• Anti-arbitration injunctions and the English courts: judicial interference or judicial protection?

      Seriki, Hakeem (Sweet and Maxwell, 2013)
      In the course of arbitral proceedings (whether before or during proceedings) a party may need to seek injunctive relief. The use of injunctive relief in international commercial arbitration is nothing new and must not be seen as incompatible with the underlining principles of commercial arbitration such as party autonomy, separability and kompetenz-kompetenz. Many institutional rules1 and arbitration legislation2 allow parties to apply to an appropriate court for injunctive relief. Indeed, injunctions can be very crucial to the outcome of a claim given that there are situations where the tribunal may not yet be constituted or lacks the power to grant the relief sought. For example, s.44 of the Arbitration Act 1996 (the Act) is seen as a supporting measure by which the courts can assist arbitral proceedings by granting an interim injunction so as to preserve evidence and assets in appropriate situations.3 Hence, arbitral proceedings can be secured by prompt early injunctive relief of the type that can only be granted by the courts.
    • Anti-suit injunctions and arbitration: parasitic or free standing?

      Seriki, Hakeem (Sweet and Maxwell, 2013)
      Where a party amenable to the jurisdiction of the English courts commences proceedings in a foreign jurisdiction in breach of an exclusive jurisdiction clause or an arbitration clause, the English courts have always shown their willingness to injunct such a party. While such injunctions are seen as controversial, nevertheless they have been a useful tool at the disposal of the English courts. Over the years, English courts have demonstrated their willingness to grant anti-suit injunctions under s.37 of the Senior Courts Act 1981 (SCA) 1 so as to uphold the sanctity of arbitration agreements. In February 2009, the European Court of Justice (ECJ) delivered its much-anticipated decision in Allianz SPA v West Tankers Inc (The Front Comor) 2 where it ruled that the English courts could no longer grant anti-suit injunctions in relation to arbitration in EU cases.3 In 2010, the European Parliament’s Committee on Legal Affairs prepared a report4 on the European Commission’s proposal to amend the Brussels Regulation. The Report opposes the deletion of the arbitration exclusion in art.1(2)(d) of the Brussels Regulation5 and suggests the clarification of the point that judicial proceedings ruling on the validity of arbitral competence are excluded from the scope of the Brussels Regulation.6 The Report further suggests that art.31 of the Regulation should be revised so as to provide that no judgment should be recognised in Member States if the court concerned disregarded an arbitration rule of the State in which enforcement is sought unless the judgment of that Member State would produce the same result as if the law of arbitration of the Member State in which enforcement is sought had been applied.7
    • Applying principles of biological evolution to legal development: an exploration

      Lewis, Rhidian; Mortimer, Thomas Richard; Anglia Ruskin University (Center for Promoting Ideas, 2012)
      The application of the biological principle of evolution has found a number of contemporary applications within the analysis of business activities. The application of these scientific principles is considered appropriate in a further application within the development of legal principles particularly in the context of the ongoing development of the European Union as a significant business environment. It is proposed within this paper that direct parallels may be drawn between the evolutionary principle of biological speciation and the emergence of legal principles within separate national boundaries. Contemporary principles of biological evolution are also considered in respect of the development of primary legislation which act on the development of law in a punctuated manner. These principles are examined in respect of the continued debates surrounding company law within the European Union, in particular the persistence of national legislation dealing with corporate mobility. In examining the appropriateness of applying biological evolution to the development of EU company law consideration is given to the development and functioning of the Societas Europaea (European Company) in respect of its legal environment.
    • Charanne case: investors defeated in first ECT solar claim arbitral award

      Baltag, Crina (2018-01-01)
      There are over thirty arbitrations based on the provisions of the Energy Charter Treaty (‘ECT’) registered against Spain and arising out of the photovoltaic solar electricity incentives granted by Spain to its investors in this renewable energy field. Promoted under the slogan ‘The sun can be yours’, the incentives granted by Spain attracted a record number of investments. The first arbitral award issued in this series of cases concerned the dispute between Charanne B.V. and Construction Investments S.à.r.l, as Claimants, and Spain, as Respondent. While the arbitral tribunal upheld jurisdiction, it rejected Claimants’ claim and dismissed the allegations of breaches of fair and equitable treatment and expropriation standards under the ECT. Although this arbitral award is not binding on subsequent arbitral tribunals, the reasoning of the tribunal in the Charanne case is of utmost importance as it confirms that the ECT is available for intra-European Union disputes. On the other hand, it is interesting to see how the other cases based on the same regulatory scheme will develop, as the tribunal in the Charanne case dismissed Claimants’ claims in full.
    • Clash of Titans – general principles of EU law: balancing and horizontal direct effect

