Latest updates
Lowering bar for inducement test in cases of fraudulent misrepresentation
RPC- Litigation
- United Kingdom
- 13 November 2018
The test for inducement in cases of fraudulent misrepresentation is whether 'but for' the misrepresentation, the claimant 'might' have acted differently. The lower hurdle was clarified by the High Court in Nederlandse Industrie Van Eiprodukten v Rembrandt Enterprises and represents a departure from previous authorities, in which the test had been said to be whether but for the misrepresentation the claimant would have entered into the contract anyway.
Supreme Court rules on jurisdiction over protective measures
Kalliopé- Litigation
- France
- 13 November 2018
Two recent Supreme Court decisions regarding cross-border litigation have clarified that the French courts will have jurisdiction over forensic examinations ordered as protective measures by a French judge, although foreign judges will likely have jurisdiction over the substance of the matter. In light of these judgments, the French courts are likely to order forensic measures if they are closer to the facts of the dispute even if the matter will be settled by a foreign court.
Charging order over funds in court
RPC- Litigation
- Hong Kong
- 13 November 2018
The High Court recently considered whether in principle a judgment creditor is entitled to a charging order over funds paid into court by a judgment debtor in a different action involving another party. The case is an interesting review of the respective interests of the parties when funds are paid into court pursuant to a court order. It concerns the application of established principles to what appears to be a different situation, but one that may give other litigants pause for thought.
Supreme Court brings final clarity to prospectus liability
Wilson Harle- Litigation
- New Zealand
- 13 November 2018
The Supreme Court recently considered the liability of those associated with the 2004 Feltex Carpets initial public offering of shares under NZ securities legislation. The decision is a useful determination of a number of securities law liability issues in the NZ context. Among other things, it has clarified that an untrue statement for the purposes of Section 56 of the Securities Act need not be misleading to a material extent to be untrue.
Recent developments in claims-made policy debate
DLA Piper Studio Legale Tributario Associato- Insurance
- Italy
- 13 November 2018
The Supreme Court and several lower courts recently examined the validity of claims-made insurance policies under Italian law and reached different, sometimes conflicting, conclusions. In its most recent decision in this regard, the Supreme Court abandoned the fairness or worthiness test, which is undoubtedly favourable to insurers.
Supreme Court of Canada to rule on what happens to pension when pensioner disappears into thin air
Dentons- Litigation
- Canada
- 13 November 2018
The Supreme Court of Canada recently agreed to hear an appeal of a Quebec case concerning the obligations and rights of a pension plan administrator after a pensioner went missing. In their decisions, the lower courts agreed that the university had been correct to continue the monthly pension payments for the five years that the pensioner had been missing because the pensioner was presumed to be alive at the time.
To be an employee or not to be – that is once again the question
Lapointe Rosenstein Marchand Melançon LLP- Franchising
- Canada
- 13 November 2018
The issue of whether a franchisee is an employee or an independent contractor has been debated on numerous occasions and was once again raised in a recent Quebec Court of Appeal decision. In its decision, the court emphasised that when analysing whether a franchisee qualifies as an employee or an independent contractor, the courts should look beyond the terms of the agreement between the parties. While this decision may worry certain franchisors, there are a number of mitigating factors to consider.
Take care in online presentation of franchised outlets
Aramis Law Firm- Franchising
- France
- 13 November 2018
As part of the promotion of their networks, franchisors often edit websites displaying contact details and other relevant information regarding the franchise network's outlets, whether they are owned by them or operated by franchisees. In a recent decision, the Versailles Court of Appeal held that a franchisor had treated a franchisee's stores on its website unfairly compared with its own stores.
High Court of Sindh allows appeal in trademark infringement case
Vellani & Vellani- Intellectual Property
- Pakistan
- 12 November 2018
The High Court of Sindh recently allowed an appeal filed by Novartis AG against Nabiqasim Industries (Private) Limited and restrained the latter from using the trademark DESCOL on account of its similarity with Novartis's prior registered trademark LESCOL. The court's appellate bench asserted that in the case of pharmaceutical products, the public must be protected from the possibility of confusion at all times.
Prohibition denied for Ranbaxy's bupropion extended-release tablets
Smart & Biggar/Fetherstonhaugh- Intellectual Property
- Canada
- 12 November 2018
The Federal Court recently dismissed Valeant's application under the Patented Medicines (Notice of Compliance) Regulations regarding Ranbaxy's bupropion extended-release tablets. The court found that the amount of permeation enhancer in the Ranbaxy formulation was outside the scope of the range claimed. As such, Ranbaxy's allegation of non-infringement was found to be justified.
