Droit international général

The Permanent Bureau is seeking a qualified person to fill a full-time position (40 hours) as Administrative Assistant (legal). For more information, see here.

As indicated in the announcement, “the successful applicant will provide administrative support in English and French, including drafting, formatting, and reviewing legal and other documents as well as day-to-day correspondence, assisting with the co-ordination and advancement of various HCCH projects, updating the HCCH’s databases, answering the telephone and door, and providing general assistance during international meetings held by the HCCH,” among other things.

The Permanent Bureau offers a two-year contract with the possibility of renewal.  This is a local recruitment.

The deadline for applications is 19 August 2019.

While this is not strictly a legal job, it may be of interest to some of our readers.

 

In [2019] EWHC 1661 (Comm) ED&F Man Capital Markets v Come Harvest Holding et al claimant, MCM, entered into a Master Commodities Sale and Purchase Agreements with two Hong Kong companies, Come Harvest and Mega Wealth. The Master Agreements contained English exclusive jurisdiction agreements. Subsequent agreements were then entered into for the sale and purchase of nickel. The dispute between the parties turned on whether payments had been made by MCM to Come Harvest and Mega Wealth based on forged warehouse receipts. Those receipts had been issued by a warehouse operator, Access World, to the initial order, in most cases, of a Singaporean company, Straits.

In May 2017, MCM commenced pre-action disclosure proceedings in Singapore against Straits and in December 2017 it commenced English proceedings against Come Harvest and Mega Wealth. In September 2018 MCM sought to join Straits to the English proceedings and obtained an order granting permission to serve Straits out of the jurisdiction in Singapore. Straits challenged the jurisdiction of the English court.

There is sometimes an advantage to not immediately follow-up a Tweet with a blog post: the two preceding paras are the summary of the factual and procedural background by Herbert Smith.

Of particular note is the discussion at 43 ff on the impact of the UKSC’s Vedanta ruling: particularly, the ‘multiplicity’ issue which in my review of Vedanta, I discuss at 5. At 45:

Straits contended that MCM should not be able to rely as a “trump card” on the multiplicity point and the risk of irreconcilable judgments so as to create a single forum for all claims against all parties in England, in circumstances where that outcome was the result of choices which MCM had made along the way. Straits claims that MCM exercised a choice at the outset to commence the OS 533 action against Straits in Singapore and thereby intended that any substantive proceedings would be brought there too. Straits says that MCM should be held to this choice which it says exerted and continues to exert a “gravitational pull” towards Singapore. Straits also says that MCM could have attempted to engineer a single composite forum for all claims against all parties in Singapore by requesting that Come Harvest and Mega Wealth did not insist on their rights under the English court exclusive jurisdiction clauses in the Master Agreements or by commencing proceedings against those parties in Singapore in breach of the exclusive jurisdiction clauses and then contending that strong reasons existed as to why no anti-suit injunction should be imposed against the continuation of those proceedings.

At 46 Teledano DJ dismisses the suggestion.

In Vedanta, and leaving aside the substantial justice issue, the claimants had a straightforward choice between Zambia and England for all claims against all parties. The dispute was overwhelmingly Zambian in focus and nature. Yet the claimants chose to pursue their claims in England. In the present case, MCM has never had a straightforward choice of this kind that would have enabled it to sue all parties in Singapore (or some other jurisdiction apart from England). MCM has at all material times been bound by the exclusive jurisdiction clauses in the Master Agreements to sue Come Harvest and Mega Wealth in England. There is no evidence to suggest that, had either of these parties been approached, they would have been willing to give up their rights under those exclusive jurisdiction clauses. Nor do I accept that the concept of choice as referred to by the Supreme Court can be stretched so as to require a party to act in breach of contractual promises as to jurisdiction and then to fall on the mercy of the Court so as to avoid the grant of an anti-suit injunction. MCM is entitled to say that it had no choice but to sue Come Harvest and Mega Wealth in England. Having done so, there is real force in the submission made by MCM that England is the proper place for all claims against all parties because it is the only jurisdiction where a single composite forum can be achieved.

Turning then at 59 ff to applicable law, the issue is particularly how to define ‘direct damage’ (Article 4 Rome II) in the case of unlawful means conspiracy. Straits contends that the direct damage occurred where MCM was unable to obtain the metal it had purchased. That would be at the warehouses in Singapore, Malaysia and South Korea. By contrast, MCM contends that the direct damage occurred in England. This was the place from which MCM paid out funds to purchase the metal and it is also the place in which MCM received the Receipts that it alleges were forged. Teledano DJ at 62:

The key to ascertaining where the direct damage occurred in the present case is to keep in mind that, under the Master Agreements, MCM was only required to make payment upon receipt of the Receipts. MCM suffered direct damage when it made payment upon receipt of what are alleged to have been forged Receipts. Both the payment out, and the obtaining of the Receipts, occurred in England. If the Receipts were forged, the warehouse operators will not have been required to hand over metal from the warehouses upon presentation of the Receipts. However, it seems to me that this is a consequence of the damage that on MCM’s case it had already suffered rather than the direct damage itself.

