Flux des sites DIP

On 10 December 2020, the CJEU decided in the case of A. B. and B. B. v Personal Exchange International Limited whether and under what circumstances a player in an online poker game can be considered a “professional” and accordingly fall outside the scope of the consumer provisions of the Brussels I and Brussels I bis Regulation.

Facts

B. B., a natural person living in Slovenia, and Personal Exchange International Limited (PEI), a company operating a platform offering online poker on a cross-border basis inter alia in Slovenia, entered into a contract that allowed B. B. to play poker on the platform. The contract contained a jurisdiction clause which conferred jurisdiction on the courts of Malta.

Between March 2010 and May 2011, B. B. spent a daily average of 9 hours on the game and earned no less than EUR 227.000 in just over one year. In 2011 PEI froze B. B.’s account and retained the money in his account.

After being sued by B. B. in Slovenia, PEI refused to consider him a consumer and insisted on the validity of the choice-of-court clause contained in the contract.  PEI thus denied the jurisdiction of the Courts in Slovenia. The Vrhovno sodišče, the highest court of Slovenia, referred the question of the international jurisdiction of the Slovenian courts over the case to the CJEU.

Issue

The legal issue was therefore whether a person can be regarded as a consumer in the sense of Art 15 et seq. Brussel I Regulation if the person has specialised knowledge and skills in the area, spends a considerable amount of time with the subject matter of the contract and derives a significant profit from it.

Holding and Rationale

In its judgment, the CJEU first clarifies that the Brussels I Regulation applies on the basis of temporal scope under  Art 81 Brussels Ibis (para 3).

Regarding characterisation as a consumer or professional, the CJEU stresses that neither the profits made, nor the regularity with which the game was played, nor the knowledge or expertise of the player would be decisive as such (para 49). Instead, the Court of Justice highlights that B.B. did not offer any goods or services to third parties and had not officially registered its activity (para 48). With these guidelines in mind, the CJEU left the final characterisation of the B.B.’s status to the national court (para 49).

Assessment

The judgment is in line with the CJEU’s previous case law, such as the decision in Petruchova and Schrems. The Court of Justice rightly stresses the need for legal certainty, which could be undermined if the characterisation as a consumer were to depend on variables such as the profits made, the time spent on an online game or the knowledge or expertise of the player.

It is equally easy to understand why the Court of Justice introduced the criterion of offering goods and services to third parties for qualification as a professional. More contestable is the criterion of registration of activities by the player: whether somebody is to be considered a professional or a consumer should not be made subject to his or her own decision to register. As a result of the decision, it will be extremely hard, if not impossible, to ever consider an online poker player a professional. Hold’em all!

Written by Dr Abubakri Yekini, a Lecturer in Law at Lagos State University

This is the fourth and penultimate online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, the second symposium was published by Anthony Kennedy, and the third symposium was published by Richard Mike Mlambe. A final blog posts on this online symposium will be published tomorrow.

 

I. Introduction

Private international law (PIL) is not one of those fanciful subjects that command the attention of students, academics and practitioners at least in Nigeria. As important as this field, it is still largely ignored. Several legal commentators have called our attention to the poor state of PIL in Africa generally (Oppong, 2006; Okoli, 2019). So, we can say Nigeria is not standing alone here. Dr Oppong is one of those who are passionate about the development of PIL in Africa, and I may add Nigeria. In a piece titled ‘Private International Law and the African Economic Community: A Plea for Greater Attention’, he lamented the general state of neglect of PIL in the African economic integration project. What caught my attention in that article was his remark on the treatment of jurisdiction agreements in some African countries such as Angola and Mozambique. He noted that:

“This hostility to jurisdiction agreements is akin to Latin American countries’ historical disdain for similar clauses founded on their rejection of the principle of party autonomy- a principle so important in international commerce. This treatment of jurisdiction agreements can be a disincentive to international commercial relations since they are very much part of the current modes of dealing across national boundaries” (p.917)

Although Dr Oppong did not examine the attitude of Nigerian courts on this issue, his new work which he co-authored with Dr Okoli (Okoli and Oppong, 2020) gives us an insight. The book is an excellent piece. For the first time, students and practitioners can have access to an avalanche of Nigerian PIL cases and they can measure the mood of Nigerian courts on important subject matters such as jurisdiction agreements. This topic was conceived while reviewing the book.

In recent years, Nigeria has been making frantic efforts to turn around its economy. There is a consistent drive at improving the ease of doing business, and various investment promotion laws have also been enacted to that effect. However, we seem not to appreciate the nexus between PIL and the promotion of cross border commercial transactions. We agree with Dr Oppong that PIL has a role to play in making Nigeria attractive for international trade and commerce. International businesspersons are more interested in economies that enforce contracts, protect and secure property rights, and have simple and efficient dispute resolution mechanisms in place. Jurisdiction agreements are part of contractual terms. As observed from the analysis of Okoli and Oppong (2020), it is difficult to give a straight answer on whether jurisdiction agreements are enforced by Nigerian courts. This calls for great concern as a negative attitude to jurisdiction agreements can potentially disincentives the inflow of foreign direct investment or international business transactions to Nigeria generally. Even if such businesses must be done in Nigeria, the least is that the non-enforcement of jurisdiction agreements will lead to an increase in transaction cost since there are uncertainties surrounding the enforcement of contracts. Investors may envisage multiple proceedings and the cost of such proceedings are factored into the contract ab initio. They might also envisage that judgments obtained abroad may not be enforced by Nigeria courts that might have earlier exercised jurisdiction in breach of the agreement. There is also the tendency to have inconsistent judgments.  These uncertainties are drawbacks on whatever reforms the Nigerian government might have been carrying out in the area of trade and investment.

Jurisdiction agreements are otherwise called choice of court agreements. In most cases, they form part of the contract agreement. They come in various forms. They may be symmetric (exclusive or non-exclusive) or asymmetric where one party is free to choose any preferred forum and the other party is restricted to a particular venue. Jurisdiction agreement is party autonomy has been embraced in almost all jurisdictions. Like arbitration agreements, parties are allowed to contract out of certain jurisdictions. While a contract may be formed or executed in jurisdiction A and B, the parties may wish that their disputes be resolved in jurisdiction C. For instance, many international contracts choose English courts as their preferred venue for litigation. Several reasons have been offered for this. They include case management system of the English courts (procedural efficiency), expertise in English law and complex commercial transactions, the quality of the English bar, availability of varieties of interim measures, prioritisation of private justice, independence of the judiciary, pro-enforcement of contracts and judgments amongst others.

 

II. Jurisdiction agreements in Nigerian courts

What is the attitude of Nigerian courts to jurisdiction agreements? Theoretically, we may say that Nigerian courts enforce jurisdiction agreements. There are numerous precedents extolling party autonomy and the need to enforce contracts freely negotiated by parties. Nevertheless, in practice, Nigerian courts assume jurisdiction, in some cases, in breach of jurisdiction agreements. There is hardly any distinction between exclusive and non-exclusive jurisdiction agreements. From Okoli and Oppong (2020), and my assessment of reported cases, jurisdiction agreements have only been upheld in five cases: Nso v Seacor Marine (Bahamas) Inc (2008) LPELR-CA, Beaumont Resources Ltd v DWC Drilling Ltd (2017) LPELR-42814 (CA), Nika Fishing Co Ltd v Lavina Corporation (2008) 16 NWLR (Pt 1114) 509, Megatech Engineering Ltd Sky Vission Global  Networks LLC (2014) LPELR-22539 (CA) and Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699 (CA).

An analysis of the reported cases on jurisdiction agreements reveals that jurisdiction agreements are jettisoned on three main grounds as presented below.

1. The mischaracterisation of jurisdiction agreement as an ouster clause

Nigerian jurisdictional law generally lacks any coherent theoretical foundation. Okoli and Oppong’s treatment of the topic in chapter 5 attest to this fact. Credit must be given to them for an attempt to synchronise and present in an intelligible form, a body of precedents that is riddled with inconsistencies and contradictions. Unlike elsewhere where courts consider many factors (eg reasonableness, party autonomy, due process, proximity, foreseeability) when treating adjudicatory jurisdiction, Nigerian courts largely see it from the prisms of territorialism and power. It is no surprise that the courts are extremely protective/jealous of their power when a matter is connected to the forum. They generally frown at any attempt to divest the courts of their jurisdiction. Hence, they characterise jurisdiction agreements as ouster clauses.

This mischaracterisation can be traced to Sonnar (Nig.) Ltd. v Nordwind(1987) 4 NWLR (Pt.66) 520 where the Supreme Court imported this idea relying on The Fehmarn[1957] 1 W.L.R. 815. In this case, Oputa JSC had this to say on jurisdiction agreements:

“[A]s a matter of public policy our courts should not he too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum and a foreign law. Courts guard rather jealously their jurisdiction and even where there is an ouster of that jurisdiction by Statute It should be by clear and unequivocal words, If that is so, as indeed It is, how much less can parties by their private acts remove the jurisdiction properly and legally vested In our courts? Our courts should be in charge of their own proceedings. When it Is said that parties make their own contracts and that the courts will only give effect to their intention as expressed in and by the contract, that should generally be understood to mean and imply as contract which does not rob the court of its jurisdiction in favour of another foreign forum (p. 544 paras B-E)

While an earlier case of Ventujol v Compagnie Francaise  DeL’AfrriqueOccidentale  (1949) 19 NLR 32 mentioned an ouster clause, most recent cases rely on the above exceprt from Sonnar. Oputa’s view was recently echoed by Nweze JSC in Conoil v. Vitol S.A. (2018) 9 NWLR (Pt. 1625) 463 at 502, para A-B where his Lordship noted that: “our courts will only interrogate contracts which are designed to rob Nigerian courts of their jurisdiction in favour of foreign fora or where, by their acts, they are minded to remove the jurisdiction, properly and legally, vested in Nigerian courts.”

The Fehmarn was a 1957 English decision and may well reflect the mood of the courts in that era where party autonomy was still emerging. Two problems are identified here. First, laws should always be read in context. The Fehmarn did not treat jurisdiction agreement as an ouster clause. Rather, that case established the fact that a court which is properly seized, nevertheless, has the discretion to decline jurisdiction in deference to the parties’ jurisdiction agreement. The substance of The Fehmarn is that “where there is an express agreement to a foreign tribunal, clearly it requires a strong case to satisfy this court that that agreement should be overridden ” (p. 820). Second, many Nigerian lawyers have equally misunderstood the nature of jurisdiction agreements. In those cases where the courts have shown this combative attitude, some counsel have asked courts for dismissal on the ground that the courts lacked jurisdiction based on jurisdiction agreements.

A wrong characterisation leads to negative treatment. While ouster clauses are special statutory clauses which are meant to prevent courts from entertaining specific cases that engage state interest, jurisdiction agreements only appeal to the courts to decline jurisdiction in deference to parties’ choice. It is interesting to also note that an arbitration agreement is never treated as such and there area plethora of authorities on this point (For instance see Felak Concept Ltd. v. A.-G., Akwa Ibom State (2019) 8 NWLR (Pt. 1675) 433; Mainstreet Bank Capital Ltd. v. Nig. RE (2018) 14 NWLR (Pt. 1640) 423). One wonders whether there is any rational or legal basis to treat a jurisdiction agreement differently from an arbitration agreement.

2. Mandatory statutes

Some Nigeran statutes confer mandatory jurisdiction over some subject matters on Nigerian courts. The reasonability or otherwise of such sweeping and exclusive jurisdiction over matters that are purely civil and commercial will not be addressed here for want of space. Examples of these statutes are the Admiralty Jurisdiction Act and the Civil Aviation Act. One can sympathise with Nigerian courts when they are asked to enforce jurisdictional agreements which fall within the scope of these statutes. No amount of judicial pragmatism would override mandatory national statutes vesting exclusive jurisdiction in Nigerian courts. It was on this basis that the courts refused to enforce jurisdictional agreements in Swiss Air Transport Coy Ltd v African Continental Bank (1971) 1 NCLR 213, for instance.

3. Forum non conveniens

Forum non conveniens(FNC) is a pragmatic procedural mechanism developed by common law judges (even though it has a Scottish origin) to advance efficiency and justice in civil litigation. Many transactions have connections with more than one jurisdiction and parties would want to commence litigation in any of those fora that can deliver maximum results for them. In some cases, it may be simply to harass the opponent. Thus, where a court has jurisdiction over a matter under its national laws, it can decline jurisdiction (by staying an action) to allow parties to litigate in a more convenient forum.

FNC test as stipulated by Brandon J in The Eleftheria[1969] 2 All ER 641 has been adopted and applied by the Nigerian Supreme Court in Sonnar (Nig.) Ltd. v Nordwind. Brandon J was merely laying down general factors that the court should consider when asked to decline jurisdiction. Brandon test supports the enforcement of jurisdiction agreement. The underlying principles are largely based on convenience and justice. The case emphasised “a strong’” cause for assuming jurisdiction in breach of a jurisdiction agreement. The strong cause has further been qualified in subsequent cases such as Donohue v Armco Inc &Ors [2001] UKHL 64 where many FNC grounds were discountenanced (see para 24-39). The US Supreme Court would also require ‘some compelling and countervailing reasons’ to allow an action to proceed in a non-chosen court if the agreement was reached “by experienced and sophisticated businessmen” (See Bremen v. Zapata Offshore Co.92 S. Ct. 1907 (1972)). This is contrary to the Nigerian courts’ approach where any FNC test no matter how weak may displace foreign jurisdiction clause. The Supreme Court recently re-emphasised the approval of any of the FNCs grounds in Nika Fishing Co Ltd. However, an application for stay was granted in that case because the party in breach did not file any counter affidavit.

