Flux des sites DIP

On 2 April 2020, the conclusions of Advocate General Sánchez-Bordona in Verein für Konsumenteninformation v Volkswagen (Case C-343/19) were published. They add a new piece to the puzzle of locating purely economic loss – a much-discussed issue which was recently considered in this blog.

Facts

The case concerned a request by the Landesgericht Klagenfurt (Regional Court in Austria) for a preliminary ruling.  Austrian residents had purchased VW cars in their home country. Thereafter, it became known that the manufacturer had fitted the vehicles with illicit software which enabled them to flout emissions tests. Cars fitted with the software consequently dropped in market value. The buyers assigned their rights arising out of their losses to the Verein für Konsumenteninformation (VKI), an Austrian consumer protection association. VKI subsequently sued VW in Austria for damages. VW contested the jurisdiction of the Landesgericht Klagenfurt.

Legal issue

The request by the Landesgericht Klagenfurt for a preliminary ruling concerns the question of whether the Austrian courts have jurisdiction over VKI’s claim under Article 7(2) of the Brussels I bis Regulation. In cases of tort or delict, Article 7(2) confers special (meaning optional) jurisdiction on  the courts of the place where the harmful event occurred. The CJEU interprets “the place where the harmful event occurred“ as giving the tort victim a choice to sue either: (i) at the place of the event giving rise to the damage; or (ii) at the place where the damage occured. In the present case, the Austrian courts could only have jurisdiction under the second option.   Therefore, the crucial question was: where, on the present facts, did the damage ‘occur’ within the meaning of under Article 7(2) of the Brussels I bis Regulation.

Opinion of the Advocate General

Advocate General Sánchez-Bordona took the view that the damage occurred in Austria and that, consequently, the courts there had jurisdiction over the case under Article 7(2) of the Brussels I bis Regulation.

Legal standard

The Advocate General pointed to three well known precedents for determining the location of purely financial loss: Kolassa, Universal Music and Löber. In his view, these three CJEU judgments establish that the actual place where the damage occurred is only the starting point for determining the competent court. Thereafter, other specific circumstances of the dispute, taken as a whole would have to be considered (paragraph 56).

The Advocate General considered that such ‘other specific circumstances’ could include “1. factors relevant to the proper administration of justice and the effective conduct of proceedings; and 2. factors which may have served to form the parties’ views about where to bring proceedings or where they might be sued as a result of their actions.” (paragraph 67).

Further, the Advocate General pointed to the dual principles of proximity and foreseeability of the competent court, between which a reasonable balance must be struck (paragraphs 63-64).

Application to the present case

Applying these standards to the present case, the Advocate General opined that, in general, the location of the cars as tangible objects was irrelevant because it is unforeseeable (paragraphs 71-73). He instead considered the correct starting point for locating the loss to be the act through which the product became part of the victims’ patrimony, thereby causing the damage (paragraph 74). Hence, he identified the place of loss to be the place where the transaction for the purchase of the car was concluded (id.).

The Advocate General further viewed this location to be unaffected by the other specific circumstances of the case. In particular, the jurisdiction of the Austrian courts would have been foreseeable for the Defendant (paragraph 80).

Assessment

The result reached by the Advocate General is certainly agreeable. The purchasers of rigged cars should not be forced to start legal proceedings at the seat of the manufacturer. Rather, they should have the ability to sue the tortfeasor closer to their homes. The same place should also be used to identify the applicable law to their claims under Article 4 of the Rome II Regulation.

It may, however, be a little too simplistic to identify the place of loss as the place of the relevant sales transactions. This place is notoriously uncertain, fortuitous, and vulnerable to manipulation. The purchasers could, for instance, have met the vendor at a car fair, or they could have bought the cars in another country for tax reasons. Should this really determine the location of their loss? Moreover, ‘locating’ a sales transaction can be very tricky; for instance, in the case of purchases on the internet. For these reasons, the law of the place where the contract was concluded (lex loci solucionis) was largely ousted from the conflicts rules for contractual obligations. It would be paradoxical if it made a comeback through non-contractual obligations.

The other circumstances of the case should be taken more seriously. These other factors could, for instance, include the purchasers’ domicile and the place where they mostly use the cars. It is indeed a combination of factors that must be used in cases like the present one to determine the place where the damage occurred.

A late post (I am slowly trying to mop up my back issues; none of them thankfully going back quite as far as this one) on Roberts v The Soldiers, Sailors, Airmen And Families Association & Anor [2019] EWHC 1104 (QB) in which Soole J had to hold on whether the Civil Liability (Contribution) Act 1978 (the 1978 Act) has mandatory/ overriding effect and applies automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. A tortious and residual private international law (as opposed to Rome I or II) take therefore on similar issues as in the contracts case of Lamesa Investments.

Claimant was born at the Hospital in Viersen, North-Rhine Westphalia, Germany on 14 June 2000. The Hospital provided medical services to UK Armed Forces stationed in Germany, with whom the Claimant’s father was serving, and their families. His claim is that he sustained an acute profound hypoxic brain injury as a result of negligence in the course of his delivery by a British midwife supplied by the First Defendant charity (SSAFA). On his behalf it is alleged that SSAFA and/or the Second Defendant (MOD) are vicariously liable for her acts or omissions.

The Hospital contends that the application of the 1978 Act is subject to choice of law rules, whose effect is to apply German law to a claim for contribution. By the combined effect of the German law of limitation and s.1 Foreign Limitation Periods Act 1984 the contribution claim is time-barred; and therefore must fail. SSAFA/MOD accept that, if choice of law rules prevail, the relevant law is German and the claim time-barred. However they contend that the 1978 Act has overriding effect. Since the limitation period under the 1978 Act expires 2 years from the date of judgment award or settlement (s.10 Limitation Act 1980), the claim can proceed.

Rome II is not engaged ratione tempore (it may have varied the outcome).

Soole J first summarises at lenghth the submissions of the parties, including their scholarly references. He then, at 81, reminds us of the common law approach to characterisation (one which we successfully pleaded in a continental court in a trust case recently): ‘the first question in such a dispute is the characterisation (or classification) of the claim or issue in question. Such classification should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system; and should be taken in a broad internationalist spirit in accordance with the principles of conflict of laws of the forum’.

He then holds that the questions of lois de police do not justify cutting corners in conflict of laws analysis: one does not jump straight to application of a local act. Rather, one dutifully follows conflicts analysis and then applies the local act only if and to the extent the foreign law impedes it. Then follows at 92 his classification of the act as lois de police indeed (the terminology used here also includes ‘extraterritorial application’ which however suggests a disconnect from the usual conflicts exercise): ‘In my judgment it is implicit from the provisions of the 1978 Act that the statute does have overriding effect; and that the presumption to the contrary is accordingly rebutted. And at 93: ‘I consider that the express references in the 1978 Act to private international law (ss.1(6), 2(3)(c)) support this implication. Parliament having chosen to identify specific circumstances in which choice of law rules are to apply (and the extent of that application) in a claim under the statute, the natural implication is that the availability of this statutory cause of action was not itself to be subject to choice of law rules.’

Most interesting judgment.

Geert.

 

 

By Nadia Rusinova

Currently large increases in COVID-19 cases and deaths continue to be reported from the EU/EEA countries and the UK. In addition, in recent weeks, the European all-cause mortality monitoring system showed increases above the expected rate in Belgium, France, Italy, Malta, Spain, Switzerland and the United Kingdom.

It is not unreasonable to predict that COVID-19 will be used increasingly as a justification in law for issuing non-return order by the Court in international child abduction proceedings, return being seen as a “grave risk” for the child and raised as an assertion under Article 13(b) of the Hague Convention.

What would be the correct response to these challenging circumstances, when the best interest of the child in child abduction proceedings calls for restoration of status quo ante under the Hague convention on the Civil Aspects of International Child Abduction (hereinafter: the Convention)? This post will focus on the recent judgment [2020] EWHC 834 (Fam), issued on 31 March 2020 by the High Court of England and Wales (Family Division) seen in the light of the ECtHR case law on the child abduction, providing brief analysis and suggesting answer to the question if the return of the child to the state of its habitual residence in the outbreak of COVID-19 can constitute grave risk for the child under Article 13(b) of the Convention, and how the practitioners and the Court should approach these assertions in the present pandemic situation.

The facts of Re PT [2020] EWHC 834 (Fam)

PT (the abducted child) and both of her parents are all Spanish nationals. PT was born in 2008 and had lived all of her life in Spain, until she was brought to England by her mother, HH, in February 2020. She is the only child of the parents’ relationship. They separated in 2009. Following the parents’ separation, legal proceedings were brought in Spain by the mother concerning PT’s welfare. A judgment was issued in these proceedings by the Spanish Courts on 25 May 2012, providing for the mother to have custody and for parental responsibility for the child to be shared by both parties. The order provided for the father to have contact with PT on alternate weekends from after school on Friday until Sunday evening. In addition, she was to spend half of each school holiday with each parent. The order also required that the parents should inform each other of any change in address thirty days in advance.

On or about 13 February 2020, the mother travelled to England with PT. The mother’s partner (with whom she is expecting a child the following month) lives in the South East of England, and they have moved in with him. The evidence on behalf of the father is that the child was removed from Spain by the mother without his knowledge or consent.

The father asked the mother to return PT to Spain, but she refused to do so. The father travelled to the UK and met with the mother and PT at a shopping centre. However, the mother again refused to permit the child to return to Spain. She did however permit PT (and S) to spend a night with the father at his hotel in England.

The case first came before the Court on 10 March 2020 on a “without notice” basis. At that hearing the mother attended in person, and indicated that she would be seeking to defend the application on the basis of (1) the father’s consent and / or acquiescence and (2) Article 13(b) of the Hague convention – claiming existence of a grave risk that a return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

On that occasion PT was, as directed by the judge, present in the Court vicinity to be interviewed by the CAFCASS (Children and Family Court Advisory and Support Service) Officer. She told CAFCASS that she had not wanted to come to England, and that she wanted to be with her father, although she did not want to be separated from her mother either. PT’s clear wish was that she wanted to return to Spain with her father rather than stay in England.

The judgment

The Court is entirely satisfied on the evidence that PT is habitually resident in Spain as she had lived there all of her life until she was recently brought to the UK. In this case the Court ruled that PT has been wrongfully removed from Spain within the terms of Article 3 of the Convention and that none of the Article 13 defences have been made out. Therefore, return order for the summary return of PT to Spain has been made.

Comments

First of all, in such cases the Court should unavoidably take the challenge to identify the risks for the child in case of return in the context of the pandemic situation. Indeed, in the present case the formulation is rather simplified. Therefore and due to the lack of case law on this issue, and in order to be able to answer the question if the return of the child would pose a grave risk, we should take a look also at the recently published Guide to Good Practice on Article 13(1)(b) (hereinafter: the Guide) by the Hague Conference On Private International Law (HCCH) and the concept of “grave risk” in child abduction proceedings in general, as set by the ECtHR in its case law.

In general, the grave risk exception in child abduction cases is based on “the primary interest of any person in not being exposed to physical or psychological danger or being placed in an intolerable situation”, as stated in the § 29 of the Explanatory report to the Hague Convention. The general assumption that a prompt return is in the best interests of the child can therefore be rebutted in the individual case where an exception is established. It is important to note that the exception provided for in Article 13(b) concerns only situations which go beyond what a child might reasonably be expected to bear (Ushakov v. Russia § 97, X v. Latvia § 116, Maumousseau and Washington v. France §§ 69 and 73, K.J. v. Poland §§ 64 and 67)

In § 46-48 of the discussed judgment the Court points final argument relates to the risk of physical harm that is presented by the current coronavirus pandemic in the following way:

“…This risk presents itself in two ways:

(1) The pandemic is more advanced in Spain than in the UK. As at the date of the preparation of this judgment (29 March) the official death toll stood at 1,228 in the UK and 6,528 in Spain. It could therefore be argued that PT would be at greater risk of contracting the virus in Spain than in the UK.

(2) The increased risk of infection that is posed by international travel at this time.”

Did the Court explore all possible harm that the return order can bring, and since it is recognized that the risk is present, what specific kind of risk the return of the child would constitute in the context of the pandemic situation – physical or psychological danger, or being placed in an intolerable situation?

The way the Court approached this issue is a very basic attempt to identify the risks that a return order in the outbreak of COVID-19 can bring to the child. As the Guide points in § 31, although separate, the three types of risk are often employed together, and Courts have not always clearly distinguished among them in their decisions. It is clear that the return could bring physical danger of contamination with COVID-19 together with all possible complications, despite the fact that child is not in the at-risk groups as are the elderly or other chronically ill people. But we should not underestimate the psychological aspect of the pandemic situation. As the coronavirus pandemic rapidly sweeps across the world, the World Health Organisation has already, a month earlier, stated that it is inducing a considerable degree of fear, worry, and concern in the population. It is therefore out-of-the-question that for a relatively mature child (in this case of 12 years old), whether the  ability to watch, read or listen to news about COVID-19 can make the child feel anxious or distressed and therefore can, and most likely will, bring also psychological harm to it. In this sense the potential psychological harm is inevitable and whilst the physical harm can or cannot happen, and indeed the contamination cannot be foreseen, in any case with the return order (especially to a state with significant risk of increasing community transmission of COVID-19) the psychological integrity of the child will be put at immediate risk.

In order to explore how this risk can be adequately assessed in child abduction proceedings in the context of the COVID-19, we should look at § 62 of the Guide, where HCCH explicitly discusses risks associated with the child’s health, stating that “In cases involving assertions associated with the child’s health, the grave risk analysis must focus on the availability of treatment in the State of habitual residence, and not on a comparison between the relative quality of care in each State”. How is this applicable to the pandemic situation, if at all? It seems like the only adequate response in these fast-changing unprecedented circumstances would be that the Court should indeed not compare the situations in both states, but still having in mind the nature of the COVID-19, to try to foresee the developments, relying on the general and country-specific health organizations reports, accessible nowadays online in a relatively easy way.

As a first step the Court should consider whether the assertions are of such a nature, with sufficient detail and substance that they could constitute a grave risk, as overly broad or general assertions are unlikely to be sufficient. In this situation, without precedent in the history of the Convention’s application, holding that “Although the course of the pandemic is clearly more advanced in Spain than in the UK, I do not have any evidence from which I can draw a conclusion that either country is any more or less safe than the other… I am simply not in a possession to make any findings as to the relative likelihood of contracting the virus in each country. On the material before me, all that I can conclude is that there is a genuine risk that PT could contract the virus whether she remains in England or returns to Spain.” does not fulfil the obligation of the Court to assess the risk in full, in all its possible implications. The Court is obliged to conduct the step-by-step analysis, prescribed by and explained in the Guide, and to examine the types of risk for the child, assessing it separately and in the context of their deep interrelation in these specific circumstances.

Secondly, the wording of Article 13(b) also indicates that the exception is “forward-looking” in that it focuses on the circumstances of the child upon return and on whether those circumstances would expose the child to a grave risk. Therefore, ECtHR is clear that in any case (regardless the context and for sure not only in cases with history of domestic violence), where such assertions have been raised, the Courts should satisfy themselves that adequate safeguards and tangible measures are available in the country of return  (Andersena v. Latvia §118, Blaga v. Romania §71).

In addition, as the Guide points in § 53, Article 13(b) analysis should be always be highly factually specific. Each Court determination as to the application or non-application of the exception is therefore unique, based on the particular circumstances of the case. A careful step-by-step analysis of an asserted grave risk is therefore always required, in accordance with the legal framework of the Hague convention, including the exception as explained in the Guide. When we discuss this issue, not only the Convention, but also Article 11(4) of Brussels IIa applies in answering the question of, what in the case of COVID-19 are “adequate safeguards”. This is, without a doubt, a question difficult to answer to with certainty, as the case law of the ECtHR and the Guides do not contain any directions or good practices on the behaviour of the domestic authorities in times of pandemic.

In the present case the judge estimated as “tangible safeguards” the following “number of undertakings”, offered by the father, effective until the matter could be brought before the Spanish Court, and intended to support PT’s return to Spain. They include: (1) Lodging the final order in Spain; (2) Not pursuing any criminal charges against the mother for her wrongful removal of PT from Spain to England; (3) Seeking to mediate with the mother on PT’s return in relation to the mother’s access; (4) Agreeing to unrestricted indirect contact between PT and her maternal family (especially with the mother and S):(5) Agreeing to direct contact for PT with her mother in Spain and England, to the extent that is possible or appropriate from a public health perspective given the current global pandemic;(6) Meeting with the mother only at neutral and/or public places when picking or dropping PT off;(7) To pay PT’s maintenance and school fees pending any further determination about maintenance by the Spanish Courts; and (8) To pay all the travelling costs (flights) for PT of travelling to and from England for the purposes of contact with the mother.”

It looks like the Court is indeed satisfied with the undertakings, but unfortunately, these examples are far from adequate protective measures when we consider the grave risk induced by return in the current pandemic situation. None are directed to prevention of the grave risk as raised by the mother, and none are related to the child’s health. Better examples remain to be seen from the upcoming case law of the Courts, but in the current situation, a strong focus should remain on comprehensive testing and surveillance strategies (including contact tracing), community measures (including physical distancing), strengthening of healthcare systems and informing the public and health community. Therefore, following the Guide, such measures should at the minimum include rapid risk assessment upon arrival at the state of habitual residence, application of different types of available COVID-19 Rapid Tests, ensuring social distance and exploring online education possibilities, providing guarantees that the child will be isolated and distanced from potentially infected people (through evidence for appropriate living conditions upon return), etc. Strong focus should also be put on the possibilities for mental support for the child, bearing in mind the extremely stressful situation, related not only the COVID-19 but also to additional factors such as the separation from the other parent and the mental consequences from the forced social isolation which, as pointed above, would inevitably affect the mental wellbeing of the child.

The next question is who should prove the risk, and its gravity in this specific situation?  Following the ECtHR case law, the burden of proof traditionally lies with the party opposing the child’s return  (Ushakov v. Russia, § 97). In this case the abducting parent indeed shall prove the grave risk, but it is true that the COVID-19 situation itself and the wide-spread precautions and information contribute a lot to proving this risk. Yet, what in the current pandemic circumstances is still to be proved by the abducting parent?

According to § 49 of the Guide, even if a Court ex officio gathers information or evidence (in accordance with domestic procedures), or if the person or body which has lodged the return application is not actively involved in the proceedings, the Court must be satisfied that the burden of proof to establish the exception has been met by the party objecting to return. However, in these specific circumstances, the national and international situation is developing at such speed that any evidence that could be gathered would be likely to be immediately outdated. Something very convenient for the abducting parent, it would be almost enough if the Court ex officio conducts check on the actual COVID-19 information regarding the state of habitual residence of the child, ensuring it is current when issuing the return or non-return order. However, this does not relieve the opposing party from the procedural obligation to present evidence as accurately as possible, and it remains important that arrangements regarding the “tangible safeguards”, discussed above, are offered and supported by evidence by the party which claims the return order.

There is a further discretionary ground in the Convention which permits a refusal of a return in certain circumstances where the child objects. According to Article 12 UNCRC, the child has the right to express its views freely, these views to be given due weight in accordance with age and maturity, and the Court should carefully examine them together with the other evidence (and not to provide stereotyped reasoning). The COVID-19 limitations raise the question should the child still be heard in this context and, if yes, how this should happen such that the risk for is minimised? Obviously, this right cannot and should not be waived in times when many procedural actions can take place online. It is worth to note that next to the existing legislation, Brussels IIa recast (Regulation 1111/2019, in force as of August 2022) pays special attention to the strengthening of the right of the child to express his or her view, reinforcing it with special provision – Article 26 in Chapter III “International child abduction”, in compliance with a detailed Recital 39. No minimum age is prescribed, but also no rules who can conduct the hearing of the child, how it must happen and where it should be conducted are set. Therefore, the hearing of the child should take place following the general conditions, and while the personal impression will indeed be reduced, and the possibilities to manipulate the child could potentially increase, the unlimited online tools to conduct the hearing eliminate the risk of contamination and offers acceptable solution for this emergency situation.

