Importance of determining the relevant body to take a lawsuit

By Francis P. Donovan and Jean-Philippe Bolduc, Ravinsky, Ryan, Lemoine, LLP

As part of a bailout provided by the Canadian government to General Motors during the 2008 financial crisis, over 200 GM dealerships were closed, with GM offering dealers compensation pursuant to Ontarian wind down agreements. A class action was filed in Ontario, alleging that the firm Cassels Brock and Blackwell LLP gave negligent legal advice to the dealers. Cassels Brock added 150 Canadian law firms, which had also given dealers advice pursuant to the agreements, as third party defendants.

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Opportunities of a mediation within a civil procedure in Germany

By Dr Angelika Baumhof & Christian Pflaeger, Jakoby Dr Baumhof

Why go to court and transfer the case to a mediating judge? Does that make sense? The German Civil Procedure Code allows the parties to suspend the civil procedure and have the case transferred to a different judge who has undergone specific mediation training upon mutual agreement.

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The Recast Brussels Regulation

By Michiel Teekens, TeekensKarstens advocaten notarissen

The new Regulation (EU) No 1215/2012 on jurisdiction and the recognition of judgments in civil and commercial matters (Recast Regulation) applies to proceedings commenced in the courts of the European Union’s Member States from 10 January 2015 and amends the better known Brussels Regulation, (EC) No 44/2001. Some changes are significant:

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Conflict of Law Rules of Japan

By Seiichi Yoshikawa, Koga & Partners

In Japan, a new statute on conflict of laws was promulgated in 2006. Under the new law, the governing law on contract is the law that the parties have selected, and if the parties have not so selected, the law of the place which has the most significant relationship with the contract.

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Drafting restrictive Covenants: The importance of clarity

By Jean Lemoine and Francis P. Donovan, Ravinsky Ryan Lemoine, L.L.P.

Restrictive covenants such as noncompetition and non-solicitation clauses have become a common feature in employment contracts, contracts for the sale of a business and a variety of other commercial transactions. In Canada, Courts are generally more inclined to consider such covenants as being excessive – and therefore invalid – in employment matters than in business matters. However, what of the very common hybrid situation in which the seller of a business remains for a time as an employee after the sale?

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Jurisdiction and Cross-Border Commercial Mediation in the EU

By Prof. Dr. Renate Dendorfer-Ditges & Philipp Wilhelm, DITGES PartGmbB

Mediation is increasingly considered as an alternative to settle commercial cross-border disputes. Regularly the question is raised whether the result of mediation will be enforceable. In this respect, it is advisable to draft the final agreement enforceable according to the law of that state in which enforcement is expected, e. g. as a notarial deed (see sec 794 para 1 no 5 German Code of Civil Procedure/ZPO), a settlement reached among attorneys (see sec 796a, sec 796b ZPO), or a settlement concluded by the parties before a court (see sec 794 para 1 no 1 ZPO).

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New generic top level domains and new alternative dispute resolutions (Part I)

By Jonathan Agmon, Soroker - Agmon Advocates

As various new generic top level domains (gTLD) come into play new alternative dispute resolution mechanisms come into effect to deal with new dispute resolution load and the changing domain name space. At present some 20 gTLD comprise the entire gTLD space. These have been operating for many years, the most known among them are the .com, .net and .org domain name spaces.

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Damages in Fraud Claims

By Nicholas Scott and Eleanor Hassani, Memery Crystal

In the recent case of OMV Petrom SA v Glencore International AG [2015] EWHC 666 (Comm), Flaux J, sitting in the Commercial Court, had to determine the correct measure of damages in a case where the seller, Glencore, had fraudulently delivered crude oil of a blend which differed from that specified in the contract. The Court determined that the correct measure of damages was the difference between the price paid for the shipments and the actual value of what was delivered as at the date of delivery. Although the case arises in the context of oil trading, the principles are applicable to all fraud claims, regardless of subject matter.

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Arbitration: the Good, the Bad and the Ugly

By Nick Scott, Memery Crystal

International commercial arbitration is fast becoming the most popular means of dispute resolution for multinationals, particularly where one of the contractual counter-parties is a government or parastatal entity. The London Court of International Arbitration recorded a new high of 301 cases in 2013, up 10% from 2012, which may be down to arbitration’s more effective international enforcement regime. Figures for 2014 are not yet available  but are thought likely to continue this upward trend. This is a high-level summary of the advantages and disadvantages of arbitration when compared with litigation in England, which should be considered by in-house lawyers and commercial decision makers when deciding on the most appropriate dispute resolution procedure at the time of entering into a contract.

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