Flux européens

Commission / Hongrie (Droit de fournir des services de médias dans une radiofréquence)
Rapprochement des législations
Selon l’avocat général Rantos, la Hongrie a violé le droit de l’Union en refusant le renouvellement du contrat de Klubrádió portant sur l’utilisation de la fréquence 92,9 MHz et en l’excluant de l’appel d’offres relatif à ladite fréquence

Alchaster II
Mandats d’arrêt émis par le Royaume-Uni : un durcissement des conditions de libération conditionnelle ne s’oppose pas, en principe, à la remise de la personne recherchée

[If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

In Commercial Bank of Dubai v Al Sari [2025] EWHC 400 (Comm) Foxton J discusses at length the identification of the lex causae in a claim that certain of the defendants maliciously prosecuted two sets of DIFC Proceedings.

The losses claimed are legal fees in respect of various proceedings as well as losses alleged to have been suffered from a delay in recovering certain assets.

Claimants contend that the effect of A4(1) Rome II is that the claims for malicious prosecution of relevant DIFC Proceedings are governed by UAE law, or alternatively involve a series of claims, governed, inter alia, by UAE and English law, and that the claims for malicious prosecution of another set of DIFC Proceedings are likewise governed by English law and/or UAE law. In the alternative, by way of a new argument, they contend that UAE law applies as between some parties by virtue of A4(2) Rome II.

It is common ground that the law of the DIFC does not recognise a tort of malicious prosecution of civil claims.

[14] the judge refers to the need consistently to apply concepts in Rome I/II with the same concepts in  Lugano Convention, Brussels Ia although he also, and much justifiably (as I have repeatedly stated) urges caution in doing so for “the cases disclose consideration in the former context of issues which do not seem to be directly germane to the latter.”

[15] Claimants refers to many authorities

“in which the claimant contended it had made what proved to be a worthless, or at least insufficiently valuable, investment in reliance on negligent advice or inaccurate statements. The obvious tension in these cases is whether the place of damage is where the “defective” transaction is irreversibly entered into, the place from which funds are advanced to make it, or where the flaws in the investment subsequently manifest themselves or crystallise (for example through on-sale of the investment at a reduced value).”

The authorities referred to are Kwok Ho Wan v UBS AG [2022] EWHC 245 (Comm), which in turn cited CJEU Kronhofer, CJEU Kolassa, CJEU Universal Music, CJEU Löber v Barclays Bank Plc, CJEU Vereniging van Effectenbezitters v BP. Cockerill J in Kwok suggested that the overall thrust of the CJEU jurisprudence favoured the place of the manifestation of damage, rather than the place of the transaction which led to the damage, as the relevant place for jurisdiction purposes – this was confirmed upon appeal [2023] EWCA Civ 222 where at [33], Sir Geoffrey Vos MR emphasised that the CJEU authorities which the Judge had said were “not entirely clear” reflected their particular facts, and should not be construed as a statute ([33]). The Court of Appeal doubted that there was “a rule that is universally applicable to financial loss cases”. 

Clearly therefore the ‘fact pattern’ [21] needs to be taken into account and specific consideration is made of “two cases which were not defective investment cases, but cases in which a legal wrong had caused the defendant to incur various heads of costs. Those might be said to be closer to the fact pattern here.”: MX1 Limited v Farahzad, and W Nagel v Pluczenik.

[31] ff the judge concludes, with reference (like Kockerill J in Kwok) to prof Dickinson, both his Rome II contribution in Dicey (with the use of ‘reversability’), and [35] his chapter in the Gedächtnisschrift for Professor Jonathan Fitchen : 

“The central submission of this chapter is that the concept of ‘damage’ within EU private international law is an active one which fixes upon the way in which the relevant event brings about its (claimed) effects upon the victim by adversely affecting a legally protected interest of that person to which the claim relates. This opens up the possibility of classifying different kinds of legally protected interests with a view to developing autonomous approaches for locating interference with them”.

[36] the judge then also links this to a ‘rights based’ approach to applicable law for torts, and for torts generally:

The assistance to be derived from the nature of the legally protected right as a relevant factor when identifying what constitutes direct and immediate damage and where it is suffered, coheres with wider right-based tort scholarship (e.g. Robert Stevens, Torts and Rights (2007)).

[37] “Approached from this perspective, the tort of malicious prosecution addresses the very specific interest of not being harassed by bad faith litigation before the sovereign court of a particular state.”

