Flux des sites DIP

Samsung Electronics Co. Ltd & Ors v LG Display Co Ltd & Anor [2022] EWCA Civ 423 concerns follow-on damages claimed against non-EU based defendants. The European Commission had earlier found the existence of a cartel. The Court of Appeal confirms the refusal of service out of the jurisdiction on forum non conveniens grounds, holding, like the first instance judge, that England & Wales are clearly not the appropriate forum (Taiwan and /or South Korea are).

I report the case for it contains an interesting Ps on the confidentiality of the EC finding: Males LJ:

The parties were united in urging upon us that the Commission Decision is confidential and that reference to its recitals should not be made in open court. I have to say that, as a general proposition, this seems paradoxical. I find it hard to see how a Decision can at the same time be both confidential and binding in public follow-on proceedings. To that extent it appears that any requirement of confidentiality may be in tension with the fundamental constitutional principle of open justice. Moreover, this particular Commission Decision deals with events which are now in the distant past and has been extensively litigated in the years since it was made. It is hard to think that there is any real confidentiality left.

Nevertheless I have been careful to confine my citation from the Decision to what is necessary to explain the submissions made to us and the conclusions which I have reached. I have referred only to recitals which were alleged to explain and support the operative part of the Decision (cf. Emerald Supplies Ltd v British Airways Plc [2015] EWCA Civ, [2016] Bus LR 145 at [68]) and have omitted any reference to other participants in the cartel who were not represented before us.

This invites interesting reflections on the principles of open justice in EU competition law findings – a discussion I shall leave to others.

Geert.

Follow-on damages action re EC finding of cartel, viz non-EU defendants.
Refusal of service out confirmed, E&W clearly not the appropriate forum.
Interesting ps on confidentiality of EU decision

Samsung Electronics ea v LG Display ea [2022] EWCA Civ 423https://t.co/vmDSR5OvCC

— Geert Van Calster (@GAVClaw) April 1, 2022

A brief post on the judgment of the CJEU in C-561/20 United Airlines. The CJEU held that the EU flight delay compensation rules of Regulation 261/2004 apply to a flight operated by non-EU airline on behalf of EU airline, even when  the delay relates to flight segment outside the EU. On the issue of international jurisdiction, the Court engages with customary international law questions, referring ia to its C-366/10 ATAA judgment which I discussed here.

The CJEU firstly [51] repeats that since

a principle of customary international law does not have the same degree of precision as a provision of an international agreement, judicial review must necessarily be limited to the question whether, in adopting the act in question, the institutions of the European Union made manifest errors of assessment concerning the conditions for applying such a principle

I do not think its poor view on the lucidity of customary international law is justified, however its finding that only manifest errors may lead to illegality does of course mean the CJEU does not have to worry about all the nuts and bolts of territorial jurisdiction. It suffices [52] that there is a close connection with the territory of the EU since the Regulation specifies that connecting flights fall within the scope of that regulation on the ground that the passengers have started their journey from an airport located in a Member State. [53]:

The regulation applies to a long delay caused in a leg of a flight operated in a third country only in limited and clearly defined circumstances in which the flight concerned, taken as a whole, is operated from an airport located in the territory of a Member State. Such a flight and its passengers thus retain a close connection with the territory of the European Union, including for the leg of the flight operated outside the European Union.

Flights which are wholly operated in a third country or between two third countries, without any connection with EU territory [55].

Geert.

#CJEU: EU #flightdelay rules apply to flight operated by non-EU airline on behalf of EU airline, even when delay relates to flight segment outside the EU.

Once text of full judgment available, we can see how much the Court engages with AG discussion of territoriality, int law. https://t.co/rGqA1n2idi

— Geert Van Calster (@GAVClaw) April 7, 2022

BRG NOAL GP SARL & Anor v Kowski & Anor [2022] EWHC 867 (Ch) continues the current trend of forum non conveniens applications galore, following Brexit. In the case at issue, with Luxembourg suggested as the appropriate forum, applicable law determination, under (retained) Rome I’s ‘characteristic performance’ rule plays a core role.

Applicable law needs to be determined essentially viz an undertaking as I understand it, by a, validly removed, investment fund General Partner, not to torpedo the subsequent orderly continuation of the fund. The core commitment reads

“I, [name], hereby acknowledge that [NOAL GP] is the managing general partner (“General partner”) of [the Fund] with effect from 27 August 2021 and unconditionally and irrevocably undertake (a) not to assert otherwise, or to induce or procure an assertion to the contrary or otherwise challenge or question the validity of its appointment or induce or produce such challenge or question, in any applicable forum and (b) to cooperate with and assist the General Partner in completing a full, orderly and timely transfer of the control of the Partnership and all of its assets and any obligations to the General Partner”.

