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7719 results in Intersentia

Page 364 of 386

  • Chapter 17 - Arbitration Awards: Issues of Finality and Res Judicata

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 319-330

  • Summary

    ENGLISH PRACTICE

    In Nomihold Securities Inc v. Mobile Telesystems Finance SA (2012) Andrew Smith J held that an anti-suit injunction (10.23 ff) should be granted to prevent a party from pursuing a second arbitration designed to undermine and contradict the award in an earlier arbitration between the same parties. The judge held:

    ‘It is a breach of an arbitration agreement to bring proceedings to make an unlawful attempt to invalidate the award or to make a collateral attack on a binding judgment or award of a properly constituted tribunal.’

    This decision is sound because the re-litigation would run contrary to the parties’ implied undertaking to adhere to the result of the arbitration in the first reference. Andrew Smith J noted Lord Hobhouse's statement in Associated Electric & Gas Insurance Services Ltd v. European Reinsurance Co of Zurich (2003: see also on this case 18.11 to 18.13): ‘It is an implied term of an arbitration agreement that the parties agree to perform the award’.

    The Privy Council in Associated Electric & Gas Insurance Services Ltd v. European Reinsurance Co of Zurich (2003) held that issue estoppel can arise in arbitration, and this will be binding on a second arbitration panel seised with a matter on a related topic between the same parties. There had been earlier cases on issue estoppel in arbitration proceedings (see also 16.27, vol I). It should also be noted that issue estoppel is not quite as exacting as cause of action estoppel: unlike cause of action estoppel, issue estoppel can be relaxed in either of these situations: (i) there has been a retrospective change in the law which renders the point covered by issue estoppel ‘plainly’ wrong; or (ii) new evidence has emerged which ‘entirely changes the aspect of the case’, provided that, even if he had displayed ‘reasonable diligence’, the relevant party could not have discovered this evidence at the time of the earlier litigation (see also 15.73, vol I).

    In Nomihold Securities Inc v. Mobile Telesystems Finance SA (2012) Andrew Smith J assumed that the rule in Henderson v. Henderson (16.55 ff, vol I) will apply if in arbitration X between A and B, B could have readily raised issue P, but did not do so; and then in arbitration Y between A and B, B attempted to raise issue P.

  • Chapter 4 - The Six Phases of Court Proceedings

  • from PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 63-74

  • Summary

    INTRODUCTION TO THE PRE-ACTION STAGE

    The ‘pre-action phase’ covers the period from the occurrence of the contested issue or relevant ground for complaint to when that matter produces formal civil proceedings. Such fees are prohibited in respect of personal injury claims. Compliance with this ban will be monitored by relevant regulators.

    When the period of prescription (or ‘limitation of actions’) is generous, the pre-litigation phase will not be short: for example, six years for ordinary contractual claims, or even twelve years if the contract is contained in a formal ‘deed’. Perhaps no other subject so vividly reflects the scope for national difference than the fixing of periods of prescription.

    PHASE 1: PRE-ACTION PROTOCOLS

    The CPR (1998) system introduced an important set of ‘pre-action protocols’. As explained in Andrews (2007), a leading aim of the English scheme of pre-action protocols is to promote early and informed settlement, avoiding the expense and inconvenience of formal litigation. This is rooted in the philosophy that formal litigation, notably trial, is a form of dispute resolution which should be treated as a matter of ‘last resort’.

    All civil disputes which are headed for the English courts must comply with this elaborate system of pre-action protocols. They govern the prospective parties’ steps in preparing for commencement of proceedings.

    For the purpose of the English civil process, phase (1), the pre-action stage, is the first stage of the civil dispute in the following respects: (i) it forms part of a series of segments; (ii) it is regulated by the CPR system of rules; (iii) this regime of pre-action regulations applies to all prospective claims within England and Wales; and (iv) there are sanctions applicable if a prospective party fails to comply with the pre-action set of rules.