English law, therefore, applies, as it does (at 70 ff) to the knowing receipt and equitable proprietary claims (see discussion re Article 4 cq 10 (unjust enrichment) Rome II, at 70 ff).

Geert.

(Handbook of) European private international law, second ed. 2016, Chapter 8, Headings 8.3.1.1., 8.3.2; Chapter 4, Heading 4.4.

 

Forty-six countries have signed up to the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) today. The signatory countries included Singapore, China, India, South Korea and the USA. The Convention, which was adopted by the UN General Assembly in December 2018, facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation. It complements existing international dispute resolution enforcement frameworks in arbitration (the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and litigation (the Hague Convention on Choice of Court Agreements and the recently concluded Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters).  Article 1(3) of the Singapore Convention carves out settlement agreements which may fall within the scope of these other instruments to avoid an overlap. The Convention does not prescribe the mode of enforcement, but leaves it to each Contracting State to do so “in accordance with its rules of procedure and under the conditions laid down in this Convention” (Article 3(1)). Formal requirements to evidence the settlement agreement are specified although the competent authority in the state of enforcement is also granted flexibility to accept any other evidence acceptable to it (Article 4). The settlement agreement may only be refused enforcement under one of the grounds listed in Article 5. These grounds include the incapacity of a party to the settlement agreement, the settlement agreement is null and void under its applicable law and breaches of mediation standards. Only two reservations are permitted: one relating to settlement agreements to which a government entity is a party and the other relating to opt-in agreements whereby the Convention applies only to the extent that the parties to the settlement agreement have agreed to the application of the Convention (Article 8).

While mediation currently commands a much smaller slice of the international dispute resolution mode pie compared to arbitration or litigation, some countries are making concerted efforts to promote mediation. To that end, the Singapore Convention will assist to increase mediation’s popularity among litigants in international commercial disputes.

 

When I reported [2019] EWHC 466 (Fam) V v M, I suggested that forum non considerations there, moot given that eventually jurisdiction of the English courts was upheld, would resurface in further cases. They have. [2019] EWHC 1995 (Fam) W v L eventually went much the same way as V v M.

The Brussels BIIa Regulation applies when determining the question of jurisdiction regardless of whether there is an alternative jurisdiction in a non-member state (Re A (Jurisdiction: Return of Child) [2014] 1 AC 1 , later confirmed in CJEU UD v XB C-393/18 PPU [2019] 1 WLR 3083 ). Brussels IIa has an intra-EU forum non conveniens regime (applied in C‑428/15, Child and Family Agency, on which I report here).

Art 8(1) of BIIa provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

MacDonald J at 30 posits that where the English court does have jurisdiction under Art 8 BIIa but there are proceedings also in a third party non-member state (here: Jordan) the issue becomes one of forum conveniens – which he subsequently discusses following the Spiliada criteria. In V v M to which current judgment refers at 34, Williams J reflected on whether forum non at all has calling following (he held it does; not convincingly). MacDonald J in current case first at 30 simply seems to accept such application. Then at 38 holds he need not decide this issue here (counsel had suggested the issue was in fact covered by Brussels Ia and the precedent value of Owusu therefor clear) for even if forum non conveniens has to be decided, it clearly points to England.

In conclusion, therefore: the issue still has not been settled and will, again, return.

Geert.

 

On 31 July 2019, the United Kingdom of Great Britain and Northern Ireland (UK) extended the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention) and the HCCH Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention) to Gibraltar in the event the Withdrawal Agreement is not ratified and approved.

As indicated in the UK Notes: “[t]he United Kingdom is responsible for the international relations of Gibraltar and wishes to ensure that Gibraltar continues to be covered by the Agreement[s] in the event that the Withdrawal Agreement is not approved.” If the Withdrawal Agreement is indeed signed, ratified and approved by the UK and the European Union, the UK will withdraw its instrument of ratification to the Child Support Convention and its instrument of accession to the Choice of Court Convention and its declarations of territorial extent (incl. reservations) to Gibraltar. The Depositary of the HCCH Conventions is the Ministry of Foreign Affairs of the Netherlands.

The UK has made a number of declarations and reservations under these Conventions for Gibraltar. For more information, please click here (Child Support Convention) and here (Choice of Court Convention).

The European Union, as a Regional Economic Integration Organisation, approved both the Child Support Convention and the Choice of Court Convention on 9 April 2014 and 11 June 2015, respectively.

