Civil law – Prosecute Bush Cheney http://prosecutebushcheney.org/ Mon, 10 Oct 2022 14:53:07 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png Civil law – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 Handling a Civil Appeal in the Wisconsin Court of Appeals – Civil Law https://prosecutebushcheney.org/handling-a-civil-appeal-in-the-wisconsin-court-of-appeals-civil-law/ Mon, 10 Oct 2022 14:53:07 +0000 https://prosecutebushcheney.org/handling-a-civil-appeal-in-the-wisconsin-court-of-appeals-civil-law/ To print this article, all you need to do is be registered or log in to Mondaq.com. Once you have reached the end of a trial in circuit court, the case is not necessarily over. A party against whom the circuit court has ruled may appeal to the Wisconsin Court of Appeals. Pursuing or defending […]]]>

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Once you have reached the end of a trial in circuit court, the case is not necessarily over. A party against whom the circuit court has ruled may appeal to the Wisconsin Court of Appeals. Pursuing or defending a civil appeal in Wisconsin can be a daunting task. Handling a civil appeal in the Wisconsin Court of Appeals is very different from handling a proceeding in the circuit court, and it requires a different approach and a different skill set.

In Wisconsin, trials take place in circuit court. Here, the parties present evidence and arguments, and the investigator, either the court or a jury, will make findings of fact. As for the appeals, they concern almost exclusively legal questions, and unlike the circuit court, the parties are generally not allowed to argue the facts. The appellate court does not make findings of fact and will not reverse the factual findings of the circuit court “unless the findings are clearly in error”, which rarely happens. See United Food & Commercial Workers Union v. Hormel Foods Corp.2016 WI 13, ¶ 29, 367 Wisconsin 2d 131, 876 NW2d 99.

Wisconsin has two courts of appeal, the Court of Appeals and the Supreme Court. Appeals to the Wisconsin Supreme Court are their own topic, but similar strategies and skill sets are involved. The Court of Appeals is Wisconsin’s intermediate appellate court. It is made up of 16 judges from four districts, with headquarters in Milwaukee, Waukesha, Wausau and Madison. Compared to the Supreme Court, the Wisconsin Court of Appeals represents a relatively high volume because appeals to the Wisconsin Court of Appeals are “as of right”, meaning a party has the right to appeal of an unfavorable decision. See WisconsinStat. 808.03(1).

Appeals to the Court of Appeal are generally decided by panels of three judges. See WisconsinStat. § 752.31(1). However, if the case falls under one of the categories specified in Wis. Stat. § 752.31(2), then it is decided by a single judge.

Overview of the procedure for filing an appeal and general deadlines

Once there is a final judgment or order to appeal, a party who wishes to appeal a final order or judgment in a civil case1 generally has 45 or 90 days to appeal by filing a notice of appeal. WisconsinStat. 808.04(1).2 This time limit is not extended if you file a motion for reconsideration in the Circuit Court. The notice of appeal is a document filed with the clerk of the circuit court that identifies the order or judgment being appealed and contains information about the case. Second. 809.10(1)(2)(b). The party appealing the judgment or order—referred to as “the appellant”—must also send a copy of the notice of appeal to the clerk of the Court of Appeal and pay a filing fee.
See WisconsinStat. §§ 809.10 & 809.11. Filing a Notice of Appeal in a timely manner is essential because “[t]The filing of a timely notice of appeal is necessary to give the court jurisdiction over the appeal.”
See WisconsinStat. § 809.10(1)(e).

The caller should then request a copy of the transcripts (if required) for each partand file a transcript statement with the Clerk of the Court of Appeals and the Clerk of the Circuit Court who “designate[s]parts of the transcript that were requested by the appellant or that contain a statement by the appellant that a transcript is not necessary for the prosecution of the appeal. » SeeSecond. 809.11(4).

Once the appellant files the notice of appeal, several things begin to happen behind the scenes, including the compilation of the circuit court record, called the “appeal brief.” The appeal record is a compilation of the original documents filed in circuit court, including the transcript if requested. See WisconsinStat. 809.15. Once the record has been compiled, each party receives a notice that the record is available for inspection (and potential correction). After each party has had a chance to inspect the appeal brief, the brief is filed, which begins the information deadlines, the most important aspect of the appeal.

The appellant has 40 days from the filing of the appeal brief to submit a brief setting out the appellant’s arguments to set aside the circuit court order or judgment. Specific requirements regarding length, content, formatting, and citations of the dissertation are set forth in Wis. Stat. § 809.19 and are very detailed.

Once the appellant files a brief, the party not appealing—called the “respondent”—has 30 days to file a responding brief. See WisconsinStat. 809.19(3).3 The appellant is then authorized to submit a memorandum in response, which is due 15 days after the memorandum in response. Second. 809.19(4).4

There are additional rules for cross-appeals (when both parties appeal aspects of the judgment or order) and when non-parties wish to file an amicus brief. See id.

File submission

Once the briefs have been filed, the case is screened, which determines, among other things, whether the case will be the subject of oral argument or whether the case will be submitted on the briefs alone. (Section VI(1) of the Wisconsin Court of Appeals Internal Operating Procedures). Although pleading is a common feature in circuit court, it is extremely rare in appellate court. In 2019, there were 884 appeal court submissions (all four districts). Of these 884 submissions, only 12 cases were argued orally. Thus, the overwhelming majority of cases brought before the Wisconsin Court of Appeals are decided solely on the factum submitted by the parties. This means that it is essential to submit a well-written and convincing dissertation; in all likelihood, this is the only chance you will have to make your point.

The Importance of a Good Appellate Lawyer (Even If You’re Not Appealing)

There are many ways an experienced appellate attorney can add value to your case. First, a good appellate attorney will have excellent research and analytical skills as well as experience with the Court of Appeals to give an honest assessment of your case before and after trial. If you are a potential appellant and are considering appealing an unfavorable decision, an appeal lawyer will be able to advise you on the chances of success. On the other hand, the circuit court may have ruled in your favor and you must defend yourself on appeal. Although the majority of circuit court decisions are upheld, the high upholding rate is somewhat misleading. An experienced appellate lawyer will be able to give you a more nuanced case assessment than just telling you that your case is likely to be upheld. Not all cases are equal. There may be other factors that increase the risk that the favorable decision you have obtained in the circuit court will be overturned on appeal, including the absence of determinative case law or the presence of a material error on the part of the circuit court. Have a good idea of ​​the strengths and weaknesses of
your case will allow you to make informed decisions in the future – whether to pursue or defend an appeal – including whether to file an appeal or whether to seek a settlement during the appeal.

