Search terms: Litigation
Argentine law provides for litigation without costs in both civil and commercial proceedings. This process allows plaintiffs that lack financial resources access to the courts. If a plaintiff is not granted litigation without costs, the rule is that the losing party pays. However, what is the situation if a plaintiff loses in court, but has been granted litigation without costs?
The Supreme Court has dismissed a claim to obtain an antisuit injunction purporting to stop a judicial claim filed by Candlewood Timber Group LLC before the Delaware Chancery Court against the Argentine branch of a US company. Candlewood's claim was based on the Hydrocarbons Law and two concession agreements for the production and transportation of oil held by the US company.
The High Court and the New South Wales Court of Appeal have recently provided much-needed clarification about the proportionate liability regime detailed in the New South Wales Civil Liability Act 2002. Although the regime has been in place since 2004, there had previously been relatively little judicial guidance as to its practical application.
Australia is a party to the New York Convention, which provides an international framework for the resolution of commercial disputes between parties in different countries. Under the convention, arbitral awards are to be enforced unless narrow exceptions apply. The High Court recently considered whether the act requires courts to enforce arbitral awards that are legally wrong.
The Federal Court of Australia recently handed down a landmark decision in which ratings agency Standard & Poor's was held accountable for the ratings opinions that it is paid to assign to financial products. The decision highlights the capacity for a duty of care to arise between investors and their financial advisers, and between investors and the parties involved in structuring and rating the financial products that they purchase.
A recent Queensland Supreme Court decision highlights the risks to buyers of failing to conduct sufficient due diligence before settling on a purchase. Developers should also consider whether the resolutions that they pass while in control of a body corporate are in the best interests of such body corporate as it will be constituted once the developer is no longer part of the complex.
The Federal Court of Australia recently found that comments made on Facebook by an Australian swimwear designer about a rival swimwear label amounted to misleading and deceptive conduct. The decision highlights the importance of making proper enquiries before making allegations, particularly in an online forum such as Facebook, where allegations can be widely and quickly propagated.
The Fair Work Commission recently upheld a claim for unfair dismissal, following a flight attendant's alleged failure to comply with Virgin Australia's policy on grooming standards. While the commissioner was critical of the company's handling of the matter and ruled that the employee should be reinstated and compensated, the company's right to have a strict policy on appropriate grooming standards was not in dispute.
The Supreme Court recently updated existing case law, stating that an action for a preventive injunction regularly requires that the infringement of rights have already begun. The more valuable the potentially threatened right, the more likely it is that the potential tortfeasor must refrain from activities that would lead to the possibility of damage. However, the applicant must provide proof of a serious and imminent threat.
The Supreme Court recently dealt with the requirements for the suspension of enforcement proceedings under Austrian and European law. Under the Enforcement Act, enforcement can be postponed only if its beginning or continuation is related to the risk of an irreplaceable property loss, or one that would be difficult for the applicant to replace.
The Supreme Court has recently had to deal with questions regarding declaratory judgments. In a recent decision, the court issued an interim judgment on the (negated) statute of limitations. Such interim judgment does not exclude the claim being later rejected due to a lack of evidence. The court also examined the requirements of legal interest in a declaratory judgment, in connection with conditional rights.
The Supreme Court recently confirmed that the universal successor of a party to proceedings is regarded as 'the same party'. Where proceedings involving the same cause of action and between the same parties are brought before the courts of different member states, any court other than the court first seized shall, of its own motion, stay its proceedings until such time as the jurisdiction of the court first seized is established.
The Supreme Court recently handed down two decisions dealing with the timeliness of submissions made by fax or email. The court ruled that the sender of a brief will always bear the risk if a fax or email does not arrive, even if the reason for late receipt lies with the court. Emergency submissions (eg, where a fax does not go through) should be filed by email in the assumption that there will be no server problems.
Under the Civil Code, in order for a restitution claim due to failure of consideration to arise, the service recipient must be aware that the service was performed in expectation of later receipt of consideration. 'Consideration' includes the usual remuneration, as well as other ordinary and extraordinary benefits (eg, commission) which are based on the result of the work provided.
Crawford International recently appealed a judgment relating to the determination of a preliminary issue concerning the scope of a management contract. A preliminary objection was taken to the appeal on the basis that the judgment was interlocutory and no leave to appeal had been obtained. However, the appeal court determined that the judgment on the preliminary issue was final rather than interlocutory, and as such no leave was required.
Since the Evidence (Proceedings in Other Jurisdictions) Act was implemented, the Bahamian courts have often been found to use a narrower interpretation of the act in order to prevent foreign courts from delving into the private affairs of individuals and companies (specifically their bank accounts), unless there is a strong argument otherwise.
In response to the Organization for Economic Cooperation and Development's blacklisting of the Bahamas as an offshore investment jurisdiction due to lack of transparency in the international arena and the existence of various obstacles to mutual legal assistance, the Bahamian legislature has implementated various acts including the Evidence (Proceedings in Other Jurisdictions) Act.
In assessing the question of jurisdiction in matters relating to tort, a Belgian court ruled that it did not have jurisdiction in a dispute relating to a wrongful act committed in Italy which resulted in direct damage being suffered in Japan, which in turn caused consequential loss to be suffered in Belgium.
The Brussels Court of Appeal has ruled that where parties have intended two agreements to be inextricably linked, a party may refuse to perform its obligations under one agreement if the other party has not fulfilled its obligations under the second agreement. If the two agreements are not inextricably linked, the performance of each contract should be regarded as an independent matter.
A foreign judgment which imposes a prohibition and provides for a penalty payment in case of non-compliance can only be executed in Belgium if it has first been declared enforceable in Belgium by the court of first instance. The payment order cannot be enforced if the non-compliance relied upon took place before the declaration of enforceability was served on the defendant.
When the place in which a harmful event occurred and the place in which the damage is suffered differ, the plaintiff has the option of suing the defendant in the courts of either place. However, this option is not unlimited. The option to sue at the place where the damage occurred is only available if that damage is a direct result of the harmful event.
A recent decision has seriously undermined the immunity from suit enjoyed by international organizations. The Brussels Court of Appeal has ruled that in the absence of specific rules regulating litigation between an international organization and an individual, the court will be competent to judge the case despite the immunity of the international organization.
When assessing the question of jurisdiction, the court must take into account only the subject of the claim as formulated in the writ of summons, without a further examination of the merits of the case. Disputes about the valid formation of a contract or its very existence fall under the scope of Article 5.1 of the Brussels Convention.
The Belize Supreme Court has jurisdiction to grant a free-standing freezing order in respect of the assets of an international business company – more colloquially known as an offshore company – in order to freeze the company's assets in aid of ongoing foreign proceedings. However, the court exercises this jurisdiction with great caution, and often reluctantly.
The primary objective of the Indictable Procedure (Amendment) Act is to provide for a trial without a jury in certain criminal cases (eg, in the case of murder and attempted murder). No appeal can lie against an order of the judge granting or refusing an application for a trial to be conducted without a jury.
Judicial review proceedings in Bermuda normally address decisions by regulatory bodies, tribunals and the immigration authorities. Judicial review is not concerned with the merits of a decision: the only question before the court is whether the public body has acted lawfully. A judicial review can be commenced based on matters that are illegal, irrational or procedurally improper.
When entering into a contract with a foreign party, Bermuda residents can maximize the likelihood that a future dispute will be heard in Bermuda by providing for it in the agreement. However, in many instances agreements do not address the issue of jurisdiction. In these situations the court will consider a number of factors in determining whether the proceedings should be heard in Bermuda or in another court.
Following disagreement among the lower courts, a majority of the Superior Court of Justice recently confirmed that claims arising from advances against exchange contracts are not subject to court-mandated debt restructuring when the debtor has filed successfully for judicial recovery. This ruling should not be subject to further appeal, as the judge provided a clear and unquestionable basis for the decision.
In recent decades the complications of litigating in Brazil have led commentators to suggest that "a good deal is worth more than a good fight". However, the new Code of Civil Procedure, although still in draft form, appears to have helped the judiciary to implement significant improvements. As a result, it is expected to experience fewer problems in dealing with anticipated increases in disputes and conflicts in future.
The preservation of financially challenged companies is arguably the greatest innovation introduced by the Judicial Recovery Law. A direct action of unconstitutionality was recently filed against Articles 60 and 141 of the law, arguing that such provisions would release the acquirers of assets of companies in judicial recovery from their labour obligations. The Supreme Court ruled that the law was in fact constitutional.
There has been much discussion regarding the right of the Public Prosecution Office to take action in defence of collective and common individual rights. A recent case examined whether the office could sue in relation to discussions of alleged abuse in readjusting tuition fees, which notably affect consumer rights. The court considered that the office could sue when the protection of individual rights was related to inalienable rights.
The National Department of Transport and Infrastructure, supported by a decision of the Federal Court of Accounts, has been unilaterally amending public contracts in order to apply discounts on previously agreed payments to contracted parties, based on the allegation that they were overpaid. This will directly affect contractors hired by the department for the execution of work or the maintenance of highways.
In accordance with Law 7.102/83, every bank branch is required to obtain approval of its security plan by the Federal Police Department. The plan must include minimum security requirements for the bank. The First Region Federal Court recently ruled that the enforcement of penalties by the police must be in keeping with those provided for by law, to avoid violating the principle of strict legality.
The BVI courts have recently handed down two decisions regarding the Business Companies Act. The first case concerned Microsoft's ability to bring a double derivative action in the Delaware Court of Chancery in the name of a BVI company. The second case involved the introduction of an unauthorised derivative claim into a personal claim by a shareholder. Both judgments provide greater clarity.
A search of the BVI Company Registry is likely to reveal only limited information. Thus, although confidentiality in BVI companies is still paramount, in limited circumstances court actions under the principle set out in Norwich Pharmacal v Customs and Excise Commissioners can be successfully brought before an action against third parties to identify, for example, the shareholders of BVI companies.