The judge continues (and readers might want to read those passages in full) with further underpinning of the argument that the legal costs etc suffered, all are indirect, consequential damage, and concludes [40] “Applying Article 4(1) to this singular tort, I am satisfied that the place of the invasion of the protected legal interest (and, in this case, of the primary or direct loss) is the DIFC.”

[41] ff Discussion of the fall-back A4(2) option leads to an interesting discussion of on-shore UAE law as a territorial unit per A25 Rome II and a conclusion [48] that A4(2) is engaged so far as the parties habitually resident in Sharjah and Dubai are concerned. [51] ff recourse to A4(3) is discussed ia with recourse to Owen v Galgay and I think (but have to say the judgment by this stage is not entirely clear) that the judge holds that A4(3) operates to displace the A4(2)  presumption viz those parties where it was engaged (reference to Marshall v MIB), [60] ultimately making DIFC law the applicable law for all claims.

I wonder whether the ‘rights based’ approach to purely economic loss will get much traction. Prof Dickinson’s ‘reversability’ approach seems by now to be firmly anchored in English law.

Geert.

EU Private International Law, 4th ed. 2024, Chapters 2 and 4.

Extensive discussion under the assimilated Rome II Regulation identifying the applicable law (held: DIFC) for tort of malicious prosecutionPurely economic loss claxonCommercial Bank of Dubai v Al Sari [2025] EWHC 400 (Comm) http://www.bailii.org/ew/cases/EWH…

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-10T09:07:52.373Z

 

https://www.linkedin.com/posts/geert-van-calster-60abab9_lengthy-discussion-of-jurisdictional-issues-activity-7281969805660680193-xIOO?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

https://x.com/GAVClaw/status/1899023760415506565

Commission / Italie (Traitement des eaux urbaines résiduaires)
Environnement et consommateurs
Traitement des eaux urbaines résiduaires : la Cour impose des sanctions financières à l’Italie pour n’avoir pas respecté ses obligations en matière de collecte et de traitement pour quatre agglomérations

UBS Group et UBS / Commission (Obligations d’État européennes)
Concurrence

Entente dans le secteur des obligations d'État européennes : le Tribunal confirme pour l’essentiel la décision de la Commission 

UBS Group et UBS / Commission (Obligations d’État européennes)
Concurrence
Entente dans le secteur d'obligations d'État européennes : le Tribunal confirme pour l’essentiel la décision de la Commission

Engagement solennel de deux membres de la Commission européenne

[If you do use the blog for research or database purposes, citation would be appreciated, to the blog as a whole and /or to specific blog posts. Many have suggested I should turn the blog into a paid for, subscription service however I have resisted doing so. Proper reference to how the blog is useful to its readers, will help keeping this so.]

I earlier reviewed the jurisdictional ruling in the claim brought by ia members of the Brasilian Quilombola community against Norsk Hydro related corporations. The pleadings this month on the merits reminded me to follow-up on the case and introduced me to a judgment of last May, which I had missed. Hence apologies for late reporting.

The judgment is of interest for the application ia of Rome II‘s rules on statutes of limitation and the burden of proof viz aspects of that statute of limitation. The court is most succinct on it [5.29]: (my translation)

Statutes of limitation are governed by the law applicable to the claim, in this case Brazilian law. The court will therefore assess the defense of prescription under Brazilian (substantive) law, also with respect to the burden of proof. This concerns a material aspect of the law of evidence that the court considers is subject to the lex causae, Brazilian law. (emphasis added)

The para caught my attention for corporate defendants have been known to make a spiel about the implication of the evidence and procedure carve-out in Rome II and its interplay with both Article 15’s ‘scope of the law applicable’ and Article 22’s specific provision for the burden of proof. I am not privy to how extensively the issue was argued in the case at issue.

Here, the court held [5.31] that Norsk Hydro had the burden of proof to show knowledge of the damage, its cause and those responsible for it with a view to the statute of limitation beginning to run, leading to a discussion on whether the pollution was a continuous or single event. As a result of the discussion, [5.36] only a few events were held to be past the statute of limitation.

The judgment does not address substantive reversal of the burden of proof issues under Brasilian environmental law: that I imagine might have been at issue in this month’s heairings.

Geert.