To get back to the discussed case – Re PT [2020] EWHC 834 (Fam), the Court is satisfied that the Art 13(b) defence has not been made out in this case. Many more comments could be made on the Courts assessment – the best interest of the child is not touched upon, the domestic violence is not discussed at all as an additional assertion, etc. One positive conclusion from procedural point of view is that the urgency has been taken into account, and that the Court made full use of the opportunities to conduct the proceedings online. Of course we cannot say that the return of a child during the COVID-19 pandemic constitutes a grave risk in all child abduction cases– but we can at least begin to build the good practices in this unprecedented time, when the “lockdown” will bring brand new meaning to the notion of “grave risk” under the Convention.

Nadia Rusinova is an attorney-at-law and lecturer in International and European private law at The Hague University, Netherlands. Next to her teaching and research activities, she is a regular ERA speaker and judicial trainer in children’s rights and international family law, delivering multidisciplinary trainings for legal professionals on international child abduction, children’s rights, ECtHR case law in family matters, LGBTQ rights, gender-inclusive language and trafficking of children. She is appointed as an expert in these areas of law in various projects, involving countries of broad geographic range. Originally Bulgarian, she holds an LL.M. degree from Sofia University, and for more than 15 years she has been successfully managing a specialized international family law office in Sofia, Bulgaria.

Dear CoL Readers,

While we are all deeply concerned about the still growing dimensions of the coronavirus pandemic, we did not want to give up working on the programme of our conference.

Thanks to the HCCH, the Bonn PIL colleagues and our distinguished speakers, there is now a fantastic programme we would like to bring to your attention in this post (see below).

Meanwhile, we will closely follow the instructions of the University of Bonn as well as the German local and federal governments and travel restrictions in other countries to see whether the conference can take place on site. We have not yet given up optimism in this respect. Yet, safety must be first. This is why we are setting up structures for a video conference via zoom in case we need it. We assume that all of you would agree to proceeding via zoom if necessary. We will take a final and corona risk-averse decision on this during July and keep you posted. Please do not hesitate to register with us (sekretariat.weller@jura.uni-bonn.de) if you wish to be updated by email.

Looking forward to seeing you in Bonn in September!

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Matthias Lehmann, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 25 and 26 September 2020, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the European Commission (DG Trade, DG Justice), and and the German Federal Ministry of Justice and Consumer Protection (Bundesministerium der Justiz und für Verbraucherschutz)

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

Dates:

Friday, 25 September 2020, and Saturday, 26 September 2020.

Venue:

Friday:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

Saturday:

Main Auditorium (Aula), Hauptgebäude, Am Hof 21, 53113 Bonn

Registration: sekretariat.weller@jura.uni-bonn.de

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:    INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 25 September 2020

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part 1: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 1: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich

Discussion

3.30 p.m.     Coffee Break

4.00 p.m.      Part II: Chances and Challenges of the HCCH 2019 Judgments Convention

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

1. Jurisdictional filters

Prof Dr Pietro Franzina, Catholic University of Milan

2. Grounds for refusal

Prof Dr Francisco Garcimartín Alférez, University of Madrid

Discussion

5.30 p.m.     Panel Discussion: Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries

Chairs of Part 3: Prof Dr Matthias Weller / Prof Dr Matthias Lehmann

Colin Brown, Unit Dispute Settlement and Legal Aspects of Trade Policy, DG Trade (tbc)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”

Dr Jan Teubel, German Federal Ministry of Justice and Consumer Protection

RA Dr Heiko Heppner, Attorney at Law (New York), Barrister and Solicitor Advocate (England and Wales), Chair of ILEX, Head of Dispute Resolution, Partner Dentons, Frankfurt

and perhaps more…

Discussion

7 p.m.          Conference Dinner

  

Saturday, 26 September 2020

9.00 a.m.      The context of the HCCH 2019 Judgments Convention

Chairs of Part 4: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

2. Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling

3. Relations to the Brussels Regime / Lugano Convention

Prof Marie-Elodie Ancel, Université Paris-Est Créteil

4. Brexit…

Dr Pippa Rogerson, Reader in Private International Law, Faculty of Law, Cambridge

Discussion

11:00 a.m.    Coffee Break

11:30 a.m.    Chairs of Part 5: Prof Dr Nina Dethloff / Prof Dr Matthias Lehmann

1. South European Neighbouring and Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

2. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh

3. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle

4. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

Discussion

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

 

William S. Dodge (University of California, Davis) has published The New Presumption against Extraterritoriality in the Harvard Law Review.

Canons of statutory interpretation are sometimes said to promote continuity and stability in the law. Yet it is widely acknowledged that canons themselves often change. The presumption against extraterritoriality is a prime example. It evolved from a rule based on international law, to a canon of comity, to a tool for finding legislative intent. The presumption then fell into disuse for nearly forty years until it was reborn in EEOC v. Arabian American Oil Co. (Aramco) and substantially revised in Morrison v. National Australia Bank Ltd.

This Article makes three contributions. First, it describes the evolution of the presumption against extraterritoriality over two centuries, providing a detailed account of change in an important canon of interpretation. Second, the Article describes the new, post-2010 presumption, arguing — contrary to the conventional wisdom — that the current version of the presumption is superior to previous ones. Third, the Article addresses the problem of changing canons. It argues changing canons constitute a form of dynamic statutory interpretation, which imposes certain responsibilities: to justify the changed canon in normative terms, to explain the need for change, and to mitigate the transition costs.

The article can be freely accessed here.

This item has been in the queue a long time – apologies. Thank you Marco Vogels for reporting end of 2019 on the Rotterdam court’s approach re privilege in ECLI:NL:RBROT:2019:7856, a criminal prosecution involving Shell. Marco’s report is most complete and I am happy to refer.

Compare the Dutch approach to my earlier reports on the issue in England and in the US. The Rotterdam court takes the law of the place of establishment of the (self-employed) solicitors as the connecting factor, ditto for in-house lawyers (on which The Netherlands takes an unusual (bu continental European standards) position of professional privilege). However the court also held that privilege falls away for the whole in-house legal department and all its lawyers, foreign established or not, if the head of legal is member of the Executive Committee.

Geert.

Springer has recently published a new volume on Private International Law Aspects of Corporate Social Responsibility in the series Ius Comparatum – Global Studies in Comparative Law. The book has been edited by Catherine Kessedjian (University Panthéon-Assas Paris II) and Humberto Cantú Rivera (Universidad de Monterrey, Mexico).

This book addresses one of the core challenges in the corporate social responsibility (or business and human rights) debate: how to ensure adequate access to remedy for victims of corporate abuses that infringe upon their human rights. However, ensuring access to remedy depends on a series of normative and judicial elements that become highly complex when disputes are transnational. In such cases, courts need to consider and apply different laws that relate to company governance, to determine the competent forum, to define which bodies of law to apply, and to ensure the adequate execution of judgments. The book also discusses how alternative methods of dispute settlement can relate to this topic, and the important role that private international law plays in access to remedy for corporate-related human rights abuses.This collection comprises 20 national reports from jurisdictions in Europe, North America, Latin America and Asia, addressing the private international law aspects of corporate social responsibility. They provide an overview of the legal differences between geographical areas, and offer numerous examples of how states and their courts have resolved disputes involving private international law elements. The book draws two preliminary conclusions: that there is a need for a better understanding of the role that private international law plays in cases involving transnational elements, in order to better design transnational solutions to the issues posed by economic globalisation; and that the treaty negotiations on business and human rights in the United Nations could offer a forum to clarify and unify several of the elements that underpin transnational disputes involving corporate human rights abuses, which could also help to identify and bridge the existing gaps that limit effective access to remedy. Adopting a comparative approach, this book appeals to academics, lawyers, judges and legislators concerned with the issue of access to remedy and reparation for corporate abuses under the prism of private international law.

More information is available here.

By virtue of an ‘Act of Legislative Content’ pursuant to Article 44 Greek Constitution, the Hellenic Republic passed on April 13 a series of urgent measures for the overall protection of the public against the virus. Among the multitude of provisions emanating from various ministries, four articles feature an identical overriding mandatory rule.

In particular, the rule concerns four categories: Cancellation of flights [Article 61]; cancellation of marine transport (carriage of passengers) [Article 65]; package travel and linked travel arrangements [Article 70]; and contracts between tourism industry enterprises [Article 71]. The content of the provisions is common: instead of reimbursement, it offers the option of vouchers by carriers and businesses in the respective branches.

The wording is the following:

Provided that the pertinent rights are regulated by EU law, the above provisions shall additionally apply mandatorily to contracts concluded between the parties, irrespective whether they agreed on the application of Greek or foreign law.

 

Understandably, the above provisions raise interesting questions of PIL; Matthias Lehmann provided a first glance of the potential problems here.

In Terre Neuve SARL & Ors v Yewdale Ltd & Ors [2020] EWHC 772 (Comm), Bryan J entertains almost the entire jurisdictional chapter of the Handbook.

The proceedings are concerned with the alleged misappropriation of a sum of €10.6 million paid by the First Claimant (“Terre Neuve”) to the First Defendant (“Yewdale”) between July 2009 and September 2012, and thereafter allegedly misapplied with the alleged participation of other Defendants. The sums were paid pursuant to a tax optimisation scheme ultimately for the benefit of the Third Claimant (“Mr. Zahut”), who beneficially owned Terre Neuve and the Second Claimant (“Largely”). The scheme was allegedly created by a Mr. Sasson (now deceased), who gave tax advice through his company, the Third Defendant (“GPF”) and controlled Yewdale (an English company) and the Second Defendant (“REDS”) (a New York company).

In this preliminary judgment, plenty of the defendants challenge jurisdiction, even if as discussed at 11 ff, following judgment by Hancock J in [2019] EWHC 1119 (Comm), confirmed in [2019] EWHC 1847 (Comm), the action is already proceeding in England against Yewdale (which has been found to be a valid anchor defendant per Article 4 Brussels Ia) as well as a number of the overseas defendants: both those domiciled in Switzerland, and elsewhere. Co-defendants in current case were not involved in those earlier hearings.