Before 2010, freezing injunctions in the British Virgin Islands were available only ancillary to a substantive domestic cause of action against the respondent. Black Swan Investment ISA v Harvest View Limited overturned this restrictive approach, holding that the court could grant a stand-alone freezing injunction in support of foreign proceedings where the respondent was within the BVI court's in personam jurisdiction.
The BVI Commercial Court recently handed down judgment in the claim brought by the liquidators of a BVI fund which invested in Bernard Madoff's investment vehicle. In other recent cases, the Commercial Court ruled on the discounted valuation of shares following a Section 176 forced redemption, clarified the conditions for a company's restoration following dissolution and restated the rules on when a foreign judgment creates an issue estoppel.
The Eastern Caribbean Court of Appeal recently handed down the latest decision in the long-running Alfa Telecom Turkey Limited v Cukurova Finance International Limited case. The court held that ultimately, a lender is entitled to act in its own best commercial interests, and doing so does not automatically amount to the lender acting in bad faith.
The global financial crisis has placed an increased focus on the British Virgin Islands as an offshore jurisdiction. A major centre for mutual and hedge funds, captive insurers and wealth planning vehicles, such as trusts, the jurisdiction has been at the forefront of many recent developments, heightening its reputation as a reliable and efficient centre for international dispute resolution.
The Ontario Superior Court of Justice recently recognised the conditional settlement of a US class action, which had been approved by a US court, and granted an order to amend the class definition in the parallel Ontario class proceedings by excluding those persons that had been included in the US settlement. This decision will likely have important implications for litigants involved in parallel class actions in multiple jurisdictions.
The Federal Court of Appeal recently handed down its decision in Murphy v Amway Canada Corporation, affirming the Federal Court's decision and declining jurisdiction to hear a motion to certify a class action in respect of the Competition Act, given the parties' binding arbitration agreement and class action waiver. This decision saw the enforcement of both a binding arbitration agreement and a class action waiver.
Litigators in Ontario have found themselves in the midst of what some jurists have called a "cultural revolution" with respect to the manner in which the courts expect litigants and their counsel to behave. One of the driving forces behind this has no doubt been the proliferation of protracted interlocutory disputes over the sufficiency and adequacy of documentary production that has hamstrung the court, spawning scheduling bottlenecks.
The lack of scholarly commentary on multi-party settlements raises interesting questions in the context of corporate, commercial and personal injury litigation. What are the rights and obligations of the parties? How does the court reconcile the litigants' competing interests - namely, the privileged nature of communications in furtherance of settlement and the non-settling defendants' right to know the case against it?
A recent landmark decision raises the question of whether the Canadian courts' application of the 'real and substantial connection' test makes Canada a more attractive destination than the United States for investors seeking to commence class actions against multinational companies whose shares are traded on a foreign exchange and which have a significant presence in North America - specifically, Ontario.
The Ontario Court of Appeal recently considered whether the appellant was entitled to production of documents and information from the court-appointed receiver that had been appointed to investigate a Ponzi scheme in which the appellant was allegedly involved. The decision is important because of the protection it affords both to court-appointed receivers and to the procedural integrity of regulatory tribunals.
In November 2009 the Cayman Islands introduced a specialised court division to handle financial disputes – the Financial Services Division. The new division has been a welcome addition to the Grand Court from a litigant's perspective and has brought marked changes in the efficient delivery of justice in complex commercial disputes.
Where, in the course of international litigation, a party seeks to depose a future witness of fact using powers available to it under the laws of another jurisdiction or under powers of the domestic court, the question arises as to what approach the courts should take to such steps. Four recent Cayman Islands cases have considered these issues from the perspective of Cayman law.
In an unsuccessful attempt to stave off a Mareva injunction, a Cayman registered company argued that, as a special purpose vehicle, its sole purpose was to act as a conduit for the repatriation of its shareholders' indirect investment in a distressed debt portfolio acquired by its Chinese subsidiary, and that dividend payments to shareholders were thus in the ordinary course of its business.
The Judicial Committee of the Privy Council has delivered an important judgment on appeal from the Court of Appeal of the Cayman Islands. It marks a significant shift in the relevant test to be applied, moving away from traditional concepts of judicial bias and towards a more flexible and robust test of a 'fundamental failure of justice'.
The Colombian Supreme Court, in enforcing a foreign judicial decision, has dictated the principles on which it constructs the notions of public policy and sovereignty. Among other things, the court stated that the notion of public policy must be in accordance with international principles, in order to avoid economic isolation.
The usual limitation of liability clauses included in international contracts have been interpreted and given effect under Colombian law by courts and arbitration tribunals, even when it is decided that the relevant contract is subject to Colombian law. This update describes the new interpretations.
The first decisions on class actions are beginning to be issued by the courts and the development of the jurisprudence will be essential in creating a coordinated body of law. As expected, financial institutions, government entities and multinational companies are the key targets.
There are legal provisions in Colombia designed to protect some forms of distributorship. While the courts have been consistent in interpreting the protective provisions on commercial agencies, the discussion on what is and what is not a commercial agency has led to inconsistent arbitration decisions.
Including: Sources of law and court procedure; Limitation periods; Pre-trial; Pleadings; Interlocutory applications; Trial; Remedies; Injunctive relief in support of foreign proceedings; Costs; Security for costs; Appeals.
The Cyprus courts have the discretion to issue a wide variety of provisional measures. These include the power to issue so-called 'Chabra orders' (ie, freezing orders directed to a party against which the claimant does not have a substantive cause of action, made in order to enforce a judgment against a party against which the claimant does have a substantive cause of action).
A recent decision of the Supreme Court in its first instance admiralty jurisdiction provides valuable insight into the court's approach to applications for the arrest of vessels and for security to be lodged with the court for release of the vessel. The case centred on damage caused to a number of fish cages by a ship on approach to the port of Vasiliko, resulting in the loss of the fish that had been kept in the cages.
A recent judgment arising from one of a series of claims being dealt with by the Cyprus courts against a ship gives an insight into the principles that the courts will apply when considering applications for security for costs in admiralty cases. The applicable law will depend on whether the party against which such an order is sought can be considered an 'adverse party' under Rule 185 of the Admiralty Jurisdiction Order.
Under a recently reinstated rule, the attorney general is once again entitled to remit a case to a different court from that given jurisdiction by statute. Such action can be taken if the circumstances of the case reduce its apparent gravity to a level that does not require the involvement of the higher court. The restoration of this discretionary power preserves an essential human aspect of the criminal justice process in Cyprus.
The Supreme Court was presented with a petition by a firm of lawyers incorporated as a lawyers' limited company following refusal by the registrar of companies to register a subsidiary company providing escrow services. The court ruled that a lawyers' limited company may provide advice or other services ancillary or related to the services provided by an individual lawyer, whether personally or as a trustee.
In a recent decision the Supreme Court dealt with an application by summons to amend the statement of claim filed by the plaintiff in an action in rem. The key consideration that the courts will apply in assessing such an application is the effect of the proposed amendment on the interests of the respondent. If the effect on the respondent is disproportionate, the court will dismiss the application.
The Supreme Court recently ruled that a creditor may have standing to sue for a declaration that a transfer of its debtor’s shares to a new sole shareholder is invalid. The judgment aims to provide a new remedy for dishonest debtors, but at the same time may have an unwanted side effect.
In a recent case the Supreme Court ruled that although a real estate lease lasting 100 years is a valid arrangement, it does not qualify as a contract for a definite period of time. The reasoning behind the ruling was the fact that such a long period of time exceeds the average human lifespan.
Due to a conflict with a Czech constitutional order, the Constitutional Court has repealed part of the Courts and Judges Act. The repealed section allowed the president to remove judges from their positions as chairpersons and vice chairpersons of courts.
On April 1 2005 a new amendment to the Civil Procedure Code modifying the regulation of preliminary injunctions in civil proceedings came into force. A claimant requesting a preliminary injunction is now obliged to pay an advance payment of Kr50,000 (or Kr100,000 in commercial disputes) as security for potential damages which the preliminary injunction may cause the defendant.
The European Court of Human Rights has issued a decision relating to an application lodged with the court by a Czech citizen against the Czech Republic. The court adjudicated on the appropriate length of two judicial proceedings before the Czech courts to which the claimant was a party.
A shareholder in a joint stock company whose stake reaches or exceeds a certain threshold may request the board of directors to convene a general meeting and include certain items on the agenda. The Supreme Court has ruled that this right is not extinguished if the shareholder's stake subsequently drops below this threshold, as long as the shortfall is made up before the meeting is convened.
Including: Background; Jurisdiction; Procedure; Evidence; Judgment and remedies; Recognition and enforcement of foreign judgments.
The Eastern High Court recently found that an agreement that an employee would waive all claims against his employer should not include claims that could not have been predicted at the time at which the agreement was concluded. The judgment shows that - irrespective of whether a severance agreement has been concluded in connection with dismissal - an employee may be able to raise additional claims against the employer.
According to a recent Supreme Court judgment, two members of a houseowners' association committee did not become personally liable in damages for appealing a judgment, even though they knew that the association would be unable to pay the legal costs if the High Court judgment were upheld and the case thereby lost. The case was tried at all three instances.
A new bill, which is intended to modernise and improve the rules on injunctions and to create a process which reflects the increasing complexity of injunction cases, has been introduced to Parliament. The bill would make it possible to request mandatory injunctions and allow injunction cases to be heard by the ordinary courts.
Lawyers are often required to consider private international law rules of a country other than their own, in order to determine whether it is possible and favourable for the client to instigate proceedings in a different country. Such questions are covered by both EU conventions and regulations. However, Denmark has expressed its reservations over such legislation and has opted out of cooperation with the rest of the European Union.
