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international litigation blog

New EU Commission Proposal for a Directive on Collective Representative Actions

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On 11 April 2018, the EU Commission published a new legislative proposal on representative actions for the protection of the collective interests of consumers, and repealing Directive 2009/22/EC (the Proposal). In light of increasing cross-border trade and EU-wide commercial strategies, the Proposal aims to facilitate redress for consumers where there are widespread infringements of their rights in more than one EU Member State.READ MORE

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EU Commission Holds Second Stakeholder Meeting on Multilateral Investment Court

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As you certainly know, international discussions are being held within UNCITRAL Working Group III (Working Group III) regarding the establishment of a multilateral investment court (Multilateral Investment Court).

As discussed before (here, here, here, here and here) the establishment of such a Multilateral Investment Court aims to address the numerous criticisms concerning existing investor-State dispute resolution (ISDS) mechanisms.

The first round of discussions took place in November 2017 in Vienna and the second round is scheduled to take place next week in New York City (23-27 April 2018).

As it did prior to the first round of negotiations in November 2017 (see our report), the European Commission (the Commission) held, on 13 April 2018, its second stakeholder meeting in order to discuss and share with civil society the key aspects of the negotiations  and the expectations regarding next week’s discussions in New York.

I was unfortunately not able to attend this stakeholder meeting. However, my colleague Benedict Blunnie has taken part in those discussions and has provided us with a summary of the points which have being raised.READ MORE

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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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