In Ubani v Jeco Shipping Lines (1989) 3 NSC 500 and Inlaks Ltd v Polish Ocean Lines (1989) 3 NSC 588, jurisdiction agreements were not enforced either because the matter would be statute-barred in the chosen jurisdiction or parties and evidence were located in Nigeria. It is conceded that one of the tests of FNC is the availability of an alternative forum. It can easily be argued that these decisions are justified on the ground of justice because the Claimants would not be able to file a claim in the chosen jurisdiction. However, there is a danger in applying FNC grounds to jurisdiction agreements. As rightly suggested in Donohue where jurisdiction agreement is in issue, FNC grounds should ordinarily not apply. Non-enforcement of jurisdiction agreement should be restricted to very strong reasons such as where third parties who are not bound by the agreement are parties to the suit or where the claim falls within the exclusive jurisdiction of the non-chosen forum (see Akai Pty Ltd v People’s Insurance Co Ltd [1998] 1 Lloyd’s Rep 90; Continental Bank NA v Aeakos Compania Naviera SA and Others [1994] 1 WLR 588). One can also add inability to sue in the chosen forum for reasons beyond parties’ control such as the ongoing global lockdown (RCD Holdings Ltd v LT Game International (Australia) Ltd [2020] QSC 318) or the protection of weaker parties like consumers and employees. This is the approach of the English courts and the same is followed in other commonwealth jurisdictions such as Australia (FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 559) and New Zealand (RCD Holdings Ltd v LT Game International (Australia) Ltd (supra); Kidd v van Heeren [1998] 1 NZLR 324). A party who agreed to litigate in a particular forum had contracted to be bound by the law and procedure of that jurisdiction. Limitation period, location of parties and evidence should not be a valid excuse without more. Put differently, inconvenience and procedural disadvantages should be discountenanced especially when those factors are forseeable when parties are negotiating the contract ()

 

III       Conclusion

Legal certainty and predictability of results are key values of modern PIL especially in the area of cross border commercial transactions. A PIL framework that is driven by these values will promote and enhance commercial activities because it is a risk management mechanism in itself. Businesspersons are interested to do business in jurisdictions where contracts are enforced. They want to make informed decisions about the governing law of the contracts, the jurisdiction in which contractual disputes are resolved, jurisdictions whose judgments can be respected and enforced abroad.

Courts ought to help parties to achieve their contractual goals. They should neither frustrate negotiated terms nor rewrite them for the parties provided it is a contract that is negotiated at arm’s length. Nigerian courts should promote party autonomy as much as practicable. With this approach, foreign businesses would take the Nigerian justice system seriously and would be confident to do business with Nigeria. It can potentially attract more FDIs to Nigeria if we earn the trust of foreign investors.

Non-enforcement of jurisdiction agreements disincentives commercial transactions because of litigation and enforcement risks. Assuming that foreign companies must do business with Nigerians nevertheless, these risks ultimately be factored into contractual negotiations as businessmen would not want to spend their profits on litigation in unfamiliar/non-chosen fora. Cost of doing business with Nigeria will invariably be higher and this will further lead to an increase in the cost of goods and services in Nigeria.

Based on the foregoing, it is only sensible that Nigerian courts should give maximum effect jurisdiction agreements. The first task is to get the legislators to review some of the extant legislation such as the Admiralty Jurisdiction Act and Civil Aviation Act which vest exclusive jurisdiction in Nigerian courts over a wide range of purely private commercial transactions. Also, the courts can learn from the developments in other jurisdictions, particularly, how “strong cause” has been redefined in the light of modern developments to admit of only genuine cases where it is either practically or reasonable impossible to litigate in the chosen forum or where non-parties are genuinely involved in the suit. Lastly, Nigeria needs to join the Hague Conference and the 2005 Choice of Court Convention. It will benefit from the rich jurisprudence and expertise available at the Hague Conference and foreign businesspersons will be assured of the commitment of Nigeria to the enforcement of jurisdiction agreements.

 

 

The Global struggle towards affordable access to justice: Dutch baby steps towards a more open legal market

 Written by Jos Hoevenaars, Erasmus University Rotterdam (postdoc researcher ERC project Building EU Civil Justice)

In a global context of civil justice in crisis (Zuckerman) and a legal professional under pressure to adjust to the rapidly changing legal landscape (Susskind), experiments, adjustments and transformations in the way justice is done are an almost daily occurrence. Last week, the Dutch Bar Association announced an experiment to (slightly) open up the legal market in the Netherlands.

Effective yet affordable legal representation

The administration of (civil) justice remains an expensive practice, both in terms of public spending on the courts and publicly funded legal aid, as well as for those seeking justice. In most jurisdictions, access to justice remains a far cry from reality for large sections of society. Effective yet affordable legal representation has long been one of the most important stumbling blocks, and it goes without saying that in cross-border cases these costs only increase, while self-presentation – even if allowed – is often illusory.[1] With high and unpredictable lawyer fees as one of the most prevalent impediments to access, there have been many attempts at transforming the market for legal representation.

On the side of the legal system, we have seen moves away from strict legal representation requirements by a lawyer towards more self-representation and ‘do-it-yourself-justice’, taking lawyers out of the equation altogether (a practice leading to some disastrous results in some places). And, in response to the resulting challenges faced by litigants in person, we see movements in the direction of permitting for different forms legal representation, such as the so-called ‘McKenzie friends’ in UK courts, or the ‘Lay Assistant Scheme’ in Singapore, that allow for non-lawyers to be present in court to assist self-representing litigants (to a limited extent).

If we add to this the growing market of private dispute resolution as well as the tectonic shifts that are to be expected from the technological innovations (in both legal aid provisions and the digitalization of court procedures) we can see how such moves are likely small steps on a long and winding road of radical transformations of the legal profession, and likely of legal markets and the justice system as a whole. In the Dutch context, we witnessed one of those small steps last week.

Burgeoning shifts in the Dutch legal market

On December 3rd the Dutch Bar Association (NOvA) announced an experiment to give more leeway to lawyers from legal assistance insurers and claims settlement offices, by letting lawyers not employed by a law firm represent clients in court. As in many other legal systems, the legal market in the Netherlands has long been a hermetically sealed bulwark. While in large parts of the Dutch legal system assistance by a lawyer is mandatory, litigation with the use of a lawyer is only allowed if that lawyer is employed firm that is owned by layers. Legal departments of service providers such as accountancy organizations and claims settlement offices are therefore sidelined in court. In this recent move, however, the bar association gave the green light to the Hague legal aid provider SRK, a company that is not owned by lawyers, to offer lawyers’ services to people who are uninsured – a practice that up until now was restricted. This move is heralded as a crucial first step to break open the strictly regulated legal market in the Netherlands.

Bar under pressure

The move does not come as a complete surprise, NOvA has been under growing pressure by the Dutch Authority for Consumers and Markets (ACM) to adjust its professional rules because they may frustrate market forces. In February of this year, rather than taking action directly, the ACM gave the bar association a last chance to adjust its rules itself, while emphasizing that it could still conduct an investigation if there was reason to do so.

This pressure resulted from a request by legal aid provider SRK. The company wants to have its lawyers provide services to clients without legal expenses insurance through its subsidiary company BrandMR. However, this would go directly against NOvA rules, which stipulate, among other things, that lawyers may provide their services only while employed by an office that is owned by lawyers. This rule is meant to prevent lawyers from being guided by business interests rather than those of their clients.

There is one exception to this rule: lawyers may be employed by a (non-lawyer owned) legal expenses insurer, provided they work exclusively for insured persons, which is the practice of SRK. However, by also catering to non-insured persons SRK would violate that principle. With BrandMR, SRK targets the market of people who earn too much for subsidized legal aid yet have no legal aid insurance. According to the legal aid provider, about 25% of the Dutch population, especially young people, avoid legal assistance because they are not insured and consider the costs of a lawyer too high and unpredictable.

Since October of this year, and in defiance of the Bar’s rules, people without insurance can turn to SRK if they have a conflict. Under the BrandMR label, SRK offers them legal assistance at a fixed price, instead of the hourly rate that law firms charge. SRK director Peter Leermakers says he ‘supports’ all the rules of the legal profession, but not this one. ‘Our lawyers have been allowed to work for people with legal expenses insurance for over 15 years. Then why not for people without insurance? Why should they suddenly no longer be independent? ‘ He argues that the independence of the lawyers at SRK is guaranteed by an internal committee, which is assisted by two lawyers who previously were acting deputies of NOvA.

Political support

There has been political support for for SRK’s attempt to stretch the rules for the legal profession in the Netherlands. Minister Sander Dekker of Legal Protection (VVD) has submitted a bill to allow experiments in the Dutch legal system. He wants to offer citizens more flexible access to justice and reduce the costs of justice through a wide range of potential changes to and shifts in the Dutch justice landscape. He has already indicated several times that he welcomes initiatives such as those of SRK, and also hinted in the House of possible measures if the bar does not seriously consider how it can help foster new business models in the legal profession.

As described here in an earlier blogpost, the Minister previously clashed with the legal profession about legal aid funding. The government pays lawyers for people who cannot afford it themselves. Lawyers will then receive compensation based on a system of fixed rates for each type of court case. According to many lawyers, these are too low, but Dekker refused to make more money available, eventually leading to a strike by lawyers at the end of 2019.

A five-year experiment

The bar association thus yields to heavy pressure from politics, cartel watchdog ACM and non-industry service providers eager to enter the legal market. Although, rather than a full-fledged rule change that would open up the legal market to a host of providers, for the time being the admission of SRK is ‘an experiment’ with a maximum duration of five years. Service providers other than SRK may also participate, under the watchful eye of the Bar. The experiment is part of a broader investigation into a possible new system of regulations around permitting alternative business structures for lawyers.

The experiment announced by the NOvA must therefore be viewed in that light. “There needs to be movement on this subject somewhere, either by the NOvA, either by the ministry or the ACM,” said General Dean of the Dutch Bar Frans Knüppe. “We think it is wise to start the experiment now, and thus gain knowledge and experience on this fundamental issue. We expect that the Minister and ACM will not have to take any steps for the time being.” Knüppe emphasized that the NOvA is open to new initiatives, as long as the core values – in this case lawyers’ independence – ??are guaranteed.

International shifts in the legal market

While the move by the NOvA is only a small step towards rule changes, in terms of corporate structures it could potentially lead to a significant shift in the character of the Dutch legal market. The opening up of commercial opportunities for legal service providers could be part of the solution for the segment of the population that earn too much for subsidized legal aid but are not wealthy enough to employ costly and often unpredictable services of a lawyer without legal aid insurance.

The changes in the Dutch context do not stand on their own, as we have seen considerable volatility in legal market globally. In the United Kingdom and the United States, established law firms have been facing competition for much longer. The 2011 Legal Services Act in England has made it possible for parties other than lawyers to become co-owners of a law firm. As a result, law firms can collect money from outside the company, at the stock exchange for example. The new law opened the door for non-lawyers such as accountants and bailiffs, as well as supermarkets, to enter the legal market.

It remains to be seen what the impact of this temporary rule change will be on the Dutch legal market. The board of representatives of the NOvA expressed concern that the experiment could potentially lead to shifts in the legal landscape that prove to be irreversible after the five-year experiment. On the other hand, the ACM has applauded the move by the NOvA, yet also questions whether the relaxing of the rules goes far enough.

On request of the Ministry of Justice and Security and the NOvA, the WODC (Research and Documentation Centre) of the Ministry is currently conducting research into the consequences of the admission of alternative business structures in the legal profession.

 

[1] Hoevenaars, J. & Kramer, X.E. (2020). Improving Access to Information in European Civil Justice: A Mission (Im)Possible? In Informed Choices in Cross-Border Enforcement. Cambridge: Intersentia

Last week, the United States Supreme Court heard arguments in Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp. The basic question in these cases is whether the plaintiffs (Holocaust survivors and the heirs of Holocaust victims) can pursue claims in U.S. federal court seeking compensation from European countries and their agencies or instrumentalities for takings of property during the Second World War. The more nuanced question presented to the Supreme Court by the Governments of Hungary and Germany is whether U.S. federal courts may abstain from resolving such claims on the grounds of “international comity” – the principle that courts must respect the legislative, executive and judicial acts of a foreign sovereign – when jurisdiction is based on the expropriation exception of the Foreign Sovereign Immunities Act (“FSIA”). Germany presents the additional question of whether that exception “provides jurisdiction over claims that a foreign state violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established customary international law addressing states’ expropriation of property.”

The factual background of these cases has been fully recounted elsewhere, but the basic storyline is well known. The case against Germany involves the Welfenschatz (or the Guelph Treasure), a collection of medieval art that was owned by a consortium of German-Jewish art dealers, but purchased in 1935 by a group of Nazis for less than the art’s true value. After a Government-sponsored mediation process failed in Germany, the heirs of the original owners (including citizens of the United States) filed suit in U.S. federal district court against Germany and the Prussian Cultural Heritage Foundation, which has held the collection since after World War II. The district court denied motions to dismiss; the U.S. Court of Appeals for the District of Columbia Circuit affirmed. The case against Hungary is a federal class action filed by 14 former Hungarian nationals who claim to be the successors-in-interest to Hungary’s state-owned railroad; they seek compensation for the property taken from them and base jurisdiction on the expropriation exception to the FSIA. The district court dismissed the claims for lack of subject-matter jurisdiction (and against the railroad for lack of personal jurisdiction), but the D.C. Circuit reversed. When the case was remanded, the district court again dismissed the case on comity abstention and forum non conveniens grounds; a divided panel of the D.C. Circuit again reversed, which put the case before the Supreme Court.

Germany and Hungary argued before the Court that the source of jurisdiction does not affect the availability of international comity abstention, and nothing in the text of the FSIA shows that Congress removed international comity as a basis for abstention, especially because it left in place analogous comity-based doctrines such as forum non conveniens.. Indeed, the FSIA states that, when a foreign state lacks sovereign immunity, it “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” Because private litigants can seek dismissal based on international comity, the argument goes, states that have lost sovereign immunity must be able to obtain dismissal on the same grounds. And, the two state-litigants add, the comity implications loom large here: to wit, a State’s responsibility to its Holocaust victims is of “profound historical and political importance,” implicating budgetary, taxation and policy priorities; these cases often involve historical artifacts that hold a unique position in local history and culture; and the United States has limited factual ties to such disputes.

The United States appears as amicus curiae in support of both countries and was granted argument time in both cases. It argued that that the D.C. Circuit erred in concluding that the FSIA leaves “no room” for discretionary international comity abstention. The United States also identified several potential harms to foreign-relations interests if comity abstention is categorically unavailable in FSIA cases, the most notable of which is that the United States will have greater difficulty persuading foreign partners to establish mediation and compensation mechanisms for human-rights violations if those schemes will receive no deference in later-filed U.S. litigation.

