TUTELA PROVISÓRIA ANTECEDENTE: EM BUSCA DA EFETIVIDADE DA PROTEÇÃO JURÍDICA DO MEIO AMBIENTE NO CONTEXTO DO ACORDO DE ESCAZÚ

This paper seeks to understand the institute of preliminary injunctive relief in the context of the Escazú Agreement. To this end, it comments on the reasons that led to the formation of this agreement and presents some of its most relevant articles. The principles of precaution and prevention, which are intended to protect the environment, are also distinguished. The article also presents the concept of provisional emergency guardianship and demonstrates its species. It analyzes in greater detail antecedent provisional injunctive relief as a tool to ensure effective jurisdiction to protect the environment, concluding that such relief is in line with Brazil's commitments under the Escazú Agreement. In order to carry out this research and reach its objectives, the hypothetical deductive method was applied, producing an essentially exploratory research. To this end, it was based on the reading and analysis of books, scientific articles, legal magazines, laws and jurisprudence.

Human Rights Litigation against Multinational Companies in Germany

Miriam Saag-Maaβ‎ reviews the potential for human rights and environmental cases against multinationals in Germany. Outlining the rules on jurisdiction as per EU and national law. The chapter discusses the application of the Rome II Regulation to choice of law and the potential relevance of overriding mandatory provisions of German law and the possibility of claims for impairment or interference with property including the injunctive relief to prevent flooding caused by greenhouse emissions in Lliaya v. RWE. It also outlines the elements for liability for corporate human rights abuse under section 823(I) BGB and for the omission to comply with safety duties, in particular the potential for claims against a parent or buying company for breach of a safety duty by subsidiaries and suppliers. It considers key issues arising in Jabbir v. KiK, including the application of the Pakistani law and outlines key barriers to justice relating to discovery, collective actions, recovery of legal costs and funding.

Collective Proceedings

This chapter assesses the mechanisms for collective redress under the European Rules of Civil Procedure. Part XI of the Rules adopts a broad, non-sectoral approach, which is consistent with approaches across many European jurisdictions and was the approach by the European Commission in 2013. It is, however, broadly consistent in approach with that taken by the European Union in 2013 and 2018. This Part is divided into four sections, each of which deals with different mass harm situations. The first concerns collective injunctive relief (Collective Interest Injunctions); the second concerns collective proceedings for the recovery of damages or for declaratory relief (Collective Proceedings); the third provides a mechanism to declare binding a collective settlement entered into by the parties to a pending collective proceeding; and finally, a mechanism to declare a collective settlement entered into outside of collective proceedings binding.

Old wine in a new bottle? Assessing the injunction remedy for intellectual property disputes in China

The landmark eBay case in the US has noticeably influenced Chinese judicial practices concerning intellectual property injunctions. The injunctive relief in intellectual property infringement cases in China has witnessed a change from a traditional automatic-granting approach to a more equitable approach. However, there are still some issues, namely: the standards of awarding injunctive relief in intellectual property cases are unclear; the civil law tradition and procedure can create issues when applying for injunctions; and the scope of the injunction could be disproportionate in certain cases. In order to address these concerns, China needs to publish judicial interpretations to clarify that the eBay test can be applied to both preliminary injunctions and permanent injunctions. China should further polish up its civil procedure legislation to enable a permanent injunction to be effective immediately, even at the first instance, and to allow the parties to an intellectual property contract to have agreements on conditions of applying for injunctive relief. Additionally, Chinese courts should adopt a proportionate method in determining cases regarding intellectual property injunctions.

FRAND Defences Against the Grant of Injunctive Relief: Applying Huawei v ZTE in Singapore and China

From the size of A4 paper to 5G in the telecommunications sector, standards are ubiquitous. Standard essential patents (SEPs), which protect technology essential to standards, enable their proprietors to gain significant market power. Antitrust authorities therefore scrutinize the exercise of SEPs for breaches of competition law. In this regard, the ability of SEP proprietors to obtain injunctions against implementers as a remedy for infringement of SEPs where licensing negotiations have broken down or are ‘ongoing’ has proven controversial. Some fear that this enables SEP proprietors to threaten injunctions unless implementers agree to unfair, unreasonable, or discriminatory terms. In Huawei Technologies Co Ltd v ZTE Corp [2015] ECLI:EU:C:2015:477, the Court of Justice of the European Union identified circumstances where a SEP proprietor's application for injunctive relief as a remedy for infringement of its SEP constitutes an abuse of a dominant position, with the classification of the SEP proprietor's application as being abusive forming a ‘FRAND Defence’ which implementers may invoke against the grant of the injunction requested. This article analyzes whether this approach can be replicated by the Singapore Courts and whether the Chinese Courts, which have already dealt with SEP licensing disputes, adopt a similar approach.