Firstly, GPF, third defendant, challenges jurisdiction under Article 23 Lugano, more or less but not quite the same as Article 25 BIa. At 22 ff Bryan J cuts too many corners in my view. He extends CJEU precedent on Brussels I and Ia without question to Lugano construction. He unhesitatingly adopts English law (with Fiona Trust in the authority driver’s seat and with reference to the recent Etihad case) as the lex causae for the choice of court agreement. This is as lex fori additi I assume; the actual text of the choice of court agreement is not included in the judgment lest I looked over it however one can deduct the choice points to Switzerland. He is right in holding that the answer to the contractual construction of the choice of court agreement cannot be found in either Lugano or Brussels itself.

At 44 ff he decides that Claimants’ claims do not fall within the scope of any of the jurisdiction clauses in the Written Agreements, pointing away from England.

Next, a group of co-Defendants, who the Claimants allege were involved in and/or benefited from the misappropriation, challenge the jurisdiction of the English Court on various grounds, inter alia: that the claims against them are not sufficiently closely connected to be heard with the claims against the other Defendants in this jurisdiction, pursuant to Article 6(1) Lugano, and should instead be tried in Switzerland pursuant to Article 2 Lugano; that the claims against them would be more conveniently heard in Switzerland; that bringing proceedings against them in England is an abuse of process; that they should be tried in Switzerland pursuant to Article 5 Lugano; that proceedings against them in England are a breach of their rights under Article 6 ECHR; and that various agreements contain jurisdiction clauses which prevent the English Court from hearing the case against them.

In short (note all the authority he employs has been reviewed on this blog, both CJEU (e.g. Melzer) and English) Bryan J finds the cases are clearly related under Article 6 Lugano; forum non conveniens must not be entertained; and there is no abuse of EU law (a popular part of jurisdictional challenge following Vedanta); some of the defendants have submitted; Article 5 Lugano’s forum contractus is irrelevant for it only brings additional, not exclusive jurisdiction; Article 6 ECHR is clearly not breached (practical difficulties of attending, for instance, may be solved by modern means); arbitration in New York first of all does not engage an EU court and secondly of course arbitration is exempt from Lugano.

Finally the one co-defendant domiciled in Israel is nevertheless pulled into the English jurisdictional bath by application of residual English rules (serious issue to be tried; necessary and proper party).

Quite a lot to discuss by way of preliminary jurisdictional issue…

Geert.

 

A Lugano /Brussels I jurisdictional fest. Includes consideration of anchor defendants, A25 choice of court, A4 jurisdiction. https://t.co/vyrRJ9zIkS

— Geert Van Calster (@GAVClaw) March 31, 2020

On 1 April 2020, the UK Supreme Court ruled in Aspen Underwriting Ltd v Credit Europe Bank on the concept of insurance matters under the Brussels I bis Regulation and the scope of the protection it offers.

The background of the case was the loss of a vessel which took fire and then sank in the Gulf of Aden in 2013. The owners of the vessel negotiated a settlement agreement with the insurers (Aspen Underwriting) for a sum of $ 22m.

Before the loss, a Dutch Bank, Credit Europe, had funded the re-financing of the vessel and, in exchange, was assigned the insurance policy. However, the Bank did not participate in the negotiations after the loss and, at the request of the owners, issued a letter to the insurers requesting that they pay any claim to a nominated company, which the insurers eventually did.

Three years after the loss, it appeared that the owners had deliberately sunk the vessel in the Gulf of Aden. The insurers sued both the owners and the bank in London pursuant to an exclusive jurisdiction clause contained in the insurance policy. The bank challenged the jurisdiction of the English courts.

Two issues arose. The first was whether the jurisdiction clause was binding on the bank. The second was whether the bank could benefit from the special provisions relating to insurance matters in the Brussels Ibis Regulation, in particular Art 14 which provides that insurers may only bring claims in the court of the domicile of the beneficiary of the insurance.

Assignment of the Jurisdiction Clause

The bank was not a signatory of the insurance policy. It had been assigned the policy. Under the case law of the CJEU (Coreck, Case C-387/98), a third party will be bound by a clause if it became a successor to a party under the applicable national law. In this case, the applicable national law was English law.

The Supreme Court held that, under English law, the bank was not bound by the jurisdiction clause.

26. The Bank’s entitlement to receive the proceeds of the Policy in the event that there was an insured casualty rests on its status as an equitable assignee. It is trite law that an assignment transfers rights under a contract but, absent the consent of the party to whom contractual obligations are owed, cannot transfer those obligations (…). An assignment of contractual rights does not make the assignee a party to the contract. It is nonetheless well established that a contractual right may be conditional or qualified. If so, its assignment does not allow the assignee to exercise the right without being subject to the conditions or qualifications in question.

The bank, therefore, could have asserted its assigned rights in a way that was inconsistent with the terms of the Policy, including the jurisdiction clause. But the Supreme Court held that the bank had not:

29 In the present case the Bank did not commence legal proceedings to enforce its claim. Indeed, it did not even assert its claim but left it to the Owners and the Managers to agree with the Insurers the arrangements for the release of the proceeds of the insurance policy by entering into the Settlement Agreement. It is not disputed that the Bank was not a party to the Settlement Agreement and the Bank derived no rights from that agreement. The Letter of Authority, which the Bank produced at the request of the Owners and the Managers, enabled both the Insurers and Willis Ltd to obtain discharges of their obligations and to that end it was attached to the Settlement Agreement. The Letter of Authority facilitated the settlement between the Insurers and the Owners and provided the Owners/Managers with a mechanism by which the Bank as mortgagee, assignee and loss payee could receive its entitlement. At the time of payment of the proceeds of the Policy there was no dispute as to the Bank’s entitlement and no need for legal proceedings. There was therefore no inconsistency between the Bank’s actions and the exclusive jurisdiction clause. The Bank therefore is not bound by an agreement as to jurisdiction under article 15 or article 25 of the Regulation.

Matters Relating to Insurance

If the jurisdiction clause did not Apply, what was the applicable ground for jurisdiction? Was it the general rule for misrepresentation (Art 7(2)), or could the bank benefit from the special provisions in the Brussels Ibis Regulation on matters relating to insurance?

The insurers argued that these provisions were only available if the subject matter of the claim was, at least in substance, a breach of an obligation contained in, and required to be performed by, an insurance contract. The Supreme court rejected the argument as follows (from the Press Sumary of the Court):

The Supreme Court finds that the Insurers’ claims against the Bank are “matters relating to insurance” within the meaning of section 3 of the Regulation [41]. The Supreme Court notes that the title of section 3 is drafted in broader language than other sections of the Regulation, which refer to individual contracts [35]. It is also significant that the scheme of section 3 is concerned with the rights not only of parties to an insurance contract but also of beneficiaries and injured parties, who will typically be non-parties [36]. The recitals to the Regulation do not operate to narrow the scope of section 3 [37]. Whereas EU case law indicates that articles derogating from the general rule in article 4 should be interpreted strictly, article 14 operates to reinforce article 4 and so need not be read narrowly [38]. Even if section 3 were to apply only to claims based on a breach of an individual insurance contract, the insurance fraud alleged by the Insurers would inevitably entail a breach of the Policy [40].

Is there a Weaker Party Exception for Insurance Contracts?

Finally, the lower courts had ruled that the rationale for the special provisions on insurance matters were to protect weaker parties, and that the bank was not one.

The argument is rejected by the Supreme Court on the following grounds (from the Press Sumary of the Court):

The Supreme Court holds that there is no “weaker party” exception to the protection of article 14 [43]. Article 14 protects certain categories of person because they are generally the “weaker party” in a commercial negotiation with an insurance company, not because of their individual characteristics [44]. Whilst recital (18) explains the policy behind section 3, it is the words of article 14 which have legal effect [45]. Article 14 refers to the policyholder, the insured and the beneficiary without further qualification and derogations from the jurisdictional rules in matters of insurance must be interpreted strictly [46, 57]. In any case, it would undermine legal certainty if the applicability of section 3 were to depend on a case by case analysis of the relative strength or weakness of contracting parties. This is why the Court of Justice of the European Union (“CJEU”) has treated everyone within the categories identified in article 14 as protected unless the Regulation explicitly provides otherwise [47-49]. The CJEU only has regard to recital (18) in deciding whether to extend the protections of article 14 to persons who do not fall within the identified categories, not to decide whether a particular policyholder, insured or beneficiary is to be protected [50-56]. Further, in deciding whether to extend the protections of article 14 in this way, the CJEU seeks to uphold the general rule in article 4 [43].

Many thanks, Dr Richard Schmidt for signalling and reviewing  the recent Hungarian Supreme Court judgment (in Hungarian) discussing unilateral aka asymmetric aka hybrid choice of court. I do not have Hungarian and happily rely on Richard’s analysis and review.

As Richard reports, the contract was governed by the law of Liechtenstein and provided that any legal disputes would be brought before the court of Vaduz (Liech). However, the claimants had the option of seeking the performance of the contract before the courts of the defendant’s domicile. The defendant failed to pay the service charges and the claimants sued him in Hungary.

Upon appeal it seems the lower courts had held that choice of court ex-EU is not covered by Brussels Ia (compare CJEU Gothaer) and stayed the case in favour of the court at Vaduz. The Supreme Court however in principle would see to have upheld the choice of court provision as exercised by the claimant even if it decided the case ultimately on a finding of submission.

As I said I do not read Hungarian, text search however does not suggest that the SC looked at the issue at all viz Brussels Ia. Which is odd.

Richard justifiably refers to the approaches of both the English (see e.g. here) and the French Courts (contrast Rotschild with Apple). Thankfully there is now also the volume edited by Mary Keyes, looking comparatively at the issue (Michiel Poesen and I contributed the Belgian chapter).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.11.1, Heading 2.2.11.2 .

 

 

Most interesting Hungarian SC judgment on asymmetric choice of court.
Case in the end turned on submission (voluntary appearance). Adopts an approach on such unilateral jurisdiction clauses somewhere between the EN and (former) FR approach. https://t.co/u2a5mpYBss

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

Written by Elijah Granet

In a recent decision of the Family Division of the English and Welsh High Court—VB v TR (Re RR) [2020] EWFC  28, Mr Justice Mostyn highlighted a lacuna in the protection of children from abduction under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the Convention’).  As a result of what Mr Justice Mostyn (at para 7) refers to  as a ‘colonial anachronism’, unconsented removals of children from the British overseas territory of Bermuda to the UK proper fall outside the remit of either the convention or domestic law.