For their part, both sets of plaintiffs argued that Congress codified pre-existing principles of international comity in enacting the FSIA in 1976, granting or withholding immunity as principles of comity dictated. In their view, allowing comity to creep back into the FSIA’s comprehensive scheme would conflict with the FSIA’s purpose of ensuring uniform sovereign-immunity determinations based on clear legal standards, and hasten a return to the pre-FSIA regime that Congress sought to displace. Put simply, when the Act provides jurisdiction over a foreign sovereign, it is because Congress determined that international comity does not call for immunity in those circumstances. Congress left no room for application of a discretionary and atextual doctrine of international-comity-based abstention when the FSIA provides jurisdiction. The Hungary plaintiffs continue that abstention, even if it is within the court’s discretion, is not appropriate here because the United States’ has a clear foreign-policy interest in providing justice to Holocaust survivors where the Defendant State has failed to establish a mechanism for resolving such claims.

The arguments drew a number of pointed questions from the bench; a fulsome discussion of the questions posed to the advocates can be found elsewhere, but some of the more interesting exchanges were about the historical background to the FSIA and its purposeful shift of immunity determinations from the executive to the judicial branch. For instance, Justices Gorsuch and Kagan wondered whether the States’ arguments replicated the pre-FSIA days, when executive-driven sovereign immunity determinations were unpredictable. Justice Sonia Sotomayor noted that in enacting the FSIA, Congress took sovereign immunity issues out of the executive’s hands; she wondered if abstaining substitutes the judicial determination that a case does not belong in federal court for the FSIA-codified congressional determination that it does. Chief Justice John Roberts pressed the United States on why it “has scrupulously avoided taking a position” on what the courts should do in the Simon case on whether abstention is warranted, suggesting that the executive branch is expecting the courts to do the difficult and sensitive work that comity abstention requires. For further commentary on this blog regarding international comity as well as an approach to international comity abstention, see here, here, here, and here.

A decision is expected before June 2020.

This report has been prepared by Priyanka Jain, a researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg.

 

Introduction:

 

On 8-9 October 2020, ERA – the Academy of European Law – organized its Annual Conference on European Consumer Law 2020. It provided an insight into the main priorities of the new Consumer Agenda and remarks on key topics such as the impact of Covid-19 on consumer protection, the new Digital Services Act package, and the Collective redress framework in the EU with a specific focus on the new EU Directive on representative actions for the protection of collective interests of consumers. This report starts with an introduction to several presentations given by renowned scholars, followed by an overview of the recent Representative Actions Directive.

 

Day 1: The New Consumer Law Updates, digital transition, and green transition

 

The New Consumer Agenda, which presents a vision for the EU consumer policy from 2020 to 2025, builds on the 2012 Consumer Agenda (which expires in 2020) was the focus of the first panel. Massimo Serpieri (Deputy Head of Unit, DG Justice and Consumers, European Commission, Brussels) spoke about the action plan for the next five years to empower European consumers to play an active role in the green and digital transitions. She mentioned how the Agenda also addresses the need to increase consumer protection and resilience during and after the COVID-19 pandemic, which brought significant challenges affecting the daily lives of consumers.

Ursula Pachl (Deputy Director-General, BEUC – The European Consumer Organisation, Brussels) then expanded on the challenges of the COVID-19 outbreak and the need for drawing lessons from the crisis to reshape consumer protection and accelerate the digital and green transition. The core of her presentation was the inevitability of a powerful Competition Law framework for consumer choice, higher quality, and more investments, as well as the need for protecting consumers and ensuring that they have the right to object to decisions made by machines in the arena of automated decision-making.

 

Teresa Rodríguez de las Heras Ballell (Associate Professor, Carlos III University, Madrid) started the second panel of the discussion by giving a brief background on the new Digital Services Act package, a comprehensive set of rules comprising of the Digital Services Act and Digital Markets Act. They will create a safer and more open digital space, with European values at its core. With this, she addressed the need for updating the E-commerce Directive of the year 2000. The manner in which the E-commerce Directive has been implemented across the EU varies greatly, and national jurisprudence on online liability today remains very fragmented. This fragmentation has created uncertainty in the implementation regime, and it is, therefore, essential to revise the EU liability regime for online intermediaries.

Jan Penfrat (Senior Policy Advisor, EDRi – European Digital Rights, Brussels) proceeded then by highlighting the key issues raised by dominant platforms ahead of the adoption of the new Digital Services Act package. He addressed the main problems with centralized platforms, which dominate the online space, and work on the business model of providing free services in exchange of highly confidential personal data by analyzing Regulation (EU) 2019/1150 on promoting transparency for business users of online intermediation services.

The second half of the first day was dedicated to a discussion on the Green Transition and how to achieve sustainable consumption. Emmanuelle Maire (Head of Unit, DG Environment, European Commission, Brussels) started the discussion with a comprehensive overview of the European Commission’s New Circular Economy Action Plan with a focus on main proposals concerning consumers.

Guaranteeing sustainability at the pre-contractual stage was the focus of the presentation of Petra Weingerl (Assistant Professor, University of Maribor), in which she analyzed the Guidance on implementation of the Unfair Commercial Practices Directive. This was followed by the presentation of Evelyne Terryn (Professor, Catholic University of Leuven), which focused on the topic of promoting sustainable choices at the contractual stage and the “right to repair” under the Sale of Goods Directive.

A discussion was then convened on best practices of the transition to the Circular Economy, in the Member States in Belgium and France by Evelyne Terryn, Slovenia by Petra Weingerl and Sweden by Carl Dalhammar (Associate Professor, International Institute for Industrial Environmental Economics, Lund University) on the need for minimization of waste to achieve a circular economy. The following round table discussion that ensued between Eva Dalenstam (Policy Officer, Circular Economy, DG Environment, European Commission, Brussels), Carl Dalhammar, Margreeth Pape (Programme Manager, Sustainability and Logistics, Thuiswinkel.org) offered an insight into the main challenges posed in the real world while bringing the green and digital transitions together and explained ways to achieve more sustainable e-commerce.

 

 

Day 2: Recent Case Law Update of CJEU and Collective Redress

The next day’s first panel began with a presentation from Massimiliano Puglia (Legal Secretary, Court of Justice of the European Union, Luxembourg), who provided a comprehensive overview of cases involving consumer protection at the CJEU in the past year. He spoke about several important cases involving judicial cooperation in civil matters under Regulation (EU) No. 1215/2012 (C-213/18, easyJet; C-343/19, Verein für Konsumenteninformation ) and protection of consumers against unfair contract terms  C?511/17, Lintner; C?260/18, Dziubak;  C?125/18, Gómez del Moral Guasch; C-779/18, Mikrokasa and Revenue; C-81/19, Banca Transilvania).

 

Christine Riefa (Reader in Law, Brunel University, London) proceeded then with an interesting discussion on the concept of ‘vulnerable consumer’ and the lack of access to justice to such a consumer who is a weaker party in the justice system.

 

Stefaan Voet (Associate Professor, Catholic University of Leuven) was then handed the floor to reflect on the final text of the proposed Directive on representative actions for the protection of the collective interests of consumers, which is a part of the 2018 New Deal for Consumers. After providing some brief background, Stefaan Voet focused on four points of the Directive – scope of application, the cross-border element of representative actions, application of private international law, funding, and financing. He analyzed the standing of qualified entities and criteria for recognizing such qualified entities to bring a cross border action under the said draft directive. The Representative Actions Directive (Directive 2020/1828) has now been finalized and published on 25 November 2020.

 

Highlights of the Representative Actions Directive

 

The recent Directive on representative actions for protecting the collective interests of consumers repeals the earlier Injunctions Directive 2009/22/EC (hereinafter referred to as the Directive) and creates provisions for qualified representative entities, private or public entities to lodge cross-border claims. As per the said Directive, three types of representative entities shall have the standing to bring representative actions on behalf of consumers. These are private representative entities designated in advance by the Member States and placed in a publicly available list, representative bodies designated on an ad hoc basis for a specific action or particular consumer organization, and independent public bodies.

For domestic actions, Member States have to set out proper criteria consistent with the objectives of the Directive. Accordingly, all entities complying with the requirements of the Directive would have the right to benefit from its regime. The EU legislator offers some flexibility to the Member States regarding the possibility to designate entities on an ad hoc basis for bringing specific representative actions. The proposed Directive allows ‘qualified entities’ to bring actions against the infringement by traders before the competent court or administrative bodies in other Member Nations. This means that ‘qualified entities’ have standing before the competent courts or other administrative bodies in all Member Nations to file a representative action. In other words, Member States are bound to accept the legal standing of foreign ‘qualified entities’ who fulfil the requirements established by their national laws in order to take action, in case an infringement of the collective interests of consumers has a cross-border dimension. Article 4 of the Directive states that cross-border cases can be brought by entities that comply with the following criteria. It must at least have 12 months of activity in protecting consumer’s interests; it must be of a non-profit character; its statutory purpose demonstrates that it has a legitimate interest in protecting consumer interests. Additionally, it must be independent of third parties whose interests oppose the consumer interest, it must not be subject to an insolvency procedure or declared insolvent, and it must make public disclosure of the information demonstrating compliance of the above.

Additionally, qualified entities from different Member States can also join hands to file a claim before a single court having jurisdiction under relevant EU and national law. It is important to mention here that the requirements of the Directive entail that the statutory purpose of qualified entities demonstrates that they have a legitimate interest in protecting consumer interests. They must demonstrate that they have been functioning in the field of protection of consumer interests for about one year. At the same time, they must be able to bear the costs of the representative proceedings on their own and disclose that they are capable of doing so. The Member States, which designate qualified entities, shall verify whether they continue to fulfil these criteria every five years. If they fail to comply with these criteria, the Member States have the power to revoke their designation. Thus, the standard for determining the capacity of the qualified entity is now the ‘economic capability’ and not based on the litigant’s rights or moral agency. The display of economic capability will require the qualified entities to thrive in the field of consumer protection continuously, and it will not be long before collective redress actions become a means of survival of these entities.

Further, in the context of cross-border cases, Member States may also designate entities representing consumers from the different Member States. Article 6 of the said Directive allows mutual recognition of legal standing of qualified entities designated in advance in one Member State as per Article 4(1) to seek representative action in another Member State. However, it is important to note that it is yet to be seen how the Directive will be implemented in the Member States.

 

Finally, in the last presentation of the second day, Alexia Pato (Postdoc Research Fellow, University of McGill, Montreal) addressed the interplay between collective redress and general data protection regulation(GDPR) with a focus on the representation of data subjects under its Article 80. The said provision allows consumer associations to litigate on behalf of data subjects.  She also spoke about the said Representative Actions Directive and that data protection has been added into the scope of the Directive. She pointed out that it will be interesting to see how the Directive will be implemented in the Member States.

 

To sum up, this two-day event provided an up-to-date insight into the latest policy developments, legislative initiatives, and case law in the field of consumer protection, including related conflict-of-laws issues. The detailed presentations from renowned experts in this field generated a good understanding of several challenges faced by the consumer in the real world and the future consumer agenda to ensure effective consumer protection.

In an article available here and forthcoming in the University of Pittsburgh Law Review, Professor Ronald A. Brand discusses the purposeful structure of the Hague Judgments Convention and how that structure can aid the implementation and operation of the Convention in countries with existing liberal and non-discriminatory approaches to judgments recognition—like the United States. In sum, the Convention is built on a list of “jurisdictional filters” in Article 5(1) and grounds for non-recognition in Article 7; if the former is satisfied, the judgment may circulate under the Convention, subject only to the grounds for non-recognition found in the latter. However, and importantly, Article 15 allows the recognition or enforcement of judgments under national law. For countries like the United States, with very liberal existing law on the recognition of foreign judgments, Article 15 may in fact provide a more efficient, effective, and economical approach, even under the Convention. This article addresses this concept.

Written by Ulla Liukkunen, Professor of Labour Law and Private International Law at the University of Helsinki

The volume ´Employment and Private International Law´, edited by Ulla Liukkunen, has been published in the Private International Law Series (series editor: Symeon C. Symeonides)

of Edward Elgar Publishing in December 2020.

This edited collection gathers together a set of articles that address labour law and labour protection issues that are central to understanding the complex development of private international law and its tasks as well as broadening challenges of this field. The introduction by the editor, Ulla Liukkunen, Professor of Labour Law and Private International Law at the University of Helsinki, draws attention to characteristics of major developments in the field but also assesses the broader regulatory framework and challenges under way to traditional approaches. These challenges relate to both transnational labour law developments that require reassessment of the role of private international law and developments that derive from the ongoing transformation of substantive employment law itself, unfolding the limitations of protection restricted to a certain pre-determined legal status of the weaker party only.

With the legal landscape of labour protection changing, Liukkunen examines how private international law should be affected. According to her, old conceptions on which protection in private international law is traditionally based are becoming too narrow to be solely prioritized. Liukkunen discusses the importance of viewing the role private international law has assumed in the transnational dimension of collective bargaining and employee participation. Especially in the EU, regulatory approaches have been adopted that use private international law rules in a coordinative way so that labour rights can be upheld despite the pressures of the market.

The particular role of private international law as the ´mediator´ between labour law and company law in EU legislation reflects the expanding materialization of private international law. According to Liukkunen, it also relates to the use of conflicts law in order to enable establishment of transnational institutional structures that reduce obstacles to private regulatory authority. Moreover, the article analyses private self-regulation and related governance structures from the perspective of private international law, stressing a need for response to collisions posed by transnational normativities involved.

 

Written by Richard Mike Mlambe, Attorney and Lecturer at University of Malawi- The Polytechnic

This is the third online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomics.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, and second symposium was published by Anthony Kennedy. More blog posts on this online symposium will follow this week.

Introduction

The Nigerian private international law (hereinafter PIL) regime is significantly influenced by the common law. As a result, the common law plays a major role in providing the applicable rules on the recognition and enforcement of foreign judgments.[1] Like in many other common law jurisdictions, Nigerian courts recognize and enforce foreign judgments only if, in the eyes of Nigerian PIL, the foreign court had jurisdiction to render the judgment in question.[2] The recognized bases of jurisdiction are submission, residence and presence of the defendant within the foreign country.[3] This is also the position in other common law countries such as South Africa[4], Australia[6]and Malawi.[7]

As a result of the foregoing, Nigerian courts would refuse to recognize and enforce a judgment of a foreign court where the defendant was not present/resident in the foreign country and did not submit to its jurisdiction.[8] It must be emphasized that once the court finds that none of the above grounds is established, then the foreign court is deemed not to have possessed jurisdiction regardless of any connection that the parties or the transaction in issue may have had with the foreign country.

