Flux des sites DIP

Reference to the similar law in New York was made in Dankor: see https://wp.me/p289fR-1l2.
This judgment puts pressure on the use of ordre public to enforce ‘local courts only’ rules, although prima facie at least the finding is limited to the FAA hence arbitration proceedings.

Constructlaw.com

Sachse Constr. & Dev. Corp. v. Affirmed Drywall, Corp., 2018 Fla App. Lexis 9998 (July 18, 2018)

Sachse Construction, a Michigan-based general contractor, entered into a subcontract (the “Subcontract”) with Affirmed Drywall Corp. (“Affirmed”), a Florida drywall subcontractor, to perform work on a property in Florida.  The Subcontract provided that all disputes be resolved by mediation and/or arbitration in Southfield, Michigan, or within 20 miles thereof, pursuant to the Construction Industry Rules of the American Arbitration Association and in accordance with Michigan laws.  However, under Section 47.025 of the Florida Statutes, a venue provision in a contract involving a Florida-based contractor or subcontractor, etc., for the improvement of real property located in Florida is considered void as a matter of public policy if it requires that legal action be brought outside of Florida.

Affirmed filed an action in Florida state court alleging claims for breach of contract against Sachse and to…

View original post 293 more words

This post can be classified under ‘better late than never’. Thank you Irina Timp for flagging in December, Inversiones v Cancun at the Dutch Hoge Raad. The case concerned alleged dilution of one company’s (Inversiones) shareholding in another as a result of increased emission of shares orchestrated by another shareholder (Cancun). Note that exclusive jurisdiction under Article 24(2), justifiably, was not suggested.

The Hoge Raad focused on the discussion concerning (now) Article 8(3)’s provision for counterclaims: courts even if not the court of domicile of the defendant have jurisdiction ‘on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending;’ C-185/15 Kostanjevec is the main reference. Of particular note was the language issue: the Dutch version of the text employs ‘rechtsfeit’: suggestion a narrower interpretation than the English version (‘facts’) just quoted. The Hoge Raad justifiably followed the linguistic implications of the majority of language versions (e.g “facts”, “Sachverhalt”. “fait”) and held in favour of jurisdiction on the basis of a counterclaim.

The result of that finding is that it did not further entertain the consequences of Universal Music on the location of the locus damni for diluted shareholdings: what other factors are needed to have the shareholder’s corporate domicile qualify for same?

Geert.

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

S.H. Elsing/A. Shchavelev: The new DIS Arbitration Rules 2018

On 1/3/2018, the new arbitration rules of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS) came into force. The revision process took almost two years and resulted in a comprehensive overhaul of the former arbitration rules which date back to the year 1998. The new rules combine well-tried elements of the former regime with much-anticipated improvements which will help the DIS and the arbitration practice in Germany in general to keep up with the changes and developments in domestic and international arbitration. Notably, the DIS now has two authentic versions of its arbitration rules: a German and an English one. The most relevant amendments include (1) several provisions aimed at enhancing the efficiency of the proceedings and promotion of early settlements; (2) the foundation of a new body, the Arbitration Council, which will now decide, inter alia, on the challenge and removal of arbitrators, the arbitrators’ fees and the amount in dispute; and (3) new comprehensive provisions on consolidation, multi-party and multi-contract proceedings and the joinder of additional parties. In addition, the DIS will now be more closely involved in the administration of the arbitration after the constitution of the arbitral tribunal. With these amendments, the new arbitration rules will arguably become more accessible and thus more appealing to foreign users and will help the DIS to expand its position beyond the German speaking countries towards a truly international arbitral institution.

E. Jayme: Draft of a German statute against the validity of polygamous marriages celebrated abroad – critical remarks

The draft of a German statute against polygamous marriages does not take into account the bilateral treaty on social security between Germany and the Kingdom of Morocco, which presupposes the validity of polygamous marriages: both widows share the social security benefits. In view of current court practice there is no need for a German statute, which in situations in which both spouses have their habitual residence in Germany, provides for court action in order to declare the second marriage null and void. The general clause of public policy (art. 6 of the Introductory Act to the German Civil Code [EGBGB]) seems to be sufficient for dealing with polygamous marriages.

A. Wolf: Jurisdiction of German Courts for cartelists’ recovery claims due to a joint and several liability

In its decision, the Higher Regional Court Hamm determined under § 36 Sec. 1 No. 3 ZPO on the so-called „Schienenkartell“ that the German District Court Dortmund has international jurisdiction for recovery claims between jointly and severally liable cartelists from Germany, Austria and the Czech Republic. Therefor it applied Art. 8 No. 1 Brussels I recast together with German rules on subject matter jurisdiction and interpreted § 32 ZPO following the Court of Justice in its CDC-judgment with regard to Art. 7 No. 2 Brussels I recast.

W. Wurmnest/M. Gömann: Shaping the conflict of law rules on unfair competition and trademark infringements: The “Buddy-Bots” decision of the German Federal Supreme Court

On 12 January 2017 the German Federal Supreme Court (Bundesgerichtshof) rendered its judgment on the unlawful distribution of supporting gaming software – so-called “Buddy-Bots” – for the multiplayer online role-playing game “World of Warcraft”. This article takes a closer look at the application of Art. 6 and Art. 8 Rome II Regulation by the Supreme Court. The authors argue that the principle of uniform interpretation could be threatened by the Court’s tendency to align its reading of European conflict of law rules with the interpretation of the “old” German law now superseded by the Rome II Regulation, especially with regard to the market effects principle under Art. 6(1) Rome II Regulation.