Legal action can generally be brought against a party in the party's home jurisdiction. However, an alternative jurisdiction may apply in certain circumstances. The notion of delictum enables a legal action to be brought "where the legal wrong occurred". Danish case law was previously unclear regarding the interpretation of this rule, but a recent Maritime and Commercial Court judgment has provided clarification.
When an EU member state has levied a tax in breach of EU law, the consequences of the tax's incompatibility with EU law must be offset by reimbursement. The Court of Justice of the European Union recently considered a case arising from the Danish state's levying of an excise duty on lubricant and hydraulic oils that was later found to be unlawful.
Including: Introduction; Limitation periods for bringing claims; Structure of courts that hear large commercial disputes; Rights of lawyers in commercial disputes cases; Legal fee structures; Court proceedings; Interim remedies; Final remedies; Evidence; Third-party experts; Appeals; Costs; Enforcement; Cross-border litigation.
In two recent cases, the Helsinki and Kymenlaakso District Courts have imposed day fines on labour organisation committee members who have agreed stoppages and breached the advance notification requirement provided by the Act on Conciliation of Labour Conflicts. Both district court judgments have been appealed and the appeal processes are pending before the relevant appeal courts.
The Ministry of Justice has decided to establish a specialised IP court. The IP court will be established as a court of special jurisdiction to hear cases relating to the protection of IP rights. In the best-case scenario, the IP court will greatly influence the cost efficiency, speed and efficacy of IP dispute resolution procedures. Furthermore, these factors may make Finland a more desirable forum for IP cases.
The Supreme Court has ruled on a case in which a contracting party had familiarised itself with all matters of significance to a contract, but was mistaken as to a significant precondition. The court held that such mistake might damage the contract's validity if the type of precondition was essential to the agreement's conclusion and the precondition's true meaning was acknowledged by the contractual counterparty.
In a recent case the Supreme Court considered, among other issues, the international jurisdiction of the Finnish courts. In its judgment, the court concluded that the defendant had withdrawn a choice of forum agreement by stating to the court that it did not contest the jurisdiction of the Finnish court in the matter. Therefore, the court considered that the Finnish courts were competent to consider the case despite the existence of a choice of forum agreement, which granted sole territorial jurisdiction to the Californian courts.
The Supreme Court and the Supreme Administrative Court have recently considered the implications of the ne bis in idem principle and the European Court of Human Rights' position thereon in three judgments regarding tax liability. This update discusses the cases and considers their implications.
In the past, jurisprudence has been unclear as to whether misconduct by a party in performing a contract can trigger liability towards third parties. However, in 2006 the Court of Cassation brought a welcome end to such uncertainty by recognising the principle of identity of tort liability and contractual liability. The principle has since been applied by all civil chambers of the court in a diverse range of cases.
The Court of Cassation has rendered a decision on the enforcement of foreign decisions granting punitive damages. The decision will be of great interest to common law countries in which punitive damages can be awarded by the judge. In contrast, these principles of deterrence and punishment are absent from French liability law, according to which damages must fully but solely repair the harm caused.
The Supreme Court has held that a commercial agent must perform its obligations with loyalty towards the other party. In the case, which arose after the termination of contractual relations for telecommunications services, the court also held that the agent lost its right to compensation when it committed serious negligence, which was discovered only after the cessation of the contract.
The Paris Court of Appeal has recently held that a French citizen who brought a claim against a foreign company may not refer to the jurisdiction of the French courts under Article 14 of the Civil Code where the parties have agreed to submit any dispute to arbitration.
The Supreme Court recently ruled on the application of the EU Insolvency Regulation. It held that the French courts had to recognize main proceedings opened in the United Kingdom and were not entitled to review the grounds of the British judgment. The Supreme Court also limited the scope of the public policy exception under Article 26 of the regulation.
The Paris Court of Appeal has upheld a judgment ordering Google to stop using on its websites the trademarks LOUIS VUITTON, VUITTON and LV as keywords for advertising and promoting products. This decision is significant as regards issues of territorial jurisdiction and liability for torts based on trademark infringement and other violations through the use of keywords on websites.
The Federal Supreme Court has rendered an important decision dealing with the international jurisdiction of German courts in execution proceedings against sovereign assets of foreign states. In the case at hand, even a waiver of the debtor state's immunity under German law could not establish the jurisdiction of German courts for the granting of execution orders into sovereign claims.
The European Court of Human Rights has recently pointed out that excessively long judicial proceedings constitute a systemic problem in German procedural law and stated that the German legal system does not provide for an effective remedy against this. The government has since submitted a draft law with the aim of implementing an effective remedy against unreasonably long judicial proceedings.
The Federal Supreme Court has ruled that, despite being of an extra-contractual nature, liability for damages on tort may trigger a court's jurisdiction in accordance with Article 13(1)(3) of the Lugano Convention, provided that these claims are so closely linked to the contract that they are indissociable from it. This development will significantly increase the protection afforded to consumers.
Emergency laws which are enacted in the wake of the financial crisis are unavoidable for creditors and the rules that they establish are hard to predict. As long as these foreign laws achieve the collective satisfaction of creditors' claims, the risk of a pending lawsuit in Germany being suspended cannot be excluded. However, the chances of litigating such cases in the German courts may be better than in other EU countries.
The Federal Supreme Court's decision in Gebäckpresse confirms that there is a de facto necessity to apply for Community registration of designs which have been disclosed outside the European Union within one year of the date of disclosure. This is because any publication of a design has a novelty-destroying effect, regardless of whether it takes place inside the European Union.
In the German courts, German lawyers present their cases based on German law. This scenario does not benefit from the use of the English language. While non-German parties should not be excluded due to language difficulties, oral arguments and briefings take place not for the benefit of non-German parties, but in order to convince the German judge.
The provisions of Law 2522/97 apply to disputes arising during the tender stage. Pursuant to the law, a candidate participating in a tender for the award of public works, to the extent that it considers that its rights have been violated in the assessment of its offer, is entitled to seek judicial protection with a view to remedying any such violation and/or preventing further damage.
Guatemala's increased use of alternative dispute resolution is part of a trend not only elsewhere in Central America, but throughout the world. However, in order to be truly effective, such procedures require the possibility of judicial involvement in issuing preventive injunctions.
Guatemalan legislation makes provision for a range of precautionary measures, including arraignment, attachment, sequestration and intervention, as well as allowing for sui generis measures. Parties contemplating litigation should be aware of the basis, procedure and conditions for obtaining precautionary measures.
In the context of private international law, and in view of the need of different countries to maintain international relations and apply their laws beyond their borders, it is possible to execute court orders issued abroad in Guatemala. Following the issuance of Law Decree 107 of the Civil and Mercantile Procedural Code, the process to execute a decision made by a foreign court has been simplified.
Guatemalan court procedure, like that of other Latin American countries, includes a variety of hearing procedures, which may be in written form - as in the case of plenary suits and summary proceedings - or may be conducted orally. Oral proceedings are required for a declaration of jactitation. Such a declaration forces a party making a disputed assertion to bring a claim in order to prove its right.
A recent Court of Appeal ruling will have a significant impact on future practice, since Her Majesty's Revenue and Customs could now potentially be joined as a party to any Hastings-Bass application that may have UK tax consequences. Some critics argue that this position could lead to further intervention by foreign revenue authorities in cases which may have tax implications.
The Guernsey Court of Appeal recently held that Guernsey law would follow UK common law on the correct procedure for deciding whether a term regarding jurisdiction has been incorporated into an agreement. In such cases a preliminary decision should be taken on the incorporation of a jurisdiction clause, in accordance with the principles of Guernsey law, but without finally deciding the issue.
The Law Reform Commission published a long-awaited report proposing the introduction of a comprehensive regime for multi-party litigation by way of class actions. However, the question of funding class actions is a major issue, which must be resolved if the regime is to be successfully implemented.
The Court of Appeal has allowed the appeal of the Securities and Futures Commission (SFC) in the Tiger Asia proceedings, which raised an important issue about the extent of the SFC's powers in cases of suspected market misconduct. The decision means that it is open to the SFC to bypass the Market Misconduct Tribunal process and apply directly to the court for relief.
For several years, lawyers have been seeking clarification as to whether the English law of privilege applies in Hong Kong in all its rigour. A recent judgment has finally addressed the practical application of the legal principles involved in Three Rivers (No 5). Parts of the judgment make uncomfortable reading and it is eminently appealable, but for now it represents the best guidance on how these vexed issues will apply in Hong Kong.
The Court of Appeal recently tackled the difficulties that can be caused by an arb-med process. A key risk of the arb-med practice is that an arbitral award made following a failed mediation can be tainted by bias and rendered unenforceable, thus leading to the courts being asked to adjudicate.
In a recent application to the High Court, a company failed to secure the return of certain privileged documents which had been provided to the Securities and Futures Commission and separately seized by the police. Among other points, the judge questioned whether, as a matter of law, a limited or partial waiver of legal professional privilege is possible.
Companies that do business with governments or nationalised companies will have more difficulty in enforcing judgments or arbitral awards in Hong Kong following a recent court decision. The Court of Final Appeal has ruled that sovereign immunity applies to states even when they are contracting in a purely commercial capacity.
There are few legal grounds in Hungary on which a shareholder may be held liable for the debts of its company. One such ground is for a so-called 'long-term detrimental business policy'. The Supreme Court recently considered the statutory provision that provides for the piercing of the corporate veil in such an event. The decision marks a turning point in Hungarian company law.
Hungary's new Constitution has resulted in significant changes to the competence of the Constitutional Court, the most important of which introduced the concept of the 'real' or 'individual' constitutional complaint. This measure is expected to enhance the protection afforded to fundamental rights and to change the role that the Constitution plays - not only in the operation of the court system, but also in everyday life.
Award holders that seek to enforce a foreign award in Hungary must be aware of certain procedural pitfalls in the court process. They should also be prepared for some of the surprising effects of a re-awakened piece of legislation that, having lain virtually dormant for 40 years, is causing problems for foreign parties.
