supreme court – Prosecute Bush Cheney http://prosecutebushcheney.org/ Sun, 17 Apr 2022 08:27:51 +0000 en-US hourly 1 https://wordpress.org/?v=5.9.3 https://prosecutebushcheney.org/wp-content/uploads/2021/08/cropped-icon-32x32.png supreme court – Prosecute Bush Cheney http://prosecutebushcheney.org/ 32 32 Application of common law clauses in contracts for the purchase of shares of Colombian companies https://prosecutebushcheney.org/application-of-common-law-clauses-in-contracts-for-the-purchase-of-shares-of-colombian-companies/ Thu, 17 Feb 2022 20:25:27 +0000 https://prosecutebushcheney.org/application-of-common-law-clauses-in-contracts-for-the-purchase-of-shares-of-colombian-companies/ introduction The market for acquiring control of Colombian companies has intensified in recent years, with local and international buyers investing in our country. This has led to the internationalization of stock purchase agreement (“SPA”) language used by Colombian lawyers, including using concepts imported from common law. The adoption of this language greatly facilitates communication between […]]]>

introduction

The market for acquiring control of Colombian companies has intensified in recent years, with local and international buyers investing in our country. This has led to the internationalization of stock purchase agreement (“SPA”) language used by Colombian lawyers, including using concepts imported from common law. The adoption of this language greatly facilitates communication between foreign clients and lawyers and makes transactions more fluid. However, buyers and sellers who trust Colombian lawyers should not lose sight of the fact that, being an imported contractual language, it has its limits when it comes to applying it in Colombia. Therefore, parties involved in negotiating SPAs of Colombian companies should be careful to keep this in mind when receiving legal advice in the country.

When seeking to acquire a position of control in a company, the transaction does not refer only to the acquisition of a certain number of shares, but mainly to the purchase of an organization which has a life of its own and is made up of a corporate culture, a commercial projection, assets, workers who make autonomous decisions and, in general, elements that interact to create added value. With this in mind, the parties, including the acquirer, may not be able to identify all possible contingencies in the conduct of the target’s business.

This is why the negotiation of representations and warranties (“D&G”) in stock purchase agreements becomes so important. D&G originated from common law and are widely used in Colombian legal practice of mergers and acquisitions. They go hand in hand with the indemnification clause, in which the parties agree on the amount of the claim that the buyer can demand from the seller in the event of lies in the D&G. However, what happens when the D&Gs are inaccurate, or if after the transaction is concluded new contingencies arise that were not disclosed by the seller?

In this article, we seek to explain the contractual and legal numbers that parties to a SPA should keep in mind in order to invoke breach of contract once the transaction has been concluded, with the aim that buyers and sellers can have informed conversations with their advisers and ensure that their interests are adequately protected. To be more specific, we will focus on explaining the D&G clause and the indemnification clause, then explain how they interact with two relevant contractual figures of the Colombian system, such as the action redhibitoria and the relative nullity of the contract due to an error in the quality of the asset (error in the quality of the cosa)

Breach of Contract: Representations and Warranties, Indemnification Clause and action redhibitoria

To begin with, the legal nature of D&G is contractual and based on the autonomy of the will of the parties. This means that these are clauses that are not incorporated into Colombian law and that it is the parties – through the clause – who are responsible for spreading the risks of the sale of the shares. D&G assumes that, if a contracted party makes an assertion that leads to the closing of the legal transaction, then it must guarantee its truth and be liable for the consequences if it is not true. 1 Ultimately, this can be expressed by a statement of the following type: “The Company has no liabilities or obligations for a value greater than 20% of the total assets. Likewise, each of the principal obligations has been disclosed in Schedule A of this contract.”

It is important to point out that in SPAs, the Supreme Court of Justice has clarified that the object of the contract is not the company’s assets, but rather the representative certificates of participation in the company. 2 It is therefore essential that the parties stipulate, taking into account the economic object of the contract, that the contractual object does not relate only to the securities, but also to the assets of the company. 3 At this stage, the D&G clause is particularly important, as well as the indemnification clause, because through these the parties will indicate the characteristics of the company and the amount of the indemnification of the buyer in which they are inaccurate. Similarly, it is important that the parties agree on the limitation period of the indemnification clause, since in the event of their silence, the guarantee will be valid for two years from the signing of the contract (art. 932 Commercial Code). 4

Therefore, this clause ends up being an acknowledgment of the economic purpose of the contract, which truly extends to the acquisition of a business. In addition, it has proven to be one of the most common contractual mechanisms for invoking default due to irregularities of the company being transacted.

Likewise, the parties must bear in mind that in any sale celebrated under the Colombian legal system, the seller is responsible for the obligation to saneamiento. This obligation implies that the seller “is obliged to provide the buyer with peaceful and useful possession of the property sold”. 5 This implies that “the good must materially serve the use for which it is intended according to its nature. 6 Hence, when the good suffers from material defects which prevent it from being used in accordance with its nature, the seller will have broken the contract and the buyer will have the right to lodge a complaint. action redhibitoria hidden defects of the property sold. 7

In SPAs, the action redhibitoria is a legal figure that the parties should not ignore. In this respect, it is important to specify that the object of the contract is not the company, but the equity securities. This would mean that, in turn, the obligation to saneamiento would only accrue to the shares of the company. However, the Supreme Court of Justice has recognized that the parties may extend the obligation to saneamiento to cover the business. 8 Therefore, the obligation to saneamiento may also apply in the event of inaccuracies or defects of the company within the framework of the contractual object. 9

Now, it is vitally important that the parties bear in mind that the action redhibitoria gives rise to the buyer requesting the termination of the contract or the reduction of the price depending on whether the good does not serve its natural purpose or serves it imperfectly. 10 In addition, the limitation period of the action redhibitoria is six months for movable property such as shares. 11