Facts

VB and TR are parents from Bermuda with a young son, RR.  In 2019, TR removed RR from Bermuda secretly, without the consent of VB, and in violation of Bermudian court orders.  The UK ratified the 1980 Convention on the Civil Aspects of International Child Abduction in 1986 and implemented it domestically by way of the Child Abduction and Custody Act 1985.  Section 28(1)(c) of that Act enables the UK to extend the effect of the Convention to Overseas Territories by means of an Order in Council.  However, Bermuda, which enjoys full internal self-governance (with its own laws, parliament, and courts) instead passed the International Child Abduction Act 1988, which essentially transposed the 1985 Act into Bermudian law.  As a consequence, the UK made an Article 39 Notification  declaring that the Convention applied to Bermuda, which is now listed in the annex of authorities required by Article 18 of the Convention.

Decision

As both Bermuda and the UK are signatories to the Convention, one would expect that arrangements for the return of RR could be easily carried out.  Mr Justice Mostyn notes (at para 12), if TR had gone to the USA (or indeed, any state other than the UK), the Convention would unquestionably applied as Bermuda is listed in the aforementioned annex of authorities.  The problem arises because, for the purposes of the Convention, the UK and Bermuda are a single state party; therefore, because there is no ‘international’ element to child abduction between the UK and Bermuda, the Convention is not considered to apply.  This ‘counterintuitive’   (para 21) state of affairs has caused confusion, including a 2014 ruling which (mistakenly) held that Bermuda is not a party to the Convention.

Of course, there is no inherent problem with the Convention being inapplicable between different British jurisdictions. For example, if a parent who removed a child from  Northern Ireland to England against a court order, the English court would automatically recognize the Northern Irish court order under the Family Law Act 1986, s 25, which provides for mutual enforcement of family court orders across the UK. However, that Act does not apply to Bermuda, because Bermuda is not a part of the United Kingdom (whatever the Convention might say).  A Bermudian court is, for all intents and purposes, a foreign court in the eyes of the law of England and Wales.

Thus, there is a paradoxical and frustrating outcome: for the purposes of the Convention, Bermuda is part of the UK, but, for the purposes of  English and Welsh family law, Bermuda is a foreign country. This is contrary to the intention of both the Bermudian and British Parliaments in implementing the Convention: namely, to prevent the unlawful abduction of children. The result is that Mr Justice Mostyn, rather than beginning with the presumption that RR should be returned (as he would under the Convention) or automatically implementing the Bermudian court’s order (as he would with a court from a ‘domestic’ UK jurisdiction), was forced to essentially ignore the Bermudian court’s order, and to circuitously employ a complex legal test under the Children Act 1989, s 1(1) to determine if it would be in the interests of the welfare of RR for him to be returned to Bermuda. Mr Justice Mostyn ultimately held that it was in the child’s best interests to return to Bermuda, albeit at a time more conducive to international travel than the current pandemic. The only alternative route would be to employ the test for the recognition of foreign custodial orders set out by the Privy Council in C v C (Jersey) [2019] UKPC 40, which focuses on questions of public policy rather than the child’s welfare.

Comment

The lacuna in the UK’s regime for protecting against child abduction is, as Mr Justice Mostyn correctly put it (at para 12), ‘an embarrassment’. The defect in this very important area of the law was so severe that the judge felt it appropriate to state (in the same paragraphs) , bluntly, ‘the law needs to be changed’—either to add Bermuda (and other overseas territories) to the domestic list of recognised Hague Convention authorities,  or to extend the automatic recognition of orders under the Family Law Act to all British Overseas Territories. Either option would be a welcome and necessary respite from the current state of affairs, by which abduction from a territory party to the Convention (Bermuda) to another party (the UK) is not covered by the law.  In a matter as serious as this, it is astonishing that, two decades after Bermuda joined the Convention, there is still no UK framework for ensuring the swift return of abducted children to their homes.

 

The Max Planck Institute Luxembourg has launched a call for applications for PhD scholarships in 2021.

Advanced doctoral students working in comparative procedural law, international procedural law and adjudication are invited to apply by 15 May 2020. While proficiency in English is compulsory to be able to participate in the Institute’s scientific activities, the call is also open to doctoral candidates writing their thesis in a language other than English.

The scholarship offers young scientists the opportunity to stimulate their scientific inspiration and advance their research in a dynamic environment. In addition to a monthly grant of 1.500 €, the selected candidates will be offered a workstation in the reading room, and will have the opportunity to participate in the Institute’s scientific activities.

To apply, the interested candidates meeting the requirements of the call must submit the following documents, in English: a cover letter (max. 1 page), stating the motivation for their application, the correlation between the topic of their research and the Institute’s areas of research, and the desired time frame for the scholarship stay; an up-to-date curriculum vitae, with an indication of the class of degree awarded (undergraduate and postgraduate, if relevant); a summary of the PhD project (max. 2 pages), including subject, description and work plan; two letters of recommendation (including one from the PhD supervisor, with his/her contact details).

More information about the call is available here.

Contact persons: Christiane Göbel & Viktoria Drumm, scholarship@mpi.lu.

Research demonstrates that the permanent income loss for the Asia-Pacific region, including India, from the impact of COVID-19 to be $620 billion as of March 24, 2020. It is undeniable that the pandemic has not only resulted in the loss of human health and life but has also adversely affected the Indian economy. A United Nations labour report states that the Coronavirus has impacted tens of millions of informal sector workers as of 8th April 2020, and is predicted to put around 2 billion more people at risk. The Indian economy has been severely hit since most of the Indian population consists of daily wage workers. On 24th March 2020, the Prime Minister invoked his powers under Sec.6(2)(i) of the National Disaster Management Act, 2005, to enforce a lockdown for an initial period of 21 days in the country with effect from 25th March 2020. The “total” lockdown has now been extended until 3 May 2020 and, will be treated under force majeure as per the Government order. The current scenario where India is put under what is reported to be the “world’s most stringent lockdown” (also referred to as Lockdown 2.0) has forced millions of persons out of work, with the hardest hit being the poor, including the daily wage earners and migrant workers. Besides, airports, private clinics and most other shops providing daily essentials have shut.

Drawing from the situation in other countries, India reflected on its own capacity to prevent pandemic considering the resources available in the country. This is a country of 1.3 billion people and the healthcare system in place is very fragile. The latest National Health Profile 2019, released in October 2019, shows India’s public expenditure on health has been less than 1.3% of the GDP for many years. The investment in public healthcare is one of the lowest in the world as the country is more driven towards private investment in healthcare. This will result in human cost because the treatment cost, which involves vaccines, tests and medical facilities, will be more than what most of the population will be able to afford. Looking at the lack of accessibility and affordability to medical care the Prime Minister has announced a public charitable trust under the name of ‘Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund’ (PM CARES Fund)’ with the Prime Minister as the Chairman of the trust. In face of such a high-risk situation, the WHO Country Office for India is working closely with the Ministry of Health and Family Welfare (MoHFW) to strengthen surveillance, build the capacity of the health system and optimize the ‘window of opportunity’ created by mandatory physical distancing in India. Even though such rampant measures have been taken, India is still not fully equipped to deal with a full-scale pandemic.

The outbreak and the consequent Government decision have resulted in an overwhelming financial/economic loss to the Indian population. People have been banned from leaving homes and supply to all ‘non-essential’ commodities has been cut-off to prevent a further spread of the deadly virus, which originated in Wuhan, China. The recent times additionally witnessed the Indian Government’s order to blacklist the 960 foreigners who participated in the Tablighi Jamaat Meetings as they became a key source for the spread of Coronavirus in India. These foreigners violated the terms of their tourist visas by attending an Islamic congregation at the Nizamuddin Market in New Delhi in March. The foreigners were found in different states all over the country and as on 2nd April, 245 COVID-19 cases and about 12 deaths in the country were found to have links with the Tablighi Jamaat Meeting.

Recently, citizens of the United States filed a class-action suit filed against the Chinese Government for damages suffered as a result of “incalculable harm” done to the plaintiffs. Whether the near future will see a similar class-action suit by Indian citizens against the Chinese Government and the 960 Tablighi Jamaat foreigners, remains to be seen.

Under India’s conflict of law rules, which remain uncodified, an Indian court can assume jurisdiction by being the place where the cause of action – in this case, the tort occurred. Sections 9 and 86 of the Code of Civil Procedure 1908 empowers the courts in India to try all suits, which result in damage caused by negligence, including those initiated by Indian citizens against foreign entities. At the same time, India lacks any coherent mechanism to identify the applicable law that will govern damages arising from such transnational torts. Rigidly following the common law principles, India continues to hold fast to the traditional principle of ‘double actionability’ – a rule, which has long been discarded by all other common law jurisdictions including Australia and Canada.

Under the present rules, the plaintiff(s) suing before an Indian court will have to prove that the act of the Chinese government in concealing the nature of the virus and failing to take appropriate steps to contain it, was actionable under the Chinese and Indian law – upon which, the suit will be governed concurrently by the Chinese and the Indian law of tort.

Under the Indian law of torts, the plaintiffs will need to prove a breach in a duty of care on the part of the Chinese government and the Tablighi Jamaat attendees who were foreign nationals, which caused the tort of negligence. The Indian law of torts is based on the principles of Common Law as iterated in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum (1992 ACJ 792). According to the common law principles as evolved by the House of Lords, negligence signifies failure in executing a degree of care which should have been exercised by the doer. The essentials for establishing negligence under the Indian law may be summarized as follows. Firstly, that the defendant owed a “legal” duty of care towards the plaintiff. Secondly, that there was a breach of this duty; and thirdly, that the plaintiff experienced damage (including economic loss) as a result of such breach by the defendant.

