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What does 'market practice' entail? Court of Appeal rules on use of term in ISDA master agreement
RPC
  • United Kingdom
  • 22 September 2020

The Court of Appeal recently held that 'market practice' is too wide a term to be implied into an International Swaps and Derivatives Association (ISDA) master agreement covering currency trading transactions by dismissing a claim arising from the 'de-pegging' of the Swiss franc from the euro. The desire to maintain the certainty and stability of the relationship between those contracting based on the ISDA master agreement underpinned the court's decision.

Groundbreaking judgment will result in quicker refusal of Benelux trademark applications for descriptiveness
AKD
  • International
  • 22 September 2020

The Benelux Court of Justice recently assessed whether the Benelux Office for Intellectual Property (BOIP) rightly refused the Benelux trademark PET'S BUDGET for being descriptive. The central question in this case was the criterion to assess whether a sign is descriptive. The implications of the case are groundbreaking since it will likely lead to quicker findings of signs or trademarks being descriptive and more refusals at the BOIP.

CIPAA: court has no discretion to set aside adjudicator's costs order
Gan Partnership
  • Malaysia
  • 15 September 2020

The Construction Industry Payment Adjudication Act 2012 (CIPAA) was enacted to alleviate payment problems in the construction industry by allowing any payment dispute to be resolved speedily through adjudication. However, the losing party may opt to set aside or stay an adjudication decision pursuant to Sections 15 and 16 of the CIPAA. In a recent case, a dilemma arose as to whether the costs determined by the adjudicator in withdrawing adjudication proceedings could be challenged in court.

'Stale claims' on the way out?
RPC
  • Hong Kong
  • 15 September 2020

In a recent case, the High Court allowed the defendants' applications to dismiss the plaintiff's two actions on the ground of abuse of process – in particular, given that no procedural step had been taken by the parties since 1 April 2009, just before the civil procedure reforms came into effect in Hong Kong. Although each application for dismissal based on abuse of process turns on its facts, this case demonstrates that egregious delay and inaction can prove fatal.

Security for costs not ordered despite looming economic downturn caused by COVID-19
RPC
  • United Kingdom
  • 15 September 2020

Evidence of the adverse impact of the COVID-19 pandemic on the claimant's financial position was not enough to show an inability to pay adverse costs in a recent application for security for costs in the High Court. Although this decision demonstrates the court's willingness to consider the impact of the pandemic and the looming economic downturn in considering a party's financial viability for the purposes of a security for costs application, general evidence of the pandemic's economic impact will not suffice.

Section 30 of CIPAA: apex court maintains mandatory direct payment obligation against employer under receivership
Gan Partnership
  • Malaysia
  • 08 September 2020

Section 30 of the Construction Industry Payment and Adjudication Act 2012 creates a statutory obligation for a principal to make the payment awarded by an adjudication decision to a subcontractor in the event of the main contractor's failure to do so. In a recent case, an issue arose on whether direct payment could be ordered against a principal when winding-up proceedings against the main contractor were already afoot.

Stick to the process: further reminder of how useful process agent clauses can be, especially following Brexit
RPC
  • United Kingdom
  • 08 September 2020

In a recent case, a court explored whether a borrower had been validly served when the borrower had failed to comply with its contractual obligation to ensure that a process agent remained in place at all times. The court's decision shows that it will adopt a commercial approach to the interpretation of process agent clauses and, where possible, it will give effect to such clauses' primary purpose of allowing a speedy and certain means of service.

No interim injunction over bitcoin account where damages would be adequate
RPC
  • United Kingdom
  • 01 September 2020

In a recent case, the court declined to continue interim injunctions granted in respect of a 'coin depot account' holding bitcoin over which the claimants asserted a proprietary right. On this occasion, the balance of convenience in respect of continuing the injunctions did not lie with the claimants, including because damages would be an adequate remedy.

Specialised commercial courts with jurisdiction over claims against foreign defendants: the Italian approach
ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello
  • Italy
  • 01 September 2020

In recent years, an intense debate has taken place regarding the appropriateness and benefits of establishing specialised international commercial courts. This article presents the Italian (pre-Brexit) reform, which established specialised commercial courts with jurisdiction over cases brought against foreign defendants with a view to attracting foreign investments and businesses by assigning the adjudication of disputes in which they are involved to a limited number of highly specialised courts.

Court of Appeal reviews summary judgment in 'water leakage' disputes
RPC
  • Hong Kong
  • 01 September 2020

The Court of Appeal recently considered the general principles for granting summary judgment (judgment without trial) in the context of cases involving 'water leakage' between apartments above and below one another. Summary judgment is difficult to obtain in Hong Kong, save for simple debt-type actions. However, there tend to be few winners in neighbour disputes involving water leakage which are ripe for alternative dispute resolution, provided there is goodwill on both sides.

