Latest updates

Rusnano Capital AG decision
Ogier
  • Guernsey
  • 31 March 2020

In a recent case, the Guernsey Court of Appeal upheld the deputy bailiff's interpretation of Section 53(3) of the Trusts (Guernsey) Law 2007 that a sole beneficiary can use that section of the law to terminate a discretionary trust even if the trust instrument contains a power to add further beneficiaries.

Burden of proof remains with shipowner in proving terminal operator liability
AKD
  • Netherlands
  • 31 March 2020

The loading and unloading of cargo from ships is a key element in the transport chain. However, ships are sometimes damaged during these operations. This raises the question of whether – and on what grounds – a terminal operator can be successfully held liable for such damage. A recent Rotterdam District Court decision upheld the standard of liability established in Dutch case law, confirming that the burden of proof lies with the shipowner when it comes to demonstrating terminal operator liability.

COVID-19 and the courts: a headlong journey into remoteness
RPC
  • United Kingdom
  • 31 March 2020

The English civil justice system has shown itself to be capable of rapid change as it adapts to the new reality caused by COVID-19. The clarion call from the English courts is that they are open for business, driven by the need to maintain the access to justice which is vital for the functioning of civil society. However, this will not be an easy task and it would be naive to think that there will not be teething problems during the move into a new era of conducting litigation in new ways.

Litigation in the time of coronavirus (brief update)
RPC
  • Hong Kong
  • 31 March 2020

The 'general adjourned period' (GAP) during which the courts in Hong Kong have been closed, save for urgent and essential court business, has been extended to 13 April 2020. The GAP is a consequence of the extraordinary measures adopted in Hong Kong to combat the coronavirus public health emergency.

High court grants injunction to restrain winding-up proceeding based on disputed adjudication decision
Gan Partnership
  • Malaysia
  • 31 March 2020

The high court recently delivered a significant decision for the construction industry regarding contractors' cash flow. This decision is welcome as it has laid down clear directions for stakeholders in the construction sector when they are faced with payment and financing issues, as well as for litigants. Further, this decision highlights the importance of conducting preliminary assessments to determine suitable dispute resolution avenues – namely, adjudication, litigation or arbitration.

Application of principle of effectiveness could lead to exclusion of national limitation rules
AKD
  • Netherlands
  • 24 March 2020

The Amsterdam Court of Appeal recently rendered a landmark judgment that the claims brought by claim vehicle CDC against Kemira Chemicals Oy were not time barred. The court's judgment provides additional legal certainty in the field of private antitrust enforcement. If upheld before the Supreme Court, this ruling will set a new standard wherein (Dutch) courts will be able to extend or even set aside applicable limitation rules from national regimes in follow-on proceedings.

No separate claim for interest needed when increasing value of claim in dispute
Gün + Partners
  • Turkey
  • 24 March 2020

In a May 2019 decision, the Supreme Court General Assembly on the Unification of Judgments concluded that the plaintiff in a partial monetary action need not reiterate its claim for interest when increasing the value of the claim if it claimed interest for its principal receivables in the plaint petition and the claim of interest will automatically apply for the amount which is increased later on.

Court procedure for evicting defaulting tenants amended
Elias Neocleous & Co LLC
  • Cyprus
  • 17 March 2020

The law on property rental in Cyprus appears to have been unfairly weighted in favour of tenants for some time, as defaulting tenants have been legally entitled to remain in a property without paying their legally due rent until the hearing of an application for recovery of possession before the Rent Control Court. However, the recent amendment of the Rent (Control) Law seeks to resolve the problem of landlords who have had to deal with such tenants.

Quasi-proprietary claims: use of disputed funds to pay legal costs
RPC
  • United Kingdom
  • 17 March 2020

In a recent case, the High Court considered to what extent a defendant should be permitted to use funds subject to a freezing injunction to fund its legal expenses where the claimant advances a quasi-proprietary claim over those funds. This decision provides helpful guidance on the analysis of quasi-proprietary claims and the circumstances in which claimants can insist that defendants meet a more onerous test before using disputed monies over which the claimant asserts ownership to fund their defence.

In with the old and the new technology
RPC
  • Hong Kong
  • 17 March 2020

The High Court recently decided that it can, as part of its case management powers and of its own volition, order that a directions hearing take place by means of a telephone conference without the physical presence in court of the parties or their legal representatives. The court's decision is set against the background of the extraordinary measures adopted in Hong Kong to combat the coronavirus public health emergency.

