Hong Kong Court of Appeal holds that the "Good Faith" Principle is Complementary to the "Choice of Remedies" Principle, Aligning Hong Kong Law with Singapore Law
Hong Kong Court of Appeal holds that the "Good Faith" Principle is Complementary to the "Choice of Remedies" Principle, Aligning Hong Kong Law with Singapore Law
Causes of Delay in the Resolution of Commercial Disputes Via Litigation Arbit...ijtsrd
An essential requirement of justice is that it should be dispensed as quickly as possible. It is a well known adage that, « justice delayed is justice denied». Delay in litigation is caused by a number of factors. For example in litigation the parties have the right to make a counterclaim, right to make appeal etc. Arbitration has been able to overcome the factors which cause delay in litigation because in arbitration, parties are given the right to exclude the possibility to make a counterclaim, the right to make appeal has expressly been prohibited by the Organization for the Harmonization of Business Laws in Africa OHADA 1 legislator etc. But since the OHADA legislator has not expressly prohibited counter claim in arbitration, it is recommended that counterclaim should be expressly prohibited in arbitration as it is the case with appeal. This article aims at identifying the causes of delay in the disposal of commercial disputes via litigation and how these causes of delay have been combated in arbitration. Buma Roland Sigala ""Causes of Delay in the Resolution of Commercial Disputes Via Litigation: Arbitration as a Way out withn Ohada Laws"" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-3 | Issue-4 , June 2019, URL: https://www.ijtsrd.com/papers/ijtsrd23940.pdf
Paper URL: https://www.ijtsrd.com/management/law-and-management/23940/causes-of-delay-in-the-resolution-of-commercial-disputes-via-litigation-arbitration-as-a-way-out-withn-ohada-laws/buma-roland-sigala
International Journal of Humanities and Social Science Invention (IJHSSI) is an international journal intended for professionals and researchers in all fields of Humanities and Social Science. IJHSSI publishes research articles and reviews within the whole field Humanities and Social Science, new teaching methods, assessment, validation and the impact of new technologies and it will continue to provide information on the latest trends and developments in this ever-expanding subject. The publications of papers are selected through double peer reviewed to ensure originality, relevance, and readability. The articles published in our journal can be accessed online.
Causes of Delay in the Resolution of Commercial Disputes Via Litigation Arbit...ijtsrd
An essential requirement of justice is that it should be dispensed as quickly as possible. It is a well known adage that, « justice delayed is justice denied». Delay in litigation is caused by a number of factors. For example in litigation the parties have the right to make a counterclaim, right to make appeal etc. Arbitration has been able to overcome the factors which cause delay in litigation because in arbitration, parties are given the right to exclude the possibility to make a counterclaim, the right to make appeal has expressly been prohibited by the Organization for the Harmonization of Business Laws in Africa OHADA 1 legislator etc. But since the OHADA legislator has not expressly prohibited counter claim in arbitration, it is recommended that counterclaim should be expressly prohibited in arbitration as it is the case with appeal. This article aims at identifying the causes of delay in the disposal of commercial disputes via litigation and how these causes of delay have been combated in arbitration. Buma Roland Sigala ""Causes of Delay in the Resolution of Commercial Disputes Via Litigation: Arbitration as a Way out withn Ohada Laws"" Published in International Journal of Trend in Scientific Research and Development (ijtsrd), ISSN: 2456-6470, Volume-3 | Issue-4 , June 2019, URL: https://www.ijtsrd.com/papers/ijtsrd23940.pdf
Paper URL: https://www.ijtsrd.com/management/law-and-management/23940/causes-of-delay-in-the-resolution-of-commercial-disputes-via-litigation-arbitration-as-a-way-out-withn-ohada-laws/buma-roland-sigala
International Journal of Humanities and Social Science Invention (IJHSSI) is an international journal intended for professionals and researchers in all fields of Humanities and Social Science. IJHSSI publishes research articles and reviews within the whole field Humanities and Social Science, new teaching methods, assessment, validation and the impact of new technologies and it will continue to provide information on the latest trends and developments in this ever-expanding subject. The publications of papers are selected through double peer reviewed to ensure originality, relevance, and readability. The articles published in our journal can be accessed online.
