The presidents of the United States, Mexico and Canada have signed the USMCA, which now awaits its ratification in all three countries. While ratification in Mexico and Canada is expected to meet little resistance, House Democrats in the US have indicated concerns. Nevertheless, President Trump meanwhile has announced his intention to quickly withdraw from NAFTA. More details
// See also our infographic and our memorandum produced in cooperation with Floyd Zadkovich LLP on the USMCA.
A contractual penalty in a post contractual non-solicitation of employees clause works primarily as a deterrent and not as a compensation. Thus, if two former employees together poach employees from their former employer, the contractual penalty can be claimed in full from both former employees by the former employer. The Supreme Court ruling can be found here (in German).
“Identifying Secrets” in 2013, iSentium, an AI company, and the financial/media company Bloomberg entered into a contract for the incorporation of iSentium’s social-media sentiment analysis tool into Bloomberg Terminal, a system for processing real-time market data for financial services. In 2016, the parties cancelled the contract. In 2017, iSentium sued Bloomberg over the purported misappropriation of trade secrets, claiming that Bloomberg began to develop its own sentiment-analysis technology, inter alia based on trade secrets related to iSentium’s “methodologies for processing social media content and transforming its analysis into real-time graphs that are easily comprehended by an end-user”. Bloomberg argued that iSentium had not adequately identified the trade secrets in dispute. However, the US Judge denied Bloomberg’s motion to dismiss the claim (having also dismissed iSentiums other claims for patent infringement etc.). The Judge concluded that the allegations describing iSentium’s purported trade secrets are broad but sufficient to give Bloomberg notice of the claim asserted against it. More details.
the German Supreme Court has clarified the impact of the CJEU’s judgment in Achmea on the validity of dispute resolution clauses in intra-EU BITs. In its decision of 31 October 2018, the German Supreme Court has decided that the arbitration clause in article 8 of the Netherlands - Slovakia BIT is null. The reasoning of the Supreme Court, in essence, is that because article 8 of the BIT is incompatible with various articles of the TFEU (as held by the CJEU), the provision is null. The TFEU as the later treaty to enter into force between the Netherlands and Slovakia takes precedence and incompatible provisions of the BIT automatically cease to apply. Click here for the judgment.
Austrian Anti Wage and Social Dumping Act // The ECJ ruled earlier this week that surety payments under the Austrian Anti Wage and Social Dumping Act, which are imposed on Austrian recipients of services for potential fines against their contractor from another EU Member State, do not comply with European Union law. The judgment (in English) can be found here.
A shareholder of a limited liability company requested to be awarded damages because the defendant had allegedly injured the company and thereby had also devalued the plaintiff’s shares. The Supreme Court held that such a devaluation of shares merely reflects the damage suffered by the company. Thus, only the company as the directly injured party may claim damages but not the indirectly injured shareholder. Insofar as the plaintiff had alleged that the shares were his property and that for this reason an absolutely protected right of his had been harmed, the Supreme Court held that the plaintiff had ignored the strict separation between a limited liability company and its shareholders as stipulated under Austrian law and thereby also between the company’s assets and his private shareholder assets. With its decision, the Supreme Court confirmed a basic principle of Austrian law pursuant to which only the directly but not the indirectly injured party may be awarded damages. For the original decision of the Supreme Court (in German) see here.
Storage of applicants’ personal data under the GDPR // In one of the very first decisions under the regime of the GDPR, the Austrian data protection authority ruled that personal data, deriving from an application process, can be stored legally for up to seven months to defend against discrimination claims brought by the applicant. The decision of the Austrian data protection authority can be found here (in German).
The German Supreme Court has taken its long-awaited decision in Achmea v. Slovakia deciding on the validity of the arbitration clause contained in the Dutch-Slovakian Bilateral Investment Treaty, though it has not yet published the decision. According to reliable reports, the Supreme Court has held that the award rendered in the investment dispute between Achmea and Slovakia must be set aside due to its incompatibility with European law. Click here for the report.