O.L. Knöfel: Delegated Enforcement vs. Direct Enforcement under the EU Maintenance Regulation No. 4/2009 – The Role of Central Authorities

The article reviews a decision of the European Court of Justice (Case C-283/16), dealing with questions of international judicial assistance arising in enforcement procedures under the European Maintenance Regulation No. 4/2009. The Court held that a maintenance creditor is entitled to seek cross-border enforcement directly in a court, without having to proceed through the Central Authorities of the Member States involved. National regulations such as the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011, demanding applications to be submitted to the Central Authority of the requested Member State, must be interpreted in the light of the European Maintenance Regulation. The author analyses the relevant issues of cross-border recovery of maintenance and explores the decision’s background in European Union law.

R.A. Schütze: Cautio iudicatum solvi in case of uncertainty of seat of companies

110 German Code of Civil Procedure requires plaintiffs with an ordinary residence or seat (if a company or other legal entity) outside the European Union or the European Economic Area (EWR) to provide – on request of the defendant – a cautio iudicatum solvi. In two judgments – commented below – the Bundesgerichtshof and the Oberlandesgericht Düsseldorf have decided on the ratio of security for costs under German law and on important issues of proof in case that the seat of the plaintiff (inside or outside EU or EWR) is contested. The Oberlandesgericht Düsseldorf qualifies the right of the defendant to demand security of cost from the plaintiff as an exceptio for which the burden of proof lies with the defendant. But as the plaintiff is more familiar with its organization and activities it has a secondary burden of asserting relevant facts (sekundäre Vortragslast). However, this does not change the burden of proof.

L. Kopcznyski: Confusion about the reciprocity requirement

According to domestic German law, the recognition and enforcement of foreign judgments is dependent on the requirement of reciprocity (sec. 328 (1) no. 5 of the German Code of Civil Procedure). It is, however, not an easy task to assess whether a foreign state would recognise a German judgment in similar circumstances. Courts regularly struggle to apply correctly the specific prerequisites which have to be met in this regard. A recent judgment of the Regional Court in Wiesbaden demonstrates that. In its decision, the court refused to enforce a Russian judgment because it set the bar for reciprocity far too high.

M. Gebauer: Compulsory recognition procedure according to Section 107 FamFG in order to determine the validity of a divorce registered at a foreign consulate located in Germany

German law requires that foreign decisions (originating beyond the EU) affecting the status of a marriage, e.g. divorce judgements, are subject to a compulsory recognition procedure (Anerkennungsverfahren), according to paragraph 107 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG). This requires a free-standing application by an interested party to the relevant state authority which is responsible for determining the application. The decision, rendered by the Court of Appeal (Oberlandesgericht) in Nuremberg, reinforced long-standing judicial reasoning, albeit made with reference to a previous similarly worded statute, that the recognition procedure is also required where a foreign diplomatic mission situated in Germany is responsible for an official act potentially affecting the parties’ marriage in Germany. The Court of Appeal in Nuremberg correctly reasoned by way of analogy that while the paragraph does not specifically deal with circumstances where a divorce is registered by a foreign diplomatic mission situated in Germany, the legislator had not intended for the previous judicial approach to be reviewed. Thus, courts should continue to treat divorces in which a foreign diplomatic mission situated in Germany has been involved in the same way as judgements issued in foreign countries. This meant that the local court had no jurisdiction to determine the validity of a divorce registered at the Thai consulate located in Frankfurt. An application to the relevant state authority in terms of the compulsory recognition procedure must first be disposed of before matters can be considered by the local court

K. Siehr: „Wrongful Retention“ of a Child According to Article 3 of the Hague Abduction Convention of 1980

A couple habitually resident in South Africa had two children living with them. The couple separated but had joint custody for the children. The mother travelled to Senegal with the children but did not return them until January 3, 2016. In August 2016 mother and children took refuge in Germany. On January 2, 2017 the father in South Africa asked German authorities to return the wrongfully retained children to South Africa. The court of first instance (Amtsgericht Pankow-Weißensee) refused to do so because the children were not wrongfully retained because Senegal is no State Party of the Hague Abduction Convention of 1980. The Court of Appeal in Berlin (Kammergericht) reversed the decision of first instance and correctly interpreted Art. 3 Hague Abduction Convention as not requiring abduction wrongfully committed in a State Party. According to Art. 4 Hague Abduction Convention, the abducted or retained child must have had his/her habitual residence in a State Party immediately before the removal or retention. Art. 3 and 4 Hague Abduction Convention are discussed and analyzed, also with respect to the more restricted wording of Art. 2 No. 11 Hague Custody Convention of 1996. Finally, it is stressed that it does not matter whether the wrongfully abducted child spent some time in States not being State Parties to the Hague Abduction Convention as soon as the one year time limit for the application of return (Art. 12 sec. 1 Hague Abduction Convention) has been met.

A. Piekenbrock: Jurisdiction for damage claims regarding forum shopping in European Insolvency Law: commentaries on Court of Cassation, Social Chamber, 10.1.2017

The paper deals with a decision delivered by the French Court of Cassation regarding damage claims within the context of the initiation of English administration proceedings for all EU companies of the Canadian Nortel Networks Group including the French Nortel Networks SA in January 2009. The Social Chamber has come to the conclusion that English Courts have exclusive jurisdiction regarding damage claims of a former employee of the French company based on alleged falsehood by the opening of the main insolvency proceedings in England. The decision emphasises correctly the binding force of the English opening decision. Yet, the reasoning seems erroneous insofar as the claim is not directed against the insolvent company itself or its liquidator, but rather against another company of the same group (the British Nortel Networks UK Limited) and the insolvency practitioners involved (Ernst & Young). At least the Court of Cassation as a court of last resort should have referred the case to the C.J.E.U. pursuant to Art. 267(3) TFEU.