Judicial Precedent And Prevention Of Contradictory Judgments: An Expository S...iosrjce
IOSR Journal of Humanities and Social Science is a double blind peer reviewed International Journal edited by International Organization of Scientific Research (IOSR).The Journal provides a common forum where all aspects of humanities and social sciences are presented. IOSR-JHSS publishes original papers, review papers, conceptual framework, analytical and simulation models, case studies, empirical research, technical notes etc.
CRM 123 – How to Brief a Case A case brief is a dissection.docxannettsparrow
CRM 123 – How to Brief a Case
A case brief is a dissection of a judicial opinion. It contains a written summary of the basic
components of that decision. Briefing a case helps you acquire the skills of case analysis and
legal reasoning. It also helps you understand it. Briefs help you remember cases for class
discussions and assignments. Learning law is a process of problem solving through legal
reasoning; case briefs, therefore, should not be memorized. Below are examples and
explanations of the components of a case brief.
1. Case Title and Citation
■ Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health
and Human Services
(Plaintiff Nursing Home) v. (Defendant State Entity) 532 U.S. 598 (2001)
Case titles generally take on the names of the parties involved in the case. For example, in this
case Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and
Human Resources, Buckhannon Board is the party asking the Court to reverse a lower court’s
holding; W est Virginia Department of Health and Human Resources wants the Court to affirm
that holding.
A citation acts as the case’s “address.” There is a standard format for cases contained in the
United States Reports (abbreviated U.S. in case citations). Therefore, in this case, the citation is
532 U.S. 598. This means that this case is found on page 598 of the 532nd volume of the
United States Reports.
2. Procedural History
■ Procedural History
The Court of Appeals affirmed the District Court’s dismissal of the case and denial of
attorney’s fees. The Supreme Court affirmed. The procedural history (or posture) states how the
case got to the court that wrote the opinion that you are reading.
3. Facts
■ Facts
Buckhannon Board and Care Home, Inc. (“Buckhannon”), which operates care homes
that provide assisted living to its residents, failed an inspection by the W est Virginia Office of the
State Fire Marshall because some of the residents were incapable of “self-preservation” as
defined under state law. On October 28, 1997, after receiving cease and desist orders requiring
the closure of its residential care facilities within 30 days, Plaintiff, on behalf of itself and other
similarly situated homes and residents brought suit in federal district court against the state of
West Virginia, two of its agencies, and 18 individuals. Plaintiff agreed to stay enforcement of the
cease-and-desist orders pending resolution of the case and the parties began discovery. The
district court granted W est Virginia’s motion to dismiss, finding that the 1998 legislation had
eliminated the allegedly offensive provisions and that there was no indication that the
Legislature would repeal the amendments. Buckhannon then moved for attorney’s fees as the
prevailing party.
This section includes a brief overview of the relevant facts of the case that (a) describe the
dispute at hand and (b) have bro.
Latest Developments Regarding Arbitration in Hong Kong and Mainland ChinaWinston & Strawn LLP
The arbitration landscape is ever-changing, with new legislation being promulgated, cases coming up, and ideas being tested. In part three of this series, Partner Terence Wong explored the latest developments regarding arbitration in Hong Kong and Mainland China, including a case handed down by the Court of Final Appeal, and a decision of the Indian Court dealing with the split of the China International Economic and Trade Arbitration Commission (CIETAC), which may have an impact on the enforcement of CIETAC arbitral awards in other jurisdictions.
Contact Winston & Strawn for more information about this presentation: https://www.winston.com/en/thought-leadership/latest-developments-regarding-arbitration-in-hong-kong-and-mainland-china.html
Lawyers often tell their clients that while they must prepare as if every case will go to trial, more than 90% of cases are resolved before trial. If a settlement is not reached, the resolution typically comes through the court ruling on a dispositive motion. This episode begins with a look at motions to dismiss, with focus on the still-developing Twombly-Iqbal standard, and how that standard is put into practice. We then discuss summary judgment motions. That discussion includes everything from making a summary judgment record to brief writing, to making a cross-motion for summary judgment. This webinar shines a light on what happens to the great percentage of cases that don’t make it to trial.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
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In summary, a defendant enjoys at least three important constitutional rights during the sentencing process: (1) the right not to be put twice in jeopardy; (2) the right to a sentence that conforms with the Eighth Amendment’s proscription against cruel and unusual punishment; and (3) the right to counsel at sentencing-related hearings, regardless of his or her ability to afford representation.