In [2019] EWHC 1793 (Ch) Paul Holgate v Addleshaw Goddard (Scotland) the claim is for damages for breach of contract, negligence and/or breach of fiduciary duty in connection with and arising out of the defendant’s acceptance and performance (and/or non-performance) of instructions to act as solicitor for and to advise Arthur Holgate & Son Limited (then in administration, now in liquidation) in relation to a dispute between the Company and Barclays Bank.

The application concerns the allocation of jurisdiction within the UK. The rival forums are England and Scotland. The claim is not time-barred in England, but may, at least in part, be time-barred in Scotland, where the relevant period of ‘prescription’ (the Scottish equivalent of ‘limitation’) is 5 years.

The Civil Jurisdiction and Judgments Act 1982 allocates jurisdiction within the devolved regions of the UK and, for civil and commercial matters, has opted to apply the (now) Brussels I Recast Regulation mutatis mutandis. At issue is first of all the insolvency exception of Brussels Ia (extended here as noted to the UK Act) interpreted per CJEU C-133/78 Gourdain: at 4:””[I]t is necessary, if decisions relating to bankruptcy and winding-up are to be excluded from the scope of the [Brussels] Convention, that they must derive directly from the bankruptcy or winding-up, and be closely connected with the proceedings for the liquidation des biens or the règlement judiciaire .” (Reference to the French procedure given the French origins of the case). This provision of course in the meantime has a mirror image in the Insolvency Regulation known as the vis attractiva concursus: the forum concursus can hear not just the very insolvency action but also those closely connected to it. CJEU C-111/08 SCT Industri v Alpenblume also features heavily in the discussion.

(Note Clark M makes the oft-repeated mistake of suggesting Brussels Ia and Insolvency Regulation dovetail. I have emphasised on various occasions that they do not).

Following discussion, at 50 Clark M holds that the claim does not relate to the internal management, of the administration or the conduct of the Joint Administrators (JAs) of the insolvency: the defendant’s purely advisory role meant it was not responsible for either of these. This is insufficient for the claim to be “closely linked” to the administration.

Next is the application of the anchor proceedings: these, too, follow EU language and precedent entirely and at 79ff Clark M discusses the interesting question whether a claim providing the anchor, issued after the claim which anchors unto it, is capable of conferring jurisdiction. He held that it does, provided the other requirements of the anchor provisions are satisfied: in particular the desirability of avoiding irreconcilable judgments. The sequence of claims did lead to some procedural oddity which could however be rectified and there was no suggestion of abuse. 

At 89 ff follows discussion of the forum contractus: ‘place of performance of the obligation in question’. At 129 Master Clark concedes that the relevant statutory instrument deliberately did not instruct this part of the UK’s residual rules to be interpreted in line with EU rules, however given the exact same wording, there is no reason for not doing so. At 132 follows then the oddity of the consequences of CJEU De Bloos (and now the language of the Regulation) with respect to ‘the obligation in question’: the determination of the principal obligation is carried out by analysing the particulars of claim. He finds at 136 that the Company’s complaints flow essentially from the primary complaint that the defendant was in breach of its fiduciary duty by continuing to advise and act for the Company (and not advising it that it could not properly do so), thereby putting the Bank’s interests (and its interests) before those of the Company. At 139: the place of performance of that obligation, is held to be in England.

Finally, forum non conveniens is briefly discussed and the right forum held to be England.

Quite a jurisdictional goodie bag.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, much of Chapter 2.

 

The latest issue of the Revista Electrónica de Estudios Internacionales (REEI), the on-line open-access journal of the Association of Spanish Professors of international law and international relations, is out (issue 37, 2019).

Some of the articles in this issue address topics in the area of private international law.

All articles are in Spanish but come with an abstract in English.

The latest issue of RabelsZ has just been released. It contains the following articles (English abstracts are available only for articles in German):

Lord Thomas of Cwmgiedd, The Common Law in Private Dispute Resolution’s Shadow, pp. 487 et seq

Fleischer, Holger and Horn, Konstantin, Berühmte Gesellschaftsverträge unter dem Brennglas: Das Standard Oil Trust Agreement von 1882 (A Closer Look at Prominent Corporate Charters: The Standard Oil Trust Agreement of 1882), pp. 507 et seq

The charter shapes the life of the corporation. This crucial role notwithstanding, corporate contracts have received but scarce scholarly attention. Apart from a few exceptions, little is known about the charters of notable business entities. A new research program at the Max Planck Institute in Hamburg has set out to fill that void. The first test case, which is explored in this paper, is the Standard Oil Trust Agreement of 1882 – a seminal governance framework for corporate groups that spread quickly through different industries and became eponymous for the anti-trust legislation of the United States. The remarkable success of this agreement illustrates how innovative legal design can be just as vital to the survival and success of a company as managerial or technical innovation.