Also, even if the trial is ongoing, pursuing a permissive appeal, called an interlocutory appeal, could sometimes avoid a costly and unnecessary trial. This is accomplished by filing an application for leave to appeal the non-final judgment or order to the court of appeal. See WisconsinStat. § 809.50. Attorneys who regularly handle appeals may be able to spot these issues as they arise in circuit court and provide insight into whether to pursue an interlocutory appeal. And even if you decide not to pursue an interlocutory appeal, an appellate attorney can help you spot potential issues to appeal later and ensure that the circuit court case is properly developed on those issues.

Once an appeal is underway, a lawyer with appellate experience who understands the process and strategy can make the difference. A good appellate lawyer can easily work within the existing factual framework to craft the best legal argument for you. You have limited space in your brief, which is probably the only chance you have to present your case to the Court of Appeal. Therefore, writing a concise brief, which requires a good understanding of operational legal issues, is essential to making effective arguments on appeal. A good appellate lawyer will know how to use this limited space and write to his audience, in this case the judges of the Court of Appeal, and sometimes the clerks of the judges.5 An appellate brief gets more attention than your typical filings in circuit court. Therefore, a memorandum of appeal must be drafted carefully, taking into account this additional examination.

The task of an appellate lawyer is to understand the
legal landscape and give the court a
legal way to reach a conclusion favorable to you based on the facts found in the circuit court. This legal route must then be explained clearly and concisely in the appeal brief. Experienced appellate lawyers will understand that it is essential to focus only on the strongest arguments and not waste time and space on issues with a low probability of success. While it may be tempting to raise every conceivable argument in your favor – indeed, many lawyers make this mistake – wasting time wasting arguments (1) can undermine your credibility with the court and (2) risk distract the court from your strongest arguments.

Footnotes

1. There are different procedures for criminal appeals, small claims eviction appeals and appeals involving the revocation of parental rights.

2. A party has 45 days if “notice in writing of the entry of a final judgment or order is given within 21 days of the final judgment or order”, but otherwise generally has 90 days. See Wis. Stat. 808.04(1). Either party may provide written notice of entry of the judgment or order. See Wis. Stat. 806.06.

3. The respondent has 30 days from the later of (1) the date of service of the appellant’s factum, plus 3 days if service is by mail, (2) the date on on which the Court of Appeal accepts the appellant’s factum for filing, or (3) the date on which the file is filed with the office of the Court of Appeal. See Wis. Stat. § 809.19.

4. The appellant has 15 days from the later of (1) the date of service of the brief in reply or (2) the date on which the Court of Appeal accepts the brief for filing.

5. Many Court of Appeal judges involve their lawyers in the decision-making process in a variety of ways, including reviewing the briefing, reviewing the record, legal research, and even assisting the judge in writing opinions.

Originally published October 23, 2020

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Time-limited apartment ownership is not against the Constitution, civil law: MoC | National https://prosecutebushcheney.org/time-limited-apartment-ownership-is-not-against-the-constitution-civil-law-moc-national/ Fri, 16 Sep 2022 02:57:13 +0000 https://prosecutebushcheney.org/time-limited-apartment-ownership-is-not-against-the-constitution-civil-law-moc-national/ Dreamhome Residence building in Ward 14 of Go Vap District in Ho Chi Minh City. (Photo: SGGP) Deputy Chief Nguyen Manh Khoi claimed that the time-limited apartment ownership proposal is not unconstitutional at all and is in line with civil law. In fact, the Constitution states that property rights are not restricted unless there are […]]]>
Dreamhome Residence building in Ward 14 of Go Vap District in Ho Chi Minh City. (Photo: SGGP)

Deputy Chief Nguyen Manh Khoi claimed that the time-limited apartment ownership proposal is not unconstitutional at all and is in line with civil law. In fact, the Constitution states that property rights are not restricted unless there are regulations to ensure the safety of people’s lives. Moreover, civil law stipulates that the right of ownership ends when the property concerned (in this case, old, degraded, dangerous apartments which must be demolished) is destroyed.

The general administrator also pointed out that the duration of ownership is not limited to 50 or 70 years, because the second draft does not mention the fixed duration of ownership of an apartment. Instead, this term is determined based on the service life of the construction, which is clearly stated in the assessed design, and is calculated from the time the entire construction is put into service. This term must be clearly written in the contract for the purchase of the apartment. At the end of this period, if the apartment is still usable in complete safety, the owner can ask a competent agency to evaluate the apartment with a view to an extension of ownership.

According to Deputy Chief Khoi, this proposal should not prevent investors from investing money in quality permanent construction works, because there are different levels of quality for buildings, which is clearly indicated in the profile of design so that contractors can choose the corresponding construction materials and technologies.

This new content, if it comes into force, is not retroactive, which means that apartments purchased before the law came into force are subject to the regulations at the time of purchase.

Regarding the compensation and reconstruction of fixed-term buildings, the State will directly use its budget to renovate or rebuild buildings that are unsafe due to natural disasters, accidents, fires or explosions. Residents of the affected block will be relocated directly to the old location. In the event that a building has to be dismantled for urban renewal projects according to joint planning, the owners of these apartments are resettled in places specified by these projects. These residents will benefit from new conditions of ownership of their new apartments.

With regard to outdated residential buildings, if the State does not plan to build new apartments there, the owners of these old apartments will receive compensation in accordance with the land policy and will be resettled in suitable places. If new buildings are to be built there, these owners can contribute money for the construction, without having to pay for the land. The construction plan will be negotiated at that time.

The Ministry of Construction said it continues to accept public views to ensure a balanced interest from all stakeholders.

By Bich Quyen – Translated by Vien Hong

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Malaysian Civil Litigation Series. Volume 1: What and when? – Civil right https://prosecutebushcheney.org/malaysian-civil-litigation-series-volume-1-what-and-when-civil-right/ Mon, 12 Sep 2022 16:56:49 +0000 https://prosecutebushcheney.org/malaysian-civil-litigation-series-volume-1-what-and-when-civil-right/ 1. Introduction In this modern era, more and more individuals and companies have started making their mark in other countries. Whether for professional or personal reasons, navigating the social system that makes the target country work is paramount to making that mark. One such system is the dispute resolution system which parties use to enforce […]]]>

1. Introduction

In this modern era, more and more individuals and companies have started making their mark in other countries. Whether for professional or personal reasons, navigating the social system that makes the target country work is paramount to making that mark. One such system is the dispute resolution system which parties use to enforce their rights.

Having a good idea of ​​how such a system works in a country will enable stakeholders to make sound and informed decisions. Thus, the purpose of this series is to answer the following questions:

  • What is a legal action in Malaysia?

  • When should you take legal action?

