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Commercial disputes

Blog

Tech-driven arbitration? What else can we look forward to in arbitration in the UK?

Published on 25 February 2021. By Tatiana Minaeva, Partner and Kirtan Prasad, Senior Associate

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A look at the past year in arbitration in the UK and what the future holds.

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The jurisdiction eagle has landed…in the Courts of England & Wales

Published on 11 February 2021. By Parham Kouchikali, Partner and Nina Pulimood, Associate

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Does the governing law for passing off claims fall under Article 6 or Article 8 of Rome II? The High Court's explores this in Lyle & Scott Limited v American Eagle Outfitters Inc(1).

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When is an error a serious irregularity? The English court demonstrates its approach to correcting arbitration awards

Published on 11 February 2021. By Tatiana Minaeva, Partner and Rosy Gibson, Associate

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A tribunal's admission of a simple computational error, and its refusal to correct it, was a serious irregularity that had caused substantial injustice. On the basis of this, the English court remitted an arbitration award to the tribunal for correction so that the tribunal would have the room to carry outs its stated intention to award substantial damages to one of the parties.

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Publication

Hong Kong courts further expand remote hearings for civil cases

Published on 20 January 2021. By Jonathan Crompton, Partner and Rebecca Wong, Senior Associate

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Beware of trying to address gaps in your evidence during trial: High Court refuses permission to rely on a new witness statement prepared part-way through trial

Published on 07 January 2021. By Alastair Hall, Associate and Dan Wyatt, Partner

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The "inherent unreliability" in evidence prepared during trial, and the high risk that the evidence had been tailored to fit the current state of the claimant's case, caused the High Court to refuse the claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and to call that witness to give oral evidence during the trial. (1)

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Blog

The Court of Appeal provides useful reminder of the force of the "subject to contract" label in the context of settlement negotiations

Published on 17 December 2020. By Sean Cannon, Associate and Daniel Hemming, Partner

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A Part 36 offer does not alter the status of "subject to contract" protection in solicitors' correspondence settling a dispute.

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Blog

Late service of evidence requires relief from sanctions

Published on 16 December 2020. By Christina Gleeson, Senior Associate and Daniel Hemming, Partner

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An application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under CPR 3.9 according to the High Court in Wolf Rock (Cornwall) Ltd v Langhelle

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Publication

Hong Kong courts – Latest guidance on COVID-19 measures

Published on 10 December 2020. By Antony Sassi, Managing Partner, Asia and David Smyth, Senior Consultant

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Blog

Largest 'white elephant' in history of group actions

Published on 03 December 2020. By Simon Hart, Partner

BHP successfully applies to strike out 200,000 claims as an abuse of process. Had the judge not struck the claims out, he would have stayed proceedings on jurisdictional grounds under Article 34 and the doctrine of forum non conveniens. (1)

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Blog

Can an appeal court order repayment after it has reversed the relevant order?

Published on 30 November 2020. By Fred Kuchlin, Associate and Parham Kouchikali, Partner

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An appellate court has an inherent power to restore money paid or property transferred under an order which it has reversed. And not all contractual provisions are susceptible to being waived by election. These are the two key takeaways from the Privy Council's judgment in Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corporation [2020] UKPC 23.

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Blog

More is more when giving a notice of claim under an SPA

Published on 19 November 2020. By Emma Griffiths, Senior Associate and Geraldine Elliott, Partner

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A buyer's notice of claim pursuant to the terms of a sale and purchase agreement in a USD1 billion transaction failed adequately to comply with the notice requirements set out in the tax covenant of the SPA. As a result, a sum of USD50 million held in escrow for claims was paid out unconditionally to the sellers under the SPA. Dodika Ltd v United Good Luck Holdings Ltd [2020] EWHC 2101 (Comm).

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Blog

When is an Application to Court an Abuse of Process?

Published on 12 November 2020. By Lucy Baughan, Associate and Dan Wyatt, Partner

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While hearing the appeal of an application to discharge an interim order, the Court of Appeal clarified its approach to deciding when conduct is permissible and when it may amount to an abuse of process.

