This is one for the conflict of laws anoraks. In C-29/16 HanseYachts the Court of Justice held (on 4 May) that an application for proceedings to preserve or establish, prior to any legal proceedings, evidence of facts on which a subsequent action could be based, does not constitute a proceeding within the meaning of (now) Article 32(1) Brussels I. If it had, it would trigger the lis alibi pendens regime of that Article, impacting therefore on any future substantive proceedings.
At 33 the Court defers to the insight into the relevant provisions of French judicial procedure, offered by the French Government: Although there may indeed be a connection between the court seised on the basis of that article and the court having jurisdiction to hear the substance of the case with a view to which the measure of inquiry was ordered, the fact remains that such proceedings for the taking of evidence are independent in relation to the substantive procedure which may, if necessary, be brought subsequently. The Court’s ruling however is dependent (at 34) upon the French courts confirming this interpretation of French civil procedure: for the CJEU does not offer final interpretations on internal State law.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.1.
I reported at the time on the General Court‘s decision in Dyson. The CJEU yesterday in Case -44/16P agreed, albeit in less prosaic terms than my earlier post, that the Court’s reasoning was wanting. The case now goes back to the General Court to reconsider those pleas made by Dyson which the Court considers to have been insufficiently answered.
Of most interest to readers of this blog is the argument re proof, science and procedure (at 72 ff): According to the Commission, Dyson does not explain in what way the development of a test with a loaded receptacle would have been more proportionate. The Commission submits that it was not obliged to show that no better test method could be developed, and that it was on the contrary for Dyson to prove that a more appropriate test method existed, which in the view of the General Court it failed to do.
The Court of Justice agrees that the General Court’s entertainment of this question is wanting – the particular parameter was required under the delegating Directive, alleged absence of a reliable test is not enough to ignore it. That is not to say, that upon reconsideration the eventual General Court’s answer may not be the same.
Geert.
Thank you Dentons for flagging 2016 ONCA 836 Cook v 1293037 Alberta Ltd, on the application of the forum of necessity or forum necessitatis doctrine in the Canadian courts. A doctrine which in some way or another allows a court to be used as court of last resort, should no other court be reasonably be available to plaintiff. Those States which do have it (Belgium, for instance: In Article 11 of its Statute; readers of the blog will also remember the EC suggested its introduction in the Brussels I Recast (Article 26 of COM(2010)748), but failed) all insist the jurisdictional trigger can only be exercised in the most exceptional of circumstance.
Cook v 129…Alberta is a good illustration of this exceptional nature. The Canadian Supreme Court set out the conditions in 2012 SCC 17 Van Breda v Village Resorts Ltd. Appellants had made a tactical decision not to bring their action in Alberta, the natural forum of the case. The limitation period for bringing the action in Alberta has now expired. They should under the circumstance not be allowed to bring the action in Ontario.
Does someone somewhere have an (undoubtedly slim) catalogue of those forum necessitatis actions which did succeed?
Geert.
(Handbook of) European private international law, 2nd ed.2016, Chapter 2, Heading 2.2.4 (p.68.)
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