 

Nigerian and Canadian PIL

Okoli and Oppong have observed as follows:

“It is open to question whether the existing recognised bases of international competence – residence, presence, and submission – are adequate for the current international climate of increased trade, movement of persons, and transnational relationships. From a comparative perspective, Canadian courts have applied the real and substantial connection test. This basis   requires that a significant connection exist between the cause of action and the foreign court. Such a connection could include the fact that the cause of action arose in the jurisdiction of the foreign court, or that jurisdiction was the place in which the contractual obligation was to be performed. The ‘real and substantial connection’ test has not found favour outside Canada, and the test has been the subject of academic criticism.”[9]

Under Canadian PIL, the traditional common law principles are recognized such that a foreign court will be deemed to have jurisdiction if the defendant submitted to the jurisdiction of that court[10] or where the defendant was resident[11] or present[12] in the territory of the foreign court. In addition to these bases, the foreign court’s jurisdiction will be recognized where there was a real and substantial connection between the matter and the foreign court.[13] The real and substantial connection test entails that a Canadian court can recognize and enforce a foreign judgment that was delivered in circumstances where the defendant was not physically present in the jurisdiction when served with the originating process, as long as a real and substantial connection between the case or the parties and that foreign jurisdiction exists. This is therefore an additional ground of jurisdiction to the traditional common law grounds obtaining in Nigeria and other common law jurisdictions.

While Nigerian courts insist on the physical presence/residence of the defendant in the foreign territory[14]Canadian courts will go further to determine if there was a real and substantial connection between the matter and the foreign forum. This paper discusses the differences in the two approaches in view of their impact on the interests of justice between the parties, and suggest, with reasons, that Nigeria and the rest of the common law should derive lessons from Canadian PIL.

 

Discussion

This paper acknowledges that the requirement of presence of the defendant in the territory of the foreign court at the time of service ensures that the proceedings are conducted in accordance with the principles of natural justice. If the defendant was not present, the necessary originating processes may fail to reach him, or at least in good time, so as to have sufficient time to defend his case.[15]

However, the fact that in Nigerian a court may be satisfied that the foreign court had jurisdiction merely by virtue of the defendant’s presence therein, without more, is not satisfactory. Firstly, such an approach enables recognition of a foreign judgment that was rendered by a court that was not connected, or at least sufficiently connected, to the case, and therefore an inappropriate court. As a result, the international jurisdiction of a court that has no connection at all with the case or the parties would be established simply because the defendant happens to have been present within that country, no matter how brief the stay may have been in that country. This may encourage forum shopping.[16] The plaintiff may deliberately institute proceedings in a court that is not connected to the case and therefore inappropriate, knowing that the resulting judgment will be accorded recognition and enforcement in Nigeria. Actually, it is this paper’s view that if this is to be followed to its ultimate logical conclusion, then any country in the world has jurisdiction to render a judgment capable of recognition in Nigeria and other common law countries as long as the originating process was served on the defendant within its territory regardless of how little, if any, is that jurisdiction’s connection to the case.[17] We do not believe that such a result is consistent with the ends of justice.[18]

 

Secondly, the insistency on the presence of the defendant in the foreign court practically means that an unscrupulous defendant is at liberty, at the first hint of a dispute, to prevent the plaintiff from getting a judgment capable of recognition in England merely by leaving the natural and appropriate jurisdiction in which the plaintiff may institute proceedings against him. Much as the plaintiff may still initiate the proceedings against the defendant and service be effected in accordance with the procedure for service out of jurisdiction, this paper’s view is that as long as the plaintiff would be unable to secure recognition and enforcement of that judgment on the ground of the defendant’s absence from the jurisdiction, the plaintiff’s right to access to justice and legal remedies would be infringed.[19]

Actually, in our view, the injustice occasioned by the insistence on the presence of the defendant as a necessary and sufficient condition as far as jurisdiction is concerned, may be suffered not only by the plaintiff but also by the defendant. The plaintiff, as stated in the preceding paragraph, may be unable to enforce a judgment that was obtained in a country that is very appropriate forum as long as the defendant was not present, notwithstanding his right to access to justice and effective remedies.[20] On the part of the defendant, a Nigerian court may recognize and enforce a foreign judgment rendered by a court that was not in any material way connected to the case.[21] It is our view that considerations such as these necessitate a revision in the common law approach to presence as a ground of jurisdiction for purposes of recognition and enforcement of foreign judgments.[22]

Under Canadian PIL, a foreign judgment will be enforced against a defendant who was not present within the territory of the foreign forum provided that there was a real and substantial connection between the matter and the forum.[23] Further, it must be noted that the Canadian court will ensure that the rights of the defendant were protected and that the proceedings were conducted in accordance with the principles of natural justice.[24] Put precisely, the courts will require the judgment creditor[25] to satisfy them that the defendant was aware of the proceedings against him through proof of service. The real and substantial connection test therefore enables the plaintiff to have the judgment enforced in circumstances where the court properly exercised jurisdiction even if service was not effected on the defendant within the foreign court’s territory. In this case, the plaintiff’s fundamental right to access to justice and legal remedies as well as the defendant’s right to be duly served with the originating process and to have sufficient time to defend his case are both served.[26]

There are two points that need to be made here. Firstly, under Nigerian PIL, provision is made for service outside jurisdiction if the defendant is not present within the jurisdiction and the case is sufficiently connected with Nigeria and it is the appropriate forum for hearing the case.[27] It can be argued, therefore, that if Nigerian law recognizes that there are circumstances under which courts can properly exercise jurisdiction against a defendant who is not within the jurisdiction and was actually served out of jurisdiction with originating process, why should they not accept that other courts can also exercise jurisdiction under the same circumstances and therefore be able to recognize and enforce judgments rendered by foreign courts under similar circumstances?[28]

Secondly, it must be stated that Nigerian courts are able to decline jurisdiction, when called upon to hear a case, if upon considering all relevant factors, they form the view that another forum exists with jurisdiction and is the more appropriate forum.[29] However, when a judgment is brought for recognition in Nigeria, Nigerian courts would not examine the appropriateness of the foreign court and would recognize that judgment even if the case was not in any way connected to that jurisdiction as long as the defendant’s presence is established. Why should the Nigerian courts, and indeed the courts in other common law jurisdictions, be able to recognize that jurisdiction should be exercised when it is appropriate to do so in the interest of justice when they are asked to hear a case, and then take a very different approach when it comes to recognition of foreign judgments so that they end up recognizing judgments rendered by forums that would be deemed appropriate?[30]

It is submitted that refusal to recognize and enforce foreign judgments by common law courts on the basis of the defendant’s absence from the foreign court, even when the matter was sufficiently connected to that foreign court, is an affront to the ends of justice in international litigation and is not in accordance with the realities of international commercial life. The approach of the Canadian courts through the adoption of the ‘real and substantial connection’ test is commendable. This paper laments that Nigeria and other common law jurisdictions have not joined Canada in this positive direction. An opportunity arose in Malawi, another common law jurisdiction, to modernize her international civil procedure when the Courts (High Court) (Civil Procedure) Rules (2017) were enacted. There is no provision at all with regard to recognition and enforcement of foreign judgments, which leaves the common law regime unchanged. One can only express regret at this missed opportunity.

 

Conclusion

It has been seen that presence of the defendant in the foreign jurisdiction is a basis of jurisdiction of the foreign court for a judgment rendered by that court to be recognized and enforced in Nigeria. In Canada, it is also a recognized basis of the jurisdiction of the foreign court but a foreign judgment may be recognized even when the defendant was not present in the foreign country as long as a real and substantial connection exists between the matter and the foreign jurisdiction.

This paper is of the view that the insistence of the common law on the presence of the defendant in the foreign country leads to injustices in circumstances where recognition is accorded to a judgment having been delivered in a foreign forum that was not appropriate, on one hand, or when a foreign judgment is refused recognition where it was rendered by an appropriate court merely on the basis of the defendant’s absence from the foreign jurisdiction, on the other hand. It is therefore submitted that Nigeria and the rest of the common law should join Canada in applying and developing a test that prevents presence or absence of a defendant from undermining the ends of justice in international litigation and, in particular, in the recognition and enforcement of foreign judgments.

[1] See Richard Frimpong Oppong Private International Law in Commonwealth Africa (Cambridge University Press) 2013 p. 313.

[2] Nigeria law has both a statutory and common law regime for the enforcement of foreign judgments. In this paper, the focus is exclusively on the common law regime. Further, this paper focuses on jurisdiction as a condition of the recognition and enforcement of the foreign judgment and the other conditions (such as finality of the foreign judgment) are not addressed.

[3] Oppong (n1 ) 320.

[4] Richman vBen Tovim, SCA [2006] 148, [2007] (2) SA 283

[5] Burham vSuperior Court of California, 495 US 604; and Born, Rutledge and Kluwer International Civil Litigation in United States Courts (2011) 1120.

[6] Herman vMeallin (1891) 8 WN (NSW) 38.

[7] Malawi also has both a statutory and common law regime for the recognition and enforcement of foreign judgments.

[8] Submission is established either through choice of forum agreements or where he defendant pleads to the merits of the case without contesting jurisdiction which the court otherwise did not have.

[9] Chukwuma Samuel Adesina Okoli and Richard Fimpong Oppong Private International Law in Nigeria (Bloomsbury publishing) 2020 p 353.

[10] Richardson v Allen (1916), 28 D.L.R. 134 (Alta S.C. (A.D.))

[11] First Hawaiian Bank v Smith, [1999] A.J. No. 643, 245 A.R. 148 (Alta Q.B.).

[12] Royal Bank of Canada v Industmarine Ltd., [1982] B.C.J. No. 2365. The constitutionality of mere presence as a ground of jurisdiction is however a controversial issue in Canada.

[13] Morguard Investment Ltd v De Savoye, [1990] S.C.J, No.135, 76 D.L.R. (4th) 256 (S.C.C.). This is a landmark and revolutionary decision that marked a departure from the refusal of recognition of foreign judgments if the defendant was absent from the jurisdiction of the court that delivered the judgment. The court felt that time had come to take a different approach to recognition and enforcement of foreign judgments. Indeed the principles laid down in this case have been confirmed in the subsequent case law of the Supreme Court of Canada, most notably, in Beals v Saldanha (2003) 3 SCR 416.

[14] Assuming that the defendant did not submit to the jurisdiction of the foreign court

[15] See Castel Conflict of Laws Cases, Notes and Materials (1968) 956 where the author actually states that the question of whether a court should have jurisdiction to entertain actions against absent defendants and give judgments which though effective territorially can be recognized in other jurisdictions is a policy issue not for the courts, thereby suggesting (it is submitted) that the court should be slow to render recognition to such judgments except where by legislation they are empowered to do so.

[16] See Tilbury, Davies an Opeskin Conflict of Laws in Australia (2002) 139 where the learned authors write: “A party engages in forum shopping when it seeks to litigate its case in a forum has little genuine connection with the court or the parties. Both plaintiff and defendant may influence the forum in which a case is tried, but the plaintiff is usually better able to do so”.

[17] See Collins (ed) Dicey, Morris and Collins on the Conflict of Laws (2012) 693 who seem to justify mere presence as a ground of jurisdiction on the basis of the temporary allegiance owed by the defendant to the local sovereign.

[18] See Ehrenzweig The Transient Rule of Personal Jurisdiction; The “Power” Myth and Forum Conveniens in Jurisdiction and Private International Law (2014) 565.

[19] It is therefore respectfully submitted that this may amount to a denial of the right to legal remedies and redress by preventing the plaintiff from enforcing the judgment. See generally Grosvenor Casinos Ltd v Ghassan Halaoui (2009 ) 10 NWLR 309.

[20] See TC Hartley International Commercial Litigation Texts, Cases and Materials in Private International Law (2015) 406. The learned author states that actually as far as English courts are concerned, if the defendant was absent from the jurisdiction in question, the fact that a contract was breached in that foreign country or that the tort was committed there does not suffice to confer jurisdiction on the foreign court.

[21] This means that the plaintiff may benefit from his forum shopping.

[22] Indeed the consideration of the injustices occasioned by the traditional common law principles convinced the Supreme Court of Canada to adopt the real and substantial connection test.

[23] See n 13.

[24] If the plaintiff fails to show that the principles of natural justice were adhered to the court will refuse recognition of the foreign judgment.

[25] Usually the plaintiff

[26] It is the submission of this paper that this is the approach that is in accord with the nature of private international law because it is based on the recognition that the parties will not always be physically present in the same jurisdiction when causes of action arise between them. The real and substantial connection test, in the view of this paper, is a recognition of this reality.

[27] See, for example, High Court of Kaduna State (Civil Procedure) Rules 2007, Ord. 8, r. 1)

[28] In other words, why should Nigerian court be able to exercise jurisdiction when they are not ready to recognize the judgments rendered by foreign courts under the same circumstances?

[29] The doctrine of forum non conveniens. On this doctrine in general see Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460.

[30] In other words, why should the Nigerian court recognize that there are circumstances under which they may not be the appropriate forum for the trial of certain cases and decline to do so, and fail to recognize that the same may be the case in other jurisdictions and only regard mere physical presence of the defendant in the foreign territory as conclusive, no matter how improper the exercise of jurisdiction may have been in the foreign court?

 

A new development in Poland concerning the legal situation of children born to same-sex couples, including through surrogacy, is worth mentioning.

The current state of affairs in this area in Poland was illustrated earlier on this blog, and here on Conflictoflaws. As explained in these posts, Polish authorities and administrative courts tend to object to the transcription into Polish civil status registry of a foreign birth certificates indicating persons of the same sex as parents. This results in practical complications in everyday life of the family, for example when parents apply for an ID cards for their children.

In one of such cases, the Regional Administrative Court in Kraków decided on 9 December 2020 to submit the following preliminary question the Court of Justice of the EU (III SA/Kr 1217/19, in Polish):

Should Article 21(1) in connection with Article 20(2)(a) of the Treaty on the Functioning of the EU in connection with Article 7, Article 21(1) and Article 24(2) of the EU Charter of Fundamental Rights be interpreted in such a way that it precludes the authorities of an EU Member State, whose nationality a child holds, from objecting to the transcription of the birth certificate issued in another Member State, indispensable for the issuance of the identity card of the Member State of the child’s nationality, on the ground that its national law does not provide for same-sex parentage, whereas the birth certificate indicates persons of the same sex as parents?

The referring court asked that the matter be dealt with under an urgent procedure, since the interests of a child are at stake.