The Dutch SC has today held that it is minded to refer to the CJEU on a variety of issues relating to Rome II’s applicable law rule for (follow-on damages claims) related to competition law infringement. The case is related to the air cargo cartel referral which I flag here and is a follow-up to the Opinion of the AG at the SC, which I discuss here.

The decision to refer is not definitive yet seeing as the judgment was held on a (intra-Netherlands) preliminary reference. Parties are now given the opportunity to comment on the intention to refer.

The SC first of all refers to the questions it has today already sent up to the CJEU, namely whether continuous infringement leads to one albeit diverse claim as opposed to various albeit related claims. I briefly discuss these here. [4.2.8] clearly a qualification as one claim much facilitates the determination of applicable law and therefore arguably also the enforcement of EU competition law (reference to C-605/21 Heureka v Google).

It then addresses Rome II’s scope ratione temporis and the consequential conflit mobile which I discuss in my earlier post. Unlike its AG (who opined that there is no material difference in outcome hence no need to request an academic opinion, as it were, from Luxembourg), the SC does feel that this question needs to be referred to the CJEU, seeing as it held on yet another question referred to it that the Dutch residual rules do not lead to the outcome suggested by the AG.

Finally, the court intends to ask the CJEU to clarify Article 6(3) a (‘markets affected’ and b (conditions for claimant’s choice of law) Rome II, part of the complex layer of rules on the lex causae for follow-on (and stand alone) claims: in particular, the meaning of ‘markets affected’ and the conditions for choice of law which claimants may exercise.

As I discuss inter alia in this paper, Article 6 frankly is a mess, flying directly in the face of predictability so coveted by EU private international law.

[4.6.6] the SC refers to a perceived need for consistency between Article 6 Rome II and Article 7(2) Brussels Ia (e.g. in Volvo), a need which in my opinion is neither as established nor as obvious as the SC sees it.

This will be a very important case for the application of Rome II Article 6.

Geert.

EU Private International Law, 4th ed. 2024, 4.53 ff.

Palink.Dutch SC minded to refer to CJEU on the scope ratione temporis of Rome II (conflit mobile arising from continuous infringement of competition law; follow-on damages)ECLI:NL:HR:2025:414lnkd.in/eXyB3JTABackground here lnkd.in/emyQYWpG

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-21T12:26:03.537Z

https://www.linkedin.com/posts/geert-van-calster-60abab9_palink-dutch-sc-minded-to-refer-to-cjeu-activity-7308820270905999362-FZ7w?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

https://x.com/GAVClaw/status/1903054432079647053

 

 

 

I discussed Vlas AG (at the Dutch Supreme Court)’s opinion in the Air Cargo case here. The Dutch Supreme Court today has decided to refer to the CJEU. The specific questions referred, concern the (effet utile of) the EU’s rules on effective enforcement of EU competition law and the qualification of continuous infringement of competition law as leading to one claim per victim, with multiple heads of damages, or rather one claim per infringement, each single handedly qualifying as a separate entitlement for damages.

The difference is relevant to conflict of laws given the ‘conflit mobile’. If the claims are separate, Rome II with its complex rule for competition law damages in Article 6, ratione temporis only applies to some of the claims. I discuss in my previous post how that leads to a complicated patchwork of applicable law.

The actual question referred enquires with the CJEU on whether continuous infringement leads to one albeit diverse claim as opposed to various albeit related claims, but adds ‘with a view to determining applicable law’. It will be interesting to see therefore how intensively the CJEU will engage with the Rome II issues on the specific case, which however is likely to be joined with the other case in which the SC is minded to refer and which I discuss here.

Geert.

EU Private International Law, 4th ed. 2024, 4.53 ff.

Lufthansa ea v SCC eaDutch Supreme Court refers to CJEU re qualification of continuous infringement of competition law, follow-on damages claimsWhether one albeit diverse claim as opposed to various albeit related claimsRelevant viz applicable law, Rome II.deeplink.rechtspraak.nl/uitspraak?id…

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-21T11:47:13.510Z

https://www.linkedin.com/posts/geert-van-calster-60abab9_deutsche-lufthansa-et-al-v-stichting-cartel-activity-7308816006683000832-aU9Q?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA

https://x.com/GAVClaw/status/1903050936391455031

Statistiques judiciaires 2024 : augmentation importante tant des affaires introduites devant la Cour de justice que des affaires clôturées par l’institution dans son ensemble

In IDBI Bank Ltd v Axcel Sunshine Ltd & Anor [2025] EWHC 442 (Comm) claimant is an Indian bank which, at the relevant times, operated outside India via a branch in the Dubai International Financial Centre – DIFC. Defendants are a company incorporated and registered in the British Virgin Islands, and a company incorporated and registered in India.