District court rules on interpretation of minority actions
Luther SA
  • Luxembourg
  • 10 March 2020

In a notable case, the Luxembourg District Court ruled on the requirements for bringing minority actions and whether a broad interpretation thereof is possible. The judgment exposes the common lack of legal recourse available to shareholders who hold equal parts in a company. Whereas majority shareholders can impose their will at general assemblies and minority shareholders can commence minority actions, the possibility for equal shareholders to take similar action would lead to a problematic stalemate.

Optional jurisdictional clauses: limited effect in Hungary?
SMARTLEGAL Schmidt & Partners
  • Hungary
  • 10 March 2020

Can a party commence litigation in Hungary despite a jurisdictional agreement in favour of a court of a non-EU state which is optional for one of the parties? The Supreme Court recently answered this question in a case which highlights the negative effects of such asymmetric choice-of-court agreements.

Austria, EU privacy and the ongoing Schrems v Facebook case
OBLIN Attorneys at Law
  • Austria
  • 10 March 2020

The Vienna Regional Court for Civil Matters recently closed the oral hearing in the data protection case brought against Facebook by European privacy group None of Your Business. During the hearing, Facebook's European privacy director faced questions centring on matters of data control regarding the social media platform. The pending decision of the court foreshadows further disputes on Europe's role in setting new standards by which internet activity is to be regulated.

Injunction against 'foreign' director for IP infringement based on Dutch law on liability of directors
AKD
  • Netherlands
  • 10 March 2020

In preliminary proceedings, The Hague District Court recently assessed whether an injunction could be granted against an Irish director of a company based in Ireland in relation to a copyright infringement in the Netherlands. This judgment is a useful reminder that company directors who are not domiciled in the Netherlands can be liable under Dutch law on directors' liability when offering infringing products in the Netherlands.

Cryptoassets as property: litigators' tools to assist in their tracing and recovery
Ogier
  • Cayman Islands
  • 10 March 2020

The UK High Court recently found that cryptoassets such as bitcoin are property and are therefore capable of being the subject of a proprietary injunction or freezing order. Although this is a first-instance decision, there is no reason why the Cayman courts would approach the development of the legal concept of 'property' any less purposefully.

Litigation funder liable for uncapped adverse costs
RPC
  • United Kingdom
  • 10 March 2020

The Court of Appeal recently ordered a funder to pay the full amount of adverse costs. In a significant judgment for commercial litigation funders, the court found that the 'Arkin cap' (which can cap a litigation funder's liability for adverse costs at the amount of funding that was provided) is not a binding rule to be applied automatically in every case involving a litigation funder.

What constitutes 'hunt or kill'? Supreme Court's shark cage diving decision illustrates interpretation difficulties
Wilson Harle
  • New Zealand
  • 03 March 2020

Contrary to media reports, the Supreme Court's recent decision in Shark Experience Ltd v PauaMAC5 Inc has expressly left the question of whether shark cage diving is an offence in New Zealand open for a future case in which a breach of Section 63A of the Wildlife Act 1953 is alleged. The decisions of the Supreme Court and the lower courts illustrate the challenges of statutory interpretation and the resulting potential for differing judicial views.

Beware: English jurisdiction clauses do not mean choice of English law
RPC
  • United Kingdom
  • 03 March 2020

Where parties have agreed in a contract that the English courts will have jurisdiction in the event of a dispute, it does not automatically follow that English law will be the governing law. A party recently found this out, to its cost, when a different governing law clause meant an expired limitation period. This case demonstrates that those entering into contractual agreements should carefully consider a choice of law clause in order to designate the laws of a country that suits them.

Court considers freezing of assets and 'Chabra' jurisdiction
RPC
  • Hong Kong
  • 03 March 2020

In a recent case, the Court of First Instance discharged ex parte (without notice) injunctions restraining the second defendant from disposing of or dealing with its assets in Hong Kong. The injunctions were granted in aid only of the plaintiffs' claims against the first defendant which were being pursued in parallel proceedings in mainland China. This was on the basis that the second defendant's assets should be available to satisfy the plaintiffs' eventual judgment against the first defendant.

Supreme Court decision on bonds, securities litigation and damages
Bofill Escobar Silva Abogados
  • Chile
  • 25 February 2020

The Supreme Court recently issued the final decision in a landmark securities case on damages in connection with bonds issued by a listed company in the retail industry. The ruling does not prevent the possibility of obtaining compensation by bondholders that have suffered losses in the securities market, but it does emphasise that in order to be compensable, damages must be certain according to general requirements of civil law.

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