Latest updates

Court considers claim to money in court once injunction discharged
RPC
  • Hong Kong
  • 26 January 2021

The High Court recently allowed a defendant's application for the release to him of a sum of money paid into court by the plaintiffs in order to fortify an asset freezing injunction that the plaintiffs had obtained against (among others) the defendant. The case reviews some interesting legal issues with regard to Quistclose trust claims in the context of payments into court. It also draws attention to the status of money paid into court for the purpose of fortifying an undertaking as to damages once that purpose becomes spent.

Who has the right to sue a consultant?
Gan Partnership
  • Malaysia
  • 26 January 2021

As cashflow is crucial for main contractors in any ongoing construction project, prompt and expeditious payments by the employer are often expected. However, if the main contractor is dissatisfied with the payment certificate, can the main contractor sue the consultant for negligence? The Court of Appeal recently addressed this question and unanimously upheld a high court decision in dismissing a main contractor's claim against a consultant.

When is an error a serious irregularity? Court demonstrates approach to correcting arbitration awards
RPC
  • United Kingdom
  • 26 January 2021

The High Court recently found that a tribunal's admission of a simple computational error, and its refusal to correct it, was a serious irregularity that caused substantial injustice. Based on this, the court remitted an arbitration award back to the tribunal for correction. This is an interesting case; it is rare for Section 68 challenges to be successful and even rarer for an English court judge to find that there has been a serious irregularity that caused or would cause substantial injustice in such a straightforward manner.

Oppression versus derivative actions: courts' wide discretion maintained
Gan Partnership
  • Malaysia
  • 19 January 2021

The Federal Court recently refused leave to appeal a Court of Appeal decision which had found that the courts' powers in an oppression action are broad and unfettered. This includes the power to order restitution to a company, a remedy traditionally seen as belonging to companies. The broad language used in the oppression provision is crucial in providing the courts with the necessary discretion to formulate remedies which are appropriate and just in the circumstances of a particular case.

Theft of luxury watches from storage raises questions over carrier liability
AKD
  • Netherlands
  • 19 January 2021

An armed robbery at a warehouse provided the basis for an unfortunate – but legally interesting – recent case in the Amsterdam Court of Appeal. The case raised the question of whether the carrier could be held liable for the loss of the goods and, if so, whether it could invoke the limitations of liability applicable to carriers. In this regard, the court also examined whether storage formed an independent part of the contract or whether it was absorbed into carriage.

Snapshot: getting your foreign judgment recognised and enforced
Ogier
  • Cayman Islands
  • 19 January 2021

Ensuring the effective enforcement of judgments is a crucial aspect of a successful litigation strategy. The Cayman Islands recognises that valid decisions made elsewhere should be as enforceable as domestic judgments. While the statutory regime for registration and enforcement has been extended to only some of the superior courts of Australia and its external territories, the Cayman courts are willing to consider extending assistance to all judgment creditors through the well-trodden common law route.

Not just a rubber stamp: principles for liquidators to get decisions blessed by Royal Court
Ogier
  • Guernsey
  • 19 January 2021

The Royal Court recently brought an end to an important chapter in a long-running dispute regarding control of the exploration and exploitation of the oil and gas reserves of Georgia. This judgment makes it clear that liquidators can approach the court to approve a significant decision that they have taken to enter into a transaction and that such decision is akin to a Public Trustee v Cooper blessing of a momentous decision in a trusts context.

Section 368 of Companies Act: apex court rules ex parte application for restraining proceedings is valid
Gan Partnership
  • Malaysia
  • 12 January 2021

A recent Federal Court decision regarding applications made by a company or its creditors under Section 368 of the Companies Act 2016 to restrain proceedings against the company under a proposed scheme of arrangement appears to be a welcomed decision. Clarity is now proffered on the procedure to be adopted when making such applications. Nevertheless, there may yet still be room for further judicial interpretation on applications concerning a scheme of arrangement.

Phase 3 of court guidance for remote hearings for civil business
RPC
  • Hong Kong
  • 12 January 2021

A third guidance note on the use of remote hearings for civil proceedings took effect on 2 January 2021. The guidance note (representing Phase 3) provides for wider use of videoconferencing facilities and telephone hearings with respect to all levels of civil courts in Hong Kong. In particular, Phase 3 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.

How to catch evidence in Dutch civil procedures without fishing expeditions
AKD
  • Netherlands
  • 12 January 2021

In the Netherlands the general discovery trial is an unknown phenomenon. However, certain documents may be obtained pursuant to Article 843a of the Code of Civil Procedure. If all of the relevant requirements are met and no restrictive grounds apply, the court will allow the claim for disclosure of a copy, extract or inspection of the requested documents. This article outlines how this procedure works.