    This pre-action regime requires prospective parties, in particular: (i) to communicate among themselves the nature of the claim and defence in advance of commencement of proceedings; (ii) to consider opportunities for settlement and resort to ADR, notably mediation (although the latter is not compulsory); and (iii) to make appropriate exchanges of relevant information, including central documents relevant to the case. It follows that in a large and complicated dispute the parties will be engaged in compliance with these requirements for many months.

  • Chapter 4 - The Major Principles of Arbitration and Litigation: A Comparison

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 113-142

  • Summary

    OVERVIEW OF THE PRINCIPLES APPLICABLE TO ARBITRATION OR TO THE JUDICIAL PROCESS

    In chapter 25 of Volume I, it was suggested that there are five constellations of procedural principles relating to court proceedings, and the judicial process in general. Not all of these principles apply to arbitration.

    For convenience, these major principles will be restated here briefly (those principles, namely II, IV, VI and XIV, which do not apply to arbitration will be marked in bold; as for the principle of finality, which is respected more intensely within arbitration law, when compared with litigation, this is underlined in the text below).

    (1) ADVICE AND ACCESS: EMPOWERING THE PARTIES

  • I. Rights of Legal Consultation and Representation

  • II. Access to Court and to Justice (arbitration is an opting-out from public adjudication)

  • III. Protection against Bad or Spurious Claims and Defences

    • (2) CONDITIONS FOR SOUND DECISION-MAKING

  • IV. Judicial Independence (not a separate requirement in English arbitration law)

  • V. Judicial Impartiality

  • VI. Publicity and Open Justice (arbitration is a consensual retreat from open and public justice)

  • VII. Judicial Duty to Give Reasons

    • (3) AN EFFICIENT PROCESS

  • VIII. Judicial Control of the Civil Process to Ensure Focus and Proportionality

  • IX. Avoidance of Undue Delay

    • (4) A FAIR PROCESS

  • X. Judicial Duty to Avoid Surprise: The Principle of Due Notice

  • XI. Procedural Equality (equal respect for the parties)

  • XII. Equal Access to Information, including Disclosure of Information between Parties

  • XIII. Fair Play between the Parties

  • XIV. Accuracy of Decision-making (the arbitral tribunal is shielded from judicial scrutiny of the merits of the decision underpinning the relevant award – that is, the decision on the substance of the dispute; in England this shield applies to findings of fact and applications of foreign law, but section 69 of the Arbitration Act 1996 permits the High Court to control applications for review of arbitral findings of English law.)

    • (5) UPHOLDING JUDGMENT

  • XV. Finality (arbitration respects the principle of finality more intensely than court adjudication)

  • XVI. Effectiveness

    • We will see that the arbitral process substantially embodies the same fundamental principles as court proceedings. However, diff erences do exist: in respect of access (the choice of arbitration precluding resort to the court on questions concerning the merits or the substance of the dispute), publicity, accuracy, finality, and independence.

  • Chapter 17 - Enforcement of Court Judgments and Orders

  • from PART III - END-GAME: TRIAL, APPEAL, FINALITY AND ENFORCEMENT
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 495-516

  • Summary

    MONEY JUDGMENTS

    Fundamental to this topic is the axiom that judgment creditors are free to choose from the portfolio of available enforcement methods. Some creditors might already have extensive knowledge of the defendant's assets. Others will remain in the dark; for these, the next two paragraphs might be illuminating.

    Judgment creditors can apply for an order compelling a judgment debtor (or in the case of a company, one of its officers) to attend the court and to supply information concerning the debtor's means and financial commitments.

    If the judgment debtor is a company, CPR Part 71 enables an order to be made for information to be supplied by the company's officers. But the House of Lords held in Masri v. Consolidated Contractors International Co SAL (2009) that CPR Part 71 does not enable an order for examination to be made against an officer who is outside the jurisdiction, and that CPR Part 6 provides no basis for service out of the jurisdiction of any such order, had it been possible to make one.

