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The Commercial Litigation Journal: September/October 2011

Peter Dodge considers whether the court will order the completion of unfinished projects following dissolution

Section 39 of the Partnership Act 1890 provides for the winding-up of the business and affairs of a dissolved partnership. The former partners may, though, disagree as to how the firm’s property might best be realised.

Philippa Charles discusses the recent Supreme Court judgment in Jivraj

The London arbitration community has warmly welcomed the judgment of the Supreme Court in the case of Nurdin Jivraj v Sadruddin Hashwani [2011]. The issues in the case and the decision of the Court of Appeal had carried what one advocate described as ‘chilling’ implications for London as a seat of arbitration. Had the Supreme Court held that arbitrator selection criteria were subject to the requirements of anti-discrimination legislation, many London arbitration agreements may have been held to be invalid in their entirety.

Eversheds

Mark Surguy examines the tension between disclosure and misconduct

On 6 October 2011 the Solicitors Code of Conduct 2007 will be replaced by the SRA Code of Conduct. Whereas the 2007 Code was based on ‘core duties’, the new code will be outcomes-focused, based on ten mandatory principles that will effectively define the so-called ‘OFR’ regime of ‘outcomes-focused regulation’. The SRA Code sets out what it will look like for a lawyer who is acting in an ethical and principled manner.

Pannone LLP

Sarah Bazaraa looks at the impact of Lucasfilm v Ainsworth

The Supreme Court recently handed down its much anticipated judgment in Lucasfilm v Ainsworth [2011]: a case that highlighted difficulty with the practical application of the Copyright Designs and Patents Act 1998 (CDPA) and that forced the judiciary back into the uncomfortable realm of the arts. Unexpectedly, the case has become an authority for the proposition that defendants domiciled in the UK may be sued in the UK in respect of acts of copyright infringement that have taken place outside the EU pursuant to foreign copyright law.

Wiggin LLP

Simon Baggs and Rachel Barber report on the Newzbin2 case

The case of Twentieth Century Fox Film Corporation & ors v British Telecommunications plc [2011] (Newzbin2 case) addresses the question of whether an internet service provider can be required to impede subscriber access to a website engaged in copyright infringement.

Christopher Gilbert argues that we neglect arbitration at our peril

Practitioners fear that arbitration is in danger of being sidelined by the Ministry of Justice, notwithstanding the aim published in its Business Plan in November 2010 to develop ‘proposals to promote wider use of alternative dispute resolution, including mediation, in the civil courts’. The Green Paper ‘Solving disputes in the county courts: creating a simpler, quicker and more proportionate system’ was published at the end of March and was open for consultation until 29 June. Key proposals include:

Dov Ohrenstein reviews the law relating to reflective losses and derivative claims

Where a wrong is done to a company this will adversely impact on the value of members’ shares. If the company is unwilling or unable to claim for these losses then the shareholders will be prejudiced unless they can bring their own claim. However, there are substantial obstacles to such claims by shareholders, as shown in Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] at para 210: