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Applicable law(s)

After Token Rush: International Litigation and Initial Coin Offerings (ICO) – Part 2

This article considers some of the international litigation questions that arise out of Initial Coin Offering (ICO).

In the first part of this article, we discussed in particular issues relating to jurisdiction. We now continue this discussion while also considering questions relating to applicable laws.

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Issues of jurisdiction are made somewhat more complex by the circumstance that many ICO’s general terms and conditions (TnC) contain clauses that may directly or indirectly affect the jurisdiction of courts. In this respect, the most obviously relevant type of agreement are forum selection clauses; in the case of the Tezos ICO, for instance, the TnC specified that “(a)ny dispute arising out of or in connection with the creation of the [tokens] and the development and execution of the Tezos Network shall be exclusively and finally settled by the ordinary courts of Zug, Switzerland“. As noted by the District Judge denying the motion to dismiss, this is best understood not as a “clickwrap agreement“, but as a “browsestrap” one: when subscribing, investors were not asked to check a box indicating consent to the TnC, but simply enabled to retrieve the TnC on the website advertising the ICO. In order to determine whether the forum selection clause is binding, hence, a case-by-case assessment is necessary, evaluating whether – given the circumstances of the case, such as the structure of the website – it is reasonable to expect that users in general accessed the TnC, and whether the claimant(s) in particular had any demonstrable knowledge of the contents of the TnC.READ MORE

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U.S. Supreme Court Says Interpretative Statements on Foreign Law by Foreign Governments not Binding on U.S. Courts

On 14 June 2018, the U.S. Supreme Court (the Supreme Court) gave judgment in Animal Science Products et al. v. Hebei Welcome Pharmaceutical Co. Ltd et al. finding that a federal court determining foreign law is not bound to accord conclusive effect to submissions of a foreign government.

The unanimous judgment concerned the application of Federal Rule of Civil Procedure 44.1 (Rule 44.1), which provides that a court may consider “any relevant material or source” when making a determination of foreign law, and that any such determination “must be treated as a ruling on a question of law“. In the case at hand, U.S. purchasers of vitamin C alleged that Chinese producers had formed a cartel and conspired to fix prices and quantities of exports in violation of U.S. antitrust law. The Chinese producers claimed that they were not liable for such a violation as they were legally obliged to comply with a pricing regime set by the Chinese Government.

At trial, the Chinese Ministry of Commerce intervened as amicus curiae in support of the Chinese producers. In its submission, the Chinese Government stated that the alleged cartel conspiracy was “a regulatory pricing regime mandated by the government of China“. The U.S. producers disputed this characterisation, and noted that the Chinese Government had (i) failed to identify any law or regulation expressly authorising such a regime and (ii) submitted in unrelated WTO proceedings that China had abandoned the practice of export administration of vitamin C.

At first instance, the District Court for the Eastern District of New York held that the Chinese Government’s submission was not conclusive and denied the Chinese producers’ application to dismiss the proceedings. On appeal, the Court of Appeals for the Second Circuit (the Appeals Court) reversed that decision, holding that it was “bound to defer” to reasonable interpretative statements made in court by a foreign government regarding the construction and effect of the foreign government’s own laws and regulations. The Supreme Court was therefore called upon to determine whether such statements could be considered conclusive when a federal court was required to determine foreign law in accordance with Rule 44.1.READ MORE

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Dutch Supreme Court Dismisses Request for Clarification on Applicable Law in Air-Cargo Competition Damage Claims

On 16 March 2018, the Dutch Supreme Court handed down its decision in a case referred to it by the Amsterdam District Court concerning the law to be applied in the mass damage claims brought against airline carriers accused of having operated a cartel in the air-cargo sector (click here for our previous report of this case).READ MORE

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Data Protection & International Litigation: Upcoming Developments in U.S. and EU Laws

As you would certainly have noted, data protection is on the rise and has become a daily source of concern for individuals as well as companies and businesses (suffice it to recall that, on 25 May 2018, the EU Global Data Protection Regulation (i.e. European Union’s major updated legislation on privacy and data protection) will enter into force. Meanwhile Uber and Equifax have just suffered major data breaches).

As demonstrated by the two cases below, international litigation is not immune from the flurry of excitement over privacy and data protection.

Maximilian Schrems v. Facebook Ireland Limited

The first case concerns a dispute pending before the Court of Justice of the European Union (the CJEU) between Maximilian Schrems and Facebook Ireland Limited (Facebook or Facebook Ireland).

Maximilian Schrems is a well-known Austrian activist in the field of technology and electronic privacy. Previously, Mr. Schrems had successfully challenged the transfer of data from the EU to the U.S. through the Safe Harbour regime.

In the present case, Mr. Schrems (who maintained two presences on Facebook: (i) an “account“, which was for personal use, and (ii) a public “page” used for promoting his books, lectures, media appearances and fundraising activities) sued Facebook Ireland, the European subsidiary of Facebook Inc., for alleged violations of his data protection rights, as well as those of seven other Facebook users.READ MORE

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Case to Watch: Dutch Supreme Court Expected to Rule on Applicable Law in Air-Cargo Competition Damage Claims

On 2 August 2017, the Amsterdam District Court handed down a ruling in which it announced its intention to refer to the Dutch Supreme Court the issue of which laws apply in mass damage claims brought against airlines carriers accused of having operated a cartel in the air-cargo sector.

In 2010*, the European Commission adopted a decision in which eleven air carriers (including British Airways, Air France/KLM, Air Canada and Lufthansa) were fined a total of almost EUR 800 million for fixing prices for fuel and security surcharges on airfreight services.

In the aftermath of this decision, many allegedly injured customers brought follow-on damage claims in multiple jurisdictions against the air-carriers, seeking compensation for their losses. The case at hand is one of those follow-on damage claims and was initiated before the Dutch courts by Stichting Cartel Competition, a litigation vehicle consolidating the claims and representing the interests of 266 freight customers.

Among the many complex issues which arise in the context of this dispute, the question of which law actually applies to such follow-on damage claims is particularly interesting.READ MORE

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