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Mind the third party in the gap: breach of contract, third-party liability - Litigation Committee newsletter article, April 2020

Mind the third party in the gap: breach of contract, third-party liability - Litigation Committee newsletter article, April 2020

United States extraterritoriality: European Union sovereignty at stake

This article discusses the extraterritorial laws applied by the United States, and the European Union’s response to these laws, since the 1990s. The stakes of this dynamic are high, as extraterritorial laws put in question states’ sovereignty. The evolution of these relations is to be closely watched, as the European Union and its Member States are finding diversified and innovative ways to reaffirm their sovereignty in the face of US extraterritorial laws, even if it is has been with limited success.

How will contemplated laws protect the results of AI activity in Europe? Considerations under selected provisions of EU law

The legal protection of artificial intelligence is one of the current challenges to EU law. Since it is accepted that artificial intelligence regulation should remain in the realm of intellectual property law, the same approach could be adopted to the results of artificial intelligence activity. Copyright law has historically been adopted to protect immaterial goods created by humans.

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').

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.

Cost Benefit Reasoning and death risks: thoughts for when the courts are called to solve the pandemic dilemma

This article engages in the ‘pandemic’s dilemma’ on whether to favour policies that protect the economy over public health or vice versa. It focuses particularly on the considerations which courts could apply in deciding on legal actions challenging these measures. The proportionality assessment (a judicial approach to cost-benefit analysis) is suggested as a potentially useful tool.

Belport Development Limited v Chimichanga Corporation: Turkish and BVI courts differ on attorney eyes only orders in arbitral proceedings

The arbitration agreement provokes dilemmas when related to legal acts with implications in consumer protection law (including class claims). The solutions have oscillated between favoring either arbitration or consumer protection. I propose that there is a better view: their coexistence. This alternative has the merit that the protected interest of each of them is respected and achieved. This leads to more rights, which is always desirable, particularly when dealing with protected parties (as consumers).

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

Lex Cryptographia: Guidelines for ensuring due process in transnational blockchain-based arbitration [1]

Blockchain-based arbitration is just like traditional arbitration except it takes place on blockchains, such as Ethereum. The arbitration agreement forms part of the smart contract, arbitrators are selected using random numbers extracted from the blocks in the blockchain and the award is also embedded in a self-executable smart contract. There is currently no regulation in transnational blockchain-based arbitration. Any such regulation faces a number of serious challenges, such as how to determine the applicable jurisdiction in a blockchain-based arbitration. This article seeks to address such challenges by suggesting some possible guidelines.

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.

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.

Low wage and low priority

Throughout the Covid-19 pandemic, workers on the lowest wages have had the least protection – from the virus, from unemployment and from financial distress – despite their work being deemed ‘essential.’ Global Insight explores how governments and corporations can step up to create a better world for these workers.

Preventive legal measures under Korean law against unjust bond calls

This article analyses the preventive legal measures under Korean law against an unjust bond call by the beneficiary/employer (the ‘Beneficiary’) upon the various unconditional bank guarantees that have been issued by financial institutions located in Korea (the ‘Issuing Bank’).

Legal aspects of Building Information Modelling (BIM) in the Netherlands: procurement of a work with a BIM component – Part 2

Dr Evelien Bruggeman provides the second instalment of her article on BIM in the Netherlands, addressing the possible use of selection criteria for the BIM component, the award criteria for BIM and in particular the use of a BIM Execution Plan.

Five considerations if your client faces extradition

Five considerations if your client faces extradition- Criminal Law/Business Crime Committees newsletter article, July 2020

An economic perspective on the new South African buyer power provision and enforcement guidelines

South Africa recently amended its Competition Act, introducing, among other amendments, a novel provision prohibiting the abuse of buyer power. The novelty of the provision stems from the combination of three features: a public interest focus, a dominance requirement and its application not only to trading terms but prices as well.

China's future in a post-Covid world

As an emerging economic superpower, China has, over the past 20 years, become increasingly outward looking and ever more assertive. As the Covid-19 pandemic exacerbates existing concerns over human rights, security and foreign policy, Global Insight assesses what the future holds for China and its place in the world.

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.

Challenges enforcing public policies on data protection and competition in digital markets: an Argentinian perspective

By Nadine Bengtsson. Challenges enforcing public policies on data protection and competition in digital markets: an Argentinean perspective

Whistleblowers as John Does: preserving their identity while conducting internal investigations

Coming forward with information that could get someone into trouble has never been easy. To remedy this, states have been increasing their efforts to encourage whistleblowers to report wrongdoings by ensuring their protection from retaliation,1 which, up until recently, has been scarcely regulated, particularly in the European Union.2 The need to enhance the protection of whistleblowers has been thrown into the spotlight as a result of a series of scandals (such as the Panama Papers,3 Cambridge Analytica and Danske Bank scandals) in which whistleblowers played a key role.

The enforceability of knock-for-knock indemnity clauses in offshore wind construction contracts

Reforming the EU’s Product Liability Regime for Artificial Intelligence, IoT and Other Emerging Digital Technologies

Until the advent of new technology and the imminent enforcement challenges posed by AI, the product liability regime that applied at the European Union (EU) level had served the EU well for close to 40 years. At the national level, the rules among EU Member States implementing the Product Liability Directive (PLD – Directive 85/374/EEC) harmonised the liability of producers for defective products. These rules coexisted with other extra-contractual liability rules that can also be invoked by those who have suffered damage. As a result, in relation to liability claims in the EU, there are three avenues currently available for compensation claims (complementary pillars of liability), namely: compensation based on a fault-based liability claim; reliance on a strict liability claim; or actions based on claims against the producer of a defective product. The European Commission (the ‘Commission’) published in September 2022 a proposal for a new Directive on liability for defective products, which would revise, repeal and replace the Product Liability Directive. A new (revised) Product Liability Directive (‘revised PLD’) was formally signed on 23 October 2024 and published on 18 November 2024, with its new rules applying to all products placed on the EU market or put into service after 9 December 2026. This article seeks to assess whether the revised PLD is capable of achieving specific objectives in terms of: accommodating the latest technological advances, circular economy business models and global value chains; ensuring that liability rules reflect the nature and risks of products in the digital age and in the circular economy; promoting undistorted competition (eg, to ensure that a level playing field exists between EU and non-EU manufacturers); ensuring that businesses and consumers are subject to fair and predictable rules; instilling confidence in the safety and reliability of AI-enabled and other innovative products and services; ensuring that consumers’ health and property are afforded a high level of protection for any harm caused by hazardous products, including digital products and AI systems; reducing disproportionate obstacles to achieving effective compensation (by easing the burden of proof in complex cases and easing restrictions on making claims), and ensuring that a fair balance exists between manufacturers/economic operators and consumers (without discouraging investment and innovation in AI-powered products and other emerging digital technologies); and maintaining an appropriate balance between the interests of claimants and defendants before Member State courts.

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

Gender equality and access to justice in Brazil: the all-too-common struggle of victims of sexual violence

This article addresses the systemic problem of the mistreatment of women who are victims of sexual violence (especially in cases of violence by men against women) by the Brazilian criminal justice system that has come to the fore over the years, some of the key reasons behind the issue, as well as some brief comments on some possible solutions.

Do not pass go: a new card in US antitrust enforcement of the tech titans

United States antitrust enforcers have held off on rigorous enforcement actions of some of the largest US technology companies for years, but now the tide is turning. This year, the FTC launched the Technology Task Force and the Division opened investigations into online platforms. Areas of likely increased antitrust scrutiny, and potentially enforcement include the collection and use of Big Data and the review of acquisitions of nascent competitors.