Understanding personality conflicts in the workplace is important for managers and employees alike to ensure disputes or frustrations with others are not impeding the team’s ability to remain engaged and productive. Different personalities can clash regardless of the situation. Add in work stress, deadlines, and the day-to-day struggles of work, and these clashes can escalate quickly.
Read moreAre Tenant-Landlord Disputes Arbitrable? Supreme Court of India Overturns its Own Judgement
Are disputes between landlords and tenants arbitrable under Indian law? If yes, are all types of disputes arbitrable? Can arbitration clauses in lease agreements be enforced? After significant confusion and long-standing disputes around the arbitrability of tenancy matters, it may now be possible to answer some of these questions. In two judgments passed within a month, Suresh Shah v. Hipad Technology India Private Limited1 (“Suresh Shah”) and Vidya Drolia & Ors. v. Durga Trading Corporation2 (“Vidya Drolia II”), the Supreme Court has settled the dust on whether landlord-tenancy disputes under the Transfer of Property Act, 1882 (“TP Act”) are arbitrable under the Arbitration & Conciliation Act, 1996 (“Arbitration Act”).
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 moreAny Type of Legal Matter Makes Individuals Nervous Feeling that All Law Leads to Litigation
This is simply not the truth, and many seasoned attorneys do now stress resolution through arbitration and negotiation rather than litigation. Litigation is a court process before a judge and is not only more costly it is also more stressful and time-consuming and even routine matters can drag on for months or even years. When any individual needs an attorney for any civil matter it does behove them to find one that specializes in negotiation and arbitration and hopes to avoid litigation. While all attorneys should be prepared to proceed with litigation it should not be the priority in many c ases as resolutions can be reached amicably now.
Read moreIndia: Arbitration Clause In An Unstamped Contract Is Valid
Nearly after a decade of deciding that an arbitration clause contained in an unstamped or deficiently stamped contract, is not valid and hence not enforceable until such deficiency is removed, in the case of SMS Tea Estates Vs. M/s Chandmari Tea Co. Pvt. Ltd.1, the Hon'ble Supreme Court overruled the said judgment in case of SMS Tea Estates (supra) and held that arbitration clause contained in an unstamped or deficiently stamped instrument, being an independent contract, is valid and enforceable. This has been held by a three judges' bench of the Hon'ble Supreme Court in the matter of M/s N.N. Global Mercantile Pvt. Ltd. Vs. M/s Indo Unique Frame Ltd. & Ors2. After holding as above, the Apex Court also referred the findings of a coordinate bench in the judgment of Vidya Drolia & Ors. v. Durga Trading Corporation3 to a constitution bench of five judges, for authoritative decision on the following question:
Read moreEEOC Announces Extension of Act Mediation Pilot
WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC), today announced that it was extending the pilot program that expanded opportunities to voluntarily resolve charges through mediation through Sept. 30, 2021.
Read moreMandatory COVID-19 Testing Policy Deemed Reasonable in Retirement Home
In a recent unreported labour arbitration award, Caressant Care Nursing & Retirement Homes and Christian Labour Association of Canada, Arbitrator Dana Randall confirmed that the employer’s mandatory COVID-19 testing policy was a reasonable exercise of management rights.
Read moreInternational Arbitration in Switzerland: A revised legal framework in 2021
Effective as from 1 January 2021, the Swiss parliament enacted a number of revised provisions of Chapter 12 of the Swiss Federal Private International Law Act, 1987 (PILA) governing international arbitration (lex arbitri). This "light touch" revision aims at consolidating 30 years of cases decided by the Federal Supreme Court, reinforcing the parties' autonomy and making the application of the law even more predictable and user-friendly. Our newsflash provides a concise overview of the revision's most important features.
Read moreIs mediation set to become the new normal for pension disputes?
Most coverage you read these days inevitably focuses on the stresses and difficulties resulting from the turbulent economic times. Corporate failures and disputes are an unavoidable consequence of such turbulence. This is also relevant for employers and trustees of pension schemes.
Read moreMining arbitration: recent dispute trends
For instance, smartphones and electric vehicles are powered by rechargeable lithium-ion batteries, a component of which is cobalt. According to the African Natural Resources Centre of the African Development Bank, minerals account for an average of 70% of total African exports and approximately 28% of gross domestic product, and the potential for growth is immense. The Democratic Republic of Congo alone concentrates more than 50% of the world's cobalt reserves.
Read moreBringing a Case to Arbitration Should be Easier Following Recent Ninth Circuit Decision
A plaintiff may not avoid arbitration and manufacture appellate jurisdiction simply by voluntarily dismissing his claims, the U.S. Ninth Circuit Court of Appeals recently decided. In doing so, the court stated that an earlier Ninth Circuit decision reaching the opposite conclusion had been effectively overruled by intervening U.S. Supreme Court precedent. The Ninth Circuit’s new ruling will make it easier for parties seeking to enforce arbitration agreements.
Read more4 Steps To Help You Recognize And Overcome Bias: Implicit Bias Is Inevitable But Checking It Is Not
“In my younger and more vulnerable years my father gave me some advice that I’ve been turning over in my mind ever since.”
In what may be one of the most identifiable opening lines of an American Novel, Nick Carraway tells the readers of The Great Gatsby all about his efforts to reserve all judgement. Of course, the rest of the novel descends deep into all kinds of judgements and allegations toward every other character.