A recent, unpublished study, which was prepared by a Supreme Court judge in order to facilitate the amendment of Hungary's arbitration law, has summarised Hungarian court practice in connection with arbitration. It is particularly valuable because it considers a number of court rulings that are unavailable to the public.
The Supreme Court recently ruled that, despite an express clause providing for an arbitrator, the court can appoint an independent and impartial arbitrator under special circumstances. Through this ruling, the court struck a balance to the extent that it could not ignore the appointment of an arbitrator whom the parties have chosen under the terms of the contract, unless the arbitration would otherwise be rendered void.
The Supreme Court of India recently observed that it has become common practice to effect transfers of immovable property by way of sale agreement, general power of attorney or will transfers in order to evade payment of duties, taxes and other fees payable on transfer and registration. This judgment confirms that a valid transfer of immovable property can occur only through a registered deed of conveyance.
The Supreme Court recently clarified the eligibility of a single arbitration proceeding between multiple parties in disputes that arise from the same cause of action. The court considered that it would be proper and just to rule that when one party has a claim jointly against a second and a third party, and when there are provisions for arbitration in respect of both other parties, there can be a single arbitration.
The Supreme Court recently ruled that disputes or claims regarding payment of work can be raised and referred to arbitration after the party raising such claims has received payment on a final bill issued for the works. Such disputes can be raised even if the party made no objection in respect of such payments at that time, provided that it was not precluded by any clause of the contract from seeking settlement of claims.
In a recent judgment the Supreme Court opined on the question of whether an arbitration agreement contained in an unregistered (but compulsorily registrable) instrument was valid and enforceable. The decision is of interest to parties dealing with immovable property transactions, as it confirms that parties should be vigilant about the statutory requirements of registering and stamping an instrument.
In a recent case, the Supreme Court considered the nature of reliefs that a court may grant at an interim/interlocutory stage and reiterated its stance that an interim order cannot be such that it would non-suit one of the parties at this stage, and would therefore take the form of a final relief.
During the Indonesian Antitrust Commission's investigation into the sale of Indonesia’s second largest car manufacturer, the buyer lodged a complaint accusing the commission of conducting illegal actions. It has also commenced proceedings to appeal the commission's eventual decision that the sale was unlawful.
The Indonesian Bank Restructuring Agency has been granted judicial authority to deal with all cases involving bank insolvencies. Its new powers include the rights to freeze and confiscate assets. However, it is arguable that extending the authority of the courts to a government agency is a breach of national law.
Old Dutch laws that allow for the imprisonment of debtors with large outstanding debts were recently re-enacted. It is hoped that this will contribute considerably to the recovery and growth of the Indonesian economy, as existing collection processes have struggled to realize the settlement of debts owed to financial institutions.
A recent case confirmed that an application to dismiss a claim for failure to make discovery will not succeed where the discovery obligation is complied with. The case is a reminder that in making applications to strike out proceedings, the courts are slow to deprive litigants of a trial. The decision confirms that it is only in extreme cases that pleadings will be struck out arising from delayed or sequential making of discovery.
A number of recent High Court decisions considered the concept of 'no transaction' damages in cases involving professional negligence. The courts have confirmed that the correct approach in no transaction cases is to determine whether the negligent act resulted in the occurence of the transaction.
A recent High Court decision confirmed that where a party seeks to bring an application, it should deal with any related aspects in that application the first time round, rather than holding it over for another application. A party to litigation should ensure not only that matters which have been litigated are not re-litigated, but also that matters which ought properly to be brought before the court at a particular hearing are actually brought before it.
The Irish courts have 'inherent jurisdiction' at their disposal, which allows them to take certain steps with regard to the conduct of proceedings. Where procedural or substantive law has a gap in terms of giving the courts a clear power to do something, there may be a basis on which to invoke inherent jurisdiction. A recent High Court case demonstrates how it can operate effectively.
Under Irish procedure, the general rule is that costs 'follow the event' or, more simply, the winning party is generally entitled to its costs from the losing party. The High Court recently reconsidered the case law on security for costs. Although its decision sets out no new principles, it does set out a useful summary of the basic test applicable to the award of security for costs, as well as the numerous exceptions.
The Supreme Court recently issued its views on the holding of modular trials in the context of an appeal from a Commercial Court decision. This decision is important because it represents a clear statement from the Supreme Court with regard to the circumstances in which it will interfere in a case management decision.
In a recent judgment, the Isle of Man's First Deemster David Doyle has made it clear that the court expects parties and their legal representatives to be careful: first, as to whether to litigate, and second, as to honing the issues if litigation ensues. This latest judgment reinforces the Manx judiciary's desire to update the culture of litigation and promote the principles set out in the overriding objective.
A recent judgment reviewing conflicts of law has underlined the significance of the overriding objective in assessing where a cross-border dispute should be tried. In this interlocutory decision the court showed its willingness to overlay the overriding objective in respect of all of its decision making and to focus on practical points, such as saving expense and time and taking a commonsense approach.
The Isle of Man High Court has again looked at the question of a party's voluntary submission to the jurisdiction of a court in assessing whether an action based on a Nigerian judgment can properly proceed in the Isle of Man High Court. The case provided a useful reminder as to the private international law position on enforcing foreign judgments at common law in other territories.
The High Court has delivered judgment on the latest aspect of a property dispute involving Top Gear presenter Jeremy Clarkson, ruling that Clarkson's case has expired and cannot be pursued. This is the latest stage of continuing litigation regarding a public right of way dispute over a coastal area in the south of the island where Clarkson owns a property.
The Isle of Man High Court has published a code of conduct for members of the Isle of Man judiciary in an effort to maintain and enhance judicial standards. The code of conduct is based on the six Bangalore principles of judicial conduct which are well recognised internationally.
The extent of the use of Norwich Pharmacal jurisdiction, which enables disclosure orders against non-parties, in the Isle of Man was recently tested before the Isle of Man High Court. The court ruled that Norwich Pharmacal orders are for the provision of information rather than evidence and are to be used as a last resort.
For the first time in Italian court history, a private class action seeking to obtain damages from a tour operator has been successful. This was made possible with the modification of the Consumer Code during the course of the proceedings, which effectively extended the availability of class actions and made them easier to initiate. This reform of the code will have a significant impact on future class actions.
In January 2012 the Costa Concordia capsized while carrying around 3,200 passengers and 1,000 crew members. The disaster is one of the worst in the cruise industry's recent history, and will likely be the largest marine insurance loss on record. One year on, a host of issues regarding the victims' compensation claims remain unresolved.
Unilateral jurisdiction clauses grant one party the possibility to choose from several jurisdictional options for contractual disputes while the other party is bound to bring an action or claim before a single jurisdiction. Such clauses are generally considered valid, although their validity has been questioned – most recently before the Supreme Court – on the grounds that they lack mutuality or are completely unilateral.
The Supreme Court has upheld the validity of the jurisdiction clause contained in a letter of undertaking. The decision is the latest instalment in the Italian side of the long-running dispute between the insurers of the charterers of the vessel Front Comor and its owners, West Tankers. It further confirms the trend followed by Italian courts in favour of the validity of choice of jurisdiction clauses.
A recent Supreme Court decision confirms that awards of punitive damages are non-enforceable in Italy because they are contrary to public policy. However, it is possible to seek the enforcement of a judgment awarding punitive damages when purely compensatory damages can be separated from the punitive element and the punitive damages can therefore be set aside.
In Japan, when the tenant of a residence renews his or her lease agreement, the lessor often charges a renewal fee. For the first time, the Supreme Court has ruled on the issue of whether renewal fee clauses in lease agreements may fall foul of Article 10 of the Consumer Contract Act. It established a rule to determine whether such a clause unilaterally impairs the consumer's interests.
A recently promulgated bill to amend the Code of Civil Procedure and the Civil Provisional Remedies Act will change the international jurisdiction of the Japanese courts and will have a significant impact on foreign businesses. It also raises specific concerns for IP stakeholders.
Forthcoming changes to the Code of Civil Procedure will transform much international litigation involving a Japanese party. They will significantly affect many foreign companies that do not have offices in Japan, but engage in continuous transactions there, as well as foreign companies whose consumer contracts contain forum selection clauses designating a jurisdiction outside Japan.
In Japan, liability for copyright infringement may extend to persons or organisations that provide a place, medium or opportunity for copyright infringement by another person, under certain conditions. The Supreme Court recently rendered two judgments on the liability of service providers that assist remote users in watching or copying television programmes in breach of copyright law.
A significant Supreme Court judgment implies that notary deeds may not always suffice to prove the veracity of representations set forth therein. Similarly, private documents may be insufficient to prove the representations set forth therein. As a result, contractual parties may wish to create and preserve more direct evidence of facts.
The Tokyo District Court has rejected a trademark infringement claim against the operator of Japan's largest online shopping mall, in which one of the shops had sold infringing goods. The decision, which also has implications for the sale of infringing goods on auction websites, deals a blow to third-party rights owners that seek to stop infringement through the courts.
In a recent case an application for Beddoe relief was made to the Royal Court of Jersey by beneficiaries of a trust. The court concluded there was no reason why its inherent supervisory jurisdiction should not extend to making a Beddoe order in favour of discretionary beneficiaries, provided that certain conditions were met. The case could increase the ability of beneficiaries to hold trustees to account for wrongdoing.
The Royal Court recently delivered a judgment concerning the principles to be applied where a body of executors is deadlocked. In reaching its decision, it had to determine the role of the court, the circumstances in which the court could intervene and the basis on which it could do so. The decision clarifies the court's jurisdiction to intervene where there is disagreement between a body of executors or trustees.
A recent case considered the issue of the situs of a debt. The court accepted that what may or may not constitute 'residence' for tax purposes is irrelevant for present purposes, and that what matters is where a corporation carries on business. This case is useful for international companies that retain their registered office in one jurisdiction and carry out their business activities in alternative jurisdictions.