  • Who can pursue such an action and against whom can it be sued?

  • Where should we pursue them?

  • How do I file a lawsuit?

In an attempt to provide a basis for this discussion, we will examine “what”, “when”, “who”, and “where”. In an attempt to make things concise and easy to read, the remaining questions and their specific points will be elaborated on in other parts of the series.

2. What is a lawsuit based on?

This series will provide simple yet comprehensive discussions of how the Malaysian dispute resolution system works, which typically revolves around local courts. However, before looking at this, it is important to look at the causes that lead the parties to go to court in the first place, which is the cause of action.

As the words suggest, a cause of action literally means the origin of a legal action that is to take place. Specifically, a cause of action is normally when there is one person who can sue 2 and another who can be sued, and when all the facts have occurred and it is important to prove that the plaintiff has the right to win the case.1 . The party suing is called a plaintiff and who can be sued is a defendant. The facts that occurred would then be considered as evidence.

As a practical example, a supplier who manufactures pipes will be considered a defendant if their customers have obtained defective pipes. The purchase order and the invoices will then prevail. The cause of action will then be based on a breach of contract due to the supply of defective products. It should be noted that causes of action can take a variety of forms, although the most common are due to claims in contract or tort.

3. When can legal action take place?

A potential plaintiff should always be aware of the deadlines for their civil action. In other words, if the case is filed in court too soon or too late? A situation where the cause of action is judged too soon would be to sue the manufacturer for defective pipes before placing an order. This is an obvious example of where things happen too soon, where the cause of action has not yet run. However, there may be instances where a potential outcome by one party is not so clear, such as a potential hostile takeover. However, these cases are unique in themselves and will be investigated in the near future.

When it comes to being too late, it will be due to the limitation period of the particular case. Most businesses will be involved in contract or tort disputes, which must generally be filed within 6 years from the date of the cause of action.2. In the event that the aggrieved customer obtains the defective hoses in 2022, they have up to 6 years (i.e. no later than 2028) to file such claim for the hoses. A new acknowledgment could help reset the statute of limitations3. For example, if the supplier recognizes the defect in 2023 and promises to supply functional pipes, then the limitation period is pushed back to 2029 (6 years from 2023). It should be noted that if a potential defendant is the Malaysian government, the statute of limitations for such a case will be 3 years instead.4.

4. Who can sue?

As mentioned earlier, the party that sues is called a plaintiff and a party that is sued is called a defendant. Specifically, a cause of action exists if there is a plaintiff who can sue, a defendant who can be sued, and if there are material facts that allow the plaintiff to succeed.5. In principle, plaintiffs and defendants must be appropriate legal persons. The most common will be living people and businesses. If multiple parties were injured and/or an event was caused by the actions (or otherwise) of multiple parties, multiple plaintiffs and/or multiple defendants may be involved. It is common for multiple plaintiffs to be called a class action.

It should be noted that there are exceptions to this. One of them is a sole proprietorship. A sole proprietorship is a type of business owned and operated by one person. A person who operates a sole proprietorship must bring an action against others in his own name6. However, the owner may be sued in his name or in his business name.

Another exception is a conventional partnership. A partnership is defined as a business carried on by two or more persons for the purpose of obtaining a profit from that business.7. Thus, in civil matters, they must bring an action on behalf of the company, and any action against them must also be brought against them8. This should not be confused with the recently introduced limited liability partnership, in which such a partnership is treated as a separate legal entity.9, and should sue and be sued as an ordinary business.

5. Where should a party bring an action?

Once the parties and the cause of action have been determined, the next step is to determine which court is the correct forum for the proceeding to begin. If a claim is between MYR 0 and MYR 100,000.0010, the claim must be made in the Magistrates’ Court. If the value of the claim is between MYR 100,000.00 and MYR 1 million, then the procedure must start in the Magistrate Court11. If the claim exceeds the value of MYR 1 million, it must be filed in the High Court.

The Malaysian legal system has a two-tier appeal system in which, if a case is heard by the Magistrates’ or Sessions Court, the appeal will first be heard by the High Court and a second appeal, if it is filed, will be heard by the Court. call. If proceedings commenced in the High Court, the appeal will be heard first in the Court of Appeal and finally in the Federal Court if appealed a second time. The Federal Court is the supreme court of the land.

It should be noted that there is a range of non-judicial dispute resolution avenues such as courts and arbitration. There are also other types of legal proceedings such as interlocutory actions and judicial review. However, for the sake of consistency and brevity, they will not be discussed at this stage and may be revisited in the future.

6. Closing

Before a party can take legal action, it is relevant whether there is justifiable cause to do so. In addition, precautionary measures should be taken to prevent the claim from being hampered by factors such as time, place and the legal status of a counterparty. We hope the above has given you an idea of ​​how the Malaysian judicial system works. In the next installment of this series, we’ll dive deeper into the actual litigation process. It should be noted that the above is only an overview of a broad topic and we may revisit topics that have been shared in more detail in the future as the occasion permits.

Footnotes

1 Lim Kean vs. Choo Koon [1970] 1MLJ 158

2 Section 6 Limitation Act 1953

3 Section 27 of the Limitation Act 1953

4 Section 2, Protection of Public Authorities Act 1948

5 Lim Kean vs. Choo Koon [1970] 1MLJ 158

6 Order 77 Rule 9 Rules of Court 2012

7 Section 3(1), Partnership Act 1961

8 Order 77 Rule 1, Rules of Court 2012

9 Sections 3 and 4, Limited Liability Companies Act 2012

10 Section 90 of the Subordinate Courts Act 1948

11 Section 65(1) of the Subordinate Courts Act 1948 4

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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The EU accedes to the Convention on the enforcement of judgments – Civil law https://prosecutebushcheney.org/the-eu-accedes-to-the-convention-on-the-enforcement-of-judgments-civil-law/ Fri, 09 Sep 2022 15:12:19 +0000 https://prosecutebushcheney.org/the-eu-accedes-to-the-convention-on-the-enforcement-of-judgments-civil-law/ September 09, 2022 Beijing Bayar Mizrahi To print this article, all you need to do is be registered or log in to Mondaq.com. On 23.06.2022, the European Parliament gave its consent to the accession of the European Union to the Convention of 2 July 2019 on the recognition and enforcement of foreign judgments […]]]>

To print this article, all you need to do is be registered or log in to Mondaq.com.

On 23.06.2022, the European Parliament gave its consent to the accession of the European Union to the Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the “Convention”).

The States of the European Union are bound by the Convention, which will enter into force from 01.09.2023, following the accession of the European Union. Ukraine has signed and ratified the Convention and therefore it will also enter into force on 01.09.2023 for Ukraine. Costa Rica, Israel, the Russian Federation, the United States of America and Uruguay have also signed the Convention.

