New York, USA

Supreme Court to determine whether prejudice impacts a determination of waiver of arbitrability

By Leslie A. Berkoff, Moritt Hock & Hamroff LLP

The US Supreme Court has granted a Petition for Writ of Certiorari in Robyn Morgan v Sundance, Inc. (No. 21-328) and will decide whether prejudice is a required element in determining whether the right to arbitrate has been waived. The Court is reviewing a decision of the Eighth Circuit wherein the Court found that the owner of 150 Taco Bell franchises had not waived its right to arbitrate the plaintiff’s claims, despite waiting almost eight months after commencing a lawsuit to move to compel arbitration.

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Moscow, Russia

Sanctions as a threat for access to foreign arbitration

By Ksenia Deeva, Nektorov, Saveliev & Partners

The Supreme Court of Russia issued a ruling1 that challenged all arbitration clauses concluded with Russian sanctioned companies. The main point is the following: Russian courts have the right to establish its exclusive competence due to the sanctions.

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The establishment of the Commercial Court in Cyprus

By Melina Karaolia, M. ELIADES & PARTNERS LLC

While we were planning for the LDR PG meeting to be held at the GGI Regional Conference in Limassol, we thought that the topic of the purpose and functionality of commercial courts, with a particular focus in Cyprus, would be an interesting one. At the time we were first discussing this, the Cyprus Ministry of Justice had deposited a draft bill in Parliament for the establishment of a Commercial Court that would deal with international matters, including in the English language if the parties so choose. The approval of court procedures in the English language would require constitutional amendments.

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Ontario Court of Appeal upholds data exclusion clauses in CGL Policies – no duty to defend

By Eric Blay and Dylan S. Fisher, Pallett Valo LLP

Canada’s first real judicial interpretation of a cyber liability policy is the decision in Family and Children’s Services of Lanark, Leeds and Grenville (FCS) v. Co-operators General Insurance Company (Cooperators), released in March 2021. In 2016 an unidentified hacker stole confidential reports from FCS, which were allegedly leaked onto Facebook, resulting in a class action against FCS for CAD 75 million in damages.

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Supreme Court reinforces and clarifies requirement of Article III “Concrete Injury” standing in both individual and class actions

By James J. Boland, Freeborn & Peters LLP

On 25 June 2021, the United States Supreme Court dealt a blow to class actions asserting claims for statutory damages. The Court strongly reinforced the rule that each class member in a class action must have suffered a concrete injury-infact in order to pursue a claim for monetary damages, even if the claim is for violation of federal statute and Congress has authorised the recovery of statutory damages.

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Saint Louis, USA

Time is not on your side: timeliness of forum non conveniens motions in the Eighth Circuit

By Tyler Schwettman, Sandberg Phoenix & von Gontard

Earlier this year, the US Court of Appeals for the Eighth Circuit issued an opinion in the case of Hersh v. CKE Restaurants Holdings, Inc., 995 F.3d 659 (8th Cir. 2021), in which it held that the defendants’ motion to dismiss on forum non conveniens grounds was untimely. As further explained below, this decision serves as a warning to litigants and advocates who may choose to hold off on filing a motion to dismiss based on such grounds. In short, sooner is better than later, and later may very well be too late.

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for sale

Selling your home without satisfying an IRS tax lien

By Alison Gadoua, Prager Metis International LLC

If you owe money to the Internal Revenue Service (“IRS”) then it is very likely that it will file a Notice of Federal Tax Lien (“NFTL”) against you to secure the debt. The NFTL provides the US government the right to collect the net proceeds of any sale of property that you own in the county in which a lien has been filed. The fastest way to have the lien released is to pay your debt in full. But what if you can’t afford to pay the debt in full? What if you are looking to sell your home but the sale will not produce any funds for the IRS to entice them to release their lien? Is all hope lost? No!

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Portland, USA

How to write a bad international alternative dispute resolution clause

By Jihee Ahn, Harris Bricken

Many of our clients believe alternative dispute resolution (ADR) clauses are little more than boilerplate, but well-drafted ADR clauses can not only put you on the winning side in any litigation, they can also cause your counterparty to back away from litigation entirely. Unfortunately, a poorly drafted alternative dispute resolution clause can be worse than no clause at all.

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