In the case at issue, a child was born in Spain to two women, one of Polish and the other one of Irish nationality. The Spanish birth certificate indicates both women under the heading Mother A and Mother B as parents. The women were legally married in Ireland. The child does not have either Spanish or Irish nationality (the reason for that is not explained in the decision), so parents wanted the birth certificate to be transcribed into Polish civil status register asa a precondition to apply for an ID card and a passport. Administrative authorities, referring to the quite settled jurisprudence of the Administrative Supreme Court, rejected this application explaining that such transcription would be contract to public policy (ordre public).

The information about this case was released on the official website of the Polish Ombudsman (here), who intervened in the case and submitted that CJEU should have its say on the matter, given that EU law, including as regards the free movement of persons, is involved.

The Court of Justice delivered last week (10 December 2020) its judgment in case C‑80/19 (A. B., B. B. v Personal Exchange International Limited), which is about Brussels I. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

“L’article 15, paragraphe 1, du règlement (CE) no 44/2001 […] doit être interprété en ce sens qu’une personne physique domiciliée dans un État membre qui, d’une part, a conclu avec une société établie dans un autre État membre un contrat pour jouer au poker sur Internet, contenant des conditions générales déterminées par cette dernière, et, d’autre part, n’a ni officiellement déclaré une telle activité ni offert cette activité à des tiers en tant que service payant ne perd pas la qualité de « consommateur » au sens de cette disposition, même si cette personne joue à ce jeu un grand nombre d’heures par jour, possède des connaissances étendues et perçoit des gains importants issus de ce jeu ».

Source : http://curia.europa.eu/juris/document/document.jsf;jsessionid=58831D1B50FE81EB65264CF9F4A957CD?text=&docid=235347&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=18043820

The Minerva Center for Human Rights at Tel Aviv University will host an  international socio-legal (zoom-) workshop on 22-23 June 2021 to explore the impact of the Covid-19 crisis and its regulation on cross-border families:

Cross-border families (also known as transnational and globordered families) are a growing and diverse phenomenon. People around the globe create bi-national spousal relations, are assisted by cross-border reproduction services, or by a migrant care worker who provides care for a dependent family member. Likewise, families become cross-bordered when one of the parents relocates, with or without the child, or when a parent abducts the child. In addition, increasing rates of forced or voluntary migration create more and more cross-border families, with different characteristics and needs. While some kinds of cross-border families have attracted the attention of legal scholarship, other kinds are still neglected, and much is yet to be studied and discussed regarding the challenges embedded in the attempt to secure the right to family life in the age of globalization.

The global Covid-19 crisis provides more, and alarming, evidence of the socio-legal vulnerabilities of cross-border families. For example, bi-national couples are separated for long periods of time; intended parents are unable to collect their baby from the country of the surrogate; and families assisted by a migrant care worker, the workers, and their left behind families, are entangled in new complex relations of power and dependency. Likewise, the right to heath is at risk when a family member is denied treatment because of partial citizenship status, and questions such as the enforcement of child support across borders are even harder to address than in more peaceful times.

Crises, such as the Covid-19 pandemic, are often a methodological opportunity for socio-legal research. In many cases, a major social crisis shakes habitualization, and opens up taken for granted social scripts to individual and collective reflection. Likewise, such a crisis involves risk regulation and, in the current case, also plague governance—involving intense emergency regulative changes made by different nation-states that might both reveal and challenge deeply shared norms regarding familial rights and national interests. Hence, our current era lends itself more readily than stable, routinized periods to the investigation of current regulation, and the imagining of options for new regulation regarding cross-border families.

On 22-23 June 2021, we plan an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. We hope to explore the ways Covid-19 restrictions affect cross-border families, and the role of the law, in different countries, in shaping this impact and in challenging it.

The questions during the workshop might include, but are not limited to:

• How does the Covid-19 crisis affect cross-border families?
• How do legal Covid-19 restrictions affect cross-border families?
• Did national jurisdictions adapted their substantial and procedural laws to meet the challenges faced by cross-border families during the pandemic?
• What can be learned from comparing different jurisdictions in their response to cross-border families’ needs during the pandemic?
• What can be learned about the interrelations between globalization, borders, families, and the law, from this crisis?
• What are the lessons to be learned from the pandemic on how can national, regional and international law be developed to better protect the rights of cross-border families, and those involved in their creation and everyday familial doing, in times of crisis and in more stable times?

Confirmed Keynote Speaker: Prof. Yuko Nishitani, Kyoto Univiertys Law School

The workshop will be conducted via Zoom, and is sponsored by the Minerva Center for Human Rights at Tel Aviv University. It will be open to the public, and hopefully, will set the foundations for further multinational research and collaboration.

We will give serious consideration to all high-quality relevant research, from any discipline. Work in progress is welcome, as long as the presentation holds new findings or insights and not only declaration of intent. Faculty members as well as independent researchers and advanced research students are welcome to submit.

The screening process for the workshop will include two phases:

Phase I – Abstract: 

Abstracts should include:

• An overview of the main question and arguments of your contribution (up to 500 words)
• Key words
• Contact details [author(s), affiliation (including institute and department), and e-mail address]
• Short bio of author/s (up to 250 words, each)

Abstracts must be in English and be submitted to this email address: eynatm@media-authority.com

Deadline for submission: 28 February 2021.

Phase II – Summary:

Those who’s abstract will be accepted, will be notified by 31 March 2021 and will be asked to submit a 3-pages summary of their paper by 20 April 2021. Accepted papers will be presented at the workshop. Presenters are expected to take part in all the workshop’s sessions.

Academic Organizers:

Prof. Daphna Hacker, Law Faculty and Gender Studies Program, Tel Aviv University; Prof. Paul Beaumont, Law Faculty, University of Stirling; Prof. Katharina Boele-Woelki, Bucerius Law School, Hamburg; Prof. Sylvie Fogiel-Bijaoui, The College of Management Academic Studies; Dr. Imen Gallala-Arndt, Max Planck Institute for Social Anthropology; Dr. Sharon Shakargy, Faculty of Law, Hebrew University; Prof. Zvi Triger, Law School, The College of Management Academic Studies

On 18 and 19 March 2021, the third German Conference for Young Private International Law Scholars will be held at the Max Planck Institute for Comparative and International Private Law in Hamburg (via Zoom). The conference is dedicated to the question “PIL for a better world: Vision – Reality – Aberration?” The programme, as well as further information on how to register, can be found here. Twitter: @IPR_Nachwuchs

Ness Global Services Ltd v Perform Content Services Ltd [2020] EWHC 3394 (Comm)  engages Articles 33-34 of the Brussels Ia Regulation, its so-called forum non conveniens light regime. I reported on it before of course, most recently re Municipio de Mariana in which the judge arguably failed to engage with BIa properly (making A33-34 a carbon copy of abuse and /or forum non arguments in my view is noli sequi).

Perform and Ness are UK-registered companies with offices in London.  Perform are defendants in the UK action. Ness Global Services and its parent Ness Technologies Inc are defendants in parallel proceedings in New Jersey. Both sets of proceedings are based on the same facts and matters. These are said to constitute the basis for termination by both sides of a written agreement.

Ness argue application of A33-34 must be dismissed for there is non-exclusive choice of court in favour of England which, it argues, makes the A33-34 threshold very high. (The clause reads ‘”Governing Law and Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the Courts of England and Wales as regards any claim, dispute or matter arising under or in connection with this Agreement.”)

Houseman J introduces BIa’s scheme clearly and concisely, using the excellent Adrian Briggs’ suggestion of there being a hidden hierarchy in the Regulation – which in my Handbook I have also adopted (clearly with reference to prof Briggs) as the ‘jurisdictional matrix’. Houseman J at 39 notes that non-exclusive jurisdiction is hardly discussed in the Regulation. and concludes on that issue ‘If the internal hierarchy is “hidden” then is fair to say that the concept of non-exclusive prorogated jurisdiction is enigmatic and elusive. It is The Scarlet Pimpernel of the Regulation.’ Later non-EJA is used as shorthand for non-exclusive jurisdiction agreement.

At 62 after consideration of the reflexive application of exclusive jurisdictional rules, including choice of court, the text of A33-34, and recital 24, the judge considers that the recital

focusses upon connections with the ‘first seised’ Non-Member State, rather than the ‘second seised’ Member State which is applying Article 33 or Article 34. This is conspicuous notwithstanding the fact that the jurisdictional gateway language presupposes some connection between either the defendant (domicile) or the circumstances of the case (special jurisdiction) and the ‘second seised’ forum. Further, there is no obvious room in this wording for accommodating or giving effect to a Non-EJA in favour of the courts of the latter forum, and no warrant for affording it the significance that it would receive under English private international law principles, as noted below. In contrast, the second paragraph of the recital appears to contemplate the conferral of exclusive prorogated jurisdiction (albeit reflexively) in favour of the ‘first seised’ Non-Member State, as noted above.

At 80, Houseman J emphasises that in his view the internal hierarchy of the Regulation (the matrix) has no direct role to play in interpreting or applying the gateway language in A33-34. Those articles are themselves part of such hierarchy and are themselves a derogation from the basic rule of domiciliary jurisdiction. He then refers in some support to UCP v Nectrus (reference could also have been made to Citicorp) to hold at 95 that

where Article 25 operates to confer prorogated jurisdiction upon the courts of the ‘second seised’ Member State, whether exclusive or non-exclusive, Articles 33 and 34 are not applicable. In such a case it cannot be said that the court’s jurisdiction is “based upon” Article 4.

A suggestion at 96 that in such case A33-34 can apply reflexively is justifiably rejected.

At 109 application of A33-34 had they been engaged is declined obiter as being not in the interest of proper administration of justice. At 107 mere reference, neither approving nor disapproving was made ia to Municipio de Mariana which effectively places the Articles on a forum non footing.  At 112 it is held obiter

Without engaging in a full granular balancing exercise, given that this is a hypothetical inquiry in the present case, I am not persuaded that it is or would have been necessary for the proper administration of justice to stay these proceedings in favour of the NJ Proceedings. The parties bargained for or at any rate accepted the risk of jurisdictional fragmentation and multiplicity of proceedings by agreeing clause 20(f). That risk has manifested, largely through the tactical choice made by Perform to commence proceedings pre-emptively in New Jersey. The continuation of these proceedings, notwithstanding the existence of the NJ Proceedings, is a foreseeable consequence of the parties’ free bargain and a risk that Perform courted by suing first elsewhere.

An interesting addition to the scant A33-34 case-law, in an area this time of purely commercial litigation.

Geert.

European Private International Law, 3rd ed. 2021, 2.539 ff.

Application (dismissed) for a stay on the basis of Articles 33-34 Brussels Ia, 'forum non conveniens light'. https://t.co/gwl3B5y3hl

— Geert Van Calster (@GAVClaw) December 11, 2020

 

Written by Anthony Kennedy, Barrister at Serle Court

This is the second online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong. More blog posts on this online symposium will follow this week.

Introduction

Authority exists for the proposition that a creditor of a foreign judgment may bring an action at common law in Nigeria, by which action he, in effect, seeks recognition and/or “enforcement” of that foreign judgment[1]. The common law action has not been abolished by statute or disapproved judicially but, sadly, it is not widely understood or used by practitioners/courts in Nigeria. This is unfortunate, especially where the statutory mechanism[2] for the enforcement of foreign judgments is certainly limited but otherwise shrouded in confusion[3]. This paper argues for a reawakening of the common law action.

 

The construction placed on the statutory regime

It is impossible properly to assess the scope for the common law action in Nigeria without first addressing the statutory mechanism for the enforcement of foreign judgments. The common law action only works in the space which has been left for it by the applicable statutory regime. Moreover, tactically, judgment creditors are likely to favour registration of the foreign judgment  under that statutory regime, where such registration is permitted, given the “better protection” which such regime affords them, at least theoretically, when compared with the common law[4].

With that in mind, the authorities yield the following propositions:

1. the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 (the ‘1922 Ordinance’) is still in force and applies to those jurisdictions to which it was extended by Proclamation prior to the passing of the Foreign Judgments (Reciprocal Enforcement) Act 1961[5] (the ‘1961 Act’);

 

2. the provisions of the 1961 Act only come into effect upon the making of an order by the Minister of Justice (pursuant to Section 3 of the 1961 Act)[6] and no such order has yet been made; but

 

3. notwithstanding proposition 2, Section 10(a) of the 1961 Act does have effect, thereby providing the time limit within which the application to register a foreign judgment in Nigeria must be made[7]. Moreover, Section 10(a) of the 1961 Act applies even where the foreign judgment is from a jurisdiction to which neither the 1922 Ordinance nor the 1961 Act has been extended[8].

 

Difficulties generated by the legal profession’s approach to proposition 1

Proposition 1 holds, it is submitted, and, of itself, generates no difficulty for the continued existence and/or growth of the common law action. That said, the legal profession’s approach (and that of the courts) to proposition 1 has been problematic.

Two points are worth making here; both are demonstrative of problems which beset the current state of the law. First, insufficient attention has been paid to the consequence of proposition 1, meaning that its import has not been fully understood. This may, of course, be the result of practitioners and judges concentrating on establishing and endorsing proposition 1 (which process is still ongoing, given the difficult relationship between proposition 1 and proposition 3[9]). Even so, difficulty remains. By way of example: Section 3(1) of the 1922 Ordinance provides that an application for registration be made “at any time within twelve months after the date of the judgment, or such longer period as may be allowed by the court…” (italics added). Where one would have expected argument as to why the court should have, in the legitimate exercise of its discretion, extended the time within which the application could be made, one finds none[10]. A chance to establish when a judgment creditor might appeal to the court’s discretion[11], and, correlatively, when he might have to fall back on the common law action, has been missed.

The second point follows from the first. While, as noted, tactically less advantageous than registration under the statutory regime, Section 3(4) of the 1922 Ordinance allows a judgment creditor to bring an action at common law on the foreign judgment, rather than have it registered under the 1922 Ordinance itself[12]. In circumstances where courts have not heard substantial argument on the Section 3(1) discretion and/or have exhibited a hostile attitude towards extending the time within which to make the application for registration[13], one would have expected a much greater role carved out for the common law action; one remains disappointed. And doubly so because, while not free from all controversy[14], the common law action may be brought within a longer period of time than the 1922 Ordinance permits (if one discounts the fact that the court may, at its discretion, extend time thereunder). At a stroke – so long as the judgment debtor could demonstrate that the other requirements had been met[15] – reliance on the common law action would remove the judgment creditor’s need to act as swiftly as the 1922 Ordinance has been made to require[16].

