Flux des sites DIP

One of the points of interest in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) concerns the appropriateness of the plaintiff’s undertaking to pay the travel and accommodation costs of the defendant’s witnesses, located in Israel, to come to the trial in Ontario.  The defendant had raised the issue of the residence of its witnesses as a factor pointing to Israel being the more appropriate forum.  The plaintiff, one presumes, made a strategic decision to counter this factor by giving the undertaking.

The motions judge and the Court of Appeal for Ontario both considered the undertaking as effective in reducing the difficulties for the defendant in having the litigation in Ontario.  However, the undertaking was viewed quite differently by at least some of the judges of the Supreme Court of Canada.  Justice Cote, joined by Justices Brown and Rowe, stated that “consideration of such an undertaking would allow a wealthy plaintiff to sway the forum non conveniens analysis, which would be inimical to the foundational principles of fairness and efficiency underlying this doctrine” (para 66).  Justice Abella, in separate reasons, stated “I think it would be tantamount to permitting parties with greater resources to tip the scales in their favour by ‘buying’ a forum. … it is their actual circumstances, and not artificially created ones, that should be weighed” (para 140).  The other five judges (two concurring in the result reached by these four; three dissenting) did not comment on the undertaking.

Undertakings by one party in response to concerns raised by the other party on motions to stay are reasonably common.  Many of these do involve some financial commitment.  For example, in response to the concern that various documents will have to be translated into the language of the court, a party could undertake to cover the translation costs.  Similarly, a party might undertake to cover the costs of the other party flowing from more extensive pre-trial discovery procedures in the forum.  Travel and accommodation expenses are perhaps the most common subject for a financial undertaking.  Is the Supreme Court of Canada now holding that these sorts of undertakings are improper?

The more general statement from Justice Abella rejecting artificially created circumstances could have an even broader scope, addressing more than just financial issues.  Is it a criticism of even non-financial undertakings, such as an undertaking by the defendant not to raise a limitation period – otherwise available as a defence – in the foreign forum if the stay is granted?  Is that an artificially-created circumstance?

Vaughan Black has written the leading analysis of conditional stays of proceedings in Canadian law: “Conditional Forum Non Conveniens in Canadian Courts” (2013) 39 Queen’s Law Journal 41.  Undertakings are closely related to conditions.  The latter are imposed by the court as a condition of its order, while the former are offered in order to influence the decision on the motion.  But both deal with very similar content, and undertakings are sometimes incorporated into the order as conditions.  Black observes that in some cases courts have imposed financial conditions such as paying transportation costs and even living costs during litigation (pages 69-70).  Are these conditions now inappropriate, if undertakings about those expenses are?  Or it is different if imposed by the court?

My view is that the four judges who made these comments in Haaretz.com have put the point too strongly.  Forum non conveniens is about balancing the interests of the parties.  If one party points to a particular financial hardship imposed by proceeding in a forum, it should be generally open for the other party to ameliorate this hardship by means of a financial undertaking.  Only in the most extreme cases should a court consider the undertaking inappropriate.  And perhaps, though the judges do not say so expressly, Haaretz.com is such a case, in that there were potentially 22 witness who would need to travel from Israel to Ontario for a trial.

Thank you  Elias Neocleous & Co  for reporting Andrew Burness v Saipem SpA, in which the Cypriot Supreme Court confirmed jurisdiction over claims related to Cyprus’ Exclusive Economic Zone (under UNCLOS), and rejected application of forum non conveniens. The claims followed an accident on board the vessel Saipem 1000 in the Cyprus EEZ.

The first issue is one under public international law, which I will leave to others. The second is an interesting application of forum non conveniens. Its application had been suggested for none of the parties are Cypriot nationals, neither were the witnesses, or any of the insurance and other companies involved. One assumes the card played was one of convenience, and costs. However the Supreme Court particularly emphasised that the accident had occurred in the process of prospection or exploitation of Cyprus’s natural resources: that makes the Cypriot courts particularly suited to hearing the case, despite the many foreign elements.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.`

The decision to stay proceedings under the doctrine of forum non conveniens is discretionary, which in part means that appeal courts should be reluctant to reverse the decisions of motions judges on the issue.  It comes as some surprise, therefore, that the Supreme Court of Canada has disagreed with not only the motions judge but also the Court of Appeal for Ontario and overturned two earlier decisions denying a stay.  In Haaretz.com v Goldhar (available here) the court held (in a 6-3 decision) that the plaintiff’s libel proceedings in Ontario should be stayed because Israel is the clearly more appropriate forum.

The decision is complex, in part because the appeal also considered the issue of jurisdiction and in part because the nine judges ended up writing five sets of reasons, four concurring in the result and a fifth in dissent.  That is very unusual for Canada’s highest court.

The case concerned defamation over the internet.  The plaintiff, a resident of Ontario, alleged that an Israeli newspaper defamed him.  Most readers of the story were in Israel but there were over 200 readers in Ontario.