Claimant [57] suggests the specific Undertaking in and of itself meets the CJEU Handte definition of a stand alone contractual obligation, however Smith J does not specifically hold on this for in her view even if this were correct, the overall contractual construction would have an impact on the applicable law consideration, seeing as in her view:

no choice of law was made; no default ‘passe partout’ contract as listed in A4(1) Rome I applies; A4(2) Rome I’s ‘characteristic performance’ test does not lead to an answer ([61]: there is no ‘characteristic performance’] and at any rate even if there were, the judge would have applied A4(3)’s escape clause to lead to Luxembourg law; and the ‘proper law of the contract’ per A4(4) Rome I ‘clearly’ [63-64] leads to Luxembourgish law.

In conclusion, a stay is ordered and the forum non application is successful. In my view the judge jumped too easily to Articles 4(3) and (4), denying Article 4(2)’s or even Article 3 choice of law’s effet utile. It is not unusual for judges to let their predetermination to apply A4(3) and /or (4) determine their A4(2) search for a lex contractus. Yet that frequency does not make the judgment right.

Geert.

EU Private International Law, 3rd ed, 2021, Heading 3.2.6.2.

Another extensively litigated forum non conveniens jurisdictional challenge, with core role for applicable law determination, retained A4 Rome I 'characteristic performance'
Stay in favour of Luxembourg proceedings

BRG NOAL v Kowski [2022] EWHC 867 (Ch) https://t.co/j3jAekQVXG

— Geert Van Calster (@GAVClaw) April 12, 2022

[contact-form]

When CJEU Bolagsupplysningen was held, I flagged immediately (I was not alone) that the judgment would necessarily create follow-up litigation.

At the level of the CJEU itself, Mittelbayerischer Verlag somewhat reigned in the consequences of Bier and Shevill, albeit not directly related to the discussions in Bolagsupplysningen. In Gtflix, the Court confirmed that each Member State where damage has occurred, will continue to have locus damni jurisdiction even if the claimant requests rectification of the information and the removal of the content placed online in another jurisdiction: one with full jurisdiction as either the Handlungsort or the place of the claimant’s centre of interests.

In England and Wales, Saïd v L’Express (a first instance case) held that it follows from Bolagsupplysningen that so far as internet publications are concerned, a claimant who is seeking injunctive relief (removal, correction in particular) may do so only in the places with full jurisdiction. This was implicitly confirmed in Napag, also a first instance case.

This conclusion has now been overturned by the Court of Appeal in Mincione v Gedi Gruppo Editoriale SPA [2022] EWCA Civ 557. This is a libel case brought by an Italian national with acquired British citizenship who is resident in Switzerland. He sues the Italian-domiciled publisher of a daily newspaper and weekly magazine, both of which are published predominantly in Italy and in the Italian language.

The first instance judge, Mincione v Gedi Gruppo Editoriale SpA [2021] EWHC 2006 (QB) had followed Said and Napag. The Court of Appeal notes that as a result of the Withdrawal Agreement it is bound by Bolagsupplysningen, it having been held before Brexit, and that it  ‘can have regard to’ ([65]) Gtlfix.

Warby J, seeking support in Gtflix, holds injunctive jurisdiction to restrain a harmful internet publication that has either occurred or “may occur”, does exist for the locus damni court yet only in respect of publication that may occur within the territorial jurisdiction of the court concerned. It can justify a domestic internet injunction, even for a ‘mosaic’ (locus damni) court, yet not to grant an injunctive remedy that would inevitably take effect extraterritorially.

The first instance judgment therefore is overturned on legal substance but  largely confirmed in practical reality: [72]. Current proceedings are largely held in substance, albeit not in form, to be a claim for a single and indivisible remedy. That is because a domestic internet injunction, prohibiting further publication, in this case however limited it might be in form, would, on the undisputed evidence, inevitably have extraterritorial effect. In future, technology might mean that an order framed as a domestic internet injunction would or could take territorial effect only. Yet in current technological reality, it is said that ordering removal would immediately have extraterritorial substantive effect. Those with knowledge of the technology may have more to say about this. Update 29 04 4:50 PM: the first instance judgment suggests this is related to the limited E&W jurisdiction, while the order would impact other parts of the UK, too: [98]: geo-blocking can only be done at a UK level, and the removal of a YouTube video can also be only done at a UK level (not: the E&W level).

