Understand Your Rights. Solve Your Legal Problems
Specializing in personal injury law, Calvin has built PT Law into a trusted advocate for clients navigating the complex legal landscape of Nevada. From leveraging unique state laws to securing favorable outcomes for clients in challenging cases, he has consistently demonstrated a forward-thinking approach to legal representation. In this interview, Calvin shares insights into his remarkable journey, the strategies behind his success, and his vision for the future of PT Law.
Starting my own firm has always been my goal, even before I went to college. I was fortunate enough to be raised by parents who required me to set goals for myself and constantly strive to achieve those goals. My mother, Ling Gillenwater, has worked in the legal field as a paralegal and a manager for more than two decades.
She was a great role model for me back when I was in high school. During my off time, I observed how she helped people who sought legal representation at work and managed to turn their lives around.
While she is not an attorney, she was loved and respected by her clients nevertheless. After seeing her work, I wanted to continue her legacy and keep on doing the good work she has been doing. In some ways, you can say it is very stereotypical for me as a Chinese to continue the family legacy.
I had two goals I had to accomplish before starting my own firm (1) to be barred as a licensed attorney in the State of Nevada as soon as possible, and (2) not to be burdened by a huge student loan that would have made starting my own firm impossible.
Knowing the end goal, my objective in school was to achieve these goals in the fastest amount of time while maintaining a healthy lifestyle, as I have seen too many dysfunctional adults who were high-achieving students. To that end, I learned to cut corners and make sacrifices wherever they may be necessary.
One of the most important decisions I made was to switch school during my junior and senior year of high school. In Las Vegas, Nevada, there is a dual-degree program where high school students can attend a specialty high school located within a college campus. Instead of following the course a high school junior or senior would, students within the dual-degree program can attend college courses for their elective classes and earn credits towards both their high school and college degree requirement.
I had to sacrifice most of my free time to take more classes and leave all of the friends I made during my freshman and sophomore years of high school behind. However, by doing this program, I was able to save a tremendous amount of time. The average age for a newly barred attorney is between 26-30. However, I was able to save more than two years of my time by attending this program.
Student loans are a major concern for college students in the United States. While it was an available option for me, I could not consider it because of the financial position my family was in at the time.
When I was drafting my application for law school, I would have been unable to attend law school if I did not get scholarships because of the financial position my family was in. This meant that before I got into law school, I had to spend all of my time polishing my resume and improving my grades.
While my friends were away on vacation during holidays and summer vacation, I was staying up late and writing essays for scholarship applications.
While most of my friends were content with getting a “B” for their final grade and slacking off, I was revisiting old coursework to improve my grades and ensure I got an “A” for the class. However, this does not mean I did not have any time to myself. I simply had to be more efficient with my time.
For example, instead of taking time off to socialize with friends, I used this time to network and meet new people who might be a good connection for me in the future.
All of these efforts paid off in the end. While I will not go out and claim I am the most well-functioning adult with no financial obligations. I made it through college and law school on a full-ride scholarship and dedicated enough time to friends, family, and physical health to support a healthy lifestyle.
For personal injury claims, the policy limit of an insurance policy is important because it sets the boundaries around which we have to work. To put it in layman’s terms, the policy limit is the amount of money an insurance company will pay on behalf of their insured for a claim.
For us, this is important because most people our clients are making a claim against are ordinary, day-to-day workers. Most of these people live paycheck to paycheck and do not have the means to pay for a settlement. Instead, they rely on their insurance companies to protect them.
One of the best ways Nevada is distinct from many other states is that we have a law that requires insurance companies to disclose their policy limits after a certain set of requirements are met.
Instead of making an educated guess or spending money to go out and investigate the coverage on an insurance policy, we are able to get it in a short amount of time and map out our strategies to ensure the maximum settlement for our clients as long as we stay on top of our game.
By taking advantage of this law, we can have substantive discussions with our clients to (1) ensure they get the maximum amount of settlement possible from their personal injury claim and (2) monitor and/or recommend the course of our client’s treatment so that the least amount of settlement is used to pay for their medical expenses.
One of the unspoken strategies insurance companies use to evaluate a claim is by evaluating the claimant’s (aka our client) biographical background. When I am talking about our client’s “biographical background”, I am talking about their socio-economic standing, race, or the primary language they speak. For most of our clients, the “default” background is a low-middle-class worker of Asian or Hispanic origin who does not speak English. While this deviates from one client to another, this is the most common set of characteristics.