A recent judgment of Commissioner Clyde-Smith with Jurats Liddiard and Nicolle set aside a service of proceedings on respondents outside of Jersey and stayed the proceedings. The importance of the judgment is the court's consideration of the 'forum for administration' and 'exclusive jurisdiction' clauses in the context of trusts.
A recent Royal Court of Jersey judgment demonstrates the court's approach to an application to set aside a trust and certain gifts made under it on the grounds of mistake. It also provides some useful guidance on the approach to be taken by convening parties on trust-related applications.
The rules on litigation costs in the Code of Civil Procedure are straightforward and generally work well, but when litigation deviates from the standard scenario, their narrow language may give rise to unexpected or contradictory results. Fortunately, the courts often choose to take a simplified and practical approach.
Foreign investors involved in commercial litigation in Kazakhstan are often unprepared for the rigidity of the rules of evidence under the Civil Procedure Code and may not fully appreciate the significance of collecting appropriate evidence in advance.
Given Kazakhstan's economic reliance on its natural resources, it is surprising that aspects of court practice on questions of subsurface use have long been uncertain. A recent Supreme Court decision in favour of the government's right to terminate a subsurface use contract may indicate a new litigation risk for foreign investors.
Kazakhstan's real estate market is developing rapidly as old residential buildings are demolished to make way for new business properties. The acquisition of land for state purposes has suddenly become a pressing subject and has led to numerous court cases.
As part of the judicial reform process the Constitution commands Parliament to enact law establishing procedures for vetting judicial officers to determine their suitability to continue in office. The Judges and Magistrates Vetting Board has already declared several senior judges unfit to continue holding office. This triggered the filing of five suits with the Constitutional High Court challenging the process of removing the judges.
In 2010 Kenya ratified the Constitution 2010 through a national referendum. A key theme of the new Constitution was to clean up the judiciary, which was perceived as being corrupt. The Vetting of Judges and Magistrates Board has already vetted judges of the Supreme Court and the Court of Appeal, and has made public its determinations. The process of vetting judges continues to receive widespread public support.
President Omar Ahmad Hassan Al Bashir is the president of the Republic of Sudan, which is a neighbouring state of Kenya. He faces five counts of crimes against humanity and three counts of genocide. When he visited Kenya and attended a public ceremony without being arrested, the Kenya Section of the International Commission of Jurists sought the issuance of a provisional warrant of arrest against him.
A recent High Court decision has dealt a blow to organisations that have campaigned to ensure that women occupy at least one-third of all elective and appointive public positions in Kenya. As result of the ruling, women will have to wait until the state puts in place the legislative and policy measures contemplated in Article 27(8) of the Constitution. It will be interesting to see what measures the state will come up with.
Since the enactment of the new Constitution, seven prominent lawyers – two of them female – have been appointed to the positions of Supreme Court judges. However, several human rights organisations have initiated an action in the High Court questioning the composition of the court. Their argument is based on Section 27(8) of the Constitution, which requires that no more than two-thirds of the members of elective or appointive bodies be of the same gender.
The process adopted by Kenya in appointing its top judicial officers is widely regarded as having been transparent and accountable. It is hoped that these developments will go a long way to ridding the judiciary of its dependence on the executive arm, thereby inspiring public confidence in the system and encouraging parties to settle their disputes in the courts.
The Latvian administrative courts opened their doors in February 2004. Only administrative matters fall under their jurisdiction; but what matters are subject to appeal in the administrative court? Due to the complexity of this question, 70% of administrative court decisions in which court applications are refused are overturned by the administrative courts of appeal.
As Latvia is now an EU member state, the courts can apply to the European Court of Justice (ECJ) for a preliminary ruling on the interpretation of EU law. One of the first cases in which the courts have been requested to seek a preliminary ruling is the ongoing action between JSC Latvijas Balzams and LION & Ko Ltd concerning the trademark SOVETSKOJE SHAMPANSKOJE.
The Supreme Court has overturned a Riga District Court ruling which invalidated a trademark due to its overwhelming similarity to an existing mark. It took the surprising position that minor differences between the two designs were sufficient to avoid consumer confusion, and failed to take into account the overall impression they created.
A recent Supreme Court decision suggests that collisions between the interests of justice and legal certainty will be resolved in favour of the latter. Where the courts realize that a Land Register record must be cancelled due to deficiencies in a sale transaction, they will attempt to determine whether the purchaser could have known of these deficiencies and was thus acting in bad faith.
Ownership rights established by a Latvian court judgment have effect with regard to any person, even if the judgment is later annulled due to mistakes admitted by the court. If the judgment is annulled, so too are the ownership rights; but the legal consequences caused by their existence still persist. However, a new court precedent calls into question the operation of this principle.
It is difficult to bring a claim against a party who is not located in Latvia and who has no immovable property there, and any judgment issued by the Latvian courts will be hard to enforce. Latvia has entered into few bilateral mutual legal assistance agreements and the principle of reciprocity does not apply, as civil judgments issued in other countries are afforded almost no legal force.
Liechtenstein's civil procedure mainly reflects the Austrian Law of Civil Proceedings. However, not all of the latter's provisions have been adopted and several modifications reflect traditional Liechtenstein principles. Particular conditions apply to cases involving a connection with a foreign jurisdiction and to the enforcement of foreign decisions.
Until recently, Liechtenstein civil procedure law provided for the possibility to request a security deposit from foreign plaintiffs in order to secure the defendant's right to the reimbursement of legal fees if he or she prevailed. However, the Constitutional Court recently repealed this provision on the grounds that it violated European Economic Area law.
A recent Supreme Court clarifies that the purpose of restitution in the context of a wrongful agreement is to limit the ability of a party acting with wrongful intent and in bad faith from benefitting from such conduct. Consequently, such a party must fully reimburse its contractual counterparty under an annulled contract, whereas a party that has acted in bad faith should not be reimbursed.
In considering an appeal arising from a dismissed claim for non-pecuniary damages, the Supreme Court has warned against an overly formalistic approach to statutory limitation periods. It referred to the practice of the European Court of Human Rights in stating that limitation rules cannot be applied without considering the circumstances of the legal relationship in question.
A dispute between a construction company and the developer of a residential tourism complex regarding liability for fire damage to the complex has led to two decisions by the Supreme Court. Among other things, the court has clarified the circumstances in which a fire may be said to constitute force majeure.
A recent case centred on the effect of an arbitration clause in a financial lease contract in respect of an earlier purchase and sale contract, which was attached to the financial lease contract as an annex. The Supreme Court held that the dispute should be adjudicated by an arbitration tribunal and that a reference to EU Regulation 44/2001 was unfounded.
A regional court in Lithuania denied its competence to consider a claim related to a bankrupt German company, finding that claims against a company based in another EU member state arising out of bankruptcy must be decided by the courts of the state in which bankruptcy proceedings were initiated. The Supreme Court has now referred three related questions to the European Court of Justice.
The Supreme Court has ruled that contracts for the carriage of passengers are consumer contracts. The court also ruled that a jurisdictional clause in such a contract is invalid if it states that a dispute arising out of the contract shall be adjudicated by the courts of the state in which the carrier is located.
The Administrative Court of Appeal has overturned a judgment of the Lower Administrative Court regarding the qualification of a debt waiver as a tax-neutral hidden capital contribution. The appeal court concluded that a debt waiver is an economic asset, eligible to qualify as an additional informal capital contribution. Consequently, the amount waived may not be treated as a taxable profit.
Three recent cases have clarified the conditions under which tax authorities may reasonably request information. The courts have held that requests must be understandable and motivated, and that exchange of information provisions of applicable double tax treaties must be verified in relation to the requests.
The Administrative Court of Appeal has overturned three decisions of the lower administrative court regarding the qualification of income derived from the sale of preferential subscription rights, which confer on shareholders a preferential right to subscribe newly issued shares and aim to protect them from a dilution of their shareholder rights.
The Administrative Court of Appeal has overturned the Luxembourg courts' first ruling on a request for exchange of information under certain Organisation of Economic Cooperation and Development standards, rejecting the lower court's view of the "uniqueness" of the request. Two more decisions examine further issues, including the right of access to a foreign authority's request.
The Lower Administrative Court has rendered a debatable first decision regarding a request for exchange of information under the Law of March 31 2010, which introduced certain Organisation of Economic Cooperation and Development standards into Luxembourg tax law.
The Luxembourg lower administrative court has clarified the qualification of income derived from the sale of preferential subscription rights by a Luxembourg company. It held that in the absence of rights in the share capital, the preferential subscription rights did not qualify as 'participations' for the purposes of the participation exemption regime.
The Court of Final Appeal has clarified conflicting interpretations of the law which had been endorsed by two separate Court of Appeal judgments. The case in question related to a civil claim for damages to be deducted in a criminal proceeding. The court had to define, in a tort law situation arising from a wrongful act, the date from which the obligation becomes liquid, and hence, the date from which the debtor is in default.
The Kuala Lumpur High Court recently recognised that the test for striking out a case for want of prosecution has changed following the Woolf Reforms. Confirming a previous judgment, the judge held that the court had jurisdiction to strike out for want of prosecution for any justifiable reason within the norms of procedural jurisprudence and practice. Nonetheless, the court expects diligent adherence to prescribed schedules.
Malaysian courts are becoming increasingly proactive in suggesting methods by which disputes can be dealt with more efficiently and expeditiously. The Court of Appeal recently upheld a decision in which a trial judge had proceeded to hear submissions and deliver a judgment at a trial without taking evidence. The case demonstrated the great value derived from the recording of court proceedings.
A slew of both new legislation and amendments to existing legislation has recently emerged on the Malaysian legal landscape, including several changes to the rules on court procedure. Most notably, the different forms of originating process have been discarded in favour of either a writ action, involving a trial with oral evidence, or an originating summons action, involving evidence by affidavit only.
