May/June 2013 #49 – Law Journals

Conduct: Independent thinking

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Martin Meredith analyses a recent ECJ decision on the role of in-house lawyers ‘The ECJ reinforced the Akzo reasoning that a lawyer’s independence can be determined positively – by reference to professional obligations – but also negatively by reference to the absence of an employment relationship.’ The decision of Prezes Urzedu Komunikacji Elekronicnej & Republic …

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Jurisdiction: Rules of the road

Philippa Charles and Al Trent consider the vexed question of which law governs an arbitration agreement ‘The House of Lords made clear in Fiona Trust v Privalov [2007], an arbitration agreement is separable from its parent contract. It must be considered – in effect – as a separate contract.’ Arbitration practitioners will be aware that …

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Forum: Let’s take this fight elsewhere

Dan Smith discusses when proceedings can be stayed because of earlier proceedings elsewhere in the EU ‘Parties should consider very carefully how and where they commence proceedings. This can have long-lasting and serious consequences in multinational disputes.’ The English Court of Appeal has considered the application of Articles 27 and 28 of Brussels Regulation 44/2001 …

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Procedure: Feeling secure

John MacKenzie reviews recent case law on security for costs ‘These two cases point to a possible difference in approach towards ATE policies in security for costs applications in Scotland and England.’ In Geophysical Service Centre Company Ltd v Dowell Schlumberger (Middle East) Inc [2013], the defendant applied for security for costs. The defendant stated …

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Arbitration: Cutting to the chase

Jonathan Speed and Claire Morel de Westgaver consider whether arbitration should do more to embrace summary judgment procedures ‘Recent developments suggest that the industry is preparing for a shift from litigation to arbitration as a mechanism to resolve financial disputes and derivatives disputes in particular.’ A criticism that is often levied at international arbitration is …

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Company: Papering over the corporate cracks

Paul Green examines recent case law on corporate liability ‘In the broadest sense, Chandler v Cape is a wake-up call that separate corporate entities are intended to be just that, rather than merely a vehicle by which risk can be compartmentalised.’For over 110 years, it has been an established legal principle that the acts and …

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Contract: Faith in the system

Alistair Maughan and Sarah Wells look at whether a duty of good faith can ever be implied into a contract? ‘English courts have long held that parties should have the freedom to contract in the way that they wish, and so have been reluctant to intervene and impose overriding obligations of good faith. However, two …

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