 

Difficulties generated directly by proposition 3

The language in which Section 10(a) of the 1961 Act is couched gives rise to similar problems as those described when dealing with the first point under the previous sub-heading. Leaving those to the side, it is the second sentence of proposition 3 which poses the most significant risk to the continued life (such as it is) of the common law action in Nigeria. If “registration” is contemplated (or somehow required) when dealing with judgments from jurisdictions to which the statutory regime has not been extended, the common law action (which has nothing at all to do with “registration” of a foreign judgment) is rendered completely useless[17].

Several cases may be cited which combine to paint a rather gloomy picture in this regard. Teleglobe America Inc v 21st Century Technologies[18]is, as far as one can tell, the judiciary’s first (and so most egregious) brushstroke but others have since been added[19]. Taken collectively, they suggest that there is no room left for the common law action, even though there is Supreme Court authority which suggests that the statutory regime was not designed to kill it off.

To be sure, the statutory regime, properly construed, applies only to foreign judgments from a narrow field of jurisdictions. If this is thought to be a problem, the answer does not lie, it is submitted, in a distorted interpretation and application of that statutory regime. Supplementing (a narrow) statutory regime by allowing a judgment creditor to resort to the common law action makes sense: it recognises that the necessary reciprocity which underpins the statutory regime is absent in the majority of circumstances while, at the same time, preserving the judgment creditor’s ability to obtain the debt which the judgment debtor is said to owe, at least in circumstances where Nigerian legal policy (as set out in the rules which govern the common law action) thinks that he should. Judgments which treat this idea with kindness, or at least do not dismiss it out of hand, are to be welcomed[20].

 

 

Difficulties generated indirectly by proposition 3

If proposition 3’s formulation is the product of perceived problems either with the statutory regime or the common law action itself, that is most unfortunate. For, rather than alleviating those problems, proposition 3 rather ensures that they will continue, at least until action on the part of the legislator (which action appears to be some way off).

Removing the common law action from view means that the rules which govern that common law action cannot be changed by the judiciary (which change might allow certain kinks within those rules to be ironed out). To be sure, the common law world has not stood still in relation to the enforcement of foreign judgments: interesting questions remain to be explored. For instance, there is ongoing debate as to the circumstances in which a foreign court should be accorded international jurisdiction over the judgment debtor[21] and different views have been expressed regarding whether the common law may be used to enforce judgments from supra-national tribunals[22]. Consideration of these questions in Nigeria has been stymied by the side-lining of the common law action.

Perhaps even more importantly, with an eye to the future, deliberately obscuring the common law action prevents one from taking a clear view of the current Nigerian legal system, insofar as it relates to the enforcement of foreign judgments, and so, in turn, prevents an assessment of the merits of signing up to international projects, like the recent (and still draft) Hague Convention on Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. The answer to such questions is of supreme importance if Nigeria wishes to attract (legal) business from the continent as a whole. Those answers must be reached using all of the information available, which is why the common law action must somehow be revived.

 

 

 

 

 

 

[1]Alfred C Toepfer Inc v Edokpolor (1965) NCLR 89. More recently, see: Wilbros West Africa v Mcdonnel Contract Mining Ltd (2015) All FWLR 310.

[2] The overarching statutory regime for enforcement of foreign judgments comprises the Reciprocal Enforcement of Foreign Judgments Ordinance 1922 and the Foreign Judgments (Reciprocal Enforcement) Act 1961.

[3] Olawoyin, Enforcement of Foreign Judgments in Nigeria: Statutory Dualism and Disharmony of Law (2014) 10 JIPL 129, 140.

[4]CSA Okoli and RF Oppong, Private International Law in Nigeria (Hart, 2020) 360.

[5]Macaulay v RZB of Austria (2003) 18 NWLR 282.

[6]Marine & General Assurance Company Plc v Overseas Union Insurance Ltd (2006) 4 NWLR 622; Grosvenor Casinos Ltd v Ghassan Halaoui (2009) 10 NWLR 309.

[7]Witt & Busch Ltd v Dale Power Systems PLC (2007) 17 NWLR 1.

[8]Teleglobe America Inc v 21st Century Technologies Ltd (2008) 17 NWLR 108.

[9]VAB Petroleum Inc v Momah (2013) 14 NWLR 284.

[10] By way of example, see Macaulay, supra fn. 5, and Marine & General, supra fn. 6.

[11] For a recent example of when an English court might be likely to exercise a similar discretion, see: Berhad v Frazer-Nash Research Ltd[2018] EWHC 1848 (QB).

[12] Though, where he does so, he is subject to a costs penalty where the conditions in Section 3(4) of the 1922 Ordinance are not satisfied.

[13] See the cases cited supra fn. 10.

[14] Compare, for instance, the competing views of the proper period of limitation as expressed by Olaniyan, The Commonwealth model and conundrum in the enforcement of foreign judgement regime in Nigeria, (2014) Commonwealth Law Bulletin, 40:1, 76, 88 (who seemingly advocates a standard 12 year time limit) and Okoli and Frimpong Oppong “Private International Law in Nigeria”(Hart Publishing, 2020), at 358-359 (who state that it depends on the state of Nigeria in which the action is brought).

[15] As to which, see Okoli and Frimpong Oppong, supra fn. 14 at 351-358.

[16]In this respect, Ogbuagbu JSC’s judgment in Grosvenor, supra fn. 6, at 334-335 is particularly disappointing. See: Okoli and Frimpong Oppong, supra fn. 14, at 373.

[17] See, to similar effect, Olaniyan, supra fn. 14, 88.

[18]Supra fn. 8.

[19] See, inter alia, African Reinsurance Corp v Gilar Cosmetic Store (2010) All FWLR 1194 (concerning a judgment from Liberia) and Obasi v Mikson Establishment Industries Ltd (2016) 16 NWLR 335 (concerning a judgment from Niger).

[20]Wilbros, supra fn. 1. Even there, however, Counsel took great pains to say that this was not an attempt to enforce a foreign judgment and the reasoning of the court in relation to that submission is not always easy to understand.

[21] Compare the position adopted by the Supreme Court of Canada in (originally)Beals v Saldanha 2003 SCC 72 and (more recently) Club Resorts Ltd v Van Breda [2012] 1 SCR 572 with that of the English Supreme Court in Rubin v Eurofinance SA [2012] UKSC 46.

[22] Compare the decision of the South African Constitutional Court in Government of the Republic of Zimbabwe v Fick [2013] ZACC 22 with that of the Ghanaian Supreme Court in Republic v High Court (Commercial Division) Accra, ex parte AG NML Capital and Argentina, Civil Motion No J5/10/2013. For a Nigerian perspective, see: Adigun, Enforcing ECOWAS judgments in Nigeria through the Common Law Rule on the Enforcement of Foreign Judgments (2019) 15 JIPL 130.

Directive (EU) 2020/1828 of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC was published on 4 December 2020 (OJ L 409/1).

It consists of 79 recitals, 26 provisions (some of them actually looking as recitals, and vice-versa), and two Annexes, the second being a correlation table of provisions – to my mind, a good lawmaking practice. It will enter into force on the twentieth day following that of its publication in the Official Journal of the European Union; transposition shall be ready by 25 December 2022; the national measures will apply from 25 June 2023.

The Key Features of the Directive in a Nutshell

The Directive is based  on Article 114 TFEU (see nevertheless Recital 76, arguing that the intervention of the EU is necessary due to the relevance of the cross-border element).

Having regard to its overarching objective, the Directive joins the group of measures aiming simultaneously at the protection of the consumer, the promotion of fairer competition and the creation of a level playing field for traders operating in the internal market (in other words, this piece of legislation has not been conceived only for the sake of consumers; therefore, it is here submitted that it should not be interpreted only with them in mind).

The Directive  takes up the failures of precedent legal acts in relation to the enforcement of consumer law, particularly Directive 2009/22/EC on injunctions for the protection of consumers’ interests. As in other fields of EU law, it clearly endorses private enforcement.

According to the Directive, a consumer is any natural person who acts for purposes outside that person’s trade, business, craft or profession, independently of how she is referred to (data subject, traveler, retail investor, etc) in the legal act allegedly infringed.

The Directive covers infringements of the provisions of Union law referred to in its Annex I, to the extent that they protect the interests of consumers, and provided the natural person involved acts as such.

For those willing to get the whole picture as to the scope of the Directive it is worth noticing that it does not substitute the enforcement mechanism contained in the EU legal acts listed in Annex I (by the way: keep in mind that Annex is subject to be amended each time that a new Union act relevant to the protection of the collective interests of consumers is adopted). In addition, Member States are able to retain or introduce national legislation that corresponds to provisions of this Directive in relation to disputes that fall outside the scope of Annex I. My understanding is that this possibility relates only to subject matters, and not to the subjective scope of the Directive.

The impact of the Directive on national systems will depend on the Member State concerned. National procedural mechanisms for the protection of collective or individual consumer interests – where they exist – do not need to be replaced. It is for the Member States to decide whether the procedural mechanisms for representative actions required by the Directive are part of an existing procedural mechanism for collective injunctive measures or redress measures, or a distinct procedural mechanism.

What matters is that at least one national procedural mechanism for representative actions complies with the Directive in every Member State, and, as a consequence, at least one effective and efficient procedural mechanism for representative actions, for injunctive measures and for redress measures, is available to consumers in all Member States.

In terms of contents, the Directive does not address every aspect of the proceedings. Already whether these should be judicial or administrative, or both, is to be decided by the Member States considering the area of law or the economic sector at stake.

The provisions eventually adopted focus on legal standing (and its mutual recognition), remedies (injunctive relief, redress measures), funding, settlements, allocation of costs, information about representative actions, effects of final decisions, limitation periods, disclosure of evidence, and penalties.

It is for the Member States to lay down the rules complementing those of the Directive under the principle procedural autonomy, subject to the requirements of effectiveness and non-discrimination.

Aspects of the Directive of Interest for PIL

The Directive does not intend to affect the application of rules of private international law regarding jurisdiction, the recognition and enforcement of judgments or applicable law, nor establish such rules (in other words, the well-known shortcomings of the existing PIL instruments are not remedied).

This intention has not prevented the lawmaker from shaping two cross-border categories: ‘cross-border infringements’, and ‘cross-border representative actions’.

The former covers ‘in particular’ the case of consumers affected by an infringement who live in Member States other than the Member State in which the infringing trader is established; what else is included is unclear. The latter designates the situation of a qualified entity bringing a representative action in a Member State other than that in which it is designated; conversely, if a qualified entity brings a representative action in the Member State in which it is designated, that representative action will qualify as a domestic representative action, even if it is brought against a trader domiciled in another Member State and even if consumers from several Member States are represented within that representative action. I would argue here that those categories have no meaning beyond the Directive itself; in other words, they should be accorded no significance in terms of application of PIL instruments.

Recital 22, according to which ‘It should be noted that Regulation (EU) No 1215/2012 does not cover the competence of administrative authorities or the recognition or enforcement of decisions by such authorities’, deserves a similar assessment. In my view, whether a representative action filed by an administrative authority falls under the scope of the Brussels I Regulation or not still depends on the autonomous characterization of the dispute as ‘civil and commercial’.

In addition to the clarification regarding PIL instruments, the following issues of interest for cross-border disputes are addressed in the Directive (not necessarily in the operational part).

Useful information for the courts – When bringing a representative action, a qualified entity should provide sufficient information on the consumers concerned by the representative action to the court or the administrative authority, thus allowing the court or administrative authority to determine whether it has jurisdiction and to determine the applicable law.

Useful information for the consumers – Member States should be able to set up national electronic databases that are publicly accessible through websites providing information on the qualified entities designated for the purpose of bringing domestic representative actions and cross-border representative actions, as well as general information on ongoing and concluded representative actions.

Legal standing criteria – For the purposes of cross-border representative actions, qualified entities should be subject to the same criteria for designation across the Union. Examples are listed – non exhaustively – under recital 25. Moreover, qualified entities that have been designated on an ad hoc basis are not allowed to bring cross-border representative actions.

Mutual recognition – Member States should ensure that cross-border representative actions can be brought before their courts or administrative authorities by qualified entities that have been designated for the purpose of such representative actions in another Member State. The identity of qualified entities enabled to sue abroad will be communicated to the Commission, who will compile a list and make it publicly available. Inclusion on the list serves as proof of the legal standing of the qualified entity bringing the representative action.

Opt-in – In order to ensure the sound administration of justice and to avoid irreconcilable judgments, where the consumers affected by an infringement do not habitually reside in the Member State of the court or administrative authority before which the representative action is brought, an opt-out mechanism is excluded regarding representative actions for redress measures. In other words, consumers have to explicitly express their wish to be represented in that representative action in order to be bound by the outcome of the representative action.

Cooperation and the exchange of information between qualified entities from different Member States is encouraged, in order to increase the use of representative actions with cross-border implications.

In what appears to be a rather straightforward extension of the Court’s earlier decisions in Cases C-498/16 Schrems and C-208/18 Petruchová, the CJEU held last week in Case C-774/19 Personal Exchange that a natural person contracting with the operator of an online gambling service remains a consumer in the sense of Article 15 of Regulation 44/2001 (Brussels I; now Article 17 or Regulation 1215/2012 (Brussels Ia)) even if they use it for many hours a day and make their living from it.

The question was referred in the context of a dispute between a user and the operator of a gambling website, concerning the alleged violation of certain rules by the user and the subsequent deletion of their account by the operator. The user, who had been playing about 9 hours of online poker per weekday for several years and won considerable sums of money from it, had brought an action in Slovenia although the contract, which the user had agreed to upon registration on the website, contained an exclusive jurisdiction clause in favour of Malta. As the defendant had not disputed that the service had been directed to Slovenia in the sense of Article 15(1)(c) Brussels I, the validity of the jurisdiction clause under Article 17 Brussels I (now Article 19 Brussels Ia) depended entirely on whether or not the user could still be considered a consumer in the sense of Article 15.

Although the Court begins its answer by the usual emphasis on the exceptional character and the resulting need for a narrow interpretation of Articles 15–17 (para. 24) and on the need to look at the purpose of the contract in question (para. 31), the rest of the decision consists entirely of a discussion of whether the claimant may have lost (“peut se voir refuser”) the quality of a consumer for the different reasons invoked by the defendant. According to the Court, this was not the case, neither in light of the sums earned by the claimant (paras. 33–36; as already decided in Petruchová) nor in light of their expertise (paras. 37–40; as already decided in Schrems). While the Court acknowledges the need for a dynamic interpretation of Article 15 (paras. 41–42), by which a party entering into a contract as a consumer could theoretically lose this status at a later point in the contractual relationship, the need for predictability prevents the consideration of the aforementioned factors.

