Practical tips on choosing the right dispute resolution strategy, entering into enforceable agreements for ADR, and navigating complex matters such as arbitrations with an international component.
Describes the essentials of an arbitration agreement and what shall be kept in mind while drafting of an arbitration agreement.R P Dutta & Associates is a Kolkata based law firm specializing in corporate dispute resolution through arbitration .
Practical tips on choosing the right dispute resolution strategy, entering into enforceable agreements for ADR, and navigating complex matters such as arbitrations with an international component.
Describes the essentials of an arbitration agreement and what shall be kept in mind while drafting of an arbitration agreement.R P Dutta & Associates is a Kolkata based law firm specializing in corporate dispute resolution through arbitration .
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Portland attorney Joe Durkee offers advice on how to read standard business contracts. He discusses a number of clauses common to vendor service agreements and offered counsel on how to approach them.
Drafting Arbitration Clauses commonly involves a lot of mental exercises. Many calibrations are required on the part of the drafters. The slides incorporate some common aspects which should inform the ones involved in drafting of Arbitration Clauses.
Nvc Fund Holding Trust Transaction Platform 2152019FrankEkejija1
NVC Fund Holding Trust, as an international Capital Logistics Management company, owns and manages more than Five Trillion Dollars ($5T USD) of net tangible assets. We provide our clients with direct access to capital to actualize and/or enhance investment opportunities.
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The general principle and practice of ‘cost follows the event’ in arbitration is that the unsuccessful party in an arbitral proceedings shall pay all or substantial part of the arbitration and legal cost to the successful party as calculated by the arbitrator. This publication attempts a review of this principle and concludes with an outline of situations when cost will not necessarily follow the event.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
Let's Shake On It - Contracts in MR by Joe Durkee, Esq. NorthWest MRA
Portland attorney Joe Durkee offers advice on how to read standard business contracts. He discusses a number of clauses common to vendor service agreements and offered counsel on how to approach them.
Drafting Arbitration Clauses commonly involves a lot of mental exercises. Many calibrations are required on the part of the drafters. The slides incorporate some common aspects which should inform the ones involved in drafting of Arbitration Clauses.
Nvc Fund Holding Trust Transaction Platform 2152019FrankEkejija1
NVC Fund Holding Trust, as an international Capital Logistics Management company, owns and manages more than Five Trillion Dollars ($5T USD) of net tangible assets. We provide our clients with direct access to capital to actualize and/or enhance investment opportunities.
The Principle of Cost Follows the event in Commercial ArbitrationOluwaseyi Bamigboye
The general principle and practice of ‘cost follows the event’ in arbitration is that the unsuccessful party in an arbitral proceedings shall pay all or substantial part of the arbitration and legal cost to the successful party as calculated by the arbitrator. This publication attempts a review of this principle and concludes with an outline of situations when cost will not necessarily follow the event.
our contribution to January issue of DS NEWSmjbarker
In the January issue of DS NEWS, we have included an article regarding the ability of the judiciary to sanction mortgage foreclosure defense attorneys for delay tactics
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With a number of important recent and upcoming developments in the OECD's international tax work, we invite you to join the OECD's Centre for Tax Policy and Administration (CTPA) for the latest tax update.
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Corporate Law and Family Law at the Crossroads: Spouses as Shareholders in Canada 2012
Small and medium sized businesses are the engines which drive the North American economy. Increasingly, people go in to their own business. Often spouses and other family members are in business together. Because of mutual trust and sharing which exists at the start of these arrangements, spouses tend not to make agrements about what will happen if the marriage breaks down.
When spouses who are in business together divorce, there are also consequences for the business. Who will keep the business? What will the spouses be able to work together? How much is the business worth? Who should buy the business? How will a buyout be funded? These questions are just the tip of the iceberg.
