In this issue of the Litigation Committee newsletter, under the title of ‘A brave new world: managing litigation and teams in the digital age’, we dive deep into some of the most pressing topics facing disputes lawyers today. With the digital transformation accelerating, the ways we approach litigation, team management, and client service are being reshaped. We explore the potential of AI to enhance case preparation, manage data, and assist in predictive analysis. Our experts share insights on leveraging digital tools to enhance collaboration and foster a sense of unity, even when colleagues are dispersed across locations and time zones. We delve into best practices for securing sensitive data, protecting client confidentiality, and mitigating the risk of cyber threats. We also report on the excellent sessions from our Annual Litigation Committee Forum in Amsterdam in April 2024, and our webinar on litigating in China.
Released on Dec 2, 2024
The integration of AI into legal practice has raised concerns about maintaining client confidentiality and legal privilege. Whilst AI tools offer significant efficiency gains, they pose risks to the confidentiality that is fundamental to the legal profession. Public generative AI models may inadvertently store sensitive client data, creating potential breaches of legal obligations. The uncertainty surrounding whether AI-generated documents are protected by legal professional privilege complicates matters further. As AI usage grows, the legal community may need to adopt ethical safeguards, such as using secure, private AI systems and disclosing AI involvement in legal processes, to protect client information and uphold the integrity of the profession.
Released on Nov 29, 2024
In today’s digital age, business email compromise (BEC) has become a threat to businesses and individuals. BEC can be defined as ‘a criminal act where criminals illegally access an email account and communicate as if they are the user’. Courts globally have had to determine who becomes liable for the loss suffered in such instances. This article provides brief examples of how this issue has been dealt with in different jurisdictions.
Released on Nov 29, 2024
More and more, banks’ customers file judicial actions to hold the bank responsible for losses incurred when the bank has completed a payment request made at the request of third-party fraudsters instead of the ‘real’ customer. This article looks at how the Portuguese Supreme Court of Justice decided who should be held accountable in two recent cases, the first involving a case of phishing via text message and the second involving the misuse of an e-mail address belonging to the bank’s customer.
Released on Nov 29, 2024
Digitalisation of the Italian civil trial system has brought significant improvement in terms of speed of process and efficiency. There is a new generation of ‘born digital’ lawyers and judges. However, questions about the client-lawyer relationship and the risks of fraud in the process must be carefully considered.
Released on Nov 29, 2024
The increasing prevalence of technology in every aspect of human society is driving an evolution in the legal profession, particularly in litigation practice. Today, lawyers are required to possess a deeper understanding of technology and its associated legal implications to provide effective assistance. This necessity underscores the importance for legal professionals to adapt to the rapidly changing technological landscape and grasp the legal ramifications tied to it.
Released on Nov 29, 2024
The rapid growth and expansion of the internet in the 21st century has had an all-engulfing Midas touch, reaching into every aspect of personal, professional and business communication. This has tested the resilience of professional ethics in more ways than one.
Released on Nov 29, 2024
As the legal sector handles increasing amounts of sensitive data online, managing a legal team now involves heightened focus on ensuring the protection and confidentiality of client information, personal data, legal strategies, proprietary information and highly confidential data from cyberthreats. This article considers a case in the United Kingdom illustrating the intersection of legal strategy, cybersecurity and the concept of injunctions against unknown defendants involved a professional services firm that suffered from a ransomware attack.
Released on Nov 29, 2024
On 11 September 2024, the Property (Digital Assets etc) Bill was introduced to Parliament in England. For the first time ever, digital assets can now be considered as personal property under English statutory law. In this article, we seek to explore the key provisions of the Bill, and the implications for conducting litigation in the digital age
Released on Nov 29, 2024
AI, particularly generative AI, has the power to reshape the legal industry by automating repetitive tasks; improving accuracy; and allowing lawyers to focus on higher-value, strategic work. The potential is immense: firms can reduce costs; increase efficiency; and deliver better value to clients – all while driving firm profitability. But what does this shift mean for the largest employment sector for lawyers – firms themselves? Law firms now face a dual challenge: adopting AI to meet client expectations while ensuring junior lawyers are trained and equipped to thrive in an AI-enhanced legal landscape.
