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Courts as a ‘public authority’ and the horizontal effect of Convention rights

This Practice Note considers the court’s position as a public authority for the purposes of the Human Rights Act 1998 (HRA 1998) and the effect on judgments concerning the relationship between non-state individuals (private individuals)—the so called ‘horizontal effect’ of Convention rights.Horizontal effect of the European Convention on Human RightsThe UK was one of the first signatories to the European Convention on Human Rights (ECHR, also known as the Convention), but prior to HRA 1998, the ECHR was regarded simply as an international treaty, not enforceable directly by private individuals against each other in the domestic courts. The aim of the ECHR was to protect these fundamental rights from interference by a state government, ie ‘vertical effect’.While the coming into force of HRA 1998 in 2000 radically and deliberately changed this landscape, it is to be noted that no specific provision was made in regard to the enforceability of Convention rights between private individuals.But HRA 1998, s 6(1) makes it unlawful for a public authority to act in a way...

Doing business in: South Korea

Doing business in: South Korea Updated in March 2024 Introduction The Republic of Korea (South Korea, and referred to throughout this Practice Note as ‘Korea’) maintains favourable conditions for entry into the East Asia market due in part to its geographically central location in East Asia’s transport networks. Korea currently has free trade agreements with a total of 59 trading partners, including the US, the EU, China, ASEAN, India, and Chile, and it is emerging as a centre for commerce worldwide, not just East Asia. Korea systematically encourages inbound foreign investment through various legislation to provide foreign investors with some incentives including tax benefits. There are a variety of ways of structuring a business operation in Korea. The aim of this guide is to highlight some of the key areas that a new business will need to address before it begins to operate in Korea. This guide should not be considered to be an all-inclusive guide and specific Korean legal advice should always be sought before setting up and running...

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Are the decisions of the First-tier Tribunal (Property Chamber) binding upon its self?

Are the decisions of the First-tier Tribunal (Property Chamber) binding upon its self? In civil proceedings, the doctrine of stare decisis (to stand by things decided) provides a hierarchy in respect of the binding nature of certain court proceedings. This can be summarised as follows: • every court below the Supreme Court will be bound by the Supreme Court’s decisions, and all courts below the Court of Appeal will be bound by the Court of Appeal’s decisions • a High Court Judge will not be bound by a decision of a fellow High Court Judge, however, in practice, High Court Judge’s will follow such a judgment unless they consider it to be wrong • High Court decisions are binding on judges in the County Court County Court decisions are not usually binding upon other County Court judges. In terms of tribunal proceedings, the Tribunals, Courts and Enforcement Act 2007 (TCEA 2007) is of relevance. TCEA 2007, s 3(5) provides that the Upper Tribunal is to be a superior court of...

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No annulment for old objections (BayWa v Spain)

Arbitration analysis: In May 2023, an ICSID ad hoc committee contributed the latest episode to the Spanish solar arbitration saga, by rejecting Spain’s arguments based on the CJEU Komstroy ruling on intra-EU arbitration. The BayWa v Spain annulment decision reflects the tense, from a doctrinal and institutional perspective, relationship between EU law and investment tribunals, and compounds post-Achmea complexities with regards to arbitration proceedings within Europe. Written by Anastasia Choromidou Mark Konstantinidis.

Private Client weekly highlights—2 March 2023

This week’s edition of Private Client highlights includes: (1) Euro Securities & Finance v Barrett, which considered the witnessing and attestation of a deed under the Law of Property (Miscellaneous Provisions) Act 1989; (2) The Ministry of Justice’s response to the consultation on the Mental Capacity Small Payments scheme; (3) Goddard-Watts v Goddard-Watts, in which the Court of Appeal ruled against the husband in a long-running fraudulent non-disclosure case; (4) Good v HMRC, in which the Court of Appeal defined ‘entitled to’ where income is assigned; (5) Re Mizen Design/Build Ltd, which concerned issues of material irregularity and unfair prejudice in company voluntary arrangements; (6) McElroy v McElroy, where the court held that laches could be a defence to a probate claim; (7) The Trusts and Succession (Scotland) Bill; (8) Coller v HMRC, a First-tier Tribunal decision on the acquisition of a domicile of choice;, and (9) Re Z Trust (Jersey), a decision of the Royal Court of Jersey, in which family context was a key issue in a Public...