Defects in the consent: relative nullity of the contract due to error in the quality of the good (error in the quality of the cosa)

However, once the nature of the D&G has been clarified, it should be reaffirmed that the mandatory nature of this clause within the contract is incidental to the main obligation of the SPA, which is the transfer of ownership of the shares in question. Despite this, the arbitral awards have proposed that although the nature of the D&G is incidental (since its very origin is common law), its relationship to the primary obligation is such that, in the first place, they could be understood as part the pre-contractual duty of information, a duty which derives from the principle of good faith (art. 871 Civil Code). Secondly, since the veracity of these can be a determining cause to execute the contract, the D&G have a privileged role in the contract which cannot be covered by considering them as auxiliaries. Their importance is such, for the two reasons mentioned above, that arbitral awards have positioned them as part of the consent requirement in the contract. 12

To reach the above conclusion, it is important to remember that according to Colombian law, when signing any contract, the parties must have: legal capacity, consent free from defects, and the contract must be based on a lawful object and cause. Taking this into account, the arbitral justice developed the argument set out in the previous paragraph, saying that the D&G’s lie cannot only lead to the claim of the agreed indemnities, but it can also lead to the relative nullity of the contract, since they would represent a defect in the consent. 13

The defects of the consent, in turn, can be due to force, fraud or error, in this case the defect of the consent would be due to an error in the quality of the asset (error in the quality of the cosa).

Finally, although the declaration of relative nullity of the contract due to falsity of the D&G is an additional possibility to the request for indemnities, or to the exercise of the action redhibitoria, this claim must first be asserted by one of the parties in accordance with article 1743 of the Civil Code. Thus, it is important that the interested buyer or his lawyer remember this arbitration award when resolving any dispute in a litigious manner, since it is not an alternative that the judge can exercise. ex officio.

conclusion

From all that is said in this article, it must be concluded that even if the SPAs are drafted with the same legal figures as those used in common law, this does not mean that they will have the same effects. Therefore, it is important that the parties ensure that the contracts are drafted in a manner consistent with Colombian law, so that in the event of a violation of the agreement by one of the parties, an ordinary judge or arbitrator will grant the effects which the parties intended. These effects are not always peaceful and there are differences between ordinary jurisdiction and arbitration jurisdiction, for which correct legal advice is of vital importance when entering a SPA in Colombia.

Bibliography

  • Arbitral award of Balclin Investmets sl, Altra Inversiones SAS and others against Jairo Gutiérrez Robayo, Jimena Gross Mejía and others. Judgment of September 14, 2011. Referees: Ernesto Rengifo García, Jorge Cubides Camacho and Carlos Gustavo Arrieta Padilla.
  • Congress of the Republic of Colombia. Civil Code. Law 84 of 1873. Official Journal No. 2,867 of May 31, 1873
  • Gomez Estrada, Caesar. Main civil contracts. Fourth edition. Colombia: Editorial Temis SA, 2008. ISBN: 978-958-35-0656-7
  • President of the Republic of Colombia. Trade code. Decree 410 of 1971. Official Journal No. 33 339 of June 16, 1971
  • Supreme Court of Justice of Colombia. Civil Cassation Chamber. Judgment of December 16, 2013. Reporting Judge: Ariel Salazar Ramírez. File No. 248433
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Civil Law – Scope of interference limited by Court of Appeal with temporary injunction passed by Magistrate’s Court: High Court of Rajasthan https://prosecutebushcheney.org/civil-law-scope-of-interference-limited-by-court-of-appeal-with-temporary-injunction-passed-by-magistrates-court-high-court-of-rajasthan/ Sun, 06 Feb 2022 08:00:00 +0000 https://prosecutebushcheney.org/civil-law-scope-of-interference-limited-by-court-of-appeal-with-temporary-injunction-passed-by-magistrates-court-high-court-of-rajasthan/ The High Court of Rajasthan, Jaipur observed that the scope of interference by the appellate court is limited where the magistrate court has exercised its discretionary and equitable jurisdiction to grant the temporary injunction in favor of the plaintiff and against the plaintiffs. defendants. Judge Sudesh Bansalwhile having the means, observed, “This Court is of […]]]>

The High Court of Rajasthan, Jaipur observed that the scope of interference by the appellate court is limited where the magistrate court has exercised its discretionary and equitable jurisdiction to grant the temporary injunction in favor of the plaintiff and against the plaintiffs. defendants.

Judge Sudesh Bansalwhile having the means, observed,

“This Court is of the considered opinion that this is not a case where the Court of Appeal should exercise its power to interfere with the temporary injunction order made by the trial court. Thus, no interference is necessary with the contested order and, therefore, the appeal is hereby dismissed.”

In the present case, the petitioner challenged an order under which a request filed under Ordinance 39 Rules 1 & 2 CPC was granted and during the trial of the civil action for specific execution filed by the respondent no. 1-plaintiff, the appellants-the defendants were forced not to transfer the disputed land and to maintain the status quo until the decision of the civil action.

The consideration before this Court is that where the trial court has exercised its discretionary and equitable jurisdiction to grant the temporary injunction in favor of the plaintiff and against the defendants, should this Court interfere with the temporary injunction order made by the trial court, under its appellate jurisdiction?

The court held that under Ordinance 39, Rules 1 and 2 CCP, it is res integra that if the trial court has exercised its discretion in granting an injunction, the jurisdiction of the Court of Appeal to interfere is very limited. The court observed that interference can only be made in situations where the Court of Appeal is satisfied that the trial court acted arbitrarily or contrary to law or that the findings of the trial court are perverse or capricious, patently incorrect and totally indefensible. If the view taken by the trial court is a possible view, there is no need for the Court of Appeal to interfere with it, the court added.

