EURO LIT INSIGHTS

Damages Are Adequate – But Is It Sufficiently Serious?

by Sharon Lamb and Kimberley Smith | Mar 21, 2024 | Healthcare, United Kingdom

In a highly-anticipated judgment dated January 30, 2024, the Court of Appeal confirmed that in a procurement challenge under the Public Contract Regulations 2015 (PCR), a finding of a manifest error will not automatically mean that the error is ‘sufficiently serious’ to justify an award of damages.

This blog piece is a reduced version of our wider commentary on the case, which is available here.

Background

The procurement in question was for the provision of nationwide orthodontic services, although the challenge related to a contract for services in East Hampshire for a 7-year term worth £32.7 million (the Procurement). Braceurself was the incumbent, but its bid (one out of two) was unsuccessful, and the contract was awarded to a company known as PAL in these proceedings. The difference between the two bids was very close: PAL scored 82.5%, whereas Braceurself scored 80.25%.

Braceurself issued proceedings challenging the Procurement on a number of fronts, seeking to have the score corrected and the contract awarded to Braceurself. The issue of proceedings engaged the automatic suspension under the PCR. NHS England brought its application to lift the automatic suspension and was successful, primarily as Judge Bird found that “in this case damages

English Courts Assert Jurisdiction to Grant Anti-Suit Relief in Landmark Case

by Campbell Herbert | Mar 5, 2024 | Court Judgment, Banking & Finance, Oil & Gas, United Kingdom

In a ground-breaking ruling, the Court of Appeal has confirmed that English courts have the authority to issue final anti-suit injunctions in support of arbitration agreements governed by English law, even when the seat of the arbitration is outside of England. The landmark judgment in Unicredit Bank GmbH v Ruschemalliance LLC [2024] EWCA Civ 64, which follows three earlier lower court decisions arising on substantially the same fact[1], reinforces the robust protection of arbitration rights under English law and solidifies the position of English courts as a bastion for arbitration.

Background

The dispute revolved around Italian bank UniCredit, which, along with Deutsche Bank and Commerzbank, issued performance bonds in favour of RusChemAlliance (RCA), a Russian operator of an LNG facility in the Leningrad Oblast, in relation to construction contracts between RCA and German engineering contractors. These bonds were governed by English law and provided for arbitration in Paris under the ICC rules.

Following Russia’s invasion of Ukraine in February 2022 and the subsequent imposition of wide-ranging EU sanctions, the German companies halted work under the construction contracts after receiving confirmation from German authorities that they deemed such work to be prohibited under Regulation (EU) 833/2014. RCA terminated the

Clearview AI Inc Overturns Regulatory Intervention at First Instance

by Jack Thorne, Pilar Arzuaga and Jonathan Robb | Feb 14, 2024 | Court Judgment, Regulatory/Compliance, Technology, United Kingdom

Clearview AI Inc.’s facial recognition technology has been subject to regulatory scrutiny from the privacy sector worldwide, including the UK Information Commissioner who issued the US company with monetary penalty and enforcement notices (the Notices) for alleged violations of GDPR/UK GDPR (the Regulations).

In a judgment dated October 17, 2023 (the Judgment), the UK’s First-tier Tribunal (FTT) (being the first level of regulatory appeals) upheld, on jurisdictional grounds, Clearview’s appeal of the Notices. The Commissioner sought permission to appeal on November 17, 2023. This blog piece is a reduced version of our wider commentary on the case, which is available here.

Background

Clearview is a US company providing facial recognition services to criminal law enforcement and national security agencies (and/or their contractors) outside of the United Kingdom and the European Union. In short, Clearview collects publicly available images of faces from the internet, which are compiled into a database (the Database). Clearview’s software then creates a mathematical ‘vector’ of those faces, such that they can be indexed and searched against. Clearview’s clients are able to upload their own images onto their private Clearview platform and compare those images against the Database. Clearview’s algorithmic software will return images of sufficient

Provision to Curb “Torpedo Actions” also Applies to Asymmetrical Jurisdiction Agreements

by Thomas Hauss, Dr. Damian Hecker and Tobias Meyer | Feb 13, 2024 | Court Judgment, Transportation & Logistics, Germany

In summer 2021, the German Federal Court of Justice ruled on a dispute between the insolvency administrator of the airline Air Berlin and its main shareholder Etihad Airways over millions in damages that had been going on for several years.

From a procedural point of view, the Federal Court’s findings on so-called “torpedo actions” are of particular importance, further limiting the scope of application of this litigation tactic.

A torpedo action is essentially an action that pre-empts an expected action by the other party in order to block it. A torpedo action is usually filed in a jurisdiction that promises either favorable case law or a particularly long duration of proceedings. This can considerably delay a legal dispute.

This is made possible by the principle of priority that applies to cross-border disputes and the jurisdiction of different courts. According to this principle, an action brought first before a competent court blocks all subsequent actions with identical subject matter before another court. If this torpedo action is brought in a less efficient jurisdiction with notoriously slow-working courts, the opponent’s action can be delayed by several years in some cases.

In order to put a stop to this abuse of rights, the

New Whistleblowing Rules in Italy

by Fabio Cozzi, Francesco Bianchi, Stefano Mechelli and Massimiliano Moruzzi | Feb 12, 2024 | Legislative Update, Italy

On March 15, 2023, Legislative Decree No 24 of March 20, 2023, transposing EU Directive 2019/1937, was published in the Italian Official Journal. The new law entered into force on March 20, 2023, and must be implemented. The new rules came into effect on:

July 15, 2023, in the case of all public entities, and private entities with an average of 250 or more employees
December 17, 2023, in the case of private entities with an average of 50 or more employees.

The new rules include within the notion of whistleblower not only employees, but also self-employed workers, freelancers and consultants, volunteers and trainees, shareholders and persons with administrative, management, control and supervisory or representative functions, and former employees.

A whistleblower is protected against retaliation, even indirect retaliation including dismissal, suspension, downgrading or non-promotion, demotion, negative references, intimidation or harassment, reputational damage, etc. and benefits from supportive measures such as information, assistance and advice free of charge on how to report and on protection from retaliation.

The Decree extends the obligation to implement reporting channels, adopt procedures for making reports, and ensure safeguards applies to all private entities that:

in the last year (ending for the first

Damages Are Adequate – But Is It Sufficiently Serious?

English Courts Assert Jurisdiction to Grant Anti-Suit Relief in Landmark Case

Clearview AI Inc Overturns Regulatory Intervention at First Instance

Provision to Curb “Torpedo Actions” also Applies to Asymmetrical Jurisdiction Agreements

New Whistleblowing Rules in Italy

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