The Convention aims to establish a common framework for the worldwide circulation of judgments in civil or commercial matters. In the explanatory memorandum, the European Parliament describes the Convention as an instrument of the utmost importance for European citizens and businesses.

Turkey has not yet signed the Convention.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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No privilege of work product between potential adversaries – Civil law https://prosecutebushcheney.org/no-privilege-of-work-product-between-potential-adversaries-civil-law/ Tue, 16 Aug 2022 22:47:15 +0000 https://prosecutebushcheney.org/no-privilege-of-work-product-between-potential-adversaries-civil-law/ To print this article, all you need to do is be registered or log in to Mondaq.com. When parties with a common interest share the attorney’s work product in anticipation of litigation, the parties often expect that the work product will be shielded from disclosure in subsequent litigation. If, however, a party shares the work […]]]>

To print this article, all you need to do is be registered or log in to Mondaq.com.

When parties with a common interest share the attorney’s work product in anticipation of litigation, the parties often expect that the work product will be shielded from disclosure in subsequent litigation. If, however, a party shares the work product with another party with whom it has a common interest but who is also a potential adversary, the work product may be discovered by third parties, even if the sharing parties had a common interest. when they exchanged the work product

U.S. Magistrate Judge Gabriel W. Gorenstein of the Southern District of New York recently addressed this specific issue in Pilkington N. Am. v. Mitsui Sumitomo Ins. Co. of Am., 341 FRD 10, 16 (SDNY 2022). Prior to litigation, the prospective plaintiff, Pilkington North America, exchanged attorney work product with its insurance broker, Aon Risk Services Central, with which it shared a common interest at the time, but has then named defendant in the action. Common interest notwithstanding, Judge Gorenstein held that the work product could be discovered by the other defendant in the action, Mitsui Sumitomo Insurance Company of America (MSI), because (1) when the documents were exchanged , Aon and Pilkington were foreseeable adversaries and (2) the work product was relevant to the subject matter of potential litigation between the parties. The ruling urges caution for parties considering sharing work product with a party that may later become an adversary.

‘Pilkington vs. MSI & Aon’

In 2009, Plaintiff Pilkington purchased insurance from Defendant MSI with the assistance of Pilkington’s insurance broker, Defendant Aon. The insurance policy originally provided coverage of up to more than $300 million for damage caused by windstorms. In 2015, MSI requested certain changes to the insurance policy, one of which would cap the policy limit for windstorm damage at $15 million. According to the complaint, Pilkington only agreed to the policy changes after Aon informed Pilkington that the changes would not affect the storm limit.

In February 2017, a tornado hit the Pilkington plant in Illinois, allegedly causing damage of up to $100 million. The day after the tornado, Pilkington applied for coverage under its insurance policy with MSI. In response, Aon alerted Pilkington that the insurance policy limited storm losses to $15 million. Shortly thereafter, Pilkington retained Aon as a consultant to help Pilkington prepare an insurance claim to seek recovery from MSI. Pilkington’s General Counsel then contacted outside counsel for assistance in responding to MSI’s coverage defenses and they discussed, among other things, Pilkington’s upholding of Aon and MSI’s assertion that which the revised storm insurance policy limit capped coverage at $15 million.

Pilkington and Aon’s consulting agreement provided that Aon would help settle claims with MSI and that Aon would provide expert testimony. Pursuant to this counsel agreement, Pilkington’s outside counsel communicated with Aon and sent Aon documents containing the work product of the outside counsel.

In response to Pilkington’s insurance claim, MSI ultimately compensated Pilkington for only $15 million. Citing the revised windstorm limit, MSI denied coverage for any damages over that amount.

Pilkington responded by suing MSI and Aon, seeking additional relief from MSI under the insurance policy, and seeking damages from Aon based on its allegedly improper advice to Pilkington regarding the 2015 changes to the policy that introduced the $15 million storm limit. After defendants’ motions to dismiss were denied, MSI filed a motion to compel Pilkington to produce certain documents that Pilkington had shared with Aon when Aon was acting as a consultant to Pilkington and assisting Pilkington in preparing its insurance claim against MSI. Pilkington declined to produce the documents, saying the documents were protected from disclosure by the attorney’s work product doctrine.

Relevant legal principles

In resolving the motion to compel, Justice Gorenstein began by discussing the relevant law governing the work product doctrine. Justice Gorenstein observed that the doctrine generally protects from discovery “documents and tangible things which are prepared in anticipation of litigation or for trial by or for another party or his representative”. Pilkington, 341 FRD at 13 (citing Fed. R. Civ. P. 26(b)(3)).

The purpose of the doctrine is to provide a zone of confidentiality for lawyers to prepare for litigation without unnecessary intrusion from adversaries. Identifier.

The party claiming work product protection bears the burden of establishing that the protection applies. Identifier. To qualify for protection, the withheld material must be “(1) a document or tangible thing, (2) which was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by his representative.” Identifier. (citing Allied Irish Banks, PLC v. Bank of Am., NA, 252 FRD 163, 173 (SDNY 2008)). To demonstrate that a document has been prepared”[i]In anticipation of litigation”, the withholding party must show that “having regard to the nature of the document and the factual situation in the particular case, it can reasonably be said that the document was prepared or obtained because of prospect of litigation. Id. at 13-14 (citing United States v. Adlman, 134 F.3d 1194, 1202 (2d Cir. 1998)). Therefore, documents that are created in the normal course of business are not protected, although documents created in anticipation of litigation are protected even if they were also intended to be used to facilitate business transactions. ID at 13

Unlike attorney-client privilege, a party does not waive work product protection simply by disclosing the work product to a third party. Identifier. at 14 (citing Bank of Am., NA v. Terra Nova Ins. Co., 212 FRD 166, 169 (SDNY 2002)).

The lack of an automatic waiver when work product is disclosed to a third party exists because “attorneys must often rely on the assistance of investigators and other agents in compiling documents for trial.” Identifier. at 13 (citing United States v. Nobles, 422 US 225, 238-39 (1975)).

Accordingly, a party may share work product with third parties without waiving privilege where “the disclosing party and the third party share a common interest”. Identifier. at 16 (citing Merrill Lynch & Co. v. Allegheny Energy, 229 FRD 441, 446 (SDNY 2004)). However, “[a] party waives work product protection by taking actions inconsistent with … its purpose, such as disclosing the work product to its opponent …” Id. at 14 (citing NY Times Co. v. US Dep’t of Justice, 939 F.3d 479, 494 (2nd Cir. 2019)).