Amgen not precluded from asserting patent under current PMNOC Regulations
Smart & Biggar/Fetherstonhaugh- Intellectual Property
- Canada
- 12 November 2018
The Federal Court of Canada has refused Pfizer's motion to dismiss an action under the Patented Medicines (Notice of Compliance) (PMNOC) Regulations between Amgen and Pfizer. Pfizer sought to dismiss the action, asserting that it was redundant, scandalous, frivolous, vexatious or otherwise an abuse of process. Pfizer based its argument on a decision under the old PMNOC Regulations in which the court had found that Apotex's allegation of invalidity was justified.
#FillUp – why trademarks should be registered
KISCH IP- Intellectual Property
- South Africa
- 12 November 2018
In order to build a brand, one of the most important steps is to register a trademark. The first step is to conduct a search of the Trademarks Register to ensure that the trademark does not infringe registered rights. Provided that the results of this clearance search are favourable, the next step is to file an application for registration. However, this is not the final step, as action can be taken for trademark infringement only once the trademark has been registered.
Criminal sentence handed down for commercialisation of counterfeit FC Barcelona products
Grau & Angulo- Intellectual Property
- Spain
- 12 November 2018
The Barcelona Court of Appeal recently confirmed a trial court judgment which had sentenced the defendant for a crime against intellectual property in accordance with the Criminal Code. For more than 15 years, the infringer had commercialised various products featuring the FC Barcelona trademarks, which he acquired from an official licensee. However, in 2013 the defendant had also begun commercialising illicitly traded products alongside the genuine products.
Parliament adopts comprehensive environmental package
Schoenherr Attorneys at Law- Environment & Climate Change
- Austria
- 12 November 2018
Parliament recently adopted a new comprehensive environmental package comprising the Aarhus Participation Act, an amendment to the Environmental Impact Assessment Act and an amendment to the Federal Environmental Liability Act. With the new package, the legislature has attempted to manage the difficult act of balancing the necessary legal adaptations of administrative procedural law with EU law and creating a business environment that is nevertheless competitive.
Balancing patent protection and disclosure
Wanhuida Peksung IP Group- Intellectual Property
- China
- 12 November 2018
The Patent Law provides that a patent's claims must be based on the description, which is a key mechanism devised to balance protection and disclosure under the law. The Supreme Court has rendered a number of judgments in this regard, which – in addition to the Patent Law and the Patent Examination Guidelines – are of guiding significance for the practical application of the Patent Law.
Is President Trump changing how US foreign bribery law is enforced?
Hogan Lovells US LLP- White Collar Crime
- USA
- 12 November 2018
After the election of President Donald Trump, many observers wondered whether the US Department of Justice (DOJ) would change the way in which it enforces the Foreign Corrupt Practices Act. As the halfway point of Trump's first term in office approaches, it seems that the DOJ has not made any dramatic changes to the enforcement philosophy followed during prior administrations.
France tightens rules on state immunity
- White Collar Crime
- France
- 12 November 2018
Articles 59 and 60 of Law 2016-1691 (the Sapin II Law) on transparency, anti-corruption and the modernisation of economic life established a system of immunity from the execution of civil judgments on property in France which is owned by foreign states. The main purpose of this aspect of the Sapin II Law is to limit the risk of litigation arising from seizures or attachments of property belonging to foreign states.
Wrongdoer control: no longer just a numbers game
Bodipalar Ponnudurai De Silva- Company & Commercial
- Malaysia
- 12 November 2018
It has long been recognised that where wrongdoers control a company and thus prevent it from bringing an action, the courts will allow shareholders to do so on the company's behalf in order to obtain redress by way of a derivative action. While the courts have recognised a range of scenarios where wrongdoers can be said to control the company, can this concept of wrongdoer control apply where there is a deadlock at both the board and shareholder level obfuscating any clear majority or minority in the company?
Corporate liability for economic crimes
Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados- White Collar Crime
- Brazil
- 12 November 2018
A recent review has detailed the limited application of corporate criminal liability and the indirect legal consequences that companies may face following criminal investigations targeting individuals. Corporations may face harsh administrative and civil penalties for business crimes which only individuals can be held liable for. This is especially true where cross-border investigations result in white collar crime regulations becoming increasingly denationalised and tougher than ever before.
Surface landowners versus mining concession holder rights
Montt y Cia SA- Energy & Natural Resources
- Chile
- 12 November 2018
The relationship between surface landowners and mining concession holders in Chile is governed by law, which grants preferential rights to the latter. Mining concession holders may exercise their rights to search for minerals and impose mining easements on landowners. However, in the case of state property, such matters are regulated by a ministerial order.
