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Litigation and Alternative Dispute Resolution

Consolidation of Arbitrations in ICC Arbitration

Contact: Prof. Dr. H. Ercument Erdem; Erdem & Erdem (Turkey)

With respect to International Chamber of Commerce ("ICC") arbitration, consolidation is a procedural mechanism used when two or more pending arbitrations are merged into a single arbitration. Due to the current practice in international commercial transactions that require technical, commercial and financial specialization, the number of multi-party disputes has a tendency to increase. Consolidation may have advantages with regard to procedural efficacy, and may provide procedural economy and cost efficiency. It also lowers the risk of inconsistent decisions. Additionally, the fact-finding phase is facilitated and may be finalized more efficiently, with a more comprehensive presentation of legal and factual positions...


Current Practices on Determination of Seat of Arbitration in ICC Arbitration

Contact: Att. Ezgi Babur; Erdem & Erdem (Turkey)

The determination of the seat of arbitration is of great importance, due to its consequences on the arbitration procedure. In the International Chamber of Commerce ("ICC") practice, cities as Paris, London, Geneva and Zurich are among the most popular arbitration seats. It is preferable that the seat is in a jurisdiction with a well-developed arbitration legislation. Courts experienced in arbitration issues and a tradition of supporting and respecting arbitration agreements and arbitral awards are also among the factors considered in the determination of the seat of arbitration. The location of the seat of arbitration and ease of access and convenience are also considered by the parties and practitioners in the choice of the seat of arbitration...


Multiple Respondents in Class Actions: The Federal Court Resolves the Debate

Contact: Michael Bath, Special Counsel and Christian Breen, Senior Associate; Carter Newell (Queensland, Australia)

Introduction

Class action proceedings against multiple respondents have been the subject of conflicting judicial authority and debate.1 The Full Court of the Federal Court of Australia in Cash Converters International Limited v Gray2 recently considered whether s 33C of the Federal Court Act 1976 (Cth) (FCA) requires each group member in a representative proceeding to have a claim against each respondent.

Seemingly resolving more than ten years of uncertainty, the Full Court held that it is not necessary for each group member to have a claim against each respondent.  In doing so, the Full Court thoroughly explored the legislative framework surrounding commencing a representative proceeding, as well as the legal authorities which have considered the issue.

To read the full article click here, or visit www.carternewell.com


Vexatious Litigants and Immune Advocates

Contact: Mark Brookes, Partner and Hannah Fox, Graduate Lawyer; Carter Newell (Queensland, Australia)

The following two cases have recently been decided in the Supreme Courts of Queensland and New South Wales respectively. The first decision involves a successful argument by the Bar Association of Queensland that a plaintiff be declared a vexatious litigant, notwithstanding the usual difficulties in achieving this outcome. The second decision involves a successful argument by a barrister and solicitor that they are harmless to the plaintiff’s allegations on the basis of advocates’ immunity.

To read the full article click here, or visit www.carternewell.com


Immunity for the Devil’s Advocate?

Contact: Mark Brookes, Partner and Marijke Bassani, Graduate Lawyer; Carter Newell (Queensland, Australia)

The recent New South Wales Court of Appeal decision in Bird v Ford [2014] NSWCA 242 involves allegations of negligence against a firm of solicitors, where the solicitors successfully defended the claim on the basis they did not breach their duty of care in the advice they provided to their client when playing ‘devil’s advocate’ regarding the client’s prospects of success in underlying litigation.

The judgment is primarily relevant to insurers of solicitors and barristers, and contains interesting commentary on the extent of a solicitor’s duty to advise and warn clients in cases with doubtful prospects, and also involves consideration of procedural fairness in disciplinary matters and (in the first instance decision) the ongoing application of advocates’ immunity from suit...


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