    Sections 95–105 of the Tribunals, Courts, and Enforcement Act (‘TCE Act 2007’: 17.08) create new methods of obtaining information concerning debtors’ assets and indebtedness.

    Money judgments can be enforced by:

  • (i) a writ of fiery facias or warrant of execution (these are to re-named ‘writs of control’ and ‘warrants of control’ by the TCE Act 2007);

  • (ii) a third party debt order;

  • (iii) a charging order (against land), stop order (against securities or funds in court), or a stop notice (against securities);

  • (iv) by appointment of a receiver. Some types of pecuniary enforcement are available only in county courts:

  • (v) attachment of earnings orders; and

  • (vi) ‘administration orders’ (Part 5 of the TCE Act 2007 introduces various categories of protection for debtors in this context).

    • State Immunity and Enforcement of Foreign Judgments: The Supreme Court of the United Kingdom in NML Capital Ltd v. Republic of Argentina (2011) held that the State Immunity Act 1978 has the effect that a foreign judgment against a state concerning a commercial transaction (on these facts, a New York judgment concerning bonds issued by Argentina) could be recognised and enforced in England.

  • Chapter 1 - Introduction

  • from PART I - INTRODUCTION TO THE FORMS OF CIVIL JUSTICE
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 3-30

  • Summary

    THE FOUR FORMS OF CIVIL JUSTICE

    NATURE OF CIVIL JUSTICE

    Civil justice comprises the various processes enabling disputants to resolve, or at least terminate or narrow, their disputes. ‘Processes’ should be accorded a wide reference and should not be confined to systems supported directly by national legal systems and national governments. In this wider sense, civil disputes can be adjudicated by courts, resolved by arbitration, settled by mediation, or the parties can spontaneously reach unmediated agreements of settlement. Hence there are ‘four main forms of civil justice’: (i) the judicial process, involving court proceedings; (ii) arbitration; (iii) mediation; and (iv) (unmediated) settlement.

    DISTINGUISHING THE FOUR FORMS OF CIVIL JUSTICE

    Does the Process Involve a (Neutral) Third Party?

    It will be noted that court proceedings, arbitration, and mediation involve the intervention of a neutral third party. Unmediated settlement does not result from, nor need it be in any respect facilitated or induced by, the direct intervention of a judge, arbitrator, or mediator. In that sense it is an autonomous and informal style of dispute-resolution. However, if the settlement occurs aft er commencement of court or arbitral proceedings, it will be common for the parties to seek a consent judgment by the court, or its arbitral equivalent, in order to give (further) effect to the settlement (14.86).

    Is a Decision Imposed or Instead an Agreement Reached?

    Mediation (1.01 ff, vol II) differs from court proceedings and arbitration because the mediator does not (unlike the court or arbitral tribunal) impose a solution or decision. Instead the mediator merely endeavours to assist parties to reach accord.

    Is It a Public or Private Process?

    Information confidentially disclosed during settlement negotiations, whether or not involving mediation, is protected by the ‘without prejudice’ privilege. This imposes an external shell of protection and an internal bond of secrecy: thus the parties’ discussions enjoy a high level of protection from outside scrutiny (12.49), and neither party enjoys the unilateral right to disclose or make use of that information. To do so he must instead obtain the other party's consent.

  • Chapter 18 - Basic Costs Principles

  • from PART IV - COSTS AND FINANCING OF LITIGATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 519-550

  • Summary

    A TIME OF CHANGE

    Lord Justice Jackson's ‘Civil Litigation Costs Review’ (2009–10) placed the whole topic of costs and funding under scrutiny. The ‘Woolf reforms’ were expected to alleviate the problem of the high cost of civil litigation. But the situation has not improved. The topic of costs has become highly technical. English civil justice is perhaps unusual in providing specialist judges, known as ‘costs judges’, to decide certain costs matters. Furthermore, as noted by Lord Neuberger MR, a Costs Council is proposed to monitor the complicated system of costs in general.

