerning whether and to what extent an arbitrator may accept multiple appointments in related matters without making disclosure to the party who is not the common party. Freshfields represented the London Court of International Arbitration (LCIA) in its intervention in the appeal.
Read moreCould Google really leave Australia?
The government is introducing a law to address a long-bubbling row over whether tech giants should pay for news that appears in search or is shared on their platforms.
The proposed law would mandate that Google has commercial agreements with every news organisation - or enter forced arbitration, something Google says is "unworkable".
"If this version of the code were to become law, it would give us no real choice but to stop making Google Search available in Australia," the regional director, Mel Silva, said.
Australian Prime Minister Scott Morrison told Google: "We don't respond to threats".
Read moreWhat are some of the most common commercial contract disputes that have arisen over the past year?
“Many businesses have been left with unpaid invoices due the financial implications of the pandemic. There has also been an increase in disputes resulting from companies struggling to meet contractual obligations for a number of reasons, sometimes outside their control. For example, goods being held up in other countries, the inability to continue work due to government restrictions or one party to the contract triggering their force majeure clause.
Read moreMediating joint venture disputes
India has been on an unabated growth trajectory - supported by a Gross Domestic Product (GDP) of nearly US$11.5 trillion (S$15.9 trillion). India is also the world’s third largest economy after China and the United States, according to 2019 International Monetary Fund estimates. Rising affluence and growing urbanisation in India has attracted investors who are keen to tap on India’s elite and affluent households - two of the fastest-growing income segments in the country, expected to double to 16 percent of the population by 2025. The rapid growth of India has not stopped despite the COVID-19 pandemic. Indeed, the authors continue to observe increasing number of investments in tech-related start-ups in India by foreign venture capital funds and institutional investors and also the shift in supply chains with more companies looking to set up their manufacturing plants and factories in India, even in the last 6 months
Read moreThe Challenges Going Forward
While it is by no means perfect, international arbitration has become the primary mechanism by which disputes are resolved in the oil and gas industry. For cross-border transactions involving parties from a broad range of jurisdictions, or disputes between an investor and a state, there is no practical alternative. It provides the opportunity for an impartial, independent determination of a dispute with an established mechanism for the enforcement of awards in most jurisdictions in the world under the auspices of the New York Arbitration Convention of 1958. Unfortunately, the dispute resolution process itself is becoming increasingly complex and uncertain, adding a further layer of difficulty to the parties finding solutions to their disputes. The time and cost associated with international arbitration now compares unfavourably with litigation (which was never a good benchmark in the first place). Extended document disclosure requests and the willingness of arbitrators to accede to them is burying the process in indiscriminate evidence. And, despite the inherent flexibility and the discretion vested in the arbitrators, first procedural orders are not always designed to meet the specific needs of the parties or the dispute, nor do they provide for an efficient and cost-effective process. This fourth perspective is a cause of concern as uncertainty over the outcome of dispute resolution process only creates additional work and delay, benefiting the international arbitration industry and not the parties it is designed to serve.
Read moreNAFTA Energy Arbitrations
The North American Free Trade Agreement (NAFTA) came to an end on 1 July 2020. After 24 years, it has been replaced by a new agreement called the Canada-United States-Mexico Agreement. The main impact as far as the energy sector is concerned was elimination of the famous Chapter 11 dispute resolution provision. Chapter 11 of NAFTA gave private investors the right to bring claims directly and unilaterally in the host country. This was unique at the time when the arbitration world was dominated by state-to-state proceeding.
Read moreFederal Court Rules That Instacart Workers Cannot Escape Arbitration Despite FAA Argument
A federal district court in Illinois just ruled that a proposed class of gig economy delivery drivers and paid shoppers must individually arbitrate their claims that they were misclassified as independent contractors, rejecting an attempt to escape arbitration that has been successful in other parts of the country. This December 21 decision means that Instacart will be able to litigate claims over minimum wages, overtime compensation, and other benefits in its preferred forum – and is another piece in an increasingly fractured national puzzle over a critical issue, which could lead to Supreme Court intervention in 2021. Why is this decision important and how might it work in your favor?
Read moreHow to avoid unpleasant surprises with arbitral award
The globalization of markets and capital has led to the complication and internationalization of Ukrainian business. It is already a rarity when a business has no relations with foreign partners and contractors.
For predictability of outcomes of contractual conflicts, international arbitration has become a frequent choice for business, which allows to independently determine not only arbitrators, but also the rules for resolving disputes and applicable legislation. In fact, already at the stage of concluding a contract, the parties can envisage the institution or persons), to whom they are ready to entrust the resolution of disputes. They can determine the rules according to which they want the dispute to be considered, understanding in advance the specifi
Read moreWhat are some of the most common commercial contract disputes that have arisen over the past year?
“Many businesses have been left with unpaid invoices due the financial implications of the pandemic. There has also been an increase in disputes resulting from companies struggling to meet contractual obligations for a number of reasons, sometimes outside their control. For example, goods being held up in other countries, the inability to continue work due to government restrictions or one party to the contract triggering their force majeure clause.
Read moreIs Your Company Accidentally Granting Implied Copyright Licenses?
A recent spate of athlete-driven cases show courts are willing to let alleged copyright infringers defend these suits by claiming they have implied licenses. This could mean long, costly lawsuits for copyright holders.
In June 2019, Kawhi Leonard made a case that he was the best basketball player in the world by leading the Toronto Raptors to the NBA title. That same month, Leonard sued Nike over control of a claw logo he and Nike used to promote his brand before Leonard left Nike for New Balance.
Read moreCoronavirus Litigation: The Week In Review
Law360 (December 10, 2020, 7:54 PM EST) -- A distributor of personal protective equipment has lodged a $3 million suit over a botched medical gown order, the Chicago Teachers Union is trying to keep public schools from reopening without agreed-upon coronavirus safety standards, and a bid to block the New York governor's "food curfew" has appeared to sputter in the Second Circuit.
Read moreOutdated court system doesn’t work for small businesses, says ASBFEO
The Australian Small Business and Family Enterprise Ombudsman, Kate Carnell, is calling for an overhaul of the dispute resolution framework, saying the current court system doesn’t work for small businesses.
In the newly released Access to Justice Report, Ms Carnell said small businesses urgently need pathways to resolve their disputes quickly and cost-effectively or they would be hampered by inefficient processes through the courts.
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