Latest updates

Use of customs information in relation to parallel imports
AKD
  • Netherlands
  • 07 July 2020

The Hague District Court recently had to answer the question of whether information acquired during a customs seizure under the EU Anti-piracy Regulation may be used for an unauthorised parallel import claim. The regulation provides an effective means and procedure for IP rights holders to request Customs to intercept consignments suspected of containing counterfeit or pirated goods and to have said goods destroyed.

Further guidance on remote civil hearings
RPC
  • Hong Kong
  • 30 June 2020

A second guidance note on the use of remote hearings in civil proceedings took effect on 15 June 2020. The guidance note (representing Phase 2) provides for expanded videoconferencing facilities and telephone hearings with respect to the civil business of the first-instance courts and the Court of Appeal. Phase 2 is to be read together with the Phase 1 guidance note issued on 2 April 2020. Phase 2 is more comprehensive and provides more options for connecting with the courts' videoconferencing facilities.

Waiving goodbye to privilege – reliance is key
RPC
  • United Kingdom
  • 30 June 2020

In what circumstances will a party waive privilege over legal advice by referring to it in evidence? Reference to the fact of the advice may not be sufficient but reliance on that advice is likely to be. Further, a limited waiver of privilege over certain documents does not mean that those documents are irrelevant from a privilege point of view thereafter and that their subsequent deployment could not result in collateral waiver.

No review by Swiss courts of government's approach to climate change
Lenz & Staehelin
  • Switzerland
  • 30 June 2020

The Supreme Court has held that an association of elderly women lacks standing to request the Swiss courts to review Switzerland's approach to meeting the Paris Agreement targets to mitigate the effects of climate change. The court's decision was seemingly motivated by the broad means available to individuals and groups to engage in the political process in Switzerland. The decision casts doubt on the future of climate change litigation which questions the approach taken by the Swiss government.

Apex court rules that high court orders and decisions that do not finally dispose of litigants' rights are non-appealable
Gan Partnership
  • Malaysia
  • 23 June 2020

Section 67 of the Courts of Judicature Act 1964 sets out the right to appeal in civil suits. However, confusion commonly arises when deciding whether an order or judgment made by a high court in a civil matter is appealable. The Federal Court recently clarified this issue by affirming that a decision made during a trial that does not finally dispose of the parties' rights is non-appealable.

Standard directions in Section 238 appraisal proceedings confirmed
Ogier
  • Cayman Islands
  • 23 June 2020

In a decision that provides additional certainty to dissenting shareholders, the Grand Court has rejected a company's efforts to recast the procedural framework for appraisal proceedings brought under Section 238 of the Companies Law (as revised). This decision follows the significant 2019 ruling of Chief Justice Smellie in JA Solar, which has become the touchstone for directions orders in Section 238 proceedings.

Privileged but admissible? When can without prejudice material be pleaded in statements of case?
RPC
  • United Kingdom
  • 23 June 2020

In a recent decision the High Court considered the scope of the existing exceptions to the without prejudice rule. This well-known rule protects communications made in a genuine attempt to settle an existing dispute from later deployment in court. The High Court allowed passages from papers prepared for a mediation to be admitted into the proceedings under two exceptions to the without prejudice rule.

Courts' discretion to hold virtual hearings
Gan Partnership
  • Malaysia
  • 16 June 2020

In a recent case, the plaintiff obtained a judgment in default of defence against multiple defendants during the enforcement of the Movement Control Order in Malaysia. Subsequently, the judge held that various applications of the plaintiff and the defendants be heard by way of a Skype videoconference due to the ongoing COVID-19 pandemic. Dissatisfied with the videoconference, the plaintiff challenged its validity.

COVID-19: government emergency measures to mitigate pandemic's effects on legal delays
Kalliopé
  • France
  • 16 June 2020

Emergency Law 2020-290 of 23 March 2020 enabled the government to legislate by virtue of government orders in various areas. In application of the law, the government adopted and published 25 orders to remedy the consequences of the COVID-19 pandemic. In particular, the government adopted Order 2020-306 concerning the extension of deadlines which expire during the health emergency period and the adjustment of procedures during the same period.

Freezing orders: risk of dissipation? Get real
RPC
  • United Kingdom
  • 16 June 2020

The High Court has issued an important reminder of the need for solid evidence of a real risk that a respondent will take steps to dissipate their assets to frustrate a judgment in applications to continue a worldwide freezing order. Evidence of dishonesty alone is not enough, and conduct falling short of dishonesty is less likely to suffice.