In the international realm, China’s ‘duty of care’ towards India and its citizens may be traced through the relevant provisions of the International Covenant on Economic, Social and Cultural Rights and the International Health Regulations of 2005. Under Article 12(2)(c) of the International Covenant on Economic, Social and Cultural Rights, the Chinese government was under a duty to take measures for the “(t)he prevention, treatment and control of epidemic, endemic, occupational and other diseases” for nationals and non-nationals alike. However, this provision does not extend to economic loss. In particular, China’s duty of care towards non-nationals may be recognised under the International Health Regulations of 2005 as well. As per Article 6 of the IHR, China was required to notify the WHO of the “events which may constitute a public health emergency of international concern within its territory”. Hence, China owed a legal duty of care towards its non-nationals.  This legal duty towards the non-nationals can further be extended to infer as a duty towards other countries and their nationals.

Since China failed to notify the World Health Organisation according to the International Health Regulations of 2005 within sufficient time despite the given indications towards the public health concern, it has negligently breached its duty of care towards the rest of the world.  Dr. Li Wenliang was the first to create awareness and intimate the Chinese Government about the hazardous virus. Instead of adopting effective measures, the Chinese Government reprimanded the scientist. This is depictive of the negligent conduct of the Chinese Government.

On the other hand, the legal duty of care of the 960 foreigners can be established under section 14 of the Foreigners Act, 1946 insofar they had partaken in a religious activity which violates the terms of their tourist visas. Besides, sections 6(2)(i) and 10(2)(l) of the Disaster Management Act, 2005 will also be applicable due to their failure to adhere to social distancing guidelines issued by the government in wake of the COVID-19 outbreak.

At the same time, having regard to the present principles of the Indian conflict of law, no claim before an Indian court for damages in relation to the outbreak will sustain unless the plaintiffs are simultaneously able to prove negligence on the part of the Chinese government and/or under each of the laws of tort of 960 Tablighi Jamaat attendees. Suits initiated in relation to the pandemic in India could, therefore, act as a revolutionary moment for India to ramp-up its conflict of law principles – especially in matters arising from cross-border torts.

That said, the spread of COVID -19 has undoubtedly been one of the most challenging times for the judiciary in all the countries. Countries like the Netherlands and Germany have proven its judiciary to be effective and efficient during the times of crisis by adapting to the digital mode in adjudicating disputes.  In the largest democracy of the world, India, the judiciary has always remained under challenge due to the overwhelming number of litigation matters approaching courts every day.

The humongous load of backlog along with current lockdown had come as a huge blow and stir to the judicial system in India. The Supreme Court has, thus, decided that vital matters before it would be conducting video conferencing.  The digitalisation of the judiciary has been a huge respite especially in the case of granting bails and avoiding overcrowding of the prison to control the spread of the virus. All other smaller courts (including the High Court are shut during the lockdown).

In Lecta Paper [2020] EWHC 382 (Ch), Trower J picks up where Zacarolii J left off in [2019] EWHC 3615 (Ch) (which I briefly flagged in my post here and which is referred to in current judgment 12) and goes through the usual matrix for assessing the international impact of an English scheme of arrangement on the European continent.

Ultimate parent company is a Luxembourg company, with further controlling interests held by yet another Luxembourg and a Spanish company. A 10-11 Trower J flags a sensitive issue for credit and other financial arrangements: financial instruments subject to New York law, where amended to English law as governing law and the courts at England as non-exclusive jurisdiction. This was done in accordance with New York law, and approved by over 90% of the instruments’ holders. Yet again therefore a crucial question viz schemes of arrangement and the Brussels jurisdictional and applicable law regimes remains unaddressed, namely the event of opposition of a sizeable stake of creditors.

At 33 ff the issue of jurisdiction is discussed along the lines of Apcoa, Codere and NN2 Newco. Under residual private international law, the sufficient connection to England, engineered by the aforementioned change of governing law and jurisdiction in line with the law governing the instruments at the time (New York law, at 38), was held not to be unfair viz the creditors even in the case of the mother company with COMI in Luxembourg. At 44 ff Trower J returns to the issue of whether Brussels Ia can apply at all to the case, particularly via Article 4 juncto Article 8(1), holding for application of Article 25 in the end. However as in the authority he applies, there continue to be a lot of assumptions in this analysis which, failing substantial opposition by creditors, still have not been settled by either UK, CJEU or continental authority.

At 40 follows the equally standard reference to national experts testifying to the scheme’s recognition in the jurisdictions concerned: France, Italy, Spain, Luxembourg.

At 41 Trower J then briefly mentions Brexit (see my reference to similar cases here). Referring again to the national experts but also to his own insight, Justice Trower simply notes that

‘The Recast Judgments Regulation will continue to apply to the recognition of an English judgment in EU member states, notwithstanding the occurrence of Brexit, provided that the judgment has been given in proceedings which were instituted before 31 December 2020, being the end of the transition period. This follows from Article 67(2) of the Withdrawal Agreement. It follows that any sanction order made in this case should be recognised in EU member states, pursuant to the Recast Judgments Regulation, as will their own domestic law dealing with the recognition of judgments. It is also the case that the application of the Rome I Regulation ought to be unaffected by Brexit in any event. As I read the expert reports, they each confirm that that Regulation will continue to apply after the end of the transition period so that the law of the jurisdiction in respect of which they give evidence will recognise the governing law of the relevant contracts, in this case English law, as applying to the variation and discharge of rights under that contract.’

Note as I did above, the continuing Brussels IA cover assumptions, as well as the position post Brexit (whether under Lugano 2007 or not, remains to be seen).

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

 

Peter Mankowski is the editor of a Research Handbook on the Brussels Ibis Regulation, juest published by Edward Elgar.

Here’s the blurb.

The Brussels Ibis Regulation is the magna carta for jurisdiction and the free circulation of judgments in civil and commercial matters in the EU, and forms a cornerstone of the internal market. This timely Research Handbook addresses the cutting edges of the regime, in particular its place within the overall system of EU law and its adaptations in response to specific kinds of lawsuits or the needs of particular industries.

Featuring original research by leading academics from across Europe, chapters take a systematic approach to examining a broad variety of topics in relation to the Brussels Ibis Regulation. Such topics include collective redress, injunctive relief, lis pendens and third states, negotiorum gestio, arbitration, intellectual property lawsuits, and its interface with the European Insolvency Regulation (Recast). Moving beyond what is offered by textbooks and commentaries, this incisive Research Handbook analyses the most recent developments in legislation and practice, as well as providing an outlook on the future of this field of EU law.

This Research Handbook will prove a critical read for scholars and students of EU law. Judges and practitioners working in this area will also find its insights to be of significant practical relevance.

Contributors include Tomas Arons, Sylvain Bollée, Tim Dornis, Etienne Farnoux, Thomas Garber, Christian Heinze, Antonio Leandro, Leander D. Loacker, Peter Mankowski, Fabrizio Marongiu Buonaiuti, Johan Meeusen, Dario Moura Vicente, Guillaume Payan, Aukje van Hoek, Cara Warmuth and Matteo Winkler.

For more information see here and here.

Edoardo Rossi is the author of a monograph in Italian titled La Sharing economy nel diritto internazionale privato europeo (Sharing Economy – A European Private International Law Perspective), published by Giappichelli.

The author provided the editors of this blog with an abstract in English. The abstract reads as follows.

In the current economic and social context new and controversial sharing practices, offering anyone the opportunity to search for or make available goods or services on the market regardless of the professional or amateur nature of the persons involved, have emerged. These practices, very heterogeneous and concerning the most different areas of daily life, such as mobility, housing, business activities, communications, work, culture, communication, education and finance, have been linked  to the notion of “sharing economy”, which brings them together by virtue of temporary access to goods or services, facilitated by the large-scale intervention of digital platforms, through which requests and offers are coordinated online in order to share goods or services.

The legitimacy of schemes linked to this new economic models has been challenged in a number of aspects, including low quality of services, safety of consumers, authorisation and licensing, taxes and compliance with competition rules. The inadequacy of the existing rules to deal with the provision of services through the sharing economy models has consequently emerged.

In spite of these critical profiles, the legal relations established through sharing economy platforms are constantly increasing around the world, implying the emergence of elements of transnationality, from which derives the recourse to the rules of private international law, in order to determine the applicable law and the judge competent to rule on any disputes.

The monograph thus attempts to analyse some of the most important private international law issues, such as the inadequacy of the party autonomy in regulating the phenomenon, especially with reference to the general terms and conditions of contract unilaterally drawn up by platform operators, which state that the latter is totally unrelated to the legal relations between users, often in conflict with the minimum level of consumer protection guaranteed by EU law and by the national legislations. Critical profiles have also been identified in the online conclusion of contracts that bind the parties involved in sharing economy legal relations, in ascertaining the effectiveness of consent on the choice of forum and choice of law clauses, in cases of potential related actions and in the location of the “domicile” of the platform operators.

Further information can be found here.

The relationship between the conflict of laws and constitutional law is close in many legal systems, and Australia is no exception. Leading Australian conflict of laws cases, including, for example, John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503, which adopted a lex loci delicti rule for intra-Australian torts, are premised on public law concepts essential to our federation. These cases illustrate how the conflict of laws bleeds into other disciplines.

Love v Commonwealth [2020] HCA 3 is a recent decision of the High Court of Australia that highlights the breadth and blurry edges of our discipline. Most legal commentators would characterise the case in terms of constitutional law and migration law. The Court considered a strange question: can an Aboriginal Australian be an ‘alien’?

Policy background

Australia’s disposition to migration is controversial to say the least. Our government’s migration policies, which often enjoy bi-partisan support, are a source of embarrassment for many Australians. One controversial migration policy involves New Zealanders. Australia and New Zealand enjoy a very close relationship on several fronts, including with respect to private international law: see the Trans-Tasman Proceedings Act 2010 (Cth). New Zealanders often enjoy privileges in Australia that are not afforded to persons of other nationality.

Yet recently, Australia began to deport New Zealanders who had committed crimes in Australia no matter how long they had lived in Australia. In February, New Zealand Prime Minister Jacinda Ardern said that the policy was ‘testing’ our countries’ friendship. Australian Prime Minister Scott Morrison replied, ‘[w]e deport non-citizens who have committed crimes in Australia against our community’. Sections of the Australian community are seeking to change Australia’s policy on point, which is effected by the Migration Act 1958 (Cth).