The court was of the view that the issues raised by the appellant in this Court, disputing either questions of fact or questions of law, can be decided by the trial court during the trial at the proper stage and it is not not permitted in law to usurp the jurisdiction of the trial court by the appellate court, while exercising its appellate jurisdiction against the order granting the interim injunction.

The court reiterated that all of these factual and legal issues can be considered by the trial court during the trial and after recording the parties’ evidence. The court added that in this case, the trial court cannot be said to have exercised its discretion and fair jurisdiction in an arbitrary and capricious manner. The contested order cannot be qualified as an abusive order or is vitiated by serious illegality or a jurisdictional error; moreover, the view taken by the trial court is not an impossible view, the court observed.

The court relied on Maharwal Khewaji Trust (Regd.) Faridkot v. Baldev Dass (2004)in which Apex Court held that unless and until a case of irreparable loss or damage is established by a party to the suit, the court should not allow the nature of the property to be altered, which which also includes alienation or transfer of ownership which may lead to loss or damage to the party who may ultimately prevail and may further lead to multiplicity of proceedings.

In addition, we also relied on Dev Prakash vs. Indra (2018) in which the Supreme Court observed that the very essence of the concept of temporary injunction and receivership for the duration of a civil litigation involving property is to prevent its threat of waste, damage and alienation by any party thereto, to the immeasurable prejudice of the other party or to make the situation irreversible not only to influence the final decision but also to render illusory the reparation granted.

The court observed that prima facie consideration must also be given to the nature of the loss, harm or injury that would be caused to the party if they were restrained by temporary injunction during the trial.

The court observed that the trial court’s order was eloquent and reasoned, as the trial court found that there was a prima facie case in favor of the plaintiff, after weighing the respective pleadings, documents and other present circumstances. Apart from the prima facie case, the trial court also independently dealt with the points of balance of convenience and irreparable harm, the court added.

Appearing for the appellant, Adv. Sukriti Kasliwal argued that the trial court committed gross illegality and perversity in granting the injunction in the present case, while the civil suit for specific execution itself is bad in law and is not likely to succeed on the merits, therefore, the plaintiff was not entitled to any temporary joinder in his favor.

Case title: Rudresh Jhunjhunwala and Ors. vs. Satish Kumar and Ors.

Citation: 2022 LiveLaw (Raj) 54

Click here to read/download the judgment

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There is no common law right to start a vehicle in Georgia: starting a car is not the same as rounding up cattle | Smith Gambrell Russell https://prosecutebushcheney.org/there-is-no-common-law-right-to-start-a-vehicle-in-georgia-starting-a-car-is-not-the-same-as-rounding-up-cattle-smith-gambrell-russell/ Wed, 26 Jan 2022 08:00:00 +0000 https://prosecutebushcheney.org/there-is-no-common-law-right-to-start-a-vehicle-in-georgia-starting-a-car-is-not-the-same-as-rounding-up-cattle-smith-gambrell-russell/ In the case of RCC Wesley Chapel Crossing, LLC et al. vs. Forrest Allen et al., the Georgia Supreme Court considered whether there is a common law right for a private owner to start a vehicle parked on his property without permission. Starting involves immobilizing a vehicle until the owner pays to have the immobilizer […]]]>

In the case of RCC Wesley Chapel Crossing, LLC et al. vs. Forrest Allen et al., the Georgia Supreme Court considered whether there is a common law right for a private owner to start a vehicle parked on his property without permission. Starting involves immobilizing a vehicle until the owner pays to have the immobilizer removed.

Plaintiff sued the owner-operator of a parking lot and commercial tenants of the connected mall for negligence, premises liability, unlawful confinement, conversion and violation of Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. The lawsuit alleged that after the plaintiff parked in the mall parking lot, his vehicle was immobilized by the placement of a trunk on one of his vehicle’s tires and he had to pay $650 for remove the trunk.

The defendants argued that under the common law — the body of law derived from court decisions rather than statutes — private owners are permitted to stop vehicles that encroach on their property. They asserted that the common law right to remove trespassing property encompasses a right to stop trespassing vehicles.

Defendants also asserted that the common law doctrine of “doer of distress damages,” which dates back hundreds of years, allows landowners to engage in the self-help remedy of forfeiting the property of another person when wrongfully on their land. The distress damage-doer doctrine recognizes a landowner’s right to seize trespassing livestock that stray onto their land and cause actual damage and hold it as collateral until the animal’s owner is identified. and compensates the landowner for his damages.

The Georgia Supreme Court unanimously rejected these arguments. He held that neither the right to remove property from trespass nor the doctrine of distress damages doer support defendants’ vehicle starting practice.

The Court explained that the act of stopping a trespassing vehicle contrasts sharply with the common law power to remove trespassing chattels from a property because stopping the chattels perpetuates the trespass. Further, the Court noted that this common law remedy has been superseded, in part, by the Georgia Towing Act, which provides specific guidelines for the removal and seizure of vehicles, but is silent on the starting cars. To see OCGA § 44-1-13.

The Court held that the doctrine of the existence of distress damage did not apply to the facts of the case. Defendants cited no authority when a court applied the doer of distress doctrine to anything other than livestock or when a court held that a landowner had the common law right to confiscate and detain movable property, such as a vehicle, whose owner is easily identifiable. Indeed, the Court found that there is no statutory authority recognizing a common law right to immobilize unauthorized vehicles located on private property and hold them against the will of the owner until payment be received. The Court further noted that even if the plaintiff for distress damages were to apply to authorize the immobilization practice of the vehicle in issue, the defendants’ application would fail because the doctrine requires trespass and proof of actual damages and that the record did not support any damage suffered by the defendants. .

