In a recent decision the Paris Court of Appeal expressly referred to the European Court of Justice decision in EcoSwiss. The Paris court used the procedural autonomy granted in EcoSwiss to preserve the well-established principle that prohibits any revision of the merits of arbitration awards by reviewing courts.
The latest development in a long-running and controversial dispute between Thailand's Expressway and Rapid Transit Authority and a local/international joint venture, concerning the construction of a 55-kilometre expressway, is unlikely to be the end of what is increasingly regarded as a test of support for arbitration under Thai public sector contracts.
The Paris Court of Appeal has held that a challenge to the decision of a pre-arbitral referee was inadmissible because the rules of the International Chamber of Commerce pre-arbitral referee procedure made it clear that the referee was not acting as an arbitrator. Therefore, his decision could be characterized not as an arbitral award, but rather as a mere contractual obligation.
The Supreme Court has resolved some uncertainty by ruling that a court action which is brought without first implementing conciliation proceedings mandated by a contractual clause is inadmissible. The dispute may only progress to court if the conciliation proceedings fail, but the extent to which the parties must try to reach agreement in those proceedings is still unclear.
It is a well-established principle that arbitrators may rule on their own jurisdiction. However, it is less common to give arbitrators the right of precedence to do so. Two recent cases provide much-needed guidance on this matter.
Under rules which came into effect on September 30 2004, promoters and in some cases users of tax-planning arrangements involving certain financial products or relating to employment must notify details of the arrangements to the Inland Revenue.
The chancellor of the exchequer published his pre-budget report in December 2003. Key announcements for corporates are draft legislation repealing the current thin capitalization rules and extending the transfer pricing rules to UK domestic transactions, consultation on a tax-transparent real estate investment trust and significant changes to the value added tax grouping rules.
In a further consultation document published recently, the Inland Revenue filled out some more of the details of its wide-ranging proposals to reform UK corporation tax. The changes would affect all UK companies, particularly those in the real estate, life insurance, finance leasing and utilities sectors.
The chancellor of the exchequer announced the Budget on April 9 2003. As expected, a number of anti-avoidance provisions have been introduced. They include changes to the stamp duty group relief and acquisition relief clawback rules, and measures to prevent individuals from exploiting the 100% capital allowances rate available for expenditure on information and communications technology.
A recent High Court decision overturns Inland Revenue practice and offers significant tax benefits to corporation tax-paying investors on share buy-backs. However, the Inland Revenue may appeal the decision or seek to reverse its effect by attempting to introduce new legislation.
A recent decision of the European Court of Justice concerning the German thin capitalization rules has implications for the United Kingdom. Because the court's decisions are binding throughout the European Union and are not appealable, there appear to be two ways forward for the United Kingdom (and other member states) wishing to keep anti-thin capitalization restrictions in place.
The chancellor of the exchequer recently delivered his Pre-Budget Report. The report focuses on tightening up existing rules, as well as introducing a number of anti-avoidance provisions. There are also a number of provisions in relation to environmental matters, with the promise of more to come.
A government consultation document proposes that returns on capital assets be taxed as income in accordance with the accounting treatment, and that the schedular system of income taxation be rationalized. It also addresses the distinctions in tax treatment between trading and investment companies.
Electricity trading arrangements are under revision by the electricity regulator and the Department of Trade and Industry. New features include the abolition of the current wholesale trading mechanism, the introduction of a balancing mechanism and a new settlement process.
Including: Oil & Gas; Minerals; Electricity; Water
Where Civil Procedure Rules Part 36 requires a defendant's offer to settle a money claim to be supported by a payment into court of the amount offered, can the defendant expect to benefit from the provisions of Part 36 to put pressure on his opponent if he is not prepared to make the payment?
A recent Court of Appeal judgment gives important guidance on the assessment of damages under the Human Rights Act 1998. Although the decision was set in the context of asylum seekers, the guidance is equally applicable to all cases involving the Human Rights Act, including in the commercial and professional regulation areas.
A recent decision shows that the courts are willing to award significant damages for the loss of a chance to achieve a higher settlement, even where the difference between the settlement achieved and that which could have been achieved is modest. Among other things, the claimant must prove that it would not have accepted the lower settlement but for the negligence of its solicitors.
A recent Court of Appeal decision considered the principles governing when a contractual provision will be construed as a penalty (and will therefore be unenforceable), rather than as a valid contractual provision for payment. In particular, the court emphasized that the sum stipulated must be a genuine pre-estimate of loss.
Businesses which engage self-employed agents to promote their goods, rather than using an employed sales force, must pay compensation to the agent on the termination of the agency, save in certain limited circumstances. A recent decision goes some way towards clarifying how such payments should be calculated.
The established law on limitation periods looks set for a radical change, following the government's announcement that it accepts the Law Commission’s proposals for reform of the law on limitation of actions for civil claims. The government believes that the reform will provide greater clarity and certainty.
A recent decision provides some useful clarification on the factors to be taken into account in deciding whether, viewed objectively, it is reasonable to refuse to proceed to mediation, and the criteria relevant to whether there is a reasonable prospect of mediation succeeding.
The Human Rights Act, which is now in force, will have a significant impact on civil litigation. While the courts have warned against turning hearings into international human rights seminars, many issues remain to be resolved in practice, and there will doubtless be scope for an imaginative approach.
The Civil Procedure Rules provide that while the unsuccessful party will generally be ordered to pay the costs of the successful party, the court has a discretion to depart from this rule. Parties should thus be aware that their conduct from the earliest stages of a dispute will be closely examined when the court is awarding costs.