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Publication

Hong Kong courts keeping calm and carrying on

Published on 11 November 2020. By Carmel Green, Partner and Antony Sassi, Managing Partner, Asia

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To MAE or not to MAE? Commercial Court hands down preliminary issues judgment in first Covid-19 Material Adverse Effect case

Published on 05 November 2020. By Jodie Gittins, Associate and Jake Hardy, Partner

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In her recent decision in Travelport Limited and others v Wex Inc,(1) the Head of the Commercial Court provided topical guidance on the construction and application of Material Adverse Effect clauses in the context of the Covid-19 pandemic.

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Blog

LIBOR: Litigation risks in the endgame?

Published on 04 November 2020. By Simon Hart, Partner and Daniel Hemming, Partner

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In 2021 we will bid farewell to LIBOR and welcome in SONIA. The two systems work in different ways, with LIBOR looking forward and SONIA looking back.

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Blog

Hidden owners, ostensible authority and the Duomatic principle

Published on 26 October 2020. By Gill O'Regan, Senior Associate and Alan Williams, Partner

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The Duomatic principle can apply to ostensible authority as well as actual authority, according to the Privy Council in Ciban Management Corporation v Citco (BVI) Ltd & Anor (British Virgin Islands) [2020] UKPC 21.

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Blog

Hold on to your seats: UK Supreme Court ends the argument about the law governing arbitration agreements

Published on 22 October 2020. By Charles Allen, Partner

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Identifying what law governs a contractual term requiring the parties to arbitrate their disputes, rather than taking them to court, can be profoundly important.

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Blog

The LCIA Rules 2020 – what's new?

Published on 08 October 2020. By Fred Kuchlin, Associate and Tatiana Minaeva, Partner

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Changes in relation to complex multi-party cases and the use of technology form the backbone of the latest version of the London Court of International Arbitration (LCIA)'s arbitration rules (the LCIA Rules 2020).

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Blog

Overseas In-house lawyer's advice covered by legal advice privilege

Published on 08 October 2020. By Emily Saffer, Associate and Dan Wyatt, Partner

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There is no additional requirement for in-house foreign lawyers to be "appropriately qualified" or recognised or regulated as a "professional lawyer" for legal advice privilege to extend to communications between them and company employees.

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Blog

The Quincecare duty bowls out HSBC

Published on 01 October 2020. By Davina Given, Partner and Harriet Evans, Associate

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The High Court has held that banks may be liable for breaches of the Quincecare duty even where the customer's net assets have not been reduced by the breach; Stanford International Bank Ltd v HSBC Bank Plc(1)

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Blog

CFH Clearing Limited v Merrill Lynch International [2020] EWCA Civ 1064

Published on 24 September 2020. By Matthew Evans, Senior Associate and Simon Hart, Partner

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The Court of Appeal has held that "Market Practice" is too wide a term to be implied into an ISDA Master Agreement covering currency trading transactions, in dismissing a claim arising from the "de-pegging" of the Swiss Franc from the Euro.

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Blog

Security for costs not ordered despite looming economic downturn caused by COVID-19

Published on 17 September 2020. By Karina Plain, Associate (Australian qualified) and Chris Ross, Partner

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Evidence of the adverse impact of the COVID-19 pandemic on the Claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court in International Pipeline Products Limited v IK UK Ltd & Ors. [2020] EWHC 1602

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Blog

Stick to the process – a further reminder of how useful a process agent clause can be, especially following Brexit

Published on 10 September 2020. By Dan Wyatt, Partner and Tim Potts, Senior Associate

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Process agent clauses are commonly included in cross-border finance transactions. They avoid the need for the claimant, typically the lender, to have to serve process outside the jurisdiction, frequently a costly and time-consuming exercise, particularly when the court's permission is needed. Accordingly, lenders will often require a foreign borrower and/or any guarantors to appoint a process agent in the lender's jurisdiction to accept service on their behalf.

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Blog

No interim injunction over bitcoin account where damages would be adequate

Published on 03 September 2020. By Dan Wyatt, Partner and Christopher Whitehouse, Senior Associate

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The court has declined to continue interim injunctions granted in respect of a 'coin depot account' holding bitcoin over which the claimants asserted a proprietary right.