For any startup to occur on private property in Georgia, there must be a law or ordinance permitting it. Indeed, the Georgia District Court and Court of Appeals had held below that there is no right to immobilize a vehicle in the absence of an enabling statute or ordinance. . Some municipalities in Georgia have ordinances that specifically allow the starting of unauthorized vehicles, but that was not the situation presented in this case. And, as noted above, while Georgia law permits the towing and seizure of unauthorized vehicles in certain circumstances, that is not what the defendants have done here.

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No common law right to start unauthorized vehicles, Georgia Supreme Court judge https://prosecutebushcheney.org/no-common-law-right-to-start-unauthorized-vehicles-georgia-supreme-court-judge/ Thu, 16 Dec 2021 19:04:18 +0000 https://prosecutebushcheney.org/no-common-law-right-to-start-unauthorized-vehicles-georgia-supreme-court-judge/ [ad_1] ATLANTA (AP) – Landowners are prohibited from starting unauthorized vehicles on their premises, Georgia’s highest court ruled on Tuesday. Forrest Allen sued the owner and operator of a DeKalb County mall and several of his tenants after his vehicle was immobilized in February 2018 and he had to pay $ 650 to have the […]]]>


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ATLANTA (AP) – Landowners are prohibited from starting unauthorized vehicles on their premises, Georgia’s highest court ruled on Tuesday.

Forrest Allen sued the owner and operator of a DeKalb County mall and several of his tenants after his vehicle was immobilized in February 2018 and he had to pay $ 650 to have the trunk removed.

The defendants argued on appeal to the Georgia Supreme Court that they had a common right to remove vehicles that entered their property. They also cited the age-old “distress damage doer” doctrine, which recognizes the right of a landowner to contain intruding cattle and keep them until the owner of the animal can be determined and pays. the landowner for damages, according to opinion.

The High Court rejected these arguments, saying that neither this doctrine nor the right to remove intruder vehicles gives owners the right to stop vehicles on their property.

“Indeed, there does not appear to be any legal authority recognizing a common law right to immobilize unauthorized vehicles located on private property and to detain them against the owner’s will until payment is received.” wrote Justice Shawn LaGrua.

Some municipalities in Georgia have ordinances that specifically allow the starting of unauthorized vehicles, but this is not the case everywhere.

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Mall had no common law right to start vehicles, higher state court rules in car owner’s RICO lawsuit https://prosecutebushcheney.org/mall-had-no-common-law-right-to-start-vehicles-higher-state-court-rules-in-car-owners-rico-lawsuit/ Thu, 16 Dec 2021 08:00:00 +0000 https://prosecutebushcheney.org/mall-had-no-common-law-right-to-start-vehicles-higher-state-court-rules-in-car-owners-rico-lawsuit/ Homepage Daily News The mall did not have the customary right to… Trial & Litigation Mall had no common law right to start vehicles, higher state court rules in car owner’s RICO lawsuit By Debra Cassens-Weiss December 16, 2021, 10:05 a.m. CST Image from Shutterstock. A car owner who had to pay $650 to have […]]]>

Trial & Litigation

Mall had no common law right to start vehicles, higher state court rules in car owner’s RICO lawsuit

Image from Shutterstock.

A car owner who had to pay $650 to have an immobilizer boot removed from his tire will get a second crack at class action status in his racketeering lawsuit following a Georgia Supreme Court ruling Tuesday. .

In one Notice of December 14the court said a private shopping mall lot in DeKalb County, Georgia, had no common law right to apply boots to trespassing vehicles.

The state Supreme Court ruled in favor of plaintiff Forrest Allen, who sued the owner and operator of the parking lot, as well as commercial tenants in the adjacent mall, including Dollar Tree stores.

Allen has filed for class action status for his lawsuit alleging negligence, premises liability, forcible confinement, conversion and violation of Georgia’s Racketeer Influenced and Corrupt Organizations Act.

The court rejected two theories put forward by the defendants.

The first theory rejected was that starting is permitted because of a landowner’s common law right to carefully remove another’s property left on his land without permission.

The court said that the act of immobilizing an intruding vehicle is different from removing unauthorized property because immobilizing the vehicle perpetuates the trespass. In addition, Georgia’s towing law replaced, at least in part, the common law rule, the court said.

The second theory rejected was that starting is permitted under the common law doctrine of “doing distress damages”. The theory recognizes a landowner’s right to impound intruding livestock causing actual damage to property and hold them as collateral until the animal owner compensates the landowner for the damage.

The state Supreme Court said the doctrine applied only to livestock. And if it applied in this case, there must be proof of actual damage to the property, which did not happen.

“Defendants have not cited any authority in Georgia or any other jurisdiction where a court has applied the doer of distress doctrine to anything other than livestock or where the court has held that a landowner has the right to confiscate and detain personal property, such as an automobile, whose owner is readily identifiable,” the Georgia Supreme Court said.

“Indeed, there does not appear to be any statutory authority recognizing a common law right to immobilize unauthorized vehicles located on private property and hold them against the will of the owner until payment is received. .”

The court returned the lawsuit to the trial court for reassessment of the plaintiff’s motion for collective certification.

Hats off to Courthouse News Service.

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Georgia Court: No Common Law Right to Start Unlicensed Vehicles https://prosecutebushcheney.org/georgia-court-no-common-law-right-to-start-unlicensed-vehicles/ Wed, 15 Dec 2021 08:00:00 +0000 https://prosecutebushcheney.org/georgia-court-no-common-law-right-to-start-unlicensed-vehicles/ Private business owners do not reserve the right to start cars parked on their property, according to a new Georgia Supreme Court ruling. The case dates back to 2018 when Forrest Allen sued RCC landlord Wesley Chapel Crossing, LLC and several of his tenants in Clayton County State Court, alleging negligence, premises liability, false imprisonment, […]]]>

Private business owners do not reserve the right to start cars parked on their property, according to a new Georgia Supreme Court ruling.

