Litigation updates

Austria

Contributed by OBLIN Attorneys at 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.

Court rules on validity of service of process in alternative location
  • Austria
  • January 31 2017

The Supreme Court recently ruled on whether and under which circumstances a service of process is valid in a location different from that originally listed. The court ultimately held that a request for service of process can be lawfully interpreted only according to the respective state law. If that law states that the service of process can also take place in a different location, there is no reason to view this as unlawful.


British Virgin Islands

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.

Guidelines adopted for communication and cooperation between courts
  • British Virgin Islands
  • July 04 2017

The British Virgin Islands recently adopted new guidelines for communication and cooperation between courts in cross-border insolvency matters. The guidelines are designed primarily to enhance communication between courts, insolvency representatives and other parties in the context of global restructurings and insolvency. As a result of the increased efficiency, it is hoped that stakeholders will see a reduction in delays and costs.

Latin America focus: litigating trusts disputes in the British Virgin Islands
  • British Virgin Islands
  • May 09 2017

The British Virgin Islands has long been hailed as a leading offshore jurisdiction for wealth management and asset protection among Latin American high-net-worth families and individuals. The outcome in a recent case augments the credibility of the British Virgin Islands as a jurisdiction in this regard. The case also highlights the strengths of the BVI-only Virgin Islands Special Trust Act trust structure.

Commercial Court appoints three new judges
  • British Virgin Islands
  • January 24 2017

There have recently been three judicial appointments to the Commercial Court designed to increase the capacity of the court in 2017. The appointments should provide further momentum and expertise to the BVI Commercial Division and enhance the court's ability to deal with complex cases promptly and effectively.


Canada

Contributed by Dentons
Sham investigation results in C$75,000 aggravated damages award against employer
  • Canada
  • May 22 2018

An employer that terminated an employee alleging just cause has been ordered to pay damages for wrongful dismissal, including an aggravated damages award of C$75,000. The court was satisfied that the employer's actions amounted to a breach of the obligation of good faith and fair dealing, and supported an award of aggravated damages. The employer's false reasons for dismissal and inadequate and unfair investigation had resulted in the plaintiff failing to receive procedural fairness.

Supreme Court of Canada upholds trade barrier in beer import case
  • Canada
  • May 15 2018

The Supreme Court of Canada recently determined that New Brunswick's restrictions on the importation of beer are constitutional and held that laws which create an incidental restriction on trade – but otherwise form a rational connection to a broader regulatory regime that is not targeted at restricting trade – will not contravene the Constitution Act 1867. The decision is controversial, as it sets a low threshold for a province to justify a law that, on its face, clearly restrains trade across provincial boundaries.

Court accepts joint submission and orders employer to pay fine of C$100,000 following workplace fatality
  • Canada
  • May 01 2018

The Territorial Court of the Northwest Territories recently considered and accepted a joint submission from the crown and defence, sentencing an employer to a C$100,000 fine. The court considered the significance of a joint submission, noting that it is usually the result of a negotiation process between lawyers. This process is important to the administration of justice; thus, the courts should defer to a joint submission within the bounds established by the Supreme Court of Canada in an earlier case.

Court fines out-of-business company that did not defend health and safety charges C$1.3 million
  • Canada
  • April 24 2018

An Ontario court recently fined a defunct mining company that went out of business in 2016 C$1.3 million under the Ontario Occupational Health and Safety Act after it found the company guilty on six charges following the deaths of two workers. This is one of the largest Occupational Health and Safety Act fines in Ontario history. However, the company did not defend the Ministry of Labour prosecution.

Court rules that employee's theory of dismissal for questioning employer's safety systems not evidence
  • Canada
  • March 20 2018

The court in a recent wrongful dismissal case dismissed the plaintiff's allegation that he had been dismissed after making suggestions about improvements to the employer's safety systems. The court found that the plaintiff's theories were unsupported by the evidence and insufficient to justify an award of aggravated or punitive damages. It therefore held that the employer's conduct was not malicious and high handed so as to warrant additional damages and dismissed that aspect of the plaintiff's claim.


