Drew Holiner has been appointed to the Panels of Arbitrators of the Dubai International Arbitration Centre (DIAC) and the Russian Arbitration Centre (RAC).

DIAC commenced operations in 1994 as an independent, not-for-profit organisation, and has since established itself as the Gulf region’s leading arbitration institution.  In 2023, DIAC administered 355 cases from 49 different countries.  Since its inception, DIAC has administered nearly 5,000 cases of varying value, complexity, and economic sectors. The combined amounts in disputes of total registered cases has reached more than AED 80 billion, the equivalent of USD 21.8 billion.  Read more here.

The RAC was founded in 2016, and has since emerged as one of Russia’s leading arbitration institutions.  In 2023 the RAC administered 362 cases involving parties from 15 different countries.  In July 2023, the RAC opened its first overseas office at the Dubai International Financial Centre (DIFC).  Drew sits on the RAC’s specialist panels for International Arbitration and Financial Disputes. Read more here.

The High Court has today given judgment in a case that raised important issues as to the legal effect of regulatory decisions in EU Member States on UK commercial claims based on breach of the relevant EU regulations (either before the end of the transitional period or after it, where those EU regulations remain in effect as retained EU or assimilated law under the EU Withdrawal Act 2028).

The judgment was given in the context of preliminary issues in the “Dieselgate” group proceedings being brought in the High Court against various motor manufacturers on behalf of purchasers of diesel cars and trucks, based on allegations that the vehicles contained prohibited “defeat devices” contrary to EU rules on vehicle emissions.

In Germany, the relevant regulatory authority (the KBA) had over the relevant period issued various decisions that, according to the German manufacturers concerned, contained findings that their vehicles did not contain prohibited defeat devices.  The German manufacturers claimed that those findings precluded the English court from finding that the vehicles at issue did contain such defeat devices.

The High Court rejected the German manufacturers’ case.  It found, first, that the KBA decisions at issue were not binding on a German court determining equivalent civil claims as a matter of German law (a point that it was agreed precluded their being binding elsewhere in the EU or in the UK).  Second, on the basis that that conclusion was wrong, it found that EU law (and retained EU/assimilated law) did not require national courts faced with civil claims based on breach of EU emissions regulations to defer to findings by regulatory bodies in other EU states that there was no such breach.

The question of whether the vehicles at issue did contain prohibited defeat devices is due to be heard in autumn 2025 with judgment expected in spring of 2026.

George Peretz KC and Anneli Howard KC appeared, respectively, for Ford and Nissan.

Philip Woolfe KC and Jack Williams have been instructed in collective proceedings brought by Which? on behalf of millions of consumers in respect of Apple’s iCloud services. The case has been widely reported in the news by:

1. Which?
2. BBC
3. Sky
4. The Times
5. Daily Mail
6. The Independent
7. LBC

In 2022, Daniel Beard K.C. and Jack Williams acted for Intel before the General Court, securing the annulment of a €1.06 billion fine for an alleged abuse of dominance. See here.

Yesterday (24 October 2024), the CJEU upheld the General Court’s decision and rejected the Commission’s appeal in full. The case has been widely reported in the press. The judgment is available here.

Daniel and Jack acted for Intel, and are also instructed by Intel in its interest claim (arising from the Commission’s failure to pay default interest following the General Court’s annulment of the fine) and its challenge to the Commission’s reimposed fine on certain conduct.

William Buck and Jen Coyne appear for the First Appellant in the Supreme Court today, in LA Micro Group Inc and others v LA Micro Group (UK) Ltd, led by Clare Stanley KC (and alongside Alex Barden for the Second Appellant), instructed by Tom Bolam and Cecilia Ricks of Fladgate LLP.

In an appeal likely to be of significance for commercial and commercial trusts law, the Supreme Court (Lord Hodge, Lord Briggs, Lord Sales, Lord Burrows, Lord Richards) will hear argument on:

• (Subject to permission for the Respondents) Whether the scope of the requirement for signed writing to dispose of an equitable interest in s.53(1)(c) of the Law of Property Act 1925 (“LPA 1925”) is solely land, or includes dispositions of personal property such as shares.
• Whether the Court of Appeal ([2023] EWCA Civ 214) was correct to find that the First Appellant’s disposal of its beneficial interests in shares in a private company to the registered legal owners (its trustees) was effective under an oral agreement, notwithstanding the requirement for signed writing in s.53(1)(c) LPA 1925, by way of a vendor-purchaser constructive trust which fell within the exception in s.53(2) LPA 1925.

Further details are available on the Supreme Court website.

SS (Iraq) v the Secretary of State for the Home Department (PA/57470/2023)

In a judgment handed down on 14th October 2024, First-tier Tribunal Judge Leonard-Johnston allowed the Appellant’s asylum appeal against the SSHD.

Jenn Lawrence acted pro bono for the Appellant, through the Bar’s national pro bono charity Advocate. She worked alongside a pro bono solicitor and a pro bono medico-legal expert from Freedom from Torture, who produced an expert report which supported the Appellant’s account that he had previously been tortured at the hands of the Iraqi state.

