Company Law

In two judgments delivered following four hearings in the Supreme Court of Bermuda spanning February to May 2016, Trott & Duncan successfully argued that the Court should make important pronouncements on Sections 72, 76 and 79 of The Companies Act 1981 (“the Act”). In the first ruling the Court exercised its powers under the Act to force the Company to convene an AGM upon the requisition of a shareholder lacking standing as a member. The Court exercised its inherent jurisdiction to grant relief to a beneficial owner of shares. In the second ruling, the Court declared the invalidity of the AGM the Company scheduled to take place in Shanghi at the same time as the Court ordered the AGM in Hong Kong. Importantly, the Court authorized the beneficial shareholder to provide instructions on the conduct of the AGM to the Hong Kong Stock Exchange. (Uprise Corporation Limited v. Mingyuan Medicare Development Company Limited. Supreme Court Jurisdiction 2015: No. 411).

Constitutional Law

In June of 2016, Trott & Duncan successfully argued that a decision by the Premier to hold a referendum on same sex marriage and civil unions under The Referendum Act 2016 was legal. The Court upheld the decision to hold a referendum despite the fact that it struck down the decision of the Parliamentary Registrar to designate churches involved in the referendum campaign as polling rooms. (Centre for Justice v. the Attorney General and Minister of Legal Affairs. Civil Jurisdiction 2016: No. 176).

Trade Union Law

In January and March of 2016 the Supreme Court of Bermuda made two important rulings. In the first ruling, Trott & Duncan successfully argued that the largest trade unions in Bermuda have a constitutional right to strike pursuant to Section 10 of The Bermuda Constitution Order 1968. The Court also ruled that the Government had no right to impose furlough days on Government workers and that forcing furlough days on Government workers amounted to a fundamental breach of contract. In the second ruling, the Court awarded the Trade Unions fifty percent (50%) of their legal costs as a result of the unlawful conduct of the Government. (The Minister of Home Affairs v. the Bermuda Industrial Union, the Bermuda Public Service Union, the Bermuda Union of Teachers, the Prison Officers Association and the Fire Officers Association. Bermuda Supreme Court Jurisdiction 2015: No. 120).

Education

In two judgments rendered by the Supreme Court of Bermuda in August 2015 and May 2016, Trott & Duncan successfully argued that teacher transfers within the Education System would not be stopped or reversed due to lack of consultation with a national representative parent body. In the first decision, the Court ruled that The Education Act had been amended at the time the application for an injunction was made, it would be wrong to grant an injunction to stop or reverse teacher transfers. In the second judgment, the Court ruled that the legitimate expectation parents held that they would be consulted on teacher transfers and the running of schools was now replaced by the 2015 amendment to The Education Act 1996. (Matthie v. Minister of Education and Commissioner of Education. Bermuda Supreme Court Jurisdiction 2015: No. 348).

Court of Appeal Case

In the March 2015 Court of Appeal session Trott and Duncan successfully overturned the decision of Hellman J winding up and putting into liquidation its client LAEP Investments Limited, the Brazilian owner of Italy’s milk processing giant Parmalat . The case concerned arguments advanced by LAEP Investments Limited seeking a stay of enforcement proceedings in Bermuda in respect of an arbitration award made in Brazil. The Court of Appeal decided that once a stay of enforcement of the arbitration award had been granted in Brazil, section 42 (2)(f) of the Bermuda International Conciliation and Arbitration Act 1993 imposed an obligation upon the Supreme Court of Bermuda to stay any further action against the company in Bermuda. The Court of Appeal rejected the argument advanced against LAEP Investments Limited that the correct test to apply was under section 42 (5) of the Bermuda International Conciliation and Arbitration Act 1993 which imposes a burden upon the company to establish why a stay should be granted.

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