Cayman Islands

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.

Proceedings bowled out after unplayable delivery
  • Cayman Islands
  • May 22 2018

The Grand Court of the Cayman Islands has set aside service of proceedings against a foreign defendant, concluding that the plaintiff had abused the court process in pursuing the proceedings and failed to establish that the court should exercise its jurisdiction over the defendant. The court held that the defendant's immunity as the employee of a New Zealand crown entity was an "unplayable delivery" for the plaintiff and weighed heavily against the exercise of the court's exorbitant jurisdiction.

Court of Appeal rules on dissenters' discovery
  • Cayman Islands
  • May 15 2018

The Cayman Islands Court of Appeal has released its decision in the appeal of a directions order on the issue of whether dissenting shareholders in appraisal actions under Section 238 of the Companies Law are required to give discovery. The court emphasised the danger in forming a priori assumptions regarding relevance and concluded that there was insufficient justification for adopting an "extreme and unique" position of one-sided disclosure in Section 238 cases.

Costs of breaching an exclusive jurisdiction clause: BDO Cayman v Argyle Funds
  • Cayman Islands
  • May 08 2018

A recent Grand Court of the Cayman Islands decision has confirmed that if a party pursues foreign proceedings in breach of a Cayman Islands exclusive jurisdiction (or similar) clause in a contract, that party faces the prospect of having to pay both the Cayman and foreign litigation costs of the counterparty on the indemnity basis.

Dissenting shareholders: judicial management and e-discovery
  • Cayman Islands
  • May 01 2018

In a partial ruling in Xiaodu Life Technology, the Cayman Islands Grand Court ruled on the scope of the company's discovery and the use of keyword searches; whether the number of information requests should be limited; and the number and conduct of management meetings, including whether they should be open or without prejudice.


Cyprus

Contributed by Elias Neocleous & Co LLC
Doctrine of payment into court
  • Cyprus
  • May 22 2018

Order 22 of the Civil Procedure Rules provides that in any action for debt or damages, the defendant may at any time, on notice to the claimant, pay into court a sum of money which it considers sufficient to satisfy the claim. Payment into court can be made as soon as an appearance has been filed and until a judgment has been issued. If the amount offered is accepted, the dispute is settled as by compromise, but it does not give rise to res judicata.

Strict application of security for costs rules
  • Cyprus
  • May 15 2018

In Cyprus, as in most jurisdictions, a defendant in litigation which fears that the claimant may be unable to satisfy costs orders made against it can apply to the court for a security for costs order. In civil proceedings, the courts – in certain circumstances – can order the claimant to provide security for the defendant's costs after the trial has ended. However, specific requirements must be fulfilled, and the courts are strict in applying the rules.

Supreme Court decides on acquittal and right to appeal
  • Cyprus
  • April 24 2018

The need for clear and reliable guidelines to determine whether a first-instance criminal court judgment can be appealed arose in a recent application to the Supreme Court. By making an application under Article 149 of the Criminal Procedure Law instead of an appeal, the applicant not only lost the right to appeal, but also found his case dismissed by the Supreme Court without any examination of its substance.

Supreme Court decision breached European Convention on Human Rights
  • Cyprus
  • April 17 2018

The European Court of Human Rights recently reviewed disciplinary proceedings against a former judge that had taken place in the Supreme Court in 2006 and resulted in the judge's dismissal. The court found by a majority of six votes to one that the disciplinary proceedings in Cyprus were in breach of Article 6(1) of the European Convention on Human Rights and ordered the Cyprus government to pay non-pecuniary damages and costs.

Jurisdiction and recognition and enforcement of judgments in civil and commercial matters
  • Cyprus
  • March 20 2018

The issue of jurisdiction was at the centre of a recent action in the Limassol District Court. The decision clarifies the case law relating to the interpretation of Article 7(2) of the recast EU Brussels Regulation and reaffirms the general principle that civil actions are to be brought against individuals and companies in the courts of the place where they are domiciled, except in specific instances where derogations from the general rule apply.