K. Lilleholt: Norwegian Supreme Court: The Law of the Assignor’s Home Country is Applicable to Third-Party Effects of Assignments of Claims

In its judgment of 28/6/2017, the Norwegian Supreme Court held that the effects in relation to the assignor’s creditors of an assignment of claims by way of security was governed by the law of the assignor’s home country under Norwegian choice of law rules. This issue has not been dealt with in Norwegian legislation, and earlier case law is sparse and rather unclear. Application of the law of the assignor’s home country has been recommended by legal scholars, but these views are not unanimously held. The Supreme Court’s decision is in line with the later proposal for an EU regulation on the law applicable to the third-party effects of assignments of claims. The proposed regulation will not be binding on Norway, as it will not form part of the EEA agreement. This is also the case for other EU instruments regarding private international law, like the Rome I and Rome II Regulations and the Insolvency Regulation. In several recent judgments, however, the Supreme Court has stated that EU law should provide guidance where no firm solution can be found in Norwegian choice of law rules (IV.). The case also raised a jurisdiction issue. The Supreme Court found that the insolvency exception in the Lugano Convention Art. 1(2)(b) applied and that Norwegian courts had jurisdiction because the insolvency proceedings were opened in Norway. This article will record the facts of the case (II.) and present the jurisdiction issue (III.) before the Supreme Court’s discussion of the choice of law rule is presented and commented upon (IV.).

K. Thorn/M. Nickel: The Protection of Structurally Weaker Parties in Arbitral Proceedings

In its judgment, the Austrian Supreme Court of Justice (OGH) ruled on the legal validity of an arbitration agreement between an employer based in New York and a commercial agent based in Vienna acquiring contracts in the sea freight business. The court held that the arbitration agreement was invalid and violated public policy due to an obvious infringement of overriding mandatory provisions during the pending arbitral proceedings in New York. The authors support the outcome of the decision but criticize the OGH’s reasoning that failed to address key elements of the case. In the light of the above, the article discusses whether the commercial agent’s compensation claim relied on by the court constitutes an overriding mandatory provision although the EU Commercial Agents Directive does not cover the sea freight. Further, the article identifies the legal basis for a public policy review of arbitration agreements and elaborates on the prerequisites for a violation of public policy. In this regard, the authors argue that arbitration agreements can only be invalidated due to a violation of substantive public policy if a prognosis shows that it is overwhelmingly likely and close to certain that the arbitral tribunal will neglect applicable overriding mandatory provisions.

Roxana Banu of Western University has published Nineteenth-Century Perspectives on Private International Law, a new book in the Oxford University Press series on the history and theory of international law.  Information from the publisher can be found here.  From the website:

Private International Law is often criticized for failing to curb private power in the transnational realm. The field appears disinterested or powerless in addressing global economic and social inequality. Scholars have frequently blamed this failure on the separation between private and public international law at the end of the nineteenth century and on private international law’s increasing alignment with private law.

Through a contextual historical analysis, Roxana Banu questions these premises. By reviewing a broad range of scholarship from six jurisdictions (the United States, France, Germany, the United Kingdom, Italy, and the Netherlands) she shows that far from injecting an impetus for social justice, the alignment between private and public international law introduced much of private international law’s formalism and neutrality. She also uncovers various nineteenth century private law theories that portrayed a social, relationally constituted image of the transnational agent, thus contesting both individualistic and state-centric premises for regulating cross-border inter-personal relations.

Overall, this study argues that the inherited shortcomings of contemporary private international law stem more from the incorporation of nineteenth century theories of sovereignty and state rights than from theoretical premises of private law. In turn, by reconsidering the relational premises of the nineteenth century private law perspectives discussed in this book, Banu contends that private international law could take centre stage in efforts to increase social and economic equality by fostering individual agency and social responsibility in the transnational realm.

The Journal of Private International Law is inviting abstracts for its 8th conference to be held at the Ludwig-Maximilians-University Munich from 12-14 September 2019. Abstracts of up to 500 words from scholars, at any stage of their career, should be sent to jprivintl2019@lmu.de by Monday 7 January 2019.

The Journal has held very successful conferences in Aberdeen (2005), Birmingham (2007), New York (2009), Milan (2011), Madrid (2013), Cambridge (2015) and Rio de Janeiro (2017). Its biennial conferences provide a unique forum for scholars from all over the world to meet and advance the discipline of private international law.

Speakers will not be required to pay a registration fee but must cover their own travel and accommodation costs. It is expected that speakers will, before the end of 2019, submit the final version of their papers to be considered for publication in the Journal in the first instance.

Further details can be found in volume 14(2) of the Journal or on the University’s website.

Thanks go to Michael Douglas for alerting me to the call for papers.

Applications for the 2019 Nygh Hague Conference Internship Award close at the end of this month. The award contributes towards the costs of a student or graduate, of an Australian law school, working for up to six months at the Secretariat of the Hague Conference on Private International Law in the Netherlands.

The internship aims to foster Australian involvement in the work of the Hague Conference and is established in memory of the late Hon. Dr. Peter Nygh AM. The Australian Institute of International Affairs and the Australian Branch of the International Law Association sponsor the award.

The successful candidate is expected to start the internship in The Hague on 14 January 2019. Further details and information on how to apply is available here.

The Institute of German and International Procedural Law at the University of Bonn is looking for research fellows (Wissenschaftliche Mitarbeiterin / Wissenschaftlicher Mitarbeiter) at the Chair of Prof. Dr. Matthias Weller on a part-time basis (50% and 25%).

