Latest updates

Declaration of Economic Freedom – impact on new and existing litigation
TozziniFreire Advogados
  • Brazil
  • 21 May 2019

The Declaration of Economic Freedom was recently instituted by Presidential Provisional Measure 881/2019. Designed to curtail the state's undue interference in economic activities performed by individuals and companies, the law (which is subject to confirmation by Congress) is also expected to affect new and existing litigation, including the Civil Code. On its face, the Civil Code modification seems positive. However, it is unclear how the courts will react to these novelties.

The gagging order and Norwich Pharmacal two step
RPC
  • Hong Kong
  • 21 May 2019

The Norwich Pharmacal order is an important tool for combating fraud. Given the prevalence of electronic and identity fraud, the ability of victims to recover lost money through the civil courts has assumed a high profile of late. For plaintiffs who fall prey to such fraudsters, the ability to obtain a court order prohibiting a defendant from disposing of (among other things) money in a bank account (ie, a Mareva injunction) and to obtain timely disclosure of details of alleged wrongdoing from a defendant's bank (eg, Norwich Pharmacal relief) is often crucial.

Disclosure pilot scheme under spotlight: application and privilege
RPC
  • United Kingdom
  • 21 May 2019

The chancellor of the High Court recently clarified to which cases the disclosure pilot scheme applies. He also provided useful guidance on the extent to which the court should exercise its discretion to inspect allegedly privileged documents under the new regime and emphasised the change in behaviour and culture envisaged under the pilot.

Court of Appeal specifies consequences of rescinding contracts
Luther SA
  • Luxembourg
  • 21 May 2019

The buyer of an apartment signed a long-term lease and agreed to live in the apartment for at least 12 years. However, in contravention of this commitment, the buyer moved out and rented the property to a tenant. The seller sued the buyer, seeking to have the contract rescinded. In its decision, the Court of Appeal ruled that the contract had been divided into a contract of sale and a lease contract, and that the retroactive rescission principle would have a different effect on each of these.

Jurisdictional challenges to arbitral awards: raise them before they're gone
Dentons
  • Canada
  • 21 May 2019

The Ontario Superior Court of Justice recently provided a comprehensive judicial review of a jurisdictional challenge to an arbitral award. This decision will be of interest not only to car manufacturers, but also to most parties subject to an arbitration agreement. However, the broader takeaway from this case is that non-compliance with the Arbitration Act is not a ground for review. Therefore, jurisdictional challenges must be brought at the beginning of hearings.

Novel approach to measuring damages resulting from a breach of warranty
RPC
  • United Kingdom
  • 14 May 2019

The accepted approach of diminution in the value of a target company was recently challenged in the High Court of Justice. The case concerned the purchase of shares in a bank that had a $14.5 million exposure to Lehman Brothers' bankruptcy. The purchaser sued the seller for damages in that sum, alleging that its failure to provide for the Lehman exposure in the accounts amounted to a breach of warranty.

New law protects tenants during eviction procedures
Pérez-Llorca
  • Spain
  • 14 May 2019

The Law on Urgent Measures Relating to Housing and Rental Matters recently entered into force, providing greater protection to tenants. The law has primarily amended the Civil Procedure Act, specifying that matters relating to leases where the claim can be quantified will be excluded from the scope of ordinary proceedings, and that summary proceedings can be initiated for certain amounts in accordance with the corresponding procedural rules.

Attorney general's discretion is not unfettered
Gan Partnership
  • Malaysia
  • 14 May 2019

The attorney general is a public officer who has been given ample discretionary power under Article 145 of the Federal Constitution to institute, conduct or discontinue any criminal proceedings. The question is, where a public officer's decision is subject to judicial review, does this equally apply to the attorney general?

Summary judgment applications: analysing Weir-Jones and its application in BF
Dentons
  • Canada
  • 14 May 2019

The Alberta Court of Appeal recently clarified the test for summary judgment applications. The court noted the rift that has emerged in case law while discussing the standard of proof that is required in a summary judgment application. In particular, it held that the reliance on the conventional trial no longer reflects modern reality and must be readjusted in favour of more proportionate, timely and affordable procedures.

Settlement, costs and persons under disability
RPC
  • Hong Kong
  • 07 May 2019

The High Court recently handed down a practice note relating to the practice of making settlement offers or payments into court in cases involving claims on behalf of persons under a disability. The practice note confirms the previously understood position that the self-contained procedural regime for formal sanctioned offers and sanctioned payments in Order 22 of the court rules does not apply to claims for money arising out of proceedings on behalf of persons under a disability.