On assumed jurisdiction, the court was asked by the defendant to reconsider its approach as set out in Club Resorts (available here), at least as concerned cases of internet defamation.  Eight of the nine judges refused to do so.  They confirmed that a tort committed in Ontario was a presumptive connecting factor to Ontario, such that it had jurisdiction unless that presumption was rebutted (and they held it was not).  They also confirmed the orthodoxy that the tort of defamation is committed where the statement is read by a third party, and that in internet cases this is the place where the third party downloads and reads the statement (paras 36-38 and 166-167).  Only one judge, Justice Abella, mused that the test for jurisdiction should not focus on that place but instead on “where the plaintiff suffered the most substantial harm to his or her reputation” (para 129).  This borrows heavily (see para 120) from an approach to choice of law (rather than jurisdiction) that uses not the place of the tort (lex loci delicti) but rather the place of most substantial harm to reputation to identify the applicable law.

On the stay of proceedings, six judges concluded that Israel was the most appropriate forum.  Justice Cote wrote reasons with which Justices Brown and Rowe concurred.  Justice Karakatsanis disagreed with two key points made by Justice Cote but agreed with the result.  Justices Abella and Wagner also agreed with the result but, unlike the other seven judges (see paras 91 and 198), they adopted a new choice of law rule for internet defamation.  This was a live issue on the stay motion because the applicable law is a relevant factor in determining the most appropriate forum.  They rejected the lex loci delicti rule from Tolofson (available here) and instead used as the connecting factor the place of the most substantial harm to reputation (paras 109 and 144).  Justice Wagner wrote separately because he rejected (paras 147-148) Justice Abella’s further suggestion (explained above) that the law of jurisdiction should also be changed along similar lines.

The core disagreement between Justice Cote (for the majority) and the dissent (written jointly by Chief Justice McLachlin and Justices Moldaver and Gascon) was that Justice Cote concluded that the motions judge made six errors of law (para 50) in applying the test for forum non conveniens, so that no deference was required and the court could substitute its own view.  In contrast, the dissent held that four of these errors were “merely points where our colleague would have weighed the evidence differently had she been the motions judge” (para 179) which is inappropriate for an appellate court and that the other two errors were quite minor and had no impact on the overall result (para 178).  The dissent held strongly to the orthodox idea that decisions on motions to stay are entitled to “considerable deference” (para 177) lest preliminary motions and appeals over where litigation should occur undermine stability and increase costs (para 180).

Another fundamental disagreement between Justice Cote and the dissent was their respective view of the scope of the plaintiff’s claim.  During the motion and appeals, the plaintiff made it clear that he was only seeking a remedy in respect of damage to his reputation in Ontario (as opposed to anywhere else) and that he was not going to sue elsewhere.  The dissent accepted that this undertaking to the court limited the scope of the claim (paras 162-163) and ultimately it pointed to Ontario as the most appropriate forum.  In contrast, Justice Cote held that the plaintiff’s undertaking “should not be allowed to narrow the scope of his pleadings” (para 23).  It is very hard to accept that this is correct, and indeed on this point Justice Karakatsanis broke with Justice Cote (para 101) and agreed with the dissent.  Why should the court not accept such an undertaking as akin to an amendment of the pleadings?  Justice Cote claimed that “[n]either Goldhar nor my colleagues … may now redefine Goldhar’s action so that it better responds to Haaretz’s motion to stay” (para 24).  But why should the plaintiff not be able to alter the scope of his claim in the face of objections to that scope from the defendant?

There are many other points of clash in the reasons, too many to engage with fully here.  How important, at a preliminary stage, is examination of what particular witnesses who have to travel might say?  What role does the applicable law play in the weighing of the more appropriate forum when it appears that each forum might apply its own law?  Does a subsequent proceeding to enforce a foreign judgment count toward a multiplicity of proceedings (which is to be avoided) or do only substantive proceedings (on the merits) count?  Is it acceptable for a court to rely on an undertaking from the plaintiff to pay the travel and accommodation costs for the defendant’s witnesses or is this allowing a plaintiff to “buy” a forum?

It might be tempting to treat the decision as very much a product of its specific facts, so that it does not offer much for future cases.  There could, however, be cause for concern.  As a theme, the majority lauded “a robust and careful” assessment of forum non conveniens motions (para 3).  If this robust and careful assessment is to be performed by appellate courts, is this consistent with deference to motions judges in their discretionary, fact-specific analysis?  The dissent did not think so (para 177).

Choices, choices. I will continue to follow the GDPR for jurisdictional purposes, including territorial scope. (And I have a paper coming up on conflict of laws issues in the private enforcement of same). But for much of the GDPR enforcement debate, I am handing over to others. Johannes Marosi, for instance, who reviews the CJEU judgment this week in Fansites, over at Verfassungsblog. I reviewed the AG’s Opinion here.

Judgment in Grand Chamber but with small room for cheering.

As Johannes’ post explains, there are many loose ends in the judgment, and little reference to the GDPR (technically correct but from a compliance point of view wanting). (As an aside: have a look at Merlin Gömann’s paper, in CMLREv, on the territorial scope of the GDPR).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

[2017] EWHC 3012 (QB) Spring v MDO and Evengelisches Krankenhaus Bielefeld is unreported as far as I can tell (and I have checked repeatedly). Thank you Max Archer for flagging the case and for sending me copy of judgment a few months back. (I am still chipping away at that queue).