Hille, Christian Peter, Die Legitimation des Markenschutzes aus ökonomischer und juristischer Sicht- Ein Beitrag insbesondere zur Search Cost Theory des US-Markenrechts (Justifying Trademark Protection – An Economic and Legal Approach with Special Reference to the Search Cost Theory of US Trademark Law), pp. 544 et seq

Whereas trademark protection in the 19th century was justified by the theory of natural law, such concepts are generally considered to be outdated in secular law, even if the underlying values are still embedded in positive law. The law and economics approach, however, is focused solely on allocative efficiency as defined by Pareto optimality and the Coase theorem. US theory justifies trademark protection with the dual rationales of reducing consumer search costs and creating an incentive to improve the quality of products. While some authors criticize this view, they mostly do not propose a different approach, instead arguing that the search cost theory neglects certain social costs. Still, whereas the qualification of a trademark as a public good leads to completely different conclusions, it has been without significant influence on legal theory. Based on the search cost theory, the efficiency of German trademark law may be enhanced, e.g. by requiring a bona fide intention to use the trademark and by obliging the trademark owner to produce evidence of use. Requiring quality control in cases where a license is granted would also improve efficiency, and a mark should be invalidated if the sign becomes generic without this development being attributable to the owner. However, in order to evaluate the search costs as well as other social costs related to the trademark system, further research needs to be conducted with respect to the modes of action of trademarks (in particular in the context of famous trademarks and new technologies). The economic analysis of trademark law and the associated findings may be considered by judges in their interpretation of the law as long as their rulings do not serve to amend the statutory provisions establishing German trademark law (or the applicable European directives). Amendments of this nature would need to be carried out by lawmakers (see Art. 20 para. 3 of the German Constitution).

Makowsky, Mark, Die „Minderjährigenehe“ im deutschen IPR- Ein Beitrag zur Dogmatik des neuen Art. 13 Abs. 3 EGBGB (The “Marriage of Minors” in German Private International Law – The Legal Structure of the New Article 13 para. 3 EGBGB), pp. 577 et seq

The migration crisis has sparked a debate on how to deal with minor migrants who married in their home country or during their flight to Europe. In response to this problem, in 2017 the German legislature passed the Act Combatting Child Marriage. The paper analyses the new and highly controversial conflict-of-laws rules. Pursuant to the public policy clause of Art. 13 para. 3 EGBGB, a marriage is invalid under German law if a fiancé was under the age of 16 at the time of the marriage. If a fiancé had already turned 16 by the time of the marriage but was not yet 18, the marriage has to be annulled pursuant to German law. This strict approach allows for only few exceptions. The invalidity rule has a limited temporal scope and is not applicable when the minor fiancé had already turned 18 by the time of the law’s entry into force. Another exception to the invalidity rule exists if the marriage was “led” by the spouses up until the minor spouse’s reaching the age of majority and if no spouse had his or her habitual residence in Germany during the time between the marriage and the minor spouse’s attaining the age of majority. Due to the limited scope of these exception clauses, most child marriages are rendered void in Germany. This leads to the question whether the invalid marriage can nonetheless have some legal consequences, especially when the spouses relied on its validity. The exception clauses of the annulment rule are similarly very limited. An annulment is ruled out only if the minor spouse has turned 18 and wants to uphold the marriage or if the annulment would constitute an undue hardship for him or her. It is disputed whether this is in conformity with European law because the annulment rule also applies to marriages which were contracted and registered in another EU Member State. The paper argues that the law can be interpreted in accordance with Art. 21 TFEU.

Biemans, Jan, and Schreurs, Sits, Insolvent Cross-Border Estates of Deceased Persons – Concurrence of the Succession and Recast Insolvency Regulations, pp. 612 et seq

Infantino, Marta, and Zervogianni, Eleni, Unravelling Causation in European Tort Laws- Three Commonplaces through the Lens of Comparative Law, pp. 647 et seq

A short update on the innovation principle‘s continued (corporate-sponsored, let’s be frank) journey.

Thank you first of all prof Maria Lee for signalling the UK’s planned introduction of an ‘innovation test’, to be piloted as part of industrial strategy. Its goal is expressed as ‘We will create an outcome-focused, flexible regulatory system that enables innovation to thrive while protecting citizens and the environment.’ Not much more detail is given. Formulated as such, it does nothing that the current EU regulatory model does not already address – its true goal undoubtedly is a post-Brexit libertarian regulatory environment.

Further, Nina Holland observed with eagle eyes the link between Nafta 2.0 (USMCA) and innovation, in particular Article 12-A-4 ‘parties’ “recognize the importance of developing and implementing measures in a manner that achieves their respective level of protection without creating unnecessary economic barriers or impediments to technological innovation’ (like the UK initiative: meaningless for already addressed by current international trade agreements; the real intention actually is deregulation). American industry has been arguing that the US should ‘build on’ the new NAFTA when negotiating with the EU (should TTIP ever be resuscitated).

Geert.