Second defendant argues ia that a relevant letter of comfort must not be enforced seeing as its performance would contravene Indian law.

Persey J discussed among others therefore whether an English court should disregard a letter of comfort due to A3(3) or A9(3) of the assimilated Rome I Regulation. These are the Articles which in the case of Article 3(3)  give priority to domestic law in a ‘purely domestic’ contract subject to a third country law:

Where all other elements relevant to the situation at the time of the choice are located in a country other than the country whose law has been chosen, the choice of the parties shall not prejudice the application of provisions of the law of that other country which cannot be derogated from by agreement.

and in the case of Article 9(3):

Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

In the case of Article 3(3), domestic law trumping lex voluntaris is mandatory, while in the case of Article 9(3), the override is optional, at the discretion of the court.

As for Article 3(3), the judge refers in particular to Banco Santander Totta. It was there held that for Art 3(3) to apply, all elements of a claim needed to be within the other country. [105]

In the present case there are elements with connections to the BVI and Dubai, such that Art 3(3) does not apply. Thus, for example, the CFA was entered into by the Bank’s Dubai branch office, the LoC was addressed to the Bank’s Dubai branch office, Axcel was incorporated in the British Virgin Islands, Axcel was required to repay its loan to an account in Dubai, and the facilities under the CFA were used by Siva to repay the debt owed by WinWind (a Finnish company), and thereby to discharge the WinWind Guarantee and Facility (both contracts being governed by English law). The same discharge was used by Siva to obtain the discontinuance of the WinWind Proceedings (before the English court).

([106] the judge doubts very much whether the contended effect of Indian regulation is what defendant purports it to be).

As for A9(3), [108]

I am satisfied that Article 9(3) also does not apply in this case. It is only applicable where the obligations ‘have to be‘ performed in a country where performance would be unlawful. As I have already observed above, performance under clause 3 ought to have taken place in Dubai, not India. Had performance been required to take place in India, the FEMA Regulations are not regarded by India as crucial to safeguarding its public interests. [the judge refers here to expert evidence]

Moreover, obiter [109] even had Article 9(3) applied, the judge would have used his discretion not to grant priority to the Indian rules:

In circumstances where the Indian Courts would enforce the guarantee and/or a judgment of this Court, I am satisfied that there is no basis for giving Siva relief under Art 9(3).

This judgment is a good illustration of what Articles 3(3) and 9 might lead to – although not on the facts of the case.

Geert.

Handbook of EU Private International LAw, 4th ed. 2024, 3.73 ff.

https://bsky.app/profile/gavclaw.bsky.social/post/3ljz7jp7o7c2j https://www.linkedin.com/posts/geert-van-calster-60abab9_judgment-discussing-ia-whether-english-court-activity-7304791236215795712-tb2M?utm_source=share&utm_medium=member_desktop&rcm=ACoAAAHHS6oB7DOA8jUedLLahLDL6cEwepyHYwA https://x.com/GAVClaw/status/1899025501504651508

Arce
Environnement et consommateurs
Protection des consommateurs : une clause contractuelle obligeant un jeune sportif à reverser une partie de ses revenus s’il devient un athlète professionnel peut être abusive

In my contribution to the EAPIL online seminar discussing Ekatarina Aristova’s excellent Tort Litigation against Transnational Corporations: The Challenge of Jurisdiction in English Courts (OUP 2024), I flagged the discussion by Dr Aristova in Chapter 6 of the book, of one of the objections to jurisdiction exercised by ‘European’ or by extension courts in the Global North, in cases involving human rights and environmental abuse by business located in the Global South. That is the argument that such exercise of jurisdiction is a form of neocolonialism.

This same argument was used by counsel for defendants in Da Silva & Ors v Brazil Iron Ltd & Anor [2025] EWHC 606 (KB). The case involves mining pollution in Bahia state by Brazil Iron, domiciled at England. Background to the case is here. [71] Bourne J summarises counsel’s argument:

For this Court to accept the Claimants’ attempt to litigate the case in this country would, [counsel] submits, be contrary to requirements of judicial comity and would be an exercise of judicial colonialism. In that regard he referred to Altimo Holdings v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 PC, where Lord Collins said at [97]:

“Comity requires that the court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court, and that is why cogent evidence is required.”

