Droit international général

In lieu of its originally scheduled programme, the Hague Academy of International Law recently announced its first online programme, the invitation to which reads as follows:

The Hague Academy of International Law is pleased to announce the launch of its very first online programme: an entirely online session of its Centre for Studies and Research. This session will take place between September 1st, 2020, and June 1st, 2021, on the theme of Epidemics and International Law.  The working language will be English.

The Directors of Research, Professor Shinya Murase (Sophia University, Tokyo) & Ms. Suzanne Zhou (McCabe Centre for Law and Cancer, Melbourne) invite applications from researchers including students in the final phase of their doctoral studies, holders of advanced degrees in law, political science, or other related disciplines, early-stage professors and legal practitioners.

Selected participants will each write an article on a sub-topic related to the overall theme of Epidemics and International Law. The research work will start in September 2020 and, following a very strict planning, the articles should be finalized in April/May 2021. Interested applicants must therefore be available to conduct their research and write their contribution in the coming months. The best articles will be included in a book to be published in August 2021 approximately.

Applications can be sent in between July 1st and September 1st, 2020. As the Academy expects to receive a large number of applications, the application deadline might already close on August 1st, 2020. Interested candidates are therefore encouraged to apply as soon as possible using the appropriate online form.

For more information on this programme, please consult the poster, as well as the web pages related to the Centre for Study and Research – Online.

German version here.  English version here.

This post introduces my case note titled ‘A Dangerous Chimera: Anti-Suit Injunctions Based on a “Right to be Sued” at the Place of Domicile under the Brussels Ia Regulation?’ which appeared in the July 2020 issue of the Law Quarterly Review at page 379. An open access version of the case note is available here.

In Gray v Hurley [2019] EWCA Civ 2222, the Court of Appeal (Patten LJ, Hickinbottom LJ and Peter Jackson LJ), handed down the judgment on the claimant’s appeal in Gray v Hurley [2019] EWHC 1972 (QB). The appellant appealed against the refusal of an anti-suit injunction.

The appellant (Ms Gray) and respondent (Mr Hurley) had been in a relationship. They acquired property in various jurisdictions using the appellant’s money, but held it in either the respondent’s name or in corporate names. The relationship ended and a dispute commenced over ownership of some of the assets and properties. The appellant was domiciled in England; the respondent lived in New Zealand after the relationship ended and was no longer domiciled in England. He initiated proceedings there for a division of the property acquired by the couple during the relationship. The appellant issued proceedings in England seeking a declaration that she was entitled absolutely to the assets. She also applied for an anti-suit injunction to restrain the defendant from continuing with proceedings in the courts of New Zealand. Lavender J held that England was the appropriate forum for the trial of the appellant’s claims but that the respondent’s New Zealand claim could not be determined in England. He rejected her argument that Article 4(1) of the Brussels Ia Regulation obliged him to grant an anti-suit injunction to prevent the respondent from litigating against her in a non-EU state.

The appellant argued that Samengo-Turner v J&H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723, [2007] 2 All E.R. (Comm) 813 and Petter v EMC Europe Ltd [2015] EWCA Civ 828, [2015] C.P. Rep. 47 were binding authority that Article 4(1) provided her with a right not to be sued outside England, where she was domiciled, obliging the court to give effect to that right by granting an anti-suit injunction.

The Court of Appeal considered that the issue was not acte claire and sent a preliminary reference to the CJEU (pursuant to Article 267 TFEU) asking whether Article 4(1) of the Brussels Ia Regulation provided someone domiciled in England with a right not to be sued outside England so as to oblige the courts to give effect to that right by granting an anti-suit injunction.

The case note examines the Court of Appeal’s decision in Gray v Hurley [2019] EWCA Civ 2222. It offers a pervasive critique of the argument that the general rule of jurisdiction under the Brussels Ia Regulation gives rise to a substantive right to be sued only in England and that this right is capable of enforcement by an anti-suit injunction. It is argued that the previous decisions of the Court of Appeal in Samengo-Turner v J&H Marsh & McLennan (Services) Ltd [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828 were themselves wrongly decided. In light of this, it will be even more difficult to justify the broader application of a similar result in the present case.