Your task will include supporting the chair in research and teaching, especially in the areas of conflict of laws, international civil procedure, private law and cultural property law.

A candidate should hold a first law degree (i.e. the German First State Exam) above average (at least “vollbefriedigend”). A very good command of German is required, further language skills will be an asset.

The positions will be paid according to the salary scale E 13 TV-L. The contract period will be limited to 3 years (with a possibility of renewal). Supervision of a PhD in the research fields of the chair will be offered.

The University of Bonn aims at increasing the number of women in academia. Therefore, applications of qualified women are particularly welcome. Candidates with disabilities will be given preference in case of equal qualification.

If you are interested, please send your application per email to: Prof. Dr. Matthias Weller (weller@jura.uni-bonn.de).

For further information see here.

It is with great pleasure that I spread the word, at the request of my esteemed colleague prof em Herman Cousy, on the Grand Prix Jean Bastin – to the tune of €20,000.00 and therefore a rather prestigious prize indeed. Do visit the website for particulars: ‘thesis’ need not be, I understand, a PhD, although these I suspect will be the most obvious entries. Good luck.

Geert.

9th Grand Prix Jean Bastin 2019

The Fonds Scientifique Jean Bastin, a Belgian international non-profit association, will grant the Prize for an amount of 20.000 euros to the author of the best thesis published after 1 January 2016 or to be published, on one of the following matters:

The indebtedness and solvency of the States
The State in arbitration: international commercial arbitration and investment arbitration. Issue with the enforcement of arbitral awards against a State. Scope and limit of immunity from enforcement. Remedies. The issue of enforcement and post-arbitration mediation on the quantum of the conviction.
The State-debtor: issue of vulture funds, protective legislations. Debt market. Forum shopping. Enforcement of foreign arbitral decisions or awards.
The State in bankruptcy: problem of the public debt – IMF surveillance.
Granted for the first time in 1992, this Prize is one of the most prestigious in the legal and economical domain.
The thesis must be introduced, in conformity with the procedure set under the rules, by 30 November 2018 at the latest.
The Jury presided by Minister of State Mark Eyskens, is composed as follows :
Professor Kris Bernauw, university of Gent Professor emeritus Jean-Louis Duplat, university of Namur Professor emeritus Herman Cousy, university of Leuven Professor Frédéric Georges, university of Liège

For more details regarding the subjects and the participation rules: http://www.fsjb.be or contact info@fsjb.be.

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9de Grote Prijs Jean Bastin 2019

Het Fonds Scientifique Jean Bastin, een internationale vereniging zonder winstoogmerk naar Belgisch recht, zal de Prijs toekennen van een bedrag van 20.000 euro
aan de auteur van het beste werk, uitgegeven na 1 januari 2016 of nog uit te geven, dat één van de volgende thema’s behandelt : De schulden en de solvabiliteit van Staten
– De Staat in arbitrage: internationale handels- en investeringsarbitrage. Problematiek van de tenuitvoerlegging van veroordelingen ten laste van een Staat. Reikwijdte en beperking van de uitvoeringsimmuniteit. Remedies. Het vraagstuk over de tenuitvoerlegging en de post-arbitrale bemiddeling over het kwantum van de veroordeling.
– De Staat-schuldenaar: de problematiek van aasgierfondsen, beschermende wetgeving. Schuldenmarkt. Forum shopping. Uitvoering van buitenlandse arbitrale beslissingen of vonnissen.
– De failliete Staat: problematiek van de overheidsschulden. Plaatsing onder het toeizcht van het IMF.

Deze Prijs, voor het eerst uitgereikt in 1992, is één van de meest prestigieuze prijzen in het juridische en economische domein.
De werken moeten worden ingediend tegen uiterlijk 30 november 2018, in overeenstemming met de procedure vastgesteld in het reglement.
De heer Minister van Staat Mark Eyskens is voorzitter van de Jury, die als volgt is samengesteld :
Professor Kris Bernauw, universiteit Gent Professor emeritus Jean-Louis Duplat, universiteit Namen Professor emeritus Herman Cousy, universiteit Leuven Professor Frédéric Georges, universiteit Luik

Voor meer details over de thema’s of het reglement van de prijs: http://www.fsjb.be of contacteer info@fsjb.be

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9ième Grand Prix Jean Bastin 2019

Le Fonds Scientifique Jean Bastin, association internationale sans but lucratif de droit belge, accordera le Prix d’un montant de 20.000 euros
à l’auteur du meilleur ouvrage, paru après le 1ier janvier 2016 ou à paraître, traitant de l’un des sujets suivants :

L’endettement et la solvabilité des États
L’Etat en arbitrage : arbitrage commercial international et arbitrage d’investissement. Problématique de l’exécution des condamnations à charge d’un Etat. Portée et limite de l’immunité d’exécution. Remèdes. La question de l’exécution et la médiation post-arbitrale sur le quantum de la condamnation.
L’Etat-débiteur : problématique des fonds vautours, des législations protectrices. Marché de la dette. Forum shopping. Exécution des décisions ou sentences arbitrales étrangères.
L’Etat en faillite : problématique de la dette publique. Mise des Etats sous tutelle de la FMI.

