Professor Carl Baudenbacher has testified before the Committee for Economic Affairs and Taxes of the National Council (the Grand Chamber) of the Swiss Parliament

Professor Carl Baudenbacher has on 12 February 2024 testified before the Committee for Economic Affairs and Taxes of the National Council (the Grand Chamber) of the Swiss Parliament on whether Switzerland should in future accept the dispute settlement model of the Association Agreements of the EU with the former Soviet republics of Georgia, Moldova, Ukraine and Armenia. This model, which is based on a pro forma arbitration tribunal that must request a binding judgment from the ECJ if EU law is “implied”, was also discussed in the UK during the Brexit years. It is part of the Withdrawal Agreement, but was ultimately rejected for the TCA. However, the UK has left the single market, while the Swiss government wants to keep its country in the single market.

Carl Baudenbacher’s written paper can be found here.

Holger Hestermeyer – The Times podcast “Stories of our Times” – South Africa’s genocide case against Israel

Three months into the war in Gaza, the conflict has reached a courtroom: the International Court of Justice in the Hague. South Africa says we are witnessing a genocide take place in real time. Israel has called the claims ‘preposterous’. A leading expert in international law Holger Hestermeyer walks us through the case and its possible consequences.

To listen full podcast please click here.

Jonathan Lewis – Lexis®PSL – Duty of Candour—What’s In A Name? (R (IAB) v SSHD)

Public Law analysis: The claimants challenged a decision by the Secretary of State for Levelling Up, Housing and Communities to make the Houses in Multiple Occupation (Asylum-Seeker Accommodation) (England) Regulations 2023 (the ‘2023 Regulations’). The defendants served three tranches of disclosure, containing redacted documents. In an interim judgment, Mr Justice Swift held that in judicial review proceedings, absent good reason to the contrary, redaction on grounds of relevance alone ought to be confined to clear situations where the information redacted does not concern the decision under challenge (at para [22]). He held that it was not permissible for the Secretaries of State, as a matter of routine, to redact the names of civil servants outside the Senior Civil Service from documents disclosed in proceedings. Written by Jonathan Lewis, barrister at Monckton Chambers.

To read full article please click here (subscription required).

This article was first published by LexisNexis on 19 December 2023.

Just published – Research Handbook on International Insurance Law and Regulation 2nd ed. Brendan McGurk contributes on data and privacy

This thoroughly revised second edition of the Research Handbook on International Insurance Law and Regulation provides an updated assessment of the insurance industry in an international context, featuring 30 chapters, of which half are new for this edition, written by expert academics and practising lawyers.

Brendan McGurk has contributed chapter 21 entitled “Data: the growth of risk-related data in insurance and protecting privacy” which is a comparative analysis of privacy law in the EU, UK, US and Australia which considers the relative protection those laws provide to consumer insureds relative to how insurers might use big data and machine learning algorithms to obtain risk and non-risk related data used in underwriting decisions.

The book can be purchased here.

George Peretz KC – UK Constitutional Law Association – Clause 19 of the Digital Markets, Competition and Consumers Bill: Power without accountability

Clause 19 of the Digital Markets, Competition and Consumers Bill (“the DMCC Bill”) gives the Competition and Markets Authority (“CMA”) wide powers to impose conduct requirements on undertakings that the CMA has designated as having strategic market status (“SMS”) in respect of a digital activity (essentially, “big tech”).  The condition for the exercise of the power is that the CMA considers it “appropriate” to do so having regard to broadly drawn statutory objectives – the “fair dealing” objective, the “open choices” objective (essentially, enabling consumers to choose freely and easily between providers) and the “trust and transparency” objective (essentially, having the information to make properly informed decisions).  The types of conduct requirement that may be imposed are set out in clause 20: essentially, there is no statutory limit to the types of requirement that may be imposed save that (whatever they are) they must be for the purpose of securing various objectives or of preventing various widely defined types of conduct (for example “using data unfairly”).  Breach of a conduct requirement may result, if the CMA so decides, in an enforcement order that requires action to remedy the breach or payment of damages.

To read full article, written by George Peretz KC, please click here.

Space, the Crowded Frontier – Michael Bowsher KC and Jenn Lawrence consider territorial disputes between satellite operators under the U.K. domestic space regime

The Earth’s orbit is increasingly crowded with satellites. This gives rise to questions concerning how to navigate the inevitable territorial disputes between satellite operators. For example, if one operator believes that another operator’s satellites are encroaching on its own satellites’ space, does it have a legal remedy?

This issue recently came before the U.S. Court of Appeals for the District of Columbia Circuit (the “D.C. Circuit”) in Viasat, Inc. v. Federal Communications Commission, 47 F.4th 769 (D.C. Cir. 2022). In that case, the Federal Communications Commission (the “FCC”) granted Space Exploration Holdings, LLC (which goes by “SpaceX”) approval to deploy thousands of communication satellites at a lower altitude to reduce transmission latency. The FCC’s decision was then challenged by two of SpaceX’s competitors as well as an environmental research and advocacy organisation on various grounds in the D.C. Circuit. The appeals were ultimately unsuccessful.

While Viasat is a U.S. case, it is not difficult to envisage a comparable set of facts arising in the U.K. in the context of the new domestic space regime. To propose a thought experiment: say Company A (akin to SpaceX in Viasat) operates satellites from the U.K. at a certain altitude above Earth and wishes to move them to a lower altitude. However, Company B is concerned that this will negatively affect its own satellites operated from the U.K. and wishes to prevent Company A from doing so. Does Company B have a legal remedy?

Please click here to read the blog post in which Michael Bowsher KC and Jenn Lawrence consider possible legal avenues available to Company B.

Steven Gee KC – Distilling Disputes Series – English Court of Appeal refuses narrow interpretation of anti-suit injunction

“This is the second in a series of articles which considers recent cases in relation to injunctions and other pre-emptive relief in the English Courts, and which highlight key practical considerations.

A majority of the Court of Appeal rejected an appeal against a finding of contempt after a party had intervened in Italian proceedings in order to further its position in existing English Court and London arbitration proceedings in breach of an English anti-suit injunction granted to uphold the parties’ arbitration agreements.

This decision is important because (1) it shows that it is essential for parties to act in a straightforward and prudent manner when faced with an injunction, and to deal with any issues arising from it, including uncertainty as to its meaning, through timely application to the Courts in advance of taking any steps in response to it; (2) it shows that the English Courts take a robust approach to upholding the parties’ agreements on jurisdiction, and ensuring that the purpose of such orders is not defeated, and (3) provides guidance on the Courts’ approach to the interpretation of orders, including injunctions.”

This edition is co-authored with Steven Gee KC.

To read full article please click here.