The only part of the claim where jurisdiction for injunctive relief, if claimant is found at trial to have been libelled, will be possible, is for a so-called ‘section 12’ internet injunction: an order to publish a summary of the eventual judgment. That is because in the view of the the Court of Appeal, this relief can be targeted to the current subscriber basis of the publication outlets in England and Wales only.

Per Soriano, post Brexit a claimant will have to show that England and Wales is clearly the most appropriate place to bring an action, with locus damni per  SC Brownlie the tort gateway. Bolagsupplysningen will therefore not echo for much longer in E&W, and I doubt therefore that the SC will hear an appeal if it were sought.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

Court of Appeal overturns on the implications of #CJEU Bolagsupplysningen – jurisdiction to remove offensive articles published on the internet
Review on the blog shortly

Mincione v Gedi Gruppo Editoriale SPA [2022] EWCA Civ 557 https://t.co/UEZHfsSyy0

— Geert Van Calster (@GAVClaw) April 29, 2022

In 1971, the American Law Institute published the epochal Restatement of Conflict of Laws (Second). Now, a new version is in the making.

An overview of the work will be given by Kermit Roosevelt III (University of Pennsylvania) on 10 May 2022, at 5 PM CET, in the context of the Max Planck Institute (MPI) Hamburg series on “Current Research in Private International Law”.

This promises to be very interesting as the speaker is deeply involved in the drafting process.

The registration link can be found here. Participation is free of charge.

Just this week, the Supreme Court decided an important conflict of laws question in Cassirer v. Thyssen-Bornemisza Collection Foundation (S. Ct. 2022).

We have discussed this case on this site before, but the facts deserve restating. Paul Cassirer was a German Jew who owned an art gallery who owned Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain . Paul’s heir, Lilly Cassirer, inherited the painting and hung it in her Berlin home. In 1939, she gave the paintings to the Nazis in return for an exit visa. She later came to the United States with her grandson, Claude, the plaintiff in this case.

The Cassirer family initially brought proceedings in the United States Court of Restitution Appeals under the assumption that the painting had been lost or destroyed—but it wasn’t destroyed. The Thyssen-Bornemisza Collection Foundation (TBC)—a public foundation and an agency or instrumentality of the Kingdom of Spain—purchased it in 1993. After TBC refused to return it to the Cassirer’s, Claude filed suit against Spain and TBC in 2005. Spain was voluntarily dismissed as a party in 2011, and after his death, Claude’s heir’s continued the case.

The Courts determined in 2011 that TBC was not immune from suit because the painting had been taken in violation of international law. The case then proceeded to trial on the merits. The plaintiffs argued that California law should govern, while TBC argued that Spanish law should govern. The judge, citing Ninth Circuit precedent, decided that federal common law provided the conflict of laws rule that should be used to decide what law substantively governed the claim, and that under federal common law conflicts principles, Spanish law governed. TBC prevailed at trial, and the judgment was affirmed on appeal. The plaintiffs sought Supreme Court review only on the question whether federal common law should govern the conflicts analysis, or whether the court should instead have applied California’s conflict of laws rules.

Many commentators wrote—and I agree—that the case is pretty straightforward. The FSIA (28 U.S.C. § 1606) provides that in any case where the foreign sovereign defendant is not immune from jurisdiction, “the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” So, if TBC had not been an instrumentality of the Spanish state, California conflict of laws rules would have governed (because the case is pending in a federal court in California and does not arise under federal law). Justice Kagan’s unanimous opinion agreed. In light of § 1606, the courts could not apply a rule to the foreign sovereign defendant different from the rule it would have applied to a private defendant. Once a plaintiff overcomes the jurisdictional hurdles of foreign sovereign immunity, the foreign sovereign has to be treated like any other litigant.

As a result of the decision, the judgment will be vacated and the case remanded for further proceedings. The lower courts, applying California’s conflict of laws rules, could again conclude that Spanish law should govern, or it could decide that California law should govern, in which case maybe a new trial will be necessary. Lots a litigation left, in the end.

In JJH Enterprises Ltd (Trading As ValueLicensing) v Microsoft Corporation & Ors [2022] EWHC 929 (Comm) Picken J makes a debatable point in his discussion of a forum non conveniens application by defendants, Microsoft.

In the proceedings ValueLicensing claim damages arising from alleged breaches of competition law by Microsoft. The claim is a ‘stand alone’ one, not a ‘follow-on’ one. There is no underlying infringement decision of the European Commission (or any domestic competition regulator) on which ValueLicensing can rely to establish that an infringement of competition law has been committed.