In this PowerPoint slide presentation, we provide useful information about the legal problems confronting separating or divorcing couples who are in business together. By reviewing these slides you will gain important insights about the issues lawyers have to deal with in these situations. What law applies? What other kinds of experts do you need? What legal advice will you need to find a workable resolution? What evidence will you need if the case has to go to trial? What procedure must be followed? If you are in business with your spouse or life partner, the information in these slides provides a few pointers about Ontario law even if the relationship is continuing. Sometimes, a unanimous shareholders’ agreement or some strategic advice can help avoid expensive litigation down the road.
These slides were part of a presentation at a lawyers conference conducted by Osgoode Professional Development in Toronto on March 27, 2012. They are intended as information only and not legal advice.
The authors are experienced litigation and arbitration lawyers in Toronto, Ontario, Canada, who act on complex shareholder disputes, typically involving closely-held corporations.
International Business Transaction - Arbitration of Disputes in International...Mariske Myeke Tampi
Describes arbitration as the means of dispute settlement which has a confidentiality as one of its advantage. Arbitration agreement has been described as well with the relevant arbitral source of law and its institutions.
Florida mediator Robert A. Cole and civil trial lawyer Rutledge R. Liles will use a series of hypothetical ethical dilemmas arising during the mediation of a "typical" personal injury case to explore what the law says, what guidelines advise and how to apply these standards to practice during mediation. For the fact scenario, please visit http://www.uww-adr.com/?p=6166.
These slides are regarding Ratio decidendi, a topic from judicial process.What is ratio. Ratio decidendi. Definitions. Hierarchy of English court. Difference between ratio decidendi and obiter dicta. Shades of meaning to the expression ratio decidendi.
The Role of Ratio Decidendi in Judicial Precedent. Rules of ratio decidendi. When precedent has multiple reasons. Where there are multiple judges. Determination of ratio decidendi. Ratio decidendi in Indian Scenario. Stare decisis and Article 141 Overruling Conclusion.
The doctrine of judicial precedent developed in common-law legal system centered on the notion of ratio decidenti of a case. According to the preliminary statement of the English rules of precedent, every court is bound to follow any case decided by a court above it in the hierarchy and appellate courts(other than House of Lords) are bound by their previous decisions. The decision or judgement of a judge may fall into two parts: The ratio decidendi (reason for the decision) Obiter dictum(something said which is not part of the judgement or said by the way).
What is ratio? • Meaning of ratio is the measure of a quantity in terms of another and decidendi means decision. • Ratio is a ruling on a point of law and the decision on a point of law depends on facts of a case. Culling out / obtaining ratio from a judgment is difficult. • A thorough reading of an entire judgment is required to identify a ratio. • Essence of the decision is the ratio. Every observation found in a judgement is not the ratio.
RATIO DECIDENDI Ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends. The ratio decidendi is "the point in a case that determines the judgment" or "the principle that the case establishes“. Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision".
7. DEFINITION • According to Salmond “the ratio decidendi may be described roughly as the rule of law applied by and acted on by the court, or the rule which the court regarded as governing the case." • Sir Rupert Cross defined the ratio decidendi as ”any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion, having regard to the line of reasoning adopted by him”(Precedent in English Law).
Ratio decidendi • Ratio decidendi ordinarily means the reason for deciding the case . The reason here is not; The fact of the case. The law that the case applies. The order of the case.
HIERARCHY OF ENGLISH COURTS
MAGISTRATES COURTS TRIBUNALS COUNTY COURT HIGH COURT SUPREME COURT (House of Lords) COURT OF APPEAL CROWN COURT CIVIL CRIMINAL DIVISIONAL COURT
In response to rising court costs, delays and congestion, the need to facilitate access to justice and to provide more 'effective' forms of dispute resolution, the phenomenon known as ADR was born.
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The ppt covers the topic of arbitration, mediation and conciliation in India comprehensively. It consists of the definitions of each of these additional dispute redressal mechanisms,it's objectives, advantages over one another, comparative study , historical backdrop, landmark judgements and legal framework.
Learn how to effectively communicate to your business' leaders about the difference between arbitration and litigation, including associated benefits and risks.
