Queritius

🙌 We are extremely proud to share that our partners Wojciech Sadowski and Sergiy Gryshko have been recognized as Thought Leaders in Arbitration by the latest Who's Who Legal ranking! 🙏 Thank you to all the clients and peers for your trust and support, and congratulations to Wojciech and Sergiy! 👉 More information: https://lnkd.in/enf9syaM #WWL #arbitration #rankings #thoughtleaders

🇦🇪 Another Piece in the DIFC-LCIA Saga – Abu Dhabi confirms the jurisdiction of DIAC Dubai Decree No. 34/2021 reshaped the UAE’s arbitration landscape by abolishing the #DIFC-LCIA and replacing it with #DIAC, thus raising questions about the validity and enforceability of DIFC-LCIA #arbitration agreements and resulting in conflicting judgments. In November 2023, a Louisiana court deemed an arbitration agreement referring to the DIFC-LCIA after the DIFC-LCIA’s abolition unenforceable, while in March 2024, a Singaporean court upheld a DIAC award issued under a DIFC-LCIA arbitration agreement, influenced by the parties’ “unequivocal, clear and consistent intention to submit to the tribunal’s jurisdiction”. ⚖️ The Abu Dhabi courts recently clarified this uncertainty by upholding a DIFC-LCIA arbitration agreement. The claimant pursued court proceedings, arguing that the arbitration agreement had been rendered impossible to perform due to the DIFC-LCIA’s abolishment. The respondent contended that the court lacked jurisdiction due to the existence of the arbitration agreement. The Abu Dhabi Court of First Instance (Case 1046/2023) (affirmed by the Abu Dhabi Court of Appeal (Case 449/2024)) dismissed the claim on jurisdictional grounds. According to the court, the abolition of the DIFC-LCIA did not invalidate arbitration clauses referring to it given that Decree No. 34/2021 had designated DIAC as its legal successor, thus enabling the performance of the arbitration agreement. In verifying the parties’ intent to arbitrate, the court considered the essential elements: ✔️ an agreement not to resort to state courts; ✔️ an agreement to arbitrate by appointing a tribunal to decide the dispute; ✔️ the scope and extent of the tribunal’s jurisdiction; ✔️ the arbitration’s procedural aspects, including the seat, the appointment process, the language, and the arbitral institution.  The court found that the lack of one of these elements due to reasons unrelated to the parties did not necessarily invalidate the arbitration agreement. Analogizing to the notion of severability of the arbitration clause from the underlying contract, the court ruled that the inoperability of one element of the arbitration agreement (due to the DIFC-LCIA’s dissolution) did not affect the overall operability of the arbitration agreement, which could be performed by severing any references to the DIFC-LCIA. Finally, the court clarified that parties were not forced to arbitrate before a specific institution, but must not violate their obligation to arbitrate by resorting to state courts, suggesting that they were free to choose another institution. 📃 The judgment signifies a pro-arbitration stance, reinforcing the UAE’s commitment to arbitration as the preferred method for resolving commercial #disputes, and stabilises the UAE’s arbitration framework internally. It remains to be seen whether this interpretation will be followed by other courts abroad. by Maria Paschou

🆕 Case Update: AVAX SA vs. the Republic of Lebanon On 25 June 2024, #AVAXSA announced that an #ICSID Tribunal dismissed its €417 million claim against the Republic of #Lebanon relating to a 2013 EPC contract for the construction of the #DeirAamar (Phase II) thermal power station. AVAX secured the contract in 2013, but unilaterally halted #construction in 2014, citing state failures and political tensions in Lebanon. In 2016, AVAX initiated an ICSID arbitration, alleging that Lebanon had breached its obligations under the Lebanon-Greece BIT, including provisions on fair and equitable treatment (#FET), full protection and security (#FPS), specific assurances, and the umbrella clause. AVAX sought €340 million in damages, plus €77 million in pre-award interest. In an award issued in June 2024, a tribunal consisting of John Beechey, Stanimir Alexandrov, and Zachary Douglas KC dismissed AVAX’s claim. The tribunal ordered AVAX to pay US$1.2 million in costs to Lebanon, attributing AVAX’s project abandonment to its financial difficulties rather than Lebanon's actions. The tribunal found no evidence that Lebanon improperly exercised its sovereign power to interfere with the performance of the EPC. It concluded that AVAX's decision to abandon the project was primarily due to financial losses and funding challenges exacerbated by the Cyprus financial crisis. 📣 Stay tuned for a detailed post on this matter when the full award is published! #Arbitration #InvestmentDispute #CaseUpdate by Maria Paschou

