Effective choice of court clauses (also known as jurisdiction clauses) are central to finance agreements. Reliable, certain process to enforce contractual obligations is essential for cross-border trade and finance transactions. Parties want to be sure that any disputes will be heard not just according to their chosen law but in their chosen forum, and that any judgment obtained can be easily and reliably enforced, including abroad if needed.
As of January 2024, France, Germany and Poland have officially withdrawn from the Energy Charter Treaty (ECT). Their decision to withdraw from the treaty follows a recent European Commission proposal for a mass exodus from the ECT by EU member states, which effectively will limit protections granted by the treaty previously enjoyed by direct investors and asset managers with portfolio companies in the energy sector.
Across the globe, an increasing number of international regulators have opened inquiries or adopted new rules and regulations to address competition law concerns about digital platforms and digital markets. Whilst the spotlight is likely to initially fall on the conduct and business practices of large online platforms – the so-called gatekeepers – we expect international regulators to cast their net more broadly. Businesses looking to expand to new jurisdictions need to navigate these regulations and assess the risk of enforcement actions. Whether the expansion comes through acquisitions or otherwise, regulators are increasingly looking at multinational businesses and platforms. Below is an overview of key international developments.
On March 23, 2020, the European Commission announced that all competition authorities in the European Competition Network (ECN) (the Commission, the European Surveillance Authority, and the national competition authorities of each EU/EEA Member State) issued a joint statement on how to apply the European competition rules during the COVID-19 crisis.
As explained in Part I and Part II of this series, U.S.-based commercial litigators should be aware that other countries’ privacy laws may affect their cases in unexpected ways. Perhaps the most likely stage for these issues to surface is during discovery, where materials of interest are located in another country, and that country’s privacy laws effectively prohibit counsel from removing those materials from the jurisdiction. This post provides an overview of some of the issues at the intersection of U.S. discovery practice and international privacy law.
Although the volume of data that flows between the EU and the U.S. ensures that EU privacy law occupies most of the spotlight on the world stage, other countries have their own privacy laws worth noting as well.
Different Types of Privacy Regimes
As a preliminary matter, it is important to keep in mind that most countries’ privacy regimes can be grouped into two categories: sectoral and comprehensive. As mentioned in the previous post, privacy law in the U.S. is sectoral, meaning that different laws and regulations govern data from one industry to the next. For example, the Health Insurance Portability and Accountability Act (HIPAA) includes a Privacy Rule and a Security Rule meant to protect people’s medical records; the Family Educational Rights and Privacy Act (FERPA) regulates the release of students’ educational records; and the Privacy of Consumer Financial Information Rule of the Gramm-Leach-Bliley Act applies to the financial industry. Further complicating matters is the fact that both the state and the federal governments may enact privacy laws, which has led to varying privacy-related requirements across the country.
Let’s say an American commercial litigator is working to defend a multinational client that has been sued in the U.S. The litigator may realize that he or she needs to collect emails or other documents from the client’s office in Germany, perhaps for discovery or investigation. However, the export of the data contained in those documents from Germany may, in certain circumstances, be illegal under German or EU privacy laws, and a lawyer unaware of the nature of these laws may find him- or herself in hot water.
Commercial litigators based in the U.S. often are surprised to learn that other countries’ privacy laws can present hurdles in their own domestic cases. However, the mere awareness that different jurisdictions take different approaches to can go a long way toward easing the headaches inflicted by these varying (and often confusing) legal regimes. This post covers the basics of privacy law in the EU, and future posts in this series will delve further into the complexities of international privacy law and how it affects U.S.-based litigators.