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In this presentation, FMC Partners Rob McDonald and Marlon Rajakaruna describe the importance of protecting your start-up company’s intellectual property (IP). The following topics are discussed:
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In this presentation, FMC’s Bernard Roth outlines the current trends in energy regulatory law. The presentation includes the following topics:
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In this presentation, FMC’s Bill Gilliland and Dan Shea discuss deal points relating to survey of deals and deal terms, including:
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In this presentation, FMC’s Doris Bonora and Mark Woltersdorf outline the important considerations when planning before death, including:
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Risk Apportionment in the Purchase and Sale TransactionNow Dentons
In this presentation, FMC’s Leanne Krawchuk discusses risk apportionment in the purchase and sale transaction, including:
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Letters of Intent - Tips and Traps for Commercial LawyersNow Dentons
In this presentation, FMC’s Heather Barnhouse discusses the purpose of a letter of intent (LOI) and the common issues with LOI. She then discusses a relevant case (IHAG – Holding A.G. c. Intrawest Corporation, 2009 QCCS 2699) and provides an overview of the lessons learned and future application.
Protect you Rights and Avoid Liability! Current Developments and Major Implic...Now Dentons
In this presentation, FMC's Margot Patterson discusses current developments and major implications for IP legal guidelines in advertising, including:
1. Changing Copyright Rules: User Generated Content
2. How Social Media is changing your marketing practices and how you protect your brand
3. Yours, Mine and Ours: Best practices for third-party content (partners & consumers)
In this presentation, FMC's Alan Hutchison discusses Preliminary Economic Assessments (PEAs) by going over the recent focus on PEAs, providing important considerations, and going through 4 different scenarios related to PEAs.
An Introduction to Legal Aspects of Customer Acquisitions for StartupsNow Dentons
In this presentation, FMC’s Gal Smolar discusses an introduction to the legal aspects of customer acquisitions for startups. The presentation focuses on customer acquisitions, acquisition contracts, trends, right to data, restrictive covenants, exclusivity, joint development and customer acquisition tips.
Gal Smolar is a partner in FMC’s Vancouver office. Gal is a Practitioner of Foreign Law and brings to Fraser Milner Casgrain his broad international experience in commercial and corporate law and in particular in the field of technology.
Update on Hydraulic Fracturing:Preparing for Gasland 2Now Dentons
In this presentation, FMC Law's Alex MacWilliam discusses hydraulic fracturing. The presentation covers the hydraulic fracturing process; the legislative and regulatory management of key issues related to hydraulic fracturing; liability issues in fracturing litigation; finally, lessons and trends related to hydraulic fracturing.
In this presentation, V. Peter Harder describes why Canada engages with China, while Rob McDonald and Margot Patterson outline the changes to copyright laws in Canada.
In this presentation, Rob McDonald and Stephen Parker discuss the following topics related to intellectual property:
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In this presentation, Rob McDonald outlines the key amendments to the Copyright Act and explains how Canada's copyright laws will change with the new Copyright Modernization Act.
RMD24 | Debunking the non-endemic revenue myth Marvin Vacquier Droop | First ...BBPMedia1
Marvin neemt je in deze presentatie mee in de voordelen van non-endemic advertising op retail media netwerken. Hij brengt ook de uitdagingen in beeld die de markt op dit moment heeft op het gebied van retail media voor niet-leveranciers.
Retail media wordt gezien als het nieuwe advertising-medium en ook mediabureaus richten massaal retail media-afdelingen op. Merken die niet in de betreffende winkel liggen staan ook nog niet in de rij om op de retail media netwerken te adverteren. Marvin belicht de uitdagingen die er zijn om echt aansluiting te vinden op die markt van non-endemic advertising.
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Tata Group Dials Taiwan for Its Chipmaking Ambition in Gujarat’s DholeraAvirahi City Dholera
The Tata Group, a titan of Indian industry, is making waves with its advanced talks with Taiwanese chipmakers Powerchip Semiconductor Manufacturing Corporation (PSMC) and UMC Group. The goal? Establishing a cutting-edge semiconductor fabrication unit (fab) in Dholera, Gujarat. This isn’t just any project; it’s a potential game changer for India’s chipmaking aspirations and a boon for investors seeking promising residential projects in dholera sir.
