The boss of the competition watchdog has labelled Google’s solution to the proposed news media bargaining code, its News Showcase product, another example of its empire-building take it or leave it proposition as Google claims its threat to pull its search engine from Australia was misrepresented.
Read moreIreland: ICC Arbitration Rules 2021 Come Into Force – What Do You Need To Know?
The new ICC Arbitration Rules (Rules), in force since 1 January 2021, will apply to any arbitration commenced after that date unless otherwise expressly agreed between the parties.
The Rules do not apply automatically to infrastructure or commercial contracts in Ireland. Parties would need to expressly adopt the Rules in their contracts and where adopted, they would be in lieu of the rules governing international arbitration in Ireland, namely, the Arbitration Act 2010.
Read moreA Quick Guide to the 2021 Rules of the DIFC-LCIA Arbitration Centre
The DIFC-LCIA Arbitration Centre (the "Centre") recently released updated Arbitration Rules which apply to arbitrations commenced on or after 1 January 2021 (the “2021 Rules”). Replacing the 2016 Rules, the 2021 Rules essentially mirror the changes made in 2020 to the LCIA's Arbitration Rules, hence they reflect a "light touch" update rather than a drastic re-write. With the 2021 Rules (available here) at their disposal, arbitrators, parties and counsel can expect a clearer process and more efficient and expeditious proceedings going forward.
Read moreBrexit: key practical implications for disputes and dispute resolution clauses
Despite the UK and EU having finalised a Trade and Cooperation Agreement to govern their trading and security relationship following the end of the Brexit transition period, there remain a number of uncertainties when it comes to commercial dispute resolution in cases involving the UK and the EU. In this post we look at some key practical points for parties to consider, taking into account both what we do know and what remains unclear.
Read moreMediate.com Instructor Discusses Implicit Bias: We All Have It
Every second, millions of bits of new information are trying to enter into your awareness. Imagine how overwhelming that must be for your brain. In response to this barrage of input, your brain has created an organizational system wherein it simply ignores some of the data (“inattentional blindness”) and sorts the rest into categories it has created.
Read moreDelaying Enforcement of Arbitration Agreements May Lead to Undesirable Consequences
In Garcia v. Haralambos Beverage Co., the California Court of Appeal embraced the adage “time kills all deals” to conclude that an employer waived its right to arbitrate the wage-hour claims at issue in the case by, among other things, delaying two years to seek arbitration as a last resort and waiting to locate the plaintiffs’ signed arbitration agreements. By waiving its right to arbitrate, the employer also lost its ability to strike class claims as a result.
Read moreCalifornia Arbitration Act – Importance of Arbitration
Any arbitration that takes place in California must comply with the California Arbitration Act.The California Arbitration Act is a piece of legislation that regulates private arbitration in the state of California. This law is intended to create and streamline the process of arbitration in the state. Certain provisions of the law have caused controversy, and there is currently a lawsuit pending to determine whether provisions involving mandatory arbitration agreements should be honored, but the Act as a whole has been instrumental in establishing the importance of arbitration in California and has made the state a safe haven for those hoping to use arbitration to resolve disputes.
Read moreIllinois Court Strikes Down ESOP’s Arbitration Provision
Over the past few years, qualified retirement plans, including employee stock ownership plans (ESOPs) have been adding provisions requiring participant breach of fiduciary duty claims to be resolved through mandatory arbitration on an individual basis rather than through the courts or on a class basis. One reason for doing so is to prevent plaintiffs from bringing spurious lawsuits that contain sufficient facts to survive a motion to dismiss, which would lead to expensive discovery exercises. The risk of such expense could create an incentive for ESOP fiduciaries to agree to substantial settlements to avoid the cost of further litigation regardless of the underlying merits of the allegations. However, there are downsides to having such mandatory arbitration provisions, including the risk of facing a non-appealable adverse arbitration decision and its impact on the ESOP, the ESOP sponsor and the ESOP fiduciaries. While courts have generally held that such provisions are not per se invalid, a number of courts, including the Southern District of Illinois, have limited their scope.
Read moreSão Paulo State Court of Appeals Annulled Award Due to Violation of Arbitrator’s Duty of Disclosure
In the face of global change, international arbitration proves its flexibility
As members of our arbitration team wrote recently, the global pandemic has led parties to consider arbitration as the optimal process to resolve disputes given its key advantages as an effective, customizable and efficient mechanism. The international arbitration community has shown its ability to pivot quickly and adapt relatively seamlessly in changing global circumstances. In a testament to the flexibility of arbitration, arbitral institutions globally have responded with updates and practice guides to clarify and streamline their rules and procedures in order to better suit the reality of disputes in the post-2020 landscape.