📣 Upcoming Thursday, 4 July, the 6th International Arbitration Conference will be held in #Athens, where lawyers, from Greece & abroad, with vast experience in the field of #arbitration will meet to discuss developments and critical issues concerning “Remedies and Evidence in Commercial Arbitration”. One of the attendees is our very own, Maria Paschou, so if you happen to be there, reach out to her! 🙌 👉 More information: https://lnkd.in/dd9rTtmN #internationalarbitration #legalcommunity #disputeresolution

📈 The rise in M&A (#mergersandacquisitions) disputes and what to do about it: Effectiveness of time limitation provisions for claims under Polish law. Share purchase agreements typically include contractual time-limit provisions for the buyer to notify its claims to the seller and/or to bring the claim to the competent court or the tribunal. If the buyer fails to observe such a time limit, it may be barred from pursuing its claim. These clauses originate from common law but have now become part of international practice. Are they effective under Polish law?    💼 On the one hand, no reported case law seeks to address this issue specifically regarding M&A disputes. There is, however, available case law related to similar clauses, notably, Subclause 20.1 of the #FIDIC (Red Book) General Conditions. That clause applies to construction contracts and obliges the contractor to notify their claims under the contract within 28 days. If a contractor fails to give notice of such a claim within such time limit, the employer “shall be discharged from all liability in connection with the claim”.   Polish courts interpret this clause as introducing an absolute bar to the claim, resulting in the release of the employer. As explained by the District Court in Warsaw in the judgment of 1 July 2019, (Case no. XXV C 1324/16), such clauses should be regarded as a circumvention of Article 119 of the Polish Civil Code (PCC), which has mandatory effects and prohibits the Parties to extend or shorten the statute of limitation through contract. According to the District Court, the clauses such as Subclause 20.1. FIDIC go even further beyond what is already prohibited by Article 119 PCC. Accordingly, the clause was declared invalid. Other similar decisions were issued e.g. by the District Court in Warsaw on 11 June 2012 (XXV C 567/11) and 11 July 2012 (XXV C 647/11), and the Warsaw Court of Appeals on 8 July 2022, (VI ACa 1001/21).   The reasoning applied by Polish courts in those matters can arguably be used in other contexts, including in the post-M&A disputes. This line of argument may be a lifeline for buyers who missed their deadlines under SPAs. ⌛ At the same time, some of the aforementioned judgments distinguished between claims based on law (for which, contractual time limitations clauses are ineffective), and claims based purely on contract, for which time limitations clauses are effective. The distinction between the two categories of claims, however, is blurred. Still, based on this line of thought one could argue that a contractual time limitation in an SPA for claims related to breaches of warranties and representations is effective, given that the regime of liability for the breach of R&W under Polish law is almost exclusively contractual in nature. 🔍 While the uncertainty remains, understanding the nuances of Polish law remains crucial for both buyers and sellers to protect their interests effectively. by Wojciech Sadowski

🧩 3 Stripes 90 Lawsuits 1 Question 🧩 The question of what can and cannot be trademarked has recently been very relevant in the legal sphere. In a significant ruling by the Dusseldorf Regional Court, Nike has been permitted to include three stripes on some of its trouser designs in Germany, following a second appeal hearing on May 28th. The Dusseldorf Regional Court's decision marks a partial victory for Nike against its smaller rival, Adidas. 🔍 Background: Initially, the court had prohibited Nike from using two or three stripes on five of its trouser designs after Adidas filed a trademark violation lawsuit in 2022. Now, Nike can use the stripes on four of the disputed models, although the ban remains for one design, partially overturning the earlier decision. 🏷️ Trademark Tensions: Adidas' three-stripe trademark is well-known and fiercely protected in courtrooms worldwide. Since 2008, Adidas has filed over 90 lawsuits and reached more than 200 settlement agreements to defend its iconic design. Their legal clash with designer Thom Browne, Inc. also showed this relentless defense. ⚖️ Nike's Stance: Nike argued that Adidas' scope of protection is too broad, claiming that striped decorations do not necessarily indicate the brand. This ruling could set a precedent for future trademark disputes in the fashion and sportswear industries, highlighting the balance between brand identity and market competition. What is your take on this topic? Feel free to share in the comments section, and stay tuned for more interesting #legalupdates! #TrademarkLaw #NikeVsAdidas #IntellectualProperty #SportswearIndustry #FashionLaw   By Hanga Varró Varro and Dániel Dózsa