In 1997, Claimant was stationed in Germany with the British Army. The Claimant very seriously fractured his right leg and ankle whilst off duty in Germany (the off duty element evidently having an impact – on duty injuries arguably might not have been ‘civil and commercial’). He was then treated at the Second Defendant’s hospital under an established arrangement for the treatment of UK service personnel between the First (the Ministry of Defence) and Second Defendants (the German hospital). Various complications later led to amputation.

The Brussels I Recast Regulation applies for claimant did not introduce the claim against the second defendant until after its entry into force: 18 years in fact after the surgery. This was the result of medical reports not suggesting until after July 2015 that the German hospital’s treatment has been substandard. Rome II ratione temporis does not apply given the timing of the events (alleged wrongful treatment leading to damage).

Yoxall M held that Article 8(1)’s conditions for anchoring /joinder were fulfilled, because of the risk of irreconcilable judgments (at 35). Even if the claim against the First Defendant is a claim based on employer’s liability whereas the claim against the Hospital is based on clinical negligence. Should the proceedings be separate there is a risk of the English and German courts reaching irreconcilable judgments on causation of loss. At 35: ‘It would be expedient for the claims to be heard together – so that all the factual evidence and expert evidence is heard by one court. In this way the real risk of irreconcilable judgments can be avoided.’

With reference to precedent, Master Yoxall emphasised that ‘in considering Article 8(1) and irreconcilable judgments a broad common sense approach is justified rather than an over-sophisticated analysis’ (at 36).

Yoxal M is entirely correct when he states at 37 that Article 8(1) does not include a requirement that the action brought against the different defendants have identical legal bases. For decisions to be regarded as contradictory the divergence must arise in the context of the same situation of law and fact (reference is made to C-98/06 Freeport).

Next however the court considers as a preliminary issue, the limitation period applying between claimant and the German defendant and holds that the Hospital have an arguable case that the claim is statute barred in German law (German expert evidence on the issue being divided). The latter is the lex causae for the material dispute (on  the basis of English residual private international law), extending to limitation periods per Section 1(3) of the Foreign Limitations Period Act 1984 (nota bene partially as a result of the 1980 input by the Law Commission, and not entirely in line with traditional (or indeed US) interpretations of same). This ultmately sinks the joinder.

As a way forward for plaintiff, the Court suggests [2005] EWCA Civ 1436 Masri. In this case the Court of Appeal essentially held that joinder on the basis of Article 8(1) may proceed even if litigation against the England-based defendants are not the same proceedings, but rather take place in separate action. Masri has not been backed up as far as I know, by European precedent: Clarke MR held it on the basis of the spirit of C-189/87 Kalfelis, not its letter. Moreover, how the German limitation periods would then apply is not an obvious issue, either.

An interesting case and I am pleased Max signalled it.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.12.1.

On Friday, 15 June, ELTE Eötvös Loránd University, Budapest, will host a workshop on ‘Perspectives of Unification of Private International Law in the European Union’. The programme will be as follows.

12:00 Welcome speech
by Prof. Miklós Király (ELTE)

12:10 The Interface Between the Harmonisation of Contract Law and Private International Law
by Prof. Miklós Király (ELTE)
Comments by Dr. Zoltán Nemessányi (Corvinus University)

12:40 Uniform or Diverging Application of EU Instruments in the Field of Private International Law by National Jurisdictions – Preliminary References in the Area of Judicial Cooperation in Civil Matters
by Dr. Réka Somssich (ELTE)
Comments by Dr. Orsolya Szeibert (ELTE)

13:10 Discussion

13:30 Coffee break

13:45 Companies in EU Private International Law – An EU Law Perspective
by Dr. Tamás Szabados (ELTE)
Comments by Dr. Péter Metzinger (Corvinus University)

14:15 Illusion or Reality: the Interrelation of the Conflict of Laws Rules and the Practices of State Courts and Arbitral Tribunals
by Dr. István Erd?s (ELTE)
Comments by Dr. Kinga Tímár (ELTE)

14:45 Discussion

Further information can be found on the conference flyer.

Open your eyes, we may be next.

(Or maybe we are already there?)

Case C- 191/18, KN v Minister for Justice and Equality, is not about PIL; the questions referred to the CJ on March 16, actually relate to the European Arrest warrant (and Brexit). However, PIL decisions are mirroring the same concerns. It has been reported, for instance, that a Polish district court has refused a Hague child return to England on the basis (inter alia) that Brexit makes the mother`s position too uncertain. A recent case before the Court of Appeal of England and Wales shows that English judges are also struggling with this (see “Brexit and Family Law”, published on October 2017 by Resolution, the Family Law Bar Association and the International Academy of Family Lawyers, supplemented by mainland IAFL Fellows, Feb 2018).

And even if it was not the case: can we really afford to stay on the sidelines?