In one particular case, I represented a middle-aged Asian woman who was rear-ended in traffic while she was stopped at a red light and suffered neck and back injuries. A classic fender-bender, if you will. While this is by no means the biggest case we have had in our firm, this was one of the cases I hold dear to my heart because it delves into the darker side of personal injury claims.
After we made a claim for personal injury with the at-fault driver’s insurance company and our client began receiving treatment for her injuries, we were notified that the claim was assigned to a special investigation unit because the insurance company questioned her mechanism of injury.
To put it bluntly, the insurance company questions whether she is injured and suspects she might be a malingerer, someone who is not injured and who makes an insurance claim for the sole purpose of getting a settlement.
There was not a lot of insurance coverage available in this case, and the client was fine with enduring her injuries on her own and addressing them at a later date using her own health insurance. However, instead of letting the case go and allowing my client to be pushed around by the insurance company, I got my client’s permission to file for litigation on this case.
By taking the case to litigation, I was able to get an attorney assigned for the driver of the at-fault vehicle and took his deposition, which is a formal Q&A that is answered under oath and transcribed into the court record. During the deposition, I listed out everything his insurance company had done and asked whether he knew he was going to be personally liable for the judgment we obtain against him in excess of his coverage amount.
Of course, he did not. After the deposition, I believe there was a heated discussion that took place between the at-fault driver and the insurance company because they settled shortly thereafter.
For those of us working in the personal injury field, there are two main hurdles/misconceptions clients face: (1) how the client will pay our attorney’s fees and (2) how much money they will receive from a settlement.
With respect to the first point, we see a lot of clients coming in during intake with one burning question in mind: how much money will we need to pay to have you represent us? Much like almost every personal injury law firm in Nevada, our fees are contingency-based. The simplest way to look at a contingency-based fee for legal representation is to think of it as us helping you make a collateral-free bet.
If we believe you have a valid case for personal injury, you do not need to pay anything upfront. In fact, we will oftentimes front a lot of costs associated with your representation (i.e. costs to request medical records, fax, postage, etc.) on your behalf. In the event we do not get a settlement, you are not responsible for anything on our end. If there is a settlement, our fees and costs would come from the settlement instead of your pocket. This helps a lot of people without deep pockets to get quality representation they deserve.
With respect to the second misconception, we often see people coming in with a false idea of how much they will get from a settlement. One of the things we hear most often during the initial intake is our client stating, “I got hurt the same way my friend did in his case.
Therefore, I should get this amount in my pocket at the end.” While similar cases will help provide good guidance for settlement, the truce is that settlement is oftentimes based on the insurance coverage available in a case and any asset the other driver may have.
Even if a client came to us with a lost arm as a result of an automobile accident, there is little else we can do if the only coverage and/or asset the at-fault driver has is an automobile liability policy with minimal coverage as required by state law. Of course, one of the reasons we are retained to represent our client is to go out and search for additional coverage/assets in these scenarios. However, there are countless times when the aforementioned scenario is the reality.
As a firm that is deeply rooted in the Las Vegas community we are both blessed and cursed by everything this community has to offer. On the positive side, Las Vegas is known as a Sin City and is a tourist/traffic hot spot. This means there are plenty of vehicles and individuals coming through the city every day.
With such a large number of visitors, there are ample traffic accidents, slips and falls, batteries, and other types of accidents that will cause injury to a person. For us, there are always opportunities to take on more cases and expand our repertoire, the only question is whether we have the capacity to do so.
On the negative side, since Las Vegas has more than enough accidents to cause injuries on a minute-to-minute basis, there are also a large number of law firms competing with one another for business. This is best exemplified by the countless advertisements for personal injury lawyers spread throughout the city. While we are mostly cordial and professional with our colleagues in the same field, there are times when conflict and competition are inevitable. We sometimes have to compete with other personal injury firms to take on a client, it is an inevitable aspect of working in a popular market.
One of the complaints we hear most often from clients who were transferred over from other law firms is they do not know what is going on with their case and why they need to seek treatment now as opposed to later. For us, making sure the client is informed is a priority.
From the initial intake meeting, we educate the client on how a personal injury claim progresses from beginning to finish. We discuss the possible treatments clients may undergo based on our past experience and set expectations in a realistic manner. As opposed to telling our client to go get treated and come back to us when the client finishes treatment, we stand by our client and guide them through the process.