⛔️ 𝐄𝐧𝐟𝐨𝐫𝐜𝐞𝐦𝐞𝐧𝐭 𝐫𝐢𝐬𝐤𝐬 𝐫𝐞𝐥𝐚𝐭𝐞𝐝 𝐭𝐨 𝐑𝐮𝐬𝐬𝐢𝐚𝐧 𝐜𝐨𝐮𝐫𝐭 𝐩𝐫𝐨𝐜𝐞𝐞𝐝𝐢𝐧𝐠𝐬 𝐢𝐧𝐯𝐨𝐥𝐯𝐢𝐧𝐠 𝐬𝐚𝐧𝐜𝐭𝐢𝐨𝐧𝐞𝐝 𝐞𝐧𝐭𝐢𝐭𝐢𝐞𝐬   In the past two years, Russian courts have increasingly assumed exclusive jurisdiction over Russian-sanctioned entities and imposed anti-suit injunctions against foreign entities under Articles 248 Arbitrazh Procedure Code (APC). The injunctions are granted based on the mere existence of the #sanctions regime, without requiring proof of how the sanctions would impede the enforceability of the #arbitration agreement or access to justice in the case at hand. Fines for non-compliance with the exclusive jurisdiction of Russian courts can be massive.   The question is what risks should non-Russian parties be mindful of when facing #litigation before Russian courts based on Article 248 APC?   👉 𝐄𝐧𝐟𝐨𝐫𝐜𝐞𝐦𝐞𝐧𝐭 𝐨𝐟 𝐣𝐮𝐝𝐠𝐦𝐞𝐧𝐭𝐬 𝐢𝐬𝐬𝐮𝐞𝐝 𝐛𝐲 𝐑𝐮𝐬𝐬𝐢𝐚𝐧 𝐜𝐨𝐮𝐫𝐭𝐬   Russia has numerous multinational and bilateral treaties on cooperation in civil and commercial matters allowing recognition and enforcement of its court judgments abroad. In Belarus, Russian judgments are enforced as local judgments. The so-called Kyiv Agreement (1992) further allows enforcing Russian judgments in many CIS states, including Kazakhstan, Uzbekistan, and Armenia. Russia also has bilateral agreements with countries like India, China, and Egypt, and countries like Turkey may enforce Russian judgments based on reciprocity.   Accordingly, multinational companies engaged in parallel arbitrations and litigations with Russian-sanctioned entities must strategically consider the risk of enforcement of Russian court judgments in such countries.   👉 𝐄𝐧𝐟𝐨𝐫𝐜𝐞𝐦𝐞𝐧𝐭 𝐨𝐟 𝐚𝐫𝐛𝐢𝐭𝐫𝐚𝐥 𝐚𝐰𝐚𝐫𝐝𝐬    Given the changing political and economic landscape, enforcement against Russian parties may increasingly have to be sought in third countries, including in those which recognize and enforce Russian court judgments. In those jurisdictions, there may be a race to enforcement between international awards and Russian court judgments, and the priority of arbitral awards cannot be taken for granted. Aside from domestic law arguments which may e.g. preclude enforceability of foreign awards if it collides with a domesticated judgment of a Russian court, Russian parties may further use Article 5 of the New York Convention, claiming e.g. limitations in the access to justice before the arbitral tribunal which issued the award. In highly sensitive political environment, this risk elevates if the enforcement of the award is sought in countries, which have favorable ties with Russia.   🎯 These are all novel issues that require companies with assets in multiple locations to plan their #disputes strategically, without making the same assumptions related e.g. to the New York Convention which had been valid until now.   By Wojciech Sadowski and Alexey Pirozhkin

