Herbert Smith Freehills has secured an important judgment from the Hong Kong Court of Appeal, C v D [2022] HKCA 729, regarding escalation clauses – contractual provisions which require negotiation or mediation before either party can begin formal proceedings. These clauses are intended to promote the efficient resolution of disputes, but often lead to costly … Read more

The Malaysian High Court has clarified when a party will be considered unable to fulfil its contractual obligations for the purposes of relief against contractual claims under Section 7 of the Temporary Measures for Reducing the Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 (Covid-19 Act). While there have been previous cases where parties have … Read more

In a recent English judgment, Heritage Travel and Tourism Ltd v Windhorst [2021] EWHC 2380 (Comm), the English High Court held that a clause in a settlement agreement requiring immediate payment of all outstanding amounts in the event of a late payment (i.e. an acceleration clause) was capable of falling within the penalty doctrine, but … Read more

In a notable judgment (Law Ting Pong Secondary School v Chen Wai Wah [2021] CA 873), the Hong Kong Court of Appeal (CA) has adopted the modern approach to penalty clauses handed down in the UK Supreme Court in Cavendish Square Holding BV v Talal El Makdessi [2016] AC 1172. The recent appellate decision has … Read more

Herbert Smith Freehills has secured an important victory in Hong Kong proceedings with far-reaching consequences for arbitration disputes around the world. Many commercial contracts contain “escalation clauses” requiring parties to take certain steps before formal arbitration begins – such as a requirement to “negotiate in good faith” before starting arbitration. Previously, failure to comply with … Read more

In the recent case of Luk Wing Yan v CMB Wing Lung Bank Ltd [2021] HKCFI 279, the Hong Kong Court of First Instance (the “Court”) found that the defendant bank (the “Bank”) was not liable for losses caused to an investor arising out of investments offered by an employee of the Bank which turned … Read more

The Malaysian Federal Court has given new guidance on when the separate personality of a company, or the “corporate veil”, can be disregarded or pierced to fix liability on its shareholders or controllers. Previously, Malaysian courts would only pierce the corporate veil where a company was used to commit actual or equitable fraud. The Malaysian … Read more

The English High Court has dismissed an application for an injunction to prevent an airline group from making demands under bank-confirmed standby letters of credit (SBLCs), securing aircraft leases granted to the claimant (a budget passenger airline), on the basis that it was not sufficiently arguable that the leases were frustrated due to the effects … Read more