Visit : https://www.avirahi.com/blog/tata-group-dials-taiwan-for-its-chipmaking-ambition-in-gujarats-dholera/
Unveiling the Secrets How Does Generative AI Work.pdfSam H
At its core, generative artificial intelligence relies on the concept of generative models, which serve as engines that churn out entirely new data resembling their training data. It is like a sculptor who has studied so many forms found in nature and then uses this knowledge to create sculptures from his imagination that have never been seen before anywhere else. If taken to cyberspace, gans work almost the same way.
Implicitly or explicitly all competing businesses employ a strategy to select a mix
of marketing resources. Formulating such competitive strategies fundamentally
involves recognizing relationships between elements of the marketing mix (e.g.,
price and product quality), as well as assessing competitive and market conditions
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2. What is ADR?
• One view:
Alternative Dispute Resolution (ADR) is a term used to describe
a basket of procedures outside the traditional litigation
process, usually entered into voluntarily by parties to a dispute
in an attempt to resolve it.
2
4. Mediation Issues
• Appointment of mediator – does it matter who acts as
mediator?
• Traits of a good mediator – what to look for
• Different mediation processes:
1. “caucus”
2. “shuttle diplomacy”
3. “how much information do I show the other side ‐
the fear is no settlement and the opposing party
now has a roadmap of our case…”
• Cost
4
6. Mediation Issue cont’d
• Outcomes are Flexible
– Deal or no deal
– Partial deal
– Agreed facts and admissions
– Set range of outcomes – bookend damages;
narrow liability issues
– Determination of point of law or fact
– Other ADR processes – arbitration, neutral
evaluation
6
10. Arbitration “Neutrality” cont’d
Professor Paulsson argues against party‐appointees and exposes
the following myths:
• “My nominee will help me win the case”
• “Even Homer nods, three heads are better than one, especially
when the stakes are high”
• “Parties have greater confidence in arbitrators selected for
their special knowledge or skill”
• “My nominee will ensure that the tribunal as a whole
understands my culture”.
10
12. More Myths ‐ “It’s hard to enforce an arbitration clause”
Arbitration Act, 1991, S.O. 1991, c. 17
Arbitral tribunal may rule on own jurisdiction
17. (1) An arbitral tribunal may rule on its own jurisdiction to conduct the
arbitration and may in that connection rule on objections with respect to the
existence or validity of the arbitration agreement. 1991, c. 17, s. 17 (1).
UNCITRAL 1985 MODEL LAW
Article16.Competence of arbitral tribunal to rule on its jurisdiction
(1)The arbitral tribunal may rule on its own jurisdiction, including any objections
with respect to the existence or validity of the arbitration agreement. For that
purpose, an arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract. A decision by the
arbitral tribunal that the contract is null and void shall not entail ipso jure the
invalidity of the arbitration clause.
12
13. More Myths ‐ “It’s hard to enforce an arbitration clause”
Ontario Court of Appeal
Forum selection and arbitration clauses are generally
interpreted generously. Only where it is clear that the dispute
in question is outside the terms of the arbitration agreement
will the courts usurp the role of the arbitrator as the decision‐
maker of first instance in respect of jurisdiction.
Dalimpex Ltd. v. Janicki, 2003 CanLII 34234 (ON C.A.)
Dancap Productions Inc. v. Key Brand Entertainment, Inc., 2009 ONCA 135 (CanLII)
13
14. More Myths ‐ “Enforcement of the Award is difficult”
International Commercial Arbitration Act, R.S.O. 1990, c. I.9
Recognition and enforcement of foreign arbitral awards
10. For the purposes of articles 35 and 36 of the Model Law, an arbitral award
includes a commercial arbitral award made outside Canada, even if the arbitration
to which it relates is not international as defined in article 1 (3) of the Model Law.
