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Strategic enforcement tips for in-house counsel
  • Arbitration & ADR
  • International
  • June 21 2018

While there are cases that involve claims for declaratory relief or specific performance, disputes are most often about payment. A claimant goes into battle – spending time and money to develop strong arguments and clever case theories – only if it expects the proceedings to result in a payout. There are several strategic steps that in‑house counsel can take throughout the process to maximise their chances of securing payment.

Freezing injunction: what is a good arguable case?
Harney Westwood & Riegels
  • Private Client & Offshore Services
  • British Virgin Islands
  • June 21 2018

The BVI Commercial Court has provided helpful guidance as to the threshold for a good arguable case, dismissing an application to discharge a worldwide freezing injunction obtained by a claimant. The court held that where there is a good arguable case that a defendant has acted fraudulently or dishonestly, or with "unacceptable low standards of morality giving rise to a feeling of uneasiness about the defendant", further evidence is often unnecessary to justify a freezing injunction.

Recent competition developments in merger control field
Schoenherr Attorneys at Law
  • Competition & Antitrust
  • Poland
  • June 21 2018

Merger control is one of the Polish Office for Competition and Consumer Protection's main areas of activity, as it deals with 170 to 220 filings annually. Recent notable developments in this regard include proceedings initiated against Gazprom and its five partners involved in the financing and construction of the Nord Stream 2 gas pipeline and the unconditional approval of Cyfrowy Polsat's takeover of Netia.

Supreme Court decides that assignee is bound by arbitration agreement
Kubas Kos Gałkowski
  • Arbitration & ADR
  • Poland
  • June 21 2018

The assignment of rights and obligations stemming from an agreement forms part of everyday business. This issue can become complicated if a transferred claim is covered by an arbitration agreement. A recent Supreme Court decision shows that in such a case, the assignee and the debtor must resolve their disputes through arbitration. This decision confirms the arbitration-friendly approach of the Polish courts, especially regarding the validity and scope of arbitration agreements.

Procedural changes in labour cases
Gün + Partners
  • Employment & Benefits
  • Turkey
  • June 20 2018

The Labour Courts Act has introduced a number of changes and amended the appeal procedure for labour disputes. The legislature hopes to shorten the duration of actions which, by their nature, should be resolved as quickly as possible. Although it is still questionable whether these amendments will produce the anticipated returns in terms of reaching the desired duration for trial processes, they mark an important attempt to limit the two-phase appeal stage for certain cases.

More than 2 million Australians set for 3.5% wage increase – 2017-2018 Annual Wage Review
Lander & Rogers
  • Employment & Benefits
  • Australia
  • June 20 2018

The Fair Work Commission's Expert Panel recently issued its 2017-2018 Annual Wage Review decision. Among other things, the panel decided that it was appropriate to adjust modern award minimum wages. From the first full pay period on or after 1 July 2018, minimum weekly wages will increase by 3.5%, with commensurate increases in hourly rates on the basis of a 38-hour week.

Release of information contained in drug submissions and medical device applications
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • June 20 2018

In December 2017 Heath Canada released proposed amendments to the Food and Drug Regulations and the Medical Devices Regulations, providing for the public release of clinical information contained in drug submissions and medical device applications. Health Canada recently published a draft guidance document addressing the implementation of the proposed amended regulations.

National Commercial Court decision sets favourable precedent for Argentine aviation industry
Freidenberg Freidenberg & Lifsic
  • Aviation
  • Argentina
  • June 20 2018

A recent National Commercial Court decision has set a favourable precedent for the aviation industry in Argentina. The court ordered the application of international conventions rather than local law and federal jurisdiction instead of commercial national jurisdiction. This application of international conventions by the Argentine courts is important, as it establishes the limited liability that is generally overlooked by domestic legislation.

First CSPs issued and application fee increased
Smart & Biggar/Fetherstonhaugh
  • Healthcare & Life Sciences
  • Canada
  • June 20 2018

Health Canada recently issued the first certificates of supplementary protection (CSPs) against three approvals. In addition, on 1 April 2018 the CSP application fee was increased to C$9,192.

New bill on social elections: making certain processes paperless
Castegnaro
  • Employment & Benefits
  • Luxembourg
  • June 20 2018

A new bill that was recently submitted to the Chamber of Deputies aims to modify several articles of the Labour Code which concern social elections in order to make certain administrative processes paperless within the context of social dialogue. According to the bill, making certain processes paperless will result in a clear simplification of administrative tasks for managing directors and the Inspectorate of Labour and Mines.