The Federal Court recently determined several interesting points of law in Ooi Woon Chee v Dato See Teow Chuan. The case arose after the liquidators received two offers for the sale of shares owned by Kian Joo Holdings Sdn Bhd. Among other things, the court held that although the liquidators were officers of the court, they were not bound by the same standards as a judge.
A recent High Court decision sounds a warning to insurance companies in respect of their duty to provide full disclosure when signing up policy holders to an insurance product. The case draws into sharp focus the care, responsibility and professionalism expected of insurance agents, especially when selling insurance products to long-term friends, as occurred here.
The Federal Court recently held that an adoption granted with the consent of one biological parent without the consent of the other was nonetheless valid. The appeal was dismissed with costs with the consolation that the biological father was restored to the birth register as the lawful father. However, the court is still reluctant to rule on the religious conversion of children.
The new Amparo Law, which is now in force, aims to modernise amparo proceedings and includes several matters that were already recognised in case law, but not included in the previous law. Among the most relevant features of this new law, constitutional protection has been extended in some ways and limited in others.
Following a constitutional amendment in 2011, the new Amparo Law has been approved by both chambers of Congress. Although to a great extent the new law includes positive changes to amparo proceedings and aims to modernise this constitutional challenge procedure, some of the new provisions may be unfavourable to companies and financial institutions.
Amendments to the Mexican class action regime have recently been proposed. Several provisions of the Federal Code of Civil Procedure are intended to be modified to provide wider protection to consumers. However, it is important to consider the impact that the amendments might have on the defence of respondents and the level of exposure that companies will have if they are approved.
A recent Supreme Court decision has established that compensation for damages suffered by a person or company must be determined by the judge on a case-by-case basis. Consequently, indemnity capped by law is unconstitutional. The decision provides persuasive guidance on the court's views with respect to the importance of fully compensating for damages suffered.
Numerous pitfalls await foreign parties assuming that proceedings in Mexican courts unfold in the same way as in the courts of their own jurisdictions. Many foreign companies in Mexico may be unaware of how drastically Mexican litigation procedure can affect a dispute. Whether a company is bringing an action or has been sued in Mexico, it risks losing its case if it does not avoid certain traps for the unwary.
The First Chamber of the Supreme Court recently ruled on the constitutionality of one of the timeframes set by the Bankruptcy Law for filing a proof of claim in bankruptcy proceedings. In extending the timeframe, it may have provided a significant opportunity to complete the formal requirements for filing a proof of claim, given that Mexico's procedural rules are generally strict and often set the bar for compliance too high.
Including: Proceedings on Merits; Summary Proceedings; Enquiry Proceedings; Class Actions; Timeframes; Conservatory Attachments; Regulatory Litigation.
The Supreme Court recently ruled that in-house lawyers registered as attorneys with the Dutch bar can, in principle, invoke legal professional privilege in the same way as attorneys who work independently or within a law firm. The ruling is notable because the Supreme Court has disregarded the Akzo decision of the European Court of Justice, which held that in-house lawyers cannot rely on attorney-client privilege.
The District Court of Midden-Nederland recently issued a ruling against a Dutch bank in a collective action that was initiated by a foundation acting in the interests of private investors which had invested in Madoff funds via the bank. The case involved a number of interesting points with regard to three procedural elements of such proceedings.
The Act on Simplification and Flexibility of the Law on Limited Liability Companies sets out significant amendments with regard to the statutory dispute settlement rules applicable to shareholders. The amendments will considerably shorten the duration of such proceedings, improve the position of the claiming shareholder and give parties the option to agree alternative solutions.
Dutch law has no full discovery procedure comparable to that in the United States. However, if it can show a lawful interest, a party can petition for the disclosure of certain documents held by another party. This practice is becoming increasingly popular in Dutch civil litigation, and a recent Supreme Court judgment invites the conclusion that such a petition can also be made in support of foreign proceedings.
The Supreme Court recently handed down an important ruling on the possibility to reclaim money from investors involved in a Ponzi scheme. The Ponzi scheme manager was declared bankrupt, convicted of fraud and jailed. The bankruptcy trustee sought to claw back profits on behalf of the defrauded investors. The claim was denied by the district court and the Court of Appeal. The Supreme Court upheld these rulings.
Earlier this year the minister of justice and security sent a draft bill on the amendment of enquiry proceedings to the lower house of Parliament. The reason for the draft bill is to improve enquiry proceedings in certain respects. The draft bill includes amendments regarding access to and procedural aspects of enquiry proceedings.
Including: Personal Injury Liability: Accident Compensation; Exemplary or Punitive Damages; Consumer Protection Legislation; Contract Reform Legislation; Bill of Rights Act; Court Processes; Enforcing Foreign Judgments.
During the 2011 general election the National Party campaigned on an economic policy that would bring about the partial sale of five state enterprises. Following its election, the government began the process of restructuring the crown's ownership of these state enterprises. A recent Supreme Court decision has cleared the way for this crown sale of shares.
A recent Supreme Court decision addressed the interplay of contractual and tortious liability in New Zealand, as well as the appropriate measure of damages for breach of contract. The decision shows that courts will not readily excuse parties whose negligence induces entry into a contract, even a public body such as a district council.
In crowded competitive markets, a sharply focused comparative advertisement can make a real impact with viewers, particularly where it highlights lower pricing. However, comparative advertising carries risks if not done well and provides a fertile source of disputes. A recent case shows how the courts have grappled with the right approach to take to advertising, and is a reminder of the level of care that advertisers must take.
The New Zealand Commerce Commission has increasingly sought to bring court proceedings under the Commerce Act 1986 regarding cartel conduct by parties that do not ordinarily reside or conduct business in New Zealand, or that do so only through a local subsidiary. Recent cases show a determination to hold foreign parent companies liable for competition law breaches carried out through their New Zealand offspring.
The Supreme Court has held that a woman who became pregnant following a failed sterilisation had suffered a "personal injury" caused by medical misadventure, for which she was entitled to cover under the state compensation scheme. As a result, the woman could not sue the medical professional who was responsible. The decision is a reversal of an earlier Court of Appeal decision.
The High Court has recently ruled that warrants used by the New Zealand police to undertake a search of the New Zealand residence of Kim Dotcom, founder of Megaupload, on behalf of the US government were unlawful and that the conduct of the police exceeded what would have been permitted even if the warrants were lawful.
In order to guarantee that the winning party of a case can enforce the court's judgment, preventive measures have been established. For instance, where an amount of money is sought, a preventive attachment of property may be executed so that, upon a favourable judgment, the auction of the property may be ordered and the creditor will receive payment.
The Lagos Federal High Court recently issued its decision in Noble Drilling Nigeria Limited v Nigerian Maritime Administration and Safety Agency. The case was brought by a drilling rig operator which questioned whether the Coastal and Inland Shipping (Cabotage) Act 2003 applied to drilling rigs and operations due to the definitions of 'cabotage', 'coastal trade' and 'vessel' included in the Cabotage Act.
The concept of what constitutes an offer, acceptance and counteroffer remains important in day-to-day commerce. Often, however, the parties do not conclude a clear-cut agreement; in such cases it is subsequently left to the courts to determine whether there is a contract and the terms thereof. The Supreme Court was called on to consider this issue in a recent case.
In its widest application, the doctrine of lis pendens references the inherent power of the court to prevent the effective transfer of a right to or interest in real property while a suit related to that property is pending. The Supreme Court has applied lis pendens in a number of landmark decisions; however, a recent decision indicates that its attitude towards the doctrine may be changing.
The Federal High Court recently had to rule on whether the consent of the minister of petroleum resources is required for a valid change in ownership/control of an oil asset-owning company. This topic has been the subject of lengthy debate within the legal community. The judgment suggests that it is perhaps prudent for business interests in the oil and gas industry to err on the side of adherence to the consent requirement.
In a decision which rested on a trial court's failure to hear and determine first an application challenging the jurisdiction of the court, the Court of Appeal has held that the trial court had no jurisdiction to hear and determine the original claim because the contract between the parties provided for arbitration in case of dispute. The conclusion of arbitration was a condition precedent to the court assuming jurisdiction over the dispute.
Ship arrest is an excellent way to obtain security for a claim and potentially prepare for a judicial sale of the vessel, should that become necessary. Arrest may be a suitable remedy for a variety of creditors, and is a relatively easy, inexpensive and quick solution.
In a recent case the respondent refused to pay its share of the advance on arbitration costs. The chairman of the arbitration tribunal provided an article on the subject to assist both parties. According to the Supreme Court, by furnishing both parties with a copy of the article the chairman had provided the claimant with supporting legal arguments, bolstering the impression that the tribunal was pre-disposed to grant relief to the claimant.
In a recent case the Supreme Court ruled that Filipino seafarers covered by collective bargaining agreements should submit their dispute to the jurisdiction of a voluntary arbitrator or panel of arbitrators. Only in the absence of a collective bargaining agreement may parties submit the dispute to the National Labour Relations Commission for compulsory arbitration.
The Supreme Court has ruled that although the Corporation Code bars a foreign corporation doing business in the Philippines from maintaining any action, suit or proceeding in any court of the Philippines, this general law must yield to the more specific Alternative Dispute Resolution Act of 2004, which holds that the grounds to reject a foreign arbitration award are limited and that lack of capacity to sue is not one of them.
Edison Cogeneration Corporation terminated a power supply and purchase agreement with Philippine Economic Zone Authority when its request for a tariff increase was rejected. The authority refused to submit to arbitration, claiming that the dispute was not arbitrable. However, as the agreement contained a valid arbitration clause, the court proceeded to appoint the arbitrators and referred the dispute to the arbitration committee.
An appelate court has confirmed that there is a time limit to file an action to vacate a domestic arbitral award. The party dissatisfied with the award must institute a suit to vacate the award within one month of the date on which the award was served on it. If it fails to institute a suit to vacate within that period, the award becomes final and executory.
