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Litigation

29 September 2020
Jeremy Snead Cayman injunctions in aid of foreign proceedings

Cayman Islands - Ogier

Where a potential judgment debtor in onshore proceedings threatens to dissipate its assets, the plaintiff may face a pyrrhic victory with no assets against which to enforce its judgment. Where the defendant is a Cayman company or has assets in the Cayman Islands, the Cayman court has statutory jurisdiction to grant a freezing injunction in aid of those foreign proceedings, which can extend to the worldwide assets of the defendant.

Authors: Jeremy Snead, Marc Kish, Victoria King
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Nicolas Contis Members of independent administrative authorities can be recused under principle of impartiality

France - Kalliopé

In a June 2020 decision, the first civil chamber of the Supreme Court recognised the admissibility of a petition for a risk of lack of impartiality against a member of an independent administrative authority – namely, the president of the French Polynesian Competition Authority. By way of this decision, the Supreme Court confirmed its earlier decision that an independent administrative authority with the power to impose penalties must comply with Article 6(1) of the European Convention on Human Rights.

Authors: Nicolas Contis, Camille Doguet
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Simon Davies Guernsey injunctions in aid of foreign proceedings

Guernsey - Ogier

Where a potential judgment debtor in onshore proceedings threatens to dissipate its assets, the plaintiff may face a pyrrhic victory with no assets against which to enforce its judgment. Where the defendant is a Guernsey company or has assets in Guernsey, the Royal Court has statutory jurisdiction to grant an injunction in aid of those foreign proceedings, including freezing injunctions to prevent defendants dealing with the relevant assets in Guernsey.

Authors: Simon Davies, Sandie Lyne, Kellie Sherwill
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Charles Allen Court highlights judicial oath in dismissing recusal application

Hong Kong - RPC

In a recent case, a High Court judge dismissed the defendants' application that she recuse herself from a substantive hearing in contempt proceedings. The application was based on what the defendants submitted was a reasonable apprehension of bias ('apparent bias') – in particular, they claimed that in an earlier decision involving the same parties, the judge had prejudged a question of fact that was crucial in the contempt proceedings.

Author: Charles Allen
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Haco van der Houven van Oordt London arbitral award not enforced in Netherlands

Netherlands - AKD

Charterparties commonly contain an arbitration clause. One of the perceived advantages of arbitration over litigation is the worldwide recognition and enforceability of arbitral awards on the basis of the New York Convention. However, a recent ruling by the Supreme Court should serve as a warning to those considering inserting an arbitration clause in their contracts with a view to seeking subsequent enforcement in the Netherlands.

Author: Haco van der Houven van Oordt
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Guy Tompkins Court of Appeal confirms right to cancel insurance contract for fraudulent claims

New Zealand - Wilson Harle

A recent Court of Appeal decision highlights the consequences which flow from an insured providing dishonest information in support of an insurance claim. It is the first appellate-level consideration of the fraudulent claims rule in New Zealand and confirms both that the duty of utmost good faith is an implied contractual term and that the legislative framework in the Contract and Commercial Law Act 2017 governs remedies for breach.

Author: Guy Tompkins
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Harriet Evans Quincecare duty bowls out HSBC

United Kingdom - RPC

The High Court has held that banks may be liable for breaches of the Quincecare duty even where the customer's net assets have not been reduced by the breach. This judgment provides a useful review of the application of the duty and introduces the interesting suggestion that damages may be assessed differently where an individual or company is "hopelessly and irredeemably insolvent". This may give liquidators an additional avenue to pursue lost monies beyond the realm of Quincecare claims.

Authors: Harriet Evans, Davina Given
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Recent updates

Jurriaan Dane Groundbreaking judgment will result in quicker refusal of Benelux trademark applications for descriptiveness

International - AKD NV

Authors: Jurriaan Dane, Bram Woltering
Simon Hart What does 'market practice' entail? Court of Appeal rules on use of term in ISDA master agreement

United Kingdom - RPC

Authors: Simon Hart, Matthew Evans
Adalia Chan 'Stale claims' on the way out?

Hong Kong - RPC

Authors: Adalia Chan, Antony Sassi
Min Lee Tan CIPAA: court has no discretion to set aside adjudicator's costs order

Malaysia - Gan Partnership

Authors: Min Lee Tan, Hui Juan Lee
Marco Torsello Specialised commercial courts with jurisdiction over claims against foreign defendants: the Italian approach

Italy - ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello

Authors: Marco Torsello, Caterina Coroneo
Bram Woltering Use of customs information in relation to parallel imports

Netherlands - AKD

Author: Bram Woltering

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