Attribué pour la première fois en 1992, ce Prix est l’un des plus prestigieux dans les domaines juridique et économique.
Les ouvrages devront être introduits selon la procédure fixée au règlement, pour le 30 novembre 2018 au plus tard.
Le Jury est placé sous la présidence de Monsieur le Ministre d’Etat Mark Eyskens et composé comme suit :

Professeur Kris Bernauw, université de Gand Professeur émérite Jean-Louis Duplat, université de Namur Professeur émérite Herman Cousy, université de Louvain Professeur Frédéric Georges, université de Liège

Pour plus de détails par rapport au règlement : http://www.fsjb.be ou contacter info@fsjb.be

On Thursday 11 October 2018, the Maastricht Private Law Lecture, which is hosted by the Maastricht Department of Private Law, will take place at Maastricht University (Faculty of Law). This lecture will be delivered by Prof. dr. Symeon C. Symeonides and is entitled “The ‘Private’ in Private International Law”. An interactive seminar with PhD researchers will follow the next day. This event is open to everyone but registration is required and is free of charge. More information is available here.

Interested persons may also wish to read Prof. Symeonides’ excellent General Course given at the Hague Academy, which deals with this subject matter in greater depth: Symeon C. Symeonides, Private International Law: Idealism, Pragmatism, Eclecticism (General Course on Private International Law), Recueil des cours, tome 384, Brill/Nijhoff, Leiden/Boston, 2016 (see in particular Chapter IV pp. 100-130).

Registration for the XLI Seminar organised by the Mexican Academy of Private International and Comparative Law (AMEDIP) is now open, please click here. For background information, please see my previous post here.

By the Permanent Bureau of the Hague Conference on Private International Law

During the solemn ceremony celebrating its 125th Anniversary, the Hague Conference on Private International Law (HCCH) launched a new video “HCCH: Connecting. Protecting. Co-operating.”  In a visually appealing way, the video explains the work of the HCCH and the importance of the Organisation in a globalised world.

Yesterday, the UK government published new paper on the future of judicial cooperation in civil matters. It sets out the UK’s vision for the handling of civil legal cases if no Brexit deal can be reached.

The full paper is available here.

I reviewed Advocate-General Bobek’s Opinion in C-304/17 Löber v Barclays here. The following issues in particular were of note (I simply list them here; see the post for full detail): First, the AG’s view, coinciding with mine, that the CJEU’s finding in CDC that locus damni for a pure economic loss, in the case of a corporation, is the place of its registered office, is at odds with precedent (he made the same remark in flyLAL). Next, on locus delicti commissi, the AG suggests that despite Article 7(2)’s instruction, a single ldc within the Member State in the case at hand cannot be determined. Further, for locus damni, I disagree for reasons explained in the post with the AG’s  suggestions.

The Court held on Wednesday. At 26 it immediately cuts short any expectation of clarification on locus delicti commissi: ‘In the present case, the case in the main proceedings concerns the identification of the place where the damage occurred.’

The referring court’s questions were much wider, asking for clarification on ‘jurisdiction’ full stop. Yet the Court must have derived from the file that only locus damni was in dispute. A missed opportunity for as I noted, Bobek AG’s views on that locus delicti commissi are not obvious.

On locus damni then, I may be missing a trick here but the Court simply does not answer the referring court’s question. As the AG notes, Ms Löber in order to acquire the certificates, transferred the corresponding amounts from her current (personal) bank account located in Vienna, to two securities ‘clearing’ accounts in Graz and Salzburg. Payment was then made from those securities accounts for the certificates at issue. The Court refers to Kolassa and to Universal Music, to reiterate that the simple presence of a bank account does not suffice to establish jurisdiction: other factors are required, such as here, at 33,

‘besides the fact that Ms Löber, in connection with that transaction, had dealings only with Austrian banks, it is furthermore apparent from the order for reference that she acquired the certificates on the Austrian secondary market, that the information supplied to her concerning those certificates is that in the prospectus which relates to them as notified to the Österreichische Kontrollbank (Austrian supervisory bank) and that, on the basis of that information, she signed in Austria the contract obliging her to make the investment, which has resulted in a definitive reduction in her assets.’

The Court concludes that ‘taken as a whole, the specific circumstances of the present case contribute to attributing jurisdiction to the Austrian courts.’

That however was not seriously in doubt: the more specific question is which one: Vienna? (which had rejected jurisdiction) Graz and /or Salzburg? Article 7(2) requires identification of a specific court (which the AG had identified in his opinion: I may not follow his argumentation, but it did lead to a specific court): not merely a Member State, and the Oberster Gerichtsthof had specifically enquired about the need for centralisation of the claim in one place.

All in all a disappointing judgment which will not halt further questions on jurisdiction for prospectus liability.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.7

On 10 July 2018, the United States Court of Appeals for the District of Columbia Circuit rendered its judgment in the matter of Alan Philipps et al. v. the Federal Republic of Germany and the Stiftung Preussischer Kulturbesitz.

This case involves a claim by heirs of Holocaust victims for restitution of the „Welfenschatz“ (Guelph Treasure), a collection of medieval relics and devotional art housed for generations in the Cathedral of Braunschweig (Brunswick), Germany. This treasure is now on display at the Kunstgewerbemuseum Berlin (Museum of Decorative Arts) which is run by the Stiftung Preussischer Kulturbesitz. The value of the treasure is estimated to amount to USD 250 million (according to the claim for damages raised in the proceedings).

The appeal judgment deals with, inter alia, the question whether there is state immunity for Germany and the Stiftung respectively. Under the US Federal Sovereign Immunities Act, foreign sovereigns and their agencies enjoy immunity from suit in US courts unless an expressly specified exception applies, 28 U.S.C. § 1604.