APPEALS and HABEAS CORPUS
1:APPEALS
An appeal occurs when an appellate court, such as one of the federal courts of appeal, examines a lower court’s decision in order to determine whether the proper procedure was followed or the correct law was applied. In other words, when a defendant appeals, he or she is claiming that the court made an error. Thus, the appeal guarantees that a defendant who is found guilty can challenge his or her conviction. Further, the appeal442443guarantees that another judge or panel of judges, disconnected from the initial trial, will make the relevant decision.
Although appealing convictions is an important part of the criminal process, the Supreme Court has never held that doing so is constitutionally permissible. That is, nowhere does the U.S. Constitution specify that a certain number of appeals will be granted to each convicted criminal. InMcKane v. Durston (153 U.S. 684 [1894]), the Supreme Court stated, “A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law” (p. 687).
Most appeals are posttrial in nature and filed by the defense, which is why this topic is being discussed at the end of this book. However, in some situations, the defense appeals a court’s decision, such as on a motion to suppress evidence, during the trial. And in some instances, the prosecution can even file an appeal. Thus, this chapter will consider three types of appeals: (1) appeals by the defense prior to adjudication; (2) appeals by the defense after adjudication; and (3) appeals by the prosecution. First, however, it is important to review the common types of appeals and their consequences and the important Supreme Court cases dealing with the appellate process (i.e., the procedures courts are required to follow).■ Types and Effects of Appeals
Despite the Supreme Court’s view that appealing one’s conviction is not constitutionally guaranteed, every state and the federal government each has rules providing a certain number of appeals to a convicted criminal. At both the state and federal levels, a convicted criminal is usually granted at least one appeal of right, also known as a direct appeal, and at least one discretionary appeal.
An appeal of right, or a direct appeal, is automatically granted to the defendant by law. That is, an appeal of right must be heard by an appellate court. It is not up to the appellate court to decide whether to hear such an appeal. By contrast, the appellate .
Recognition and enforcement of foreign judgments in china vol. 1 no. 1 cjo国栋 杜
For decades, China has adopted rigorous criteria for the recognition and enforcement of foreign judgments. However, recently China’s Supreme People’s Court (SPC) has been making efforts to change the situation, and is drafting specific rules so as to recognize and enforce foreign judgments as far as possible.
The issue begins with an introduction to this emerging trend, given by Meng Yu and Guodong Du, Founders of China Justice Observer (CJO).
The SPC’s 4th Civil Division is drafting the said rules, and continues to guide and supervise the handling of cases regarding the recognition and enforcement of foreign judgment in courts at all levels nationwide. This issue summarizes four related articles written by Chinese judges, two of them from the SPC’s 4th Civil Division, and the others from two Intermediate People’s Courts, which respectively rendered the first rulings in China to recognize and enforce a Singaporean court judgment and a US court judgment. The issue also includes the Nanning Statement, an instrument where the SPC and supreme courts from ASEAN countries agree to loosen the criteria for recognition and enforcement of foreign judgments. It is also the first time for the SPC to demonstrate its attitude in an official instrument.
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CRM 123 – How to Brief a Case A case brief is a dissection.docxannettsparrow
CRM 123 – How to Brief a Case
A case brief is a dissection of a judicial opinion. It contains a written summary of the basic
components of that decision. Briefing a case helps you acquire the skills of case analysis and
legal reasoning. It also helps you understand it. Briefs help you remember cases for class
discussions and assignments. Learning law is a process of problem solving through legal
reasoning; case briefs, therefore, should not be memorized. Below are examples and
explanations of the components of a case brief.
