Litigation updates

Austria

Contributed by OBLIN Attorneys at Law
Surprise decision regarding changing case law
  • Austria
  • July 17 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
  • April 03 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
  • January 23 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
  • July 18 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
  • May 30 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.


Brazil

Contributed by TozziniFreire Advogados
Brazilian legal system: civil law sprinkled with common law elements
  • Brazil
  • July 17 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

Freezing injunction: what is a good arguable case?
  • British Virgin Islands
  • June 26 2018

The BVI Commercial Court has provided helpful guidance as to the threshold for a good arguable case, dismissing an application to discharge a worldwide freezing injunction obtained by a claimant. The court held that where there is a good arguable case that a defendant has acted fraudulently or dishonestly, or with "unacceptable low standards of morality giving rise to a feeling of uneasiness about the defendant", further evidence is often unnecessary to justify a freezing injunction.

Avoiding evasion: court takes pragmatic approach to serving uncooperative defendants abroad
  • British Virgin Islands
  • June 19 2018

International litigation and asset recovery require the pursuit of defendants and their assets across borders; therefore, it is a routine aspect of BVI litigation for claimants to serve legal documents abroad. Two recent decisions should significantly decrease the delay in effecting service abroad and pave the way for a more efficient approach to service out in the future.

Procedure for appeal counter notice clarified – it is a parasite
  • British Virgin Islands
  • June 05 2018

A recent BVI Court of Appeal judgment was issued on a point rarely taken: is leave required to file a counter notice to an existing appeal? The full court found that once an appeal has been commenced with leave, the court's jurisdiction is engaged and the party wishing to cross-appeal may do so by counter notice without bringing a separate leave application. The court described a counter notice as being by its nature "parasitical on a pending appeal".

Tick, tock – the need to keep an eye on the clock in liquidator applications
  • British Virgin Islands
  • May 22 2018

A recent Court of Appeal decision serves as a useful reminder to keep an eye on the clock when seeking the appointment of liquidators to a company in the British Virgin Islands. The decision makes clear that any extension must be expressly granted and legal practitioners must therefore keep an eye on the clock to avoid a deemed dismissal under Section 168 of the Insolvency Act.

Substance of Aldi principles apply in British Virgin Islands
  • British Virgin Islands
  • April 24 2018

The Commercial Division of the BVI Court has granted a strike out application on the grounds that the Aldi Stores Ltd v WSP Group plc principles – whereby a party which intends to bring a subsequent action against existing parties must raise the issue with the court – apply in the British Virgin Islands. It held that while the principles may not have been promulgated in this jurisdiction, litigants must put their cards on the table at an early stage or risk being held to have abused the court's process.


Canada

Contributed by Dentons
Distracted by mobile phones: forklift operators guilty of occupational health and safety offence
  • Canada
  • July 17 2018

Two forklift operators were recently found guilty under the Occupational Health and Safety Act for using mobile phones while sitting on their forklifts. The court held that "operating or using" a forklift includes sitting on a forklift even when it is stopped and turned off, as other workers and forklifts may be nearby and put at risk by the operator's distraction and inattention to their surroundings while using a mobile phone. Further, the employer had clearly prohibited the use of mobile phones in the warehouse.

Vehicle owner not liable for accident caused by repair shop employee during driving test
  • Canada
  • July 10 2018

The Alberta Court of Appeal recently reviewed the provisions of the Workers' Compensation Act that enable the Workers Compensation Board (WCB) to be subrogated to the right of a claim against a party not covered by the act when the WCB has paid out benefits to a party that is covered by the act. The court confirmed that pursuant to the act, defendants that are not protected from suit should not be held liable for the portion of loss caused by an employer or worker that is protected from suit.

Canadians may need to pursue internet defamation lawsuits abroad
  • Canada
  • July 03 2018

A recent case has affirmed the test for jurisdiction simpliciter in internet defamation cases. However, it has also muddied the waters regarding the circumstances in which a court might exercise its discretion to stay a proceeding in Canada in favour of trial in another jurisdiction. The Supreme Court's decision shows that the judiciary remains divided on how best to adapt existing private international law principles to the modern reality of borderless communications.

Supreme Court of Canada rules that religious association decisions not open to judicial review
  • Canada
  • June 26 2018

A recent Supreme Court of Canada decision concerning a religious association has confirmed that judicial review is not available to review decisions made by private entities that are not exercising statutory authority. While the courts may still review decisions of private entities where causes of action are based on a contract or other underlying legal right, the Supreme Court of Canada has closed the door on judicial review for all private entities by holding that it is available solely for exercises of statutory authority.

Judicial review and private entities: court confirms limits of remedy
  • Canada
  • June 05 2018

Judicial review is a public law remedy – but does this preclude its availability for decisions made by private entities (eg, voluntary associations and political parties)? Divergent lines of judicial authority have led to inconsistent answers to this question in Ontario. However, a recent Ontario Divisional Court decision has confirmed that the answer to this question is yes.


Cayman Islands

Security for costs – a foreign affair
  • Cayman Islands
  • July 17 2018

During the early stages of litigation, a well-advised defendant will consider how to enforce a Cayman Islands court costs order in the foreign jurisdiction where the claimant's assets are located, and whether it should seek security from the claimant for the costs of doing so. The Court of Appeal has recently considered whether a foreign claimant should give security limited to the costs of enforcing an order in the foreign jurisdiction only or for the (much greater) amount of defending the appeal.

Court declines to restrain foreign trust proceedings
  • Cayman Islands
  • July 03 2018

The recent Grand Court decision in T Co v AA, BB, CC, DD, EE (a minor) is a good reminder of the court's approach to service out of the jurisdiction and provides insight on the scope of jurisdiction clauses contained in trust instruments.

Getting schooled in Nord Anglia – extra safeguards for companies facing appraisal litigation
  • Cayman Islands
  • June 12 2018

In Nord Anglia the justice made directions orders regarding the use of keyword searches, the number and scope of information requests, and the conduct of management meetings consistent with the orders made in Xiadu Life Technology. Further, the judgment will provide welcome safeguards for companies facing appraisal litigation in the Cayman Islands if adopted on a wider basis.

Shanda Games: Court of Appeal confirms timing for leave to appeal to Privy Council
  • Cayman Islands
  • June 05 2018

Appeals to the Privy Council from the Court of Appeal are regulated in the Cayman Islands (Appeals to Privy Council) Order 1984. However, the order does not provide for how to determine the date of a decision. The Court of Appeal recently ruled that for the purposes of an application for leave to appeal to the Privy Council, time runs from the date on which an order is sealed or perfected, not the date on which the judgment is delivered.

Court reaffirms high threshold for case management stays
  • Cayman Islands
  • May 29 2018

In a recent case, a petition to wind up a company was issued by its majority shareholder. The minority shareholder – a Samoan entity – issued an application to stay the petition on the basis that there were related proceedings in Samoa, and argued that Samoa was the proper forum in which to argue these matters. The court refused to grant the stay, finding that the high burden imposed in stay applications of this type had not been met.