      Gualco, Elena; Lourenço, Luísa; University of Genoa; ERA Academy of European Law (2016-08-08)
      More than 10 years after the first ruling on the horizontal effect of the principle of non-discrimination on grounds of age, in the Dansk Industri case (Court of Justice, judgment of 19 April 2016, Dansk Industri (DI), Acting on Behalf of Ajos A/S v. Estate of Karsten Eigil Rasmussen, case C-441/14 [GC]) the CJEU reiterates Mangold and Kücükdeveci. It has by now proclaimed a new form of horizontality, deriving from the combined application of two different sources of law, i.e. the directive and the general principle. According to the Court, neither the general principle of legal certainty, nor that of legitimate expectations, which can be jeopardised by the horizontal effect of non-discrimination on grounds of age, question the necessity to ensure its effectiveness. Protecting non-discrimination on grounds of age justifies not only a broader application of that principle, but also its hierarchical priority over other general principles of EU law. However, insofar as general principles equally protect other fundamental rights, some questions arise: can the judicial activism of the CJEU equally improve effectiveness and uniformity in the protection of fundamental rights within the EU? Or, as Dansk Industri suggests, does the former goal (i.e. effectiveness) necessarily affect the latter?
    • “Clash of Titans” 2.0. From conflicting EU general principles to conflicting jurisdictional authorities: the Court of Justice and the Danish Supreme Court in the Dansk Industri case

      Gualco, Elena; University of Bedfordshire (2017-03-26)
      The present papers focuses on the reception by the Danish Supreme Court of the CJEU decision in the Dansk Industri case. Instead of disapplying a national provision which was found by the CJEU to be inconsistent with the general principle of non-discrimination of grounds of age, the Danish Supreme Court stresses that the Law of Accession of the Kingdom of Denmark to the European Union does not cover general principles of EU law and the national provision cannot be disapplied. The selective approach of the Danish Supreme Court raises a number of concerns which this paper highlights: first, a clear misunderstanding regarding the functioning of general principles of EU law; second, a violation of the duty of sincere cooperation and the relate doctrine of supremacy of EU law; third, an arguable assessment of the effects of the Charter of fundamental rights.
    • Corporate governance in Poland

      Mortimer, Thomas Richard; Anglia Ruskin University (Virtus Interpress, 2009)
      This article considers the traditional approach to the 'state' Models of corporate governance, namely shareholder Model and stakeholder Model. It then considers the extent to which developments in a recent accession EU country, Poland, reflects either of these Models or adopts a hybrid approach. It then offers proposals for the future development of corporate governance within Poland.
    • Corporate personality, human rights and multinational corporations

      Yiannaros, Andreas C.; Nyombi, Chrispas; University of Bedfordshire (Sweet & Maxwell, 2016-05-01)
    • Corporate personality: the unjust foundation of English company law

      Nyombi, Chrispas; Bakibinga, David James; University of Bedfordshire; Makerere University (Commerce Clearing House, Inc, 2014)
      The article discusses the doctrine of corporate personality and the reportedly unjust foundation of English company law as of 2014, focusing on the British House of Lords' ruling in the nineteenth century legal case Salomon v. Salomon & Co. Ltd. which deals with liquidators' rights and Great Britain's Joint Stock Companies Act. A separate legal entity doctrine is mentioned, along with British case law and various judgments by English courts. Great Britain's Parliament is also examined.
    • Countermeasures: obligations relating to human rights and humanitarian law

      Borelli, Silvia; Olleson, Simon (Oxford University Press, 2010)
    • A critique of shareholder primacy under UK takeover law and the continued imposition of the Board Neutrality Rule

      Nyombi, Chrispas; University of Essex (Emerald, 2015)
      Purpose – The purpose of this paper is to determine whether the Board Neutrality Rule and the primacy afforded to shareholders during takeovers is justified under common law and policy. Design/methodology/approach – The paper provides a detailed assessment of the role play by the board neutrality rule and whether this is supported by takeover law and Company law. A review of case law and statutes is provided. The paper is largely analytical. Findings – The paper finds little justification for the continued imposition of the Board Neutrality Rule. Originality/value – The paper adds to the growing body of research literature which has analysed the role played by the Board Neutrality Rule during takeovers.
    • A Critique of The Uganda Mental Health Treatment Act, 1964

      Nyombi, Chrispas; Kibandama, Alexander; Kaddu, Ronald; University of Essex; High Court of the Republic of Uganda (University of Memphis, 2014)
      The scarcity of research into the deplorable state of Uganda’s mental health laws is a grave lacuna that needs urgent redress. Firm in mind that academic scholarship is a collaborative enterprise with deep roots in constructive criticism, this paper aims to fill this gap. This paper provides a circumspect examination of mental health laws in Uganda. The paper reviews the Mental Health Treatment Act 1964 and highlights the main areas that need reform. It keeps the jurisprudential analysis of applicable international treaties and conventions such as the United Nations Convention on Rights of Persons with Disabilities to a minimum. This paper will inform legal, academic and healthcare circles on the current state of mental health law in Uganda.