Indeed, the law would take a wrong turn if the present case is allowed to build on the aberrational foundations of the developing law on anti-suit injunctions based on rights derived from the Brussels Ia Regulation. Essentially, a chimerical remedy based on a fictitious right would not only infringe comity but would also deny the respondent access to justice in the only available forum. The note also anticipates the CJEU’s potential findings in this case.

An open access version of the case note is available here.

On 7 July 2020, the Members of the Committee on Legal Affairs will vote on the provisional agreement resulting from the interinstitutional negotiations on representative actions for the protection of the collective interests of consumers. The text is available here.

Here are some points of interest (and a few on-the-spot comments).

1. The resulting document will be a directive not intended to replace the enforcement mechanisms contained in previous legal acts listed in Annex I, among which the GDPR.

2. The Directive will cover both domestic and crossborder infringements, in particular when consumers affected by an infringement live in one or several Member States other than the Member State where the infringing trader is established.

3. As announced in the Commission’s proposal (referred to here), the Directive should not affect the application of nor establish rules on private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law (NoA: how long have academics and the CJEU, AGs included, been warning about the PIL rules being utterly inadequate for collective redress? Apparently not enough).

4. Qualified entities should be allowed to bring representatives actions in the Member State where they have been designated as well as in another Member State.

5. When a qualified entity brings a representative action in another Member State than the one of its designation, that action should be considered a cross-border action.

6. When a qualified entity brings a representative action in the Member State where it is designated, the action is considered a domestic representative action even if that action is brought against a trader domiciled in another Member State or even if consumers from several Member States are represented within that action. (NoA: if I am understanding this correctly, the action against a trader domiciled in another Member State is domestic for the purposes of the Directive, although from a PIL perspective it is definitely not domestic).

7. Principle of origin: for the purpose of cross-border representative actions, qualified entities should comply with the same criteria across the Union. It should be for the designating Member State to ensure that the qualified entity designated for the purpose of cross-border representative actions fulfils the criteria, to assess whether it continues to comply with them and, if necessary, to revoke the designation of the qualified entity.

8. Legal standing: Member States should ensure that cross-border representative actions can be brought in their courts (or administrative authorities) by qualified entities designated for the purpose of such representative actions in another Member State.

9. Qualified entities from different Member States should be able to join forces within a single representative action in front of a single forum, subject to relevant rules on competent jurisdiction (NoA: usually who the claimant is has no impact on jurisdiction, so the caveat has to refer to something different. In any event, is this a lost opportunity to reflect on extended rules for related claims?).

10. The mutual recognition of the legal standing of qualified entities designated for the purpose of cross-border representative actions should be ensured

11. When bringing a representative action, the qualified entity should provide sufficient information on the consumers concerned by the action to the court or the administrative authority. The information should allow the court (or the administrative authority) to establish its jurisdiction and the applicable law.

12. Cooperation and exchange of information between qualified entities from different Member States have proven to be useful in addressing in particular cross-border infringements (NoA: has it?). There is a need for continuing and expanding the capacity-building and cooperation measures to a larger number of qualified entities across the Union in order to increase the us representative actions with cross-border implications.

13. The Commission should draw up a report, accompanied if appropriate by a relevant proposal, assessing whether cross-border representative actions could be best addressed at Union level by establishing an European Ombudsman for collective redress (NoA: not sure what his/her role would be).

In [2020] EWHC 1626 (TCC) Engie Fabricom, O’Farrell J essentially had to hold whether the primary activity at an energy from waste plant is power generation or waste treatment. The classification of waste to energy – W2E as either waste recovery (see Waste Framework Directive Recovery Annex, R1 ‘used principally as a fuel or other means to generate energy’) or waste disposal is a classic in EU waste law, with specific implications for shipments permits. It also of course has an impact on a Member State’s waste targets and renewable energy targets. Aside from the Waste Framework Directive, the Industrial Emissions Directive 2010/75 is also involved – although oddly no CJEU authority is mentioned in the judgment.

