Insights

On 18 September 2024, the UK Supreme Court handed down its judgment in UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30.  The judgment considers several significant issues relevant to international arbitration.  Primarily, though, it reaffirms: (i) the English court’s strong support for arbitration, in general; (ii) the steps it is prepared to take to hold parties to their agreement to arbitrate; and (iii) the current position for determining the governing law of an arbitration agreement, in the absence of an express election by the parties.

On 19 March 2024, the Government followed through on a promise from the Ministry of Justice to introduce draft legislation to reverse the effect of  R (on the application of PACCAR Inc & Ors) v Competition Appeal Tribunal & Ors [2023] UKSC 28.  The effect of this ruling was discussed in our prior alert and follow on commentary discussing its effect on group competition litigation and initial government reform proposals. Should the bill pass, agreements to provide third party funding to litigation or advocacy services in England will no longer be required to comply with the Damages-Based Agreements Regulations 2013 (“DBA Regulations”) to be enforceable.

In this alert we discuss recent developments in the regulation of third party funding since R (on the application of PACCAR Inc & Ors) v Competition Appeal Tribunal & Ors [2023] UKSC 28, (“PACCAR”) which we discussed in our prior alert. In Alex Neill Class Representative Limited v Sony Interactive Entertainment Europe Limited et al. [2023] CAT 73, the first analysis of a third-party litigation funding agreement (“LFA”) to take place since PACCAR, finding that an optional payment mechanism based on a cut of damages “only to the extent enforceable and permitted by applicable law” will not render the whole LFA an unenforceable damages-based agreement (“DBA”). Meanwhile, the government intends to enact a legislative amendment to make non-lawyer LFAs for group opt-out competition proceedings enforceable, but calls have quickly begun for the government to go further.

On 6 September 2023, the Law Commission published its final “Review of the Arbitration Act 1996” (the “Report”). 

In R (on the application of PACCAR Inc & Ors) v Competition Appeal Tribunal & Ors [2023] UKSC 28, the U.K. Supreme Court has declared litigation funding agreements based on a cut of damages to need to comply with the Damages-Based Agreements Regulations 2013, while the Court of Appeal in Evans & O’Higgins v Barclays [2023] EWCA Civ 876 expands the scope of likely competition opt out litigation approval.

In Al-Qarqani v. Saudi Arabian Oil Company, Case No. 21-20034, the Fifth Circuit Court of Appeals has denied a petition seeking enforcement of a foreign arbitration award, finding that it lacked subject matter jurisdiction. The Court held that Saudi Arabian Oil Company, commonly known as Saudi Aramco, qualifies as a foreign State for purposes of the Foreign Sovereign Immunities Act (“FSIA”), and was immune from enforcement of the award in the courts of the United States. 

In our previous alert An English Law Perspective on COVID-19 and Contractual Disruption concerning force majeure events we noted that “beyond reasonable control” can mean that a business is expected to run itself well. In a recent case,1 the English High Court has issued a timely reminder that parties will not be able to rely upon force majeure clauses if they have not taken reasonable steps to guard against the particular event or circumstance in question.

Reports are coming in thick and fast that both courts and international arbitrations are adapting to the remote-working climate. This alert gives a synopsis of the proposed burgeoning tools, rules and recommended practices for virtual hearings emerging from the arbitration community, which is becoming increasingly comfortable with video conferencing. It further drills down on the critical issue of award enforcement in light of these developments and the COVID-19 pandemic.

COVID-19 has and will naturally lead many contracting parties to consider declaring that a force majeure event has occurred when performance becomes impossible or significantly more difficult. But that is not the only way in which contracts may be affected by the current crisis. In this article, we consider force majeure and a range of other contractual clauses in which risk may have been planned for and allocated between the parties, and which are likely to be highly relevant during the current crisis, as well as other remedies.

The 13 March 2020 Queen’s Bench Division Media and Communications List judgment in Alexander Aristides Reid v Katie Price [2020] EWHC 594 (QB) has added to the body of case law on damages for breaches under data protection legislation. Mr Reid was awarded £25,000 under the Data Protection Act 1998 (DPA 98) and other causes of action.

In the last few weeks the United Kingdom Government has introduced a variety of relief measures for businesses as the COVID-19 crisis escalates. Not all these measures are yet in force e.g. insolvency measures and annual general meeting formalities, as the legislation to implement these measures has not yet been adopted.

In a much anticipated judgment, today the United Kingdom Supreme Court ruled in WM Morrison Supermarkets plc v Various Claimants [2020] UKSC 12. Judgment was given by Lord Reed, with whom the remaining members of the panel agreed.

As everyone is aware, the recent COVID-19 outbreak has been declared a global pandemic by the World Health Organization and business disruption is accelerating around the world.

On January 28, 2020, the English Court of Appeal handed down an important decision on legal advice privilege (LAP) within judicial review proceedings brought by Jet2 against the Civil Aviation Authority. The CAA had sought to refuse disclosure of specific documents on privilege grounds.

On August 7, 2019 in Singapore, forty six states signed up to the United Nations Convention on International Settlement Agreements Resulting from Mediation (the Singapore Convention).

In the recent case Rock Advertising Limited v MWB Business Exchange Centres Limited,1 the Supreme Court of the United Kingdom considered whether a contractual term, which purported to preclude oral variations to a contract, was of legal effect. In holding that it was, the Court has significantly shifted English contract law. Previously, such terms were typically found to be ineffective; that is no longer the case.

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In this alert, we provide updates on recent headlines:

This alert follows our previous review of the judgment of the U.K. Supreme Court in IPCO (Nigeria) Limited v Nigerian National Petroleum Corporation [2017] UKSC 16 (IPCO). That case concerned a challenge to enforcement of a New York Convention arbitration award and considered whether the provision of security on the award value could be made a prerequisite to launching such a challenge. In a unanimous judgment, the Supreme Court held the provision of security may only be made a prerequisite in cases of adjournment pending resolution of a challenge in the courts of the seat of arbitration.