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Blog

HMRC Crackdown on Facilitation of Tax Evasion

Published on 01 September 2020. By Michelle Sloane, Partner

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Increased pressure on HMRC to boost tax revenues due to the economic cost of COVID-19 may bring about a surge in charging decisions for failure to prevent the facilitation of tax evasion (Corporate Criminal Offences (CCO)).

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Blog

Privy Council gives a lesson on the remoteness of damage in contract law within a judgment on damages for breach of separate but related contracts

Published on 27 August 2020. By Chris Ross, Partner and Eliot Henderson, Associate

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Where parties have entered into separate but related contracts, breach of one contract does not necessarily preclude the recovery of damages under another.

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Blog

Disputes, disputed: The court’s approach to competing dispute resolution clauses in successive agreements

Published on 20 August 2020. By Parham Kouchikali, Partner

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How are contradictory dispute resolution clauses resolved, where the agreements are entered into at different times? Intention and purpose is key, as set out in the test in BNP Paribas v Trattamento, where parties intended two agreements to perform separate roles as part of one transaction (even though the second is not contemplated at the time of the first).

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Blog

LIBOR claim by US agency will continue in London

Published on 10 August 2020. By Jake Hardy, Partner and Rosy Gibson, Associate

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A decision in the London High Court has demonstrated that the fallout from the long-running LIBOR fixing scandal is far from over.

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Blog

Hong Kong – Refusal to regrant injunction that lapsed during general adjournment successfully appealed

Published on 10 August 2020. By David Smyth, Senior Consultant

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In a previous update dated 29 April 2020, we noted that a first instance court held that the general adjourned period (GAP), during which the Hong Kong courts were closed save for urgent and essential court business, did not generally extend the duration of an injunction which was granted on an urgent basis before the GAP commenced and listed for a "return date" during the GAP (for further details, see "General adjournment in Hong Kong does not extend duration of ex parte injunction", dated 29 April 2020).

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Blog

Hong Kong Courts – COVID-19 Update

Published on 10 August 2020. By Carmel Green, Partner

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The general adjourned period (GAP), during which the courts were closed save for urgent and essential business, ended on 3 May 2020, enabling the courts to resume normal business in Hong Kong. Since then, the number of reported cases of COVID-19 in Hong Kong has approximately tripled following a third wave of infections.

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Blog

Supreme Court reflects on a narrower interpretation of "reflective loss"

Published on 07 August 2020. By Parham Kouchikali, Partner

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The Supreme Court has scaled back the scope of the reflective loss principle which has been expanded over the years. The reflective loss principle essentially prevents a shareholder from bringing a claim against a wrongdoer for the diminution in value of its shares or distributions that results from a loss caused by that wrongdoer to the company itself.

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Blog

Courts reach a landing on the test for jurisdiction over co-defendants

Published on 06 August 2020. By Simon Hart, Partner and Emma West, Senior Associate

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The court can only assert jurisdiction over an EU domiciled co-defendant under Article 8(1) of the Recast Brussels Regulation if the claim against the anchor defendant is sustainable.

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Blog

Orders for pre-action disclosure – exceptional in a commercial context?

Published on 22 July 2020. By Davina Given, Partner and Suzan Kurdi, Senior Associate

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Although parties are expected to exchange key documents before starting proceedings in the English court, a recent decision in the Commercial Court highlights the limited nature of those obligations, particularly in a commercial context.

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Blog

El Dorado in the Commercial Court: Domestic Law, Foreign Law and Foreign Relations

Published on 17 July 2020.

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Why is a dispute between Mr Nicolás Maduro and Mr Juan Guaidó as the rival contenders to the Presidency of Venezuela being heard by the English Commercial Court? The answer involves US$1 billion of gold reserves held at the Bank of England and who has the authority to deal with them.

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Blog

It's good to talk

Published on 16 July 2020. By Andy McGregor, Head of Civil Fraud and Adam Forster, Senior Associate

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A successful party has been declined some of its costs on the basis of an unreasonable refusal to engage in mediation. Wales (t/a Selective Investment Services) v CBRE Managed Services Ltd & Aviva.

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Publication

Examining the time bar for causes of action for the tort of negligent misrepresentation

10 July 2020

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Section 24A of Singapore’s Limitation Act (Cap. 163) provides, amongst other things, that the limitation period for any cause of action for damages for negligent misrepresentation accrues upon proof of damage in reliance of the negligent misrepresentation.