The Appellant claimed asylum in the UK on the basis that he had been accused by the Iraqi state of supporting the Kurdistan Workers’ Party and arbitrarily detained and tortured for three months as a result. The SSHD originally refused the Appellant’s asylum claim, asserting that his interviews had contained inconsistencies. However, the Tribunal accepted the Appellant’s submission that the key inconsistency relied upon by the SSHD “could be explained by semantics and translation” and so afforded it limited weight. Moreover, the Tribunal placed “significant weight” on the medico-legal expert report from Freedom from Torture and found the Appellant’s account of his arrest and detention to be detailed and internally consistent.

The Tribunal accordingly accepted that the Appellant had a well-founded fear of persecution for his imputed political opinion and allowed his asylum appeal on Refugee Convention and Article 3 HRA grounds.

Yesterday, 18 September 2024, the General Court annulled, in full, the Google AdSense decision by which the Commission imposed a fine of almost €1.5 billion on Google in respect of its online advertising intermediation service, AdSense for Search (“AFS”).

The case (T-334/19) is an important one concerning the meaning and application of the concept of exclusivity obligations within the Article 102 TFEU framework, the requirements imposed on the Commission with respect to proving capability of anti-competitive effects, and the Commission’s legal burdens and investigative duties more generally.

The Court’s press release can be found here and the judgment can be found here.

Daniel Beard KC, Josh Holmes KC and Jack Williams represented Google, instructed by Claire Jeffs of Slaughter and May.

The Grand Chamber of the European Court of Justice (ECJ) has handed down a landmark judgment about judicial review in the European Union’s Common Foreign and Security Policy (CFSP) in Joined Cases C-29/22 P a KS and KD v Council & Others and C-44/22 P Commission v KS and Others.

The case concerns two individuals who lost family members in 1999 in the aftermath of the Kosovo conflict. The murders and disappearances remained unsolved. In 2008, the EU established the EU Rule of Law Mission in Kosovo (Eulex Kosovo) tasked, amongst others, with the investigation of such crimes. Considering that Eulex Kosovo did not properly investigate the crimes involving their family members, the two individuals claimed a breach of their fundamental rights. They brought an action for damages requesting compensation before the General Court of the EU. The General Court held that it lacked jurisdiction and dismissed their action. The individuals and the EU Commission appealed the General Court’s decision. 7 Member States intervened in support of the appeals.

In its judgment, the ECJ Grand Chamber held that the basic principles of the EU legal order, in particular respect for the rule of law and fundamental rights, apply to the CFSP too and, therefore, both EU and Member States authorities should be subject to judicial review.  It held that the Court of Justice of the European Union has jurisdiction to rule on acts and omissions that are not directly related to the political or strategic choices made by the EU in the context of the CFSP (including, in this case, insufficient investigations owing to lack of appropriate personnel; absence of provisions of legal aid; establishment of the Panel without the power to enforce its decisions or a remedy for breaches of human rights committed by Eulex  Kosovo; failure by Eulex Kosovo to take remedial action, despite the findings of the Panel being brought to its attention; misuse or abuse of executive or public power).

The case has now been referred back to the General Court.

Professor Panos Koutrakos acted for KS and KD, instructed by Savic Solicitors and led by Fergus Randolph KC.

Professor Koutrakos is a leading authority on EU law and is the author, amongst others, of EU International Relations Law 2^nd ed (Hart Publishing, 2015), The EU Common Security and Defence Policy (Oxford University Press, 2013) and the co-editor of Research Handbook on the EU’s Common Foreign and Security Policy (Edward Elgar, 2018).

The Court of Appeal has overturned the CAT’s judgment on issues of due process in Allergan PLC & Ors v The Competition and Markets Authority. In a judgment published openly in March 2024, the CAT set aside the CMA decision that there was an unlawful market sharing agreement in relation to 10mg hydrocortisone tablets on the basis that the CMA had failed fully to put its case to certain witnesses at trial. The Court of Appeal, however, endorsed the cross-examination by CMA counsel as demonstrating “precisely how a case of anti-competitive conduct can and should be put to a recalcitrant witness”. It also found that the procedure adopted by the CAT after the trial was inappropriate and unjust in all of the circumstances of the case.

Jon Turner KC and Daisy Mackersie acted for the Appellants (the CMA), instructed by the Legal Department of the Competition and Markets Authority.

Mark Brealey KC acted for the Advanz Defendant/Respondent Group (Advanz – A2 to A5), instructed by Morgan Lewis & Bockius LLP.

The judgment is available here.

Frank Mitchell successfully represented Nexans Norway A.S. in its recent duty classification appeal. Nexans manufacture in the USA, and imported into the UK, a composite submarine cable comprised of fibre optic elements and electrical cores. The cable, referred to as an ‘export cable’ connects offshore wind farms to onshore electrical substations and facilitates both the export of electricity from the wind farm and the remote control and operation of the wind farm through the fibre optic element. Whilst a physical inspection of the cable reveals that the fibre optic element comprised just 0.3% of the cross sectional area of the cable and just a ’small-fraction’ of the cable’s overall weight, the FTT were satisfied that the cable performed two functions which were independent of each other and performed both both to a high level. It held that neither the electrical nor the fibre optic element performed the principal function nor did either element provide the cable with its essential character as the essence of this cable was one which was designed to perform two functions which were, in essence, ‘better together’.

Whilst the case centres on a niche product, the First Tier Tribunal’s careful analysis of the relevant rules of classification and the jurisprudence of the courts is of general interest to those involved in customs duty classification.