Quentin Decleve, Author at international litigation blog
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Author:Quentin Decleve

French Court Issues Anti-Anti-Suit Injunction Claim in FRAND Dispute

Article drafted by Steve Ross, Associate at Van Bael & Bellis

On 8 November 2019, the Paris Court of First Instance (Tribunal de Grande Instance) (the French Court) issued a judgment (in case RG 19/59311) for a preliminary injunction in a case pitting IPCOM GmbH & Co. KG (IPCom), an intellectual property rights licensing and technology R&D company, against Lenovo/Motorola (Lenovo), a telecommunications company. The French Court held that it had jurisdiction over the case with regard to a patent infringement claim and ordered Lenovo to withdraw the motion for an anti-suit injunction which that company had brought before the US District Court of the Northern District of California (the US Court) in so far as it concerns the French part of the patent.READ MORE

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EU Council Revises and Approves Proposal for Directive on Collective Representative Actions

On 28 November 2019, the Council of the European Union (the Council) revised and approved the proposal for a Directive (the Draft Directive) on collective representation actions for the protection of collective interests of consumers.

The Draft Directive was initially proposed by the European Commission in April 2018 and was then examined, in first reading, by the European Parliament (the EP).

The Draft Directive aims to empower qualified entities, such as consumer organisations, to seek, in addition to injunctions, redress measures, including compensation or replacement, on behalf of a group of consumers that has been harmed by a trader in areas such as data protection, financial services, travel and tourism, energy or telecommunications.READ MORE

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Cross-Border Debt Recovery: CJEU Rules on European Account Preservation Order Procedure

On 7 November 2019, the Court of Justice of the European Union (the CJEU) handed down a judgment in which it ruled that if a creditor wishes to rely on an order for payment in order to benefit from the European Account Preservation Order (EAPO) procedure against a debtor, this order for payment must be enforceable under the relevant domestic law.READ MORE

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CJEU Expected to Rule on Notion of “Investment” in Energy Charter Treaty

On 24 September 2019, the Paris Court of Appeal handed down a judgment in which it decided to refer three questions for preliminary ruling to the Court of Justice of the European Union (the CJEU) regarding the definition of an “investment” in the Energy Charter Treaty (the ECT).

The upcoming decision of the CJEU is likely to have a great impact on the scope of future ECT based investment arbitration proceedings, which require, pursuant to Article 26(1) of the ECT, that the dispute relate to “an investment“.READ MORE

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EU Commission Presents Proposals for Investment Court System in CETA and Announces Plurilateral Treaty to Terminate Intra-EU BITs

A couple of days before Working Group III of the United Nations Commission on International Trade Law (UNCITRAL) held its 38th session on the reform of investment arbitration, the European Commission (the Commission) presented four proposals (the Proposal(s)) to the Council of the European Union (the EU) for specific rules to put into place the Investment Court System (the ICS) provisions in the EU-Canada Comprehensive Economic and Trade Agreement (the Agreement or CETA).

The ICS included in CETA represents a new approach by the EU in relation to investment-related disputes and is the same approach taken in the agreements the EU has negotiated with Singapore, Viet Nam and Mexico, while also being on the table in all on-going investment negotiations.

The foundation of the ICS is already established in CETA (as discussed here, here and here), however it remains to be applied pending ratification of the Agreement by all of the EU Member States. The Joint Interpretative Instrument on CETA agreed by the EU and Canada in October 2016 includes a commitment to make the system operational as soon as the Agreement enters into force. The Proposals are thus necessary to deliver on this commitment and these rules complete the putting together of the reformed approach to investment dispute settlement under CETA.READ MORE

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U.S. Circuit Court Finds Section 1782 Allows for Obtention of Evidence Located Outside the U.S. Detained by Companies not Incorporated in the U.S.

On 7 October 2019, the United States Court of Appeals for the Second Circuit (the Second Circuit) rendered a decision in the case of Re: Application of Antonio del Valle Ruiz in which it ruled on whether 28 U.S.C. Section 1782 (Section 1782) allows for the obtention of evidence located outside the United States.

As we discussed before, Section 1782 is a U.S. Federal Statute that allows a litigant before a “foreign or international tribunal” outside the United States to apply to the U.S. district courts to obtain discovery against a person or entity residing or found in the district where the application is sought. As many jurisdictions, in particular civil law jurisdictions, have more limited procedures for the disclosure of evidence between parties, the possibility of using Section 1782 to obtain evidence is thus potentially very useful.

The case related to a dispute over the 2017 take-over, by the Spanish bank Santander, of Banco Popular Espanol, another Spanish bank. A group of Mexican and American investors contested the take-over and brought a case against Santander in the United States. During the dispute, the investors sought to obtain documents held by Santander. However, since Santander itself was not incorporated in the United States (and thus was not “residing or found” in the relevant district), the investors sought to obtain discovery, through a Section 1782 order issued against Santander‘s New York affiliate: Santander Investment Securities Inc.READ MORE

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Nord Stream 2 Investor Initiates ECT Arbitration Proceedings Against European Union

On 26 September 2019, the Russian energy giant Gazprom issued, through its Switzerland-based subsidiary Nord Stream 2 AG, a notice for arbitration against the European Union alleging that recent amendments brought to Directive 2009/73/EC concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (the Gas Directive) damaged its investments in the Nord Stream 2 pipeline and thus violated the Energy Charter Treaty 1994 (the ECT).

The issuing of this notice for arbitration appears to mark the first time that investment arbitration proceedings under the ECT are to take place against the European Union itself and serves as the latest saga in the area of inter-mixity of investment dispute settlement and EU law.READ MORE

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