Application of Relevant Legal Principles to “Pilkington”

Applying the above principles, Justice Gorenstein held that even though the documents Pilkington shared with Aon had been created in anticipation of litigation and thus constituted “work product”, Pilkington had waived work product protection by disclosing the documents to Aon, because (1) at the time of the disclosure, Aon was likely a potential adversary of Pilkington and (2) the documents related to the subject matter of the potential litigation between them. Identifier. at 14-15.

Thus, in finding that the shared documents were not entitled to work product protection, Justice Gorenstein focused both on the relationship between Pilkington and Aon and the nature of the documents they exchanged. Identifier. If the shared documents had related to a subject other than the foreseeable dispute between Pilkington and Aon, according to Justice Gorenstein’s analysis, the privilege would not have been destroyed. See id. But because Pilkington and Aon were potential adversaries, and the documents shared concerned the parties’ foreseeable dispute (they concerned the limit of the windstorm), Judge Gorenstein found that sharing the documents was inconsistent with the purpose of the privilege (allowing a lawyer to shield his or her thought process from an adversary) and therefore constituted a waiver of privilege. Identifier.

In concluding that Aon was a foreseeable adversary of Pilkington, Judge Gorenstein observed that as Pilkington’s insurance broker, Aon reviewed the proposed 2015 changes to the insurance policy and advised Pilkington of their impact . Identifier. at 15. Given that Aon’s role was to provide advice to Pilkington regarding the 2015 changes, Judge Gorenstein found that it was clearly possible for Pilkington to claim that the advice was legally deficient and that Aon would become the opponent of Pilkington. Identifier. Furthermore, Judge Gorenstein noted that Pilkington had titled one of the withheld documents “PNA-MSI-Aon Litigation strategy”, suggesting that Pilkington was in fact viewing Aon as a potential adversary at the same time that he was sharing work product. . Identifier. Judge Gorenstein further noted that Pilkington evidently failed to file an affidavit asserting that he did not view Aon as a potential adversary when sharing work product with him. Identifier.

Gorenstein J. went on to find that the fact that Pilkington and Aon shared a common interest at the time the documents were shared (i.e. “taking Pilkington out of the [$15 million]
[]limit claimed by MSI”) was insufficient to avoid waiver. adversary or a conduit to a potential adversary.” Id. (citing Merrill Lynch, 229 FRD at 447). Here, however, Pilkington and Aon were potential adversaries, and so that the parties may have shared a common interest could not negate the waiver that occurred when Pilkington shared the documents with his potential adversary. Judge Gorenstein noted that to hold otherwise would lead to the untenable result that “even today, during the course of this litigation, Pilkington and Aon could freely share the work product without waiver given that they share a common interest in eliminating [$15 million] limit – at the same time, Pilkington is suing Aon for tens of millions of dollars.” Id.

Conclusion

Although parties may exchange attorney’s work product with third parties in anticipation of litigation without waiving privilege, such documents may be discovered if, at the time of disclosure, that third party was foreseeably a potential adversary. and the documents related to the subject matter of their potential litigation. .

Originally published by the New York Law Journal

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Solving the Multi-Jurisdictional Puzzle: Which Law Applies? – Civil right https://prosecutebushcheney.org/solving-the-multi-jurisdictional-puzzle-which-law-applies-civil-right/ Fri, 22 Jul 2022 18:22:37 +0000 https://prosecutebushcheney.org/solving-the-multi-jurisdictional-puzzle-which-law-applies-civil-right/ To print this article, all you need to do is be registered or log in to Mondaq.com. Increasingly, people and their assets have ties to multiple jurisdictions, rather than just one as in the past. Over the course of a lifetime, many of us will leave behind real estate, bank accounts, investment accounts, retirement savings […]]]>

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Increasingly, people and their assets have ties to multiple jurisdictions, rather than just one as in the past. Over the course of a lifetime, many of us will leave behind real estate, bank accounts, investment accounts, retirement savings plans and pensions, as well as beneficiaries and other ties spread across many many different places.

But what happens at death to determine which law will apply? The body of law called “conflict of laws” creates rules to determine the applicable law to govern the succession in the event of death. The rules are complex, sometimes vague, and vary widely between common law jurisdictions, such as Canadian provinces and territories (except Quebec), United States, England and Wales, Australia and New Zealand, and civil law jurisdictions such as Quebec, France, Italy, Japan and most Latin American countries, and many more.

Common law countries deal with questions of succession based on a two-pronged approach: the “domicile” of a deceased person, or the location of the property, in legal terms called “situ”.

Domicile is an intriguing concept, and in short, it means where a person’s permanent home is. Everyone must have a home, and we are each born with one by right, what is called a “home of origin”.

Your original domicile never changes, but it can be suspended by the acquisition of a “domicile of choice”, for which two elements must be present: the acquisition of a residence in a new place, and the intend to stay there permanently. Determining intent requires a detailed examination of the facts, and there is no precise formula. So you can see how it can lead to litigation later on if it’s unclear whether someone has moved or not.

In the two-pronged approach used by common law jurisdictions, the other important concept is that of the location of the property or “situs”. Real estate is simple – it is located where the land itself is. For tangible property, such as jewelry, furniture, and vehicles, the general rule is that they are where they are.

For several other categories of assets, including intangibles, such as debt and shares, the rules of situs are more complex.

Under common law rules, the applicable law to determine a matter of succession will depend on whether the property is “movable” or “immovable”. Buildings include land and interests in land, such as a lease or life estate. Personal property includes the remainder of a deceased’s estate, other than real estate, including intangible assets in most cases.

For most estates, if the property is moveable, wherever it is located, its estate will be governed by the domicile of the deceased. But if the property is a building, the succession will be governed by the place where it is located, or in succession terminology, located.

For example, if a person dies without a will, the right to his property intestate will depend on the application of possibly two rules: the domicile of the deceased for his movable property and the law of the place where his immovable property is located for their property. real estate.

An example based on a real case from 2014, Vanston v. Scottis useful for understanding how these rules may apply in practice.

At issue was which law should apply to determine the succession to the movable property of the deceased in the event of death. The plaintiff wife claimed it was Saskatchewan, and the defendant’s children claimed it was British Columbia.

The children wanted to challenge the will, as the deceased left most of his estate to his second wife and excluded the children from his first marriage. British Columbia has liberal legislation that can allow a court to change the terms of a will, including where adult children have not been adequately cared for. The deceased was born in Alberta (his original home) and died in Kelowna, BC. He practiced medicine in British Columbia for many years, then moved to Saskatchewan to work. He met his second wife shortly after moving, who was residing in British Columbia. After several years, she moved to Saskatchewan. The deceased lost his job and spent several months looking for work across Canada. Without finding new employment, he and his wife returned to British Columbia, sold their condominium in Saskatchewan, stored furniture and moved a large number of personal effects to a short-term rental property in British Columbia, and registered their car in British Columbia. After arriving in British Columbia, the deceased and his spouse traveled abroad in search of employment, with a view to working outside of Canada. The deceased died shortly after returning from his international job search.