Some of the Microsoft entities firstly seek summary dismissal of the case against them, arguing they cannot be held liable for an alleged infringement of either Article 101 or 102 TFEU as a result of an overall Microsoft ‘campaign’ in which they did not demonstrably take part. Here [31] ff there is interesting discussion ia of Provimi (Roche Products Ltd. & Ors v Provimi Ltd [2003] EWHC 961 (Comm)), which held that an entity that implements an agreement in breach of A101 to which a member of the same undertaking is a party can be held liable for the infringement even though the implementer itself does not know of the infringement. Specifically, whether Provimi was wrongly decided following from Cooper Tire Europe Ltd v Bayer Public Co Ltd [2010] EWCA Civ 864  – this is an issue for which CJEU referral is not possible post Brexit.

The judge however refers to the broader concept of ‘undertaking’ in the A101-102 sense following eg CJEU C-882/19 Sumal SL v Mercedes Benz Trucks Espana SL. Sumal, Picken J holds [44], is relevant authority both pre and post Brexit.

Quite how parties see a difference in the lex causae for the competition law infringement pre and post Brexit is not clear to me. Post Brexit it is said to be ‘English law’ (held to include 101-102 TFEU prior to Brexit), full stop, while post Brexit that law is said to be determined by (retained) Article 6 Rome II, which for same of the claim will be English law as being one of the ‘affected markets’ per A6 Rome II.

It is in the forum non application that the judge posits [78] that an important consideration of England as the more appropriate forum, is

it is clear that Microsoft UK’s position at trial will be that in certain material respects English law has taken a divergent path from EU law. In such circumstances, it would be wholly inappropriate, and certainly undesirable, for a court in Ireland to be determining whether Microsoft UK is right about this. On the other hand, there would be no difficulty with the Court here applying EU competition law, either as part of English law (in respect of the pre-Brexit period and, if that is what the Court determines is the case, also in respect of the post-Brexit period) or as part of the laws of other EU/EEA member states, since the Court here is very experienced in doing just that.

If it is true that under forum non, only English courts can be held properly to determine the direction of English law post Brexit, the hand of many a claimant in forum non applications will surely be strengthened.

Geert.

Forum non conveniens
Interesting point [75] that E&W are the most appropriate forum, given that it must be EN courts determining whether EN law differs substantially from EU law post #Brexit

JJH Enterprises (ValueLicensing) v #Microsoft [2022] EWHC 929https://t.co/XP3z4nX8KV

— Geert Van Calster (@GAVClaw) April 19, 2022

Within the activities of the Jean Monnet Module “CoRiMaR” (Consumer’s Rights and Market Regulation in the European Union), the Department of Legal Sciences of the University of Udine (Italy), together with a consortium of European universities including the University of Essex, De Montfort University, Universitatea de Vest din Timisoara, East Anglia University, University of Belgrade and University of Rijeka, organises the 15th edition of the Summer school Consumer’s Rights and Market Regulation in the European Union, to be held 13-22 July 2022 in Udine (Italy), at the Campus of Legal and Economic Sciences.

The Summer school on Consumer’s Rights and Market Regulation is an intensive course (40 hours of lectures, a workshop and a moot court), held in English by internationally renowned academics. It addresses theoretical and practical issues related to the legal protection of consumers and the market regulation in the European Union.

The call for application and the brochure is available here and here.

The application deadline is 15 June 2022.

For further info, please write an email to ip.europeanlaw.uniud@gmail.com.

Is a foreign arbitral award granting damages in bitcoin compatible with substantive public policy? The Western Continental Greece Court of Appeal was recently confronted with this question. Within the framework of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, it ruled that the recognition of a US award runs contrary to Greek public order. Cryptocurrency, such as bitcoin, favors tax evasion and facilitates economic crime, causing insecurity in commercial transactions to the detriment of the national economy.

FACTS

The applicant, a German national, was a member of a website, governed by a US company. The website was a platform through which members could conclude credit contracts in cryptocurrency (bitcoin). The applicant agreed with a resident of Greece to finance his enterprise by providing a credit of 1.13662301 bitcoin. The Greek debtor failed to fulfill his obligations, and he refused to return the bitcoin received. On the grounds of an arbitration agreement, an award was issued by an online arbitration court, located in the USA. The debtor appeared in the proceedings and was given the right to challenge the claim of the applicant. The court of first instance decided that the arbitral award may not be recognized in Greece for reasons of substantive public policy (CFI Agrinio 23.10.2018, unreported). The applicant lodged an appeal.

