In Pan Ocean Co Ltd v Daelim Corporation, the Commercial Court decided that an arbitral tribunal had correctly implied a term requiring inspection of a vessel’s holds without delay into a charterparty. The court decided that although the arbitral award suggested that it was reasonable to imply the term, which is not a sufficient basis to do so, the award was valid if read in a reasonable and commercial manner.
EU Plans To Regulate Third-Party Funding in Litigation and International Arbitration
On 13th September 2022, the EU Parliament voted to approve a resolution proposing a directive (the “Directive”) on the regulation of third-party funding entitled “Responsible private funding of litigation”. If adopted in its current state, the proposal would regulate Third-Party Funders (“TPFs”) funding proceedings in the European Union.
Contractual Dispute Resolution Procedure as a Condition Precedent: Clarity is Key
The case of Kajima Construction Europe (UK) Ltd v Children’s Ark Partnership Ltd[1] serves as a reminder: a contractual Dispute Resolution Provision (“DRP”) can be a condition precedent to commencing proceedings. In a departure from previous case law,[2] the High Court in Kajima found a DRP does not actually have to be expressed as a condition precedent to be enforceable as one.
Take the Time to Take Notice
A failure to comply with provisions governing the notification of claims under share purchase agreements is an issue that comes before the courts with surprising regularity. Given that such failure could result in any subsequent claim being summarily dismissed, it is self-evident that utmost care must be taken when drafting notices of claim – you rarely get a second chance to make a compliant notification.
‘Party To’: the Scope of Section 213 of the Insolvency Act 1986
In Tradition Financial Service Ltd v Bilta (UK) Ltd & Others, the Court of Appeal considered the scope of section 213 of the Insolvency Act 1986 and, specifically, whether those beyond the small group of individuals with controlling or managerial functions of the liquidated company could be ‘party to’ the carrying on of a company’s businesses with intent to defraud creditors.
Known Unknowns: Settling Uncertainty
Settlement agreements are designed to remove uncertainty. With this in mind, parties typically prefer to agree broad releases so that the chance of any claim surviving the settlement is slim. However, while a broad release will clearly settle the known claims between the parties, what about the unknown claims?
Trials and Tribulations: Minimising the Risk of Disputes Arising from Clinical Trial Agreements
The Clinical Trials Regulation, which came into force last year, has modified (and in some cases increased) responsibilities for sponsors, streamlined reporting processes and improved protection for clinical trial subjects. In light of the regulatory changes, now is a good time to consider best practices when negotiating and performing Clinical Trial Agreements.
Crypto Exchange Found to Hold Stolen Assets on Trust for Victim of Crypto Crime
In Jones v Persons Unknown & Others the High Court made several rulings of interest in the developing area of crypto fraud litigation.
After granting judgment in favour of the claimant for claims of deceit and unjust enrichment against fraudsters, the court went on to rule that a crypto exchange controlling the wallet holding the claimant’s stolen Bitcoin was a constructive trustee. The court ordered the fraudsters and the exchange to deliver up the Bitcoin to the claimant.
The decision that an exchange is a constructive trustee in these circumstances remains controversial and will likely be tested in future contested litigation where the stolen funds have been deposited and then withdrawn from an innocent exchange. Contested cases may also explore the question of whether and in what circumstances stolen crypto assets can be traced through intermediary accounts, particularly where they have been mixed with other assets that are not part of the fraud.
Privilege: Privacy and Confidentiality Are Not to Be Equated
In Jinxin Inc v Aser Media PTE Ltd & Others, the High Court of England and Wales determined that directors’ personal emails and documents on a company’s computer systems were confidential, despite the company’s ability to monitor and access them. In reaching that decision, the judge stated that the parties were mistaken in describing the reasonable expectation of privacy as a touchstone of confidentiality: while the tests for both confidentiality and privacy are objective and may lead to the same answer on the same facts, they should not be equated as they have been developed on different legal foundations and protect different interests. The key element for a claim for confidentiality in information that has been shared with a third party is whether the information was shared in circumstances importing an obligation of confidence on that third party.
Reflective Loss Principle: Sufficiently Settled for Summary Determination
In its judgment in Burnford & Others v Automobile Association Developments Ltd, the Court of Appeal has provided a useful summary of the current status of the ‘reflective loss’ principle – the rule that shareholders cannot bring a claim for diminution in the value of their shares where that diminution is a consequence of loss suffered by the company and in respect of which the company has a claim. The message is clear: despite there being a degree of uncertainly about its application in a very few cases, for the vast majority of cases the law is now settled, and despite its lack of popularity, the principle is here to stay.