R.S.O. 1990, c. I.9, s. 10.
Enforcement
11. (1) An arbitral award recognized by the court is enforceable in the same
manner as a judgment or order of the court. R.S.O. 1990, c. I.9, s. 11 (1).
Idem
(2) An arbitral award recognized by the court binds the persons as between whom
it was made and may be relied on by any of those persons in any legal proceeding.
R.S.O. 1990, c. I.9, s. 11 (2).
14
15. UNCITRAL 1985 Model Law
Article 35. Recognition and enforcement
• (1)An arbitral award, irrespective of the country in which it was
made, shall be recognized as binding and, upon application in
writing to the competent court, shall be enforced subject to
the provisions of this article and of article 36.
• (2)The party relying on an award or applying for its
enforcement shall supply the duly authenticated original
award or a duly certified copy thereof, and the original
arbitration agreement referred to in article 7 or a duly certified
copy thereof. If the award or agreement is not made in an
official language of this State, the party shall supply a duly
certified translation thereof into such language.
15
16. UNCITRAL 1985 MODEL LAW
Article36. Grounds for refusing recognition or enforcement
(1)Recognition or enforcement of an arbitral award, irrespective of the country in which it was made, may be refused only:
(a) at the request of the party against whom it is invoked, if that party furnishes to the competent court where recognition or
enforcement is sought proof that:
(i) a party to the arbitration agreement referred to in article 7 was under some incapacity; or the said agreement is not valid
under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the
award was made, or
(ii) the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the
arbitral proceedings or was otherwise unable to present his case, or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it
contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on
matters submitted to arbitration may be recognized and enforced, or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties
or, failing such agreement, was not in accordance with the law of the country where the arbitration took place, or
(v) the award has not yet become binding on the parties or has been set aside or suspended by a court of the country in
which, or under the law of which, that award was made; or
(b) if the court finds that:
(i) the subject‐matter of the dispute is not capable of settlement by arbitration under the law of this State, or
(ii) the recognition or enforcement of the award would be contrary to the public policy of this State.
(2)If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1) (a) (v) of
this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may
also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide
appropriate security.
16
17. More Myths ‐ “Enforcement of the Award is difficult”
Arbitration Act, 1991, S.O. 1991, c. 17
50. (1) A person who is entitled to enforcement of an award made in Ontario or
elsewhere in Canada may make an application to the court to that effect. 1991,
c. 17, s. 50 (1).
Duty of court, award made in Ontario
(3) The court shall give a judgment enforcing an award made in Ontario unless,
(a) the thirty‐day period for commencing an appeal or an application to set the
award aside has not yet elapsed;
(b) there is a pending appeal, application to set the award aside or application for a
declaration of invalidity;
(c) the award has been set aside or the arbitration is the subject of a declaration of
invalidity; or
(d) the award is a family arbitration award. 1991, c. 17, s. 50 (3); 2006, c. 1, s. 1 (8).
17
18. Enforcement – Beware Local Limitation Periods
• Under international arbitration law, the matter of limitation
periods is left to local procedural law of the jurisdiction where
recognition and enforcement is sought. As an arbitral award is
not a judgment or a court order for the payment of money, an
application for recognition and enforcement will often be
subject to the general limitation period applicable in the
province for most common law claims. ‐ Yugraneft Corp. v.
Rexx Management Corp., 2010 SCC 19
18
19. Problems with Clauses ‐ “Pathological ICC Clause”
What’s Wrong Here? A practical discussion.
In the event that there is any dispute with respect to this
Master Contract , the matters shall be submitted to a panel of
three arbitrators. Within fifteen (15) days after written notice
from either party of a failure … to resolve the dispute, each
party shall select one arbitrator and notify each other of their
selection. Within (15) days after their selection, such two
arbitrators shall select the third arbitrator. The arbitrators shall
meet within thirty (30) days after the selection of the third
arbitrator and conduct a hearing in accordance with the
commercial arbitration rules of the International Chamber of
Commerce to resolve the dispute.
19