In the case at issue an interesting extra element is that the plant at issue received funding via the European Regional Development Fund ERDF (at 145) however ERDF funding was for the generation of electricity from the biodegradable part of waste based on advanced fluidised bed gasification technology, which at the time of the application was expected to be 84.65% of the fuel. However, subsequently the plant changed to use refuse derived fuel or RDF without any waste wood which reduced the biodegradable percentage of the waste to 50%.

At 149 Justice O’Farrell concludes that the primary activity at the Energy Works Hull facility is power generation, for the reasons listed there. Of particular relevance is her comment that ‘the plant was not developed or intended to be operated in furtherance of any particular waste or energy policy, although it was consistent with both policy initiatives.’

There is an interesting expert evidence issue to the case, as Gordon Exall discusses here. I am suspecting one or two of the issues involved could be chewed over upon appeal, with reference to CJEU case-law.

Geert.

Handbook of EU Waste law, OUP, second ed, 2015.

Refuse-derived fuel – RDF.
Whether the primary activity at an energy from waste plant is power generation or waste treatment.
Held: in casu: power generation.
Considers ia EU waste framework Directive and ERDF funding.
Impacts ia VAT and adjudication process. https://t.co/2FskpGblDj

— Geert Van Calster (@GAVClaw) June 25, 2020

Peer Zumbansen edited The Many Lives of Transnational Law – Critical Engagements with Jessup’s Bold Proposal, published by Cambridge University Press.

The blurb reads:

In 1956, ICJ judge Philip Jessup highlighted the gaps between private and public international law and the need to adapt the law to border-crossing problems. Today, sixty years later, we still ask what role transnational law can play in a deeply divided, post-colonial world, where multinationals hold more power and more assets than many nation states. In searching for suitable answers to pressing legal problems such as climate change law, security, poverty and inequality, questions of representation, enforcement, accountability and legitimacy become newly entangled. As public and private, domestic and international actors compete for regulatory authority, spaces for political legitimacy have become fragmented and the state’s exclusivist claim to be law’s harbinger and place of origin under attack. Against this background, transnational law emerges as a conceptual framework and method laboratory for a critical reflection on the forms, fora and processes of law making and law contestation today.

The individual contributions are authored by Stephen Minas, Christopher A. Whytock, Thomas Schultz, Niccolò Ridi, Karsten Nowrot, Gregory Shaffer, Carlos Coye, Francis Snyder, Zhouke Hu, Lili Ni, Florian Grisel, Bryan Horrigan, Shahla Ali, Paul Schiff Berman, Antoine Duval, Ivana Isailovic, A. Claire Cutler, Jothie Rajah, Natasha Affolder, Larry Catá Backer, Prabhakar Singh, Ralf Michaels and Vik Kanwar.

The book’s table of contents can be found here. For further information see here.

A new book (in Spanish) on surrogacy in private international law and comparative law, edited by the indefatigable Mercedes Albornoz, and freely available online.

The European Parliament (JURI Committee) has released a draft opinion with recommendations to the Commission on the Establishment of an EU Mechanism on Democracy, the Rule of Law and Fundamental Rights (PE652.513v01-00). You can read it here

AG Bobek delivered today his opinion in case C‑826/18 (LB, Stichting Varkens in Nood, Stichting Dierenrecht, Stichting Leefbaar Buitengebied v College van burgemeester en wethouders van de gemeente Echt-Susteren, joined parties: Sebava BV), which is about the Aarhus Convention and access to justice:

“(1) Article 6 of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, signed in Aarhus on 25 June 1998 […], Article 6 of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment […] and Article 24 of Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated pollution prevention and control) confer full participation rights only to ‘the public concerned’ within the meaning of those instruments, but not to ‘the public’ at large.