Needless to say, Brexit is just one of the ingredients in the current European Union melting pot. Last Friday’s presentation at the Comité Français de Droit International Privé, entitled « Le Droit international privé en temps de crise », by Prof. B. Hess, provided a good assessment of the main economic, political and human factors explaining European  contemporary mess – by the way, the parliamentary elections in Slovenia on Sunday did nothing but confirm his views. One may not share all that is said on the paper; it’s is legitimate not to agree with its conclusions as to the direction PIL should follow in the near future to meet the ongoing challenges; the author’s global approach, which comes as a follow up to his 2017 Hague Lecture, is nevertheless the right one. Less now than ever before can European PIL be regarded as a “watertight compartment”, an isolated self-contained field of law. Cooperation in criminal and civil matters in the AFSJ follow different patterns and maybe this is how it should be (I am eagerly waiting to read Dr. Agnieszka Frackowiak-Adamska’s opinion on the topic, which seem to disagree with the ones I expressed in Rotterdam in 2015, and published later). The fact remains that systemic deficiencies of the judiciary in a given Member State can hardly be kept restricted to the criminal domain and leave untouched the civil one; doubts hanging over one prong necessarily expand to the other. The Celmer case, C-216/18 PPU, Minister for Justice and Equality v LM, heard last Friday (a commented report of the hearing will soon be released in Verfassungsblog, to the best of my knowledge), with all its political charge, cannot be deemed to be of no interest to us; precisely because a legal systems forms a consistent whole mutual trust cannot be easily, if at all, compartmentalized.

The Paris presentation was of course broader and it is not my intention to address it in all her richness, in the same way that I cannot recall the debate which follow, which will be reproduced in due time at the Travaux. Still, I would like to mention the discussion on asylum and PIL, if only to refer to what Prof. S. Courneloup very correctly pointed out to: asylum matters cannot be left to be dealt with by administrative law alone; on the contrary, PIL has a big say and we – private international lawyers- a wide legal scenario to be alert to (for the record, albeit I played to some extent the dissenting opinion my actual stance on the need to pair up public and private law for asylum matters is clear in CDT, 2017). Last year the JURI Committee of the European Parliament commissioned two studies (here and here; they were also reported in CoL) on the relationship between asylum and PIL, thus suggesting some legislative initiative might be taken. But nothing has happened since.

Written by Duncan Fairgrieve (BIICL;Université de Paris Dauphine) and Solenn Le Tutour (avocat, Barreau de Paris)

When the French Government announced in February this year plans to launch an “English” Commercial court in Paris, eyebrows were raised and, it is fair to say, an element of skepticism expressed in the common law world as to whether such a development would really prove to be a serious competitor to the Commercial Courts on Fetter Lane in London.In what some might say was an uncharacteristically pragmatic fashion, collective judicial sleeves in Paris were pulled up however and the project taken forward with some alacrity. With broad support from the legal and political class given what is seen as re-shuffling of cards post-Brexit, the project was accelerated to such an extent that the first hearing of the new Chamber took place yesterday afternoon. The Court, which is an International Chamber of the Paris Court of Appeal, will hear appeals from the international chamber of the first instance Commercial court in Paris which has been in operation – albeit rather discretely – for almost a decade.

Setting aside the PR and legal spin, the procedural innovations of the new International Chamber are in fact quite radical. The headline-grabbing change is of course the use of English. Proceedings can take place in languages other than French, including English, and indeed it has recently been confirmed by the Court that non-French lawyers will also be granted rights of audience to appear before the International Chamber, as long as accompanied by a lawyer called to the Paris Bar. This is of course a major change in a normally very traditional French institution, though it is interesting to note that written submissions and pleadings as well as the resultant judgments will be in French (and officially translated into English).

Case management is to be stream-lined as well. Gone will be the rather languorous meandering French appellate procedure and in will be ushered a new highly case-managed equivalent with the parties and judge settling a timetable at the outset with fixed dates for filing written submissions, as well as – strikingly – the actual date of the ultimate judgment being set in stone, usually within 6 months of the first case-management hearing.

A minor revolution has also occurred in terms of the hearing. The approach will mean that the hearings will be more detailed, with the Court placing an emphasis on oral submissions, over and above the traditionally document-based approach where the judicial dossier takes precedence. There is even provision for the cross-examination of witnesses and experts during the hearing, something that rarely occurs in France outside the criminal arena.

Indications are also that there might even be a more fundamental change in the style of judicial judgments handed down by the International Chamber. At a recent seminar at the Paris Bar, the first judge assigned to the Chamber noted that there would be a deliberate attempt to ensure the judgments set out in more detail the reasoning of the Court, and a greater attention to legal certainty in terms of following previous case law – itself a very interesting potential shift in a legal system which has not traditionally adhered to any form of judicial precedent.

Some have also talked of allowing a more expansive approach to the judicially-sanctioned disclosure of documents – a simplified form of discovery where litigating parties are forced to communicate inconvenient files to the other side – which is all the more surprising as often lampooned by French commentators as one of the misdeeds of “American” style litigation.

Whilst this might not all add up to a complete judicial revolution, the changes in France are significant, and along with similar announcements in Amsterdam, Frankfurt, and Brussels, it is clear that there is an attempt across Europe – albeit only an attempt at this stage – to challenge the hegemony of English courts in international commercial litigation.

Mukarrum Ahmed (Lancaster University) has posted an article titled, The Nature and Enforcement of Choice of Law Agreements on SSRN. It can be freely accessed at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3177512.

This is a companion article on choice of law agreements to the author’s recent book titled The Nature and Enforcement of Choice of Court Agreements: A Comparative Study (Oxford, Hart Publishing 2017). The final version of this article will appear in the Journal of Private International Law.