🙌 We are proud to share the significant victory news of our Ukrainian team in a recent and crucial jurisdictional challenge case. On 6 June 2024, the High Court of Justice in London (per Henshaw J) upheld the jurisdictional objections in AerCap Ireland Capital Designated Activity Company & Ors v PJSC Insurance Company Universalna & Ors, a case brought by a number of aircraft lessors against Ukrainian insurers and English reinsurers overpayment of indemnity for the aircraft stuck in #Ukraine due to Russia's full-scale invasion.   The issue in question was, in particular, whether the #dispute should be heard in London or Ukraine, as the insurance contracts governed by Ukrainian law contained "exclusive jurisdiction clauses" in favor of Ukrainian courts and whether the Ukrainian court system could be relied upon to resolve this dispute in the middle of the ongoing war of aggression against Ukraine.   Our partner, Sergiy Gryshko, was engaged as an expert on matters of Ukrainian law by the Defendants' legal counsel. His evidence in two expert reports has convinced the High court that Ukrainian courts were a proper venue to hear the present case.   The claimant lessors contested that they were bound by the exclusive jurisdictional clauses found in the reinsurance policies based, among other things, on their status as third-party beneficiaries under the policies, which (in the claimants' view) made them not bound by their terms. The issue of enforceability of jurisdictional clauses is a novel area of law that is not well-trodden by the Ukrainian courts. This required deep case law and doctrinal research both in terms of the status of third-party beneficiaries and the nature of the jurisdictional clause itself. Absent clear Supreme Court precedent on the matter, Sergiy drew on the Supreme Court's case law on the #arbitration clause following assignment (in which case the assignee is bound by an arbitration clause), which may apply to the jurisdiction clause involving third-party beneficiary by analogy. Having analyzed the expert reports from both sides, the judge found "Mr. Gryshko’s approach the more cogent one," which opened the door for upholding the Ukrainian courts' jurisdiction.   As regards the challenges the Ukrainian court system faces in the time of war, the judge held that "the evidence about the effect of the war on the court system, especially on the Commercial Courts in Kyiv and elsewhere, does not indicate that the war is likely to result in substantial delays or other problems in #litigating these claims effectively in the courts of Ukraine." This is a testament to the resilience and strength of the people of Ukraine, who continue to live and work efficiently in the face of constant shelling and missile strikes from Russia.   👏 In preparing the expert evidence, Sergiy was assisted by Hanna Marunych, Yaroslav Brych, Bohdan Prybora, and Anna Shvetsova.

🚧 How far do a consultant’s responsibilities extend under a contract with mechanical and electrical consultancy services? The Lendlease v Aecom case sheds light on this critical issue. Discover the #TCC’s findings on the scope of obligations, the importance of contract clarity, and the limits of ongoing review duties in an article penned by our associate, Maria Paschou. Tune into our latest #Construction Series and find out about the key takeaways from this landmark decision! 👇

🤸 Earlier this week, our team members Alexey Pirozhkin, Lili Hanna Feher, Maria Paschou, and Zrinka Mustafa Prelić participated in an online training on the cross-examination of experts in #internationalarbitration. It was co-organized by the ICC Croatia National Committee on Arbitration and #ADR and the international expert firm Secretariat. The training gathered twenty candidates divided into groups of four, with 💼 two candidates representing the Plaintiffs; 👓 and two representing the Defendants. The training was based on the mock case for a lost profit in the bakery and grocery stores industries, prepared by Secretariat. Each group engaged in cross-examining of the other party’s quantum expert. Groups were combined according to the level of experience, ensuring a balanced and enriching learning environment. Each session was presided over by a sole arbitrator Davor Babic, Borna Dejanović, Sandra Lisac, Hrvoje Sikiric, and Dalibor Valincic, who provided insightful comments to the candidates at the end of the session. In preparation, Almir Smajlovic, CPA, CVA from the Secretariat provided tips and tricks on cross-examination techniques from an expert’s perspective. This was followed by individual sessions between the co-counsels of each side and their designated party-appointed expert. 💡 It was an excellent experience for practicing cross-examination, one of the most challenging and creative skills needed in arbitration. The participation of highly experienced experts from Secretariat, Tyler Anderson, Daniel Bäumler, Zhan Gao, Shalabh Gupta, Adam Housel, Gregory Johnson, CFA, CAIA, Amran Nawaz, CPA, CA, CBV, Brendan Porter, Kaarle Rautio, CVA, ERP, and Kinjal Shah, added special value. 📣 Big thank you to Ana Margaurite Tomulić from ICC Croatia and Enobong Bassey from Secretariat for their technical support in organizing this professional, international, cross-continental online event. A special shout-out to Dalibor Valincic and Zrinka Mustafa Prelić, who played a significant role in preparing the training! 🎓 We are committed to continuous learning and professional development, and this was certainly a valuable experience. We hope there will be opportunities and interest in repeating similar trainings in the future.