Litigation updates

Argentina

Ruling on arbitrability of consumer disputes under new Civil and Commercial Code
  • Argentina
  • April 19 2016

The Court of Appeals recently issued a groundbreaking decision on the application of the new Civil and Commercial Code's arbitrability exclusions to an agreement made before the code came into effect. The court considered the arbitration agreement in a consumer contract to be null and void pursuant to the exclusions in Section 1651 of the new code.

Ruling on application of principle of equal procedural treatment for foreign nationals
  • Argentina
  • February 09 2016

The new Civil and Commercial Code introduced the principle of equal treatment for foreign nationals who litigate in Argentina. In a recent ruling, the Court of Appeals in Civil Proceedings analysed the impact of this provision on certain procedural rules which require foreign nationals who do not maintain a domicile or immovable property in Argentina to provide a bond or similar undertaking when litigating in Argentina.


Austria

Contributed by Oblin Melichar
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.

Supreme Court rules on liability of arbitrators to pay damages
  • Austria
  • August 02 2016

The Supreme Court recently ruled on the liability of arbitrators to pay damages. The court ultimately upheld the terms of the arbitrators' contract, finding that civil claims for damages can be pursued, among other things, only after the arbitration award has been annulled. This case demonstrates that arbitrators' contracts should be interpreted in a way that ties the arbitrators' liability for damages to the annulment of the arbitration award.

Limits of res judicata
  • Austria
  • March 08 2016

The Supreme Court recently dealt with the limits of preclusion or res judicata. According to the subjective limits of preclusion, the effects of res judicata encompass the litigants, their legal successors and certain other persons to which the legal effects of the respective court's decision are extended in accordance with the law. Therefore, res judicata takes effect − apart from cases of extended and absolute legal force – only between the same parties.


British Virgin Islands

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.

Widening the net: court expands post-judgment Norwich Pharmacal jurisdiction
  • British Virgin Islands
  • December 13 2016

A BVI court recently issued an important judgment in relation to the obligations of a registered agent to provide third-party disclosure to assist a foreign judgment creditor to trace assets. The court held that Norwich Pharmacal relief post-judgment in aid of enforcement is, in principle, available where there is reasonable suspicion that a disclosure defendant is involved in the wilful evasion of another's judgment debt and to assist in securing compliance with freezing orders, both domestic and foreign.

BVI leave requirements in derivative actions by foreign companies
  • British Virgin Islands
  • November 01 2016

The BVI Commercial Court recently considered a claim for costs of a discontinued strike-out application, which was brought by the defendants as part of an ongoing multi-jurisdictional family dispute. The claimant's substantive action in the British Virgin Islands involved derivative proceedings, which were brought on behalf of a foreign company, for the recovery of funds which the defendants were alleged to have wrongfully paid to another entity.


Canada

Contributed by Dentons
When is a release effective to bar a safety-related complaint?
  • Canada
  • January 09 2018

The Saskatchewan Court of Appeal recently ruled that a release signed by a terminated employee barred her complaint against her employer under occupational health and safety (OHS) legislation. The court stated that after the occurrence of a so-called 'triggering event', which provides a worker with the right to file a complaint under the legislation, that right becomes personal to the worker. Where a worker has given a release in respect of a personal right, the validity of the release must be reviewed.

Court of appeal sets jurisdiction test for class actions with global classes
  • Canada
  • January 02 2018

The Court of Appeal for Ontario recently clarified the test for assuming jurisdiction over absent foreign claimants in Ontario class actions with international elements, opening the door to the potential certification of class proceedings on behalf of global classes. While the jurisdictional hurdle for absent foreign claimants appears to have been lowered as a result of the decision, it remains to be seen how the lower courts will interpret and apply the appeal court's test.

Court dismisses health and safety charge given due diligence
  • Canada
  • December 12 2017

An Ontario court recently dismissed an Occupational Health and Safety Act charge in a fatality case, finding that the employer had established due diligence. The court decided that the worker had deviated from the standard practice that he and other workers had followed on previous occasions. While no training courses were available for the task in question, the employer was entitled to rely on the experience of the worker.

Appeal court upholds C$270,000 fine when Ministry of Labour and company agreed on C$180,000
  • Canada
  • September 26 2017

In a recent Ontario appeal decision, the court upheld a C$270,000 fine, despite the Ministry of Labour prosecutor and defence counsel agreeing that a C$180,000 fine would be appropriate. The case illustrates that, particularly in cases of serious injury to a worker which offends the court, there is always a risk that the court will impose a fine that is greater than the amount that the Ministry of Labour prosecutor wanted.

Supreme Court clarifies when regulatory bodies may fulfil crown's duty to consult
  • Canada
  • September 19 2017

The Supreme Court of Canada has previously explained that legislatures may empower regulatory bodies to play a role in fulfilling the crown's duty to consult Aboriginal peoples. However, how that controlling law is to be applied by tribunals and by the courts of justice has been less clear. The Supreme Court recently issued two landmark crown consultation decisions, which provide meaningful guidance on when and how the crown may rely on regulatory processes to fulfil the duty to consult.


Cyprus

Contributed by Elias Neocleous & Co LLC
Court finds that unjustified absence of members invalidates collective body and its decisions
  • Cyprus
  • January 09 2018

A recent administrative court case examined an allegation that an Electricity Authority of Cyprus (EAC) committee established to determine staff promotions had been invalidly constituted. The meeting under review had not been chaired by the EAC chair, as required by the relevant regulations, and no reason for this absence was provided. The court found that the absence of any record of the reasons for the chair's non-attendance at the meeting was sufficient grounds to invalidate the decisions made.

Only completed actions are subject to administrative review
  • Cyprus
  • December 19 2017

A recent case has affirmed that only completed actions can be subject to administrative review, and that an applicant must possess a legitimate interest at three crucial stages in order to pursue an action in the Administrative Court. The case concerned a complaint that a third party had been promoted unfairly in preference to other applicants. However, the applicant had filed his action before the third party accepted the promotion, so that when the action was filed there was no promotion to complain about.

Settlement agreement releases parties from rights and obligations under initial agreement
  • Cyprus
  • December 12 2017

The Supreme Court recently reaffirmed the long-established principle that when contracting parties agree to amend or replace an agreement, the new agreement will replace the old one and define all of their rights and obligations. Accordingly, in a case where a settlement agreement is agreed between the parties, but not fully complied with by one of them, the other party cannot reinstate any of its rights under the initial agreement.

Supreme Court dismisses Marfin's appeal against €100,000 fine from CySec
  • Cyprus
  • November 28 2017

The Supreme Court recently issued its decision in a case concerning the Cyprus Securities and Exchange Commission's imposition of a €100,000 fine on Marfin for buying shares in Marfin Popular Bank Plc on the Athens Stock Exchange during a closed period, which had contravened the Insider Dealing and Market Manipulation (Market Abuse) Law 2005 and the Code of Conduct for Advisers and Related Persons issued thereunder.

Courts consider confusion surrounding foreclosures
  • Cyprus
  • August 15 2017

In order to address the problem of non-performing loans following the 2013 financial crisis, the Transfer and Mortgage of Properties Law was amended in 2014 to speed up and streamline the foreclosure process which allows lenders to repossess and sell properties pledged as security for loans in arrears. With the lower courts unable to agree, significant uncertainties remain as to the application of the new procedure. It now falls on the Supreme Court to reach a decision that will provide guidance and set a binding precedent.