(2) Neither Article 9(2) of the Aarhus Convention, nor Article 11 of Directive 2011/92, nor Article 25 of Directive 2010/75, nor Article 47 of the Charter of Fundamental Rights of the European Union, are opposed to the exclusion of ‘the public’ who do not fall within ‘the public concerned’ within the meaning of those instruments, from access to court.

(3) Article 9(2) of the Aarhus Convention, Article 11 of Directive 2011/92 and Article 25 of Directive 2010/75 preclude a condition in national law which makes the right of access to justice for ‘the public concerned’ within the meaning of those instruments dependent on prior participation in the procedures subject to Article 6 of the Aarhus Convention, Article 6 of Directive 2011/92, and Article 24 of Directive 2010/75”

Source: here

The Graduate Programm “Dynamic Integration” at the Faculty of Law of Humboldt-University Berlin offers a PhD fellowship in private (international) law. The fellowship is (generously) funded by the German Research Foundation (Deutsche Forschungsgemeinschaft). In addition, Humboldt-University offers an outstanding research environment.

For more information see here.

Ilaria Viarengo and Pietro Franzina have edited The EU Regulations on the Property Regimes of International Couples – A Commentary, published by Edward Elgar in its Elgar Commentaries in Private International Law series.

The publisher’s abstract reads as follows.

This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.

The authors of the commentary are Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.

More information available here.

Thank you Maxime Barba for flagging the judgment in the Paris Court of Appeal Sodmilab et al. (Text of the judgment in Maxime’s post). The case concerns the ending of a commercial relationship. Part of the contract may be qualified as agency with lex causae determined under the 1978 Hague Convention. On this issue, the Court of Appeal confirmed French law as lex causae.

Things get messy however with the determination of that part of the contract that qualifies as distribution (a mess echoing DES v Clarins), and on the application of Rome II.

The Court of Appeal first (at 59) discusses the qualification of A442-6 of the French Code du commerce, on unfair trading practices (abrupt ending of a commercial relationship), dismissing it as lois de police /overriding mandatory law under Article 9 Rome I. As I noted in my review of DES v Clarins, this is a topsy turvy application of Rome I. The qualification as lois de police is up to the Member States, within the confines of the definition in Rome I. The Court of Appeal holds that A442-6 only serves private interests, not the general economic interest, and therefore must not qualify under Rome I. Hitherto much of the French case-law and scholarship had argued that in protecting the stability of private interests, the Act ultimately serves the public interest.

Next (as noted: this should have come first), the Court reviews the application of A4f Rome I, the fall-back position for distribution contracts – which would have led to Algerian law as lex causae. It is unclear (62 ff) whether the Court reaches its conclusion as French law instead either as a confirmation of circumstantial (the court referring to invoicing currency etc.) but clear choice of law under Article 3, or the escape clause under Article 4(3), for that Article is mentioned, too.

Rome I’s structure is quite clear. Why it is not properly followed here is odd. That includes the oddity of discussing French law under Article 9 if the court had already confirmed French law as lex causae under A3 or 4.

Finally, corners are cut on Rome II, too. Re the abrupt ending of the relationship (at 66ff). French law again emerges victorious even if the general lex locus damni rule leads to Algerian law. The court does not quite clearly hold that on the basis of Article 4(3)’s escape clause, or circumstantial choice of law per A14. The court refers to ‘its findings above’ on contractual choice of law, however how such fuzzy implicit choice under Rome I is forceful enough to extend to choice of law under Rome II must not be posited without further consideration. Particularly seeing as Article 6 Rome II excludes choice of law for acts of unfair trading.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9; Chapter 3, Heading 3.2.8, Heading 3.2.8.3; Chapter 4).

The Presidency of the Council of the European Union and the European Parliament reached on 30 June 2020 a provisional agreement on the modernisation of Regulation 1206/2001 on the taking of evidence abroad, and Regulation 1393/2007 on the service of judicial and extra-judicial documents (see here and here for contributions appeared on this blog regarding the reform).

The provisional agreement now needs to be submitted for endorsement by Member States’ representatives.

The purpose of the amendments under discussion is, generally, to improve the efficiency and speed of cross-border judicial proceedings by taking advantage of digitalisation and the use of modern technology, and by these means advance access to justice and fair trial for the parties.

