Search results for "58H58.COM (59hn et).edv" in Articles / Webpages

Decentralised autonomous organisations and liability in litigation – Sarcuni, et al v bZx DAO, et al

A recent ruling of the United States District Court in Sarcuni v bZx DAO, No 22-cv-0618 (S.D. Cal. March 27, 2023), has raised more than an eyebrow amongst many in the decentralised finance community who, until now, largely believed that decentralised autonomous organisations (DAO), and those that sit behind them, were outside of the traditional legal system and as such, not exposed to corresponding liabilities.

Navigating the EU ETS Regulation in Denmark

On 1 January 2024, shipping was included into the existing Emissions Trading System (EU ETS) regulation – also known as the ‘cap and trade’ system. This article provides an overview of the most important aspects and insight into how the regulation will be administered in Denmark.

Plant variety rights versus plant patents: legal developments and frictions in a regional perspective

New gene-editing technologies can help to overcome challenges in sustainable food supply. These biotechnologies enable agricultural professionals to meet an ever-growing demand for food. However, understanding of their impact is incomplete, the data required for risk assessment is only partially available and there are ethical and societal concerns. Legal systems vary between prohibition, case-to-case product risk analysis and systems based on a precautionary principle.

The European Commission took the wrong path in its quest to find its ‘holy grail’ merger control threshold (the CJEU’s Illumina/GRAIL Judgment)

The Illumina/GRAIL Judgment blocks the European Commission’s (the ‘Commission’s) attempt to create a new power under the European Union merger law (EUMR) to de facto call-in and review any transaction it considers potentially problematic. A power that was not based on any specific provision of the EUMR but on the Commission incentivising referrals from EU Member States on the basis of Article 22 of the EUMR, regardless of the solicited Member State(s) being competent to review the transaction under their national law. The Court of Justice of the European Union (CJEU) decided to block the Commission’s creation of such quasi-unlimited review discretion after an extensive review of the EU Merger Regulations’ travaux préparatoires, which clearly showed that legal certainty was one of the key objectives that the EU legislature sought to achieve through the adoption of the EU Merger Regulations, among others, by designing the EU Merger Regulations around a jurisdictional test based on objective, clear and predictable bright-line turnover thresholds.

Working hard or hardly working? Antitrust labour markets: an update from the United States

In this article, the authors trace the history, evolution and latest developments of the antitrust laws’ application to labour markets in the United States. Then, they describe common types of claims in labour markets cases, before analysing recent criminal and civil wage-fixing, no poach, and merger challenges. The authors conclude by providing actions companies should consider taking, as they seek to avoid finding themselves as a defendant in an antitrust–labour markets case.

Keeping the Freezer Stocked: Interim Relief in Aid of Foreign Proceedings before the DIFC Courts

It is a common feature of financial fraud schemes for the proceeds of the fraud to be scattered across several jurisdictions, frequently through a network of connected entities. For the victims of fraud, the first step in attempts to salvage their investments will often be to seek a worldwide freezing order in the courts of the country in which the defendants and their activities are centred. In many such cases, however, the freezing order in the primary jurisdiction will not be sufficient

Not the dawn of a new age: the EU Commission’s competition policy review

On 18 November 2021, the European Commission adopted a communication with a promising title: ‘A competition policy fit for new challenges’. The document covers all pillars of EU competition enforcement: antitrust law, merger control and state aid law. It also addresses new issues, such as the Digital Markets Act and the fight against third-country subsidies. However, although the Commission announced ‘a review of competition policy tools with unprecedented scope and ambition’, the 20-page paper does not reveal any ground-breaking new policies. Antitrust practitioners looking for a revolution might therefore be disappointed.

The Why and How of the New European Union Prospectus Regulation

The majority of the new European Union (EU) Prospectus Regulation will become applicable in July 2019. As part of the wider Capital Markets Union initiative, the new Prospectus Regulation aims to reduce costs for issuers in accessing European capital markets, facilitate cross-border investments in the EU and to build a framework resulting in EU-wide risk-sharing.