Facts and issues

The Court heard two special cases together. As Kiefel CJ explained: ‘[e]ach of the plaintiffs was born outside Australia – Mr Love in Papua New Guinea and Mr Thoms in New Zealand. They are citizens of those countries. They have both lived in Australia for substantial periods as holders of visas which permitted their residence but which were subject to revocation. They did not seek to become Australian citizens’.

Section 501(3A) of the Migration Act requires the Minister for Home Affairs to a cancel a person’s visa if they have been convicted of an offence for which a sentence of imprisonment of 12 months or more is provided. Each of the plaintiffs committed crimes and had their visas cancelled. The effect of which was that they became ‘unlawful non-citizens’ who could be removed from Australia.

The plaintiffs’ cases turned on s 51(xix) of the Commonwealth Constitution, which provides:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to… naturalization and aliens…

The plaintiffs contended that they were outside the purview of the Migration Act, the Australian Citizenship Act 2007 (Cth) and s 51(xix) because they each had a special status as a ‘non-citizen, non-alien’. ‘They say that they have that status because although they are non-citizens they cannot be aliens because they are Aboriginal persons’: [3]. Each plaintiff arguably satisfied the tripartite test for Aboriginality recognised at common law and considered below. Thoms was even a native title holder.

The High Court was asked to consider whether each plaintiff was an ‘alien’ within the meaning of s 51(xix) of the Constitution. Kiefel CJ clarified that the question is better understood as follows: ‘whether it is open to the Commonwealth Parliament to treat persons having the characteristics of the plaintiffs as non?citizens for the purposes of the Migration Act’: [4].

The High Court split

The High Court’s seven justices departed from usual practice and each offered their own reasons. The majority of four (Bell, Nettle, Gordon and Edelman JJ) answered as follows:

The majority considers that Aboriginal Australians (understood according to the tripartite test in Mabo v Queensland [No 2] (1992) 175 CLR 1 at 70) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution. The majority is unable, however, to agree as to whether the plaintiff is an Aboriginal Australian on the facts stated in the special case and, therefore, is unable to answer this question.

Arcioni and Thwaites explain: ‘The majority rested their reasoning on the connection of Aboriginal Australians with Australian land and waters. Aboriginal Australians were a unique, sui generis case, such that Aboriginality may generate a class of constitutional members (non-aliens) who are statutory non-citizens’. The minority of Kiefel CJ, Gageler and Keane JJ dissented for different reasons. A common theme of those reasons was that ‘alien’ is the antonym of ‘citizen’.

Is this a choice of law case?

The case is about constitutional law. It is also about status. ‘Alienage or citizenship is a status created by law’: [177] per Keane J. One understanding of the difference between the majority and minority is a difference in opinion as to the applicable law to determine status as ‘alien’ in this context.

According to Nettle J, ‘status [as a member of an Australian Aboriginal society] is inconsistent with alienage’: [272]. ‘Aboriginal Australians are not outsiders or foreigners – they are the descendants of the first peoples of this country, the original inhabitants, and they are recognised as such’: [335] per Gordon J. The majority appealed to the common law’s recognition of native title rights underpinned by traditional laws and customs in support of their analyses (see, eg, [339]).

The minority denied that status as Aboriginal could determine whether a person has the status of an ‘alien’ within the meaning of the Constitution.

Recognition of non-state law?

Nettle J quoted (at [269]) the following passage from the native title case Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422, 445 [49] (Gleeson CJ, Gummow and Hayne JJ):

Laws and customs do not exist in a vacuum. They are, in Professor Julius Stone’s words, ‘socially derivative and non-autonomous’. As Professor Honoré has pointed out, it is axiomatic that ‘all laws are laws of a society or group’. Or as was said earlier, in Paton’s Jurisprudence, ‘law is but a result of all the forces that go to make society’. Law and custom arise out of and, in important respects, go to define a particular society. In this context, ‘society’ is to be understood as a body of persons united in and by its acknowledgment and observance of a body of law and customs.

The status of the laws and customs of Australia’s Aboriginal peoples has been the subject of case consideration for decades. In Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141, 267, for example, Blackburn J said:

The evidence shows a subtle and elaborate system highly adapted to the country in which the people led their lives, which provided a stable order of society and was remarkably free from the vagaries of personal whim or influence. If ever a system could be called “a government of laws, and not of men”, it is that shown in the evidence before me.

Later, in Mabo (No 2), the High Court finally recognised the significance of those laws to recognition of native title. In that case, the Court articulated a tripartite test for whether a person is an Aboriginal Australian: biological descent, self-identification, and recognition by the relevant Aboriginal community (see [291] per Gordon J). As explained further below, satisfaction of this test depends on application of traditional laws and customs. Arguably, satisfaction of the test requires recognition of the positive force of that non-state law.

Against that, Keane J held, ‘[t]he common law’s recognition of customary native title does not entail the recognition of an Aboriginal community’s laws’: [202]. Rather, it goes the other way: Aboriginal laws are necessary for recognition of native title. Kiefel J also explicitly rejected recognition of Aboriginal customary law: ‘[i]t is not the traditional laws and customs which are recognised by the common law. It is native title … which is the subject of recognition by the common law, and to which the common law will give effect. The common law cannot be said by extension to accept or recognise traditional laws and customs as having force or effect in Australia’: [37]. Arguably, this means that there is no choice of law at play in this case: there is just one law at issue, being the law of Australia.

Yet even in transnational cases within the traditional domain of the conflict of laws, Australian courts will only apply foreign laws via application of the lex fori: Pfeiffer, [40]–[41]; Nygh’s Conflict of Laws in Australia, ch 12. For practical purposes, the majority approach does recognise Aboriginal non-state law as capable of application to resolve certain issues of (non-Aboriginal) Australian law.

A choice of law rule?

Nettle J came close to articulation of a new intra-Australian choice of law rule at [271]:

for present purposes, the most significant of the traditional laws and customs of an Aboriginal society are those which allocate authority to elders and other persons to decide questions of membership. Acceptance by persons having that authority, together with descent (an objective criterion long familiar to the common law of status) and self-identification (a protection of individual autonomy), constitutes membership of an Aboriginal society: a status recognised at the “intersection of traditional laws and customs with the common law”.

If there is a choice of law rule in there, its significance might be expressed through this syllogism:

• P1. Whether a person is capable of being deported after committing a serious crime depends on whether they are an ‘alien’.
• P2. Whether a person is an ‘alien’ depends on whether they are ‘Aboriginal’.
• P3. Whether a person is ‘Aboriginal’ depends on whether they satisfy the tripartite test in Mabo [No 2] with respect to a particular Aboriginal society.
• P4. Whether a person satisfies the tripartite test turns on the customary law of the relevant Aboriginal society.

Like questions of foreign law, ‘[w]hether a person is an Aboriginal Australian is a question of fact’: [75] per Bell J. How does one prove the content of the relevant Aboriginal law? Proof of traditional laws and customs often occurs in native title cases. It was considered at [281] per Nettle J:

It was contended by the Commonwealth that it might often prove difficult to establish that an Aboriginal society has maintained continuity in the observance of its traditional laws and customs since the Crown’s acquisition of sovereignty over the Australian territory. No doubt, that is so. But difficulty of proof is not a legitimate basis to hold that a resident member of an Aboriginal society can be regarded as an alien in the ordinary sense of the term. It means only that some persons asserting that status may fail to establish their claims. There is nothing new about disputed questions of fact in claims made by non-citizens that they have an entitlement to remain in this country.

Minority critique of the choice of law approach

As a dissentient in the minority, Gageler J offered a compelling critique of what I construe to be the choice of law approach of the majority (at [137]):

To concede capacity to decide who is and who is not an alien from the perspective of the body politic of the Commonwealth of Australia to a traditional Aboriginal or Torres Strait Islander society or to a contemporary Aboriginal or Torres Strait Islander community, or to any other discrete segment of the people of Australia, would be to concede to a non?constitutional non?representative non?legally?accountable sub?national group a constitutional capacity greater than that conferred on any State Parliament. Yet that would be the practical effect of acceptance of either of the first and second variations of the plaintiffs’ argument.

The choice of non-state law is arguably made more controversial by the character of those laws’ content. Nettle J explained at [276]: ‘As is now understood, central to the traditional laws and customs of Aboriginal communities was, and is, an essentially spiritual connection with “country”, including a responsibility to live in the tracks of ancestral spirits and to care for land and waters to be handed on to future generations’. Gordon J held at [290], ‘[t]hat connection is spiritual or metaphysical’. Tacit in the majority’s mode of analysis, then, is that a person’s spiritual or religious views can have an impact on their status as an ‘alien’, or otherwise, within the Commonwealth Constitution. (A once-Aboriginal non-citizen who lacks those spiritual views and renounces their membership of their Aboriginal society may still be an ‘alien’ following this case: see [279], [372].) From a secular perspective within an increasingly secular nation, that is a striking proposition.

Conclusion

This is not the first time that the relationship between the conflict of laws and issues affecting indigenous peoples has been considered. More generally, whether non-state law may be the subject of choice of law is a topic that has been considered many times before. One of the factors that makes Love v Commonwealth unique, from an Australian legal perspective, is the majority’s effective choice of Aboriginal customary law to determine an important issue of status without really disturbing the common law proposition that Aboriginal groups lack political sovereignty within the Australian federation (see [37], [102], [199]). COVID-19 may have stalled sought after changes to the Australian Constitution with respect to recognition of indigenous peoples (see (2019) 93 Australian Law Journal 929), yet it remains on the national agenda. In any event, Australia’s very white judiciary may not be the best forum for recognition of the sovereignty of Australian Aboriginal and Torres Strait Islander peoples.

Written by Sophie Hunter

With more than 200 countries affected to date, the current crisis presents far reaching implications for competition law and policy on a global scale. This crisis is affecting developed and developing countries alike, especially by putting young competition authorities under a stress test of the resilience of their competition rules.  As the pandemic of COVID19 spreads to every parts of the world, most recently the African continent, competition authorities are looking at whether relaxing their competition rules to allow for cooperation between key actors of the health sector and other essential economic sectors, like the airline industry. However, full or partial relaxation of competition rules may have adverse effects on industries, business and consumers by resulting in anti-competitive practices such as price fixing, excessive pricing and collusion between competitors.