Changes include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between Member States. The new regulations will also task the Commission with the creation, maintenance and future development of a reference software which Member States can choose to apply as their back end system, instead of a nationally-developed IT system.

As to the service of documents, the envisaged new rules provide that documents can be served electronically and directly on an addressee with a known address in another Member State, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The new rules also aim to promote the use of videoconferencing or other distance communication technology in the taking of evidence.

Anyone planning a conflict of laws course in the next term might well consider the succinct Council of Europe report on the application of islamic law in the context of the European Convention on Human Rights – particularly the case-law of the Court. It discusses ia kafala, recognition of marriage, minimum age to marry, and the attitude towards Shari’a as a legal and political system.

Needless to say, ordre public features, as does the foundation of conflict of laws: respect for each others’ cultures.

Geert.

On the last day of the Croatian Presidency of the Council of the EU, an important deal was concluded: “the Council Presidency and the European Parliament today reached a provisional agreement on two amended regulations, one on the taking of evidence and a second on the service of documents”.

Key points: “Changes in both regulations include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states. The draft regulations also task the Commission with the creation, maintenance and future development of a reference software which member states can choose to apply as their back end system, instead of a nationally-developed IT system.

Regarding the service of documents, under the draft new rules documents can be served electronically and directly on an addressee with a known address in another member state, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The draft new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert present in another member state”.

Next step: “The provisional agreement now needs to be submitted for endorsement by EU member states’ ambassadors”

Source: here

See also, from the European Parliament, here

Before the judicial holiday, several decisions will be delivered regarding EU instruments on private international law.

The decision of the 1st Chamber (Bonichot, Safjan, Bay Larsen, Toader, Jääskinen) in C-343/19, Verein für Konsumenteninformation, regarding Article 7.2 of the Brussels I bis Regulation, is due on 9 July 2020. M. Safjan is the reporting judge; AG Campos’s Opinion was published on 4 April.

One week later the 1st Chamber will read the judgments in C-73/19, Movic e.a., C-80/19, E.E., and C-249/19, JE. C. Toader acts as reporting judge in C-73/19, on the meaning of “civil and commercial matters” in the Brussels I bis Regulation; see here AG Szpunar’s Opinion, of 23 April 2020. Judge Toader is the reporting judge as well in C-80/19, which addresses several aspects of the Succession Regulation; the Opinion by AG Campos, of 26 March 2020, has not yet been fully translated into English (here the French version; the original is in Spanish). C-249/19 benefited from AG Tanchev’s Opinion, also of 26 March 2020; the Court was asked to rule on the Rome III Regulation on the law applicable to divorce. R. Silva de Lapuerta is the reporting judge.

The same day, the judgment in C-253/19 (9th Chamber: Rodin, Jürimäe, Piçarra, with Jürimäe as reporting judge) will be delivered, addressing the COMI under the new Insolvency Regulation. AG Szpunar’s Opinion was published on 30 April 2020.

The Court’s activity resumes on 1 September 2020. Next date for a PIL judgment is September 3 (C-186/19, Supreme Site Services e.a.; see the Opinion by AG Oe here).

In 2017 drivers working under contract for Uber in Ontario launched a class action.  They alleged that under Ontario law they were employees entitled to various benefits Uber was not providing.  In response, Uber sought to stay the proceedings on the basis of an arbitration clause in the standard-form contract with each driver.  Under its terms a driver is required to resolve any dispute with Uber through mediation and arbitration in the Netherlands.  The mediation and arbitration process requires up-front administrative and filing fees of US$14,500.  In response, the drivers argued that the arbitration clause was unenforceable.

The Supreme Court of Canada has held in Uber Technologies Inc. v. Heller, 2020 SCC 16 that the arbitration clause is unenforceable, paving the way for the class action to proceed in Ontario.  A majority of seven judges held the clause was unconscionable.  One judge held that unconscionability was not the proper framework for analysis but that the clause was contrary to public policy.  One judge, in dissent, upheld the clause.

