litigation

Disputes involving demand guarantees

Demand guarantees are among the most popular methods of securing international commercial transactions. They may be used to secure both the payment of fees and satisfactory performance of particular works. The popularity of these guarantees (sometimes also referred to as payment guarantees) can be attributed to the fact that they are issued by trustworthy and globally recognisable financial institutions (usually banks and insurance companies), and their operation is governed by universal rules well-understood in the business community. Guarantees are also independent of the underlying relationship between the parties, and the payment conditions are based on objective criteria, eliminating the potential for unexpected interpretations and actions by the parties. Given these factors, it is understandable that disputes regarding payment guarantees can usually be avoided. However, when they do occur, they usually involve substantial sums, with the potential to affect the financial liquidity of the companies involved.

Indemnity – when is it due and in what amount?

Disputes concerning indemnity arise under an agency agreement. This payment does not become due automatically, as there are certain requirements. This payment is due on the basis of equity and is intended to give an agent a share in the profits they help to generate.

Is an unexamined complaint an approved complaint?

The Act on Consideration of Complaints by Financial Market Entities and on the Financial Ombudsman provides that a complaint not resolved within the stated period “is regarded as” resolved in accordance with the customer’s request. In a surprising resolution, the Supreme Court recently ruled that this does not mean that a delay in consideration of a complaint mandates that it is resolved in the customer’s favour, but such a delay merely increases the burden faced by the entity during litigation. If, of course, the matter ever reaches the courts. Was this what the legislature intended?

Major changes to rules on statutory time limits on claims

On 9 July an amendment to the Civil Code will come into force concerning the statute of limitations. The general time limit after which claims will expire will be reduced to 6 years, while in most cases expiry will take effect from the last day of the calendar year. The rules applicable to expiry of claims of businesses against consumers will also change significantly.

Can withdrawals be made from a bank account seized as security?

In disputes under civil law, a party which raises claims can seek injunctive relief from a court prior to commencement of or during proceedings. Injunctive relief is granted for the duration of the proceedings, which means until a final and binding judgment is issued in the case, and can take various forms (for example seizure of receivables on a bank account). If a court grants injunctive relief, then even if the lawsuit is dismissed after several years of proceedings and the injunctive relief ceases to exist, the business might already have gone bankrupt. A motion for permission from the court for specific withdrawals from a seized account could be an important legal remedy for a business whose bank account has been seized.

Private enforcement under the GDPR

While the new data protection regulation provides for severe administrative penalties for failure to comply, it is well known that whether a penalty is effective is determined not by its severity but by its inevitability. Even though the personal data protection authority has been given broad powers, it does not have adequate means of exercising them. A solution could be a private enforcement mechanism within the regulation, whereby any person whose data has been breached can independently seek a judicial remedy.