The abstract of the article is reproduced below:

This article seeks to examine the fundamental juridical nature, classification and enforcement of choice of law agreements in international commercial contracts. At the outset, it will be observed that the predominance of jurisdictional disputes in international civil and commercial litigation has pushed choice of law issues to the periphery. The inherent dialectic between the substantive law paradigm and the internationalist paradigm of party autonomy will be harnessed to provide us with the necessary analytical framework to examine the various conceptions of such agreements and aid us in determining the most appropriate classification of a choice of law agreement. A more integrated and sophisticated understanding of the emerging transnationalist paradigm of party autonomy will guide us towards a conception of choice of law agreements as contracts, albeit contracts that do not give rise to promises inter partes. This coherent understanding of both the law of contract and choice of law has significant ramifications for the enforcement of choice of law agreements.

The 2018 Asia Pacific Colloquium of the Journal of Private International Law (JPIL) will be held on Monday 10 December 2018 at the Law Faculty of Doshisha University in Kyoto, Japan.

Scholars, researchers, legal practitioners and other interested persons are now invited to submit abstracts in English of paper proposals for presentation at the Colloquium.  While proposals for papers to be presented at the Colloquium may be on any topic, they must have as their primary focus the private international law aspects of the chosen topic.  Recent PhD graduates in the Asia Pacific region are especially invited to submit proposals.

The Colloquium will be in the form of an all-day roundtable discussion conducted in English.  Persons whose papers have been chosen will deliver their presentations in turn.  Each presentation will run for 20 minutes and be followed by a discussion of 20 minutes in which all participants in the Colloquium (including members of the JPIL’s Editorial Board and specially-invited private international law academics from the Asia-Pacific region) will comment on the presentation. The objective of the Colloquium will be to assist presenters to improve their papers with a view to eventual publication, possibly in the JPIL subject to acceptance by its Editorial Board.

Abstracts are to be submitted by email to ntakasug@mail.doshisha.ac.jp no later than 5 pm (Japan time) on 1 July 2018.  Abstracts should be accompanied by cvs and contact details of the person making the submission.  Persons whose abstracts have been accepted will be informed accordingly by 15 July 2018.  Such persons will be expected to submit their full papers in PDF format by email to ntakasug@mail.doshisha.ac.jp no later than 5 pm (Japan time) on 1 October 2018.  Papers should be in English and between 4,000 and 10,000 words in length (inclusive of footnotes).  Accepted papers will be circulated in advance among those taking part in the Colloquium.  Persons who have not heard from the Colloquium organisers by 15 July 2018 should assume that their submissions have not been accepted.

Persons selected to make presentations should note that they will be wholly responsible for their travel to and from, and their accommodation in, Kyoto for the Colloquium.  Neither the JPIL nor the Faculty of Law Doshisha University are in a position to provide any funding in respect of a selected person’s expenses.  Further inquiries may be addressed to Professor Naoshi Takasugi at ntakasug@mail.doshisha.ac.jp.

The University of Milan (Department of International, Legal, Historical and Political Studies) will host on Thursday 21 and Friday 22 June 2018 the Summer School in International Financial Law. Participation is free of charge, but registration is compulsory at Eventbrite. The sessions will be held in English with simultaneous translation into Italian. Here is the programme (available for download):

Thursday 21 June 2018 – 14h00

14h30 Welcome Address

• Giuseppe De Luca, Deputy-Rector, University of Milan
• Ilaria Viarengo, Director of the Department of International, Legal, Historical and Political Studies

15h00 Cross-Border Company Matters

Chair: Manlio Frigo, University of Milan

• The EU Proposal for a Directive on Cross-Border Conversions, Mergers and Divisions (Bartlomiej Kurcz, DG Justice and Consumers, European Commission)
• A German Perspective (Leonhard Hübner, University of Heidelberg)
• An Italian Private International Law Perspective (Francesca C. Villata, University of Milan)
• Italian and Comparative Corporate Law Perspectives (Marco Ventoruzzo, Bocconi University)

General discussion (with the participation of Maria Vittoria Fuoco, Department on the Functioning of the Judiciary, Italian Ministry of Justice)

– – –

Thursday 21 June 2018 – 17h30

17h30 Taking Security over Shares and Other Financial Securities

Chair: Giovanna Adinolfi, University of Milan

• Investors Rights in Securities and Shareholdings in the Post-CSDR Era (Christina Tarnanidou, University of Athens of Economics and Business, Rokas, Athens)
• Securities settlement through T2S (Aranzazu Ullivarri Royuela, BME Post Trade Services, Madrid)

General discussion

– – –

Friday 22 June 2018 – 9h30

9h30 Financial Collaterals and Bonds

Chair: Giovanna Adinolfi, University of Milan

• Cross-Border Financial Collateral within the Eurosystem (Klaus Loeber, Market Infrastructures and Payments, European Central Bank)
• Bonds Issuance (Matthias Lehmann, Rheinischen Friedrich-Wilhelms-Universität Bonn)

General discussion

10h45 – 13h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Francesca C. Villata, University of Milan