    LAMENTATIONS

    In a lecture (2012) Lord Neuberger MR concluded:

    ‘Over the last ten years, civil litigation costs have continued to increase. In that respect the Woolf reforms, one of the main aims of which was to provide a cure for excessive litigation cost, failed. Indeed, I regret to say that the Woolf reforms are generally thought to have increased litigation costs. Certainly, the reforms… have front-ended costs, which is particularly unfortunate given that the great majority of cases settle before they get to trial.’

    Lord Neuberger MR also quoted the distinguished practitioner, Geoffrey Bindman, whose pre-CPR remarks remain relevant:

    ‘The secret, perhaps half-perceived at the time, was the open-endedness of litigation. The more work one did, the more one got paid: and there was no limit to the amount of work one could do, and even justify it. Barristers were encouraged (if they needed encouragement) to join in the fun. More recently the tail started to wag the dog. The litigation machines in the large firms had to be fuelled. Every case had to be expanded to fi ll the resources available to work on it. The pattern set by the larger firms had to be followed by everyone else. However many letters came from one side, the other had to reply… just as one barrister cannot afford to leave unanswered a point taken by his opponent. However much money one side chose to invest in the case, the other had to match it or go to the wall.’

Andrews on Civil Processes
  • Arbitration and Mediation
  • Volume 2
  • Neil H. Andrews
  • Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013
  • In two volumes Neil Andrews (University of Cambridge) examines civil processes in England and Wales. One of the leading legal jurisdictions in this area of law as many non-resident parties choose to conduct arbitration in London or bring proceedings before the English High Court, notably the Commercial Court. Written in a clear and well-ordered style, Andrews on Civil Processes therefore discusses the most important styles of civil dispute resolution: court proceedings (volume 1), mediation and arbitration (volume 2).Neil Andrews guides the reader through the practice of dispute resolution in all its major forms: public and private, adjudicative and conciliatory. The subject-matter has been split into two volumes to provide specialists with a choice, but the two volumes are of course complementary. They provide a complete picture of the court and arbitration systems, and of the developing technique of mediation. Advisors seeking further leads are also assisted by detailed citation of primary sources and rich bibliographical references.Volume 1: Court ProceedingsIn England there has been a sustained effort to control court proceedings and render them more efficient. The author explores common legal principles and connections between the court system and the alternative techniques of arbitration and mediation. For example, there is discussion of: the four forms of civil justice (chapter 1: mediation, settlement without mediation, arbitration, and court proceedings); the six phases of court proceedings (chapter 4); the four forms of English multi-party litigation (chapter 22); and the five constellations of procedural principle - advice and access, empowering the parties, conditions for sound decision-making, an efficient process, a fair process, and upholding judgment (chapters 25 to 29).Most recently, reform of costs was examined by Lord Justice Jackson's inquiry in 2009-10. This 2013 publication takes the complex set of reforms and changes introduced in April 2013 into account and provides detailed discussion where relevant (inter alia. qualified one way cost shifting, damages-based agreements, and the changes to conditional fee agreements and the system of settlement offers). A convenient survey of these changes is also set out in the introductory chapter of volume 1.'English civil procedure has undergone significant changes over the past few years. The Jackson reforms were the final piece in the jigsaw in what had already been a significantly changed procedural landscape. Against this background it is of a paramount importance to keep reference works up-to-date in order to give one a clear picture of where we stand. The new book, Andrews on Civil Processes, published in 2013, was designed to fill in the gap between recent developments and scholarly works in the field. This goal was squarely achieved. The book consists of two volumes, the first devoted to court proceedings while the second one deals exclusively with Arbitration & Mediation. It is a one-stop book for all those who want to resolve their disputes in England, be it through courts or ADR. Last but not least, Professor Neil Andrews is a respected authority in the realm of civil procedure and contract law, and his book should be warmly received by all contentious lawyers. 'Dr Roman Khodykin, partner in the law firm Berwin Leighton Paisner LLP (London).