THE JUDGMENT OF THE COURT APPEAL

The appellate court began with a short description on the nature of bitcoin. It then mentioned the position of the European Central Bank with respect to the same matter. It concluded that the use of bitcoins endangers transactions both for the parties involved and the state. This comes from the fact that any income resulting from the use of cryptocurrency is tax-free, given that this kind of transactions are not regulated in Greece. Hence, importing capital in bitcoins and generally any kind of cryptocurrency, irrespective of the type of legal matter, infringes the domestic legal order, because it favors tax evasion and facilitates economic crime, causing insecurity in commercial transactions to the detriment of the national economy.

As a result of the above, the recognition of an award which recognizes bitcoin as a decentralized currency unit (peer to peer), and orders the payment of a certain debt in bitcoins, runs contrary to public policy, i.e., to fundamental rules and principles of Greek legal order in present times, reflecting predominant social, financial, and political values.

Finally, by enhancing transactions in bitcoin and promoting its equalization to legal currency, the recognition of such an award in Greece would essentially disturb prevailing standards of the country, given bitcoin’s sudden and unpredictable fluctuations [Western Continental Greece Court of Appeal 27.09.2021, unreported].

 COMMENT

Unlike the profound analysis of the first instance court, the appellate court confirmed the judgment mechanically, with zero references to legal scholarship and case law. The developments in the subject matter between 2018 (publication of the first court’s ruling) and 2021 (publication of the appellate court’s judgment) were not taken into account. The Hellenic Republic has transposed crucial directives related to cryptocurrency (see DIRECTIVE (EU) 2019/713 of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA). New income tax rules and regulations focusing on cryptocurrency are prepared by state authorities. Even now, i.e., without a special law on cryptocurrencies, bitcoin profits must be declared for taxation purposes. Bitcoin exchange offices are active in the country. To conclude, the judgment seems to be alienated from contemporary times.

Referring to the judgment of the CJEU in the case Skatteverket / David Hedqvist (C-264/14), the first instance ruling underlined that the decision focused on the Swedish economic environment, which may not be compared to the situation in Greece. Therefore, and in light of recent developments in the country, we may hope that the courts will soon shift course towards a more pragmatic approach.

[Many thanks to Professor Euripides Rizos, Aristotle University of Thessaloniki, for his valuable insight into the field of cryptocurrencies]

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 28 April 2022 at 3:00 pm (Mexico City time – CDT), 10:00 pm (CEST time). The topic of the webinar is International co-operation in child abduction and the rights of the child and will be presented by judge mag. Óscar Gregorio Cervera Rivero, professor Nuria González Martín and Luz Elena López Rodea (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/88059270915?pwd=QnFGVnBWQ2xiSGFhSjJja2lUOThSUT09

Meeting ID: 880 5927 0915

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

At its conference of Thursday, 19 May 2022, the Association pour le droit des étranger (ADDE) and its partners (Agentschap Integratie en Inburgering and University of Liege) will address the reform of the civil status in Belgian law and its international issues. The Conference will be held in Brussels in French.

Speakers will address, among others, the reform of the civil status and the civil registry;  actors of the civil registry; rectification, modification and cancellation of civil status documents; receipt of a foreign civil status document; cases where civil status is unclear or uncertain.

See the program and practical information and the registration form.

The Swiss Institute of Comparative Law is organising two video conferences on Family status, Identities and Private International Law. A Critical Assessment in the Light of Fundamental Rights on 5 and 12 May 2022.

See the programme.

For further information and registration: news.isdc@unil.ch.

On 23 February 2022, the proposal for a directive of the European Parliament and of the Council on Corporate Sustainability Due Diligence was released.

In recent years, many experts have expressed their views on the Union’s ambition to regulate corporate due diligence comprehensively and in a binding manner at the EU level. The private international law (PIL) aspects have received particular attention (e.g. here and more globally here), including on our blog (e.g. here, here and here) and others (here and here).

Indeed, a first central issue is the spatial applicability of the (forthcoming) EU instrument so that it effectively covers transnational (harmful) conduct of multinational companies, incorporated in the Union or active in the EU market (see Article 2, §1 and §2). Another major issue concerns remedies for the damage caused by companies through their supply chain, to victims and to the environment. The Directive proposal provides for rules on liability for violation of the due diligence requirements laid down by the text.