Read moreCalifornia Appeals Court Rules on Nursing Home Arbitration Agreement
Many nursing homes ask residents or their agents to sign arbitration agreements. These agreements state that any disputes between the resident and the nursing home must be handled through the arbitration process. Nursing homes use these types of agreements because arbitration generally favors the companies instead of the plaintiffs, and the homes can avoid the publicity of a trial when arbitration is compelled. However, as the case of Lopez v. Bartlett Care Center, LLC, Cal. Ct. App. No. G056427 shows, some arbitration agreements are unenforceable and may be thrown out by the court, leaving the parties to litigate through the court process.
Read moreIreland: New Code Of Practice Overhauls Workplace Bullying
It's time to review all "Dignity at Work" policies and introduce updated "Anti-Bullying" policies to comply with the recently published "Code of Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work" ("the Code"). The Code repeals the previous Health and Safety Authority (HSA) and Workplace Relations Commission (WRC) Codes of Practice and introduces new procedures for the management of workplace bullying.
What does it mean to finally determine a dispute?
When a dispute is finally determined it means that the dispute that was dealt with at adjudication is referred to court (or arbitration if that is what the contract requires) to have a final and binding decision on the dispute.
If the contract requires the dispute to be finally determined at arbitration then it will also likely either state the arbitrator it is to be referred to or the body that should appoint the arbitrator.
Read moreEnforcement of common and civil law arbitral awards in Latin America and the Caribbean: the Brazilian and Cayman example
Arbitration provisions under contracts for insurance can often provide for a more expeditious and confidential (although not necessarily cheaper) settlement of disputes than passage through the courts. These provisions can either be mandatory or voluntary to the insured (or cedant) and insurer (or reinsurer) bound by the contract.
Furthermore, the procedural rules by which the arbitration will be governed tend to be agile, and usually involve a third party arbitration service (e.g. the International Chamber of Commerce, the Jamaica International Arbitration Centre, the Arbitration and Mediation Court of the Caribbean in Barbados, or the Centro de Arbitragem e Mediação da Câmara de Comércio Brasil-Canadá in Sao Paulo and Rio de Janeiro).
Read moreMediation: The Go-To Dispute Resolution Mechanism in India
In a new publication by Nishith Desai Associates, authors Ashish Kabra [1], Payel Chatterjee [2]and Sahil Kanuga [3] describe current developments in India’s commercial mediation scene and how it is increasingly recognised as a first call of action. Mediation: The Go-To Dispute Resolution Mechanism in India makes the case for mediation, and suggests a necessary impetus to equip dispute resolution professionals with mediation skills and for them to adopt it as part of their advisory work.
Read moreSports Law : Court of Arbitration for Sport (CAS)
The Court of Arbitration for Sport (CAS) was founded in 1984 and is an independent organisation that facilitates the resolution of disputes involving sporting organisations and their individual members through mediation and binding arbitration.
CAS has its main seat in Lausanne, Switzerland but also has operational offices in Sydney, Australia and New York, United States.
Read moreDrafting arbitration clauses: lessons learned in 2020
One of the many uncertainties of Brexit is the impact it will have on the enforcement of English court jurisdiction clauses and English court judgments across the EU. Despite the hopes of the legal community, the Trade and Cooperation Agreement does not contain any provisions on civil judicial cooperation, so there remains uncertainty over what will replace the previous regime as set out in the Brussels Recast Regulation and the Lugano Convention. The EU may agree to the UK acceding to the Lugano Convention but, for now, jurisdiction and enforcement of judgments will be determined by the Hague Convention on Choice of Court Agreements or national laws.
Read moreQuebec Superior Court Confirms Arbitrability of Insurance Coverage Disputes
Ending years of ambiguous jurisprudence, Justice Gary Morrison confirmed, in 9369-1426 Quebec Inc. (Restaurant Baton Rouge) v. Allianz Global Risks, that Quebec law allows the arbitration of disputes under an insurance policy to the exclusion of the courts.
Facing business interruption losses due to COVID-19, certain Baton Rouge franchisees sought to certify a class action against Allianz on behalf of all its insured restaurants and bars in Quebec claiming coverage under a property insurance policy. On behalf of Allianz, Clyde & Co moved to dismiss the action and prevent certification based on the Policy's dispute resolution clause, which provided for mediation and/or binding arbitration. Justice Morrison granted the motion and dismissed the action.
Read moreLitigating with a UK entity post Brexit
The Brexit transition period expired on 31 December 2020. From 1 January 2021 new rules apply when dealing with UK entities regarding which courts have jurisdiction to deal with disputes; how any UK court judgment can be enforced in Ireland and how to serve UK entities with Irish legal proceedings. This article considers each of these matters in turn. It is worth noting that neither arbitration nor mediation are affected by Brexit and those processes will remain as they currently are, including the ability to enforce Arbitration Awards under the New York Convention on the Recognition and Enforcement of Arbitration Awards, to which the UK and Ireland are both parties.
Read moreBoT signs pact on mediating legal financial disputes
The Bank of Thailand and the Office of the Court of Justice have signed a memorandum of understanding (MoU) on mediating legal financial disputes for financially-distressed borrowers and small and medium-sized enterprises (SMEs).
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