The Supreme Court recently ruled that even settled case law can change. The law prevents the retroactive application only of statutory laws, not court decisions. Therefore, changes in case law also apply retroactively, as there is no ban on the retroactive application of legal knowledge by the courts. The interest in maintaining 'correct' case law overrides earlier protections afforded to those applying the law; thus, it is paramount to be prepared for changes in case law.
Article 23(1) of the EU Brussels I Regulation sets out minimum requirements for contractual agreements. In particular, the requirements seek to ensure that agreements conferring jurisdiction do not become part of the contract without the knowledge of all of the parties. In a recent case involving the international chemicals industry, the Supreme Court had to consider whether the formal requirements in Article 23(1) had been met.
The Supreme Court recently ruled in a case in which a loan was granted without collateral and obviously served to finance the acquisition of the target's shares. Considering that this withdrew considerable funds from the company, putting creditors at risk without any operational justification, the Supreme Court held that this could not be reconciled with the diligence expected from a reasonable manager.
Under Article XLII of the Code of Civil Procedure, any party that has a substantive claim for information against another party (which it is suing for performance) has a claim for the disclosure of accounts to mitigate serious problems with quantifying the substantive claim if the accounts could help the claimant and if the respondent can be reasonably expected to provide them.
The Supreme Court recently held that jurisdiction for tort cases under Article 7(2) of the Brussels I Regulation must be interpreted only under the regulation. According to the regulation, torts are illegal acts that ultimately require the defendant to pay damages and are not connected to a contract within the meaning of Article 7(1) of the regulation. According to the court, this jurisdiction includes both the place of the original act and the place where the loss occurred or is about to occur.
The Supreme Court recently assessed the protection afforded to trustees by virtue of Section 83 of the Trustee Act 1998, which provides that a trustee cannot be bound or compelled by way of discovery to disclose information and documents about a trust. In Dawson-Damer, a trustee had used Section 83(8) as a basis to refuse a disclosure request. The applicant's case was built primarily on the allegation of a breach of duty (ie, the trustee had failed to consider the applicant's needs).
Even though Brazil is a civil law country, the New Civil Procedure Code of 2015 has brought elements of common law jurisdictions to the Brazilian courts. Certain precedents rendered by the Supreme Court and the Superior Court of Justice – the country's highest courts for constitutional and federal law issues, respectively – are now binding on the lower courts.
The BVI Court of Appeal recently considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time in 2018 that the court has addressed this issue. While the threshold for intervention is high, the court will intervene on appropriate occasions. The thoroughness of the evaluation of evidence and the credibility of the judge's conclusions at first instance are likely to be pivotal to that determination.
The BVI courts have again stepped in to ensure that proper thought and process is applied to requests made by foreign governmental bodies. In the first case of its kind to successfully challenge the exercise of the attorney general's powers under the Criminal Justice (International Cooperation) Act, the BVI High Court held that the attorney general is required to do more than rubber stamp the requests received under the act.
In a recent case, the BVI Court of Appeal addressed standing in the context of applications under Section 273 of the Insolvency Act 2003, whereby an aggrieved person can ask the courts to reverse or vary a liquidator's decision. The court held that, as a shareholder of a company in liquidation, the appellant was an outsider to the liquidation who had no legitimate interest that entitled him to standing under Section 273.
In Fairfield Sentry Limited (In Liquidation) v Farnum Place LLC the BVI Court of Appeal varied a costs order based on a material change of circumstances – namely, a decision of the US Court of Appeals for the Second Circuit. The BVI court held that the US decision was a "material change of circumstances" which allowed it to vary the costs order by disallowing the costs of Farnum's expert.
The Singapore Court of Appeal recently ruled to reinstate and expand a Mareva injunction against fraudster defendants in a conspiracy claim, providing strong support for an earlier decision of the BVI Commercial Court in related proceedings. The decision demonstrates the importance of consistency between courts in multiple jurisdictions in complex cross-border cases.
The recent growth and sophistication of modern fraud and cybersecurity attacks have necessitated adaptable countermeasures by for-profit and non-profit organisations. Of these countermeasures, the emergence of niche cybercrime and fraud insurance (eg, cyber liability insurance) has given credence to the ethos that cybersecurity breaches are not a matter of if but when. A recent case considered the limits of a funds transfer fraud policy and highlights the importance of reading insurance policies carefully.
A recent Court of Queen's Bench of Alberta decision provides clarity amidst the conflicting jurisprudential landscape regarding whether the assessment of damages for a termination without cause is appropriate for summary judgment. The court supported a master's finding that an assessment of damages for pay in lieu of reasonable notice for wrongful dismissal is inappropriate for summary judgment.
A recent case examined the apportionment of liability for damages between multiple defendants where at least one of them is statutorily immune from liability. The court considered whether an employer can be held vicariously liable for damages caused by its employee's negligence when the injured party, the employee and the employer are subject to the Workers' Compensation Act.
The Alberta Court of Appeal recently ruled on the tendering of a contract that will be of interest to owners and contractors alike. The court upheld an owner's right to rely on privilege and discretion clauses and a description of the relevant evaluation criteria in the tender documents, as well as its right to take a nuanced view of the costs to choose the contractor that it considered best suited to the project.
For many junior resource company executives, deciding whether to engage investment finders can be like considering whether to breathe air. Such companies tend to have early-stage projects that do not warrant debt financing and therefore need equity injections, but lack the profile needed to attract traditional investment dealers. However, working with finders entails navigating the 'exempt' market, which can be hazardous to the ill-informed.