LK Blog

The LK Blog aims to provide timely analysis and commentary on decisions of interest from the leading appellate courts and important industry developments.

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Negligence Claims Against Former Directors: Recent Developments on the Doctrine of Attribution and the Applicability of the Special Time Limit

When management control of a company changes, for example, with the appointment of a liquidator or a new Board of Directors, the new management may wish to scrutinise the actions of the old management and hold them accountable for any…

Kevin Kee and Christina Lo

Non-Core Insolvency Claims: Straddling the Line Between Arbitrability and Non-Arbitrability

It is trite to say that insolvency matters are non-arbitrable. However, an emerging line of authority suggests a nuanced and fact sensitive enquiry is nevertheless necessary to properly ascertain the essential character of the dispute. The mere fact that certain…

Julia Dreosti and Patrick Leeson

The “Place Where the Harmful Event Occurs”: Breach of an Exclusive Jurisdiction Clause and the Application of Article 5(3) of the EC Judgments Regulation (Regulation 44/2001)

Establishing that a contentious issue should be tried in a particular jurisdiction or under a particular governing law can be crucial to the success or failure of a case. Each jurisdiction has its own advantages and disadvantages, both procedurally, in…

Emma Sutton

Court of Appeal Grants Rescission of a Derivatives Contract on the Grounds of Bribery, where the Defendant had no Knowledge of the Bribery

In a case that made headlines in the aftermath of the financial crisis, the Court of Appeal has dismissed UBS’s appeal against a 2014 High Court ruling in favour of KWL, the Leipzig Water Authority. In UBS AG (London Branch)…

Caroline Mattin

Court of Appeal Clarifies the Test for the “Existence of Assets” on an Application for a Worldwide Freezing Order

The recent English Court of Appeal decision in Ras Al Khaimah Investment Authority v Bestfort Development LLP and others [2017] EWCA Civ 1014 clarifies the test for the existence of assets on an application for a worldwide freezing order (“WFO”). …

Caroline Mattin

Mandatory Examinations under Section 596A: Engaging the Judicial Power of the Commonwealth and a “Matter” in the Constitutional Sense

Section 596A of the Australian Corporations Act 2001 (Cth) provides a mechanism for an “eligible applicant” (usually an administrator, liquidator, or the Australian Securities and Investment Commission) to examine current or former officers or provisional liquidators of a corporation in regards…

Allie Umoff

The Irrevocability of an Agent’s Authority and Whether Commission Creates a Constructive Trust

Disputes often arise over whether particular assets fall within the estate of an insolvent company, and assets arising out of a principal and agent relationship can cause particular uncertainty. If a claimant can establish a proprietary interest in an asset,…

James Hayton and Emma Sutton

Hong Kong Legislative Council to Consider Legislative Amendments Allowing Third Party Funding of Arbitration

Third party funding has historically been prohibited in common law jurisdictions (including Hong Kong) by the doctrines of maintenance and champerty. The use of third party funding has, however, become increasingly prevalent in a number of jurisdictions over the past…

Rebecca Yorston and Pooja Shahani

Courts look beyond “winding up” order to determine arbitrability of claims

The enforcement of arbitration agreements is one of the most important principles of international arbitration. Article 8 of the UNCITRAL Model Law on International Commercial Arbitration, adopted by Australia through section 7 of the International Arbitration Act 1974 (Cth) (“IAA”),…

Sylvia Tee and Kate Varsos

Freezing Injunctions in Aid of Foreign Proceedings – Judicial Comity and the Hong Kong Court of Final Appeal

The Mareva injunction, also known as a freezing order, is a valuable and often-used weapon in a plaintiff’s legal armoury. Correctly deployed, it prevents a defendant from frustrating the litigation process as it restrains the dissipation of the defendant’s assets. …

Suchita Bhojwani
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