In what Geert van Calster rightly describes as a confusing reference to substantive consumer law, the Court then also discusses to what extent the frequency and volume of the activity must be taken into account (paras 43–49). Seemingly seeking to align its decision with the one in Case C-105/17 Kamenova, where this factors had been considered, the Court qualifies it by holding that the claimant consumer does not lose this quality as long as they do not offer their services as a poker player for remuneration or formally register them.

The CJEU held last week in C-774/19 AB and BB v Personal Exchange International Limited. I propose for the sake of our memories that we call it Personal Exchange International Limited or even PEIL. (No English version of the judgment available at the time of writing).

May an online poker playing contract, concluded remotely over the internet by an individual with a foreign operator of online games and subject to that operator’s general terms and conditions, also be classified as a contract concluded by a consumer for a purpose which can be regarded as being outside his trade or profession, where that individual has, for several years, lived on the income thus obtained or the winnings from playing poker, even though he has no formal registration for that type of activity and in any event does not offer that activity to third parties on the market as a paid service?

The case echoes Schrems, Petruchová and Reliantco and the CJEU refers to the two former extensively.

At 21 the referring court had signalled the linguistic difference in e.g. the Slovenian and the English version of Article 17 BIA (A15 in BI which is discussed in the judgment), where mention is made of elements over and above the  use of ‘professional’ in the other language version (e.g ‘trade and profession’ in the English version). The CJEU at 27 refers to the classic collective authentic force of the various language versions to dismiss paying too much attention to this difference.

With reference to Petruchová, the Court at 23 dismisses the relevance of whether the player’s winnings allow him to earn a living. Since the player does not beforehand know those winnings, the consumer title would become unpredictable which is of course a big no-no.

At 37 ff the intimate knowledge of the market is dismissed, too, with reference to Schrems: for this would make the title too dependent upon the subjective situation of the individual.

At 41 ff the Court does reiterate the dynamic interpretation of the title per Schrems (reminder: that has only so far been held in the direction of losing the protection one once has a consumer).

Finally, the frequency and length of play does not constitute a singularly relevant criterion either (at 46), even if they can be taken into account. However the Court confusingly (and unlike eg in  Salvoni) does here refer to substantive consumer law in which it has held (eg in C‑105/17 Kamenova) that these elements do play some role.

All in all a fairly standard re-emphasis of earlier case-law. The referring court is asked to do the remaining math itself.

Geert.

EU Private International Law, 3rd ed. 2021, 2.235 ff.

 

 

 

CJEU this morning in PEIL confirms dynamic interpretation of concept of 'consumer' within the meaning of Brussels Ia (as in Schrems).
Extent of knowledge of the market, by the individual, not as such determinanthttps://t.co/w9TfLmGWCj

— Geert Van Calster (@GAVClaw) December 10, 2020

The post below was written by Bernard Haftel, who is Professor of Private International Law at the University of Sorbonne Paris Nord.

This is the fifth contribution to the EAPIL online symposium on the ruling of the Court of Justice in the case of Wikingerhof v. Booking.com. The previous posts were authored by Matthias Lehmann, Adrian Briggs, Gilles Cuniberti and Peter Mankowski. 

Readers are encouraged to share their views by making comments to the posts. Those wishing to submit longer contributions for publication are invited to get in touch with the managing editor of the blog, Pietro Franzina, at pietro.franzina@unicatt.it.

With the Wikingerhof ruling of 24 November 2020, the European Court of Justice once again returns to the seemingly endless question of the distinction between matters relating to contract and tort [1] within the meaning of Article 7 of the Brussels I bis Regulation and once again fails to provide a satisfactory solution.

As in the Brogsitter case, the present case dealt with an action between contracting parties based on the breach of rules which are considered, at least in domestic law, to belong to the law of torts. A German hotelier – the now famous Wikingerhof – decided to take action against the well known online platform Booking, established in the Netherlands, seeking an injunction prohibiting certain conducts provided for in Booking’s general terms and conditions. In particular, the plaintiff alleged that Booking had, without its consent, placed a reference to “preferential prices” or “discounted prices”, that it had been deprived of access to the contact information provided by its contracting partners via the platform and that it had made the hotel’s positioning dependent on a specifically high commission.

The difficulty inherent in classifying this type of situations, based on tort provisions but exercised between contracting parties [2], had been singularly aggravated by the famous Brogsitter judgment which had, in this respect, laid down the following rule: an action for liability based on tort rules in national law but brought between contracting parties is a matter of contract “where the conduct complained of may be considered a breach of the terms of the contract, which may be established by taking into account the purpose of the contract”.

Case law subsequent to the Brogsitter judgment had in fact reflected this, in particular with regard to the thorny question of liability actions for termination of established commercial relations, especially when base on French law (former Article 442-6, I, 5° now Article 442-1, II of the French Code de commerce).

Yet, in every respect, even if nothing expressly indicates it, the Wikingerhof judgment constitutes a complete reversal of the Brogsitter judgment (I), reintroducing, in a questionable manner, the distributive approach of the Kalfélis judgment (II) and substituting a new criterion, loosely based on previous case law (III) and consequently raising the question of the durability of certain recent solutions (IV).

I. A Discreet Turnaround

Even if at no time does the Court say so and even if, in his opinion, Advocate General Saugmadsgaard Øe cleverly tries to claim the contrary, the Wikingerhof judgment is a pure and simple repudiation of the Brogsitter case law.

In this respect, the judgment is particularly laconic, which is in stark contrast to the Advocate General’s opinion, simply stating that an action falls within the scope of the matters relating to a contract within the meaning of point 1 of Article 7 “if the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter” (para. 32), thus taking up a passage along these lines from the Brogsitter judgment (para. 25), and specifying that if the contrary is the case, if it is not necessary to examine the content of the contract, then the action will belong to the matters relating to tort, delict or quasi-delict within the meaning of point 2 of Article 7 (para. 33).

This presentation must be read in the light of Mr Saugmadsgaard Øe’s opinion, which refers to and distinguishes between two possible interpretations of the Brogsitter judgment. According to a first approach, which he calls “maximalist”, a claim would fall within the scope of contractual matters “if the conduct complained of may be considered a breach of the terms of the contract” (para. 69), whereas, according to a “minimalist” interpretation, a claim would fall within the scope of contractual matters when “the interpretation of the contract between the defendant and the applicant appears indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter” (para. 70).

It was this second – minimalist – approach that was advocated by the Advocate General and which was adopted by the Court, thus repudiating the maximalist reading.

However, it will not escape anyone’s notice that the quotation illustrating the so-called maximalist reading is in fact the actual operative part of the Brogsitter judgment. Despite the ingenuity of the Advocate General’s approach, it is quite clear that by repudiating the so-called maximalist reading, the Court of Justice has here made a complete reversal, abandoning the contribution of the Brogsitter Case.

There is a notable difference here with the French Cour de Cassation, which is more and more frequently staging its reversals of case law [3], where, out of loyalty to its predecessors or perhaps out of humility, the judges of the Court of Justice never actually say that they are making a case law reversal.

The judgment thus reverts to a distributive logic, typical of the Kalfelis judgment: actions between contractors will be either tortious or contractual, depending on the rules on which they are based.

II. The Principle of a Distributive Approach

Whereas the Brogsitter judgment largely implied an absorption of the tort by the contractual part, i.e. a submission of all actions between contracting parties to the forum of the contract as soon as the conduct complained of could be regarded as a breach of contractual obligations, the present judgment focuses essentially on the nature of the rules on which the application is based, which has three damaging consequences.

Firstly, a dispersal of the dispute. It will often happen that the same contractual dispute will give rise to both tort and contract aspects, especially when the applicable laws will, like English and German law, leave the plaintiff an option in this respect. In such cases, the two aspects of the dispute, which are like two sides of the same coin, will be dealt with by two different courts. It might be tempting to object that Article 4 remains available in this case and allows the entire dispute to be referred to the judge of the defendant’s domicile, but this option is left to the plaintiff’s discretion, which brings us to the second difficulty.

The solution then aggravates the procedural imbalance between the parties. By multiplying the number of judges likely to be competent, here according to the basis of the claim, we multiply the power of the one who has, in practice, control of the option: the plaintiff. This inequality is in itself an anomaly in a trial which is normally based on the principle of equality of arms, and the Advocate General cannot agree with him when he considers that forum shopping is not in itself a problem and only becomes so in the event of abuse (para. 86 et seq.). In our view, Forum shopping, which benefits only one of the parties, is always, inherently bad.

Finally, the solution becomes truly impracticable when the resolution of the dispute depends on both tort and contractual aspects. Let us take the example of an action brought on the basis of a tort but which comes up against the principle of non-cumul [4]. In such a case, the court hearing only the tort aspect will either have to disregard the contractual aspects for which it has no jurisdiction and therefore give an inappropriate decision, or take them into account in dismissing the tort action but not rule on the contractual aspect.

This second solution, advocated by the Advocate General (para. 88), is not more convincing. It must be understood that the court would then have to consider the contractual aspect in its entirety, and thus determine the content of the contract, the extent of the obligations imposed by the stipulations and by the law applicable to it and the position of that law as regards the option or non-cumul question, but could only draw the consequence, in the event of non-cumul, of dismissing the action based on tort and would be obliged to refer the resolution of the contractual aspect to the forum of the contract. Such a solution would be, at the very least, a very poor administration of justice and a great waste of time and, at worst, a source of major inconsistencies. It is enough to imagine that the two successive judges would adopt different positions as to the law applicable to the question of cumulative liability.

It is therefore in many respects unfortunate that the European Court of Justice has decided to return to the distributive approach of the Kalfelis case law.

However, contrary to what the Kalfelis judgment might have suggested, it is not the classification in national law that will determine the nature of the tort or contract, but an autonomous classification and for the purposes of the Regulation, which presupposes a criterion.

However, in this respect, the desire to maintain the appearance of continuity with the Brogsitter case law leads the Court to endorse a largely flawed criterion.

III. The Chosen Criterion

The concern to maintain the illusion of continuity in the case law, and in particular continuity with the Brogsitter judgment, led the Court to uphold what was probably the most questionable point in that decision: the “test” which, in the logic of that judgment, was to determine “where the conduct complained of may be considered a breach of the terms of the contract”. In order to determine whether this is the case, the Brogsitter judgment advocated checking wether “the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter ” (paras 24 and 25).

This test is particularly questionable because it is completely incapable of taking account of the subtle interweaving of legal rules and contractual provisions, it being furthermore recalled that, as the Advocate General observes, the methods of coordination of the two orders of liability vary from one country to another (paras 55 and 56).

Indeed, the effect of a contract is always to alter the pre-existing legal order, in particular by making unlawful what would have been lawful in the absence of the contract or by making lawful what would have been unlawful in the absence of the contract. Thus, even where the action will be based on an extra-contractual provision in domestic law, it will often be necessary to interpret the contract in order to determine whether or not the conduct complained of was lawful. An example of this is an action brought by the holder of intellectual property rights against his licensee for exceeding the rights granted. The interpretation of the contract is necessary to determine whether or not the rights granted have been exceeded. However, assuming that the rights have been exceeded, illegality would arise from the rules governing the author’s monopoly, in the same way as if there were no contract at all. In this respect, the objections proposed by Mr. Saugmadsgaard Øe, who takes the view that the criterion involving the interpretation of the contract would apply only to the claim and not to any defences, are not really convincing (paras 105 et seq.).

All in all, the other criterion mentioned by the Advocate General, distinguishing between, on the one hand, “the stipulations of a contract and/or rules of law which are applicable because of that contract” and, on the other hand, “rules of law which impose a duty on everyone, independently of any voluntary commitment”, would have seemed infinitely more accurate and more practicable to us.

It corresponds to the idea of “plus contractuel” [5], perfectly expressed by Lord Goff, according to which “the law of tort is the general law, out of which the parties can, if they wish, contract” [6].

It is an approach of this kind that should undoubtedly prevail in matters of conflict of laws, for the application of the Rome I and Rome II Regulations [7].

However, in matters of jurisdiction, the question arises in a different way. The question of jurisdiction often arises at the beginning of the dispute, at a time that necessarily calls for simplicity. In French law, moreover, the question arises concretely in a phase with a single judge – the juge de la mise en état – and it is in this respect necessary to simplify as much as possible the treatment of questions of qualifications. For this reason, as explained above, it is preferable to adopt a global and non-distributive approach, contrary to what might be done for the conflict of laws [8].

IV. The Survival of Intermediate Case Law

This change of course raises a question of scope, in terms of the solutions adopted since the Brogsitter judgment and, at least in part, based on them.

In particular, the European Court of Justice held in a Granarolo case that an action for the termination of commercial relations must be classified as contractual where there is a “tacit contractual relationship” (whatever that is) between the parties. Following the new logic of the Wikingerhof judgment, such a solution could probably not be renewed. In fact, the conduct complained of – i.e. the termination of established commercial relations – is sanctioned by the former Article L. 441-6, I, 5° (now L. 442-1, II) of the French Commercial Code whether or not there is a framework contract binding the parties. This is even its main interest. It is therefore a rule “which imposes a duty on everyone, independently of any voluntary commitment” and, obviously, since it is a mandatory legal obligation, the lawful or unlawful nature of the conduct complained of does not in any way imply an interpretation of the contract which may bind the parties.

This remark reflects on many other hypotheses and in particular the “pratiques restrictives de concurrence” (restrictive practices of competition) which appear in Articles L. 442-1 et seq. of the Commercial Code and similar provisions in other legal systems.

In all these cases, such practices are prohibited in any event, whether or not there is a contract between the parties. In fact, the prohibition of “subjecting or attempting to subject the other party to obligations creating a significant imbalance in the rights and obligations of the parties” in Article L. 442-1, I, 2° of the Commercial Code is very similar to the abuse of a dominant position under German law at issue in the commented judgment.

Is it to be inferred from this that, henceforth, all actions based on restrictive practices of competition would necessarily fall within the scope of tort, even between contractors?