Justice Bourne did not directly address the ‘judicial colonialism’ vocabulary yet in accepting jurisdiction for the E&W courts and rejecting the forum non conveniens challenge, he clearly disagrees with it.

Defendants’ attempt at rebuffing jurisdiction of course centres upon the Court of Appeal’s recent application of the test in cases like these in Limbu v Dyson and the approach, as was to be expected, attempts to distinguish Dyson and /or employ the one or two levers to support a forum non challenge, indicated by that judgment.

The judge summarises [100]

“an examination of “connecting factors” leads to the conclusion that Brazil is the forum with which this action has the more real and substantial connection, although there are factors leaning in both directions.”

Emphasis was put by defendants ia on the risk  of irreconcilability of the outcome of the English proceedings with an ongoing Brasilian ‘Civil Public Action’ – CPA, a well as an ordinary civil claim introduced in Brasil.

The judge acknowledges that risk [101]. He refers in this context to Vedanta which flagged it as an important issue.  (See also the extensive discussions on irreconcilability in Municipio viz the then applicable European rules of Brussels Ia (Articles 33-34)).

However he finds it outweighs the fact that the Defendants in England and are served there “as of right” (the actor sequitur forum rei principle). Also, control of  the Brazilian company Brazil Iron Mineração Ltda (“BIML”), which operates the Fazenda Mocó iron ore mine in Mocó that is core to the claim, is held to be an issue which will be important in the proceedings and which heavily leans towards England. [101] Although “the Defendants’ directors may not live in the UK, it would be a logical assumption that a significant amount of evidence about the control issue may emanate from England and be in English.”

Overall, arguments which counted for Brasil are

[103] “the most important issues in the case are likely to concern (1) the operation and regulation of the Mine and (2) its impact on the Claimants. That does not mean that control will not be an important issue, but ultimately the claims concern environmental damage and the relevant environment is in Brazil. Those matters obviously occurred in Brazil and will be the subject of witness evidence and documentary evidence in that country.”

[104] “it is agreed that Brazilian law applies to the dispute. The relevant regulatory framework also is that of Brazil, or Bahia State. It therefore appears highly likely that there will be expert witnesses from Brazil, whether or not there are also experts from any other country. I do not overlook the fact that the English courts are well accustomed to applying foreign law. Nevertheless, there may be significant differences between the applicable systems of law – civil law and common law – and that favours the jurisdiction of the Brazilian courts. There may also be issues about Quilombola status and although I do not place much emphasis on that fact, it would be a theme with which the English courts would be wholly unfamiliar.” The latter refers to the issue of protection of indigenous communities under Brasilian law.

[105] “it would plainly be easier and cheaper for ..evidence to be received in Brazil, in Portuguese.”

However the one strong argument standing out in favour of jurisdiction of the English courts is [106]-[107]

that there is a real risk that the Claimants will not be able to obtain substantial justice in Brazil. That means that Brazil, despite its closer connection with the case, is not the appropriate forum in which it can most suitably be tried in the interests of the parties and for the ends of justice.

The reason, in brief summary, is that the evidence reveals a real risk that the Claimants will not be able to fund, or obtain funding for, legal representation of the kind necessary to litigate these claims to a proper conclusion.

This is not [108] down to any criticism of the Brasilian legal system, nor lack of integrity of that system or delay, neither of which the judge suggests exist. Rather, [110] the relatively small size of the claims, [111] the small number of claimants (implicit reference here by the judge to Municipio), [112] the limited means of the claimants, [113] complexity of the case in terms of both liability and control, [114] despite the judge not accusing the Brasilian system of delay, it has been shown that it does take a long time for Brasilian courts to hold on issues of such complexity.

[115] in England the case will go forward under a conditional fee arrangement – CFA, while [116] ff the expert evidence on balance of the possibility to find appropriate funding in Brasil including via legal aid, on the whole shows that that is unlikely.

[134] Comity is not considered to be an obstacle:

“As I have said, it is not premised on any criticism of the legal system in Brazil. Instead, it is founded on the fact that the economics of litigating this claim in the two jurisdictions are significantly different.”

[146] Lack of representation in a particular forum clearly is the Leitmotiv for the judge’s decision, and it is one based on a detailed consideration of the various options presented to him.

A judgment of note!