If the client does not know what doctor they should seek to receive treatment, we provide them with recommendations based on the type of injury they sustained. When there are updates on a client’s case, we bring them in to discuss the update and to plan out the next step. In the end, the client feels informed about the process and feels as if they were going through the process alongside us.
One of the ongoing issues in Nevada’s personal injury landscape is a petition to limit attorneys’ fees for personal injury cases. The petition, named Nevadans for Fair Recovery, seeks to put a limit on how much personal injury attorneys can charge in a personal injury matter. Ordinarily, personal injury attorneys’ fees are based on the length and depth of the representation provided. Attorneys’ fees for cases that settle before litigation is a lot less than cases that go to trial. The petition, if passed, will put a hard limit on attorneys’ fees regardless of the type of representation rendered.
If this petition is passed, I can see many experienced personal injury attorneys moving to other fields of practice as the profit margin will not be enough to support their business. For us personal injury lawyers, we are taking on a potential risk by accepting your case.
There are more than enough times when a client of mine does not make any meaningful recovery because they were either partially at fault or because there is no valid insurance coverage and asset from the wrongdoer’s side. In those cases, we have to bite the bullet on our costs and fees because that is the nature of our representation. It only takes a few cases to potentially cause a smaller firm to go bankrupt.
In an accident where there are a lot of injured parties and not enough coverage, the insurance company will generally offer their entire settlement budget to all the parties and ask everyone to come to an agreement on how much each party will get.
In these scenarios, the general rule is for each party to get a portion of the settlement in proportion to their medical expenses accrued. We often refer to these types of settlement as “pro-rata settlement”. If we anticipate that a case may require a pro-rata settlement, we would have a discussion with our client beforehand and come to an agreement on a strategy that would secure a fair settlement for the client. One of the strategies we use is asking our clients to receive treatment using their health insurance.
In Nevada, there is a legal doctrine known as the “collateral source rule”. I often call this rule the “none of your business” rule because this doctrine excludes evidence of alternative sources of payment for people injured in a personal injury claim.
This means that if our client went to see a doctor using the client’s own health insurance, the evidence that health insurance has already paid for the doctor’s visit will not be relevant to our claim. This helps us go after the wrongdoer for damages our client sustained with no risk to the client if there is not enough settlement to pay for the medical expenses.
One of the most common ways our clients mess up their personal injury claims is not preparing enough evidence at the scene of the collision. I met with potential clients who were injured in a minor accident but did not take any pictures at the scene of the accident at least once per week. In some fortunate scenarios, they were cautious enough to call the police and obtain a police report memorializing the entire incident.
In the worst-case scenario, a potential client would come in with no photographs of the collision and no contact information for the other driver involved. We often strive to do everything we can to ensure our clients do not return home with nothing. However, evidence is necessary to establish that the at-fault party did something wrong. If there is no evidence that an accident ever occurred and the at-fault party was involved, there is little we can do to help.
One thing I recommend every one of my clients to do after an accident is to stop and take a slow-panoramic video of their surroundings. If they can respond to the situation quickly, take photographs and/or videos of each party’s position and the condition of their surroundings. This information is critical and can often make or break a case.
I already have a few plans in motion for PT Law in the next few years. One of which is to relocate to a more permanent location that is renovated to our specifications. I hope that PT Law will one day become a well-functioning, autonomous machine that does not require my direct supervision and is a pillar of the Las Vegas community, much like many other bigger law firms in town.
As with any other major metropolitan city, Las Vegas’s personal injury market is saturated with law firms that provide adequate, albeit mediocre, representation. However, I do not find being adequate acceptable. I have already set my mind on creating a law firm I am proud to be a part of, so my goal is to make the firm excel in our specialty. I have recruited a team of competent paralegals and case managers that I can rely on, my goal is to continue this course of action until we become a well-oiled machine.
With a philosophy rooted in innovation, transparency, and client advocacy, Calvin Tian continues to redefine what a personal injury law firm can be in Nevada.
Calvin Tian, Esq.
Attorney at Law
PT Law | 鹏翔律师楼
2820 S Jones Blvd Unit 1, Las Vegas, NV 89146
Tel: (702) 763-5557
Email: Calvin@PTLawLV.com
ptlawlv.com
Personal injury law remains one of the most active and complex areas of litigation both in the United States and internationally. While many cases proceed to trial, a growing number are being resolved through alternative dispute resolution (ADR) methods such as mediation and arbitration. These approaches can offer faster, less adversarial outcomes — but they also raise important questions about fairness, finality, and client control.