Competition authorities have responded to this crisis in a piecemeal approach. While the European Commission was quick to a temporary framework[1] and relied on measures implemented during the 2008 financial crisis[2] , in the US, the FTC and DOJ only recently issued a guidance note based on previous emergency situations (Harvey and Irma hurricanes) to allow cooperation of competitors in the health sector, especially in the development of vaccines.[3] The UK has granted temporary exemptions from anti collusion rules to supermarkets. An approach also adopted by the German competition authority to ensure continuity of food supplies. South Africa promptly enacted an overall sector wide block exemption for the health sector.[4] Some countries like France and China have toughened up their price regulations.[5]

With a surge in excessive pricing of health-related products such as masks and hand sanitizers, competition authorities are currently dealing with ongoing investigations in a wide range of jurisdictions, namely the UK, France, Brazil, Russia, Spain and Italy. Some have announced price controls over high demand items. This has already been done in France through a decree regulating the price of hand sanitizers to prevent retailers and pharmacists engaging in abusive price increases.[6] Enforcement of sanctions against anti-competitive conducts toughened up, especially from competition authorities in Kenya and China, which have already heavily put sanctions on retailers engaged in excessive pricing of health-related products.

In times of crisis, governments can allow specific exceptions for joint research projects because they understand the need for collaborative efforts between firms to, for instance, develop a vaccine. Such exceptions have already been granted during other pandemics such as Swine Flu in 2009, MERS in 2015 and influenza in 2019. Those exceptions may be exempted from competition rules. For instance, the European Commission has called for an increase effort in research and development at the European level to develop a vaccine against COVID 19 within an exceptional regulatory framework (as it already did in 2009). [7] In South Korea, similarly, the government encouraged the main pharmaceutical companies to work together on a vaccine through an emergency use authorisation that was established post MERS in 2015.[8]

Apart from exceptions, certain countries granted exemptions from anti collusion rules to businesses in specific economic sectors. The most far reaching measures were taken by South Africa with the COVID-19 Block Exemption for the Healthcare Sector 2020. It established price controls on everyday goods as well as a list which exempts hospitals, medical suppliers, laboratories and pathologists, pharmacies, and healthcare funders from engaging in anti-competitive collaboration.[9]Other temporary exemptions have been granted to the airline industry by Norway, the retail sector in Germany, banking in Australia, the distilled spirit industry in the US, education in Denmark and tourisms in Italy and Kazakhstan.

Competition authorities must enforce strict compliance to competition rules, even during this time of pandemic. Despite this, some leverage and legal leeway enacted by certain competition authorities demonstrates a willingness to allow for a temporary flexibility to mitigate the economic impact. This can be achieved through sector specific block exemptions, strict guidance on collaboration in times of emergency or enhanced legislation on price controls. This time of crisis creates a great opportunity for competition authorities around the world to engage in international cooperation to share best practices. Prompt responses to the crisis in developing countries demonstrates the ambition and dynamism of such agencies (Peru, South Africa, Kenya). Nevertheless, it remains to be seen how competition authorities will cope during the crisis with sustaining investigation, enforcement and compliance with competition rules.

 

[1] François-Charles Laprévote, Theodora Zagoriti, Giulio Cesare Rizza, The EU Commission adopts a Temporary Framework to support the economy in the context of the COVID-19 outbreak, 19 March 2020, e-Competitions Bulletin Preview, Art. N° 93837

[2] https://www.concurrences.com/fr/bulletin/special-issues/competition-law-covid-19/competition-policy-covid-19-an-overview-of-antitrust-agencies-responses

[3] https://www.competitionpolicyinternational.com/ftc-and-doj-announce-expedited-antitrust-procedure-for-coronavirus-public-health-efforts/

[4] Minister of Trade and Industry of South Africa, ‘Covid-19 Block Exemption for the Health Care Sector, 2020 – South Africa’ (2020) 657 Government Gazette 12.

[5] State Administration of Market Supervision (SAMR) of People’s Republic of China, ‘Urgent Notice of the General Administration of Market Supervision on Severely Cracking down on Price Violations in the Production of Preventive and Control Materials during the Epidemic Prevention and Control Period’ (5 February 2020) <http://www.gov.cn/zhengce/zhengceku/2020-02/06/content_5475223.htm> accessed 22 March 2020.

[6] ‘Encadrement Des Prix Pour Les Gels Hydroalcooliques’ (Economie.gouv.fr, 2020) <https://www.economie.gouv.fr/dgccrf/encadrement-des-prix-pour-les-gels-hydroalcooliques-voir-la-faq> accessed 22 March 2020.

[7] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Pandemic (H1N1) 2009’ (15 September 2009) 1 <http://op.europa.eu/en/publication-detail/-/publication/9ec8052e-c269-4b57-9be9-4b40c5101d15/language-en> accessed 22 March 2020.

[8] https://www.reuters.com/article/us-health-coronavirus-testing-specialrep/special-report-how-korea-trounced-u-s-in-race-to-test-people-for-coronavirus-idUSKBN2153BW

[9] South African Government, ‘Guidelines – Coronavirus Covid-19 in South Africa’ (23 March 2020) <https://www.gov.za/coronavirus/guidelines> accessed 23 March 2020.

The latest issue of Journal of Private International Law is out. It features the following articles:

Matthias Lehmann – Regulation, global governance and private international law: squaring the triangle

Abstract
Regulatory rules are omnipresent today. Increasingly, they also influence private rights and obligations, from employment contracts to competition law and data protection. Private international law traditionally treats them with a certain reserve because they do not fit its paradigms of “neutral” and “interchangeable” rules of law. This article argues that it is time to change this attitude. Regulatory rules often protect global public goods, such as the environment, or shield against global bads, such as pandemics. Others serve aims shared between different countries, like the fight against money laundering and tax evasion. For these reasons, administrative authorities around the world cooperate in the enforcement of regulation. Private international law should open up its methodology to this new reality. After exploring the traditional ways in which regulation has been dealt with, this article makes concrete proposals for changes. Besides overcoming the “public law taboo”, these include the more liberal application of foreign public law and foreign overriding mandatory rules, the development of multilateral conflicts rules for areas permeated by regulation, the recognition of foreign administrative decisions, and the development of a global public policy.

Adeline Chong – Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia

Abstract
This paper provides a comparative overview of the laws on the recognition and enforcement of foreign judgments in ASEAN and Australia, China, India, Japan and South Korea. It considers the principles which are shared in common and the significant differences in the laws on foreign judgments in the region. This paper argues that the laws which are canvassed here share many principles, albeit the interpretation on certain aspects may differ. Though differences exist, the differences are becoming less sharp. Further, there is a practical need for harmonisation given the plans for closer economic integration in the region. This paper argues that harmonisation is possible and should be pursued.

Maisie Ooi – Re-enfranchising the investor of intermediated securities

Abstract
Efforts to devise a choice-of-law rule for intermediated securities in the last two decades have almost entirely been centred on issues of property and title. Intermediation of securities does not, however, give rise to issues of property alone, even as they are mostly represented as such. The Court of Appeal’s decision in Secure Capital SA v Credit Suisse AG (hereinafter referred to as “Secure Capital”) signals a possibly larger problem of the disenfranchisement of the investor of intermediated securities. Consideration of Secure Capital and its implications on choice-of-law have however been curiously sparse. This article seeks to bring the debate which still continues for issues of property to the issues of disenfranchisement, and to demonstrate why they are no less problematic, complex and in urgent need of a viable solution.

Mekuria Tsegaye Setegn – Legislative inaction and judicial legislation under the Ethiopian private international law regime: an analysis of selected decisions of the Federal Supreme Court’s Cassation Division

Abstract
The Cassation Division of the Ethiopian Federal Supreme Court has the power to review any court decision containing a basic error of law. The interpretations of the Division reviewing such decisions are binding on all other courts. So far, the Division has rendered a handful of binding precedents pertaining to private international law. Nevertheless, the appropriateness of the Division’s decisions in some private international law cases is questionable, let alone correcting errors committed by other courts. In two employment cases, the Division utterly invalidated choice of law agreements concluded by the parties. In another case, it characterized a dispute involving a foreigner as a purely domestic case. Through a critical analysis of the case laws, this Article strives to answer the question of whether the Division’s decisions are consonant to the foundational principles of private international law such as party autonomy. It also examines the validity of the precedents in light of the doctrine of separation of powers. The absence of a dedicated private international law statute and the bindingness of the Division’s decisions make the second question worthwhile. The Article will argue that the Division’s decisions undermine some generally accepted principles such as party autonomy: the decisions involve a judicial invention of eccentric norms. Hence, they also encroach on the lawmaking power of the Legislature.

Sharon Shakargy – Choice of law for surrogacy agreements: in the in-between of status and contract

Abstract

Surrogacy agreements regulate various matters, including parentage, consent to medical procedures, the performance of a very personal service, and monetary compensation. All these questions, which jointly structure the surrogacy, are bundled up together, separated only by extremely fine lines. Collectively, they comprise the basis upon which local and transnational surrogacies are executed. Legislators world-wide hold different positions on the matter of surrogacy in general and on the regulation of each sub-issue in particular; thus, the enforceability and possible outcomes of the procedure vary, depending on the law governing it. As such, it is crucial for the parties to know which law will apply to the surrogacy they are planning. Application of law is usually made by each country’s choice-of-law rules, which at this time are generally non-existent. This paper suggests guidelines for drafting rules to regulate these special agreements and adequately balance the different interests involved.

Felix M. Wilke – Dimensions of coherence in EU conflict-of-law rules

Abstract
EU conflict-of-law rules are contained mainly in six separate Regulations, with several others flanking them. This complex picture raises the questions of how easy access to this area of law is and to what extent it promotes legal certainty and predictability of results. Both issues link to the idea of coherence. Against this background, this article employs several different perspectives to examine the current level of coherence in EU conflict-of-laws rules analytically, also taking into account the recent Commission Proposal for a further Regulation. The article shows that, in particular, many structural and topical parallels exist, and argues that many remaining inconsistencies can easily (and should) be corrected because they are obvious and in part nearly inexplicable outliers.

Chukwuma Samuel Adesina Okoli – International commercial litigation in English-speaking Africa: a critical review (Review Article)