DKVG Attorneys ’s Post

The impartiality of the judiciary is a fundamental principle of a legitimate, civilised legal system and has recently been a topic of contention in various South African matters. In my case note published in the latest edition of the Tydskrif vir die Suid-Afrikaanse Reg / Journal of South African Law, titled '"A veritable cesspool of lawlessness": upholding judicial impartiality and decorum in South African judgments' 2024 (2) 386, I critically examine the recent judgment of Mogoai v City of Tshwane Metropolitan Municipality within this context. In this note, I argue that various remarks made in the judgment are not in keeping with the legal requirement of judicial impartiality or the genre required of judgments. Ultimately concluding that the shortcomings lead to a confusing and poorly reasoned ratio that does not promote the interests of justice. When handed down, the judgment was lauded by many as a welcome and candid expression of beliefs widely held by South Africans, lamenting a general sentiment of 'lawlessness' in South Africa. However, I argue that judgments are rightly held to a different standard than, for example, a newspaper column, and as a normative requirement of constitutional law, the judiciary must discharge its duty impartially. I share a link to the judgment in the comments and welcome any feedback and comments on the case note. As I stated in the note, 'critical discourse between academe and the bench is a hallmark of a well-functioning legal system ... [and accordingly hope] that this note acts as a catalyst in critical discussion on judicial impartiality as a basic, yet cardinal, trait in constitutionalism' (p 396). It is also in this spirit that I share it with you.

In the latest legal magazine Žurnāls "Jurista Vārds", you will find my article “The Case-Law of the European Court of Human Rights, Assessing the State's Responsibility for Not Making a Preliminary Reference” (in Latvian).

Read more in the article in Estonian below, how Tea's new role as CTO will help us integrate innovation into legal services at NJORD. #njordlaw #CTO

One of the last big cases I worked on when I was at Incisive Law was The “Sea Justice”. I was fortunate to be given the opportunity to lead the first instance hearing and obtain a favourable outcome for our clients in The "Sea Justice", together with a very capable team comprising Sivah C, Gerry Zhang, John Seow and Loh Wai Yue. Following a collision off China, the Defendant, the Owner of the “Sea Justice” had constituted a limitation fund in China and there were also various other maritime proceedings afoot there. Notwithstanding the same, the Plaintiff, the Owner of the “A Symphony” arrested the “Sea Justice” in Singapore. Security was furnished to procure the release of the vessel. The Defendant applied for a stay of the Singapore action on the ground of forum non conveniens, as well as to set aside the warrant of arrest on the ground of material non-disclosure, and for the return of the security. The Plaintiff vigorously opposed the return of security. These are the key takeaways from the decision: 1.     The Court will not consider a loss of the security legally obtained in Singapore as a loss of juridical advantage under Stage 2 of the Spiliada test. This is so even if the amount the Plaintiff could potentially recover from the limitation fund constituted in the foreign proceedings is far less than its claim amount or the amount of the security obtained in Singapore.  2.     The Court will take into account a limitation fund that has been constituted in the competing forum, even if the competing forum applies its own domestic limitation regime and is not a party to the 1996 Protocol (to which Singapore is a party) or the older LLMC 1976 or LLMC 1957. 3.     The Court has reiterated the principle in "The Ever Glory" that a claimant cannot dictate where the limitation fund is to be constituted. While losing the benefit of the higher limit under Singapore law may be a disadvantage to the Plaintiff, it cannot properly be termed an injustice and the Court should not go to its assistance. 4.     On forum non conveniens, the usual factors under Stage 1 of the Spiliada test apply, e.g. (a) where did the collision take place, (b) where are the evidence and witnesses located and (c) will there be multiplicity of proceedings? Whether the plaintiff has submitted to the jurisdiction of the foreign court is also important in considering (c) and in cases where the plaintiff denies that it has (as in this case), expert evidence on foreign law may be required. This decision is welcomed as it helps to protect shipowners against forum shopping and vexatious actions by claimants. As the decision is under appeal, keep your eyes peeled to see how the High Court Judge will address these issues. In the meantime, the AR's decision is attached here.         

Rule of law alert in Slovakia! An amendment of the Slovakian Competition Act been submitted to the Slovak Parliament, which proposes a change in the method of election, appointment and dismissal of the Chairman of the Slovak Antimonopoly Office (PMÚ). The Slovak Antimonopoly Office warns that the approval of this proposal would constitute a significant interference with its independence. It would also be a violation of Article 4 of the ECN+ Directive on independence of NCAs and the Constitution of the Slovak Republic. Read (and use your AI tools) their press release here: https://lnkd.in/eFCqv_dP #ruleoflaw #competitionlaw #independence #ECN

Live!! The discussion on the impact of lawyers in society and the question what would a world without lawyers be like. Excellent contributions from a star studded panel including the always inspiring President of the International Bar Association, Almudena Arpón de Mendívil, Baroness Kennedy, David Rivkin and others. Thought provoking insights on the impact lawyers have, both positive and negative. The rule of law is a most fundamental pillar of any civilised society and while not all lawyers positively contribute to upholding the same, the legal profession is an inseparable part of it. The burden on us lawyers is to ensure that overall the foundations of this pillar are not eroded! #InternationalBarAssoviation, #IBA, #RuleofLaw #Internationalbarassociation, #IBA #ruleoflaw