Lawyer Monthly spoke with Amara Edblad, Founder of Amara & Associates, LLC, and a leading personal injury specialist based in Arizona, to discuss how ADR is influencing the field today. Drawing on over a decade of experience representing injured clients, Amara shares her perspective on the advantages and drawbacks of ADR, how she evaluates whether to settle or litigate, and the recent legal developments shaping personal injury law in her jurisdiction.
There are many advantages to alternative dispute resolution for clients. ADR is a more relaxed process with less stress and expense to clients than a jury trial. The client has more power through ADR than at trial. Through ADR, you often only have to convince a single arbitrator of your case as opposed to convincing at least six members of an eight-person jury. The arbitrators or mediators are usually professionals who are better equipped to understand complex legal nuances of cases than an untrained jury member.
ADR hearings are often resolved within 2-4 hours, as opposed to at least 3-5 days for a jury trial, so the client only has to take a few hours off of work instead of several days. ADR decisions are often more detailed than a jury verdict, so the client better understands why the decision was made by the arbitrator(s). The only major disadvantage to ADR is that it is almost always a binding decision. If the result is not what the client was hoping for, there is no right of appeal.
There are many factors in assessing whether to settle pre-litigation or recommend filing suit. I look at the pre-suit offer and compare that to the facts of the case.
Specifically, I look at the total medical expenses; length and duration of care; lost wages; any visible injuries like bruises or abrasions; nature of the injuries (were they soft tissue and invisible or broken bones); type of care (was there surgery or was it conservative care); pre-existing conditions; any comparative fault on the client for causing the collision or contributing to their injuries; any punitive damages that can be sought for the other driver being intoxicated or under the influence; any independent witnesses; the property damage, and what the client’s goals are.
Another major factor is how the client is likely to present during a deposition and arbitration. Do they seem honest and credible? Are they going to give precise, succinct answers or add unprompted information? If the client just wants to get their bills paid and does not want to fight, then settlement is in their best interest. I use my 11 years of experience to determine what my recommendation is to my client, but ultimately it is always my client’s decision.
Yes; in Arizona, each county has their own mandatory arbitration limits. In Maricopa County, where I primarily practice, a case with a value of less than $50,000 is subject to public arbitration. Through this ADR system, the courts try to limit the amount of cases that go to trial and speed up the resolution process. The arbitrators in these cases are local attorneys with at least five years of experience who are selected at random by the arbitration division to hear the case and decide the value of the claim and resolve any liability disputes.
Either party can appeal the decision to a jury trial, but there are financial penalties if the appealing party does not prevail at a jury trial, including triggering attorney’s fees being payable to the prevailing party. If a case is worth more than $50,000, before a jury trial, the parties have to participate in a mandatory settlement conference/mediation conducted through a judge pro tempore. This is non-binding and if the case does not settle then it is set for a jury trial.
Arizona has the collateral source rule, so parties cannot discuss insurance in the course of litigation. This leads to the mistaken impression in many jurors that a plaintiff has already been fully compensated by their insurance and is going after the defendant’s personal assets. However, the insurance adjusters are the ones who hold the purse strings and who are hiring the defence counsel. The total outstanding medical expenses and liens are a strong tool to push for a higher settlement as the insurance companies know that those liens must be satisfied as part of any settlement.
Clear and consistent communication with clients is essential to manage expectations and set realistic goals for case resolution. I explain to clients the laws in Arizona and what is compensable as well as discussing the jury instructions and what is admissible evidence. I also give social context. For example, a jury in Maricopa county is typically more conservative than in Pima County. When discussing an offer I like having the numbers finalised to let the client know what the settlement is going to net them and likely reductions. I also always under promise what a client is getting ‘in pocket’ so they are happily surprised by the final settlement check.
There have been several large changes in the law over the last few years. First, the minimum insurance requirements were raised from $15,000/$30,000 per person/per accident to $25,000/$50,000. This has opened up more money to clients who were injured to pay for medical expenses. Recent changes to lien laws give more power for negotiations with lienholders, including a new law that requires attorneys to request reductions and for providers/lienholders to provide an equitable reduction to clients. I stay on top of legal changes by attending seminars/CLEs, being an active member of the AZTLA, reading the monthly State Bar magazine and speaking with colleagues.
Amara Edblad has practiced exclusively personal injury law in Arizona since 2012 and has won numerous awards for her litigation skills and customer service. Amara has a diverse educational background that gives her a unique perspective on personal injury cases and issue spotting. She attended University of Southern California and graduated as a Renaissance Scholar with a double major in History and Cinema Production. Following her tenure at USC, she attended a summer program at the University of Cambridge in England, followed by a year-long program at the London School of Economics where she studied History and Law.