In this context, what are the main solutions of the Directive proposal on the PIL aspects? Here are some brief elements of the response that experts on the matter will analyse in more detail during the negotiations of the text (see already Geert Van Calster thoughts)

One of the main objectives of the Directive proposal is to “improve access to remedies for those affected by adverse human rights and environmental impacts of corporate behaviour” (p. 3). Remedies and more globally enforcement rules are indeed a key-factor for normative effectiveness. Private parties should be empowered to report concerning behaviours of multinational companies or misconducts (see Articles 9 and 19 of the Directive proposal). As a crucial step, victims should be able to sue the company liable for any damage caused within the Union’s territory or, most frequently, outside the Union through its value chain. The Directive proposal provides for a common civil liability regime (although incomplete). This is a great improvement, in particular for foreign victims who could seek remedies within the EU (Article 22).

Against this background, the private enforcement regime remains dependent on the jurisdiction of a “European forum” (i.e. among national courts of EU Member States) and, then, on the application of EU law.

The Directive proposal provides for a private enforcement scheme but without mentioning any specific rules on jurisdiction. Hence, Brussels I bis Regulation will remain the applicable legal framework within the EU judicial area.

The jurisdictional rules of the Regulation are, in principle, applicable once the defendant is domiciled in the Union, regardless of whether there is any other connection with the EU legal order (Article 4). When the defendant is a legal person, it lays down a flexible concept of domicile; it may be the statutory seat of the company, its central administration or its principal place of business (Article 63). In the present case, it means that the mother or ordering company located in the Union may be sued by any victims before a “European forum” for compensation of losses suffered in a third country. In that respect, the solution follows the rationale of the home country control.

However, the situation would be less effective if the victims also decide to sue, as co-defendant, other companies of the value chain of the European undertaking (e.g. subsidiaries or business partners), when the former are not established in the Union. In such a case, the Brussels I bis Regulation is not applicable pursuant to its Article 8,(1). It will be for the national laws of Member States to determine the jurisdiction of their courts. This is regrettable; the discrepancies between national rules may weaken the EU provisions on remedies. Some courts will be competent, others not, in equivalent disputes.

Nonetheless, the lack of legal approximation here is not inconsistent with the European enforcement regime, since the latter is limited for now – under Article 22 of the Directive proposal – to civil liability claims against the company in charge of the due diligence requirements pursuant to Article 7 and 8 of the text. Hence, national law remains applicable to the civil liability of “subsidiaries or of any direct and indirect business partners in the value chain” (Article 22, §3 of the directive proposal). The lack of a uniform substantive liability regime in the forthcoming EU instrument, directly applicable to these potential co-defendants, mitigates or, at least, may explain, the absence of a ground jurisdiction based on EU law in such circumstances.

A much more problematic situation concerns foreign companies – i.e. domiciled outside the Union – that are economically active in the internal market and, in that respect, covered by an EU due diligence obligation. The jurisdictional rules of the Brussels I bis Regulation are in principle not applicable, even if the losses were suffered on the Union’s territory. Private enforcement will depend on the national laws of EU Member States on the jurisdiction issue. European remedies are therefore likely to remain totally ineffective before certain domestic courts of the Union where no specific ground for jurisdiction, such as a forum necessitatis, exists. Victims will be treated differently in the European judicial area; some of them will not be able to benefit from remedies. It also creates a severe discrepancy between European and foreign companies. The latter may avoid private enforcement as a result of this lacuna in the European legal system.

A solution may be found in the obligation of foreign companies to have a representative in the Union pursuant to Article 16 of the Directive proposal. It could be argued that the European domicile of this representative, set up for the public enforcement of the EU due diligence regime should also apply for private enforcement, based on the civil liability regime of Article 22 (see Article 16, §4 on public enforcement, mentioning the cooperation with supervisory authorities). In that regard, the preliminary explanation of the Directive proposal describes quite broadly the role of those mandated authorised representatives; they may be addressed by a competent authority of a Member State on all issues necessary inter alia for “[the] enforcement of legal acts issued in relation to this Directive” (page 25).

In a more effective way, a specific ground of jurisdiction could be introduced. It could be the forum of the Member States “in which the company generated most of its net turnover in the Union in the financial year preceding the last financial year” (Article 16, §3). This is the criterion laid down by the Directive proposal for the designation of the authorised representative in the Union. Therefore, it could be easily transposed to international competence, linking public and private enforcement schemes, as already suggested above.