One particularly relevant exception in Holocaust litigations relating to works of art is the „expropriation exception”, § 1605(a)(3). This exception has two requirements. Firstly, rights in property taken in violation of international law must be in issue. Secondly, there must be an adequate commercial nexus between the United States and the defendant:

„A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States.“

According to the Court‘s recent judgment in Holocaust litigation against Hungary (Simon v. Republic of Hungary, 812 F.3d 127, D.C. Cir. 2016), intrastate expropriations in principle do not affect international law but are internal affairs of the acting state vis-à-vis its citizens. However, if the intrastate taking amounts to the commission of genocide, such a taking subjects a foreign sovereign and its instrumentalities to jurisdiction of US courts (Simon v Hungary, op.cit.).

This leads to the question of what exactly is „genocide“ in this sense. The Court in Simon adopted the definition of genocide set forth in Article II lit. c of the Convention on the Prevention of the Crime of Genocide of 9 December 1948, 78 U.N.T.S. 277, (signed by the USA on 11 December 1948, ratified on 25 November 1988), i.e. „[d]eliberately inflicting“ on “a national, ethnical, racial or religious group … conditions of life calculated to bring about its physical destruction in whole or in part“. Thus, the Court in Philipps, as it observed, was „asked for the first time whether seizures of art may constitute ‘takings of property that are themselves genocide‘ “. “The answer is yes“ (Philipps v. Germany, op.cit.).

The Court prepared this step in Simon v. Hungary:

„The Holocaust proceeded in a series of steps. The Nazis achieved [the “Final Solution“] by first isolating [the Jews], then expropriating the Jews’ property, then ghettoizing them, then deporting them to the camps, and finally, murdering the Jews and in many instances cremating their bodies“.

Therefore, actions taken on the level of first steps towards genocide are themselves genocide if later steps result in genocide even if these first measures as such, without later steps, would not amount to genocide. To put it differently, this definition of genocide includes expropriations that later were escalated into genocide if already these expropriations were „deliberately inflicted“ „to bring about … physical destruction in whole or in part“ (see again Art. II lit. c Prevention of Genocide Convention).

It will be a crucial question what the measures and means of proof for such an intent should be. In this stage of the current proceedings, namely on the level of appeal against the decision of first instance not to grant immunity, the Philipps Court explained, in its very first sentence of the judgment, that the claimants‘ submissions of facts have to be laid down as the basis for review:

„Because this appeal comes to us from the district court’s ruling on a motion to dismiss, we must accept as true all material allegations of the complaint, drawing all reasonable inferences from those allegations in plaintiffs’ favor.”

However, the position of the US Congress on the point is clear: As the Philipps Court explains,

“[i]n the Holocaust Expropriated Art Recovery Act (HEAR Act 2016), which extended statutes of limitation for Nazi art-looting claims, Congress ‘f[ound]’ that ‘the Nazis confiscated or otherwise misappropriated hundreds of thousands of works of art and other property throughout Europe as part of their genocidal campaign against the Jewish people and other persecuted groups’, see Holocaust Expropriated Art Recovery Act of 2016, Pub. L. No. 114-308, § 2, 130 Stat. 1524, 1524.”

It will be another crucial question, what „expropriation“ exactly means in the context of the Holocaust. It is common ground that the unlawful taking of property from persecuted persons not only took place by direct taking but also and structurally through all sorts of transactions under duress. However, the exact understanding of what constitutes such “forced sales“ – and thereby “expropriation“ – seems to differ substantially. Some argue that even a sale of art works at an auction in a safe third state after emigrating to that state constitutes a forced sale due to the causal link between persecution, emigration and sale for making money in the exile. Under Art. 3 of the US Military Law No. 59 of 10 November 1947 on the Restitution of Identifiable Property in Germany, there was a „presumption of confiscation“ for all transfers of property by a person individually persecuted or by a person that belonged to class of persecuted persons such as in particular all Jews. This presumption could be rebutted by submission of evidence that the transferor received a fair purchase price and that the transferor could freely dispose of the price. It is not clear whether this standard or a comparable standard or another standard applies in the case at hand. Irrespective of this legal issue, the claimants submit on the level of facts that the purchase price was only 35% of the fair market value in 1935. This submission was made in the following context:

Three Jewish art dealers from Frankfurt am Main, ancestors to the claimants, acquired the Guelph Treasure in October 1929 from the dynasty of Brunswick-Lüneburg shortly before the economic crisis of that year. The agreed price was 7.5 million Reichsmark (the German currency of the time). The estimations of the value prior to the acquisition seem to have ranged between 6 and 42 million Reichsmark. The sales contract was signed by the art dealers „J.S. Goldschmidt“, „I. Rosenbaum“ und „Z.M. Hackenbroch“. These dealers and others formed a “consortium“ with further dealers to be able to raise the money (the whereabouts of the contract for this consortium and thus the precise structure of this joint-venture is unknown up to now).

According to the sales contract, the buyers were obliged to resell the Treasure and share profits with the seller if these profits go beyond a certain limit. The contract expressly excluded the possibility for the buyers to keep the Treasure or parts of it. Rather, the buyers were to take „every effort” to achieve a resale.

In the following years, the consortium undertook many steps to sell the Treasure in Germany and in the USA. However, according to the German Advisory Commission on the return of cultural property seized as a result of Nazi persecution, especially Jewish property (i.e. the alternative dispute resolution body established by the German government in order to implement the non-binding Washington Principles on Nazi Confiscated Art of 3 December 1998, on which 44 states, including Germany and the USA agreed), it was common ground that the economic crisis reduced means and willingness of potential buyers significantly. In 1930/1931, the dealers managed to sell 40 pieces for around 2.7 million Reichsmark in total. After displaying for sale in the USA, the remaining 42 items were stored in Amsterdam. In 1934, the Dresdner Bank showed interest as a buyer, acting on behalf of the State of Prussia. The bank apparently did not disclose this fact. In April of 1935, the consortium made a binding offer for 5 million Reichsmark, the bank offered 3.7 million, the parties ultimately agreed upon 4.25 million, to be paid partly in cash (3.37 million), partly by swap with other works of art to be sold abroad in order to react to foreign currency exchange restrictions. The sales contract was signed on 14 June 1935 by the dealers and the bank, acting on behalf of the State of Prussia whose Prime Minister was Hermann Göring at the time. In July 1935, (almost) the full price was paid (100.000 Reichsmark were kept as commission). The 42 objects were transferred to Berlin. The consortium seemed to have been able to freely dispose of the money that they received at that time and pay it out to the members of the consortium. Later, all but one of the dealers had to emigrate, the one remaining in Germany came to death later (apparently under dubious circumstances, as is submitted by the claimants).