When arbitration and compliance meet up: analysis of their first interplay

Questions have arisen as to the impact of growing compliance requirements on the practice of arbitration, allowing compliance to find its place in the field of arbitration. This growing importance first raises the question of the arbitrability of compliance law, then of the impact of compliance on the arbitration activity itself, and finally demonstrates that arbitrators have become actors in implementing and respecting compliance requirements

Coherence versus Fragmentation: Institutional Challenges to EU Digital Markets Regulation

The commitment of the European Commission (the ‘Commission’) to create a European space for all digital communications has resulted in a proliferation of legislation (actual and proposed) designed to deal with the many different issues raised by digital communications and services. The governance and enforcement provisions of each of these different pieces of legislation have produced a complex matrix of European Union (‘EU’) institutional arrangements, which reflects both the desire to achieve harmonised conditions of operation across the EU, while at the same time seeking to accommodate the desires of 27 Member States to retain some level of sovereignty over subject-matter as technical and as diverse as that presented in the digital environment. The structuring of the relationships between Commission and Member State bodies or expert bodies, the ‘give and take’ between the institutional actors and the level of legal certainty that can be generated by such multi-player decision-making is likely to pose meaningful logistical and procedural challenges as the different elements of the Commission’s Digital Agenda package come into effect. To better understand the nature of those challenges, we analyse below the governance structures used in the key pillars of the Commission’s Digital Agenda and we seek to draw some preliminary conclusions on the effectiveness of those structures in delivering coherent enforcement on a pan-European level.

Defective medical devices: the ‘defence of regulatory compliance’ under Swiss law – does it need to be reassessed?

Against the background of the stricter regulation of medical devices under the revised Swiss Medical Devices Ordinance (MedDO) and the EU Medical Devices Regulation (MDR), the question has arisen as to whether the defence of regulatory compliance, or at least the weighting of this argument of the manufacturer in product liability proceedings, needs reassessment. The author of this article argues in favour of such a stronger weighting if the product in question is an MDR medical device or another therapeutic product.

The Brazilian Competition Authority (CADE) investigates the Soy Moratorium, testing the boundaries between sustainability agreements and antitrust concerns

This article examines the investigation launched by the Brazilian Competition Authority (CADE) into the Soy Moratorium, a multi-stakeholder agreement aimed at curbing deforestation. The investigation is a key development in Brazil’s treatment of sustainability agreements under competition law. The case stems from allegations that the Moratorium operates as a coordinated refusal to purchase soy from non-compliant producers. CADE’s preliminary view characterised the arrangement as a potential buyer cartel, prompting sweeping preventive measures later partially suspended by Brazilian courts. This article compares Brazil’s approach with emerging international guidance, underscoring regulatory uncertainty and the need for clearer CADE standards on environmental cooperation.

Risk relating to ground conditions under French and English law

The characteristics of the ground, including the rock nature and resistance, the existence of groundwater, mines, fractures and underground quarry and pollution, may lead to significant cost and time consequences affecting construction projects. The allocation of the costs and risks of ground conditions is often a source of tension between contractors and employers. This article aims to explore the legal principles governing the liability of contractors that may derive from ground conditions [...]

Fraud and abuse of right affecting the enforcement of a pledge: recent court developments under Luxembourg law

A recent decision handed down on 22 January 2020 by the Luxembourg Court of Appeal is relevant for banking and finance practitioners as it concerns the attempts made by a pledgor to overturn the enforcement of pledges. This article explores the judgment.

Reproductive health, IVF and surrogacy: legal and ethical issues

Complex legal and ethical issues surround assisted human reproduction, IVF and surrogacy. When does life begin? Should parents be able to select embryos in order to choose sex? Should women have the human right of reproductive freedom? What about the rights of the parents, surrogate and children? This article discusses the law in Australia and some of the leading cases in Australia and overseas.

Case Comment: The Perils of the Use of Generative AI in Litigation: Ayinde v London Borough of Haringey and Al-Haroun v Qatar National Bank QPSC & Another [2025] EWHC 1383 (Admin)

The High Court in England and Wales has recently examined the use of generative artificial intelligence tools by lawyers in litigation. Two cases were referred to the High Court after it became apparent that false citations appeared in legal documents that were being relied upon by lawyers. Intentionally submitting false material in court proceedings, with the knowledge that the information is false, will amount to contempt of court. This could attract a prison sentence of up to two years. The harshness of the punishment is for good reason: deliberate interference with the administration of justice is a serious act that undermines public confidence in the legal process.

