It is not a commonly advertised part of a lawyers role but a great deal of what they do is about creating certainty. Dispute resolution is no different and a large part of its aim is to achieve certainty out of a dispute with an uncertain outcome. This is the reason that a great deal of time and effort often goes into consent orders, which are used to compromise proceedings, so that they are clear and do not create more disputes themselves.
Read moreDOJ Antitrust Division Issues Guidance on Case Selection of Criteria for Use of Arbitration
The Department of Justice Antitrust Division (the "Division") recently released updated guidance outlining when and how the Division will use arbitration in civil cases and merger investigations in the place of traditional litigation.1 The Division now encourages the use of arbitration in "appropriate" cases that would benefit from the use of such alternative dispute resolution techniques.2
Read moreWhy Conflicts in the Workplace Escalate
Friction occurs when objects rub together and results in a slowing down of their movement.
Friction in the workplace results from destructive conflict. It leads to the slowing down of the interactions between people and causes processes and relationships to stop working well. It is therefore highlighted by some clear signs that you need to be able to recognize. These are
Read moreKids Need To Learn To Disagree. Here's How To Teach Them
In the era of remote learning and social distancing, children are missing out on opportunities to develop important interpersonal skills. The decline in socialization in 2020 means they’ve been getting less practice with problem-solving, communication and other types of social-emotional learning.
One particularly important skill that needs work: the art of disagreeing.
Read moreHow Smart Bosses Manage Workplace Conflict Without Hurting Company Culture
Most business professionals I know will go to great lengths to take a neutral position on internal business conflicts, on the assumption that all conflict is bad for the company as well as their political future.
In my experience, a level of disagreement among key team members is a sign of a healthy organization, allowing it to survive and prosper in this age of multiple disruptive trends.
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 moreWhy is the jury STILL out on mediation? A consideration of recent case law
Even the most ardent supporters of mediation accept that it’s not a panacea for all disputes. But it very clearly IS the case that mediation has much more to offer than currently it is given credit for. Those of us who practise as mediators glance around at a global society riven with conflict, and see missed opportunities for some form of facilitated dialogue almost everywhere we look.
Read moreNew 2021 Rules at the ICC, after the LCIA, and before the SIAC
Shortly after the entry into force of the revised Arbitration and Mediation Rules of the London Court of International Arbitration (the "LCIA") on 1 October 2020,[1] the International Chamber of Commerce (the "ICC") formally launched its amended Rules of Arbitration, 2021 (the “2021 Rules”) on 1 December 2020. This new version will enter into force on 1 January 2021 and apply to cases registered from this date. These changes have arisen in a very particular context and aim to align the ICC rules with current trends in arbitration and ICC practice (notably its Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration[2]), as well as clarify the interpretation of certain already-existing rules.
Read moreRE&C In Review & Litigation Advisory Blog: Can Arbitration Clauses Apply Retroactively?
Yes, it is possible for arbitration clauses to apply to claims that predate the contract containing the arbitration clause at issue. Retroactive application of an arbitration clause depends on the language of the arbitration provision and applicable substantive law.
Read moreWhen will an arbitration clause apply to bill of exchange disputes?
In the recent case of T v W, HCA 366/2020, the Plaintiff had commenced court proceedings against the Defendant for HK$5 million plus interest payable under a post-dated cheque drawn by the Defendant. The Defendant applied to stay the proceedings to arbitration, relying on the arbitration clause in the Loan Agreement that referred to the cheque. The Court dismissed the application for a stay, holding that the Plaintiff’s claim was on the cheque and that the cause of action on a cheque is separate to the cause of action on the underlying contract. It said that there must be a “plain manifestation” in an arbitration clause that it is to apply to bills of exchange, before the presumption against taking bills of exchange into arbitration is to be rebutted. The Court was not satisfied that the arbitration clause in the Loan Agreement could be construed to extend to the claims made under the cheque, which it considered to be a separate agreement.
Read moreThe Importance of Flexibility, Creativity, and Being Prepared!
Recently, I conducted two mediations that revealed the importance of flexibility, creativity and being prepared.
The first one was an alleged wrongful termination case in which the employer was disputing that the alleged employee was even terminated. According to the alleged employer, the alleged employee quit while the employee claimed she was fired.
Read moreCommittees reach bipartisan deal to protect patients from surprise medical bills
Four congressional committees on Friday reached a bipartisan deal on legislation to protect patients from massive "surprise" medical bills after a series of tense negotiations.
The agreement is a milestone in a roughly two-year long effort to pass legislation to protect patients from what is widely seen as an especially egregious practice in American health care.
Read moreBrexit trade talks extended as leaders pledge to go ‘the extra mile’
European Commission President Ursula von der Leyen said Sunday that Brexit trade talks with the U.K. will be extended beyond Sunday’s deadline, adding that “we think it is responsible at this point to go the extra mile.”
Von der Leyen spoke with British Prime Minister Boris Johnson via telephone on Sunday before releasing a joint statement. Both have now mandated their negotiating teams to continue their work.