On the merits, the courts will have to take a decision on the central point of this case whether these facts, as amended/modified in the further proceedings, amount to “expropriation” and, if so, whether this expropriation was intended to „deliberately inflict … conditions of life calculated to bring about … physical destruction in whole or in part” (see once more Article II lit. c of the Convention on the Prevention of the Crime of Genocide).

On a principal level, the Federal Republic of Germany argued that allowing this suit to go forward will “dramatically enlarge U.S. courts’ jurisdiction over foreign countries’ domestic affairs” by stripping sovereigns of their immunity for any litigation involving a “transaction from 1933–45 between” a Nazi-allied government and “an individual from a group that suffered Nazi persecution.” In addition to that, the principal line of argument would certainly apply to other cases of genocide and preparatory takings of property. The Court was not impressed:

“Our conclusion rests not on the simple proposition that this case involves a 1935 transaction between the German government and Jewish art dealers, but instead on the heirs’ specific—and unchallenged—allegations that the Nazis took the art in this case from these Jewish collectors as part of their effort to drive [Jewish people] out of their ability to make a living.”

Even then, the enlargement of jurisdiction over foreign states by widening the exceptions to state immunity under the concept of genocide by expropriation appears to be in contrast to the recent efforts by US courts to narrow down jurisdiction in foreign-cubed human rights litigations under the ATS and in general.

However, the Federal Republic of Germany does no longer need to worry: The Court held that the second requirement of the expropriation exception is not fulfilled because the Guelph Treasure is not present in the United States in connection with a commercial activity carried on by the foreign state in the United States. In fact, it is not present in the USA at all but still in Berlin.

Yet, in respect to the Stiftung Preussischer Kulturbesitz, the suit will continue: For a state agency it seems sufficient that the property in question is owned or operated by that agency or instrumentality of the foreign state if that agency or instrumentality is engaged in a commercial activity (not necessarily in connection with the property in question) in the United States. The ratio of this rule is difficult to understand for outsiders and appears not to be in line with the overall developments of (personal) jurisdictional law in the USA, and if at the end of the day there is a judgment against the Stiftung to return the Treasure there will of course be the issue of recognition and enforcement of that judgment in Germany – including all political implications and considerations of public policy.

The parties may want to think about arbitration at some point. That was the way out from lengthy court proceedings and delicate questions on all sorts of conflicts of laws in the famous case of Maria Altmann v. Republic of Austria that likewise turned, inter alia, on issues of state immunity for foreign states and their agencies or instrumentalities. In general, it seems that arbitration could play a larger role in art-related disputes (see e.g. the German Institution for Arbitration’s Autumn Conference on 26 September 2018 in Berlin).

I shall be posting perhaps tomorrow on yesterday’s CJEU judgment in Löber v Barclays (prospectus liability – see my review of Bobek AG’s Opinion here), but as a warming-up for comparative purposes, a note on [2018] SGHC 123 IM Skaugen v MAN. I have not been able to locate copy of the judgment (I am hoping one of my Singaporean followers might be able to send me one) so I am relying entirely on the excellent post by Adeline Chong – indeed in general I am happy largely to refer to Adeline’s post, she has complete analysis.

The case concerns fraudulent misrepresentation of the fuel consumption of an engine model sold and installed into ships owned by claimants (Volkswagen echo alert). Defendants are German and Norwegian incorporated companies: leave to serve out of jurisdiction needs to be granted. Interesting comparative issues are in particular jurisdiction when only indirect damage (specifically: increased fuel consumption and servicing costs with downstream owners who had purchased the ships from the first owners) occurs there; and the relevance of European lis alibi pendens rules for forum non conveniens purposes.

On the former, Singaporean CPR rules would seem to be prima facie clearer on damage not having to be direct for it to establish jurisdiction; a noted difference with EU law and one which also exercised the UK Supreme Court in Brownlie. Note the consideration of locus delicti and the use of lex fori for same (a good example in my view of the kind of difficulties that will arise if when the Hague Judgments project bears fruit).

On forum non conveniens, Spiliada was the main reference. Of interest here is firstly the consideration of transfer to the Singapore International Commercial Court (SICC); and the case-specific consideration of availability of forum: the Norwegian courts had been seized but not the German ones; Germany had been identified by the Singaporean High Court as locus delict: not Norway; yet under the Lugano Convention lis alibi pendens rule, the German courts are now no longer available.

Geert.

Access to information ironically is subject to a myriad of rules and regulations at the EU level: some of a general nature (particularly: Regulation 1049/2001), some lex specialis (such as Directive 2003/35 and Regulation 1367/2006), but with a complex relationship between lex generalis and lex specialis. Add to the mix in the environmental field, public international law in the form of the Aarhus Convention and, well, what you get is an awful lot of regulatory intransparency. Leonie and I have made an attempt succinctly to summarise same in Chapter 5 of our Handbook on EU environmental law.