The case dates back to 2018 when Forrest Allen sued RCC landlord Wesley Chapel Crossing, LLC and several of his tenants in Clayton County State Court, alleging negligence, premises liability, false imprisonment, conversion and breach of covenants. organizations influenced and corrupted by Georgia racketeers. Act.

Allen claimed in the lawsuit that on February 8, 2018, while parking his car in the mall parking lot, he returned to find his vehicle immobilized by a trunk.

The lawsuit also said Allen paid $650 to have the trunk removed and that at least 250 other people had met the same fate while parking in the parking lot since 2013.

The owners argued that they had a common law right to start the car because it was on their property.

However, nearly three years later, the Georgia Supreme Court agreed with Allen, citing that there is no state or common law law that authorizes the practice.

In the opinion, Judge Shawn Ellen LaGrua wrote that the judges “disagree and conclude that neither the right to remove trespassing property…nor distress damage supports the practice of restraining the vehicle in which the defendants engaged here”.

WABE legal analyst Page Pate said that for any startup to occur on private property, a city ordinance would need to permit it. “The Supreme Court in this case basically said that a private owner has no right to put a trunk on a car that has been parked too much on a piece of land,” he said.

And while the court recognizes that there is a way to deal with overparked vehicles through the Georgia Towing Act, that law does not address starting.

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Contemporary Common Law Developments in Contract Law: Implications for Reform in Malaysia – Mary Lim | What you think https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ Thu, 09 Dec 2021 00:02:10 +0000 https://prosecutebushcheney.org/contemporary-common-law-developments-in-contract-law-implications-for-reform-in-malaysia-mary-lim-what-you-think/ [ad_1] DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1. The Law Revision Commissioner has the primary power and function of reviewing and reprinting all […]]]>


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DECEMBER 9 – There is an appointment by His Majesty the King of a person known as the Law Revision Commissioner. This appointment is made under a little-known law called the Law Revision Law of 1968 or Law 1.

The Law Revision Commissioner has the primary power and function of reviewing and reprinting all laws passed by Parliament and this includes all laws prior to Merdeka.

Revision is essentially an exercise in updating our laws and keeping in our treasury only those laws that are still in force with a language in tandem with current legislation.

One would have thought that this exercise should be done by Parliament or the legislative assemblies of the respective states since all laws are promulgated by Parliament. Under Law 1, this function of reviewing our laws is left in the hands of the Law Review Commissioner.

Here is an example of the powers of the commissioner. The Commissioner may omit from any revised law, for example:

* Any provision which has ceased to have effect;

* Any preamble or part of a preamble of a law;

* Any adoption clause;

* Any part of a law which can be more conveniently included as subsidiary law.

In this revision exercise, the commissioner can even add a long or short title or modify an existing title; provide or modify tables of contents, consolidate or divide into one or more laws; transfer any provision of one statute to another statute to which that provision more correctly belongs; modify, insert or omit punctuation marks.

There is more; a total of about 24 powers. But, there is a strict prescription to all of these powers.

The Commissioner is expressly informed that the powers conferred “should not be interpreted as implying a power to make modifications or modifications to the substance of a law”.

In 2006, I was appointed Commissioner of Law Revision or CLR as the position is more commonly known. But, I wasn’t just the CLR.

Four years earlier, the CLR had taken on an additional portfolio and had become the Law Review and Reform Commissioner. The Research Unit of the Public Prosecutor’s Office is placed under the supervision of the CLR.

Thus, the task of law reform came under the auspices of the CLR. However, until that date, Act 1 and the appointment of the CLR remain unchanged; and I understand that there is yet another research unit at AGC.

Why am I referring to the office of the CLR and the powers granted under Act 1 to the CLR as we are here this morning on the cases of the Contracts Act 1950 and more specifically, the development of contemporary customary law in Malaysia?

Perhaps its relevance will become clearer when we understand the broader intent of this round of talks.

English commercial law was first introduced into the Straits Settlements through the Civil Law Ordinance of 1878. In 1899, the Contract Act, modeled on the Indian Contract Act of 1872, was adopted. then promulgated.

It applied to the four Federated Malaysian States. This law was later extended to the non-federated Malaysian states through the Contracts Ordinance of 1950.

The contracting ordinance was then revised under the powers that I explained a moment ago. With effect from July 1, 1974, the Contracts Ordinance became the Contracts Act 1950 and constitutes Act 137 of the Malaysia series of laws.

The Indian contract law is said to be in fact “a code of English law”. Our contract law should not be viewed any differently. As a Code, one should be able to find all the answers in its pages.

Yet, as you will hear, the contracting parties have repeatedly called upon our courts to the common law for assistance, for development. For example, our provisions on coercion [section 15 of the Contracts Act] are said to be archaic, disregarding commercial realities and pressures, that economic constraint must be properly recognized.

In the recent decision of Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40, [2021] 3 WLR 727, the English courts have even recognized the concept of a lawful act of economic coercion.

Likewise, the concepts or at least the arguments of inequity and unequal bargaining have been left out, namely that our existing article 16 on “abuse of influence” would simply be inadequate to deal with modern quarrels in law and order. conference rooms.

So in Saas Marwi vs. Chan Hwan Hua [2001] 3 CLJ 98, the Court of Appeal suggested that “we should recognize the broader doctrine of unequal bargaining power. We can adopt the English doctrine of unconsciousness in toto ”. The Court of Appeal held that this was a choice available under section 3 of the Civil Law Act 1956. [Act 67].

What about the treatment of illegality as addressed by the Supreme Court in Patel vs. Mirza [2016] UKSC 42 – is it within the scope of article 24? What about the law of restitution, of unjust enrichment?

Does this fall under the law or have we pushed its terms beyond its limits? The recent Federal Court decision in Cubic Electronics Sdn Bhd vs. Mars Telecommunications Sdn Bhd [2019] 6 MLJ 15 has satisfactorily terminated the damages position; is it in tandem with the rest of the other common law jurisdictions.