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Hong Kong Courts – Further guidance on remote court hearings

Published on 10 July 2020. By Carmel Green, Partner

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A second, more comprehensive guidance note on remote hearings in civil proceedings came into effect on 15 June 2020. The phase 2 guidance note provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first instance courts and the Court of Appeal, and is to be read together with the phase 1 guidance note issued on 2 April 2020.

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Blog

Waiving goodbye to privilege – reliance is key

Published on 02 July 2020. By Daniel Hemming, Partner and Steven Rajavinothan, Associate

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In what circumstances will a party waive privilege over legal advice by referring to it in evidence?

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Privileged but admissible? When can without prejudice material be pleaded in statements of case?

Published on 26 June 2020. By Simon Hart, Partner and Rosy Gibson, Associate

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The High Court considered the scope of the existing exceptions to the Without Prejudice Rule in its recent decision of Berkeley Square Holding & others v Lancer Property Asset Management & others(1). This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the Without Prejudice Rule.

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Blog

Freezing orders: risk of dissipation? Get real

Published on 18 June 2020. By Jonathan Cary, Partner

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The High Court has issued an important reminder of the need for solid evidence of a real risk that the respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order (WFO). Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice. Evidence of untrustworthiness, or even dishonesty, does not amount to sufficiently robust evidence of a real risk of dissipation to continue a worldwide freezing order.

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Hong Kong Courts – Expansion of use of remote hearings

Published on 17 June 2020. By Carmel Green, Partner

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As expected, the judiciary in Hong Kong has announced that it will expand the use of remote hearings for civil cases. The first Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1) came into effect on 3 April 2020. This was during the general adjourned period (GAP), when the courts were generally closed as a result of COVID-19, save for urgent and essential court business. The GAP came to an end on 3 May 2020.

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Minority shareholder oppression and the proper plaintiff rule – it gets personal

Published on 04 June 2020.

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Section 216 of the Companies Act (Cap. 50) affords protection for minority shareholders where their interests are oppressed by the manner in which the company’s affairs are being conducted or by how the directors’ powers are being exercised.

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The commission omission? English High Court balances text and context in contractual interpretation

Published on 28 May 2020. By Geraldine Elliott, Partner and Ben Harris, Associate

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English law's flexible, rational, yet stable approach to contractual interpretation has been demonstrated again in Clark Street Associates v Norsk Titanium(1), a decision concerning commission payments.

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Hong Kong Courts – Closing the GAP

Published on 22 May 2020. By Carmel Green, Partner

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The general adjourned period (GAP), during which the courts in Hong Kong were closed save for urgent and essential court business, started on 29 January 2020 with the early onset of COVID-19 in Hong Kong.

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To perform or not to perform? When tendering performance means actual performance

Published on 21 May 2020. By Dan Wyatt, Partner and Kirtan Prasad, Senior Associate

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A consultant was alleged to be in material breach of a consultancy contract for refusing to supply his services. He responded to a notice of material breach by stating that he was willing to perform. However, the Court of Appeal held that this was insufficient to remedy the breach (Bains v Arunvill Capital Limited and others)(1).

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Blog

When will reference to a document in a witness statement waive privilege in that document

Published on 14 May 2020. By Davina Given, Partner and Gill O'Regan, Senior Associate

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Tread carefully when considering whether and how to reference privileged documents; "deployment" of a document may draw back the cloak of privilege but a "mere reference" may not. Context will be key.

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What are good grounds for appeal in insolvency applications?

Published on 06 May 2020. By Simon Hart, Partner and Emily Saffer, Associate

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Applying for permission to advance fresh evidence on appeal is a tricky application, which has had varying degrees of success in the courts. Zheng Yougxiong v Gate Ventures Plc(1) is a useful example of the application of the criteria, albeit in the context of insolvency proceedings.

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Publication

Arbitrable disputes in the context of winding up proceedings

Published on 05 May 2020. By Prakash Nair, Director

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This note discusses two recent decisions of the Court of Appeal of Singapore that dealt with the standard of review to be applied in winding up proceedings where a debtor asserts that there is a dispute which parties agreed to resolve by way of arbitration.

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