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Brussels Court of Appeal Upholds Attachment Order against Kazakhstan

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On 29 June 2021, the Brussels Court of Appeal (the Court of Appeal) handed down a judgment in which it upheld a protective attachment order over more than USD 500 million worth of assets, owned by Kazakhstan, and held with the Brussels subsidiary of the Bank of New York Mellon (the BNYM).

Background

The proceedings before the Belgian courts result from the efforts of two Moldovan investors (Anatolie and Gabriel Stati (the Investors)) who seek to enforce an arbitral award handed down in their favour in 2013. The arbitral tribunal (chaired by Karl-Heinz Böckstiegel) had found Kazakhstan liable for a harassment campaign against the Investors which ultimately resulted in a violation of the Energy Charter Treaty provisions on Fair and Equitable Treatment. As a result, the arbitral tribunal had ordered Kazakhstan to pay USD 508 million to the Investors as compensation for the damage suffered.

In the absence of voluntary payment from Kazakhstan, the Investors sought a protective attachment order from the Brussels Court of First Instance in 2017 enabling them to freeze assets owned by Kazakhstan held with BNYM pending the outcome of the proceeding leading to the recognition and enforcement of their arbitral award in Belgium. The protective attachment order was obtained in ex parte proceedings (i.e., without notice to Kazakhstan). However, upon notice of the attachment order, Kazakhstan lodged a third-party challenging the validity of the protective order. After the Brussels Court of First Instance dismissed the third-party opposition, Kazakhstan appealed that decision before the Court of Appeal.READ MORE

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Brussels Court Issues Judgment against Belgian Government in Climate Change Litigation

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On 17 June 2021, the French-speaking Brussels Court of First Instance (the Court) handed down its judgment in the so-called “Klimaatzaak” case, in which it found that the federal government as well as the governments of the three Belgian regional entities (i.e., Flanders, Wallonia and Brussels-Region) breached Article 1382 of the Belgian Civil Code on tort liability and Articles 2 and 8 of the European Convention on Human Rights (the ECHR) by failing to take the necessary measures to limit the adverse effects of climate change on the country’s population.

On 27 April 2015, the environmental non-profit association “Klimaatzaak” representing 58,000 Belgian citizens (the claimants) filed a lawsuit against the Belgian federal government as well as against the governments of the three regional entities, alleging that these authorities breached their general duty of care and the citizen’s human rights by failing to implement their commitments in terms of fighting climate change.

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European Commission Rejects UK Application to Join Lugano Convention

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On 4 May 2021, the European Commission (the Commission) published a communication which recommends that the European Union (the EU) should not approve the United Kingdom’s (UK) application to accede to the 2007 Lugano Convention (Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; the Lugano Convention).

The Lugano Convention governs international jurisdiction and the enforcement of judgments in civil and commercial matters between the EU Member States and three of the European Free Trade Association (EFTA) States, notably Iceland, Switzerland and Norway.

In its communication to the European Parliament and the Council, the Commission indicated that the Lugano Convention is aimed solely at third countries that have a particularly close regulatory integration with the EU and that “participate, at least partly, in the EU’s internal market“, which is the case for countries that are part of the European Economic Area. By deciding to leave the EU and the Single Market, the UK has, in the view of the Commission, become a “third country without a special link to the internal market“. As a result, the Commission considers that future civil judicial cooperation between the EU and the UK should be governed by the multilateral Hague Conventions, in line with the EU consistent policy towards all third countries.

The Commission’s recommendation is non-binding and the final decision on the UK accession rests on the EU Council.

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UK Supreme Court Confirms Jurisdiction Over Claims Brought Against UK Parent Companies for Acts Committed Abroad by Foreign Subsidiaries

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On 12 February 2021, the UK Supreme Court (the Supreme Court) handed down judgment in the Okpabi and others (Appellants) v. Royal Dutch Shell Plc and another (Respondents). The case follows from a decision of the English Court of Appeal (the Court of Appeal) on 14 February 2018 which was discussed here.

The preliminary question before the Supreme Court regards the admissibility, before U.K. courts, of legal proceedings brought by a Nigerian farming and fishing community of approximately 40,0000 individuals against Royal Dutch Shell (RSD) – a UK-domiciled parent company – for oil pollution in the Niger Delta allegedly caused by RDS’s Nigerian subsidiary (Shell Petroleum Development Company of Nigeria Ltd (SPDC)).