And what about actions relating to these unbalanced clauses and seeking their annulment? In the area of conflict of laws, the European Court of Justice has ruled that the assessment of the lawfulness of contractual terms is a matter for the Rome I Regulation, even where the action is brought by a third party to the contract, in this case a consumer protection body. Is this solution obsolete?

Or should a distinction be drawn according to the purpose pursued by the action, holding that an action seeking to have a contractual stipulation declared null and void would be contractual in nature, even where that nullity results from a rule of conduct binding on everyone?

If so, in the event of an action seeking to challenge a clause that is unbalanced, there would then be two competent judges: the forum of the tort for the action for liability stricto sensu and the action for an injunction and the forum of the contract for the annulment, which would add to the dispersion of the litigation.

The judgment provides few answers to all these questions. More than ever, it would be necessary for the Court of Justice to take a higher view and to consider all the solutions that it infers from the qualifications it adopts as a whole.

 

[1] On this matter, see in particular V. Heuzé, “De quelques infirmités congénitales du droit uniforme: l’exemple de l’article 5. 1 de la Convention de Bruxelles du 27 septembre 1968”, Rev. crit. DIP 2000, p. 589 s., M.-E. Ancel, P. Deumier, M. Laazouzi, Droit des contrats internationaux, 2nd ed., 2019, § 106 et s. ; H. Gaudemet-Tallon, M.-E. Ancel, Compétence et exécution des jugements en Europe, 6th ed., 2018, § 186 et seq.; J.-S. Queginer, Le juge du contrat dans l’espace judiciaire européen – Qualification et détermination d’une compétence spéciale, th. Lyon 3, 2012; M. Minois, Recherche sur la qualification en droit international privé des obligations, LGDJ, 2020.

[2] On which see, in particular, S. Bollée, “La responsabilité extracontractuelle du cocontractant en droit international privé », in Mélanges en l’honneur du Professeur Bernard Audit, LGDJ, 2014, p. 119.

[3] For a recent and very clear example, see Cass. civ., 1st, 18 déc. 2019, n° 18-12.327 and n° 18-11.815, D. 2020. 426, note S. Paricard ; ibid. 506, obs. M. Douchy-Oudot; ibid. 843, obs. Régine; AJ fam. 2020.131; ibid. 9, obs. A. Dionisi-Peyrusse ; RTD civ. 2020. 81, obs. A.-M. Leroyer; Dr. fam. 2020, comm. 39, note J.-R. Binet; adde. S. Bollée, B. Haftel, “L’art d’être inconstant – Regards sur les récents développements de la jurisprudence en matière de gestation pour autrui”, Rev. crit. DIP 2020.267.

[4] In some systems, such as French law, where the same fact can theoretically constitute both a tort and a breach of contract, the plaintiff has no choice and can only act on the contractual ground, which is generally referred to as the principle of non-cumul.

[5] J. Huet, Responsabilité délictuelle et responsabilité contractuelle. Essai de délimitation entre les deux ordres de responsabilités, th. Paris II, 1978, especially n° 672; see also B. Haftel, La notion de matière contractuelle en droit international privé – Etude dans le domaine du conflit de lois, th. Paris II, 2008, especially. n° 618 et s.

[6] Henderson v. Merrett Syndicates [1994] 3 All ER 506 [532].

[7] See B. Haftel, op. cit.

[8] On the idea of an independence between the qualifications adopted in the field of jurisdiction and the one to be adopted in the field of conflict of laws, see B. Haftel, “Entre ‘Rome II’ et ‘Bruxelles I’: l’interprétation communautaire uniforme du règlement ‘Rome I'”, JDI 2010, no 3, doctr. 11, and, for the opposite view, see T. Azzi, “Bruxelles I, Rome I, Rome II: regard sur la qualification en droit international privé communautaire”, D. 2009, p. 1621.

Written by Dr. Chukwuma Samuel Adesina Okoli, Post-Doctoral Researcher, T.M.C. Asser Institute and Dr. Richard Frimpong Oppong, Associate Professor, University of Bradford, School of Law

We earlier announced that the editors of Afronomicslaw.org invited Chukwuma and Richard to organise a symposium on Private International Law in Nigeria. The introduction to the symposium has now been published today in Afronomicslaw.org. Other posts on the symposium will be posted daily this week.

This Symposium focuses on the recent publication: Private International Law in Nigeria. For many, Nigeria needs no introduction: it is a federal country consisting of thirty-six states and the Federal Capital Territory, Abuja. With increased cross-border transactions and investments, the significance of private international law (or conflict of laws) – the body of law that aims to resolve claims involving foreign elements – has become more accentuated than ever. Indeed, private international law rules have sometimes been invoked in resolving disputes with inter-state dimensions within the federation, especially on jurisdiction and choice of law matters. Conflict of laws has also been used to resolve disputes involving internal conflicts between various customary laws and between customary laws and the Nigerian Constitution or enabling statues, especially in the area of family law. In essence, because of its federal structure, private international law is relevant in both the inter-state and international litigation in Nigeria.

Prior to the publication of Private International Law in Nigeria, there was no comprehensive treatise on the subject in Nigeria. The Book aims to fill that academic void: drawing on over five hundred Nigerian cases, statutes, and academic commentaries, the Book examines mainly jurisdiction (in inter-state and international disputes), choice of law, and the recognition and enforcement of foreign judgments and international arbitral awards. It also examines remedies that affect foreign judicial proceedings such as antisuit injunction, and international judicial assistance to serve legal process and take evidence.

This Symposium brings together the reflections of four scholars on the book and explores some of the issues arising therefrom. In the Book, we examine the common law regime for enforcing foreign judgments in Nigeria and reveal the under-developed state of the law. Anthony Kennedy, a barrister at Serle Court, focuses on this aspect of the book to forcefully argue for a “reawakening of the common law action” to enforce foreign judgments. Kennedy is critical, and rightly so, of how the legal profession and the courts have treated the common law regime notwithstanding clear authority from the Supreme Court of Nigeria that the statutory regime for enforcing foreign judgments was not designed to kill of the common law regime. Kennedy argues that by not side-lining the common law regime, Nigeria may be able to partake in the judicial development of the regime that is going on in other parts of the common law world, as well as international projects such as the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, 2019.

Richard Mike Mlambe, an Attorney and Lecturer at University of Malawi- The Polytechnic, picks up the theme of reform and judicial development of private international law, in a comparative discussion on the bases of jurisdiction in an action to enforce a foreign judgment. Mlambe commends Canada’s “real and substantial connection” basis of international competence. The real and substantial connection test promotes the liberal flow of judgments across borders. Mlambe calls on Nigeria and other common law jurisdictions to join Canada on its “lonely revolution”.

Dr Abubakri Yekini, a Lecturer in Law at Lagos State University, explores the enforceability of jurisdiction agreements in Nigeria drawing on the Book’s discussion which reveals, in the words of Yekini that “it is difficult to give a straight answer on whether jurisdiction agreements are enforced by Nigerian courts” – a state of affairs which he rightly argues creates uncertainties and is not good for international business transactions. Yekini examines three significant challenges to the enforcement of jurisdiction agreements in Nigeria, namely the courts’ mischaracterisation of such agreement as “ouster clauses”; mandatory statutes vesting exclusive jurisdiction in Nigeria courts; and the misapplication of the doctrine of forum non conveniens in cases involving breach of jurisdiction agreement, instead of the strong cause test. Yekini makes an impassioned plea for Nigerian courts to “promote party autonomy”, and a call on Nigeria to become party to the Convention on Choice of Court Agreements, 2005.

Orji Agwu Uka, a Senior Associate at Africa Law Practice (ALP), reflects on the state of private international law in Nigeria and calls for its wider study. Indeed, as Uka rightly acknowledges, for more than a decade, scholars have lamented the level of interest in private international law in Africa. Happily, private international law in Africa can hardly now be described as “the Cinderella subject seldom studied [and] little understood”. Uka undertakes a broad but careful review of the book – highlighting various topics examined in the book but focusing especially on the law on jurisdiction in international and inter-state matters. Uka commends Private International Law in Nigeria for filling a significant academic void on the Nigerian legal landscape.

It is our hope that the Book and this Symposium, in addition to being a rich legal resource for lawyers, judges and legislators would spur on further study of private international law in Nigeria, and Africa. Indeed, the Nigerian Group on Private International Law(“NGPIL”) has already been established and “set sail”. NGPIL aims to “(1) to improve the law in Nigeria in matters relating to private international law (“PIL”) (2) to persuade the Nigerian government to accede to the Hague Conventions on PIL (3) to liaise with other experts, groups, and research centres on PIL on a global level (4) to nurture, guide and develop the legal mechanism and framework for PIL in Nigeria (5) to be the collective voice of PIL experts for the Nigerian government, the judiciary, lawyers and other relevant stakeholders and, (6) to improve the links and communication between PIL experts in Africa”. The book: Private International Law in Nigeria will certainly make the work of NGPIL less daunting.

 

 

The following post has been written by Ennio Piovesani, PhD Candidate at the Universities of Turin and Cologne.

While negotiations for an agreement on the future partnership between the EU and the UK are pending, a spectre haunts Europe: reciprocity.

I. The Residual Role of the Requirement of Reciprocity

In some EU Member States, provisions of national-autonomous aliens law enshrine the requirement of reciprocity. Those provisions are largely superseded by exceptions established in international law, including international treaties (so-called “diplomatic reciprocity”). EU (primary and secondary) law establishes broad exceptions concerning EU citizens and legal persons based in the EU.

In the context of EU / UK relations, the Withdrawal Agreement relieves UK nationals and legal persons from the requirement of reciprocity in the EU Member States. However, the scope of the exception established by the Withdrawal Agreement is limited in (personal and temporal) scope. An agreement on the future partnership between the EU and the UK could establish “full reciprocity” (Cf. points 29 and 49 of the Political Declaration accompanying the Withdrawal Agreement). Instead, if new arrangements will not be made, at the end of the transition period, in cases not covered by the Withdrawal Agreement, the method of reciprocity might once more play a residual role in the context of the treatment of UK nationals and legal persons in some EU Member States.

II. German Case-Law on Reciprocity with the UK and Civil Procedure

The spectre of reciprocity, in relations with the UK, was evoked in three recent cases brought before the German courts. The three cases concern provisions of German-autonomous aliens law in the field of civil procedure, which enshrine the requirement of reciprocity.

1. § 110 ZPO (Security for Court Costs)

In particular, two of the mentioned cases concern § 110 ZPO. Pursuant to § 110(1) ZPO claimants not (habitually) residing in the EU (or in the EEA) must provide security for court costs (if the defendant requests so). § 110(2) ZPO provides exceptions to that duty. The claimant is relieved from the duty to provide security if an international treaty so provides (See § 110(2) no 1 ZPO) or if a treaty ensures the enforcement of the decision on court costs (see § 110(2) no 2 ZPO; see also the other exceptions listed in § 110(2), nos 3–5 ZPO).

In 2018 – before the UK’s withdrawal from the EU –, in a case brought before the Düsseldorf Regional Court, a German defendant sought a decision ordering the UK claimant to provide security under § 110 ZPO (Düsseldorf Regional Court, interim judgment of 27 Sept 2018 – 4c O 28/12). The Regional Court dismissed the defendant’s application, since (at that time) the UK was still an EU Member State. The German court thus shun an investigation as to “whether other international treaties might relieve the claimant from the obligation of providing security for costs after the [UK’s] withdrawal”.

Subsequently, in 2019 – after the UK’s withdrawal from the EU, during the transition period –, a German defendant sought from the Dortmund Regional Court a decision ordering the claimant seated in London to provide security under § 110 ZPO (Dortmund Regional Court, interim judgment of 15 July 2020 – 10 O 27/20). The Regional Court dismissed the defendant’s application, noting that – in the light of the legal fiction created by the Withdrawal Agreement – the UK must be considered as an EU Member State until the end of 2020. The German court – like the Düsseldorf Regional Court – shun an investigation as to whether treaties other than the Withdrawal Agreement relieve UK claimants – not habitually residing in the EU (or in the EEA) – from the duty of providing security under § 110 ZPO.

It appears that, apart from the Withdrawal Agreement, a treaty establishing diplomatic reciprocity for the purposes of § 110(2) no 1 ZPO does not exist yet (cf. ECJ, judgment 20 Mar 1997 – C-323/95).

2. § 917(2) ZPO (Writ for Pre-Judgment Seizure)

The third case brought before the German courts concerns § 917(2) ZPO. Pursuant to the first sentence of § 917(2) ZPO, a writ for pre-judgment seizure can be issued if the prospective judgment will have to be enforced abroad and if “reciprocity is not granted” (i.e. if an international treaty does not grant that the judgment will be eligible for enforcement in the given foreign country).

In 2019 – before the UK’s withdrawal from the EU –, in a case brought before the Frankfurt Higher Regional Court, a German claimant applied for a writ under § 917 ZPO against a UK defendant (Frankfurt Higher Regional Court, judgment of 3 May 2019 – 2 U 1/19). The Higher Regional Court noted that reciprocity under § 917(2) first period ZPO could have been lacking if, after the UK’s withdrawal from the EU, the Brussels Ia Regulation would have not been replaced by new arrangements granting the enforcement of (German) judgments in the UK. This notwithstanding, the German court decided not to issue the writ under § 917(2) first period ZPO, since failure to conclude new agreements replacing the Brussels Ia Regulation was (at that time) unlikely. In fact, the court pointed to the then ongoing negotiations between the EU and UK, namely to Art. 67(II) of the draft Withdrawal Agreement (today’s Art. 67(1)(a) Withdrawal Agreement), providing for the continued application of the Brussels Ia Regulation in the UK.

It appears that, apart from the Withdrawal Agreement, a treaty establishing diplomatic reciprocity with the UK, for the purposes of § 917(2) ZPO, does not exist yet (unless the 1960 Convention between the UK and Germany for reciprocal recognition and enforcement of judgments – or even the 1968 Brussels Convention – will “revive”). An (albeit limited) exception concerns cases covered by exclusive choice-of-court agreements in favour of German courts falling under the 2005 Hague Convention (in fact, on 28 Sept 2020, the UK has deposited its instrument of accession to the 2005 Hague Convention, which should grant continuity in the application of the same Convention in the UK after the transition period).

III. Conclusion

In conclusion, at the end of the transition period, in cases not covered by the Withdrawal Agreement, unless new arrangements are made, the requirement of reciprocity might play a residual role in the context of the treatment of UK nationals and legal persons in some EU Member States, such as Germany.