The extraterritoriality of the forthcoming EU substantive rules on due diligence is not enough (legally speaking) to guarantee their application before “European fora” when damage was suffered in third countries. In that respect, the Directive proposal opts for the mandatory nature of the civil liability regime laid down in Article 22: it is “of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State” (Article 22, 5).

From a PIL perspective, this formulation may be seen as ambiguous. First, the mandatory nature under EU law of all the text on corporate due diligence should be made explicit (even if it may be seen as obvious). Second, regarding the civil liability regime it is about its overriding mandatory dimension, whatever law is applicable, since this technique applies ex ante, before any conflict-of-laws reasoning. At the same time, it will still be necessary for the national courts (in EU Member States) to determine the law applicable to the case. Indeed, the Directive proposal does not lay down a complete and fully uniform regime of liability. More protective regimes under national law could prevail (recital 59) and some questions are referred to national law (for instance, the burden of proof of the absence of misconduct of the company, see recital 58).

Against this background, the Rome II Regulation will remain applicable for cross-border disputes concerning non-contractual obligations. The Regulation lays down a provision on overriding mandatory provisions (Article 16). It could therefore provide for the unilateral application of the national law of the competent court (its lex fori), which contains the EU due diligence duty and its attached civil liability regime (as already proposed by Giesela Rühl). However, it remains to be expressly clarified in the proposal whether the European provisions concerned – including (where appropriate) their implementation in the national laws of the Member States – have such an international mandatory nature.

In any case, PIL issues are crucial and condition the effectiveness (and therefore the success) of EU law (including EU values) beyond the Union’s borders in this area.

Ldricus – Charcoal merupakan salah satu bahan utama yang sering digunakan pada masker wajah. Manfaat masker charcoal sangat cocok sebagai masker untuk kulit kusam akibat minyak dan kotoran berlebih, karena mampu membersihkan secara mendalam, membuat wajah bersih dan cerah seketika.

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The post Manfaat Masker Charcoal Untuk Kulit Wajah yang Sehat appeared first on Aldri Blog.

On 5 and 12 May 2022 the Swiss Institute of Comparative Law will host an on-line conference titled Family Status, Identities and Private International Law – A Critical Assessment in the Light of Fundamental Rights.

The event is organised in cooperation with the European Law Institute and the University of Pisa.

The speakers include: Elena Bargelli (University of Pisa), Jens Scherpe (University of Cambridge), Yuko Nishitani (Kyoto University Graduate School of Law), Cristina Gonzales Beilfuss (University of Barcelona), Ilaria Pretelli (Swiss Institute of Comparative Law), Andrea Büchler (University of Zurich), Joaquin Bayo Delgado (Former Senior Judge at the Appellate Court of Barcelona), Susanne Gössl (University of Kiel), Lukas Heckendorn Urscheler (Swiss Institute of Comparative Law), Máire Ní Shúilleabháin (University College Dublin), Maria Caterina Baruffi (University of Bergamo) Yin Liu (Huaqiao University), Alfonso Luis Calvo Caravaca (Carlos III University of Madrid), Francisco Javier Jiménez Muñoz (Universidad Nacional de Educación a Distancia) Guillaume Kessler (Université Savoie Mont Blanc), Antonio Legerén (University of A Coruña).

The full programme may be found here, together with further details.

In Amir Soleymani v Nifty Gateway LLC [2022] EWHC 773 (Comm) Abrose J largely rejected jurisdiction for the English courts in a claim following auction brought by a UK-based digital artwork collector. Another part of the claim was stayed pending arbitration in New York.

Faced with a clause in Nifty’s general terms and conditions that provide for binding arbitration in New York and for New York law to be the governing law of the contract, claimant seeks a declaration that the arbitration agreement was unenforceable due to it being unfair under the UK Consumer Rights Act 2015. Alternatively, he argued the governing law clause is invalid on the same statutory ground, and that a contract arising from the auction is void for illegality pursuant to the UK Gambling Act 2005.

Of note is that the US based arbitrator, in the proceedings initiated by Nifty, is considering himself (with procedural and discovery orders having been issued) broadly similar issues under consumer protection provisions of the ADR provider.

At [34] the qualification of NFTs as ‘art’ or merely ‘technology’ [‘the nature of NFTs as assets, and whether they are artwork, with the Claimant’s position being that he was trading in digital art whereas the Defendant maintained that an NFT is merely a unique string of code stored on a blockchain ledger that makes a digital artwork accessible, and marks authenticity’] is announced as potentially relevant for substance but not for current application.