Amara & Associates strives to give the best customer service in the industry. Founder Amara Edblad understands how difficult it is to be in pain while continuing to juggle the demands of daily life. To maximise client recovery and reduce client stress, Amara and her staff handle every aspect of personal injury cases, from all aspects of property damage claims to subrogation and litigation.
Amara Edblad
Founder
https://azinjuryattorney.com/
2 N Central Ave STE 1936,
Phoenix, AZ 85004
Tel: +1 623-471-8881
Fax: +1 623-471-8881
E: ae@azinjuryattorney.com
www.azinjuryattorney.com
Coldplay Affair: Who Is Andy Byron and Why His Fall Matters
Andy Byron was never meant to be a headline name. As CEO of Astronomer Inc., a Cincinnati-based leader in data orchestration, Byron built his career on quiet competence. Under his leadership, the company expanded into international markets, eyed an IPO, and courted major enterprise clients. His estimated personal wealth, tied to stock options and equity, was believed to be in the region of $50–$70 million, with Astronomer's valuation exceeding $1.3 billion after a $93 million Series D raise in May 2025.
But his sudden resignation shifted him from respected executive to a cautionary tale. After being caught in a viral Coldplay concert video, embracing Kristin Cabot—his subordinate and the company’s Chief People Officer—Byron’s career, and potentially his fortune, began to unravel.
Astronomer Inc. confirmed on July 19, 2025, that Byron had resigned. His pension, stock payouts, and severance are now under review. If misuse of company funds or violations of executive conduct policies are confirmed, he could lose millions.
This article breaks down the legal risks that arise when a CEO’s private conduct turns into corporate liability—and why boards must act fast to protect their interests.
1. Fiduciary Duties and Reputational Damage
A CEO owes fiduciary duties to the company and its shareholders. While these are traditionally financial in nature, they can extend to behaviour that creates reputational harm. The viral video led to widespread media attention, causing Astronomer’s board to act quickly.
Legal exposure may arise if Byron’s conduct is seen to have materially harmed the company’s brand, partnerships, or market value. Boards are increasingly recognising that public scandals involving top executives must be treated as breach-of-duty risks—not just PR headaches.
2. The Morals Clause Problem
Many executive contracts include “morals clauses” that allow termination if an executive’s behaviour brings the company into disrepute. But poorly written or outdated clauses often fail to anticipate social-media-fuelled scandals.
In Byron’s case, Astronomer’s ability to claw back equity or deny severance may hinge on how tightly drafted his contract is—and whether reputational damage is clearly linked to measurable business consequences.
3. ESG and the Cost of Scandal
Investor priorities have shifted. Reputational harm now affects Environmental, Social, and Governance (ESG) ratings and access to capital. Astronomer, reportedly eyeing an IPO, may face delays or scrutiny from institutional investors.
Disclosure obligations also matter: if Byron’s behaviour posed a material risk to share value or public trust, Astronomer could face legal consequences for delayed or inadequate disclosure.
4. HR Chief Turned Legal Risk: Kristin Cabot
Cabot’s role in the scandal compounds the issue. As Chief People Officer, she oversaw ethics and employee conduct. Multiple whistleblowers have alleged she received preferential treatment and undermined HR policies.
Additionally, Cabot’s personal life is now under legal scrutiny. Reports indicate her husband, Andrew Cabot—CEO of Privateer Rum—has filed for divorce, citing public humiliation. In some U.S. states, she could face “alienation of affection” claims.
Internally, Astronomer must determine whether Cabot breached her own policies, and whether she can continue in her role with credibility. Like Byron, her severance and equity are under review.
5. Coldplay, Viral Culture, and Corporate Exposure
The scandal unfolded because of a concert. Chris Martin, lead singer of Coldplay, joked about the couple when they appeared on the Jumbotron at a Gillette Stadium show. Within hours, online sleuths had identified them, and #ColdplayGate was trending.
This shows how quickly personal moments can become corporate crises. Boards must now account for viral risk—and ensure their crisis plans extend beyond cybersecurity and financial missteps.
6. What Legal Counsel Should Do Now
This scandal isn’t just about morality—it’s about governance, liability, and regulatory risk. General counsel should:
Conclusion: Corporate Conduct Is No Longer Private
The Andy Byron–Kristin Cabot episode is a textbook example of how quickly private conduct can escalate into a boardroom emergency. When CEOs embody the company’s public image, missteps—no matter how personal—can erode investor trust, employee morale, and legal stability.