1. Case Title and Citation
■ Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health
and Human Services
(Plaintiff Nursing Home) v. (Defendant State Entity) 532 U.S. 598 (2001)
Case titles generally take on the names of the parties involved in the case. For example, in this
case Buckhannon Board and Care Home, Inc. v. West Virginia Department of Health and
Human Resources, Buckhannon Board is the party asking the Court to reverse a lower court’s
holding; W est Virginia Department of Health and Human Resources wants the Court to affirm
that holding.
A citation acts as the case’s “address.” There is a standard format for cases contained in the
United States Reports (abbreviated U.S. in case citations). Therefore, in this case, the citation is
532 U.S. 598. This means that this case is found on page 598 of the 532nd volume of the
United States Reports.
2. Procedural History
■ Procedural History
The Court of Appeals affirmed the District Court’s dismissal of the case and denial of
attorney’s fees. The Supreme Court affirmed. The procedural history (or posture) states how the
case got to the court that wrote the opinion that you are reading.
3. Facts
■ Facts
Buckhannon Board and Care Home, Inc. (“Buckhannon”), which operates care homes
that provide assisted living to its residents, failed an inspection by the W est Virginia Office of the
State Fire Marshall because some of the residents were incapable of “self-preservation” as
defined under state law. On October 28, 1997, after receiving cease and desist orders requiring
the closure of its residential care facilities within 30 days, Plaintiff, on behalf of itself and other
similarly situated homes and residents brought suit in federal district court against the state of
West Virginia, two of its agencies, and 18 individuals. Plaintiff agreed to stay enforcement of the
cease-and-desist orders pending resolution of the case and the parties began discovery. The
district court granted W est Virginia’s motion to dismiss, finding that the 1998 legislation had
eliminated the allegedly offensive provisions and that there was no indication that the
Legislature would repeal the amendments. Buckhannon then moved for attorney’s fees as the
prevailing party.
This section includes a brief overview of the relevant facts of the case that (a) describe the
dispute at hand and (b) have bro.
Latest Developments Regarding Arbitration in Hong Kong and Mainland ChinaWinston & Strawn LLP
The arbitration landscape is ever-changing, with new legislation being promulgated, cases coming up, and ideas being tested. In part three of this series, Partner Terence Wong explored the latest developments regarding arbitration in Hong Kong and Mainland China, including a case handed down by the Court of Final Appeal, and a decision of the Indian Court dealing with the split of the China International Economic and Trade Arbitration Commission (CIETAC), which may have an impact on the enforcement of CIETAC arbitral awards in other jurisdictions.
Contact Winston & Strawn for more information about this presentation: https://www.winston.com/en/thought-leadership/latest-developments-regarding-arbitration-in-hong-kong-and-mainland-china.html
Lawyers often tell their clients that while they must prepare as if every case will go to trial, more than 90% of cases are resolved before trial. If a settlement is not reached, the resolution typically comes through the court ruling on a dispositive motion. This episode begins with a look at motions to dismiss, with focus on the still-developing Twombly-Iqbal standard, and how that standard is put into practice. We then discuss summary judgment motions. That discussion includes everything from making a summary judgment record to brief writing, to making a cross-motion for summary judgment. This webinar shines a light on what happens to the great percentage of cases that don’t make it to trial.
Part of the webinar series: NEWBIE LITIGATOR SCHOOL- 101 PART I 2022
See more at https://www.financialpoise.com/webinars/
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An appeal occurs when an appellate court, such as one of the federal courts of appeal, examines a lower court’s decision in order to determine whether the proper procedure was followed or the correct law was applied. In other words, when a defendant appeals, he or she is claiming that the court made an error. Thus, the appeal guarantees that a defendant who is found guilty can challenge his or her conviction. Further, the appeal442443guarantees that another judge or panel of judges, disconnected from the initial trial, will make the relevant decision.
Although appealing convictions is an important part of the criminal process, the Supreme Court has never held that doing so is constitutionally permissible. That is, nowhere does the U.S. Constitution specify that a certain number of appeals will be granted to each convicted criminal. InMcKane v. Durston (153 U.S. 684 [1894]), the Supreme Court stated, “A review by an appellate court of the final judgment in a criminal case, however grave the offense of which the accused is convicted, was not at common law, and is not now, a necessary element of due process of law” (p. 687).