Read moreFranchise M&A
If, as is often the case, a franchise acquisition commences with a letter of intent-type document, an interesting question arises as to whether the franchisees should be informed about the sale intention at that stage. There is no legal requirement to do so and most advisers would argue that, at the letter of intent stage, completion is too uncertain to inform the existing franchisees. However, if the franchisor does enter into such a letter of intent it is a strong possibility that this would constitute a material fact requiring disclosure to any prospective franchisees, if the prevailing franchise legislation requires such disclosure. Upon the signing of a binding acquisition agreement, the argument that disclosure is required for prospective franchisees gets more compelling, but not with respect to existing franchisees. Some franchisors opt to place a moratorium on new franchise sales during a system sale process because of this issue. One should query what a franchisor should do, if, during a sale process, disclosure is required because an existing franchisee is selling its business to a new franchisee or an existing franchisee is renewing its franchise agreement.
Read moreIn brief: enforcing and challenging arbitral awards in Canada
Does the arbitral tribunal have the power to correct or interpret an award on its own or at the parties’ initiative? What time limits apply?
Mistakes can be corrected consistently with the Model Law (ie, within 30 days of the parties’ receipt of the award, unless the parties have agreed on an alternative period), and certain domestic acts (for example, in Ontario, an arbitral tribunal may, on its own initiative within 30 days after making an award or at a party’s request made within 30 days after receiving the award) including any clerical, typographical or computational errors, or to correct an injustice caused by an oversight on the part of the arbitral tribunal. Reconsideration of substantive matters is not permitted.
Read moreLegal Problems between Business Partners Can be Resolved with Mediation Tools in Costa Rica
The two types of companies most used in Costa Rica are the Public Limited Companyand the Limited Liability Company. In the first, the owners are known as shareholders and in the second, as partners.
These people or companies become partners in two ways: either from the incorporation of the company, where each one agrees to contribute capital in the new company (or it can also be through assets or contributions in kind); Or, they can acquire the category of partners in a company that is already going on because they bought shares or quotas.
Read moreDIFC-LCIA arbitration rules modernized
New arbitration rules set by the DIFC-LCIA arbitration centre, which took effect on 1 January this year, will be welcomed by businesses seeking efficiency and flexibility in dispute resolution proceedings, an expert in international arbitration has said.
Read more5 Top Trends In Workplace Class Action Litigation: Trend #5 Class Certification Trends
Complex workplace litigation remains one of the chief exposures driving corporate legal budgetary expenditures. Class actions and multi-plaintiff lawsuits, in particular, continue to provide a source of concern for companies. Layered on top of those problems are the spike in workplace litigation caused by the COVID-19 pandemic.
Read more2021 ICC rules of arbitration: towards making arbitration even more attractive
On 6 October 2020, the International Court of Arbitration of the International Chamber of Commerce (the ICC Court) released a revised version of its Rules of Arbitration. The revised Rules will enter into force on 1 January 2021. They will apply to all arbitrations commenced on or after 1 January 2021, unless the parties "have agreed to submit to the Rules in effect on the date of their arbitration agreement" (Art. 6(1)). While the revisions of the Rules do not constitute major changes, it is important to be aware of them as they further enhance the transparency, flexibility, and efficiency of ICC arbitration.
Read moreCan Maryland Nursing Home Arbitration Agreements Be Assigned?
As arbitration agreements have become routine in many nursing facilities, questions may arise after ownership of the facility has been changed. Like other agreements, Maryland nursing home arbitration agreements can generally be assigned. An assignment of an agreement allows the assignee to “stand in the shoes” of the original party to the contract by granting all the rights the assignor previously had under the agreement.
Read moreWhat happens if I am unhappy with an adjudicator's decision?
When a party is unhappy with an adjudicator's decision they really have two options:
Challenge Enforcement of an Adjudicator's Decision - When a Decision is issued, if the paying party does not pay, then enforcement proceedings require to be raised. These proceedings will be in court. If the court enforces the decision then the paying party will require to make payment. If the court does not enforce the decision, the decision will become void.
Final Determination - when either party are unhappy with the decision, and there are no grounds to challenge enforcement the only option is to seek to have the matter finally determined by the court (or if the contract provides, arbitration). These proceedings are not an appeal but instead a full rehearing of the claim. In the interim the adjudicator's decision is unfortunately binding and the adjudicator's decision requires to be paid pending the outcome of any final determination proceedings.
Care should be taken to review contract terms as some contracts require a party who is unhappy with an adjudicator's decision to issue what is known as a Notice of Dissatisfaction. This is a notice which sets out that the party is dissatisfied with the decision and intends to raise proceedings to have the dispute finally determined. This requirement is most commonly found in the NEC form of contract, which requires a Notice of Dissatisfaction to be issued within 4 weeks of the decision, but even if the contract does not require it, it is good practice to issue such a notice.
Lastly, where a party does not agree with a decision they require to reject the decision in full. They should not accept and reject the decision at the same time. For example if a party wishes to ask an adjudicator to correct an issue with the decision under the slip rule but also challenge the enforcement of the decision, they should sufficiently reserve their rights to challenge the decision when making the request for the correction to be made. If they do not do so it could be argued that they have accepted the decision as valid. This is known as the doctrine of approbation and reprobation.
Next week we will look at issues surrounding enforcement of the adjudicator's decision in more detail. If you haven’t read our previous adjudication blogs they can be found here. Our commonly used terms glossary for adjudication can be found in our week two blog.