Provisional Measures of Trademark Enforcement in Pakistan: A Comparative Analysis with Malaysia and USA

Trademark is mark, name, sign, smell or a sound distinguishes goods and services of one undertaking from goods and services of other undertakings. It is required to be distinctive and non-descriptive. It losses its distinctiveness when registered owner of trademark does not take prompt action against its infringement. Provisional Measures of trademark enforcement is a measure initiated by the owner of trademark during civil or administrative procedure of trademark enforcement to prevent further counterfeiting of his trademark and to protect evidence he relies upon during civil or administrative procedure of trademark enforcement. Provisional Measures of trademark enforcement in member states of World Trade Organization (WTO) must be expedient, adequate, fair, equitable, and must not be complicated, costly and time consuming. Provisional measures of trademark enforcement is a civil procedure where owner of trademark may ask the Court to prevent counterfeiter from trademark counterfeiting. This study is qualitative method of research a comparative analysis of provisional measures of trademark enforcement in Pakistan, Malaysia and USA. After a comparative analysis of provisional measures of trademark enforcement in Pakistan, Malaysia and USA, it is found that Lanham Trademark Act 1946 is comprehensive trademark law of United States of America (USA) prescribed grounds to grant and refuse to grant injunctions to prevent trademark counterfeiting. It is also found that there is a requirement in Lanham Trademark Act 1946 for a person against whom injunctive relief is passed to submit report in writing about manner and method of compliance with injunction order. These findings are required to be prescribed in trademark law of Pakistan for betterment of provisional measures of trademark enforcement.

The law enabling sanctioned persons to move litigations to Russia: background and reasons

On 8th June 2020 Vladimir Putin signed into law a new bill amending Russian Commercial Code (RCC) introducing provisions that enable sanctioned persons to sue in Russian commercial courts their foreign counterparts irrespective of jurisdiction clause within the contract signed or international treaty. The main sponsor has given his name to the new Law, which is already known as Lugovoy Law. The sense of the Parliament was that to provide Russian sanctioned persons and their affiliates (both domestic and foreign) with extra support vis-à-vis ongoing and forthcoming litigations abroad. As of now, the RCC is supplemented by sections 248.1 and 248.2 and the commercial courts shall have exclusive jurisdiction over disputes involving persons that are subject to restrictive measures. The Law neither list countries and jurisdictions that shall impose sanctions on the Russian plaintiffs, nor specify type of restrictive measures. For instance, the Russian company sanctioned solely by Ukraine may prevent LCIA arbitration or High Court proceedings in England at the suit of its British opponent. In doing so, the Russian sanctioned Plaintiff is required adducing evidence to show deprivation from right to an effective remedy and to a fair trial abroad. Pursuant to the Lugovoy Law, the Plaintiff could be either an individual or a legal entity including foreign ones and be subject of restrictive measures imposed by any foreign country, union of states or by a body of certain interstate community. The Plaintiff’s home commercial court shall have inherent jurisdiction to entertain cases arising out of the new Lugovoy Law. Meanwhile section 248.2 of RCC enables sanctioned persons to seek injunctive relief precluding foreign opponents either commencing or continuing court proceedings in foreign fora. It is a kind of ex parte anti-suit injunction previously unknown to the Russian legal order. The sanctioned person may invoke 248.2 relief once mailed by opponent’s pre-trial letter. In support of the anti-suit injunction the Lugovoy Law allows sanctioned persons asking the court to order for security for costs. However, the amount sought shall not exceed the sum at stake in the main proceedings. Both orders made under the Lugovoy Law may be challenged on appeal at the Circuit Commercial court within one month. At the outcome, the protectionist logic of the legislature made foreign non-residents extraterritorially amenable to the jurisdiction of Russian commercial courts irrespective their personal law. This might provoke competition between jurisdictions and the emergence of two judicial acts on a dispute between the same persons on the same subject and grounds. If the major actors of the Russian economy decide to recourse to the provisions of the new law in disputes that have nothing to do with sanctions that may entail international tensions. The real purpose of the Lugovoy law is to create an extra tool to protect sanctioned persons and their interests. The opponents of those persons designated under some sanctions program shall not be able to recognise and enforce on the territory of Russia a judgment or arbitral award that in some extent appears to disadvantage Russian sanctioned persons. The author was followed by the objective to discover background and reasons behind the Lugovoy Law, as well as to attempt establishing its beneficiaries. Examining court proceedings versus Russian sanctioned persons abroad that have been commenced or disposed of within a month prior Andrei Lugovoy introduced his bill, it were found situations the Lugovoy Law would like to prevent and persons it tries to protect beforehand. In addition to this, the research focused on cases in Russian commercial courts wherein the Plaintiffs were trying to persuade the Commercial courts to apply the principles of Lugovoy bill before it has become law.