 

Many thanks to Gustavo Cerqueira for this post:

The Société de législation comparée and the International Commission on Civil Status organize in partnership with the universities of Strasbourg and Reims an international symposium dedicated to the establishment of the content of foreign law and the need to consider appropriate instruments for cooperation.
The importance of the subject is major. On the one hand, the place nowadays given to foreign law in the settlement of disputes is growing. On the other hand, the intensified role of the various legal professions in the application of foreign law is indisputable. While judges and civil registrars were more traditionally exposed to such an office, nowadays it is notaries and lawyers in their dual role of advising and drafting documents who are called upon to take into account or implement foreign law.
In this context, while European Union law is often at the root of the involvement of these various actors in the application of foreign law, another, more recent phenomenon further increases the occurrences of how the law is handled: the extensive jurisdictional competition between European States as a result of Brexit. Indeed, Paris, Amsterdam, Brussels and other capitals establish courts and chambers specializing in international litigation and the application of foreign law.
The stakes are high. The search for appropriate cooperation instruments for a good knowledge of foreign law is necessary in the face of rapidly evolving national laws and case law. These changes, which are specific to each system, therefore reinforce the need for access to reliable foreign law content in order to guarantee legal certainty for litigants, as well as to avoid the civil liability of legal service providers and even fraud in the manipulation of foreign solutions.
The research envisaged takes place in an environment in which there are formal and informal cooperation mechanisms whose effectiveness is only partial in view of the complexity of the phenomena that covers the application of foreign law. Indeed, they were designed to deal with a foreign law that is supposed to be stable and not plural in its sources. These mechanisms, which are not very visible, are also unknown by the practitioners themselves. The current discussions at European (EU) and international level (Hague Conference) attest to the urgent need to consider responses in this area through one or more relevant and effective instruments.
This is the purpose of the symposium. After having established a large inventory, it will be necessary to discuss solutions adapted to the different requirements revealed by both the type of situation to be dealt with and the type of professional involved.
The symposium will be held on 28 November 2019 at the French Court of Cassation (Chambre Criminelle, 5, Quai de l’Horloge, 75001 – Paris).

Registration: emmanuelle.bouvier@legiscompare.com

Conference Directors:
Dr. Gustavo Cerqueira, Agrégé des Facultés de droit, University of Reims (France)
Dr. Nicolas Nord, Deputy Secretary General of the ICCS, Senior Lecturer at the University of Strasbourg (France)

On 12 September 2019, the University of Silesia in Katowice (Poland) will host a  conference on Regulation 650/2012 – the Succession Regulation and on the various issues relating to the succession matters within the European area of freedom, security and justice.

The conference is organized at the occasion of the annual session of the European Group for Private International Law (EGPIL/GEDIP) that will be held at the premises of the University of Silesia in Katowice at the invitation of a member of the Group and a Professor at Silesia – First CJEU Advocate General Maciej Szpunar. Readers of the blog will know that Szpunar AG regularly opines on matters of PIL.

The opening session of the conference will be devoted to the review of Member States’ first experiences with the application of the Succession Regulation. Practitioners undoubtedly are aware that experience with and questions re the application of the Regulation are now coming thick and fast.

This session will be followed by two panel discussions.

Scholars and practitioners speaking include Professor Stefania Bariatti (University of Milan), Professor Andrea Bonomi (University of Lausanne; with prof Patrick Wauthelet author of the standard work on the Regulation), Professor Jürgen Basedow (Max-Planck-Institut), Professor Christian Kohler (University of Saarbrücken), Professor Cristina González Beilfuss (University of Barcelona) Michael Wilderspin (European Commission; a regular agent for the EC in PIL cases at the CJEU); and Professor Paul Lagarde (University of Paris 1 – Panthéon-Sorbonne, Professor emeritus.

Upon the conclusion of the conference, on 13 September, the University of Silesia will award prof Lagarde a Doctorate Honoris Causa and he will deliver a commemorative lecture at this occasion: a good reason to stick around an extra day, I think.

Of note may be the most, most affordable fee of just under Euro 60 for such a stellar conference.

Draft programme of the conference is here. More details are available at the website of the University hosting the conference (scroll down for the English version).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6.

 

The last issue of the Revue Critique de Droit International Privé will shortly be released. This is a special edition composed of four articles on Brexit. It also contains several case notes, inter alia, a commentary by Horatia Muir Watt on Vedanta v Lungowe, major decision on the parent company’s duty of care and private international law, rendered by the Supreme Court of the United Kingdom on 10 April 2019 (see also here).