Under Philippine law, disputes between a homeowners' association and its members should be filed with and resolved by the Housing and Land Use Regulatory Board, which has exclusive jurisdiction over such disputes. However, the Supreme Court recently ruled that if the bylaws of the association contain a provision specifying arbitration as the mode of dispute resolution, it must be respected.
This update outlines the scope of application of the Lugano Convention, and the circumstances in which a foreign judgment may be recognized and enforced in Poland.
Portugal has an extensive network of highways, some of which are managed by public limited companies under concession contracts executed with the state. A recent decision centred on the potential liability of these companies in the context of an accident. However, the decision appears to be fairly partial and a degree of prejudice during the trial was evidenced.
Under the Code of Civil Procedure, failure to produce a power of attorney has catastrophic consequences: it is treated as though the party did not intend to defend itself and the defence is duly withdrawn. However, this appears to contradict other provisions of Portuguese law and may also be unconstitutional.
A new decree-law has substantially overhauled enforcement proceedings in Portugal. It is hoped that the entry into force of the new regime in September this year will mark a turning point and will help to ease the administration of justice.
The option to record evidence presented to a court of first instance is necessary in order to protect the rights of citizens who have recourse to the judicial process, as it permits reconsideration of the facts by a court of appeal. It also speeds up court proceedings, which leaves assistant judges free to try other cases.
A Portuguese court recently handed down a landmark judgment against the state for failure to legislate. It awarded damages of approximately €600,000 to the parents of a child who was sucked into the pipes of a swimming pool at a water park, because had such facilities been properly regulated by the state their son’s death could have been prevented.
Courts of peace have been created to resolve minor disputes by assisting the parties to reach agreement through a simple, informal, oral procedure. Small claims and minor cases will be diverted to these new institutions. This will enable the first-instance trial courts to hear more significant cases with greater thoroughness and efficiency.
As litigation risks in Russian courts are very high due to the lack of uniformity in court decisions, the question of legal costs allocation is particularly pressing. Careful consideration should therefore be given to the procedure for recovering the cost of legal representation in arbitrazh courts and its practical application.
One of the most significant new changes to the Civil Procedure Code is that a full appeal stage - allowing for the re-examination of evidence presented at first instance - has been introduced into litigation procedure. Previously, a court judgment could be appealed only if the ruling had been issued by a justice of the peace.
The Supreme Arbitrazh Court has drawn a line under a dispute about promissory notes that had dragged on since 2009. It corrected the approach of the lower courts, which had held that the only lawful basis for issuing a promissory note was, in essence, a loan relationship, and had stated that a promissory note may not be paid if it is issued to secure a third party's obligation.
The Supreme Arbitrazh Court has ruled on two issues that are likely to affect companies in Russia with foreign employees. The court specified whether social security payments should be made in respect of foreign employees who do not plan to reside in Russia permanently. It also ruled on the need for professional translations in dealings between the tax authorities and foreign taxpayers.
Although the Supreme Arbitrazh Court has previously issued clarifications on the timing aspects of the application of the Bankruptcy Law, a number of key issues continue to arise in practice. All parties with a potential connection to an insolvency procedure can learn the lessons of recent case law.
In a case in which additional value-added tax (VAT) had been assessed, the taxpayer unsuccessfully challenged the amount before the Supreme Arbitrazh Court, submitting evidence of tax deductions that exceeded the additional VAT. In another case, the court held that if a violation of tax legislation is identified during a tax audit, a taxpayer cannot avoid a fine by filing adjusted statements and paying tax arrears.
A decision of the Singapore High Court, upheld by the Court of Appeal, highlights the requirements involved in obtaining and maintaining a Mareva injunction in relation to a foreign party and a foreign arbitration award where no separate cause of action exists within the jurisdiction. The decision confirms the view that the right to obtain an interlocutory injunction is not a cause of action.
In a landmark decision, the Singapore Court of Appeal recently held that a developer is entitled to rely on the independent contractor defence to defeat a claim in tort by a management corporation. The court ruled that a developer who has exercised proper care in appointing an independent contractor is not vicariously liable for that contractor's negligence.
A recent Singapore High Court decision considers the duties of company directors, in particular the duty owed to creditors in the event of company insolvency. The court has adopted a flexible, pragmatic approach that recognizes the limits of adhering to strict tests and the realities of commercial business.
A recent case is the first reported judgment by the Singapore Court of Appeal concerning the scope of the statutory derivative action found in Section 216A of the Companies Act. It introduces a new barrier that could potentially defeat the successful invocation of a Section 216 action, even if the statutory conditions to obtain that remedy are satisfied.
A recent Supreme Court decision indicates that the courts have now adopted a more conservative definition of limits of tortious liability for negligently caused pure economic loss. This is a welcome clarification of the position regarding liability for negligently caused economic loss, the ambit of which was potentially very far-reaching under previous case law.
The Singapore Court of Appeal has clarified that leave to appeal against a domestic arbitration award will only be granted if there is a question of law as opposed to a mere error of law, and the question of law is not a one-off point. Even if the question is one-off, leave may be granted if a strong prima facie case can been made out that the arbitrator was wrong.
While the Constitution expressly recognises class actions, it does so in the broadest of terms, and there is little legislative or judicial guidance for practitioners on how best to approach these matters procedurally. However, the Supreme Court of Appeal recently delivered an important judgment on class actions in South Africa, confirming that they are permitted not only in case of the infringement of a constitutional right, but also more generally.
'Extinctive prescription' refers to the extinction of a right or claim due to a time lapse. In a construction context, where a contractor may have a series of claims proceeding through the contractually contemplated dispute resolution procedure, the stage at which a claim or debt may become due has been the subject of much conflicting case law. The Supreme Court of Appeal recently issued guidance on this issue.
Spanish law provides that Spanish courts have jurisdiction to decide on disputes taking place within Spanish territory and involving Spanish and foreign nationals. The only exceptions to this are in cases of either immunity from jurisdiction or immunity from enforcement as established in public international law. Notwithstanding this general rule, there are certain exceptions in case law.
The Supreme Court recently confirmed that a plaintiff has a duty to submit all relevant documents when filing its claim. Even when those documents are in the possession of another court, the burden is on the plaintiff to obtain copies of them and attach them to its claim at the time of filing.
The Supreme Court has recently clarified the limits that the courts must observe when deciding on claims for damages. The court held that the civil courts are not allowed to award damages in excess of what has been requested by the claimant, as this would jeopardize the right to defence.
The Supreme Court has issued a judgment in an unusual case where the plaintiff was a minor. It upheld the court of appeal decision ordering the defendants to pay a sum of money to the plaintiff, on the grounds that the defendants had failed to raise the issue of her age on appeal and the appearance in court of her parents overrode her lack of capacity.
The Madrid Court of Appeal has ruled on whether non-compliance by a judge of first instance with the term established by law during which a defendant may appear in court from the day of summons violated the constitutional right to due process. The court declared the process null and void on the grounds that the defendant had been deprived of its right to due process.
The Supreme Court has settled the issue of which legal criteria qualify a case for appeal before it. The court distinguished between two types of case: where the amount at stake has been determined, the right to appeal is conditional on this amount being in excess of €150,000; where the amount has not been determined, the right to appeal is conditional on the case having a special interest.
A judge has ruled that the controller of exchange was justified in refusing to allow a company to accept a foreign exchange loan at a time of low liquidity, even though he had allowed the company to accept a previous loan. The judgment reiterated that it is a public duty to maintain checks and controls on foreign borrowings.
The Supreme Court has ruled that the Inland Revenue (Special Provisions) Act is inconsistent with the Constitution and grants immunities and indemnities to persons who have contravened the law and defrauded public revenue, causing extensive revenue losses. The ruling was delivered following a reference on the legality of the act made by the president to the court.
In a recent decision, the Supreme Court considered whether it is possible for a party to obtain, by means of a court order compelling the production of written evidence, access to an expert opinion which its opponent did not want to use in the dispute. The Supreme Court decided that it will be highly unusual for an expert opinion to be found to constitute written evidence and thus be covered by the duty to produce.
Several changes to civil procedure in the general courts will take effect on November 1 2008. The changes concern preparatory proceedings in the courts of first instance, as well as main hearings. There will also be changes to proceedings in the courts of appeal.
In a recent investment arbitration between Petrobart and the Kyrgyz Republic, arbitrators dismissed Petrobart's claims on the basis that they lacked jurisdiction because there had been no 'investment'. The Supreme Court recently set aside the arbitrators' ruling, finding that the tribunal should have applied the doctrine of assertion when determining jurisdiction.
The Svea Court of Appeal had previously held that an arbitrator who shared offices with and was a consultant for a law firm that had a continuous relationship with the group of companies to which one of the parties belonged could not be regarded as biased. However, the Supreme Court has now set aside the original arbitral award and taken a strong line on arbitral impartiality.
The Svea Court of Appeal recently held that it would have been appropriate for an arbitrator to disclose certain facts, but that non-disclosure did not affect his impartiality. The court also held that it could not be concluded from the circumstances that the arbitrators had failed to consider certain facts upon which the challenging party relied during the arbitration. Thus, the award was upheld.
The Stockholm District Court and the Svea Court of Appeal have held that the right to bring an action against an award under Section 41 of the Arbitration Act applied to a determination of arbitration costs by the Arbitration Institute of the Stockholm Chamber of Commerce which was included in the award. The case is pending before the Supreme Court.
Including: Judicial Structure; Commercial Courts; Court Procedure; Appeals to Swiss Federal Court.
The Debt Enforcement and Bankruptcy Law enables a creditor to apply for an order to freeze a debtor's assets on the basis of a final enforceable title. The Supreme Court recently ruled that a foreign award without prior exequatur proceedings can constitute a final enforceable judgment, and thus under certain conditions justify a freezing order. This decision extends creditors' access to freezing orders, but does not give them free rein.