The contracting parties have repeatedly called on our courts to use the common law for assistance, for development.  - Photo by Yusof Mat Isa
The contracting parties have repeatedly called on our courts to use the common law for assistance, for development. – Photo by Yusof Mat Isa

Another example is electronic transactions. If one looked to the requirements of the law on forming a valid and concluded agreement, and by the time one arrives at it, it is more likely than not that the many parties involved in an electronic transaction or a web contract have already clicked and sent a response via the impossible algorithms.

How many of us have really gone through and read the countless terms and conditions before clicking the “I agree” or “I agree” or even “Pay” button? The fear is that this law of the last century will not be able to resolve the disputes that arise from these e-commerce transactions.

There is certainly more.

It is clear and obvious that the law on contracts needs revision, and swiftly. And the revision of the Law on Contracts, a law that regulates and underpins many fundamental aspects of our daily lives, our businesses, our industry, our government and more; cannot be left to the court. Court observations can be challenged as obiter or worse, by carelessness. There are only limits that the courts can model on the facts in order to do justice.

The revision of our law on contractual obligations to take into account and accommodate developments in Common Law must be undertaken in a responsible manner, through agreement and discourse; extensive, in-depth and refined deliberations by appropriate experts; many of whom are already attending this webinar and those to come in the coming days.

This task fits perfectly into the additional function of the CLR, that of reform. But, as I pointed out at the beginning, this task can, with respect, go beyond the powers of the CLR; certainly not as a review exercise, but as a reform project.

In the UK, reform matters are by statute the responsibility of the Law Reform Commissioner. A sitting judge of the Court of Appeal directs this appointment. Sir Nicholas Green is assisted by an independent and permanent secretariat

In fact, just last week the Law Commission “confirmed that existing law in England and Wales is capable of adapting and applying to smart legal contracts, without the need for reform statutory law. The Law Commission notes that in some contexts a progressive development of the common law is all that is needed to facilitate the use of smart legal contracts within the existing legal framework.

We need this. We need an independent legal commission to undertake all the reforms.

Its urgent work will then be able to integrate all the studies and recommendations which, it is hoped, will result from this series for greater confidence in the evolution of our law of contractual obligations; that law and common law can really be ad ditto.

* Datuk Mary Lim Thiam Suan is a judge at the Federal Court of Malaysia and here is her remarks delivered at the Faculty of Law of the University of Malaysia on December 4th.

** This is the personal opinion of the author or post and does not necessarily represent the views of Malaysian courier.

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De facto marriage and social security https://prosecutebushcheney.org/de-facto-marriage-and-social-security/ Mon, 15 Nov 2021 19:47:14 +0000 https://prosecutebushcheney.org/de-facto-marriage-and-social-security/ [ad_1] Social security recognizes a de facto marriage if: The couple live in a state where common-law marriage is legal, or did so at the start of the marriage. The couple can show Social Security that they are in such a relationship (more details below). If you meet these criteria, you are entitled to the […]]]>


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Social security recognizes a de facto marriage if:

  • The couple live in a state where common-law marriage is legal, or did so at the start of the marriage.
  • The couple can show Social Security that they are in such a relationship (more details below).

If you meet these criteria, you are entitled to the same spousal and survivor benefits, subject to the same conditions, as a couple who have obtained a marriage license and performed a ceremony.

Social Security regulations list 10 states that currently recognize common law marriage (some by current laws, others by legal precedents): Colorado, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, Caroline of South, Texas and Utah. The District of Columbia is doing it too. The rules on cohabitation and other criteria for establishing a relationship as a common-law marriage vary considerably from state to state.

Sixteen other states previously recognized such relationships, and if your common-law relationship began while the practice was still legal in your state and met that state’s criteria, Social Security will say so. In most of these states, the question is largely academic; 11 ceased to recognize common-law unions more than 50 years ago. The question may be more relevant if you were married in Alabama (where the practice was banned in 2017), Georgia (1997), Idaho (1996), Ohio (1991), or Pennsylvania (2005).

Once you’ve cleared the state hurdle, it’s mostly a matter of Social Security paperwork. Both common-law partners must complete a “Declaration of Conjugal Relationship” (Form SSA-754) and provide an additional declaration from a blood relative confirming the marriage (Form SSA-753). If your common-law partner is deceased and you are claiming survivor benefits, you must provide your own declaration, one from a blood relative and two from a blood relative of the deceased. Social Security may look for corroborating evidence that the couple considers themselves (or considers themselves) to be spouses, such as mortgage or rent receipts, insurance policies, or bank statements.

If you live in a state that doesn’t recognize common-law marriage, you’re out of luck from a Social Security perspective. The recognition of de facto unions established abroad varies from country to country and may require an opinion from the Social Security legal office; if you are in such a relationship, contact Social Security to inquire about your status.

Keep in mind

  • Children of common-law partners who are both deceased may be eligible for survivor benefits. When applying, they must provide an SSA-753 form of a parent by blood of each parent.
  • The issue of social security benefits for de facto same-sex marriages is legally pending. The emblem of the Supreme Court Oberefell the decision required states to issue marriage licenses to same-sex couples; it did not deal specifically with common-law marriages. How States Apply Oberefell such relationships are dealt with on an ad hoc basis, as the relevant cases (for example, involving divorce or inheritance) are dealt with in state courts.