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

 

Catarina Oliveira Da Silva ea v Brazil Iron ea [2025] EWHC 606 (KB)High Court applying Limbu v Dyson gavclaw.com/2024/12/13/l… rejects forum non challenge in mining pollution case Reject defendants' suggestion that jurisdiction for E&W courts would amount to 'judicial colonialism'

— Geert Van Calster (@gavclaw.bsky.social) 2025-03-16T10:41:59.200Z

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https://x.com/GAVClaw/status/1901222249807462509

 

Audience solennelle d'éloges funèbres à la mémoire de M. Uno Lõhmus et de Mme Ena Cremona

Deldits
Principes du droit communautaire
RGPD et transidentité : la rectification de données relatives à l’identité de genre ne peut être subordonnée à la preuve d’un traitement chirurgical

Shuvalov / Conseil
Relations extérieures
Guerre en Ukraine : la Cour de justice confirme les mesures restrictives adoptées contre M. Igor Shuvalov, ancien vice-Premier ministre du gouvernement russe

Semedo / Parlement
Statut des fonctionnaires
Plainte pour harcèlement visant une ancienne membre du Parlement européen : le constat de harcèlement et la sanction prononcée par la présidente du Parlement sont annulés, au motif que les droits de la défense n’ont pas été respectés

Commission / Pologne (Contrôle ultra vires de la jurisprudence de la Cour de justice par une cour constitutionnelle)
État de droit : l’avocat général Spielmann considère que le recours de la Commission européenne concernant la Cour constitutionnelle polonaise est fondé

I could not quite think of a catchier title conveying both the plus (claim will continue to be heard in England) and the minus (the discussion having already caused considerable delay), without resorting too obviously to football metaphors.

The claim is brought in England by a number of Liverpool fans physically and psychologically damaged by the poor security at the May 2022 Champions League Final at Paris’ Stade de France. Claimants allege that UEFA had organisational responsibilities for the match and that they owed, and were in breach of, contractual and/or tortious duties concerning the safety of the
claimants.

The case illustrates a problem highlighted by Oliver Holland (partner with Leigh Day, the law firm representing claimants however not, as far as I am aware, involved in the claim), last week at a hearing at the UK Parliament’s human rights committee. (Mr Holland did not give current claim as an example and seeing as the hearing focused on forced labour in the supply chain, he likely did not have the claim in mind at his testimony).

Defendants in personal injury claims (whether or not linked to business and human rights) have quite the series of avenues available to them to try and derail the claims in the English courts. These include (Mr Holland discusses some of these)

objections to jurisdiction, including the infamous doctrine of forum non conveniens;

the prospect of (handy for its freezing effect) very considerable adverse costs orders whether or not coupled with security for costs; and (with impact on the costs issue)

a tendency to entertain issues of both jurisdiction and applicable law at considerable length.

Other jurisdictions of course suffer from similar challenges and I for one am not going to complain about a good conflict of laws yarn. Moreover, Lord Briggs denouncing mini-trials at the jurisdictional stage in Vedanta (Turner J in current case refers to this [15]), and the Court of Appeal’s instructions on forum non in Dyson, ought to bring more discipline to at least some of this maneuvering.

Sean Abram and others v UEFA and UEFA Events SA [2025] EWHC 483 (KB) engages with another means to try and bounce the case away from England and Wales: namely the doctrine of foreign act of state.  For an excellent primer and discussion of the future of the principle see Mary Newbury here.

[5] The principal basis for UEFA’s jurisdiction challenge is that the claims would require the English Court to adjudicate on the lawfulness or validity of acts of a foreign state (France) performed within its own territory, which, UEFA argue, would be impermissible under said “Foreign Act of State Doctrine”.

I have posted quite a few times on the doctrine: see among others

Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886 which [13] defined the doctrine as courts “will not adjudicate or sit in judgment on the lawfulness or validity under its own law of an executive act of a foreign state, performed within the territory of that state” and which entertained a number of exceptions to the doctrine, as well as in my opinion leaving a potential incompatibility of (some of the implications of) the doctrine with Article 6 ECHR underdiscussed;

SKAT [Skatteforvaltningen v Solo Capital Partners Llp [2022] EWCA Civ 234] in which both the Court of Appeal and later the Supreme Court focused on the substance rather than the context of the claim (in my post I flag the echos of the Brussels /Lugano ‘civil and commercial’ discussions);

Reliance v India  [2018] EWHC 822 (Comm) where Popplewell J (as he then was) held on whether the doctrine applies to arbitration tribunals;

Servis-Terminal LLC v Drelle [2025] EWCA Civ 62 which flags the need to seek formal recognition of a foreign judgment before its enforcement with Newey LJ suggesting the similar roots of this requirement as the foreign act of state doctrine.