• Presentation of the Proposal (Maria Vilar-Badia, DG Justice and Consumers, European Commission)
• Factoring (Christine Van Gallebaert, Université Paris 2 Panthéon-Assas, Jones Day, Paris)
• Collateralization (Joanna Perkins, Financial Markets Law Committee, London)

General discussion

– – –

Friday 22 June 2018 – 14h00

14h00 – 17h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Stefania Bariatti, University of Milan

• Securitization (Gilles Cuniberti, University of Luxembourg)
• Selected practical issues (Francisco Garcimartín Alférez, Universidad Autónoma de Madrid, Linklaters, Madrid)
• The Relationship with the EU Regulation on Cross-Border Insolvency (Stefania Bariatti, University of Milan, Chiomenti, Milan)
• The Relationship with the EU Rules on the Cross-Border Insolvency of Banks and Insurances (Matthias Haentjens, University of Leiden)

General discussion – Closing Remarks

(Many thanks to Prof. Francesca Villata for the tip-off)

I post this item mostly as a point of reference for discussions on mandatory law, employment disputes, and the use of arbitral tribunals to circumvent limitations in domestic litigation.

In FC Black Stars Basel 4A_7/2018, the Swiss Supreme Court held in April that mandatory Swiss law on limited arbitrability of domestic employment disputes, cannot be circumvented by submitting dispute to international arbitration. Schellenberg Witmer have succinct analysis here.

Note in particular 2.3.3:

Vor diesem Hintergrund erscheint es zur Vermeidung von Wertungswidersprüchen folgerichtig, den in Art. 341 OR angeordneten Schutz der sozial schwächeren Partei im Rahmen der Beurteilung der freien Verfügbarkeit nach Art. 354 ZPOinsoweit in das Prozessrecht hinein zu verlängern, als Schiedsvereinbarungen nicht uneingeschränkt zugelassen werden

Geert.

Erasmus School of Law (under the ERC project Building EU Civil Justice) in collaboration with the Max Planck Institute for Procedural Law Luxembourg, and the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University) are hosting the seminar ‘Innovating International Business Courts: A European Outlook’ that will take place in Rotterdam on 10 July 2018.

In relation thereto Erasmus Law Review invites submissions for its upcoming special issue on International Business Courts – a European and Global Perspective on topics relating to court specialization, specifically relating to the development of international business courts in Europe and beyond, and focusing on justice innovation and their relevance for access to justice and the judicial system, including the challenges they may pose for judicial administration, litigants and other stakeholders. Contributions can be theoretical, empirical as well as policy oriented. Interdisciplinary approaches are especially encouraged. The issue will also include papers focusing on the Netherlands, the United Kingdom (England and Wales), France, Germany, and Belgium, and deriving from the seminar.

Authors of selected papers will be exempt from registration fees for the seminar and will have the opportunity to present a poster during the drinks after the seminar.

Please submit an abstract in English of no more than 500 words to Erlis Themeli (themeli@law.eur.nl) and Alexandre Biard (biard@law.eur.nl) before 10 June 2018. Please include your name, affiliation, and a link to your research profile. You will be informed on the outcome on 24 June 2018 at the latest. Responsible issue editors are Xandra Kramer (Erasmus University Rotterdam/Utrecht Utrecht) and John Sorabji (University College, London).

The final paper should be 8,000-12,000 words in length (including footnotes) and must comply with the Erasmus Law Review’s Authors Guidelines. Selected papers will go through the regular double-blind peer review process and publication is subject to the outcome of this review process. The deadline for submission of the paper is 1 October 2018.

For more information see the Call for Papers.

I reported earlier on Sulamerica and the need properly and preferably, expressly to provide for choice of law vis-a-vis arbitration agreements, in particular vis-a-vis three elements: lex arbitri, lex curia, lex contractus. In Shagang the High Court added its view on the possible relevance of a fourth factor: the geographical venue of the arbitration, and its impact in particular on the curial law: the law which determines the procedure which is to be followed.

Atlas Power Ltd -v- National Transmission and Despatch Co Ltd  [2018] EWHC 1052 is another good illustration of the relevance (but in practice: rarity) of the proper identification of all four factors.

Bracewell excellently identify the four take away points from Atlas Power:

1. It is the seat of arbitration that determines the curial law of the arbitration, not the governing law of the contract.
2. (To English Courts) the choice of the seat of arbitration is akin to an exclusive jurisdiction clause in favour of the courts of the place designated as the seat of the arbitration having the supervisory role over the arbitration.
3. The English courts can and will use their powers to grant anti-suit injunctions to prevent a party from commencing foreign proceedings in breach of an arbitration agreement.
4. Complex drafting increases the risk of satellite litigation and the accompanying delay and expense.

The core point which Atlas Power illustrates is that specific identification of arbitration venue, curial law, lex contractus and lex arbitri is best done in simple terms. Overcomplication, particularly variance of any of these four points, is a truly bad idea. Specifically: the arbitration clause in the contracts between the parties (text from Bracewell’s overview)

1. Started by providing that the “arbitration shall be conducted in Lahore, Pakistan”.
2. Then stated that if the value of the dispute was above a certain threshold or fell within a certain category, either party could require that the arbitration be conducted in London.
3. Finally, the clause provided that, notwithstanding the previous sentences, either party may require that the arbitration of any dispute be conducted in London, provided that if the dispute did not satisfy the threshold or category requirements set out earlier in the clause the referring party would pay the costs of the arbitration incurred by the other party in excess of the costs that would have been incurred had the arbitration taken place in Pakistan.