Read moreThe Best Career Skills to Have for Any Job
Every professional experience can teach you something. Whether you are applying for your first job, trying to get a promotion or switching industries, there is no better way to enter a role with confidence than by identifying transferable skills you have gathered throughout life. The good news is that three of the most important skills you can take into the workplace are strengths you have likely been developing to some degree since childhood. Often known as soft skills, they offer a pivotal starting point for anyone hoping to achieve success in the workplace. You can then learn to develop your professional skills on the job.
Read moreSick, Lies, and Questionnaire: Arbitrators Uphold Terminations of Employees who Breached COVID-19 Safety Protocols
As the COVID-19 (“COVID”) pandemic continues to turn many workplaces upside down, employers have implemented COVID protocols to facilitate a safe return-to-work. Employers should have COVID screening measures for employees to self-report any symptoms before entering the workplaces (in most jurisdictions in Canada, employers are legally required to implement such screening measures).
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 moreThe Case for Pre-Suit and Early Mediation
Where resolution is always the ultimate goal, mediation serves a vital purpose as a vehicle for exploring settlement in high stakes litigation where unnecessary and protracted litigation costs may be avoided by all parties. At times, the only consistent factor in all of these matters is the complete unpredictability of what is possible at mediation.
Read moreArbitrator Upholds Employer’s Right to Impose Mandatory COVID Testing on Employees
Everyone in society has been affected in different ways by the COVID-19 pandemic. Employers in particular have faced difficult challenges and have been required, in many cases almost immediately, to make decisions that potentially impact employees’ privacy and other rights while attempting to ensure that the health and safety of their employees, their clients and those that they provide services to, are adequately protected. A common question that has arisen over the last few months for employers is simply this – can they require their employees to take a COVID test as a condition of working in order to satisfy their employer they can safely attend the workplace?
Read moreMediation Series: To Mediate or Not to Mediate? Mandatory?
Whether or not to mediate an estate dispute in Ontario is an easy question to answer if the dispute arises in Toronto, Ottawa, or Essex County (Windsor area). Pursuant to Rule 75.1.02(1)(a) of the Rules of Civil Procedure,[1] estate disputes are subject to mandatory mediation in those areas unless such requirement is waived by the Court.
Read moreSingapore arbitration centre opens New York office, achieves record caseload
SINGAPORE - The Singapore International Arbitration Centre (SIAC) opened a representative office for the Americas in New York last week, with a record-breaking announcement that its 2020 caseload had crossed the 1,000 mark.
It registered 1,005 cases for the first 10 months of this year, which is more than double the annual caseload of 400 in each of the last few years.
The new office, its fifth outside Singapore, will also further bolster its reputation as an international arbitration institution that will have a global reach, lawyers told The Straits Times on Friday (Dec 11 ).
Law and Home Affairs Minister K. Shanmugam said as much at the virtual launch of the New York office when he noted that one of the biggest users of the SIAC are parties from the United States (US).
The largest number of cases in 2018 came from US parties, he said, pointing out that they have consistently been one of SIAC's top 10 foreign users in the last five years.
"It has been SIAC's intention for some time now to open an office in the US. There is significant demand, as seen from the caseload breakdown since 2014. US direct investments in the Asia-Pacific exceed US$800 billion (S$1 billion) and that is expected to grow further."
ADVERTISEMENT
CONTENT RESUMES ON SCROLL
He also said that "in this part of the world, arbitration has become an extremely important means of resolving disputes which may arise from investments.
"If you look around Asia, I think most people would agree SIAC is considered the top arbitral institution."
SIAC's four offices in Asia are located in India (which has two offices), South Korea and China.
The SIAC, viewed as a crown jewel in Singapore's legal landscape, is led by Senior Counsel Davinder Singh, who is chairman of the SIAC board of directors, and Mr Gary Born, president of the SIAC Court of Arbitration.
SIAC counsel Adriana Uson will head the New York office, which will serve as a springboard to foster deeper ties with users in the Americas, who will benefit from real-time access to SIAC.
Mr Born said the US was picked for its first office outside Asia as American users have found SIAC arbitration conducive to the resolution of their business disputes.
"This year more than 500 US parties already have arbitrated their disputes under the SIAC arbitration rules. We look forward to working with our colleagues in the US and Latin America," he added.
Mr Singh said the choice of New York is an acknowledgement that the Americas will be shaping much of the future of international arbitration. "The opening of our New York office is our way of showing our many friends and supporters in the Americas that they matter to us."
SIAC chief executive officer Lim Seok Hui said the opening of the office, coupled with the crossing of the symbolic 1,000-case threshold and a record number of US parties at SIAC, "will firmly motivate us to do better".
Industry players say the New York office underscored SIAC's continuing prominence as an international arbitration institution with a global reach. It is no longer a national institution serving a limited, regional market, they added.
"The New York openingis in line with SIAC's remarkable landmark in recording over 1,000 cases this year and potentially overtaking other premier international arbitration institutions," said Mr Chou Sean Yu, WongPartnership's head of litigation and dispute resolution.
"This record is another testament to the growth of Singapore as a dispute resolution hub, which has come about from the tremendous investment made by the Government and various stakeholders in the legal industry," he added.