The court ruled that the deceased had abandoned Saskatchewan as his chosen home when leaving the province, but that although he had acquired a residence in British Columbia, he had no indefinite intention of living there. Although the deceased had not resided in Alberta for more than 25 years, the expected court — to the surprise of the parties — found that his original Alberta home had come back to life, and that he had abandoned his former home of choice (Saskatchewan), without yet acquiring a new one.

Civil law jurisdictions have different rules for determining applicable law, often based on the nationality of the deceased. On August 17, 2015, the European Union adopted the
EU Succession Regulation which applies to all EU Member States except Denmark and Ireland, which have opted out. In most cases, the “last habitual residence” of a deceased person will determine which laws of the country will apply. Again, this is a factual determination that can also certainly give rise to disputes.

When it comes to conflict of laws, estates and deceased persons that cross borders or have multi-jurisdictional connections, there is significant complexity and a great deal of uncertainty.

Solving the multi-jurisdictional puzzle is not an easy task and, as we see in the case above, can sometimes lead to surprising results.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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Taverns’ Legal Duty of Care to Customers – Civil Law https://prosecutebushcheney.org/taverns-legal-duty-of-care-to-customers-civil-law/ Thu, 21 Jul 2022 07:00:00 +0000 https://prosecutebushcheney.org/taverns-legal-duty-of-care-to-customers-civil-law/ July 21, 2022 adam and adam To print this article, all you need to do is be registered or log in to Mondaq.com. Most taverns are notoriously known for their insecurity and violent activities. Serious muggings, bar fights, and occasional deaths are not necessarily unheard of in taverns. Most societies have come to […]]]>

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Most taverns are notoriously known for their insecurity and violent activities. Serious muggings, bar fights, and occasional deaths are not necessarily unheard of in taverns. Most societies have come to accept such events in taverns. Because of this acceptance, most incidents go unreported. In recent weeks, South Africa has seen a worrying increase in mass deaths in taverns. These, unlike isolated incidents of violent behavior, are of particular concern because they occur on a large scale and in a short period of time. In recent weeks there have been several incidents of tavern deaths, including the death of 21 children in Enyobeni, Eastern Cape, 15 people in Soweto, Gauteng, and 4 in Pietermaritzburg, KwaZulu-Natal. Additionally, 8 were seriously injured in the Pietermaritzburg shootout. Again, in Eastern Cape, there was another incident of assault which resulted in the death of a 19 year old boy. Importantly, these are just reported cases, and in an extremely violent society like South Africa, it would not be surprising if there were many more serious assaults and deaths in taverns. As frequent as they are, it would be irresponsible for society to accept such incidents as “normal” and not work to resolve this issue. We have laws in place that seek to prevent such incidents from occurring in taverns, to hold perpetrators accountable and to compensate victims. It is therefore necessary to examine the legal situation in this respect.

Violent incidents in taverns usually result in criminal prosecution. Thus, one usually sees criminal charges such as murder (for example, Griebenow vs. S), assault with intent to cause grievous bodily harm, assault, intimidation, harassment, etc. For the purposes of this article, however, the focus is primarily on the civil law remedy. Taverns have a legal duty of care to their customers (on the premises). To succeed with a negligence claim, victims must prove, in the aggregate, that the tavern failed in its legal duty to reasonably protect patrons from foreseeable harm, and that such failure resulted in injury (or dead). In determining the extent of the legal obligation and the foreseeable harm, courts are guided by well-established legal principles as well as the circumstances of the case. In an incident like the Enyobeni incident, for example, documentary evidence such as incident and investigation reports, evidence and testimony from survivors, eyewitnesses, etc. will prove essential in any legal action that may arise from such an incident. On mass shooting incidents like the one in Soweto and Pietermaritzburg, documentary evidence, eyewitnesses, etc. will be critical. Importantly, with shootings, the history of violence in surrounding areas and specific establishments may be relevant. This is so because the prevalence of violent activity nearby should inform the nature and extent of security measures to be put in place. If, for example, violence at these establishments (or similar establishments nearby) is widespread and security measures were minimal or non-existent, the court will most likely find that particular establishment legally liable.

Also, the taverns’ duty of care extends to what is served at that particular establishment. Although this duty is not “absolute”, they must take reasonable steps to ensure that everything they serve is safe to eat. Incidents such as customers slipping and falling are common. So, if someone slips and falls and injures themselves as a result, the institution can be held responsible. Similarly, it is possible to hold the tavern legally responsible for injuries resulting from fights in a bar, etc. The overriding principle is that these establishments must put in place reasonable measures to ensure the safety of customers. Either way, it is imperative to keep in mind that not all claims will be successful. There must be a thorough and careful investigation of the unique facts and circumstances surrounding each case/incident, and the establishment must be found to have breached a legal duty of care in order to succeed.

Various civil law claims may arise from such incidents. When the victim himself has suffered injuries (but not fatal), he can sue for personal injury where he can claim various heads of damages, depending on the nature and extent of the injuries. When a “breadwinner” has died, dependents can claim loss of breadwinner and funeral expenses. In the event that a minor child has died, parents/guardians may claim for emotional trauma, funeral expenses (and, sometimes, medical expenses).

While taverns should be allowed to operate freely given their role in the economic growth of communities, it is important that customer safety is protected. When an establishment has not met what is required of it in terms of security measures, the necessary legal ramifications must follow accordingly.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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New Rule 53.03: Agha v. Munroe, 2022 ONSC 2508 – Civil Law https://prosecutebushcheney.org/new-rule-53-03-agha-v-munroe-2022-onsc-2508-civil-law/ Tue, 19 Jul 2022 07:00:00 +0000 https://prosecutebushcheney.org/new-rule-53-03-agha-v-munroe-2022-onsc-2508-civil-law/ July 19, 2022 McLeish Orlando LLP To print this article, all you need to do is be registered or log in to Mondaq.com. This decision is one of the first to respond to the new rule 53.03 of the Rules of civil procedure, which entered into force on March 31, 2022 and deals […]]]>

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This decision is one of the first to respond to the new rule 53.03 of the Rules of civil procedure, which entered into force on March 31, 2022 and deals with the timeliness of expert reports. Rule 53.03 requires a party who intends to call an expert witness at trial to serve the expert’s report at least 90 days before the pre-trial conference, and any responding report must be served at least 60 days before the pre-trial conference. For those who do not comply with rule 53.03, the old rule 53.08 provided for an “escape clause”, which read as follows:

  • If the evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave
    to have to be granted
    on fair terms and with adjournment if necessary, unless it causes prejudice to the opposing party or unduly delays the progress of the trial.