There is certainly merit in holding on jurisdictional issues separately, before extensive engagement with the merits, at least where these objections are not obviously spurious and cannot be summarily addressed. Even in those States where civil procedure rules (CPR) give defendants a procedural right to hear the jurisdictional objections first (the E&W means is Part 11 of the CPR), and despite Turner J’s appreciation that the matter must be dealt with concisely (and note [17] his rejection of defendants’ request to delay even further and squeeze this jurisdictional objection even more), I think continental rules would not have allowed the discussion in current case to take on the extensive nature that it has, with all the costs and time delay this has already caused. And there is potential for an appeal I imagine.

The foreign act of state element of the discussion at issue, if of any relevance at all, clearly in my view is entirely incidental or ‘contextual’ and not substantial, per UKSC SCAT above and therefore simply cannot lead to rejection at the jurisdictional stage. The summary [65] in my view is poignant:

claimants make no direct allegations of unlawfulness in their Particulars of Claim in respect of the conduct of the French police or any other state entity. The defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue
in the proceedings if the case were to be permitted to proceed further.

There is no suggestion that the way in which the claim has been formulated is designed as it were to circumvent the Foreign Act of State doctrine and that the real object of the proceedings as it were is to hold on the validity of actions by a French state entity. The pleaded case as is clear from Abram v UEFA [2024] EWHC 1518 and as summarised here [64] focuses genuinely on UEFA and consorts’ (in)actions.

Defendants contend, however, that the issue of the lawfulness of such conduct is nevertheless bound to arise as an important issue in the proceedings if the case were to be permitted to proceed further, ([126] ff they point to issues of French law to support this argument) and (ia [77]) argue that there cannot be a ‘threshold requirement’ below which the assessment of a foreign act of state becomes de minimis and does not engage the doctrine.

The judge, after having made a thorough and clear overview of both the principle (including [82] ff the absence of established authority on what amounts to an act of state) and its exceptions (much more entertained in case-law) as applied by the authorities,

[91] notes that the principle must not extend beyond the natural bounds required to fulfil the aims which it is intended to achieve (international comity, GAVC);

[106] accepts that “some aspects of the conduct of the French government and the other listed public bodies through its higher officials may (and I stress may) amount to acts of state”; however that “the task of determining which, if any, of these acts do engage the Doctrine cannot be confidently carried out on the present incomplete state of the pleadings and evidence”.

[108] ff Two relevant exceptions to the rule are further discussed obiter. The second exception is discussed [122] ff: where challenges to foreign acts
of state are merely ancillary to the claim or by way of collateral aspersion. I know this exception has been so determined by the authorities yet in my opinion would be better formulated not as an exception but as a substantive limitation to the rule.

As a side-note, there appears to be some confusion on the law that will apply to the merits of the case: see [18] ff

18. Until very shortly before the hearing of the application before me,
the claimants had been proceeding under the assumption that
French law applied to the claims of all the claimants. Experts in
French law were duly instructed to report on behalf of the
claimants and defendants respectively.
19. However, it transpires that the position may have been less clear
cut because only some of the claimants had purchased tickets
from the UEFA online ticket portal. Others had bought them
directly from Liverpool FC. Owing to the lateness of the
realisation of the true position, the claimants’ skeleton arguments
deployed for the purposes of the hearing before me had been
drafted on the premise that all of the claims were governed by
French law.
20. The position of the claimants, as now articulated in a letter dated
2 October 2024, is that their claims in tort are subject to French
law regardless of their provenance and so too is any contractual
claim in respect of those tickets purchased from the UEFA online
ticket portal. However, contractual claims brought by claimants
who received their tickets from Liverpool FC involve the
imposition of an English contractual duty to take reasonable skill
and care to be considered in regard to French health and safety
laws and regulations as applicable to the stadium. No purpose
would here be served by articulating their reasons for reaching
this view.

No doubt the cross-over between contractual claims (subject to assimilated Rome I) and non-contractual claims (Rome II, ditto assimilated) and, I imagine, the application of the consumer section of Rome I, will be made clearer in the continuation of the claims.

Geert.