A threshold dispute was whether the motion to stay the proceedings was under the Arbitration Act, 1991, S.O. 1991, c. 17 or the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5.  Eight judges held that as the dispute was fundamentally about labour and employment, the ICAA did not apply and the AA was the relevant statute (see paras. 18-28, 104).  While s. 7(1) of the AA directs the court to stay proceedings in the face of an agreement to arbitration, s. 7(2) is an exception that applies, inter alia, if the arbitration agreement is “invalid”.  That was accordingly the framework for the analysis.  In dissent Justice Cote held that the ICAA was the applicable statute as the relationship was international and commercial in nature (paras. 210-18).

The majority (a decision written by Abella and Rowe JJ) offered two reasons for not leaving the issue of the validity of the clause to the arbitrator.  First, although the issue involved a mixed question of law and fact, the question could be resolved by the court on only a “superficial review” of the record (para. 37).  Second, the court was required to consider “whether there is a real prospect, in the circumstances, that the arbitrator may never decide the merits of the jurisdictional challenge” (para. 45).  If so, the court is to decide the issue.  This is rooted in concerns about access to justice (para. 38).  In the majority’s view, the high fees required to commence the arbitration are a “brick wall” on any pathway to resolution of the drivers’ claims.

The majority then engaged in a detailed discussion of the doctrine of unconscionability.  It requires both “an inequality of bargaining power and a resulting improvident bargain” (para. 65).  On the former, the majority noted the standard form, take-it-or-leave-it nature of the contract and the “significant gulf in sophistication” between the parties (para. 93).  On the latter, the majority stressed the high up-front costs and apparent necessity to travel to the Netherlands to raise any dispute (para. 94).  In its view, “No reasonable person who had understood and appreciated the implications of the arbitration clause would have agreed to it” (para. 95).  As a result, the clause is unconscionable and thus invalid.

Justice Brown instead relied on the public policy of favouring access to justice and precluding an ouster of the jurisdiction of the court.  An arbitration clause that has the practical effect of precluding arbitration cannot be accepted (para. 119).  Contractual stipulations that prohibit the resolution of disputes according to law, whether by express prohibition or simply by effect, are unenforceable as a matter of public policy (para. 121).

Justice Brown also set out at length his concerns about the majority’s reliance on unconscionability: “the doctrine of unconscionability is ill-suited here.  Further, their approach is likely to introduce added uncertainty in the enforcement of contracts, where predictability is paramount” (para. 147).  Indeed, he criticized the majority for significantly lowering the hurdle for unconscionability, suggesting that every standard-form contract would, on the majority’s view, meet the first element of an inequality of bargaining power and therefore open up an inquiry into the sufficiency of the bargain (paras. 162-63).  Justice Brown concluded that “my colleagues’ approach drastically expands the scope of unconscionability, provides very little guidance for the doctrine’s application, and does all of this in the context of an appeal whose just disposition requires no such change” (para. 174).

In dissent, Justice Cote was critical of the other judges’ willingness, in the circumstances, to resolve the issue rather than refer it to the arbitrator for decision: “In my view, my colleagues’ efforts to avoid the operation of the rule of systematic referral to arbitration reflects the same historical hostility to arbitration which the legislature and this Court have sought to dispel. The simple fact is that the parties in this case have agreed to settle any disputes through arbitration; this Court should not hesitate to give effect to that arrangement. The ease with which my colleagues dispense with the Arbitration Clause on the basis of the thinnest of factual records causes me to fear that the doctrines of unconscionability and public policy are being converted into a form of ad hoc judicial moralism or “palm tree justice” that will sow uncertainty and invite endless litigation over the enforceability of arbitration agreements” (para. 237).  Justice Cote also shared many of Justice Brown’s concerns about the majority’s use of unconscionability: “I am concerned that their threshold for a finding of inequality of bargaining power has been set so low as to be practically meaningless in the case of standard form contracts” (para. 257).