The first article is authored by Paul James Cardwell (“Naviguer en eaux inconnues. Les défis rencontrés par la recherche juridique au Royaume-Uni à l’heure du Brexit”). The abstract reads as follows: “The consequences of the United Kingdom’s decision to leave the European Union (Brexit) remain uncertain still. For legal scholars, Brexit has posed a series of complex legal questions, some of which have not been considered for over 40 years, if at all. This article aims to consider some of the main questions that have arisen during the Brexit process, and some of the potential responses. The article also evaluates the challenges that Brexit represents for researchers and teachers in the various sub-disciplines within legal scholarship, including the fast-paced, ever changing legal landscape. Although only a small number of the questions and challenges can be considered here, it goes without say that Brexit will undoubtedly have significant consequences for the UK, the EU and its Member States as well as for the systems of global governance, in which private international lawyers are inherently linked”.

The second article (“Le Brexit et les conventions de La Haye”) is written by Hans van Loon. The abstract reads as follows: “There are two possible scenarios at present for the immediate future of private international law in the relationship between the United Kingdom and the European Union of Twenty-seven in the event of Brexit. Under the first, the “Withdrawal Agreement” approved by the European Council on 25th November 2018 enters into force; under the second (the “no-deal” scenario) the status quo will end abruptly on 31st October 2019. Both of these hypotheses have important and complex implications. Under the Withdrawal agreement, a transition period is organised and when this period ends, specific transitory provisions take over. In such a regime, the law issuing from the conventions has a significant role to play. But in the event of a no-deal Brexit, all the treaties establishing, and concluded by, the European Union, and, as a result, European Union secondary law, including the regulations on private international law cease immediately to apply to the United Kingdom. The Hague conventions, including the new convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters will fill this gap to a large extent. However, the consequences may nevertheless be brutal for citizens, and in order to mitigate these, the transitory provisions of the Withdrawal agreement should be applied here by analogy”.

The third article, written by Uglješa Grušic (“L’effet du Brexit sur le droit international privé du travail”), describes the likely effect of the withdrawal of the United Kingdom from the European Union on the private international law of employment. “More specifically, it deals with the likely effect of Brexit on employment law, the law of international jurisdiction in employment matters and the law on choice of law for employment matters in the United Kingdom and the European Union, with particular emphasis on private international law in England”.

The fourth article is authored by Louise Merrett (“La reconnaissance et l’exécution en Angleterre des jugements venant des États de l’Union européenne, post-Brexit”). It describes the likely effect of the withdrawal of the United Kingdom from the European Union on the recognition and enforcement of judgments from EU Members States: “If the UK leaves the European Union without any new agreement in place allowing for mutual recognition and enforcement, the recognition and enforcement of judgments from EU Members States will prima facie only be possible under the existing common law rules. This article will describe the common law rules and draw attention to the key differences between them and the rules which currently apply to the enforcement of judgments under the Brussels I Regulation recast”.

A full table of contents is available here.

On 24 July 2019 Nicaragua joined the HCCH Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention). For more information, click here.

In accordance with Article 28 of the Service Convention, there is a six-month objecting period which will end for Nicaragua on 25 January 2020. If a Contracting State objects, then the Convention will not enter into force at all for Nicaragua. However, an objection has never been made under this Article in practice.

In the absence of any objection, the Service Convention will enter into force for Nicaragua on 1 February 2020.

The latest State to join was Brazil (EIF: 1 June 2019), which signals a growing interest in this Convention in the Latin American region.

As we have reported earlier, the final conference for the EU-funded IC2BE project will take place in Antwerp on 21 and 22 November 2019.

We are happy to anounce that registration is now open. See here for the programme and free registration (only the dinner is to be paid by attendees). Antwerp is close to Brussels and Amsterdam and can easily be reached by train from either of those cities. There are many hotels providing affordable accommodation.

The conference will discuss the application of the European Enforcement Order (805/2004), European Payment Order (1896/2006), the European Small Claims Procedure (861/2007) and Account Preservation Order (655/2014) in Belgium, France, Germany, Italy, Luxembourg, the Netherlands, Poland, and Spain, as well as by the Court of Justice of the EU.

The case law database of the IC2BE project is available here (not yet complete).

National seminars will also take place in the participating countries. See here for the dates.

The American Association of Private International Law (ASADIP) and the Regional Office for Latin America and the Caribbean (ROLAC) of the Hague Conference on Private International Law (HCCH) are seeking an intern to assist them in the academic work of the region’s network and to conduct legal research. An important focus of the internship will be the Hague Service and Evidence Conventions. Further information is available here (in Spanish only).

The candidate must either be an advanced student (having already taken Private International Law credits) or have graduated from a Bacherlor of Laws in a University of Latin American or the Caribbean region. For graduated candidates to be able to apply, no more than 3 years should have elapsed from their graduation.

Very good written and communications skills in both Spanish and English are required. This is a non-remunerated internship. The selected candidate is expected to work part-time (3 or 4 hours per day) from a distance. However, it is possible to do the internship at the ROLAC office in Buenos Aires, Argentina, or combined the internship with the possibility to work at a distance and on site.

The duration of the internship is 4 months to a year.

The deadline for applications is 20 August 2019.