QR served
RPC
  • Hong Kong
  • 22 December 2020

The High Court recently approved a novel order providing for service of various court documents on unnamed defendants by allowing the plaintiff to effect service by (among other means) using a quick response code. The proceedings arose out of protests at the airport in 2019 and, given the background to the case and the high-profile nature of the proceedings, the court was satisfied that service of the court documents should reasonably be expected to come to the attention of the defendants.

De facto doctrine applies to defective judicial appointments and preserves judicial decisions
Gan Partnership
  • Malaysia
  • 22 December 2020

Pursuant to Rule 137 of the Rules of the Federal Court 1995, seven motions were filed in the apex court, requesting it to invoke its inherent power to review its decisions delivered in seven separate lawsuits. Interestingly, a common question arose from these motions premised on coram failure and further questions that were peculiar to the circumstances of each case. While the apex court dismissed all of the motions, its unanimous decision on coram failure is significant for ongoing and future cases.

Third-party litigation funding agreements
ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello
  • Italy
  • 22 December 2020

Third-party litigation funding is essentially unknown under Italian law. For instance, Italian contract law does not regulate litigation funding agreements and there is little case law on the matter. However, Italian law includes no mandatory rules or public policy principles that expressly preclude third-party funding. Therefore, it is likely to become an increasingly attractive litigation feature under Italian law, especially considering the national provisions governing the allocation of litigation costs.

Case settlement conferences given a 'festive' touch
RPC
  • Hong Kong
  • 22 December 2020

The judiciary administration has updated the Guidance Note for Case Settlement Conferences in Civil Cases in the District Court. The guidance note extends a pilot scheme for facilitating settlement in general civil cases in the District Court and comes into effect on 2 January 2021. The updated version appears to address concerns relating to potential encroachments on parties' rights to legal representation and the protection afforded to the confidentiality of mediation and without prejudice communications.

Beware: High Court refuses permission to rely on new witness statement prepared part way through trial
RPC
  • United Kingdom
  • 22 December 2020

The High Court of England and Wales recently refused a claimant permission to rely on a witness statement of one its in-house lawyers, prepared during an ongoing trial, and call that witness to give oral evidence during the trial. The new witness's evidence produced during trial could not be relied on due to its inherent unreliability and the risk that it would be tailored to the state of the party's current case. Parties should always consider what evidence is required to support their case at an early stage.

Clarification of rules on fast-track appeal proceedings
Kalliopé
  • France
  • 22 December 2020

The Code of Civil Procedure provides for fast-track proceedings before the courts of appeal in certain cases. In such cases, the appellant must notify their declaration of appeal and file their submission within specific timeframes, failing which the declaration of appeal will be declared void. The Court of Cassation recently specified the rules which apply where an appellant notifies their declaration of appeal and submission before receiving the notice of hearing.

Parties can now request an extension to object to expert reports
Gün + Partners
  • Turkey
  • 22 December 2020

Law 7251 on the Amendment of the Civil Procedure Code and Certain Laws (Amendment Law) recently entered into force. One of the significant amendments introduced by the Amendment Law concerns Article 281 of the Civil Procedure Code (CPC) 6100, which regulates parties' objections to expert reports. With this amendment, parties can now request an extension from the court to file their objections against expert reports under certain circumstances.

Court rules former director of AIAC's directorship is non-justiciable
Gan Partnership
  • Malaysia
  • 15 December 2020

The Kuala Lumpur High Court recently struck out two originating summonses against the former director of the Asian International Arbitration Centre (AIAC). The court's ruling included that the appointment of the director of the AIAC was not justiciable. It is hoped that this decision will provide valuable case law and put similar challenges to rest, as such challenges are not only vexatious but also a waste of judicial time and resources.

Late service of evidence requires relief from sanctions
RPC
  • United Kingdom
  • 15 December 2020

The High Court recently determined that an application to admit witness evidence outside the directions timetable should be treated like an application for relief from sanctions under Civil Procedure Rule 3.9. The decision suggests that the court may imply a sanction for policy reasons, even where there was no intention on the part of the rulemaker or judge to impose a sanction for a breach.

Shareholder dispute: court cancels capital increase due to breach of preferential subscription right
Luther SA
  • Luxembourg
  • 15 December 2020

In a notable decision, the Luxembourg District Court cancelled a company's capital increase on the grounds of a breach of the preferential subscription right of one of its shareholders. The decision gives interesting insight into the convening process for shareholders' meetings, the legal qualification of a debt contribution and its consequences, the outcome of a breach of a preferential subscription right and the prescription period applicable to the cancellation of shareholder decisions.

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