The legal lesson is clear: scandals don’t need to involve fraud or theft to cause lasting damage. The reputational economy now holds real monetary weight. If companies haven’t yet stress-tested their contracts and governance systems against the new viral normal, this should be their wake-up call.
In an English-speaking justice system, trial lawyer John Gomez gives a voice to underserved Hispanic and Spanish-speaking communities, ensuring they get the representation they deserve. As the founder and CEO of Gomez Trial Attorneys, he leads a team of accident and injury attorneys who fight for their marginalized clients, believing a language barrier should not be a barrier to justice.
The firm's mission, as highlighted by Gomez, is to represent consumers and plaintiffs in a variety of cases, from personal injury to mass torts. He views trial lawyers as more than just advocates; he sees them as "fighters" for justice, driven by principles and ideals rather than wealth. To him, being a great lawyer is like being an athlete, requiring the same level of hard work, commitment, and sacrifice.
Gomez Trial Attorneys is also deeply involved in the community. The firm proudly sponsors a youth boxing program that provides free boxing, tutoring, and college guidance to at-risk children. In their boardroom, portraits of "social change agents" like Martin Luther King Jr. and Cesar Chavez serve as a constant reminder to the team of their role in contributing to a greater good.
Gomez credits a key partnership with Esquire Bank for providing the necessary capital to finance their cases, enabling the firm to have a significant impact on the community. He emphasizes that the firm's success would not have been possible without this crucial support.
You can learn more about the firm's practice areas at thegomezfirm.com/practice and schedule a free consultation with their attorneys by calling (619)-237-3490 or contacting them online at thegomezfirm.com/contact.
Video Source: Trial Lawyers Seeking Justice: How Attorney John Gomez Gives a Voice to the Voiceless https://www.youtube.com/watch?v=uYdJJPlsxyY
Partner in Rosling King’s Dispute Resolution Group, Hannah Sharp represented the successful Claimant which obtained a novel anti-suit injunction in aid of an expert witness sued by the Defendants in his home jurisdiction.
This injunction required the withdrawal of the abusive claim made against the expert witness in the Ukrainian court. The case emphasises the High Court’s readiness to exercise its discretion to grant anti-suit injunctions to protect the integrity of the English Court and its own processes, even where the case law is undeveloped.
Case Summary
On 2 August 2023, the High Court handed down another judgment in this long running and hard-fought legal dispute, this time granting an anti-suit injunction against the First and Second Defendants, Mr and Mrs Tyshchenko, requiring them to withdraw a claim in Ukraine against the Ukrainian law expert for the Claimant, WWRT Limited. In exercising this discretionary power under s 37(1) of the Senior Courts Act 1981, Mrs Justice Bacon noted in her judgment that there is “no case where an anti-suit injunction has been sought on facts comparable to the present”.
Background
The context of the recent judgment is a claim brought by WWRT in relation to loans made by the now defunct Ukrainian bank, JSC Fortuna Bank, which WWRT asserts were granted to borrowers associated with Mr and Mrs Tyshchenko who had no intention or means of repaying them. The proceedings have been ongoing since September 2020, when Kelyn Bacon QC (as she then was) issued a £65 million without notice freezing injunction against Mr and Mrs Tyshchenko. WWRT’s application for a freezing order was supported by a report from WWRT’s Ukrainian law expert, who has since provided further expert evidence on behalf of WWRT.
In October 2022, Mr Tyshchenko issued a claim in Ukraine against WWRT’s expert, with Mrs Tyshchenko listed as a third party to it. By the claim, they sought an order recognising the conclusions of the expert in certain of his reports in the English proceedings as unlawful and requiring that he recant the evidence provided in those reports. The expert’s application for closure of the claim against him was rejected in rapid succession by the Commercial Court of Kyiv and North Commercial Court of Appeal. His appeal to the Ukrainian Supreme Court was listed for hearing on 15 August 2023.
In late July 2023, WWRT made an urgent application for an anti-suit injunction requiring the claim against the expert to be withdrawn on the basis that it is vexatious, abusive and an illegitimate interference in the practice and procedure of the English Court.