In C‑57/16 P Client Earth v EC, the CJEU’s Grand Chamber set aside a General Court judgment which had earlier sided largely with the EC viz two requests of information: the first of those requests sought access to the impact assessment report drawn up by the Commission on the implementation of the ‘access to justice’ pillar of the Aarhus Convention, while the second sought access to the impact assessment carried out by the Commission on the revision of the EU legal framework on environmental inspections and surveillance at national and EU level. Both were refused on the ground for exception provided in Regulation 1049/2001, that ‘access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.’

The Grand Chamber essentially held that access should be granted: core of its reasoning is at para 92: ‘Although the submission of a legislative proposal by the Commission is, at the impact assessment stage, uncertain, the disclosure of those documents is likely to increase the transparency and openness of the legislative process as a whole, in particular the preparatory steps of that process, and, thus, to enhance the democratic nature of the European Union by enabling its citizens to scrutinise that information and to attempt to influence that process. As is asserted, in essence, by Client Earth, such a disclosure, at a time when the Commission’s decision-making process is still ongoing, enables citizens to understand the options envisaged and the choices made by that institution and, thus, to be aware of the considerations underlying the legislative action of the European Union. In addition, that disclosure puts those citizens in a position effectively to make their views known regarding those choices before those choices have been definitively adopted, so far as both the Commission’s decision to submit a legislative proposal and the content of that proposal, on which the legislative action of the European Union depends, are concerned.‘

Essentially: a true transparent policy process requires citisens to be able to impact the flow of the water before it disappears under the bridge.

EC Institutions continue to fight rearguard actions against transparency, which subsequently have to be addressed by the likes of Client Earth. The CJEU could not be clearer in highlighting the patch access to EU policy should continue to follow.

Geert.

(Handbook of) EU Environmental Law, first ed.2017, Chapter 5. (With Leonie Reins).

By the Permanent Bureau of the Hague Conference on Private International Law

On 12 September 1893, Tobias Asser, Dutch Jurist, Scholar and Statesman, realised a vision: he opened the first Session of the Hague Conference on Private International Law (HCCH). Today, exactly 125 years later, the HCCH celebrates Asser’s vision and the occasion of this First Session with a solemn ceremony in the presence of his Majesty The King Willem-Alexander of the Netherlands.

Believing passionately that strong legal frameworks governing private cross-border interactions among people and businesses not only make a life across borders easier, but are also apt to promote peace and justice globally, Asser conceived the HCCH as multilateral platform for dialogue, discussion, negotiation and collaboration. Asser organised this first Session to canvass issues relating to general civil procedure and jurisdiction. More specifically, delegates, who hailed from 13 States, dealt with subject matters comprising marriage, the form of documents, inheritance/wills/gifts and civil procedure.  The First Session was a great success producing the Hague Convention on Civil Procedure. This instrument was adopted during the Second Session in 1894 and signed on 14 November 1896. Its entry into force on 23 May 1899 coincided with the first Hague Peace Conference – another of Asser’s great visions. The global community honoured the enormous value of Asser’s vision in 1911, bestowing upon him the Nobel Peace Prize for instigating the First Session of the Hague Conference on Private International Law to “prepare the ground for conventions which would establish uniformity in international private law and thus lead to greater public security and justice in international relations.” (J G Løvland, Chairman of the Nobel Committee, Presentation Speech, Oslo, 10 December 1911).

Since this First Session, the HCCH has gone forth to develop an array of private international law instruments in the areas of international child protection and family law, international civil procedure and legal cooperation as well as international commercial and finance law. It is the pre-eminent international organisation for the development of innovative, global solutions in private international law. The HCCH remains steeped in Asser’s vision. It continues to connect, protect, and cooperate. Since 1893.

The Final Conference of the Jean Monnet Module on European Civil Procedure will take place in Milan on the 4th and 5th October.

Details about the event and the conference agenda can be found here.

Advocate-General Bot opined on 6 September in C-386/17 Liberato. (Not as yet available in English). The case is slightly complicated by the application of not just former Regulation 44/2001 (Brussels I) but indeed a jurisdictional rule in it (5(2)) on maintenance obligations, which even in Brussels I had been scrapped following the introduction of the Brussels IIa Regulation.

The Opinion is perhaps slightly more lengthy than warranted. Given both the Brussels I and now the Brussels I Recast specific provisions on refusal of recognition and enforcement, it is no surprise that the AG should advise that a wong application by a court of a Member State (here: Romania) of the lis alibi pendens rules, does not justify refusal of recognition by other courts in the EU: the lis alibi pendens rules do not feature in the very limited list of possible reasons for refusal (which at the jurisdictional level lists only the protected categories, and the exclusive jurisdictional rules of Article 24), and it was already clear that misapplication of jurisdictional rules do not qualify for the ordre public exception.

It would not hurt having the CJEU confirm same.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.3, 2.2.16.1.4.

I have reported earlier on Deutsche Bank AG v Sebastian Holdings Inc & Alexander Vik [2017] EWHC 459 and Dennis v TAG Group [2017] EWHC 919 (Ch).

The Court of Appeal has now confirmed in [2018] EWCA Civ 2011 Vik v Deutsche Bank that permission for service out of jurisdiction is not required for committal proceedings since the (now) Article 24(5) rule applies regardless of domicile of the parties. See my posting on Dar Al Arkan and the one on Dennis .

Gross LJ in Section IV, which in subsidiary fashion discusses the Brussels issue, confirms applicability to non-EU domicileds however without referring to recital 14, which confirms verbatim that indeed non-EU domicile of the defendants is not relevant for the application of Article 24.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.8.