New Rule 53.08 now reads:

(1) If the evidence is admissible only with leave of the trial judge under a provision listed in subrule (2), leave
may be granted
if the party liable for the applicable breach satisfies the judge that,

(a) there is a reasonable explanation for the failure; and

(b) the granting of the leave would not be,

(i) cause prejudice to the opposing party which could not be compensated by costs or an adjournment, or

(ii) unduly delay the trial.

The old rule provided that leave “shall be granted” (the “escape clause”), which essentially made leave mandatory for the late filing of expert reports, unless it would cause prejudice to the opposing party or caused an undue delay in the conduct of the trial. the new rule implemented discretionary language with that of “may be granted”. The new rule, which replaces “must be granted” with “may be granted”, sets out a new test which will guide the trial judge’s exercise of his discretion. It is incumbent upon the party seeking leniency to permit late service of the expert’s report and the admissibility of the expert’s testimony at trial. A party that fails to meet its obligations to serve an expert’s report in a timely manner will have to show that there is a reasonable explanation for the failure to serve an expert’s report and that the authorization will not cause prejudice to the opposing party party who cannot be compensated by costs or an adjournment or causes an undue delay in the conduct of the trial.

At the heart of the decision Aghathe plaintiff failed to serve expert reports dealing with critical elements of his claim, including loss of income and care needs, within the time required by rule 53.03.

Regional Senior Judge Edwards has openly stated that the pre-trial conference is not just an administrative part of a proceeding, but rather a fundamental part with two purposes: the possibility of settlement and dealing with case management issues. court case. Justice Edwards pointed to previous negative judicial comments regarding the late filing of expert reports, particularly the nonchalant manner in which it occurs. In Prabahan v. RBC General Insurance Co., 2018 ONSC 1186, Judge Stinson described the lack of punctuality as a “flagrant violation” of the rules. The absence of expert reports made it impossible to know whether the case could be settled at the pre-trial stage, thus defeating its purpose. In Balasingham v. Desjardins Financial Security2018 ONSC 1792, Judge Firestone granted that the defendant’s costs be dismissed due to the late adjournment of the trial – which was requested by plaintiff’s attorney due to late expert reports.

In Agha, the failure to serve expert reports ultimately cost the plaintiff the entirety of her claim; after the statutory deductible, the compensation awarded to the plaintiff was zero dollars.

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Florida Settlement Proposal Changes – Civil Law https://prosecutebushcheney.org/florida-settlement-proposal-changes-civil-law/ Thu, 14 Jul 2022 07:00:00 +0000 https://prosecutebushcheney.org/florida-settlement-proposal-changes-civil-law/ July 14, 2022 Wilson Elser Moskowitz Edelman & Dicker LLP To print this article, all you need to do is be registered or log in to Mondaq.com. For many years, Florida defense practitioners have used a Settlement Proposal (PFS) as a tool to demand certain non-monetary terms, such as the execution of a […]]]>

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For many years, Florida defense practitioners have used a Settlement Proposal (PFS) as a tool to demand certain non-monetary terms, such as the execution of a Settlement Release, as a condition of accepting a settlement. a PFS by the applicant. Effective July 1, 2022, however, the Florida Supreme Court amended Florida Civil Procedure Rule 1.442, which governs the procedural requirements for a PFS.

Provisions

The stated purpose of the Court’s amendment is “to align Rule 1.442 with the substantive elements of Florida’s Proposed Settlement Statutes.” Under the amendment, however, parties are not permitted to serve a PFS containing “non-monetary terms, except for a voluntary dismissal of all claims with prejudice and any other non-monetary terms permitted by the law”. (For example, Section 70.001(4)(c), Florida Statutes, lists non-monetary terms that a government entity may include in a settlement offer when the government action unreasonably encumbers private property rights, such as land exchanges or the transfer of development rights.) Thus, the amendment no longer allows a defendant to include the execution of a settlement receipt as a non-monetary condition required for the acceptance of a PSF. Other material non-monetary terms of settlement, such as lien satisfaction, confidentiality and non-disparagement clauses, would also be excluded under the amendment as non-monetary terms of a PSF.

Analysis

By this amendment, the Court seeks to encourage settlement and reduce disputes regarding the applicability of settlement proposals due to ambiguity issues. Nevertheless, the greater impact of the amendment appears to benefit claimants, who typically do not include non-monetary terms in a PSF. For example, defendants may now be exposed to, among other ramifications, non-confidential settlements, the amounts of which may likely appear on billboards and advertisements throughout Florida.

It is important to note that the amendment does not affect settlement terms and releases entered into outside of the submission of a PFS. In determining whether to accept or serve a PSF, defendants and their insurers should consult with an experienced defense attorney who can assess the multiple considerations and factors involved in the case, including the impact of the transfer attorney’s fees and costs from one party to the other party. .

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Errors in the Arbitration Agreement – Civil Law https://prosecutebushcheney.org/errors-in-the-arbitration-agreement-civil-law/ Fri, 08 Jul 2022 20:18:27 +0000 https://prosecutebushcheney.org/errors-in-the-arbitration-agreement-civil-law/ To print this article, all you need to do is be registered or log in to Mondaq.com. Arbitration, as an effective means of alternative dispute resolution, is actively used by parties to legal relationships, especially by foreign investors. An arbitration agreement is a prerequisite to the arbitration and is essential for the arbitration to occur. […]]]>

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Arbitration, as an effective means of alternative dispute resolution, is actively used by parties to legal relationships, especially by foreign investors. An arbitration agreement is a prerequisite to the arbitration and is essential for the arbitration to occur. The content and accuracy of the agreement largely determine the arbitrability of a dispute. Therefore, a good draft arbitration agreement is a crucial task at the contract or separate document stage when a dispute is to be submitted to arbitration.

In practice, many arbitration problems are due to lack of awareness of the nature, role and operation of arbitration. In the Republic of Kazakhstan, arbitrations may exist in the form of arbitrations formed specifically to address a particular dispute (“ad hoc arbitrations”) or as permanent institutional arbitrations. The International Arbitration Center under the Astana International Financial Center is of special interest, which is not subject to national arbitration law and is governed by the Rules of Arbitration and Mediation, approved by the AIFC. Regardless of the type of arbitration, an appeal is only possible if there is a duly drafted arbitration agreement between the parties to the proceeding.

