The CJEU yesterday held in C-581/20 Toto. I discussed the AG’s Opinion earlier. Gilles Cuniberti in his analysis engages critically with the Court’s replies to the interim measures issues, Krzysztof Pacula’s review looks at the other questions asked, too. All in all, the Court’s engagement with the issues is under par.
The CJEU first of all holds that despite the instrument of public procurement, the case does not involve acta iure imperii (and notes [42] that the current procedure has been brought entirely under ordinary civil procedure rules). This is simply an ordinary spat between contracting parties on the exercise of a straightforward construction contract. With reference to Rina and in particular Supreme Site Services, the Court [45] confirms that lex fori rules on immunity do not as such exclude the qualification of ‘civil and commercial’. As we have already experienced in the final, national judgment in Kuhn, the CJEU’s approach to see immunity, closely linked to public international law, distinct from the private international law notion of ‘civil and commercial’, quickly becomes nugatory in litigation practice. Neither does that approach answer the referring court’s question whether if the matter does fall within Brussels Ia, the ordinarily applicable Bulgarian rule that no such relief may be ordered against public authorities, must be set aside.
On the issue of provisional measures, the AG saw a plausible way forward by a fairly standard application of the lis pendens rules (A29 ff) and by assessing the definitiveness of the measure and the impact of that assessment on the recognition, or not, of the decision of the court with subject-matter jurisdiction. The CJEU however merely emphasises the lack of formal hierarchy, in Brussels Ia, between the courts with subject-matter jurisdiction and those with jurisdiction for provisional measures. It concludes [60] that the latter are not bound to dismiss jurisdiction merely because a court with subject-matter jurisdiction has been either seized or has held in interim proceedings. It could certainly have found support in the Regulation’s intention to, and provisions designed for, avoid(ing) conflicting decisions.
Geert.
EU Private International law, 3rd ed 2021, 2.512ff, 2.550 ff, 5.584 ff.
CHEP Equipment Pooling BV v ITS Ltd & Ors [2021] EWHC 2485 (Comm) concerns in the main when a claim between two parties who are in a relation of employment, ‘relates to’ that employment contract. (In the case concerned, leading to lack of jurisdiction against one of the defendants).
At issue is whether 3 former senior employees had essentially defrauded claimant by negotiating on its behalf, price-inflated audit and supply agreements with corporations which those employees (in)directly owned and /or controlled. Causes of action are breach of fiduciary duty; dishonest assistance of the breaches of fiduciary duty by the other former employees; and unlawful means conspiracy.
Whether any of these claims engage A22 jurisdiction needs to be assessed viz each claim separately: [44]: Cuneo Resources NV and others v Daskalakis and others [2019] EWHC 87 (Comm). Among others Bosworth was discussed in the subsequent analysis. After reviewing ia the employment history of defendant with the claimant, and the bond between the alleged dishonesty and the employment contract, Jacobs J concludes [107]
the claims relate to Mr de Laender’s contract of employment, and also …the connection between Mr de Laender’s contract and the conduct relied upon is material. It cannot be described as tenuous, or a small part of the picture, or simply part of the history. I also consider that the legal basis of the claims can reasonably be regarded as a breach of his contract, so that it is indispensable to consider the contract in order to resolve the matters in dispute.
Obiter the judge reviews locus delicti commissi and locus damni under A7(2). For Handlungsort, Jacobs J holds that the claimant has the better of the argument that that is located in England: particularly seeing as the main alleged conspirator was domiciled in England at the time the various strands of the action materialised. For locus damni – Erfolgort, the conclusion [133] is one of Mozaik per Shevill, particularly in view of a corporate reorganisation (incl a move to England) which occurred midway through the conspiracy.
Geert.
CHEP Equipment Pooling BV v ITS [2021] EWHC 2485 (Comm)
Jurisdiction challenge succeeds on basis of A22 Brussels Ia's employment section
Whether claim 'relates to' contract of employment
E&W obiter held to be locus delicti commissi and locus damni, A7(2)https://t.co/nccwSBrOQE
— Geert Van Calster (@GAVClaw) September 10, 2021
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