NCC invites public comments on 5G spectrum planning
Shay & Partners
  • Telecoms
  • Taiwan
  • June 20 2018

The National Communications Commission (NCC) has initiated a public consultation on 5G spectrum planning and auction preparation. Industry stakeholders and interested parties are invited to give comments in written form by 29 June 2018. NCC Chair Nicole Chan stated that the commission will be submitting its final analysis of the public consultation to the Executive Yuan in July 2018. The premier will then issue a further decision on 5G spectrum.

Bill 148: new risks for misclassifying independent contractors as employees
Fasken
  • Employment & Benefits
  • Canada
  • June 20 2018

The Ontario government is increasing the risks and penalties for employers that misclassify workers as independent contractors as part of the Fair Workplaces, Better Jobs Act. The burden is now on employers to prove that workers are not employees under the Employment Standards Act. This change of presumption will make it even more difficult for employers to defend claims filed by individuals challenging their status as an independent contractor in favour of being classified as an employee.

Is a bunker delivery note a binding contract under Maltese law?
Fenech & Fenech Advocates
  • Shipping & Transport
  • Malta
  • June 20 2018

Following the collapse of OW Bunkers, physical bunker suppliers worldwide have had to rethink their business model with respect to the potential debt exposures that they face when conducting business through bunker traders. The matter is further complicated due to the fact that in many cases, there is not just one bunker trader involved, but rather a series of intermediaries, brokers and intermediary traders.

Verification fax found to be advertising
Manatt Phelps & Phillips LLP
  • Telecoms
  • USA
  • June 20 2018

An Illinois federal court recently declared that a fax sent to verify the contact information of recipients constituted an 'advertisement' within the meaning of the Telephone Consumer Protection Act because it had declared the commercial availability of the defendant's services on its face. As an alternative holding, the court found that the fax served as a pretext to an advertisement as it had required the plaintiff to access a website advertising the defendant's services in order to stop such faxes.

Employment liability cannot be avoided by hiring staff through affiliates or related entities
Porzio Rios Garcia
  • Employment & Benefits
  • Chile
  • June 20 2018

When structuring their businesses, companies must keep in mind that employment liability cannot be avoided by hiring personnel through their company affiliates or related entities. Fines may apply if the existence of multiple companies under a common employment management is found to be a scheme to avoid compliance with employment rights (eg, allocating profits in one company but hiring employees in another).

Court clarifies impact of 'business rescue' regime on admiralty matters
Bowmans
  • Shipping & Transport
  • South Africa
  • June 20 2018

The promulgation of the Companies Act 2008 saw the introduction of a company rehabilitation process termed 'business rescue'. As in many other jurisdictions, a company under business rescue enjoys a temporary moratorium on the prosecution of claims with a view to allowing the distressed company breathing space to reverse its financial difficulties and avoid full-scale liquidation. Against this background, admiralty matters have enjoyed special treatment in the context of claims against insolvent companies.

Electronic exchange of patient data: consent in view of Supreme Court decision, GDPR and future regulations
AKD NV
  • Healthcare & Life Sciences
  • Netherlands
  • June 20 2018

In 2011 the Senate rejected the legislative proposal to establish a mandatory electronic patient record. Subsequently, various national professional associations recommenced the initiative in a different (optional) form, using the already developed nationwide infrastructure for the electronic exchange of personal medical data. The Association of General Practitioners petitioned the courts to prohibit the new initiative. However, the Supreme Court recently allowed it on the basis of present legislation.

First Conduct Rule breaches: not just anti-competitive, but illegal
Howse Williams Bowers
  • Employment & Benefits
  • Hong Kong
  • June 20 2018

The Competition Commission recently issued an advisory bulletin on the potential risks that could arise under the Competition Ordinance (Cap 619) in the employment context. The commission identified a number of practices between employers which are at risk of contravening the First Conduct Rule of the ordinance – specifically, wage-fixing and non-poaching agreements and the exchange of sensitive information.

Changes to registration requirements: why aircraft financiers should be on alert
Basch & Rameh
  • Aviation
  • Brazil
  • June 20 2018

A tax regulation that was promulgated in 2016 has taken effect in ways that are now affecting aircraft lessors and lenders to Brazilian carriers, including by imposing requirements concerning the identification of lessor entities' ultimate beneficial owners and increasing the document disclosure requirements on lessors and lenders in cross-border aircraft finance transactions. While the full impact of the new rules is still unclear, lessors and lenders to Brazilian operators should prepare to comply.

Avoiding evasion: court takes pragmatic approach to serving uncooperative defendants abroad
  • Litigation
  • British Virgin Islands
  • June 19 2018

International litigation and asset recovery require the pursuit of defendants and their assets across borders; therefore, it is a routine aspect of BVI litigation for claimants to serve legal documents abroad. Two recent decisions should significantly decrease the delay in effecting service abroad and pave the way for a more efficient approach to service out in the future.

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