The Court of Appeals recently issued a groundbreaking decision on the application of the new Civil and Commercial Code's arbitrability exclusions to an agreement made before the code came into effect. The court considered the arbitration agreement in a consumer contract to be null and void pursuant to the exclusions in Section 1651 of the new code.
The Supreme Court recently ruled in a case in which a loan was granted without collateral and obviously served to finance the acquisition of the target's shares. Considering that this withdrew considerable funds from the company, putting creditors at risk without any operational justification, the Supreme Court held that this could not be reconciled with the diligence expected from a reasonable manager.
Under Article XLII of the Code of Civil Procedure, any party that has a substantive claim for information against another party (which it is suing for performance) has a claim for the disclosure of accounts to mitigate serious problems with quantifying the substantive claim if the accounts could help the claimant and if the respondent can be reasonably expected to provide them.
The Supreme Court recently held that jurisdiction for tort cases under Article 7(2) of the Brussels I Regulation must be interpreted only under the regulation. According to the regulation, torts are illegal acts that ultimately require the defendant to pay damages and are not connected to a contract within the meaning of Article 7(1) of the regulation. According to the court, this jurisdiction includes both the place of the original act and the place where the loss occurred or is about to occur.
The Supreme Court recently ruled on whether and under which circumstances a service of process is valid in a location different from that originally listed. The court ultimately held that a request for service of process can be lawfully interpreted only according to the respective state law. If that law states that the service of process can also take place in a different location, there is no reason to view this as unlawful.
The Supreme Court recently ruled on the liability of arbitrators to pay damages. The court ultimately upheld the terms of the arbitrators' contract, finding that civil claims for damages can be pursued, among other things, only after the arbitration award has been annulled. This case demonstrates that arbitrators' contracts should be interpreted in a way that ties the arbitrators' liability for damages to the annulment of the arbitration award.
The British Virgin Islands recently adopted new guidelines for communication and cooperation between courts in cross-border insolvency matters. The guidelines are designed primarily to enhance communication between courts, insolvency representatives and other parties in the context of global restructurings and insolvency. As a result of the increased efficiency, it is hoped that stakeholders will see a reduction in delays and costs.
The British Virgin Islands has long been hailed as a leading offshore jurisdiction for wealth management and asset protection among Latin American high-net-worth families and individuals. The outcome in a recent case augments the credibility of the British Virgin Islands as a jurisdiction in this regard. The case also highlights the strengths of the BVI-only Virgin Islands Special Trust Act trust structure.
There have recently been three judicial appointments to the Commercial Court designed to increase the capacity of the court in 2017. The appointments should provide further momentum and expertise to the BVI Commercial Division and enhance the court's ability to deal with complex cases promptly and effectively.
A BVI court recently issued an important judgment in relation to the obligations of a registered agent to provide third-party disclosure to assist a foreign judgment creditor to trace assets. The court held that Norwich Pharmacal relief post-judgment in aid of enforcement is, in principle, available where there is reasonable suspicion that a disclosure defendant is involved in the wilful evasion of another's judgment debt and to assist in securing compliance with freezing orders, both domestic and foreign.
The BVI Commercial Court recently considered a claim for costs of a discontinued strike-out application, which was brought by the defendants as part of an ongoing multi-jurisdictional family dispute. The claimant's substantive action in the British Virgin Islands involved derivative proceedings, which were brought on behalf of a foreign company, for the recovery of funds which the defendants were alleged to have wrongfully paid to another entity.
The Newfoundland and Labrador Court of Appeal has upheld the firing of a unionised millwright who was caught with a small amount of marijuana in his pocket before boarding a helicopter that would transport him to an offshore platform. The labour arbitrator found that the employee likely knew that he possessed the marijuana, but had forgotten about it and not checked his pockets carefully. Although the Newfoundland Supreme Court set the arbitrator's decision aside, the appeals court restored it.
The Ontario Court of Appeal recently upheld the criminal negligence conviction and jail term imposed on a project manager for Metron Construction. The charges arose from an incident in which four workers fell to their death and a fifth sustained permanent injuries after a swing stage collapsed. This case has sent a message to employers and supervisors that criminal negligence charges – in addition to Occupational Health and Safety Act charges – are a real possibility after serious workplace accidents.
An Ontario court has upheld a combined fine of more than C$5.3 million, plus a 25% victim fine surcharge, against Sunshine Propane Energy Group, a related company and two corporate directors following explosions at a propane facility in 2008, which resulted in the death of one worker. The court held that the explosions were a foreseeable event given that an untrained employee had been left in charge and that his actions after the explosions showed his lack of training.
The Newfoundland and Labrador Court of Appeal recently held that a trial judge was wrong to find a city guilty of Occupational Health and Safety Act charges solely because an accident had occurred in which a worker died. It held that the trial court should have gone further and analysed each charge separately. The decision is a welcome reminder that prosecutors cannot simply rely on the fact that an accident took place to obtain a conviction.
The Ontario Court of Appeal recently held that the Ministry of Labour can prosecute employers under the general duty clause of the Occupational Health and Safety Act where the charges impose greater obligations than those set out in the regulations under that act. Ministry of Labour inspectors will likely consider using this decision to issue compliance orders or charges under the general duty clause even where regulations deal with the specific safety issue at hand, but do not apply in the particular case.
In a recent appeal case, the Supreme Court overturned a first-instance judgment regarding the timing of the completion of the pleadings and, consequently, the deadline for filing a summons for directions under Order 30 of the Civil Procedure Rules. Although the judgment in question examined the previous version of Order 30, it is useful for litigation lawyers as it clarifies when pleadings are deemed to have been completed, which remains the starting point for the deadline to file a summons for directions.
A recent administrative court case concerned the legality of a tender for the development of a new €200 million-plus marina in Paphos. The court decision was based on the well-established principle that the decision-making process of any collective body regarding a specific matter must be consistent from beginning to end and requires the presence of the same members of the body in order to ensure that all members are aware of and able to evaluate all factors which come to light during the process.
A recent administrative court case examined an allegation that an Electricity Authority of Cyprus (EAC) committee established to determine staff promotions had been invalidly constituted. The meeting under review had not been chaired by the EAC chair, as required by the relevant regulations, and no reason for this absence was provided. The court found that the absence of any record of the reasons for the chair's non-attendance at the meeting was sufficient grounds to invalidate the decisions made.
A recent case has affirmed that only completed actions can be subject to administrative review, and that an applicant must possess a legitimate interest at three crucial stages in order to pursue an action in the Administrative Court. The case concerned a complaint that a third party had been promoted unfairly in preference to other applicants. However, the applicant had filed his action before the third party accepted the promotion, so that when the action was filed there was no promotion to complain about.
The Supreme Court recently reaffirmed the long-established principle that when contracting parties agree to amend or replace an agreement, the new agreement will replace the old one and define all of their rights and obligations. Accordingly, in a case where a settlement agreement is agreed between the parties, but not fully complied with by one of them, the other party cannot reinstate any of its rights under the initial agreement.