Released on Nov 29, 2024
Session report from the IBA Young Litigators Forum, Amsterdam, 17 April 2024: Do litigation lawyers have to be tough, unyielding and ready to litigate until the very end? Clients prefer solutions that prioritise their business needs rather than prolonging the litigation process, which serves the lawyers’ business instead. In the end, clients will value a lawyer for their ability to reach a favourable settlement. Deciding when to settle versus when to litigate is crucial for any litigation lawyer, irrespective of their specialty.
Released on Nov 29, 2024
The third session of the IBA Annual Litigation Forum 2024 was held in the impressive building of the Netherlands Commercial Court (NCC). After welcoming speeches by Eveline de Greeve, President of the Amsterdam Court of Appeal, and Duco Oranje, President of the NCC Court of Appeal, participants had the opportunity to discuss dynamics and trends in class actions in a workshop format.
Released on Nov 29, 2024
The IBA Annual Litigation Forum 2024 started on 18 April with the first session concerning the Choice of Court Convention 2005 and Judgments Convention 2019, two recent conventions of the Hague Conference on Private International Law (HCCH). Sara Chisholm-Batten (Michelmores, London) and Dr Urs Hoffmann-Nowotny (Schellenberg Wittmer, Zürich) moderated the distinguished panel consisting of Dr Christophe Bernasconi (Secretary General of the HCCH, The Hague), Blossom Hing (Drew & Napier, Singapore), Thomas Plewman KC (Brick Court Chambers, London), and Dr Norel Rosner (European Commission, Brussels).
Released on Nov 29, 2024
The ‘Hot topics in the midst of a crisis’ session took place at the IBA Litigation Forum in Amsterdam on 19 April 2024. The session began at 0900 with a Q&A with Simon Davison, Director of Investigations at AnotherDay, moderated by Keith Oliver, Head of International at Peters & Peters, Vice Chair of the IBA Asset Recovery Committee.
Released on Nov 29, 2024
The session on third-party funding of class actions at the IBA Annual Litigation Forum in April 2024 was run by Robert Johnston, Chair of the IBA Class Action Committee and Head of Litigation at JWS lawyers in Sydney, Australia. The panellists included Henry Warwick KC, one of the leading silks involved in the historic group litigation on behalf of 555 UK sub-postmasters against the Post Office, the success of which was only possible because of litigation funding. Representing the defence side of the bar was Justyna Niemczyk, a lawyer from De Brauw, one of the Netherlands’ leading corporate law firms and a specialist in the new Act on Collective Damages in Class Actions (Dutch acronym WAMCA) class action laws introduced in 2020. The funders were represented by Patrick Moloney, CEO of litigation ‘financier’ LCM listed in Australia and the UK, and active also in Asia. Patrick bought a broader, more global view to the panel.
Released on Nov 29, 2024
On 14 June 2024, the IBA Litigation Committee and IBA Asia Pacific Regional Forum presented the first of the Litigation Asia Pacific Webinar Series, entitled ‘Litigating in China: domestic proceedings and cross-border enforcement’. It provided insights into strategies for international parties seeking to litigate against Chinese counterparts under the latest legal framework.
Released on Nov 29, 2024
Every judgment creditor has the right to enforce measures against a judgment debtor if the debtor fails to comply with a judgment voluntarily. The legal framework in Dubai for the enforcement of civil and commercial judgments, as well as in other parts of the UAE, has undergone significant change over the past two years. These changes have eliminated certain harsh measures against debtors and revised the legal dynamics between debtors and creditors.
Released on Nov 29, 2024
Welcome to the Spring 2024 edition of the newsletter, focusing on the impact of armed conflicts on commercial disputes. You will also find a look back at several litigation-themed sessions and events at the IBA Annual Conference in Paris this past November, as well as inspiration for planning ‘a day in Amsterdam’ ahead of this year’s Annual Litigation Forum in the Dutch capital. We thank all contributors for their submissions and hope you will find them of interest.