Bolar exemption, UPCA and Pharma Package: what to expect? An Italian perspective

When the Bolar exemption was introduced at the EU level in 2004 (though some Member State case law applied it prior to that date), it struck a balance between the need for patent owners to preserve their proprietary rights as long as possible and the desire of businesses to enter the market without undue delay the day after patent expiration (known as 'Day 1').

When Seeing Is No Longer Believing: Evidentiary Challenges of Deepfakes in Arbitration

This article examines how deepfakes – AI-generated or manipulated audio, image, and video – destabilise evidentiary assessment in arbitration. Beyond the risk of convincingly falsified exhibits, deepfakes fuel the ‘liar’s dividend,’ whereby the mere possibility of manipulation is invoked to discredit authentic proof. Detection remains technically challenging, costly, and unevenly accessible – especially for mid- and small-value cases. Drawing on recent litigation experience, the EU AI Act’s transparency framework, and broader evidentiary principles, the article highlights how these difficulties risk undermining fairness, efficiency, and equality of arms. After a brief technical primer on deepfakes and their detection limits, the discussion distills lessons from court cases (including the emergence of the ‘deepfake defence’) and evaluates arbitration’s current evidentiary toolbox, highlighting risks of chilling effects and cost inflation if authenticity burdens are misplaced. While arbitration is not without safeguards – party autonomy, due process, procedural loyalty, ethical duties, and soft-law instruments – the article questions whether these tools are sufficient in practice. The contribution is ultimately pragmatic: safeguard fair and efficient truth-finding by reinforcing proportional verification, targeted expert input, and principled tribunal case management – so that access to justice is preserved when seeing is no longer believing.

Testing the Reliability of Expert Evidence in International Arbitration

In recent years there has been an evolution in expert evidence in international arbitration towards the Anglo-Saxon practice of party-appointed witnesses as the preferred means of evaluating highly technical questions. Yet regardless of the type of expert appointed, the fundamental principles of party autonomy in arbitration have to a certain extent divorced the arbitral procedure for expert evidence from the local framework usually in place to control its reliability. This article explores two areas in which the absence of guidance for expert evidence in international arbitration stands in contrast with the procedural safeguards for expert evidence in litigation: first, as to the admissibility of an expert’s opinion, and secondly, as to the professional and ethical regulation of expert testimony. Most of the research is drawn from common law jurisdictions, but consideration is also given to civil law procedures with the example of France being used as a primary counterpart.

The Role of Lawyers in Achieving the Transition to Net Zero

This article considers the role of lawyers in assisting their clients in recognising the challenges and opportunities created by the transition to a net-zero, low-carbon economy. In particular, it focuses upon the impact of United Kingdom regulation and environmentally focused litigation on the private sector’s transition to net zero and the sustainability of business practices.

The impact of Covid-19 on the global insurance industry – France

Making Executive Compensation Less Controversial: The Rise of Pay Ratios

Developments in executive compensation have resulted in more legislation and regulations on executive pay being introduced over the past two decades than in the previous 150 years. Ever since the last financial crisis, executive compensation has remained high on the agenda of many authorities. When there are concerns about executive remuneration, legislators first of all try to find the remedy through increasing the level of transparency. Such a transparency measure, currently favoured by various countries

The European Commission, Fiscal State Aid and its Incursion into Member States’ Tax Autonomy

The European Commission has commenced State aid investigations into multinationals’ tax arrangements, including in respect of Apple, Fiat, Starbucks and Amazon. Developments during the past ten years have been seismic, the debates have been fierce and press coverage has been unparalleled. There are both legal and non-legal reasons for this. The main non-legal reasons are the involvement of high-profile multinational companies as alleged aid beneficiaries, the ensuing diplomatic spat between the EU and the US over the alleged ‘targeting’ of US companies and the nexus between the investigations and the EU’s fight against corporate tax avoidance. The main legal reasons are explored in this article. In this article it is asserted that the Commission has overreached and exceeded its mandate by advancing novel legal theories in relation to EU State aid law. More specifically, it has endeavoured effectively to circumvent the unanimity requirement in adopting EU tax legislation by using its exclusive competence in State aid matters to push Member States into adopting OECD taxation standards. The author seeks to demonstrate that, despite some setbacks, the pendulum seems to be swinging towards more deference towards Member States’ tax autonomy in areas where there is no harmonised EU law, and that this is a positive development for two reasons. First, in terms of legal certainty, it provides closure in a series of ‘open’ matters. Second, the Court of Justice of the European Union (CJEU) has sought to strike the right balance between exclusive EU competence (State aid law) and Member States’ tax sovereignty. Through the analysis that follows, the article will endeavour to shed light on a number of questions, as seen through the case law. First, what are the limits to the EU getting involved in national tax policy? Is it legitimate to circumvent those jurisdictional restrictions through the use of State aid policy? Second, what was the logic of the Commission’s approach and what were its weaknesses? Third, did the CJEU fully accept the Commission’s approach? The structure is as follows. The first part will provide some State aid background for those who are not familiar with EU State aid law and recent seminal cases. The second part analyses what the case law means for Member States’ tax sovereignty, while the third part concludes.