According to Article 2, paragraph 8 of the Law of the Republic of Kazakhstan “On Arbitration” of April 8, 2016, an arbitration agreement is a written agreement between the parties to submit a dispute arising or likely to arise civil law relationships. By entering into an arbitration agreement, the parties themselves waive the right to sue in state court, agree to voluntarily and bindingly comply with the terms of the arbitration award, and agree to its finality. When concluding an arbitration agreement, the parties must agree on the arbitration terms, such as the arbitral tribunal (its title in the case of permanent arbitration), the place, the language, the applicable law, the constitution and rules of arbitral procedure. Normally, all permanent arbitrators recommend using their own arbitration clause. By their clauses and unless otherwise agreed by the parties, the permanent arbitrators submit the terms of the arbitration procedure to their own rules, which specify all the necessary procedural modalities.

The form of the arbitration agreement

From the definition of an arbitration agreement follows the form it must take. As agreed by the parties, an arbitration agreement may be contained in a separate clause of a contract (the “Arbitration Clause”) or it may be entered into as a separate agreement independent of the main contract. An arbitration agreement is also deemed to be in writing if (1) it is entered into, including by means of an exchange of letters, telegrams, telephonograms, facsimiles, electronic documents or other documents identifying the parties and evidencing their willingness to submit to the dispute to arbitration or (2) it is submitted by an exchange of statement of claim and statement of defense in which one party declares that there is an agreement and the other does not oppose it. In our experience, the most common form of an arbitration agreement is a separate clause in a contract signed by both parties. However, in practice, we have been dealing with the use of identical arbitration clauses by different entities, which do not contain all the terms of the arbitration and therefore do not work. The fact that one and the same clause taken from the Internet is used indicates negligence in the drafting of the arbitration agreement. In the meantime, such arbitration clauses subsequently cause problems which considerably slow down the arbitral process and sometimes make it impossible to arbitrate the dispute.

The most common mistakes in drafting an arbitration agreement in practice:

1. The arbitration agreement does not refer to a particular arbitration or refers to a non-existent arbitration.

Often, intentionally or unknowingly, parties choose a non-existent arbitration or fail to appoint a particular arbitration with the authority to resolve potential disputes. This also applies when the parties indicate the name of an arbitration in an erroneous way or when the names of different arbitrations are confusingly similar. Consequently, the parties cannot seize either the arbitral tribunal or a state court for the settlement of the dispute. However, there is a way out of this situation and it is as follows: 1) if the parties to the arbitration are located in a country party to the European Convention on International Commercial Arbitration of April 21, 1961 (hereinafter the “European Convention”), the plaintiff must submit a request appointment of an arbitrator to settle the dispute or 2) where the parties to the proceedings are not parties to the European Convention, the claimant will request the respondent to enter into a supplementary agreement on the terms of the arbitration not governed by the convention arbitration in force. If the respondent does not accept or ignores the claim for settlement of the terms of arbitration, the claimant is advised to go to a national court. This right derives from the provision of article 10 of the law on arbitration: “the court seized of an action on the subject of the arbitration refers, if one of the parties so requests, the parties to the arbitration no later than the presentation of its first statement on the merits, unless it finds that the arbitration agreement is invalid, inoperative or unenforceable”. In other words, in order to submit potential disputes with an arbitration clause to the jurisdiction of a state court, the court must prove the invalidity and unenforceability of the arbitration agreement due to the absence of an arbitral body specified in the arbitration agreement.

2. Extended interpretation of the scope of the arbitration clause

Extended interpretation of the scope of the arbitration clause

The definition of the arbitration agreement in the law on arbitration provides for the submission to arbitration of a dispute arising or likely to arise from a civil law relationship. However, not all disputes arising from civil law relationships are competent for arbitration. The term “civil relations” itself is quite broad and includes non-contractual disputes that may arise outside the contract in which the arbitration clause is included. In entering into an arbitration agreement, however, the parties generally refer to the arbitration jurisdiction to resolve any disputes that may arise directly in connection with the performance, breach, invalidity or termination of a contract, rather than to civil law relations in general. In accordance with article 20 of the law on arbitration, it is up to the arbitral tribunal to decide whether or not it has jurisdiction to hear the dispute submitted to it. If the scope of the arbitration clause is interpreted broadly, there is a risk that the claim will be dismissed if the arbitral tribunal decides that it does not have jurisdiction to decide the dispute. Moreover, in the event that it proves necessary to seize a state jurisdiction to obtain the execution of an arbitral award, the latter may refuse to issue an enforceable title on the grounds that “the award was rendered on a dispute not provided or not covered by the arbitration agreement, or contains rulings on matters outside the scope of the arbitration agreement, and because the dispute is outside the jurisdiction of the arbitral tribunal”. It is therefore recommended to extend the arbitration clause directly to the contract and to the disputes that may arise within the framework of the contract.

3. Non-indication of the applicable law in the arbitration agreement

Governing law is also an important term of the arbitration agreement. As a general rule, when a Kazakh permanent arbitral tribunal is chosen and the arbitration is subject to its rules, the applicable law is that of the Republic of Kazakhstan. However, in the absence of reference to this condition of the arbitral procedure, the European Convention solves this problem in the following way: “the law chosen by the parties and, failing that, the law of the country where the award is made However, if the parties have not specified the law applicable to the arbitration agreement and it is not possible to determine in which country the award must be made, the court determines the applicable law by referring to the rule of conflict of laws of the country where the case is brought. The International Arbitration Center, for example, settles the question in such a way that in the absence of agreement on the applicable law, the Arbitral Tribunal applies the law which it considers most appropriate to the circumstances of the case and to the principal object. Furthermore, the International Arbitration Center follows the rule that any designation by the parties of the law of a given State shall be deemed to refer to the substantive law of that State and not to its conflict of law rules. In particular, in Kazakh practice, the question of the applicable law has yet to be settled.

In order to avoid these and other problems, we recommend that you research the experience and rules of permanent arbitrations before entering into an arbitration agreement, choose an arbitration body with an impeccable reputation, agree on the terms essentials of the arbitration process and familiarize yourself with the list of arbitrators. When adopting its own rules, each arbitral tribunal specifies all the necessary procedural questions. Therefore, to minimize the risks that may arise from omissions in the arbitration agreement, it is advisable to choose specific rules and submit the arbitration to the rules of these rules. Arbitration has many advantages and guarantees a fair arbitral award, provided that the arbitration agreement is drafted correctly and in its entirety.

We are always happy to assist with the drafting of the arbitration agreement and representation in arbitration proceedings.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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