Litigation updates

Austria

Contributed by OBLIN Attorneys at Law
Surprise decision regarding changing case law
  • Austria
  • 17 July 2018

The Supreme Court recently ruled that even settled case law can change. The law prevents the retroactive application only of statutory laws, not court decisions. Therefore, changes in case law also apply retroactively, as there is no ban on the retroactive application of legal knowledge by the courts. The interest in maintaining 'correct' case law overrides earlier protections afforded to those applying the law; thus, it is paramount to be prepared for changes in case law.

Supreme Court's stance on applicability of agreements conferring jurisdiction
  • Austria
  • 03 April 2018

Article 23(1) of the EU Brussels I Regulation sets out minimum requirements for contractual agreements. In particular, the requirements seek to ensure that agreements conferring jurisdiction do not become part of the contract without the knowledge of all of the parties. In a recent case involving the international chemicals industry, the Supreme Court had to consider whether the formal requirements in Article 23(1) had been met.

Supreme Court rules on non-bank loans
  • Austria
  • 23 January 2018

The Supreme Court recently ruled in a case in which a loan was granted without collateral and obviously served to finance the acquisition of the target's shares. Considering that this withdrew considerable funds from the company, putting creditors at risk without any operational justification, the Supreme Court held that this could not be reconciled with the diligence expected from a reasonable manager.

Disclosure of accounts pursuant to Article XLII of Code of Civil Procedure
  • Austria
  • 18 July 2017

Under Article XLII of the Code of Civil Procedure, any party that has a substantive claim for information against another party (which it is suing for performance) has a claim for the disclosure of accounts to mitigate serious problems with quantifying the substantive claim if the accounts could help the claimant and if the respondent can be reasonably expected to provide them.

Supreme Court rules on international jurisdiction in copyright infringement cases
  • Austria
  • 30 May 2017

The Supreme Court recently held that jurisdiction for tort cases under Article 7(2) of the Brussels I Regulation must be interpreted only under the regulation. According to the regulation, torts are illegal acts that ultimately require the defendant to pay damages and are not connected to a contract within the meaning of Article 7(1) of the regulation. According to the court, this jurisdiction includes both the place of the original act and the place where the loss occurred or is about to occur.


Bahamas

Supreme Court evaluates scope of trustees' protection in contentious trust litigation
Lennox Paton
  • Bahamas
  • 07 August 2018

The Supreme Court recently assessed the protection afforded to trustees by virtue of Section 83 of the Trustee Act 1998, which provides that a trustee cannot be bound or compelled by way of discovery to disclose information and documents about a trust. In Dawson-Damer, a trustee had used Section 83(8) as a basis to refuse a disclosure request. The applicant's case was built primarily on the allegation of a breach of duty (ie, the trustee had failed to consider the applicant's needs).


Brazil

Contributed by TozziniFreire Advogados
Declaration of Economic Freedom – impact on new and existing litigation
  • 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. The provisional measure modifies certain provisions of the Civil Code – namely, those concerning contract interpretation and the piercing of the corporate veil.

Brazil adheres to Hague Service Convention
  • 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.

Price of litigating in Brazil: court-awarded attorneys' fees
  • Brazil
  • 23 April 2019

In addition to contractual fees, winning attorneys are entitled to court-awarded attorneys' fees, which are determined using objective criteria. However, despite being relatively straightforward to calculate, some courts struggle to award attorneys' fees, particularly in disputes involving significant amounts. A recent Superior Court of Justice decision provides clarity in this regard and is likely to set the tone for future disputes regarding court-awarded attorneys' fees.

Can you choose a foreign forum to decide your dispute? Yes, but…
  • Brazil
  • 16 April 2019

The relatively new Civil Procedure Code specifically authorises parties to a contract to select a foreign jurisdiction to decide their disputes. Although the language of the code is straightforward, the lower courts are still debating whether the choice of a foreign jurisdiction would set aside the jurisdiction of the Brazilian courts. Until the Superior Court of Justice sheds some light in this regard, it will remain unclear whether Brazilian courts' jurisdiction can be set aside in favour of foreign courts.

Brazilian legal system: civil law sprinkled with common law elements
  • Brazil
  • 17 July 2018

Even though Brazil is a civil law country, the New Civil Procedure Code of 2015 has brought elements of common law jurisdictions to the Brazilian courts. Certain precedents rendered by the Supreme Court and the Superior Court of Justice – the country's highest courts for constitutional and federal law issues, respectively – are now binding on the lower courts.


British Virgin Islands

Reverse engineering: Court of Appeal in rare reversal of findings of fact
  • British Virgin Islands
  • 04 December 2018

The BVI Court of Appeal recently considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time in 2018 that the court has addressed this issue. While the threshold for intervention is high, the court will intervene on appropriate occasions. The thoroughness of the evaluation of evidence and the credibility of the judge's conclusions at first instance are likely to be pivotal to that determination.

Think before you blink: court halts cross-border requests without consideration
  • British Virgin Islands
  • 23 October 2018

The BVI courts have again stepped in to ensure that proper thought and process is applied to requests made by foreign governmental bodies. In the first case of its kind to successfully challenge the exercise of the attorney general's powers under the Criminal Justice (International Cooperation) Act, the BVI High Court held that the attorney general is required to do more than rubber stamp the requests received under the act.

Stanford v Akers: asking a BVI court to reverse a liquidator's decision
  • British Virgin Islands
  • 09 October 2018

In a recent case, the BVI Court of Appeal addressed standing in the context of applications under Section 273 of the Insolvency Act 2003, whereby an aggrieved person can ask the courts to reverse or vary a liquidator's decision. The court held that, as a shareholder of a company in liquidation, the appellant was an outsider to the liquidation who had no legitimate interest that entitled him to standing under Section 273.

Revisiting costs awards – BVI Court of Appeal varies costs order based on US appeal decision
  • British Virgin Islands
  • 18 September 2018

In Fairfield Sentry Limited (In Liquidation) v Farnum Place LLC the BVI Court of Appeal varied a costs order based on a material change of circumstances – namely, a decision of the US Court of Appeals for the Second Circuit. The BVI court held that the US decision was a "material change of circumstances" which allowed it to vary the costs order by disallowing the costs of Farnum's expert.

Singapore and BVI courts cooperate against cross-border fraud
Harneys
  • British Virgin Islands
  • 14 August 2018

The Singapore Court of Appeal recently ruled to reinstate and expand a Mareva injunction against fraudster defendants in a conspiracy claim, providing strong support for an earlier decision of the BVI Commercial Court in related proceedings. The decision demonstrates the importance of consistency between courts in multiple jurisdictions in complex cross-border cases.


Canada

Contributed by Dentons
Jurisdictional challenges to arbitral awards: raise them before they're gone
  • 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 case is a reminder that without raising a timely objection to non-compliance before an arbitrator, as required by the Arbitration Act, an arbitral award may not be subject to review. In particular, this case concerned raising an objection to jurisdiction.

Summary judgment applications: analysing Weir-Jones and its application in BF
  • 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.

Court dismisses statutory misrepresentation claim against credit union board in landmark decision
  • 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.

Court of appeal refuses to reinstate jail sentence… this time
  • 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).

Time may not be of the essence when considering specific performance
  • 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.