Various procedural events led to Phillips J essentially having to decide: whether the parties had validly and lawfully chosen London as the seat of the arbitration (answer: yes); and whether, in light of Pakistani law (which was the law governing the contracts), the choice of London as the seat of arbitration did not result in the English courts having exclusive supervisory jurisdiction with the effect that the courts of Pakistan had at least concurrent jurisdiction (answer: no, for this would result in an unsatisfactory situation where more than one jurisdiction could entertain challenges to an award)

Variation of any litigation relevant articles really does open all sorts of cans of worms.

Geert.

Professor Hannah Buxbaum has recently published an important report (see here), prepared for the International Academy of Comparative Law’s International Congress, on forum selection clauses.  Below is the abstract.

A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. The use of such a clause in a particular case may therefore raise a set of questions under contract law. Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, though, a forum selection clause affects not only the private rights and obligations of the parties, but something of more public concern: the jurisdiction of a court to resolve a dispute. The enforcement of such a clause therefore raises an additional set of questions under procedural law. For instance, if the parties designate a court in a forum that is otherwise unconnected to the dispute, must (or should) that court hear a case initiated there? If one of the parties initiates litigation in a non-designated forum that is connected to the dispute, must (or should) that court decline to hear the case?

This report, prepared for the International Academy of Comparative Law in connection with its XXth International Congress, analyzes the approach to these questions in the United States. The bottom line is straightforward: almost always, in consumer as well as commercial contracts, forum selection clauses will be enforced. Navigating the array of substantive, procedural, and conflicts rules whose interplay yields that result, though, is far less straightforward. That is the task of this report. Following a short background, it surveys current state law on their use, in consumer as well as commercial contracts. The report then discusses the interpretation and enforcement of forum selection clauses in both state and federal courts. It analyzes their effect on jurisdiction as well as on doctrines involving venue, such as removal and forum non conveniens. The report also covers choice of law problems, particularly as they arise in the course of litigation in federal courts.

To celebrate its 30th Private International Law Day, the SICL is holding a conference devoted to the new challenges of what is sometimes described as the “collaborative” or “sharing” economy. It will take place in Lausanne on 28th June 2018.

The concept of economy includes crowdfunding, “Uberisation” and all other intermediary activities using a digital platform. These mass phenomena, witnessed on a global scale, put in question the very notion of the territorial division of state borders. Is the digital space in which these platforms operate a true space, capable of being delineated and regulated at the national level, and which falls into the territorial scope of application of a law? Or is it rather a volatile cloud, globalised, delocalised, incapable of being pinned down on such a territorial basis? Is it still possible for nation states to guarantee their citizens and/or residents legal protection with regard to the intermediaries who employ them or who offer them their services? Or has it not become essential, even urgent, that a supranational law be devised and placed in the same cloudy skies in which the platform operates? Further still: is it possible to require platforms and their operators to be measured against the particular requirements of a state, notably those concerning the protection of workers and consumers? What role can contemporary private international law play in this regard?

All these questions present a challenge to the supposed neutrality sought by private international law and bring to the fore its potential political and protective role. In this respect, the state can use private international law in order to guarantee cross border protection to the weakest actors in the marketplace – notably, workers and consumers – who reside within its territory (and/or its citizens). On the other hand, however, it may be argued that state interference aimed at constraining those who operate in the digital economy may lead to harmful distortions of the global market. In this regard, what guarantees should be afforded to the freedom of the internet and, at the same time, to that of workers, whose decisions to join and work with a digital platform are made of their own free will? These considerations therefore demand that we draw on the traditional principles of party autonomy and decisional harmony. Speakers include Janine Berg, ILO Genève, Andrea Bonomi, Université de Lausanne, Miriam Cherry, University of St. Louis, Valerio De Stefano, KU Leuven, Marie-Cécile Escande Varniol, Université Lumière, Lyon II, Pietro Franzina, Università degli Studi di Ferrara, Ljupcho Grozdanovski, Université de Genève, Florence Guillaume, Université de Neuchâtel, Tobias Lutzi, University of Oxford, Anne Meier, MSS Law, Edmondo Mostacci, Università Bocconi, Etienne Pataut, Université Paris 1, Panthéon-Sorbonne, Ilaria Pretelli, Institut suisse de droit comparé, Teresa Rodríguez de las Heras Ballell, Universidad Carlos III de Madrid, Gian Paolo Romano, Université de Genève, et Gerald Spindler, Georg-August-Universität.

Click here for whole program and further information.

The European Commission has published yesterday two communications, proposing the amendment of the Evidence and Service Regulations (1201/2000 & 1393/2007 respectively).

The texts can be retrieved here  & here.

The key amendments suggested by both proposals have been summarized by Prof. Emmanuel Guinchard here & here.

‘Reading’ Arica Victims v Boliden Mineral (I have a copy of the case, but not yet a link to ECLI or other database; however there’s a good uncommented summary of the judgment here] leaves me frustrated simply for my lack of understanding of Swedish. Luckily Matilda Hellstorm at Lindahl has good review here (including a hyperlink to her earlier posting which alerted me to the case in 2017).

Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies, which determined lex causae as lex loci damni. The Court found this to include statute of limitation. This would have been 10 years under Swedish law, and a more generous (in Matilda’s report undefined) period under Chilean law. Statute of limitation therefore following lex causae – not lex fori.

Despite this being good for claimants, the case nevertheless failed. The Swedish court found against liability (for the reasons listed in Matilda’s report). (With a small exception seemingly relating to negligence in seeing waste being uncovered). Proof of causality seems to have been the biggest factor in not finding liability.

Leave for appeal has been applied for.

Geert.

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

I promised a post on C-560/16 E.ON v Dědouch sooner than I have been able to deliver – I have reviewed Wathelet AG’s Opinion here. I do not evidently hold the magic key to the optimal interpretation of Article 24(2) Brussels I Recast’s. Yet regular readers of the blog indeed my students will know I  am not much of a fan of Article 24 full stop – let alone its extensive interpretation.

Briefly, the facts. By a resolution of 8 December 2006, the general meeting of the company incorporated under Czech law, Jihočeská plynárenská, established in the Czech Republic, decided on the compulsory transfer of all the participating securities in that company to its principal shareholder E.ON, established in Munich (Germany). A group of minority shareholders contest not the validity of the sale, but purely the price paid. Czech law moreover holds that any finding on the reasonableness of the price paid cannot have an impact on the very validity of the transfer.

Lower Czech courts consecutively entertained and accepted cq rejected jurisdiction on the basis of Article 6(1) [no details are given but presumably with Jihočeská plynárenská as the anchor defendant, 24(2) (but then presumably with , 7(1) [again no details given but presumably a consequence of the purchase of shares by the minority shareholders]. Both Wathelet AG suggests, and the CJEU holds that the action for review of the reasonableness of the consideration that the principal shareholder of a company is required to pay to the minority shareholders of that company in the event of the compulsory transfer of their shares to that principal shareholder, comes within the scope of application of (now) Article 24(2). Both refer extensively to C‑372/07 Hassett and Doherty, among others.

The general line of interpretation is: secure Article 24’s effet utile, but apply restrictively (like all other exceptions to the actor sequitur forum rei rule).  I do not think that the CJEU honours restrictive interpretation in E.ON. Readers best consult the (fairly succinct – ditto for the Opinion) judgment in full. A few observations.

In the majority (not quite all) of the cases of exclusive jurisdictional rules,  Gleichlauf is part of the intention. That generally is a proposition which goes against the very nature of private international law and should not in my view be encouraged. Particularly within the EU there is not much reason not to trust fellow courts with the application of one’s laws – indeed quite regularly these laws may be better applied by others.

Generally at least three of Article 24 Jurisdictional rules (rights in rem; the corporate exception; and IPR) refer at least in part to the issue of publicity (of public records) and their availability in the Member States whose courts haven been given exclusive jurisdiction. That argument in my view is sooo 1968 (which indeed it is). I see little reason to apply it in 2018.

Further, in accordance with the Jenard report, the principal reason for Article 24(2) is to avoid conflicting decisions of EU courts on the existence of the company or the validity of the decisions of its organs. This goal of course may be equally met by the lis alibi pendens rule – Article 24 does not play a unique role here.

Finally the CJEU remarks at 34 ‘In the present case, while it is true that, under Czech law, proceedings such as those at issue in the main proceedings may not lead formally to a decision which has the effect of invalidating a resolution of the general assembly of a company concerning the compulsory transfer of the minority shareholders’ shares in that company to the majority shareholder, the fact nonetheless remains that, in accordance with the requirements of the autonomous interpretation and uniform application of the provisions of Regulation No 44/2001, the scope of Article 22(2) thereof cannot depend on the choices made in national law by Member States or vary depending on them.’ To cross-refer to the aforementioned Jenard Report: if Article 24(2)’s goal is to avoid conflicting decisions on life and death etc. And if that life and death of a national company depends on the applicable national law as the Court acknowledges here and ditto in Daily Mail and Cartesio/Polbud), then of course the lex causae must have an impact on the application of Article 24(2) .

The Court’s finding on 24(2) meant it did not get to the Article 7 analysis – which I did review in my post on the AG’s Opinion.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016. Heading 2.2.6.5.

Edited by Delphine Porcheron, Mélanie Schmitt and Juliette Lelieur

The University of Strasbourg is organizing workshop series on the protection of Human Rights in transnational situations. The research is conducted in criminal law, labour law, and private international law. After the first meeting which took place last January with the presence of Horatia Muir Watt, Dominique Ritleng and Patrick Wachsmann, the second one will be held in Strasbourg on June 5, focusing on civil and environmental liabilities and private international law.

Speakers include :

• Bénédicte Girard, University of Strasbourg
• Marie-Pierre Camproux, University of Strasbourg
• Pauline Abadie, University of Paris Sud
• Fabien Marchadier, University of Poitiers
• Patrick Kinsch, University of Luxembourg, Attorney at law Luxembourg
• Louis d’Avout, University of Paris II
• Jean-Sylvestre Bergé, University of Lyon III
• Caroline Kleiner, University of Strasbourg

For more information click here.