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international litigation blog

Political Agreement to Make Cross-Border European Justice Faster and More Accessible in Civil and Commercial Matters

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On 30 June 2020, the European Parliament (the EP) and the Council of the European Union (the Council) reached an agreement to amend Council Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (the Taking of Evidence Regulation) and Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (the Service of Documents Regulation) (together the Regulations).

The amendments to those Regulations aim to make cross-border European justice more accessible, faster, cheaper and more straightforward, in particular by increasing legal certainty and decreasing judicial delays and undue costs for citizens.READ MORE

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CJEU Rules on Interplay between State Immunity and Brussels I Regulation

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On 7 May 2020, the Court of Justice of the European Union (the CJEU) issued its judgment in LG and others v. Rina SPA and another (Case C-641/18) in which it recalled that the customary international law principle of immunity from jurisdiction did not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation)[1] if the defendant, who invokes that principle, does not exercise sovereign public powers.

The case relates to the sinking, in February 2006, of a passenger’s ship (under the flag of the Republic of Panama) in the Red Sea. Following that event, the victims of the sinking brought an action for damages, before an Italian court, against the Italian companies that carried out the ship classification and certification operations on behalf of the Republic of Panama. The victims essentially alleged that the sinking of the ship had been caused by these operations.

The Italian companies, however, asserted that the Italian courts lacked jurisdiction to rule on the matter since the classification and certification operations which they conducted on behalf of Panama were a manifestation of the sovereign powers of that State.READ MORE

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European Parliament and Council Reach Political Agreement on EU Collective Representative Actions

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On 22 June 2020, the European Parliament (the EP) announced that it reached a political agreement with the Council of the European Union (the Council) on the final text of the Directive on representative actions for the protection of the collective interests of consumers (the Collective Representative Actions Directive) (See here, here and here). This agreement is the result of interinstitutional negotiations that started on 9 January 2020.

The Collective Representative Actions Directive will introduce harmonised rules that aim to facilitate redress for consumers in case of widespread infringements of their rights in more than one EU Member State, while at the same time provide safeguards against abusive recourses. Collective representative actions will enable consumers to seek redress in a wide range of areas such as general consumer law, data protection, financial services, travel and tourism, energy, telecommunications, environment and health or train passenger rights.READ MORE

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Belgian Court Confirms Arbitrability of Exclusive Distribution Agreements Governed by Foreign Law

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On 19 May 2020, the Leuven (Belgium) Enterprise Court (the Leuven Court) ruled that, following the reform of the Belgian arbitration rules in 2013, arbitration clauses in exclusive distribution agreements were valid, even if these agreements were governed by foreign law (judgment of 19 May 2020 in case A/20/00034, Akron NV v. Amphenol (Maryland) Inc.).

The judgment was given in the context of a dispute between a U.S. supplier and its former Belgian distributor following the supplier’s decision to unilaterally terminate the distributor’s distribution agreement dated 1 April 2018 for serious misconduct. While the distribution agreement contained an arbitration clause pursuant to which any dispute had to be settled by arbitration proceedings in the USA in accordance with the Commercial Arbitration Rules of the American Arbitration Association, the distributor initiated proceedings before the Leuven Court and claimed damages based on Title 3 of Book X of the Code of Economic Law (CEL), i.e., the Belgian mandatory rules on the unilateral termination of exclusive or quasi-exclusive distribution agreements of indefinite duration.READ MORE

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U.S. Supreme Court Rules on Retroactivity of New FSIA Cause of Action

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On 18 May 2020, the U.S. Supreme Court (the Supreme Court) handed down its decision in Opati v. Republic of Sudan. It ruled that a new cause of action added in the Foreign Sovereign Immunities Act (the FSIA), which allowed plaintiffs to seek punitive damages from foreign governments who sponsor terrorist activities, could be applied retroactively.

The case at hand relates to the 1998 Al Qaeda bombings of the U.S. Embassies in Kenya and in Tanzania.

Following these terrorist attacks, several victims sued the Sudanese government in U.S. courts claiming damages, as Sudan had allegedly supported and protected Al Qaeda.

The plaintiffs relied on an exception to the FSIA’s general rule that foreign governments enjoy immunity and cannot, in principle, be brought before U.S. courts. According to that exception, the immunity enjoyed by foreign governments does not apply to acts of terrorism and to States that sponsored such terrorist activities. However, at the time, this exception did not allow plaintiffs to seek punitive damages.READ MORE

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WTO and Multi-Party Interim Appeal Arbitration Arrangement: Searching for Right Medicine

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By Thibaud Bodson – PhD candidate at the Human Rights Under Pressure program – Freie Universität Berlin & Hebrew University of Jerusalem. The views expressed in this article are those of the authors only.

A group of World Trade Organisation’s members recently endorsed the Multi-party interim appeal arbitration arrangement. This arrangement aims to keep a two-tier adjudication system operating as long as the WTO’s Appellate Body is stalled. As such, it offers a short term fix to the jurisdictional arm whilst the membership tries to move ahead in its search for the right medicine. This blogpost discusses some of the arrangement’s main features.READ MORE

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CJEU Lacks Jurisdiction to Rule on Slovenia/Croatia Border Arbitration Dispute

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On 31 January 2020, the Grand Chamber of the Court of Justice of the European Union (the CJEU) handed down its judgment in Slovenia v. Croatia (C-457/18), declaring that the CJEU lacked jurisdiction to rule on the interpretation of an arbitral award settling the border dispute between the two countries.READ MORE

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