🎯🎯Few days ago, I came across one concept shared by one of my mentor at LawSikho that grabbed my attention . ✨✨why an Arbitration Clause incorporated in any agreement, hold the status of a full independent Agreement?? 👉Initially I was't aware of it. I did some research and got to know that-- ♦️The answers lies in the Doctrine of Separability , because of which Arbitration clause is considerd to be an separate and independent agreement, provided that it should be included in writing in the Agreement entered between the parties. ♦️Another reason is regard to the termination of Agreement. Means even when the whole agreement is terminated, the arbitration clause remains in operation, giving an opportunity to the agrrived party to seek remedies under arbitral tribunal. Supposedly, a dispute has arisen while the contract was in force, and the parties do not raise a claim until after the main contract has been terminated, but it does not prevent the dispute from being decided by an arbitral tribunal. ➡️International Context In various decisions given by international court which reflect the incorporation of doctrine Separability is ab initio. One important English decision, Bremer Vulkan Schiffbau Und Maschinenfabrik v. South India Shipping, [1981] A.C. 980, Lord Diplock stating that “the arbitration clause constitutes a self-contained contract collateral or ancillary to the [underlying] contract itself”. In France, the French Court of Cassation held in the classic Gosset decision (Cass. 1ere civ., 7 May 1963) that the arbitration clause has, in international arbitration, full autonomy vis-à-vis the substantive contract. ➡️Indian Context In a recent case of M/S S.K Agencies vs M/S Dfm Foods on 20 December, 2023, Delhi HC stated,Section 16(1)(a) of the Arbitration and Conciliation Act, 1996 provides that an arbitration clause which forms part of the contract shall be treated as an agreement independent of the other terms of the contract. The plain meaning of the aforesaid clause would tend to show that even on the termination of the agreement/contract, the arbitration clause would still survive. 👩🎓A hughe thanks to Prateek Mishra sir to cropped up this aspect and posing the question that led me to uncover this important and interesting aspect of law of Arbitration.😇😇 #Newlearnig #Arbitration #ContractLaw #Arbitrationclause #Lawsikho

I am proud to be involved, with my team at Zaiwalla & Co, in a hearing before the UK Supreme Court this week that is likely to have important implications for international arbitration practitioners. In Sharp Corp Ltd v Viterra BV (previously known as Glencore Agriculture BV), the Supreme Court will consider the extent to which the Court can, in an appeal on a question of law pursuant to s. 69 of the Arbitration Act 1996, make refinements to the question for which permission was granted. The dispute arises out of a commodities dispute under the terms of the Grain and Feed Trade Association (GAFTA) and the appropriate method for calculating damages under the GAFTA Default Clause.    Appeals on a question of law under s. 69 of the Act require permission of the High Court, and it is a relatively rare occurrence for permission to be granted, much less to succeed. In this case, the High Court granted permission to appeal against two GAFTA arbitration awards and then later dismissed the appeal. The Court of Appeal took a different view of the characterisation of the parties’ legal relationship and, after a refinement of the question of law, came to the opposite conclusion, ordering that the Awards be remitted back to the arbitrators.    The Court’s judgment will be particularly noteworthy for arbitration practitioners. The Supreme Court has not yet previously considered the issue of the extent, if at all, to which the Court can refine a question of law for which permission is granted under s. 69. This may clarify the scope of existing Court of Appeal authority on the question.   Section 69 is one of the few exceptions in the Act which allows scope for court intervention in arbitration proceedings and the finality of an award. The Court’s judgment will no doubt be of interest to the international arbitration community at a time when the Act has recently been subject to detailed consideration by the Law Commission.  

📅 RPC is a proud sponsor of the second South-Eastern Europe Arbitration Conference that will be held in Vienna on 26 September 2024. This year the SEEA is coming back to Vienna with the topic - How can we effectively navigate the complexities of SEE's legal landscape amidst digital transformation, climate change, public policy and other concerns of the new age ensuring that arbitration remains a pillar of justice and stability in the region? The day will feature two keynote addresses by Anna Joubin-Bret, Secretary of UNCITRAL and Director of the International Trade Law Division at the Office of Legal Affairs of the UN Secretariat, and Andrej Savin, Professor in IT Law & Internet Law at Copenhagen Business School, Denmark, followed by four panels led by leading arbitration practitioners. The SEEA provides a forum for debating important issues in in the SEE region, offering practical insights and solutions by SEE and international community of arbitration practitioners, academics, industry experts, funders, investigation specialists and in-house counsel. Join us for a day of insightful discussions and networking opportunities! The registration link is in the comments. 🌐💡 Join us for a day of insightful discussions and networking opportunities! Register here: https://bit.ly/4dvfWU7. Thank you to the sponsors for their support and dedication: George Z. Georgiou & Associates LLC, Muşat & Asociaţii, Schoenherr Attorneys at Law, DPC, Ankura, Christos Georgiades & Associates LLC, Gregoriou law firm, Berkeley Research Group, MEIDANIS SEREMETAKIS / ASSOCIATES LAW FIRM, BIT law office, Jus Mundi, Raedas, SW Legal , Joksovic, Stojanovic & Partners.   Finally, the SEEA would not be there without a brilliant team of organisers Tatiana Minaeva (RPC), Deger Boden (Boden Law), Nenad Stankovic (Stankovic & Partners), Ileana Smeureanu (Jones Day), and Stevan Dimitrijevic (Dimitrijević & Partners ). #SEEA #ArbitrationConference #Arbitration #Disputes #DisputesPowerhouse #DigitalTransformation #Legal #ClimateChange #PublicPolicy #InternationalArbitration

🎓 📚 We are proud to announce that Hitik Law will host the American Society of International Law Midwest Interest Group 10th Annual Scholarly Works-in-Progress Workshop which will be held on January 26, 2024.    👉 Those interested in presenting at the workshop should send a 500-word abstract to workshop@hitiklaw.com by Friday, December 8, 2023. Papers may address any international law topics, and this Call for Submissions is open to everyone in the international legal community.   Check out the document attached for more details, and we are looking forward to your submissions! 📑 #InternationalLaw #Workshop #CallforSubmissions #ASIL #ASILMidwest #MidwestIG #HitikLaw