Legal Test
The Court’s power to grant an anti-suit injunction is derived from s. 37(1) of the Senior Courts Act 1981, which provides that the Court may grant interim or final injunctions where “it appears to the court to be just and convenient to do so”. This power extends to the granting of anti-suit injunctions where the continuation of proceedings in a foreign jurisdiction is “unconscionable”: South Carolina Insurance v Assurantie Maatshappij [1987] 1 AC 24. A principal example of this is where the foreign proceedings are regarded as “vexatious or oppressive”.
The Decision
In this latest development, Mrs Justice Bacon granted the first of its kind anti-suit injunction against Mr and Mrs Tyshchenko, requiring the withdrawal of the Ukrainian claim against the expert, on the basis that it was very clearly both vexatious and oppressive. In making her decision, Mrs Justice Bacon pointed out the likely reason for the lack of authority in this area is that it is “extremely unusual for a party to proceedings to launch such a direct and unambiguous attack in a foreign court on the substance of the evidence given in domestic proceedings”.
Although comparisons were made to Arab Monetary Fund v Hashim (No. 6), Financial Times Law Reports, 23 July 1992, where an order for an anti-suit injunction was not granted because (among other things) there was nothing to suggest that the US action had been commenced to dissuade the witness from giving evidence in the UK, in the present case Mrs Justice Bacon was confident that the claim was brought by Mr Tyshchenko in a “blatant and clearly abusive attempt to interfere with the due process of the English proceedings which have by now been on foot for almost three years”.
Commentary
Whilst the facts of this case are highly unusual, the decision demonstrates that the High Court stands ready to exercise its discretion to grant anti-suit injunctions to protect the integrity of the English Court and its own processes, even where the case law is undeveloped. The Judge in this case recognised the wider implications of the decision and the need to send “a strong signal to other litigants that this sort of conduct will not be tolerated”.
For further information, please contact partner Hannah Sharp at Rosling King LLP on hannah.sharp@rkllp.com or 0207 246 8000.
Hannah Sharp is a partner in Rosling King’s Dispute Resolution Group specialising in financial services disputes, fraud and commercial litigation, both domestic and cross-border. Hannah has significant experience of acting for banks (investment and retail) and other financial institutions, corporates and ultra high net worth individuals on a broad range of complex disputes.
Rosling King LLP is a London-based law firm specialising in serving the needs of financial institutions, corporates and individuals. For more information please visit www.rkllp.com.
Taïsa Tadè-Klinkenbergh and Francesca Ranzanici Ciresa are partners at Klinkenbergh Legal, a law firm specialising in family law in the heart of Locarno, Switzerland. Founded at the beginning of 2023, the law firm accompanies and guides its clients throughout their entire process and promotes dispute prevention and alternative methods of resolution. Join us as we delve into the insightful perspectives of the pioneering partners at Klinkenbergh Legal, as they share their unique approach to family law and their dedication to fostering dispute prevention and resolution around the picturesque location of Locarno, Switzerland.
How does the legal system in Switzerland approach the concept of shared custody, and what criteria must parents meet to be eligible for such an arrangement?
Since 2014, in the event of a divorce, parents maintain equal rights and responsibilities in raising and caring for their children, known as joint parental authority. It's crucial not to confuse this principle with child custody. Shared custody is not automatically granted by a judge in cases of separation or divorce; each case is assessed individually. The judge determines a custody arrangement that ensures the child's stability and regular contact with both parents. In all matters concerning children, the judge must prioritize the child's well-being. Maintaining a close relationship with both parents is vital for a child's harmonious development, emphasizing the importance of the child's ability to maintain such relationships whenever possible.
In addition to assessing the parenting abilities of both parents, the court will evaluate their capacity to communicate and cooperate consistently concerning their children. It's crucial to note that a parent's opposition to shared custody does not automatically imply a lack of necessary cooperation. The geographical distance between the parents' residences is also a significant factor. The paramount concern is to ensure the child's continuous growth and development within a supportive and affectionate environment. Moreover, stability, especially as it relates to the child's previous living arrangement, is of utmost importance. Joint custody becomes even more suitable if parents had been sharing caregiving responsibilities before their separation. Other factors considered include the child's age, relationships with (half-) siblings, and integration into the broader social community. All these elements contribute to determining the most suitable custody arrangement in the best interests of the child.
Shared custody should only be disregarded if the relationship between the parents, concerning the well-being of their other children, is so hostile that it leads to the reasonable belief that joint custody would subject the child to a significant conflict between the parents, clearly contrary to the child's best interests.
Could you explain the role of the child's preferences in custody decisions? At what age do their opinions typically carry weight in court?