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Despite the Supreme Court’s view that appealing one’s conviction is not constitutionally guaranteed, every state and the federal government each has rules providing a certain number of appeals to a convicted criminal. At both the state and federal levels, a convicted criminal is usually granted at least one appeal of right, also known as a direct appeal, and at least one discretionary appeal.
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Hong Kong Court of Appeal holds that the "Good Faith" Principle is Complementary to the "Choice of Remedies" Principle, Aligning Hong Kong Law with Singapore Law
1. This update is for your general information only. It is not intended to be nor should it be regarded as legal advice.
Hong Kong Court of Appeal holds that the “Good
Faith” Principle is Complementary to the “Choice of
Remedies” Principle, Aligning Hong Kong Law with
Singapore Law
Abraham VERGIS, Nawaz KAMIL &
Sunita ADVANI
On 5 December 2016, in a case concerning the
enforcement of five arbitral awards (the
“Awards”) made in favour of Astro Group
(“Astro”) against PT First Media TBK (“First
Media”), the Hong Kong Court of Appeal
(“HKCA”) found that the “good faith” principle
was complementary to the “choice of
remedies” principle, moving Hong Kong law in
line with Singapore law. Under the “choice of
remedies” principle, the award debtor may resist
recognition and enforcement of an arbitral
award, which is what the Singapore and Hong
Kong courts refer to as a passive remedy, even
though it had not applied to challenge a
preliminary ruling on jurisdiction or to set aside an
arbitral award, referred to as active remedies.
In the lower court decision, Judge Anderson
Chow Ka-ming (“Chow J”) held that First Media
had breached the “good faith” principle by
participating in the arbitration but then only
raising objections to jurisdiction later at the
enforcement stage. On appeal, the HKCA
overturned the lower court’s finding and held
that there was no breach of the “good faith”
principle.
Just three years prior in Singapore, First Media
had successfully resisted enforcement of the
Awards before the Singapore Court of Appeal
based on the Singapore Court of Appeal’s
holding that parties who do not elect active
remedies are not thereby precluded from relying
on passive remedies to resist recognition and
enforcement of arbitral awards.
In a lengthy judgment littered with references to
the Singapore Court of Appeal judgment, the
HKCA found that one of the reasons why First
Media had not breached the good faith
principle is that First Media did not remain silent
about its objection to jurisdiction even though it
had not challenged the preliminary award, and
had expressly preserved its rights throughout as
regards jurisdiction. This was confirmed by the
Singapore Court of Appeal. Additionally, the
HKCA held that Chow J had “fallen into error” in
not giving weight to the decision of the
supervisory court of the seat of the arbitration, i.e.
the Singapore Court of Appeal judgment, in
considering the conduct of the arbitration for
the purpose of the good faith principle.
However, the HKCA acknowledged that
“[a]pplying the principle of “good faith” too
rigorously whenever there is a failure to pursue
active remedies might bring this into conflict with
the “choice of remedies” principle”. To prevent
such a conflict, the court should consider the
“full circumstances why an active remedy is not
pursued or other relevant considerations (such
as whether there was a clear reservation of rights
so the opposite party was not misled)”.
The decision of the HKCA brings Hong Kong’s
position in line with Singapore’s position in
respect of raising jurisdictional objections before
the courts.
In conclusion, this pro-arbitration stance of the
Hong Kong courts has allowed Hong Kong to
maintain its appeal as one of the world’s leading
arbitral centres, despite stiff competition from
Singapore. This decision of the HKCA also
underscores the importance of parties expressly
reserving their position on jurisdiction in order to
Newsflash
August 2017
2. This update is for your general information only. It is not intended to be nor should it be regarded as legal advice.
avail themselves of passive remedies during the
enforcement of arbitral awards.
__________
If you would like information on this area of law,
please contact:
Abraham VERGIS
Managing Director
+65 6438 1969
abraham@providencelawasia.com
Nawaz KAMIL
Counsel
+65 6438 1969
nawaz@providencelawasia.com