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The Commercial Litigation Journal: March/April 2016

Noel McMichael and Nicole Finlayson consider a recent Supreme Court ruling

In December 2015, the Supreme Court handed down a significant judgment on the nature and effect of the ‘proper purpose’ rule in company law and when the presence of an improper purpose will invalidate a decision of directors ((1) Eclairs Group Ltd (2) Glengary Overseas Ltd v JKX Oil & Gas plc [2015]). In doing so, it overturned the previous decision of the Court of Appeal and restored the decision at first instance. The judgment is interesting for its analysis of how the ‘proper purpose’ provisions interact with other provisions of the Companies Act 2006 (the Act) which are intended to protect companies from external, rather than internal, interference/manipulation.

Jamie Curle and Camilla Macpherson provide some pointers on drafting jurisdiction clauses from recent case law

As deals become ever more complex and global, the courts are increasingly being asked to adjudicate on questions of jurisdiction. These cases often turn on the wording of the dispute resolution clauses contained in the agreements at issue. Both the volume of reported judgments and the number of cases that have gone to appeal demonstrate how fiercely fought such satellite litigation can become.

Anna Pertoldi reports on two recent cases concerning the enforcement of foreign judgments

Two recent High Court decisions have shown how difficult it is to resist enforcement of a foreign judgment in England by relying on matters which were, or could have been, raised in the original court. They also show that the English court will give careful consideration to whether any of the limited defences to enforcement apply, and will not allow them to be used as an indirect route to challenge the original court’s findings: Superior Composite Structures LLC v Parrish [2015] and Smith v Huertas [2015].

Ron Cheriyan reviews the approach of the courts to relief from sanctions over the last year

The Jackson reforms, which came into force in April 2013, heralded a sea change in the conduct of litigation in England and Wales. The reforms were introduced in an attempt to overhaul the court’s then existing approach to case management. Exacting compliance with the rules is the bedrock of the new system – parties are now expected to conduct litigation in an efficient and cost-effective manner.

Michael Roberts and Alex Hohl assess the past performance and future prospects of the SFO

David Green QC’s reappointment as director of the Serious Fraud Office (SFO) on 9 February 2016 comes at the end of a highly eventful six-month period for the agency. Credited by many with having turned around the fortunes of the UK’s lead anti-corruption agency, Mr Green will remain in his current role until April 2018 and has had some success in overcoming a number of legacy issues that have beleaguered the SFO since before his tenure began.

Gwendoline Davies explains without prejudice privilege and highlights traps and tips for parties to any dispute or negotiation

If a communication between negotiating parties has without prejudice privilege, it will not be admissible in court and therefore cannot be adduced as evidence against the interest of the party that made it. The rationale behind this form of legal privilege is that it is in the public interest that disputing parties should be able to negotiate freely, without fear of future prejudice in court, with a view to settling their disputes wherever possible.

Mary Gibbons

As lawyers and bondholders wait to see if there has been a settlement between Argentina and holders of its defaulted bonds, Mary Gibbons examines the most recent proceedings

Part 1 – 'Last stand at the OK Corral?', CLJ56

Part 2 – 'Still standing', CLJ57

The widely reported and long-running litigation between the Republic of Argentina and various hedge funds, arising out of the default by Argentina of debts due to the funds, and for which the funds seek payment of 100% at face value, continued throughout 2015. NML Capital Ltd and EM Ltd are estimated to hold over US$2bn in judgments against Argentina stemming from Argentina’s default on its sovereign debt in December 2001. These judgments have not been satisfied and the funds have sought recovery through various avenues, including bringing claims against the Central Bank of Argentina in the New York courts in two related actions.

Ivan Shiu and Giles Hutt analyse the application of EU jurisdiction rules and the judgment in Goldman Sachs International v Novo Banco SA

In the vast majority of commercial disputes, the starting point for considering jurisdiction questions is the Recast Brussels Regulation (EU 1215/2012) (the Regulation), which sets out detailed and somewhat rigid rules that courts in all EU member states must follow. (Denmark is theoretically excluded from the scope of the Regulation, but has agreed to ‘opt in’ by means of a separate agreement with the European Community (EC) – see OJ L 79/4.)

Richard Marshall and Clare Arthurs share some concerns over the proposed extension of the fixed-costs regime

He’s tenacious, Jackson LJ, you have to give him that. In 2009 he suggested fixed recoverable costs across the fast track, to impose proportionality and to avoid satellite litigation. He has returned to this theme several times since, until January’s now infamous proposal that fixed costs apply to all claims up to £250,000.