  • Chapter 6 - Questioning the Transition: Late Transitional Justice?

  • Josep M. Tamarit Sumalla
  • Book:
    Historical Memory and Criminal Justice in Spain
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    30 May 2013, pp 75-82

  • Summary

    A NEW SOCIAL AND POLITICAL CONTEXT

    Some observers have suggested that the Spanish transition was rather unique, which would somewhat confirm the old adage that “Spain is different”. Political actors have been, to a greater or lesser degree, proud of a model of making pacts without transitional justice. Most of these attempts have then been examined within a narrative of heroic consensus. However, the sacralised culture of the “consenso” did not allow the development of a “culture of transitional justice” that is based on a set of beliefs and practices grounded in the rejection of impunity, challenging the past, prioritising the accountability of the State and seeking the broader social inclusion of the victims of the previous regime. But, if Spain was viewed as a model of “pacific” transition, it is now a pioneer again, but this time for “showing the way for “pacted democracies” to pursue justice after, and apart from, the moment of transition; in other words, it provides an example of the movement from transitional culture towards “post-transitional justice” politics”. However, since it is a process that took thirty years to get started, which implies a delayed response, it can be better described as a case of late transitional justice. The discovery of a “late transitional justice” leads us to question whether we find ourselves before a devalued form of transitional justice, a sort of “last resort”, or if we can conclude that transitional justice is a powerful social and political force capable of emerging in different temporal and spatial contexts.

    At the beginning of the 21st century, there remained a “pending debt” with the Spanish population. According to De la Cuesta, the three main factors which formed the basis of this argument were that: (a) many families still did not know the details of what happened to their missing and dead and felt the need to exhume their remains for reburial in their own cemeteries and family graves; (b) in some parts of Spain, Francoist symbols and memorials remained on display; and (c) there was an increasing demand for a revision of sentences and the overturning of legal judgments, including death sentences, passed against the political opponents of Franco.

  • Chapter 9 - Is Criminal Prosecution Viable? The Theoretical Debate

  • Josep M. Tamarit Sumalla
  • Book:
    Historical Memory and Criminal Justice in Spain
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    30 May 2013, pp 133-170

  • Summary

    THE LEGAL DESCRIPTION OF CRIMES AND THE PROBLEM OF RETROACTIVITY

    CRIMES AGAINST HUMANITY UNDER SPANISH CRIMINAL LAW

    The Spanish legal system is a pure example of a civil law model, where the principle of legality is an absolute limit to the State's power to impose criminal sanctions. Legality is conceived in strict terms of a Statutory Law passed by Parliament which must fulfil all requirements of a lex praevia et certa. Retroactivity is strictly prohibited and only feasible when the Law that must be applied is a “favourable law”, as it is stated in Article 9 of the Spanish Constitution and in Article 1 of the Penal Code. According to the prevailing criminal law doctrine, this prohibition constitutes a final obstacle to prosecute the crimes of Francoism. There is no doubt that during the repression acts were committed that were described as murder or unlawful detention according to the criminal law in force at the time of commission, but the attempts to prosecute in recent years have been based on the classification of the facts as crimes against humanity, in order to highlight the massive scale and the deep social impact of the crimes and more easily avoid the effects of amnesty law and prescription. What occurred in Spain during the Civil War and the first years of the dictatorship was obviously a systematic and generalised attack against the civil population or against a part of it, since the aim of the perpetrators was to eliminate and terrorise their opponents. Therefore, pursuant to the current law in force, it would not be a problem to classify the facts as crimes against humanity in the form of murder, torture or enforced disappearances. However, a first limitation the prohibition of retroactivity then appears, since crimes against humanity were enacted in the Spanish Penal Code (CPE) in the Act of 25 November 2003, which came into force in 2004.

    The definition of crimes against humanity included in the CPE was inspired by the Statute of Rome, although there are some differences.