Design infringement proceedings always carry the risk of losing the rights in a design because of a successful nullity counterclaim by the counterparty. A recent decision shows that also prior design applications by third parties, which had not been made available to the public when the party's own design was filed for application, must be considered in this regard.
The Federal Supreme Court has ruled on the appeal of Swatch Ltd, a leading Swiss watch and jewellery manufacturer, against a decision of the Berne Commercial Court to hold valid a trademark co-existence agreement between Swatch and TKS Ltd. The Supreme Court partially approved Swatch's appeal, revoked the commercial court's decision and remanded the matter to the commercial court for reappraisal.
The Federal Administrative Court recently ruled on an appeal by the Munich Breweries Association against a decision of the Federal Institute of Intellectual Property (FIIP) refusing to grant trademark protection for the term 'Oktoberfest-Bier' with respect to beer in Class 32. The FIIP had held that the sign was not distinctive and needed to be kept freely available under Article 2(a) of the Trademark Act.
The Supreme Court recently issued an interesting decision, in which it dismissed a motion to set aside an award rendered by the Court of Arbitration for Sport (CAS). This decision highlights the rule pursuant to which the CAS has "full power to review the facts and the law [and] may issue a new decision which replaces the decision challenged or annul the decision and refer the case back to the previous instance".
The Swiss Supreme Court has overturned a Court of Arbitration for Sport (CAS) award regarding the contribution for legal costs due to a breach of X's right to be heard. This was because the CAS had requested the parties to file written comments on legal costs but failed to set a precise deadline for the parties to file such observations, and then issued its award without giving them the opportunity to be heard in this respect.
Following a recent court decision, the partial lawsuit mechanism introduced by Article 109 of the Code of Civil Procedure has been clarified. The mechanism can no longer be used solely for the purpose of avoiding payment of larger court fees and expenses. In addition, plaintiffs cannot simply file a routine partial lawsuit without fulfilling the conditions set forth in the code and defendants will be better equipped to make objections.
A plaintiff wishing to amend a claim at a later stage of a lawsuit is entitled to amend the claim only once, within the statute of limitations. Thus, where a plaintiff fails to do so within such limits, the defendant can object to any amendment made. However, after a recent decision of the Fourth Chamber of the Court of Appeals, the established practice of the Turkish courts might be likely to change.
The principle of good faith is not directly defined under Turkish law. The Court of Appeals recently reversed a first instance decision that the real right (ie, the right in rem) of a third party was not protected (and thus cancelled) as a result of the previous illegal registration of such right at the land title registry. The decision came despite the legal acquisition of such right by a third party in good faith.
In a recent decision the Eleventh Chamber of the Court of Appeals held that the post-contractual non-compete clause in a franchise agreement was unconstitutional, and thus invalid, for violating the freedom to work and contract guaranteed under Article 48 of the Constitution. Although this decision has not yet become established practice, it is significant and the court's future practice should be closely monitored.
In a recent decision the Court of Appeals ruled that in relation to an international company with a Turkish subsidiary, employees working abroad in the same business line should also be included when calculating the number of employees required for protection under work security provisions. This ruling departs from the past practice of the labour courts and the Court of Appeals.
A transfer pricing issue has come to light in a recent court case. Tax auditors considered that a pharmaceutical company which had purchased ingredients from its group companies abroad at inflated prices was engaging in disguised profit distribution. However, the Council of State ruled that the factors which may cause price differences between pharmaceutical ingredients should be taken into account.
Ukraine's higher courts – the Constitutional Court, the Supreme Court, the Higher Commercial Court and the Higher Specialised Court for Civil and Criminal Matters - have recently issued a number of documents summarising established court practice. Such documents provide guidelines for lower instance courts.
The Ukrainian legal system does not generally recognise judicial practice as a source of law; however, certain statements of legal position from the Supreme Court are binding on lower courts in similar cases. Some of these statements, as well as higher court advisory letters, raise practical issues for companies doing business in Ukraine.
Since the global financial crisis, the Ukrainian courts have faced a significant number of cases arising from the conclusion and execution of credit agreements. A recent decision clarifies a number of controversial aspects of such disputes, addressing problems that arise when parties seek to set aside or terminate credit agreements, as well as questions relating to mortgages and pledged property.
A recently introduced law allows the court to grant interim measures in proceedings for recognition and enforcement of a foreign court judgment. Such measures may be issued at any stage of proceedings if not to do so could make enforcement complicated or impossible. However, Parliament voted down proposals that would have provided for enforcement of interim relief granted by arbitral tribunals.
The statute of limitations mentioned in Article 287(a) of the Commercial Maritime Law provides that the one-year time limitation for claims arising from a maritime carriage contract should commence from the actual delivery date, or from the date on which the delivery should have taken place. For such cases, the date of the completion of delivery should be used, not the commencement date of the delivery.
The Dubai Supreme Court recently established an important precedent concerning whether a non-licensed real estate broker is entitled to agreed commission. The court opined that the requirement to obtain a licence to practise real estate brokerage in Dubai is an imperative rule whose violation invalidates the brokerage agreement concluded by the real estate broker.
Due to the downturn in Dubai's real estate market, the completion of projects has often been delayed beyond the timeframe agreed by the contracting parties. Therefore, a pressing question among investors and in legal circles is whether such delay leads to the automatic termination of the contract and a refund of the deposits paid by the investors.
In an unequivocal decision reinforcing the legal grounds for declaration of bankruptcy, the Dubai Supreme Court ruled that a trader's suspension of payment of a single commercial debt is sufficient to declare its bankruptcy, provided that the non-payment indicates the instability of the trader's financial position and the fragility of its creditworthiness.
The Dubai Supreme Court has consolidated the concept of treating a settlement agreement as a contract. The court held that such an agreement is subject to rescission if a party fails to perform its obligations pursuant to the terms and conditions, and that a claim relating to a dispute arising from the underlying contract which led to the settlement agreement is an implied demand for rescission of the agreement.
The Law Regulating the Interim Real Estate Register in the Emirate of Dubai has had a major impact on the real estate market. However, doubts remain over the penalty imposed for breach of the developer's duty to record off-plan sales contracts concluded before the enforcement of the law. Lower courts and the Court of Appeals have reached sound but opposing conclusions on whether such contracts are void.
Including: Courts; Commencing litigation; Court process; Appeals.
The Court of Appeal recently confirmed that a chief executive's announcement made orally to staff on behalf of the board amounted to a contractual commitment to a minimum bonus pool and the company was obliged to maintain the bonus pool for distribution among staff. This decision provides guidance as to the circumstances in which an oral statement can suffice to give rise to binding contractual obligations.
In Royal Bank of Scotland plc v Highland Financial Partners LP the Court of Appeal set aside a judgment on the grounds that it was obtained by fraud. The decision is understood to be the first domestic case in which a UK bank has had a judgment set aside on the grounds that it was obtained by fraud, and provides a good example of when a summary judgment may be set aside on these grounds.
In Eco 3 Capital Ltd v Ludsin Overseas Ltd the Court of Appeal confirmed that there is no separate, standalone requirement to prove an intention to deceive in order for a defendant to be liable under the tort of deceit. The case involved a claim for fraudulent misrepresentation arising from the claimant's loss of £2 million in a failed property investment scheme.
In a recent case the Court of Appeal confirmed that in certain situations claimants may recover heads of loss that were not expressly claimed in their pleading. However, the court's decision does not mean that claims need not be properly pleaded. The court also made general comments about how notice of matters to be considered at trial may be given.
The Commercial Court recently considered a claim for breach of duty in recommending investments on which substantial losses were incurred following the claimant's failure to meet a margin call, and the distressed sale of the investments, in the wake of the collapse of Lehman Brothers. The decision confirms the focus in claims on the suitability of the recommended product and whether adequate explanations of the risks were provided.
The recent case of Active Photonics illustrates how the court will apply its discretion to grant relief from sanction where a party has failed to comply with an 'unless' order. The court usually issues an unless order when a party has failed to comply with previous case management directions. Although such draconian measures are seldom taken, the outcome of this case was unsurprising.
The Sixth Circuit recently issued its decision in Fulgenzi v PLIVA, Inc, a case involving a state law claim for failure to warn against a generic drug manufacturer. The court held that a failure-to-warn claim could proceed against a generic manufacturer that had failed to follow the brand-name label in a timely manner, creating a narrow exception to the pre-emption defence established by PLIVA, Inc v Mensing.
The Supreme Court recently heard oral arguments in the much-anticipated Mutual Pharmaceuticals v Bartlett case. The court is to determine what most thought had already been decided by PLIVA, Inc v Mensing: whether design defect claims against generic drug manufacturers are pre-empted by federal law, and whether manufacturers can be held liable when their only other option is to withdraw from the market.
The Supreme Court recently issued a much-anticipated decision in Amgen, holding that securities class action plaintiffs do not have to prove that alleged misrepresentations or omissions were material at the class certification stage. The ruling has substantial implications for future securities fraud class actions, where materiality could otherwise have proven a significant hurdle for plaintiffs.
The Ninth Circuit recently created a new state law cause of action against medical device manufacturers: failure to warn the Food and Drug Administration. This new cause of action opens the door, at least in the Ninth Circuit, to claims against all medical device and drug manufacturers, and could defeat the Mensing pre-emption of failure to warn claims against generic drug manufacturers.
The Supreme Court recently issued its opinion in the closely watched case of Already, LLC v Nike, Inc. In a decision that is almost certain to affect patent owners as well, the court unanimously affirmed the Second Circuit's opinion and ended the speculation of commentators that trademark holders might no longer have the ability to dismiss an invalidity challenge by entering into a covenant not to sue.
The Alabama Supreme Court recently adopted brand-name manufacturer liability for a generic drug sold by another company, becoming the first state supreme court to do so. Although this ruling represents the minority view, it now constitutes binding precedent in Alabama - and more states may follow. Plaintiffs could potentially reap significant benefits, particularly in situations involving multiple manufacturers.