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English Court of Appeal Rules on Claims Brought by Foreign Plaintiffs, Against Foreign Defendants, for Conduct Outside the U.K.

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Two recent judgments of the English Court of Appeal (the Court of Appeal) have shed light on the approach of the U.K. courts towards civil actions taken against parent companies for wrongs allegedly committed by foreign subsidiaries abroad.

Both cases concerned the responsibility of parent companies for actions of their subsidiaries and the jurisdictional rules for taking claims in the U.K. arising from facts occurring in other countries. They provide interesting perspectives on the traditional doctrine of separate corporate personality and the principle of forum non conveniens  in common law. Both cases are consistent with one another, and the second case sheds more light on the factual links between a parent and subsidiary which may give rise to a duty of care vis-à-vis third parties who are affected by the actions of the subsidiary.READ MORE

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

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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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Achmea: Potential Consequences for CETA, the Multilateral Investment Court, Brexit and other EU trade and investment agreements

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This article has jointly been co-authored by Quentin Declève and Isabelle Van Damme

On 6 March 2018, the Court of Justice of the European Union (the CJEU) delivered its long-awaited judgment in Case C-284/16 Achmea. This case raised the issue of whether an arbitration clause in a bilateral investment treaty (BIT) concluded between two EU Member States (intra-EU BIT) is compatible with European Union (EU) law and, in particular, with the autonomy of the EU legal order.

As discussed in two previous posts (here and here), Advocate General Wathelet delivered, on 19 September 2017, an Opinion in strong support of international arbitration. He found that an arbitration clause such as that at issue in Achmea was not incompatible with EU law. The CJEU disagrees.

In this article, we summarise the key findings of the CJEU’s judgment and analyse its potential consequences for the EU-Canada Comprehensive Economic and Trade Agreement (CETA), for the proposed Multilateral Investment Court and for future EU trade and investment agreements (including the future agreement between the European Union and the United Kingdom).READ MORE

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Doctrinal Debate: Enforcement of Annulled Arbitral Awards – a U.S. perspective

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As mentioned in a previous post, I wanted to discuss with you some recent U.S. court decisions which have delineated the standards followed by local courts in enforcing annulled arbitral awards.

As is well-known, once an arbitral award is rendered, parties to a dispute often race to the courts: The winning party seeks the enforcement of the award while the losing party seeks its annulment.

Of course, if the losing party is successful in obtaining the annulment of an arbitral award, this situation can seriously complicate and even jeopardize the enforcement proceedings initiated by the winning party. Indeed, the New York Convention provides that a court may refuse to enforce a foreign award if “a competent authority” has set the award aside or has suspended it.

Notably, the wording of the Convention, and in particular the use of the word “may” (instead of “shall”), has given rise to discussions on whether a court remains entitled to enforce an award that has been set aside. This issue is particularly delicate as it often involves policy considerations.

In the United States, several court decisions have recently reassessed the standards to be applied by the courts when enforcing annulled awards.READ MORE

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…And Now France To Establish International English-Speaking Court

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As we discussed before, Brexit means that the United Kingdom will soon leave the European Union and, consequently, judgments rendered by U.K. courts will no longer enjoy automatic recognition and enforcement in the remaining EU member States. As a result, a creditor of a U.K. judgment will find it more difficult and costly to enforce this judgment in other EU jurisdictions.

In order for litigants to overcome this difficulty, several jurisdictions in the European Union (including Belgium, the Netherlands, Germany and Ireland) have, over the last couple of months announced plans to establish English-speaking courts which would have jurisdiction to hear international commercial disputes.

The common objective behind all those initiatives is clearly to prepare for Brexit by capturing some of the international litigation business currently located in London.

This trend continues as France just recently announced its intention to open an English-speaking chamber within the Paris Court of Appeal. As is the case in the other jurisdictions that have announced similar plans, this chamber will have jurisdiction to hear disputes with a foreign characteristics (for instance in which at least one of the parties is a foreign entity or if foreign law is applicable). Interestingly, it will also have jurisdiction to hear appeals against international arbitral awards and actions regarding the enforcement of international arbitral awards.READ MORE

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Paris Court of Appeal Confirms Extensive Role of International Public Policy in Arbitral Awards Annulment Proceedings

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On 16 January 2018, the Paris Court of Appeal (the Court of Appeal) rendered an interesting decision in which it applied the international public policy doctrine to annul an ICC arbitral award rendered in 2015 in a dispute between a Russian company (MK Group) and Ukrainian companies (including Onix). The case concerned the litigious transfer of 60% of the shares of Dao Lao (Dao Lao), a Laotian company active in gold mining in Laos.READ MORE

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