Addressing corruption allegations in international commercial arbitration and investment arbitration

Neither investment arbitration nor international commercial arbitration are isolated from the phenomenon of corruption as a repeated but globally sanctioned conduct. Considering this, allegations of corruption may arise in the context of a dispute in both areas. The purpose of this article is to contrast the treatment given to such allegations, including the sanctioning of corruption by arbitrators, which is clearly determined by the specificities of each of these mechanisms, as well as by the nature of the disputes addressed.

EU State aid control during Covid-19

In the past few months, the Commission has adopted an unprecedented number of decisions allowing Member States to grant State aid to economic sectors and undertakings in financial difficulty due to the Covid-19 outbreak. The majority of the measures were adopted under a Temporary Framework (Article 107(3)(b) TFEU), which set out a toolbox of measures available to Member States. By contrast, Member States have been reluctant to make use of other available instruments

Artificial Intelligence and Arbitration: A US Perspective

As artificial intelligence (AI) continues to develop, complicated questions arise regarding the scope and role AI technologies play in legal practice. This article identifies and discusses challenges and opportunities that AI’s development pose to legal practice from a US perspective, focusing on AI’s applications to US dispute resolution generally, and to US arbitration in particular. It first discusses problems with defining AI, highlighting competing definitions that conceptualise AI from technical and social perspectives. It then discusses how AI tools currently influence, and will continue to influence, dispute resolution practice in the US. Next, it analyses key US legal considerations influencing how AI will be integrated into US dispute resolution systems, including trends such as how combining a developing technology with an evolving legal landscape is a recipe for uncertainty, and how the variety of relevant actors and sources of law in the US federal system generates complexity when adapting AI tools for use in arbitration. Additionally, it discusses how regulation does not happen in a vacuum, but is coloured by regulatory competition.

Game On: How the Right of Publicity, Legalised Gambling and Fair Pay to Play Laws Are Changing US Professional & Amateur Sports

Game On: How the Right of Publicity, Legalised Gambling and Fair Pay to Play Laws Are Changing US Professional and Amateur Sports

The EU’s Digital Markets Act: Opportunities and Challenges Ahead

As witnessed in a series of studies, analyses and papers published over the course of 2019−2020, an international consensus was emerging that the public policy concerns arising consistently in connection with digital platforms either required a fundamental rethink of how competition policy should address such concerns or provide the rationale for the creation of a sui generis regulatory regime. If the latter approach were to be chosen, this would mean that competition policy would be left with a complementary role to play, and one that would logically be directed at new modes of commercial behaviour. The genesis of such a public policy choice in the European Union was brought into sharp focus by the protracted competition law investigation into various commercial practices of Google in internet search by the European Commission (the ‘Commission’), which had been ongoing since 2010 and which had to wait to be resolved by the vindication of the Commission’s 2017 decision before the General Court as late as November 2021. In response to the demands by EU Member States that appropriate action be taken to compensate for the slow and arguably ineffective application of EU competition rules, a draft regulatory package was introduced by the Commission in December 2020 that would regulate key problematic business practices of large digital platforms across the EU. Whereas the so-called Digital Services Act was to deal with critical public policy issues that were consumer-facing, it was the Digital Markets Act (DMA) that laid out the unique regime that would apply economic regulation to large digital platforms. The object of this article is to: (1) provide an outline of the defining elements of the DMA; and (2) identify key aspects of that legislation, whether from a substantive, procedural or institutional point of view, where the intended outcomes of the DMA might be compromised.

Use and misuse of expert evidence

Kenneth Figueroa, Christian Johansen, Kim Rosenberg and Russell Thirgood address issues relating to the use of expert evidence in common law and civil law proceedings.

Algorithms: The Impact on Competition