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international litigation blog

The Netherlands to Introduce Possibility for Damages Claims Under Class Action System

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As explained in my latest contribution in Business Law International (“Fortis’s Settlement: A comparative case-study of (securities) class action mechanisms in Europe and in the United States“), the Netherlands presently offer one of the most friendly regimes in Europe for collective actions. Unlike the U.S. class action system, however, the Netherlands does not offer the possibility to obtain monetary damages under the current class action rules.

Nevertheless, a new bill (the Bill) recently put before the Dutch legislature suggests that this significant limitation could be on the way out. I therefore wanted to take this opportunity to briefly introduce you to the future changes that might be brought to the class action regime in the Netherlands.READ MORE

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U.S. Second Circuit Clarifies Law on Arbitral Award Enforcement

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On 18 January 2017, the U.S. Second Circuit Court of Appeals (the Second Circuit) overturned a ruling by the Southern District of New York (SDNY) dismissing an action to enforce an ICC arbitration award rendered in Paris. The judgment (subject to a later correction issued in March) will likely be cited often as it helps clarify how the influential Second Circuit views the enforcement of awards, the applicable law regarding who an award may be enforced against, and what issues an award may preclude from later judgment.READ MORE

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U.K. Supreme Court Clarifies Rules to Order Security As Condition to Challenge Arbitral Awards Enforcement Proceedings

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On 1 March 2017, the U.K. Supreme Court (the Supreme Court) found that an arbitral award debtor should not be required to pay USD 100 million in security as a pre-condition to adjourn the enforcement of the arbitral award until a decision is taken on the annulment of the award.

The Supreme Court’s decision was issued in proceedings between Nigerian National Petroleum Corporation (NNPC) and IPCO (Nigeria) Ltd (IPCO). The latter was awarded USD 152 million following arbitration proceedings seated in Nigeria. NNPC sought to set aside the award before the Nigerian courts initially on jurisdictional grounds and, from 2009 onwards, on allegations of fraud.

Meanwhile IPCO sought the enforcement of the arbitration award before the U.K. Commercial Court. This was granted on an ex parte basis, but was soon challenged by NNPC which sought to have the enforcement order set aside or adjourned, in light of NNPC’s ongoing challenge against the award in Nigeria. In response, the U.K. Commercial Court agreed to adjourn the enforcement order under section 103(5) of the U.K. Arbitration Act 1996 (the Act). This provision allows a court before which an enforcement action is pending to adjourn its decision pending the decision on the setting aside or suspension of the award at the seat of arbitration. In this case, however, the Commercial Court subjected the adjournment of the order to the payment of security worth USD 50 million, later increased to USD 80 million in 2008.READ MORE

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Personal Thoughts on Admissibility of Third Party Opposition Against Arbitral Awards

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I wanted to share with you some general personal thoughts regarding the recent decision of the Belgian Constitutional Court (the Constitutional Court) holding that third parties should be entitled to lodge third party opposition (tierce opposition) against arbitral awards.

As we discussed before, the Constitutional Court ruled that Article 1122 of the Belgian Judicial Code violated Articles 10 and 11 of the Belgian Constitution (i.e. the provisions of the Belgian Constitution on equality and non-discrimination), as this provision allowed third parties to challenge the validity of judgments rendered by a civil or a criminal court by means of third party opposition but did not offer third parties the same possibility to challenge arbitral proceedings.

According to its current reading, third party opposition under Article 1122 of the Belgian Judicial Code aims at bringing the parties back (for new proceedings) before the same judge who previously ruled on the case in the absence of the third party. Until the decision of the Constitutional Court of 16 February 2017, however, this solution applied to judicial proceedings only.

However, now that the Constitutional Court has found that this possibility should also be offered to third parties to arbitral proceedings, does this mean that new arbitral proceedings (in the presence of the third party) will have to take place before the initial arbitrators in the event that a third party files a third party opposition?READ MORE

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France Amends Rules on State Immunity from the Execution of Judgments and Arbitral Awards

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On 9 December 2016, the French Parliament adopted a law (the Law) which amended the rules on State immunity from the execution of judgments and arbitral awards contained in Article L 111-1 of the French Code on Civil Enforcement Procedures (Article L 111-1). The Law now makes it more difficult for a creditor to enforce, in France, a judgment or an arbitral award on goods belonging to a foreign State.READ MORE

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Kiobel Returns before Dutch Courts Seeking Application of Section 1782

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Royal Dutch Shell (Shell) is currently having a tough time defending itself in court: A few days ago, we discussed the recent judgment from the English High Court that dismissed a claim brought against Shell for oil pollution in Nigeria. This time we discuss a decision by the U.S. District Court of the Southern District of New York (the S.D.N.Y) which granted a petition to access documents in the possession of Shell’s lawyers for use in legal proceedings against Shell in the Netherlands.READ MORE

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