The will of the child is one of several criteria when deciding on personal contact and custody. When considering the will of the child, the age of the child and its ability to form an autonomous will must be taken into account. This ability is assumed to be present from around the age of 12.
According to Article 314a Paragraph 1 of the Civil Code, the child must be personally and appropriately heard by the court or a designated third party, unless the child's age or other valid reasons dictate otherwise. The child's participation in the hearing is rooted in their fundamental rights and serves the purpose of establishing the facts of the case. In situations involving older children, the focus is on safeguarding their individual rights, granting them the right to participate in the proceedings. For younger children, the hearing primarily serves as a means of evidence, allowing the judge to form a personal perspective and gather additional information to understand the situation accurately. Therefore, parents, as parties involved in the proceedings, may request the child's hearing, but it typically occurs automatically, regardless of the parties' submissions.
The child's capacity for discernment, as defined in Article 16 of the Civil Code, is not a prerequisite for the hearing. According to the guidelines of the Federal Court, a child can be heard once they reach the age of six. This age requirement is irrespective of the fact that formal logical thinking is generally believed to develop between the ages of eleven and thirteen, and the ability for differentiation and verbal abstraction typically matures around that time. Before reaching this age, the purpose of hearing the child is primarily to enable the judge to form a personal opinion and gain a comprehensive understanding of the child's situation, aiding in establishing facts and making decisions. The choice of the person authorized to conduct the child's hearing is generally at the discretion of the judge. However, it contradicts the legal rationale to delegate this responsibility systematically to a third party, as it is essential for the court to form its own direct opinion. Therefore, the competent court typically conducts the hearing itself. In exceptional circumstances, a child specialist such as a child psychiatrist (especially during expert examinations) or a staff member from a youth protection service may conduct the hearing. These circumstances involve particularly sensitive cases where specialized skills are necessary to avoid harm to the child's health, such as in cases of suspected pathogenic family relationships, acute family conflicts, noticeable disorders in the child, or considerations related to the child's age.
If the judge is required to intervene multiple times within the same domestic dispute, or if the initial decision is appealed, the child is not necessarily required to be heard on each occasion. Moreover, if the child has already been heard by a third party, often as part of an expert assessment, the judge may choose to waive a repeat hearing if it would impose an unbearable burden on the child, such as in cases of acute loyalty conflicts. In such situations, if no new outcome can be expected from a further hearing, or if the expected benefits do not reasonably outweigh the burden of the new hearing, the judge can rely on the results of the prior hearing conducted by the third party. This is contingent upon the third party being an independent and qualified professional, the child being questioned about the crucial elements pertinent to the case, and the hearing or its results being current. It is crucial to emphasize that any decision to waive a new hearing presupposes that the child has been given the opportunity to express their views and that the results of the previous hearing remain pertinent to the decision-making process.
Among the "valid reasons" for waiving the child's hearing as per Article 314a, Paragraph 1 of the Civil Code, the risk of endangering the child's physical or psychological well-being is considered. It's important to note that mere apprehension about imposing the stress of a hearing on the child is insufficient grounds for waiver. To justify skipping the hearing, this fear must be substantiated, and the risk must exceed the inherent strain present in any proceedings involving children's interests.
Have there been any recent legal development in Swiss family law relating to child custody arrangements?
On September 25, 2023, the People's Chamber widely supported a motion proposing alternating custody as the default arrangement in cases of parental separation. If parents in Switzerland get divorced, alternating custody of children might become the standard practice, following the acceptance of a motion by Marco Romano with 112 votes in favor and 42 against in the National Assembly. The motion calls for amendments to the Civil Code to facilitate this change.
However, the Federal Council expressed reservations about alternating custody, citing challenges not only in terms of parental interactions but also related to practical factors, such as the distance between parents' residences and the associated increase in costs. Additionally, there are structural concerns, such as the labor market and availability of out-of-home childcare facilities, which are not always easy to reconcile. The Federal Council emphasized the importance of prioritizing individualized solutions that enable the child to maintain relationships with both parents, focusing on the child's best interests, rather than mandating alternating custody. The decision now rests with the Council of States.
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Mexico City - E&M Business Lawyers, S.C. (EMLaw), a distinguished law firm renowned for its expertise in M&A, venture capital, corporate, and transactional law, played a pivotal role in guiding WeeSystems SAPI de CV (WeeCompany) through a landmark merger with Global Excel, resulting in the establishment of a groundbreaking InsurTech venture in the bustling heart of Mexico City.
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