  • Chapter 1 - Introduction

  • Josep M. Tamarit Sumalla
  • Book:
    Historical Memory and Criminal Justice in Spain
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    30 May 2013, pp 1-6

  • Summary

    The Spanish transition from the Franco regime to democracy has not been a very popular subject amongst researchers examining transitional justice at the international level. This impression can be easily supported by conducting a search through the list of countries in which the attention of publications and/or scientific activities have focused on this subject. However, Spain presents certain peculiarities that make it an interesting case in which to explore comparative law and sociology. It has sometimes been seen as a model of peaceful transition, but has also been labelled as an example of an “amnesic” transition to a democratic system in which victims’ rights, justice and truth were forgotten. During the Spanish transition, some of the decisions taken were very different from those made in Europe and in certain Latin American countries.

    As Huyse pointed out, post-Franco Spain could be seen as an example of a “third route towards impunity”. It was not impunity derived from a unilateral decision taken by the old authoritarian regime (self-amnesty) and it was not even impunity accompanied by a process in which the truth concerning the atrocities of the past was declared. Almost all of the democratic forces agreed to confer immunity on individuals who had committed crimes either defending or opposing the authoritarian regime; there was a conscious decision not to look back to the past and to forgive without setting any kind of conditions. As in post- War France, post-Franco Spain was an example of a policy of forgetting. Nino, and later Elster, presented the Spanish case as one of the transitions that took place in Southern Europe during the 1970s. However, the similarities in the situations of Spain, Greece and Portugal were little more than a coincidence. Spain was the only case in which a decision was taken to avoid transitional justice. This has sometimes been praised, but never copied.

    The first Act that included an explicit condemnation of the Franco regime was not passed until 2007, more than thirty years after the dictator's death. We should therefore ask ourselves whether Spain's lack of memory has, in fact, really come to an end and whether transitional justice itself has been anything more than just a time bomb.

  • Chapter 4 - The Repression and Its Legal Structure

  • Josep M. Tamarit Sumalla
  • Book:
    Historical Memory and Criminal Justice in Spain
    Published by:
    Intersentia
    Published online:
    16 December 2020
    Print publication:
    30 May 2013, pp 49-60

  • Summary

    BASIS OF THE REPRESSION

    A few days after the coup, the Junta de Defensa Nacional (National Defence Board) declared martial law to be in force throughout Spain, and even in the parts of the country which remained under Republican control. According to this law, anyone “committing acts or omissions which could prejudice the aims pursued by the movement to redeem our country” would be deemed guilty of a crime of military rebellion and tried by the military tribunals. This fiction would serve as the basis for court-martial trials in which thousands of people were sentenced to death or long prison terms during the Civil War and for many years after it was over, with the total violation of even the most elementary of procedural rights. Martial law remained in force until March 1948, nine years after the end of the Spanish Civil War.

    Between 1936 and 1945, the Franco regime carried out a brutal programme of mass repression. As well as those who were murdered by the regime's death squads, in some areas Francoist authorities subjected up to 15% of the population to summary military trials in which members of the civil society and Catholic Church frequently collaborated in denouncing and providing information about the activities and/or political orientations of the defendants. Recent historical research reveals that the Franco regime did not impose a police state upon a passive Spanish society. Instead, according to Anderson, there was mass complicity that forged a powerful repressive system based on elements present within Spanish society itself which was perhaps even more aggressive than what the Nazis managed to impose on the German population.

    DEPURATION

    The “purification” of Spain through the elimination of those considered responsible for its woes was the main goal pursued by Franco in directing the war effort and subsequently in building the “new state”. For this reason, in addition to the physical elimination or exile of opponents, Franco planned their removal from power and even from public employment. This lustration affected judges, university lecturers, teachers and other public employees. Franco thus made sure that his followers occupied relevant positions in the public administration. The scope of these measures was one of the key elements that explain the strength of the dictatorship.

Page 364 of 386