Released on Apr 4, 2024
The large-scale war waged by Russia on Ukraine has been going on for over two years and has caused enormous damage. The total amount of damage to Ukrainian citizens, businesses and the state itself is yet to be quantified. It already appears to be in the range of hundreds of billions of dollars. It is said that even the total value of all frozen Russian assets in different jurisdictions is far below the value of the damage caused by the Russian aggression against Ukraine.
Released on Apr 4, 2024
The full-scale invasion of Ukraine in February 2022 was a calamitous event which has given rise to extraordinary hardship and global repercussions that continue to reverberate. Away from the battlefield itself, many have been displaced and businesses disrupted globally. The last year or so has given a definitive answer in so far as the English Court is concerned: there will be no ‘deep freeze’, the sanctions complications arising in litigation unrelated to the war are to be managed.
Released on Apr 4, 2024
Civil and commercial disputes arising from armed conflicts stem from a multitude of causes, ranging from torts and delicts committed during combat to breaches of contractual obligations, fully or partially brought about by sanctions regimes targeting individuals and entities associated with the aggressor. Typically, such disputes inherently present distinctive challenges and intricacies, including issues surrounding state immunity and the imperative of attaining recognition and enforcement of judgments in foreign jurisdictions, particularly when the aggressor’s assets within the jurisdiction of judgment origin prove inadequate to satisfy the damages awarded.
Released on Apr 4, 2024
The restrictive measures introduced by the United States, the European Union, the United Kingdom and others in respect of the actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine are undoubtedly of an unprecedented nature. On the other hand Russian anti-sanctions measures are changing the landscape in unrecognisable ways. By February 2024, the EU imposed its 13th package of sanctions against Russia. The economic sanctions have also been extended to 31 July 2024 with the possibility that they will be extended again for as long as the conflict continues. Although such sanctions are part of a continuous effort to impose severe economic, political and other consequences on Russia for its war against Ukraine, they create obstacles to the effective administration of justice and the rule of law.
Released on Apr 4, 2024
Conflict can contribute to carbon emissions and drastically affect biodiversity, while environmental degradation, such as resource scarcity or water shortages, increases the likelihood of violent conflict. Pollution of local water supplies, illegal land possession and unsustainable extraction of resources are just some examples of corporate activities which can cause conflict.
Released on Apr 4, 2024
Given the fact that war in Ukraine and consequent sanctions are affecting Italian commercial transactions, the purpose of this article is to examine the remedies provided by Italian law to contractual parties being in an ‘emergency situation’ and to understand if such remedies are (still) applicable in the current context of the Russian-Ukrainian conflict.
Released on Apr 4, 2024
According to an Italian court, the conflict between the Russian Federation and Ukraine and the martial law in force in Ukraine put at risk the possibility to recover a credit against a Ukrainian company and justified the suspension of the payment of a bank guarantee.
Released on Apr 4, 2024
Armed conflicts generate numerous unforeseen direct and indirect consequences, such as the surge in energy prices. Such consequences disrupt the performance of commercial contracts, for instance by making it excessively onerous for one party. The recent reform of French contract law added two mechanisms to the French Civil Code which may prove relevant in such a context. Their use is however strictly framed by French courts.
Released on Apr 4, 2024
This article provides high-level insight into the impact of armed conflicts on commercial disputes ‘on the ground’, in three relevant jurisdictions: Burkina Faso, Sudan, Burkina Faso and Sierra Leone.
Released on Apr 4, 2024
This article seeks to examine the effects of conflict over international and national economic flows and the implications which follow within the context of Malaysian law.
Released on Apr 4, 2024
This article considers how the English commercial disputes market has developed in response to the legal risks that arise from armed conflicts, focusing on: (i) navigating sanctions; and (ii) supply chain challenges.
Released on Apr 4, 2024
This article explores the multifaceted impact of armed conflicts on commercial disputes, delving into the types of disputes arising, access to courts and the judicial process, the pivotal role of lawyers in conflict zones, and the effects on cross-border litigation and commercial transactions. Armed conflicts disrupt legal infrastructure, exacerbate property rights disputes, and create regulatory uncertainties, hindering access to justice and impeding cross-border transactions. Despite challenges, lawyers play a crucial role in advocating for clients and upholding the rule of law amidst conflict.
Released on Apr 4, 2024