The HCCH and the Department of Justice of the Government of the Hong Kong Special Administrative Region of the People’s Republic of China jointly organise the Inaugural Global Conference on the 2019 HCCH Judgments Convention:

The 2019 HCCH Judgments Convention:
Global Enforcement of Civil and Commercial Judgments

• Date: 9 September 2019
• Where: Hong Kong Convention and Exhibition Centre, 1 Expo Drive, Wan Chai, Hong Kong.

This Conference will provide an international forum for experts and interested parties to exchange their views concerning various aspects of 2019 HCCH Judgments Convention. Issues may include the instrument’s salient features; its benefits to parties; and its implications for cross-border trade and dispute resolution. It is envisaged that the event will promote the international community’s deeper understanding of, and ultimately greater participation in, the Convention.

The Conference will be conducted in English. Participation is free but the number of participants will be limited. Advance registration is required. For the advance registration, and all further information, go to: www.hcchjudgmentshk.org.

The event is supported by the Asian Academy of International Law.

I reported earlier on the decision at first instance in Arica Victims v Boliden Mineral. The Court of Appeal has now reversed the finding of Chilean law as lex causae, opting instead for Swedish law. Lindahl has good review here and I rely on it quite heavily for I do no speak Swedish.

Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies. My understanding at first instance was that the applicable law rule referred to lex loci damni, Chile. The Court of Appeal has gone for lex loci delicti commissi: whether this was by use of an exception or whether the court at first instance had simply misunderstood Swedish PIL, I do not know.

Having opted for lex loci delicti commissi, the Court of Appeal then considered where this was. Readers of the blog will know that this is relevant for CSR /business and human /environmental rights discussions. Lindahl’s Linda Hallberg and Tor Pöpke summarise the court’s approach:

In order to determine which country’s law applied to the case, the court examined a sequence of events that had influenced, to varying degrees, what had led to the alleged damage. According to the court, the decisive factor in the choice of law were acts and omissions that could be attributed to the Swedish mining company, as the case concerned this company’s liability for damages.

Instead of determining the principal location of the causative events using quantitative criteria, the court considered it to be where the qualitatively important elements had their centre of gravity. Further, in contrast with the district court’s conclusion, it held that the Swedish mining company’s alleged negligence had its centre in Sweden and therefore Swedish tort law should be applied in this case (the law of the place in which a delict is committed).

Unlike more ‘modern’ CSR cases the fact do not concern mother /daughter company relations yet the considerations of locus delicti commissi are nonetheless interesting.

The Court of first instance had employed Chilean’s longer statute of limitation. The Court of Appeal tried to stretch Sweden’s shorter one of 10 years (the case concerns a potentially tortious act which occurred more than 30 years ago): any subsequent damage that had been caused by the mining company’s failure to act during the period after the toxic waste had been shipped to Chile would advance the starting point for the limitation period. However this was at the latest 1999 and the 2013 action therefore had been taken too late.

On 25 June last the Supreme Court rejected further consideration, the Court of Appeal’s finding therefore stands.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.6.3, Chapter 8.

 

 

Profesor Dr. Francisco Javier Zamora Cabot and Dr. Maria Chiara Marullo (Chair of Private International Law at the Universitat Jaume I de Castellón) have recently published an article on International Sanctions and Human Rights.

Professor Zamora Cabot has kindly provided us with a short introduction to this topic:

The fight for the international protection of human rights is currently being developed on multiple fronts and through a diverse set of instruments and mechanisms. Thus, at the state level we can highlight, for instance, on the one hand, the use of powerful norms of an imperative nature, such as, in the United States, those that deal with serious problems such as torture or human trafficking, along with the emergence of an increasingly important regulation at a comparative level regarding the control of supply chains or the repression of the so-called modern slavery. Also at the state level, it should be noted, on the other hand, the trend that is becoming generalized in favor of facilitating access to justice for victims of human rights violations, being the ambit of the relations of companies with the latter a clear field of choice for it.

For its part, the international community, although it is not living a particularly brilliant time as regards the protection of the aforementioned rights, persists in the application of the body of laws generated in it, especially through the various institutionalized systems, and in the search for new instruments, such as those already adopted or in the process of being adopted in the area of the relations between companies and human rights, key in our days, with the inescapable reference of the role of the United Nations.

In addition, international sanctions have long been playing a relevant role in relation to the two levels we have been managing. The examples are countless, and so is the discussion that often arises, even when they have been conveyed through the international instances. For example, although they are defined and specified with technical accuracy, they often have a negative impact on those sectors of the population they should actually protect.