Apex court decides on validity and effects of retrospective sanction by liquidators
Gan Partnership
  • Malaysia
  • 25 August 2020

When a company is wound up by a court order, a liquidator steps in and manages the company. It is enunciated in the Malaysian company law regime that the legal standing of such company to bring or proceed with an action or proceedings is vested in the liquidator. If an action or proceeding is taken by a wound-up company, the liquidator's prior sanction must be obtained. The apex court recently handed down a landmark judgment on the validity of retrospective sanction granted by liquidators.

Privy Council rules on remoteness of damage in contract law in judgment on damages for breach of separate but related contracts
RPC
  • United Kingdom
  • 25 August 2020

Where parties have entered into separate but related contracts, a breach of one contract does not necessarily preclude the recovery of damages under another. In a recent ruling, the Privy Council summarised the law in respect of remoteness of damage for breach of contract. In principle, the purpose of damages for breach of contract is to put the party whose rights have been breached in the same position, so far as money can do so, as if their rights had been observed.

Court of Appeal re-examines master-feeder redemption procedures
  • Cayman Islands
  • 25 August 2020

The Court of Appeal recently reiterated the importance of following the natural and ordinary meaning of a fund's articles in order to ensure that redemptions are effective. This is particularly important in the context of a master-feeder fund structure. Although the decision is consistent with longstanding authority, it does highlight the importance of ensuring that the redemption procedures set out in a master fund's articles are strictly adhered to as a matter of practice.

Embassy dismisses employee: exercise of jure imperii or act of jure gestionis?
Gan Partnership
  • Malaysia
  • 18 August 2020

In a recent case, a high court faced a judicial review application filed by the United States in Malaysia. The facts leading to the application were uncommon and the court considered a novel aspect of industrial law jurisprudence in Malaysia. The high court judge's assessment of the facts in light of the sovereign immunity principle gives a fresh perspective in industrial law jurisprudence.

Supreme Court rules that monetary benefit given to employee constitutes salary and must be paid
Elias Neocleous & Co LLC
  • Cyprus
  • 18 August 2020

The Supreme Court recently overruled a first-instance decision which had acquitted the respondent and its director of charges concerning the non-payment of monthly salaries to monthly paid staff. The Supreme Court's approach appears to be a reasonable one. It illustrates the need to ensure employees' right to receive their salary and the benefits to which they are entitled on the basis of their employment agreement.

Disputes, disputed: courts' approach to competing dispute resolution clauses in successive agreements
RPC
  • United Kingdom
  • 18 August 2020

How are contradictory dispute resolution clauses resolved where the agreements are entered into at different times? Intention and purpose are key, as set out in the test in BNP Paribas v Trattamento. In a recent case, the parties intended two agreements to perform separate roles as part of one transaction (even though the second was not contemplated at the time of the first) and the court found that the Trattamento guide is to be followed.

Court allows expert witness to sign reports during trial
RPC
  • Hong Kong
  • 18 August 2020

The High Court recently allowed a defendant to rely on an expert's reports at trial, even though the expert witness had failed to verify his reports with a statement of truth or include a declaration that he agreed to be bound by the Code of Conduct for Expert Witnesses. In the normal course of events, an expert report that lacks a statement of truth or a declaration will be inadmissible.

Apex court rules that maintenance charges owed by parcel proprietors constitute unsecured debts
Gan Partnership
  • Malaysia
  • 11 August 2020

As Section 77 of the Strata Management Act provides that the amount due to a management corporation (MC) is a 'guaranteed sum', issues arise as to whether an MC is a secured creditor in the event that a parcel proprietor is insolvent and wound up. In a recent decision, the Federal Court decided that the outstanding amount due to an MC is an unsecured debt.

Utility innovation infringement and invalidation disputes
Gan Partnership
  • Malaysia
  • 04 August 2020

In general, when an individual asks "how can I protect my invention?", only one answer comes to mind: patents. While this is not wrong, most individuals are unaware of the patent's lesser-known sibling – the utility innovation. Utility innovations are commonly known as 'minor' or 'petty' patents. Much like patents, owners of a granted utility innovation have exclusive rights to exploit said utility innovation for 20 years. This article examines a recent case concerning a utility innovation.

A COVID-19 update
RPC
  • Hong Kong
  • 04 August 2020

Since the general adjourned period (GAP) ended on 3 May 2020, when the courts resumed normal business in Hong Kong, reported cases of COVID-19 infection have approximately tripled. At the time of writing, Hong Kong is experiencing a 'third wave' of infections. The next few weeks appear to be crucial in ascertaining whether the rate of infection will ease – failing which court users face the possibility of another GAP, during which the courts could close again save for urgent and essential court business.

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