Grand Court successfully responds to COVID-19 challenges
Ogier
  • Cayman Islands
  • 09 June 2020

The substantive hearing of a winding-up petition which was successfully conducted via videoconferencing shows that the Grand Court is responding effectively to the challenges of the COVID-19 pandemic. The Grand Court's apparent seamless adaptation to these challenging times is a testament to its well-established technological capabilities, given that judges have frequently presided over interlocutory hearings by video link from abroad in the past.

Expansion of use of remote hearings
RPC
  • Hong Kong
  • 09 June 2020

As expected, the judiciary in Hong Kong has announced that it will expand the use of remote hearings for civil cases. To date, under the Guidance Note for Remote Hearings for Civil Business in the High Court (Phase 1) – which came into effect during the general adjourned period – remote hearings using videoconferencing facilities have focused on civil hearings in the High Court involving interlocutory applications or appeals that can be decided on documents and legal submissions.

Post-lockdown litigation: Phase 2 special rules for court proceedings
ARBLIT Radicati di Brozolo Sabatini Benedettelli Torsello
  • Italy
  • 09 June 2020

In response to the COVID-19 outbreak, the government adopted a severe lockdown policy, including suspending all court proceedings and related deadlines in civil and commercial matters. As of 18 May 2020, the government moved to Phase 2, which means that litigation in civil and commercial matters can now resume. However, as with other activities, court litigation requires special measures to ensure social distancing in the courts' premises and judicial offices.

COVID-19 Weekly Report (1-7 June 2020)
International Law Office
  • International
  • 08 June 2020

The impact of COVID-19 is being felt in almost every work area across the globe. In order to keep readers abreast of this evolving situation, ILO's COVID-19 Weekly Report provides insight into the major legal developments of the past seven days, as well as a round-up of our panel of experienced international legal commentators' legislative and regulatory guidance.

Debt collection during COVID-19
AKD
  • Netherlands
  • 02 June 2020

The COVID-19 outbreak is greatly affecting legal matters and company wellbeing. Some companies can no longer comply with their contractual obligations, while others have become financially distressed. To ensure that creditors do not make improper use of the measures available to collect a debt or ensure recourse, the question has arisen as to whether the courts should change the way in which they assess such measures.

COVID-19 Weekly Report (25-31 May 2020)
International Law Office
  • International
  • 01 June 2020

The impact of COVID-19 is being felt in almost every work area across the globe. In order to keep readers abreast of this evolving situation, ILO's COVID-19 Weekly Report provides insight into the major legal developments of the past seven days, as well as a round-up of our panel of experienced international legal commentators' legislative and regulatory guidance.

First judicial consideration of COVID-19 decisions
Wilson Harle
  • New Zealand
  • 26 May 2020

The High Court recently issued a decision on a judicial review application which challenged the lawfulness of exemption decisions made pursuant to an order under the Health Act and sought urgent interim relief. The decision was the first consideration by the court of the lawfulness of actions taken during the exercise of the sweeping powers assumed by the government in response to the COVID-19 pandemic.

Whole arbitration award or just dispositive portion: what should be registered with the courts?
Gan Partnership
  • Malaysia
  • 26 May 2020

After succeeding in arbitration, the respondents in a recent case filed an originating summons pursuant to the Arbitration Act in a high court to enforce and recognise the entire award as a high court judgment. However, the appellant opposed the originating summons on, among others, the ground that only the dispositive portion of the award (which set out the orders or reliefs) – and not the entire award – was capable of being registered.

First-instance courts must evaluate testimony adduced during hearings
Elias Neocleous & Co LLC
  • Cyprus
  • 26 May 2020

In a recent appeal, the Supreme Court ruled that the first-instance court could not ignore testimony adduced during a hearing without having evaluated it. In its decision, the Supreme Court stressed that where there is a disagreement as to the substantive facts of a case, the evaluation of testimony is the cornerstone of any decision. The absence of judgement as to whether a substantial witness has told the truth will render the court's decision incomplete.

Commission omission? High Court balances text and context in contractual interpretation
RPC
  • United Kingdom
  • 26 May 2020

English law's flexible, rational, yet stable approach to contractual interpretation has been demonstrated again in a recent decision concerning commission payments. The decision is logical and sensible by reference both to the case's commercial context and the contract's wording and exemplifies the benefit of choosing English law as the forum for resolving contractual disputes.

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