The decision is lengthy and several additional issues are canvassed, especially in the reasons of Justice Cote and Justice Brown.  The ultimate result, with the drivers not being bound by the arbitration clause, is not that surprising.  Perhaps the most significant questions moving forward will be the effect these reasons have on the doctrine of unconscionability more generally.

Iacyr de Aguilar Vieira and Gustavo Cerqueira have edited a volume on the CISG in the Americas (La Convention de Vienne en Amerique).

From the foreword of the book:

On the occasion of the Vienna Convention on Contracts for the International Sale of Goods’ 40th anniversary, its success can be evidenced by its influence in America. In fact, 19 out of the 93 member-States are found in this vast continent.

To celebrate its 40th anniversary, the Latin American section of the Société de législation comparée sought to present the Convention’s current state of application in different American countries, as well as to measure its influence on domestic sales laws.

As court decisions and scholarly writing multiply with the ratification of the Convention by American States, this presentation seeks to offer a better understanding of how the Convention is being applied and, through that, support the efforts for its uniform application. A comparative approach concludes the book. This initiative seeks not only to oppose the attempts that can be found in domestic cases to interpreting the Convention differently, but also, and on a more positive note, to promote the Convention as a model for the regulation of sales in America and Europe.

Concerning the more specifics private international law issues, the numerous analyses related to the applicability of the Convention and to the subsidiary application of national law offer very interesting insights into the conflict of laws systems of Contracting States in this part of the world. On this point, the contributions of G. Argerich (Argentina), F. Pignatta (Brazil), D. Rojas Tamoyo (Colombia), M. Paris Cruz (Costa Rica), R. A. Williams Cruz (Honduras), E. Hernández-Bretón and C. Madrid Martinez (Venezuela) will be particularly instructive.

Thus, this book is the perfect occasion to compare the Vienna Convention’s implementation in American States and to benefit from the view of American scholars on this universal instrument for the uniformization of sales of goods.

It is meant both for scholars and lawyers in the field of international commerce.

The table of contents can be downloaded here. More details are available here.

Save the date

The conference Frontiers in Civil Justice will take place at Erasmus University Rotterdam on 16 and 17 November 2020. The conference will address four key issues in civil justice, which require a deeper and renewed reflection in light of their contribution of facilitating access to justice. These are the shaping of the interaction between formal and informal justice, the digitalization of consumer dispute resolution (ODR), the collectivizing and monetizing of civil litigation and efforts of bringing justice closer to citizens. The conference will bring together academics, policymakers, practitioners and representatives of civil society to critically reflect on the opportunities and possible drawbacks ensuing from these paramount developments.

The outline of the conference, including confirmed keynote speakers, is avaible here. Further details will be made available soon.

Call for papers

For the last part of the conference we welcome abstracts on the topic ‘Innovations in Civil Justice – Bringing Justice Closer to Citizens’. Please send your abstract of max. 500 words before 31 July. Further details can be found here.

This conference is organised by Erasmus School of Law in the context of the ERC-Consolidator Research Project ‘Building EU Civil Justice: Challenges of Procedural Innovations – Bridging Access to Justice’. More information at: www.euciviljustice.eu.

The Court of Justice delivered yesterday its judgment in case C‑380/19 (Bundesverband der Verbraucherzentralen und Verbraucherverbände — Verbraucherzentrale Bundesverband eV v Deutsche Apotheker- und Ärztebank eG), which is about Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on consumer alternative dispute resolution:

“Article 13(1) and (2) of Directive 2013/11 […] are to be interpreted as meaning that a trader who provides in an accessible manner on his website the general terms and conditions of sales or service contracts, but concludes no contracts with consumers via that website, must provide in his general terms and conditions information about the ADR entity or ADR entities by which that trader is covered, when that trader commits to or is obliged to use that entity or those entities to resolve disputes with consumers. It is not sufficient in that respect that the trader either provides that information in other documents accessible on his website, or under other tabs thereof, or provides that information to the consumer in a separate document from the general terms and conditions, upon conclusion of the contract subject to those general terms and conditions”.

Source: here