In 2018, the Court of Appeal rejected the claim finding – among other things – that the claimants had failed to demonstrate an arguable case that RDS controlled SPDC’s operations in the Niger Delta or that RDS was otherwise responsible for the latter’s failures.

In its decision of 12 February 2021, the Supreme Court rejected the decision of the Court of Appeal as having erred in law.READ MORE

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Belgian Data Protection Authority Prohibits Use in Arbitration Proceedings of Personal Data Received in Breach of GDPR

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This article has been co-authored by Thibaut D’hulst (Counsel at Van Bael & Bellis) and Justine Van den Bon and Margot Vogels (Associates at Van Bael & Bellis)

By a decision of 29 January 2021, the Litigation Chamber of the Belgian Data Protection Authority (the DPA) prohibited a controller from passing on personal data obtained in breach of data protection rules to its legal counsel. The Litigation Chamber did not issue a fine, but the decision serves as a clear message that further processing of such unlawfully obtained personal data, even in the context of legal proceedings, is prohibited.

The dispute before the DPA involved an individual practising as a notary (the Plaintiff), her accountant (the First Defendant) and her former business partner also practising as a notary (the Second Defendant). The case at hand takes place in the broader context of arbitration proceedings relating to the winding-up of a notary practice due to financial issues and the refusal to submit certain accounting documents and other information.

The First Defendant mistakenly forwarded an e-mail with 32 annexes, which contained personal data relating to the Plaintiff, to the Second Defendant. This resulted in the disclosure of data relating to the Plaintiff’s personal activities, finances, and other personal data to the Second Defendant, without the Plaintiff’s consent. In turn, the Second Defendant forwarded the e-mail and its annexes to his legal counsel, who then used the e-mail and its annexes as an exhibit within the context of the pending arbitration proceedings between the Second Defendant and the Plaintiff.READ MORE

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European Commission Launches Public Consultation on Modernising Cross-border Judicial Cooperation

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On 16 February 2021, the European Commission (the Commission) launched a public consultation to gather the views of stakeholders on its initiative to propose a new legislation to digitalise all data exchanges and communications taking place in the context of judicial cooperation between EU Member States. The Commission’s proposal for a new legislation is expected to be published by the end of 2021.READ MORE

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EU and Canada Adopt Rules for Implementation of Investment Court System in CETA

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This article has been co-authored by Quentin Declève together with Nicholas Lawn (Partner at Van Bael & Bellis) and Isabelle Van Damme (Partner at Van Bael & Bellis)

On 29 January 2021, the European Union and Canada adopted four decisions (the Decisions) aimed at further implementing the Investment Court System (the ICS)  in the Comprehensive Economic and Trade Agreement between Canada, of one part, and the European Union and its Member States, of the other part (CETA). The Decisions will enter into force upon ratification of CETA by the EU Member States.

Following certain concerns expressed in relation to older models of investor-State dispute settlement (ISDS), the European Union has designed a new model for resolving disputes between foreign investors and States (or the European Union) which seeks to address such concerns. In particular, in recent years some have argued that the traditional form of ISDS does not guarantee fundamental rights and values relating to the independence of arbitrators, legitimacy, access to courts and transparency. In addition, traditional ISDS has been seen by some as failing to result in a coherent body of case-law regarding the interpretation and application of investment protection standards. The ICS aims to resolve these perceived shortcomings by establishing a permanent tribunal composed of independent and publicly appointed members of a first instance Tribunal and, in case of an appeal, an Appellate Tribunal.

Although the main characteristics of the ICS were already established in CETA (see Chapter 8 on Investment), some specific features and procedural mechanisms still had to be agreed by the EU and Canada. These details were therefore agreed in the Decisions of the CETA Joint Committee which (i) set out rules and procedures regarding the functioning of the Appellate Tribunal (the Decision on the Appellate Tribunal); (ii) establish a code of conduct for mediators and judges (the Decision on the Code of Conduct); (iii) provide rules for mediation (the Decision on Mediation); and (iv) establish rules for adopting binding interpretations of CETA (the Decision on Binding Interpretations).READ MORE

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