Amsterdam, The Netherlands

Recognising foreign judgments and the principle of exhaustion

By Michiel Teekens, TeekensKarstens advocaten notarissen

Based on private international law, a foreign decision from a nontreaty state is recognised in the Netherlands if, among other criteria, the recognition of the foreign decision is not contrary to Dutch public order. In such recognition proceedings it is often claimed by the defendant that the foreign legal proceedings and/or the foreign judgment violates its fundamental rights and is therefore contrary to the Dutch public order. The Dutch Supreme Court ruling of 05 April 2002 (ECLI:NL:HR:2002:AD9145) stipulated that a defendant that did not exhaust its legal remedies against the claimed violation of fundamental rights, cannot rely on the defence that recognition of the foreign judgment is contrary to the Dutch public order.

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New York, USA

The Supreme Court to determine issues concerning subject matter jurisdiction

By Leslie A. Berkoff, Moritt Hock & Hamroff LLP

On 17 May 2021, the US Supreme Court granted certiorari to address the question of whether federal courts have subject matter jurisdiction to confirm or vacate an arbitration award under the Federal Arbitration Act (“FAA”) where the only basis for jurisdiction is that the underlying dispute involves a question of federal law (see Badgerow v. Walters, No. 20-1143). The appeal challenges a Fifth Circuit decision finding that under Section 4 of the FAA, a petition to compel arbitration can be determined by “any United States district court which, save for [the arbitration] agreement, would have jurisdiction …[over the subject matter]” (9 U.S.C. § 4).

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New York, USA

Will the Supreme Court Further Restrict Jurisdiction of US Courts Over Foreign Entities?

By Howard L. Simon, Windels Marx Lane & Mittendorf LLP

At stake in a pair of cases pending before the Supreme Court is the reshaping of the constitutional due process standard for whether a US court can adjudicate a claim against a non-resident entity. It has long been the rule that depending on the nature of a defendant’s contacts with a forum, the court may exercise either general or specific personal jurisdiction over the defendant. Based on the Supreme Court’s 2014 Daimler decision, general jurisdiction – whereby a court may hear any and all claims against a defendant – is now limited, except in “exceptional” cases, to a corporation’s place of incorporation or its principal place of business.

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New York, USA

The Continuing Erosion of Arbitration Clauses in Bankruptcy Cases

By Leslie A. Berkoff and Michael C. Troiano, Moritt Hock & Hamroff LLP

Although federal courts in the US generally give deference to arbitration agreements, consistent with the mandate of the Federal Arbitration Act (FAA), bankruptcy courts often utilise an exception contained in the FAA and subsequent case law to retain jurisdiction over a dispute; this exception provides that courts may preclude arbitration of a dispute where there is an inherent conflict between arbitration and the underlying purposes of the implicated statute.

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Leiden, The Netherlands

What Constitutes Express Agreement for Valid Jurisdiction?

By Michiel Teekens, TeekensKarstens advocaten notarissen

The Netherlands Commercial Court (NCC) is a specific branch of the Amsterdam Court and Amsterdam Court of Appeal, and focuses on international commercial disputes. These include summary proceedings and main proceedings. Proceedings and judgments are in the English language. Like arbitration institutes, the jurisdiction of the NCC is dependent on an express agreement by parties.

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“Made in Italy” and the Certification Trademark - The Change of Direction as of 01 January 2021

By Dr Mariagiulia Signori and Dr Cecilia Trevisi, COMMA 10

Legislative decree no. 15/2019 brought Italian legislation into line with directive EU 2015/2436 and regulation 2015/2424. The main innovations include the reinforcement of the PDO (Protected Designation of Origin)/PGI (Protected Geographic Indication), of the traditional terms for wine (TTV), and the traditional specialities guaranteed (TSG), as well as the introduction of the certification trademarks alongside the collective trademarks.

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Glasgow, Scotland, UK

How to Expeditiously Resolve Disputes in the Aftermath of COVID-19 and Why You Need to

By A. Ross Taylor, Wright, Johnston & Mackenzie LLP

COVID-19 has hit the global economy hard. Around the world, unemployment was up in 2020 compared to 2019. New job vacancies have shrunk, and many countries are in recession. Interest rates have been cut to help borrowing. Cashflow is tight and capital reserves are reducing. Inevitably, businesses will have less resources from which to fund costly litigation. They will have less appetite to do so too, because management time is consumed by effecting change to accommodate the new normal.

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Dublin, Ireland

Frustration of Contracts in Ireland

By Thomas O’Dwyer, Beauchamps

Contracts often contain a Force Majeure clause which provides what should happen if it cannot be performed due to intervening external circumstances. However, where no such clause is included, the contract may be deemed to be frustrated if it cannot be performed due to unforeseen circumstances beyond the control of either party.

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