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international litigation blog

January 14, 2020 In Jurisdictional issues, Parallel litigation & Lis pendens, Special guest(s) By Quentin Decleve

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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December 10, 2019 In Uncategorized By Quentin Decleve

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

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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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December 2, 2019 In Uncategorized By Quentin Decleve

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

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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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November 20, 2019 In Annulment of arbitral awards, Investment Law By Quentin Decleve

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

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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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October 30, 2019 In Intra-EU BIT, Investment Court System By Quentin Decleve

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

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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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October 22, 2019 In Investment Court System, Investment Law By Julian Arato

ISDS Reform: Working Group III Gets Down to Brass Tacks

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Last week, multilateral efforts to reform investor-state dispute resolution (ISDS) entered a new phase, with substantive discussions of reform options beginning in earnest. As readers of this blog are aware, delegations from around a hundred States have been working multilaterally toward reforming ISDS in the United Nations Commission on International Trade Law (UNCITRAL), Working Group III (WGIII) over the last two years.

This work began in earnest in WGIII’s 34th Session in Vienna (2017) and has continued through biannual Sessions in Vienna and New York. From 2017–2018, Delegations registered substantial concerns with ISDS, relating to fragmented arbitral outcomes; the arbitrators charged with adjudicating disputes; matters of duration and cost; the lack of a framework to address multiple proceedings; and third-party funding (Phase 1). In Vienna last year, WGIII decided to work multilaterally to reform such concerns within UNCITRAL (Phase 2) – discussed further here. Last week proved to be a key hinge in the process. WGIII has now moved firmly into working on concrete reform options (Phase 3).

WGIII’s 37th Session in New York this past Spring 2019 appeared as something of a lull in the process, but it culminated in a key compromise on working methods that preserved consensus for the time being. WGIII spent much of that week debating working procedures, ultimately adopting a compromise plan to divide working time between developing “structural reforms” (i.e., large scale institutional reform options like a standing investment court or a standalone appellate body), and “functional reforms” (i.e., specific targeted reforms on problematic aspects of ISDS, like the lack of code of conduct, the lack of a mechanism to address multiple claims and shareholder claims more generally, third party funding, and security for costs). But it deferred actually developing a concrete project schedule until the fall.

WGIII’s 38th Session in Vienna last week marked the fruition of that compromise, and a transition into detailed discussions on reform options.READ MORE

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October 16, 2019 In 28 U.S.C. Section 1782 By Quentin Decleve

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.

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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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