Trying to minimize these impacts, and opening up new ways in the international protection of human rights, a number of texts have appeared in recent times, with the pioneering impulse of the United States, along with other countries, which, through well-defined sanctions, combine the fight against the corruption with the fight against the serious violations of the rights above mentioned. This is a very timely approach, insofar as corruption and violations are often intimately related, as, for example, the Committee on Economic, Social and Cultural Rights of the United Nations Economic and Social Council emphasized through its General Comment No. 24,E/C.12/GC/24, in the context of business activities, urging States to take action against such corruption, providing them with the appropriate mechanisms and ensuring their independence and sufficient level of resources.

In short, the paradigm of the aforementioned approach would be the Global Magnitski Act of the United States, Public Law 114-328., 130 Stat. 2533, which covers also legal persons and is already resulting in a practice of prominence, and even reflections in other countries at the regulatory level. A norm that deserves an in-depth analysis and follow-up in its application, herald as it is of a new horizon in the struggle for human rights to which we alluded initially, without losing sight of the rigor and caution with which we must act. And this is due to the intrinsic character of international sanctions as instruments of restricted and exceptional application, complementary, but never substitutable in this order, of those already existing and of which there is evidence in these brief reflections.

The article (in Spanish) is available here.

I was thinking of using [2019] EWHC 946 (Comm) Idemia v Decatur for exam purposes hence beyond an initial Tweet, I am a bit late with reporting. However the judgment consists of 144 paras of pure jurisdictional argument – hence making it useful for oral exam but not for a written one: for where does one start? This is a typical case of reverse engineering: Decatur (which is an English company) and Tiger (which is incorporated in Bangladesh) have brought an action for the Discount Sums against Idemia in the courts of Bangladesh. Idemia (which is a French company) claims that that action (“the Bangladesh Action”) has been brought in breach of the jurisdiction provisions in the underlying contracts, which confer exclusive jurisdiction upon the competent courts of Geneva, Switzerland. Decatur and Tiger disagree, claiming that the subject matter of the Bangladesh Action is not covered by the jurisdiction provisions on which Idemia relies. Idemia says that its contractual right to be sued in Switzerland (and nowhere else) means that it cannot be forced to litigate in Bangladesh. As for the courts of Switzerland, Idemia says that the Swiss courts do not have power to issue the anti-suit injunction which it needs to restrain the further prosecution of the Bangladesh Action. Idemia claims to be entitled indirectly to enforce the jurisdiction provisions on which it relies by enforcing guarantees which Idemia claims that Decatur and Tiger have each given for the other’s obligations under the relevant contracts, and which contain English law and jurisdiction clauses. At 143 Salter DJ helpfully summarises the lengthy discussions in the judgment: 1 Decatur’s challenge to the jurisdiction succeeds. Idemia’s claim to found jurisdiction upon Decatur’s domicile in England fails, because Decatur has the better of the argument that jurisdiction on that basis (in relation both to the contractual and the tortious claims asserted in the present action) has been prorogued to the courts of Geneva by the jurisdiction provisions of the Decatur Agreement. Idemia has failed to establish a good arguable case that it can found jurisdiction against Decatur on the jurisdiction provisions of the Schedule 6 Document annexed to the Tiger Agreement. 2 Tiger’s challenge to the jurisdiction succeeds. Idemia has failed to establish a good arguable case that it can found jurisdiction against Tiger on the jurisdiction provisions of the Schedule 6 Document annexed to the Decatur Agreement. Idemia has also failed to establish a good arguable case that it can rely upon Decatur as an “anchor defendant”, so as to establish jurisdiction over Tiger as a necessary or proper party. 3 Mr Rahman’s challenge to the purported service on him at York Way succeeds. York Way was not his “last known residence” within the meaning of CPR 6.9 at the material time, since Idemia had been told that he no longer lived there. 4 Mr Rahman’s challenge to the service on him at Morris Place fails. He was validly and effectively served there at his registered “service address”, pursuant to the Companies Act 2006 s 1140, even though he was not at the material time present, domiciled or resident within the jurisdiction. Idemia has therefore succeeded in establishing that the English court has jurisdiction over Mr Rahman on the basis of that service. 5 Mr Rahman’s application for a stay of this action against him on forum non conveniens grounds succeeds. No sufficient factors link the claims made against Mr Rahman in the present action to England. There are, however, substantial connections with Bangladesh. Bangladesh is therefore the forum in which Idemia’s claims against Mr Rahman can most suitably be tried for the interests of all the parties and for the ends of justice. Geert. (Handbook of) European private international law, 2nd ed. 2016, much of Chapter 2.

Entries for the St. Petersburg International Legal Forum Private Law Prize 2020 will close on 15 October 2019. The first prize of 10 million rubles will be awarded to the author of the best academic work (monograph or article) published in the field of private law, private international law or comparative law since 1 January 2015. Textbooks and commentaries are not eligible for the prize. The prize expert committee consists of world renowned academics.

The prize will be awarded at the X St. Petersburg International Legal Forum in May 2020.

Further details on the conditions, eligibility and the prize expert committee may be accessed here.