Court dismisses statutory misrepresentation claim against credit union board in landmark decision
Dentons
  • Canada
  • 07 May 2019

For the first time, the Ontario Superior Court of Justice has released a decision that considers issues of statutory misrepresentation in an offering statement under the Credit Unions and Caisses Populaires Act 1994. Given the limited jurisprudence in this area, this landmark decision is expected to provide valuable guidance to boards and insurers on risk prevention.

High Court seeks to clarify whether speculative investment by a private individual is a business or consumer activity
RPC
  • United Kingdom
  • 07 May 2019

The High Court recently dismissed a jurisdiction challenge against a private individual making speculative currency transactions on the basis that she could be considered a consumer under the recast EU Brussels Regulation. This judgment demonstrates that the question of whether a private investor is a consumer for the purposes of regulation remains unclear and will often turn on the facts. With a lack of clarity in the case law, it also demonstrates the need for the issue to be considered at a higher level.

Brazil adheres to Hague Service Convention
TozziniFreire Advogados
  • Brazil
  • 30 April 2019

Serving companies and individuals in Brazil in connection with suits abroad has just become easier, as Brazil has formally adhered to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. The convention should expedite both the summons of Brazilian parties involved in foreign proceedings and the service of parties abroad in connection with Brazilian litigation.

Can a driver be responsible for the death of a passenger with heart problems?
Elias Neocleous & Co LLC
  • Cyprus
  • 30 April 2019

The Supreme Court recently examined the issue of causality arising from a road traffic accident. The first-instance court had found the defendant guilty of causing death by want of precaution or carelessness and of driving a motor vehicle under the influence of fatigue. The Supreme Court rejected the subsequent appeal and confirmed that, despite having taken a simplistic approach, the first-instance court had reached the correct conclusion by applying common sense and experience.

Not all alterations of architectural works result in infringements of moral rights
AKD The Netherlands
  • Netherlands
  • 30 April 2019

The Supreme Court recently issued a long-awaited decision on an architect's moral rights of paternity and integrity. In recent years, several Dutch judgments have considered whether architects can oppose changes to their original building designs. The Supreme Court's decision further clarifies that it is difficult for architects to do so where the changes are necessary to alter a building's function.

Court of appeal refuses to reinstate jail sentence… this time
Dentons
  • Canada
  • 30 April 2019

The Ontario Court of Appeal recently provided clarity on the sentencing principles in Occupational Health and Safety Act cases. The court clarified that just because jail terms are rare does not mean that they should not be imposed. In its decision, the court discussed the principles of sentencing for regulatory offences at length and recognised the primacy of fines over incarceration in sentencing (ie, in most cases, fines will be more appropriate than jail time).

No exceptions to exclusionary rule: Court of Appeal confirms established principle
RPC
  • United Kingdom
  • 30 April 2019

The Court of Appeal recently reiterated that, while evidence of pre-contractual negotiations can be adduced to demonstrate how a transaction came about or what its commercial aims were, it cannot be adduced to aid the interpretation of the contractual provisions themselves. The case also confirms that the English courts continue to take a doctrinal approach to contractual interpretation.

Legislature introduces possibility to claim mass damages in collective action proceedings
AKD The Netherlands
  • Netherlands
  • 23 April 2019

The Senate recently adopted the Bill on Redress of Mass Damages in Collective Actions (RMDCA). The RMDCA enables representative entities to claim monetary compensation on behalf of their constituents, which provides aggrieved parties with more effective means of redress. The RMDCA also introduces stricter requirements regarding the admissibility of representative entities and the scope of collective action proceedings, along with other procedural changes.

Courts confirm basis for indemnity costs
RPC
  • Hong Kong
  • 23 April 2019

A couple of recent first-instance decisions demonstrate the courts' wide discretion to award costs between parties based on a higher rate of recovery (referred to as an 'indemnity basis'). Such costs are not literally an indemnity – the receiving party does not recover all of their costs from the paying party. While indemnity costs are not the norm, many parties and their legal representatives often seek such costs without sufficient regard to whether this is actually justified.

Time may not be of the essence when considering specific performance
Dentons
  • Canada
  • 23 April 2019

The Ontario Superior Court of Justice recently outlined when specific performance will be available in a real estate transaction. This decision is a stark reminder of the pitfalls of acting both in bad faith and without diligence in respect of such a transaction. It is also a reminder that a party to an agreement of purchase and sale cannot insist that time is of the essence if (among other things) it breaches the agreement and does not act in good faith.

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