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Buyer Beware: Federal Common Law of Successor Liability May Create Unexpected Liability Dechert srl https://prosecutebushcheney.org/buyer-beware-federal-common-law-of-successor-liability-may-create-unexpected-liability-dechert-srl/ Wed, 20 Oct 2021 07:00:00 +0000 https://prosecutebushcheney.org/buyer-beware-federal-common-law-of-successor-liability-may-create-unexpected-liability-dechert-srl/ [ad_1] Key points to remember: The Third, Sixth, Seventh and Ninth Circuit Courts of Appeal have recognized the doctrine of successor liability in federal common law for claims brought under certain federal labor and employment statutes, including the Fair Labor Standards. Act, Title VII, the Family and Medical Leave Act. , and the Employees Retirement […]]]>


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Key points to remember:

  • The Third, Sixth, Seventh and Ninth Circuit Courts of Appeal have recognized the doctrine of successor liability in federal common law for claims brought under certain federal labor and employment statutes, including the Fair Labor Standards. Act, Title VII, the Family and Medical Leave Act. , and the Employees Retirement Income Security Act, among others.
  • Successor liability in federal common law is broader than traditional state concepts of successor liability in that it does not require community of ownership between a predecessor and a successor corporation; substantial business continuity may be sufficient to support the responsibility of the successor.
  • Thus, structuring a transaction as a sale of assets rather than a merger or equity investment may not necessarily be sufficient for an acquirer to evade liability for certain federal claims if the key personnel, assets and general business operations remain the same or substantially similar after the transaction is closed.
  • In Central Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc., No. 20-252 (7th Cir. July 7, 2021), the Seventh Circuit continued to recognize the federal common law doctrine of successor liability, but rejected the idea that it could provide an independent basis for federal jurisdiction over the matter.
  • Counsel for the plaintiffs and others can be expected to test the limits of the doctrine in seeking to apply it to other federal causes of action that “flow” from federal law.

The United States Court of Appeals for the Seventh Circuit recently delivered a remarkable decision in East Central Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc. on the application of successor liability in federal courts.1 The responsibility of the successor in federal common law is a exception the general rule in virtually all US jurisdictions that the buying company (i.e. the acquirer) in an asset sale transaction does not not assume the liabilities of the selling company (i.e. the acquiree) simply by acquiring ownership of the assets.2 Federal courts of appeal, including the Third, Sixth, Seventh and Ninth Circuits, have provided an exception to this general rule and have recognized that “where liability is based on a violation of a federal labor relations law or employment, a common federal law The law standard of successor liability applied is more favorable to plaintiffs than most state law standards that the court might otherwise consider.3 According to this approach, successor liability can be found even in the context of an actual sale of assets. if (1) the successor has been notified of the claim, (2) there is “substantial continuity in the operation of the business before and after the sale” and (3) the predecessor cannot provide the relief requested.4 Federal courts of appeal have applied this framework to federal labor and employment claims arising from the Fair Labor Standards Act (FLSA),5 Title VII,6 the law on family and medical leave (FLMA),7 and the Employees Retirement Income Security Act (ERISA),8 among others.

As a relevant example, the district court of Prather plumbing held that the availability of successor liability at federal common law was a “close call” for plaintiffs who had obtained a default judgment on the ERISA claims against a target asset-selling company that had ended up with little ‘assets as a result of a sale transaction and brought a separate action against the purchaser of those assets.9 Although the owners of the companies involved in the asset sale transaction were father and son and the son was made aware of the possible liabilities of his father’s company, the district court saw “a grave injustice in imposing a judgment of nearly US $ 300,000 due solely to the purchase of only US $ 25,024 of impaired physical assets ”and ultimately refused to impose successor liability.ten Other courts, however, have balanced the actions the other way around and have imposed successor liability on the buyers of the assets. Indeed, the Seventh Circuit recently underlined that “when the successor company knows the responsibility of its predecessor, knows the precise extent of this responsibility and knows that the predecessor itself would not be able to pay a judgment obtained against it , the presumption should be in favor of the responsibility of the successor.11

In its appeal decision in Prather plumbing, the seventh circuit panel did not reach the equity to impose the responsibility of the successor. Instead, the court considered whether the plaintiffs’ single claim alleging the federal common law doctrine of successor liability constituted an allegation “under” federal law for the purposes of establishing federal jurisdiction over successor liability. question. In a unanimous opinion, the Seventh Circuit concluded that it lacked jurisdiction in the matter, citing the earlier decision of the United States Supreme Court in Peacock c. Thomas, 516 US 349 (1996), where this Court found that an argument for piercing the corporate veil did not provide “federal question” jurisdiction in the absence of an underlying federal cause of action. , such as that arising from federal labor or employment laws.12 Likewise, the Seventh Circuit found that the applicants in Prather plumbing did not allege a breach of ERISA against the asset acquirer, but simply invoked successor liability as a “means of imposing liability on the basis of a cause of action underlying ‘they had previously won against the predecessor company.13 Although the responsibility of the successor “implied federal law[,] . . . it does not necessarily follow that federal law also created a cause of action enforce this doctrine in federal court.14 As such, notwithstanding the fact that the plaintiffs cited ERISA in their declaration of jurisdiction, nothing in this law actually provided for legal action based on successor liability.15 Thus, the Seventh Circuit overturned the district court’s judgment and returned with instructions to dismiss the action for lack of federal jurisdiction.

Although the decision of the Seventh Circuit in Prather plumbing may reduce the potential for successor liability in federal common law by excluding it as a source of federal questioning jurisdiction to bring an action in federal court, this form of liability is indeed present in at least four of the courts of law. federal circuits, including appellate courts that cover major jurisdictions such as Cincinnati, Chicago, Detroit, Los Angeles, Philadelphia, and San Francisco. When conducting due diligence on an acquisition, companies and M&A participants should take note of the potential liability of the successor under federal labor or employment laws, even when a transaction is structured as a sale of assets, if substantial business continuity is an expected result. It is also to be expected that the plaintiffs et al. Will attempt to extend the doctrine of successor liability in federal common law to other federal causes of action which “arise” from federal law. This all serves as a further reminder of the importance of not only performing in-depth due diligence when completing an asset acquisition, but also the importance of seeking adequate representation and collateral coverage (including on matters implied by federal law), as well as remedies for breach.