The discussion largely takes place under retained EU law (s15b of the Civil Jurisdiction and Judgments Act 1982 (as amended)). The judge holds [55] that the claim falls within the arbitration exception of (retained) Brussels Ia seeing as, as she qualifies it

The principal focus and subject matter of Mr Soleymani’s claim is whether he is legally obliged to arbitrate.

Recital 12 BIa is called upon in support. Claimant ([49]-[50] in particular are a good summary of the position) essentially argues such a view is incompatible with the effet utile of the consumer title. I believe that point has merit and one imagines it will be on this point that appeal will be sought (Bitar v Banque Libano-Francaise was offered in some support).

Whether the contract is a ‘consumer’ contract is still discussed [62] ff viz the claim for declaratory relief regarding the unfairness of the arbitration clause under the Gambling Act. The judge holds [79] that on the evidence put forward, Claimant has the better of the argument as to whether the Defendant was directing commercial activities to England (and the UK more generally). However she decides to grant the defendant a stay (which would not have been possible pre-Brexit) in favour of the unfairness issues being discussed in the New York arbitration. (These issues may later return to a UK court in the shape of an ordre public opposition to enforcement of the award in the UK).

I will of course notify if and when permission to appeal will have been granted.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.2, and 2.2.9.2.

No doubt permission to appeal will be sought in this case involving unfair commercial practices act, consumer protection, #arbitration exception of Brussels Ia https://t.co/aGB7eReFQU

— Geert Van Calster (@GAVClaw) April 6, 2022

Zohra Mchirgui (University of Tunis) has published a monograph on Exclusive Choice of Court Agreements under the 2005 Hague Convention (L’accord exclusif d’élection de for à travers la Convention de La Haye de 2005). The book is a revised version of the doctoral dissertation that she defended at the University of Luxembourg a few years ago (disclosure: under my supervision).

The project of the book is to assess the efficacy of choice of court agreements under the Hague Convention. It focuses on the jurisdictional rules of the Convention, that is the rules governing the validity and the effects of choice of court agreements, but does not deal with the enforcement of judgments.

Among the many issues of interpretation that are covered in the book, Ms Mchirgui discusses the meaning of “manifest injustice” under Art 6(c) of the Convention and argues that it should be limited to violations of the right of access to court. She also discusses the weird reference to public policy in the same provision (which is typically used to confront the application/recognition of foreign norms with the values of the forum) and argues that it should be lead to an assessment of the probability of the application by the chosen court of norms protecting the same values as the overriding mandatory provisions of the non chosen court.

For more details on the book and free access to the first pages, see here.

As previously announced, the Journal of Private International Law-Singapore Management University Virtual Conference on Conflicts of Jurisdiction will be held online on 23 to 24 June 2022 (6.00 pm to 10.20 pm Singapore time, 11.00 am to 3.20 pm British Summer Time on each day). The event is supported by the Hague Conference on Private International Law (HCCH). The conference is intended to support the ongoing work of the HCCH on Jurisdiction. The speakers are leading private international law scholars and experts, many of whom are directly involved in the ongoing negotiations at the HCCH. Attendance at the conference is complimentary for academics, government and international organisation officials, Journal of Private International Law Advisory Board members and students. Registration is required. More information on the conference and the link to register can be found here.

On 30 June and 1 July 2022 the University of Amsterdam will host the 4th International Class Action Conference.

The conference is organized by a team from the University of Haifa, the University of Tilburg and the University of Amsterdam, in collaboration with other institutions. The theme of this year’s conference is From Class Actions to Collective Redress: Access to Justice in the 21st century.

A broad range of issues will be addressed in the conference, including issues that specifically relate to cross-border situations.

The Conference will bring together a diverse range of international expertise in collective redress, and is intended to act as a forum for the sharing of experiences and knowledge.

See here for the full programme and practical details.

The European Judicial Network on civil and commercial matters has just published information and resources relating to civil judicial cooperation in the context of children from Ukraine. The “Children from Ukraine — civil judicial cooperation” webpage is available on the e-Justice Portal in all EU languages and provides:

• a summary of the legal rules that apply to judicial cooperation in cross-border cases involving Ukrainian children (i.e. questions of jurisdiction, applicable law, recognition of decisions, and cooperation between authorities);
• relevant information on Ukrainian family law;
• useful links and resources.

The information is intended for judges, lawyers, notaries, and central authorities, as well as child protection officials and others dealing with the registration of children arriving in EU Member States.

For more information, see the following link: https://e-justice.europa.eu/38593/EN/children_from_ukraine__civil_judicial_cooperation