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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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CJEU’s Advocate General Issues Opinion on State Immunity and Summary Proceedings Involving International Organisations

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On 2 April 2020, the Advocate General[1] to the Court of Justice of the European Union (CJEU), Henrik Saugmandsgaard Øe (AG Saugmandsgaard Øe), handed down an Opinion in a case which raised very interesting issues relating to the interaction and application of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Ibis Regulation) in summary proceedings involving international organisations. The case also raised interesting issues relating to the interplay between the Brussels Ibis Regulation and the immunity enjoyed by such international organisations.READ MORE

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ECtHR Rules on Impartiality of Turkish Arbitration Proceedings for Settling Football Disputes

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On 28 January 2020, the European Court of Human Rights (the ECtHR) ruled that Turkish arbitration rules applicable to the settlement of football disputes were incompatible with Article 6 § 1 (right to a fair trial) of the European Convention of Human Rights (the ECHR).

The case originated in five applications against Turkey lodged by Ali Rıza, (a dual British and Turkish citizen), and four Turkish nationals: one football referee (downgraded from top-level assistant referee to “provincial referee”) and three amateur football players (found guilty of match-fixing charges).

All five applicants complained that the proceedings before the legal committees of the Turkish Football Federation (the TFF) had not satisfied the requirements of independence and impartiality under Article 6 § 1 ECHR.READ MORE

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Munich Court of Appeals Issues Anti-Anti-Suit Injunction in FRAND Case

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As a supplement to the blogpost published a couple of weeks ago on the judgment of the Paris Court of First Instance (Tribunal de Grande Instance) of 8 November 2019 which issued an anti-anti-suit injunction against Lenovo ordering that company to withdraw a request for an anti-suit injunction pending before a US Court, Mr Peter Bert (a reader of this blog) shared with me an article that he wrote concerning a similar case recently put before German courts.

My colleagues Steve Ross and Rebecca Halbach discussed this German case in the latest edition of Van Bael & Bellis’ Competition Law Newsletter. I have decided to reproduce their article below.

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Article drafted by Steve Ross and Rebecca Halbach

On 12 December 2019, the Munich Court of Appeals (Oberlandesgericht München) (the Court) upheld the judgment of the Munich District Court (Landgericht München I) of 2 October 2019 which had granted a preliminary injunction in a case pitting Continental (Continental), an automobile supplier, against Nokia (Nokia), a telecommunications company. The Court ordered Continental to withdraw the action for anti-suit injunction which that company had brought against Nokia before the US District Court of the Northern District of California (the US Court) in a patent dispute.READ MORE

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Proposal for Directive on Collective Representation Actions Enters Interinstitutional Negotiations

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On 9 January 2020, the Legal Affairs Committee of the European Parliament (the EP) decided to open interinstitutional negotiations with representatives of the Council of the European Union (the Council of the EU) and of the European Commission in order to reach a compromise on the conclusion of a Directive repealing Directive 2009/22/EC as regards representative actions for the protection of the collective interests of consumers (the Directive Proposal). As discussed before (here and here), the Directive Proposal aims to facilitate redress for consumers if there are widespread infringements of their rights in more than one EU Member State.

The Directive Proposal was initially approved in first reading by the EP in March 2019. On 28 November 2019, the Council also agreed on a general approach as regards to the Directive Proposal.

Following the decision of the Legal Affairs Committee of the EP’s, the EU institutions will now cooperate with a view to reconcile their positions in order to adopt the Directive Proposal without having to enter into a second reading process.

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ISDS Reform: Designing Permanent Institutions at Working Group III

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Last week, the United Nations Commission on International Trade Law (UNCITRAL) Working Group III (WGIII) turned squarely to designing permanent adjudicative institutions for the resolution of investment disputes. As readers of this blog may be aware, WGIII is charged with developing multilateral reforms to the current ad hoc system of investor-state dispute resolution (ISDS). This government-led process involves delegations from around a hundred States, with active participation by dozens of observer delegations from international organizations, arbitral institutions, NGOs, business associations, and learned societies. Beginning in WGIII’s 34th Session in 2017, this work has continued through biannual sessions in Vienna and New York. From 2017 to 2018, delegations registered substantial concerns with ISDS, relating to fragmented arbitral outcomes; arbitrator independence, impartiality, and diversity; duration and cost; multiple proceedings; and third-party funding (Phase 1). In the fall of 2018, WGIII decided to work multilaterally to reform such concerns within UNCITRAL (Phase 2). As of its 37th Session in 2019, WGIII has moved firmly into working on concrete reform options (Phase 3) (discussed here).

WGIII’s 38th Session in Vienna marked a key transition into detailed discussion of reform options. Meeting initially in October 2019, the WGIII held discussions on a series of reform options according to a pre-determined project schedule. This work was grounded in proposals by over forty-five governments, across twenty-three submissions (here); complemented by several Secretariat papers; submissions by observer delegations (here); and concept papers by the Academic Forum on ISDS Reform (here). In this initial meeting, WGIII focused on (i) developing a multilateral advisory center; (ii) a code of conduct; and (iii) reforms to third-party funding (discussed here). Discussions centered on high level values, trade-offs and prioritization, with the goal of guiding the Secretariat as it turns to developing more concrete reform options.

Resuming its 38th Session in Vienna last week (January 2020), WGIII turned squarely to designing permanent institutions: (iv) a standing appellate mechanism; and (v) a multilateral investment court (MIC); as well as the cross-cutting question of (vi) selecting and appointing adjudicators. As with the discussions last fall, the goal was to discuss each reform option at a high level, to provide guidance to the Secretariat. The Working Group is not yet taking firm decisions on the desirability or ultimate form of any reforms, although some States are already revealing their preferences. Later this year, WGIII will develop a new project schedule and begin circling back to each topic, seriatim, with the benefit of new responsive work by the Secretariat, the Academic Forum, and other organizations (such as the OECD, ICSID, the PCA, and several NGOs).READ MORE

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

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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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