Footnotes

1) E. Hundred. Illinois Pipe Trades Health & Welfare Fund v. Prather Plumbing & Heating, Inc., n ° 20-252, 3 F.4th 954 (7th Cir. 2021).

2) William M. Fletcher et al., Fletcher Cyclopedia of Law of Private Corporations § 7122 (rev. Vol. 2008).

3) Teed v. Thomas & Betts Power Sols., LLC, 711 F.3d 763, 764 (7th Cir. 2013); see also Einhorn v. ML Ruberton Const. Co., 632 F.3d 89, 94 (3d Cir. 2011); Guarantee of pension benefits. Corp. vs. Findlay Indus., Inc., et al., 902 F.3d 597, 609-11 (6th Cir. 2018); Sullivan v Dollar Tree Stores, Inc., 623 F.3d 770, 780-81 (9th Cir. 2010).

4) EEOC c. GKG, Inc., 39 F.3d 740, 747-48 (7th Cir. 1994); see also Teed, 711 F.3d at 765-66.

5) See Ted, 711 F.3d at 765-66.

6) See Wheeler v. Snyder Buick, Inc., 794 F.2d 1228, 1236 (7th Cir. 1986).

7) See Sullivan, 623 F.3d at 786-87.

8) See Einhorn, 632 F.3d at 96-100; Pension Fund of the International Union of Upholsterers c. Artistic furniture, 920 F.2d 1323, 1327-28 (7th Cir. 1990).

9) E. One hundred. Illinois Pipe Trades Health & Welfare Fund & Plumbers v. Prather Plumbing & Heating, Inc., n ° 1: 18-CV-01434, 2020 WL 4060766, at * 8 (CD Ill. July 17, 2020).

ten) Identifier. to 10.

11) Ind. Elect. Workers’ Pension Fund v ManWeb Servs., Inc., 884 F.3d 770, 783 (7th Cir. 2018) (emphasis added) (citing Worth vs. Tyer, 276 F.3d 249, 260 (7th Cir. 2001)).

12) Prather plumbing, 3 F.4th at 959-60 (citing Peacock c. Thomas, 516 US 349 (1996)).

13) Username. to 960.

14) Username. (emphasis added).

15) Username. to 961.

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The common law of BVI after a general idea – Litigation, mediation and arbitration https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/ https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/#respond Mon, 11 Oct 2021 17:12:07 +0000 https://prosecutebushcheney.org/the-common-law-of-bvi-after-a-general-idea-litigation-mediation-and-arbitration/ [ad_1] British Virgin Islands: The common law of BVI after a broad idea October 11, 2021 Collas Crill To print this article, simply register or connect to Mondaq.com. The Judicial Committee of the Privy Council recently delivered its much anticipated judgment in the BVI’s joint appeals in Broad Idea International Ltd v Convoy Collateral Ltd […]]]>


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British Virgin Islands: The common law of BVI after a broad idea

To print this article, simply register or connect to Mondaq.com.

The Judicial Committee of the Privy Council recently delivered its much anticipated judgment in the BVI’s joint appeals in Broad Idea International Ltd v Convoy Collateral Ltd and Convoy Collateral Ltd v Cho Kwai Chee.

Some key lessons can be learned from the judgment

  1. With respect to service on a foreign defendant of a claim form in which a freezing injunction is the only remedy sought, the Rules of Civil Procedure of the Eastern Caribbean Supreme Court 2000 (the “CE RPCs”) do not provide no power to the courts of the BVI. . Consequently, this apparent limitation of the CE RPC can only be corrected by their amendment.
  2. Reaffirming the jurisdiction of Black Swan (which has since been placed on a statutory basis) and departing from the dicta of the House of Lords in The Siskina, the Privy Council noted that a freezing injunction is not, in actual fact, analysis, incidental to a cause of action, in the sense of a request for substantial relief, or not at all. The essential purpose of a freezing injunction is to facilitate the execution of a judgment or of an order to pay a sum of money, by preventing the assets against which such a judgment could potentially be executed from being processed. so that insufficient goods are available to meet the judgment. Therefore, there is no policy reason to link the grant of such an injunction to the existence of a cause of action.

Summary

The common law of the BVI (and perhaps more generally) on the granting of freezing orders can be stated as follows (by Lord Leggatt at paragraphs 101 and 102):

a) A court having equitable and / or statutory jurisdiction to grant injunctions where it is just and convenient to do so has the power to grant a freezing injunction against a party over which the court has personal jurisdiction. on condition that :

i) the plaintiff has already obtained or has valid arguments for obtaining a judgment or order for payment of a sum of money which is or will be enforceable through the legal process;

(ii) the defendant has assets (or is likely to take actions other than in the ordinary course of business which will reduce the value of the assets) against which such judgment could be enforced; and

(iii) there is a real risk that, unless the injunction is granted, the defendant will treat these assets (or take actions that make them less valuable) other than in the ordinary course of business, such that the availability or the value of the assets are depreciated and the judgment is not satisfied.

b) Although other factors are potentially relevant to the exercise of the discretion to grant a freezing order, there are no other relevant restrictions on the availability in principle of the remedy. Specifically:

i) The judgment need not be a judgment of the national court – the principle also applies to a foreign judgment or other enforceable award in the same way as a judgment of the national court using the powers of court execution.

ii) Although this is the usual situation, there is no requirement that the judgment be a judgment against the Respondent.

iii) It is not necessary that the proceedings in which the judgment is requested have already been initiated nor that a right to institute such proceedings has already arisen: it is sufficient that the court can be satisfied with a sufficient degree of certainty that a right to bring an action will arise and that an action will be brought (whether before the national court or before another court).

The full text of the Privy Council’s decision is available here.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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