Flux européens

Decisions on the definition of waste under the EU waste framework Directive 2008/98 inevitably involve quite a bit of factual analysis and Safety-Kleen UK Ltd v The Environment Agency [2020] EWHC 3147 (Admin)  is no exception.

Safety-Kleen UK Ltd, the Claimant, provides specialist mechanical parts washers, containing kerosene, to businesses, such as those undertaking automotive repairs and to small engineering businesses. They are used for cleaning the parts of heavy oil, grease, paint, ink, glues and resins. The machines enable a cleaning process by physical means, such as scrubbing and automatic agitation with kerosene, and by kerosene acting as a solvent. Safety-Kleen collects the used kerosene from its customers in drums and replaces it with cleaned kerosene. Safety-Kleen takes the drums of used kerosene back to a depot, empties them into a sump or reservoir and then rinses out the drums with used kerosene from the reservoir, to which the now re-used kerosene returns. From there, the re-used kerosene is pumped into the “dirty” tanks, whence it is tankered away to a different company for a specialised industrial waste recovery or regeneration process, by which the dirty kerosene is distilled and cleaned. The cleaned kerosene is returned to a Safety-Kleen depot, and placed into the cleaned drums.

There was no issue but that the dirty kerosene, when it reached the “dirty” tanks at the depot was “waste”, within the WFD, and remained waste when transferred to the depot for distillation and waste until it was cleaned for re-use by customers. Until 2017, there had been no issue between Safety-Kleen and the Environment Agency but that the used kerosene was waste when it was collected by Safety-Kleen from its customers’ premises. However, in 2017, Safety-Kleen concluded that the kerosene did not become waste until it had been used for the cleaning of the drums back at the depot, and was sent to the “dirty” tanks, to await removal for recovery or regeneration. The Agency thought otherwise.

Ouseley J discussed the classics with particular focus on Arco Chemie and  Shell, and at 50-51 a rather odd deference even in judicial review, to what the regulator itself held. The EU definition of waste is a legal concept; not one to be triggered by the Agency’s conviction. Nevertheless he reaches his ‘own judgment’ (52) fairly easily and, I believe on the basis of the facts available, justifiably, that the kerosene is being discarded by the holder, it being ‘indifferent to what beneficial use Safety-Kleen may be able to make of it back at the depot’ (at 56).

Claimant’s reliance on Shell seemed not the most poignant, seeing as the case here is not one of reverse logistics but rather one of truly spent raw materials on their way to perhaps receiving a second life following treatment.

Geert.

Handbook of EU Waste law, OUP, second ed, 2015.

Definition of waste under the EU Waste framework Directive
Re-used kerosene pumped into tanks
CJEU Shell authority featuring
Held for the Agency https://t.co/FMH1dK3DXE

— Geert Van Calster (@GAVClaw) November 20, 2020

Bundesamt für Migration und Flüchtlinge (Service militaire et asile)
Espace de liberté, sécurité et justice
Dans le contexte de la guerre civile en Syrie, il existe une forte présomption que le refus d’y effectuer le service militaire est lié un à un motif qui peut ouvrir droit à la reconnaissance de la qualité de réfugié

B S et C A (Commercialisation du cannabidiol - CBD)
Agriculture
Un État membre ne peut interdire la commercialisation du cannabidiol (CBD) légalement produit dans un autre État membre lorsqu’il est extrait de la plante de cannabis sativa dans son intégralité et non de ses seules fibres et graines

Association One Voice et Ligue pour la protection des oiseaux
Environnement et consommateurs
Selon l’avocate générale Kokott, la chasse aux gluaux des grives et merles noirs autorisée dans le sud de la France peut être compatible avec la directive de l’Union concernant la conservation des oiseaux sauvages si cette chasse revêt une importance culturelle significative et si les autres conditions requises pour qu’il soit dérogé à l’interdiction de principe sont remplies

Bundesrepublik Deutschland (Notice rouge d’Interpol)
Principes du droit communautaire
Selon l’avocat général Bobek, l’interdiction de la double peine applicable dans l’espace Schengen peut faire obstacle à une extradition vers un État tiers

In C-519/19 Ryanair v DelayFix, the CJEU held yesterday. The case echoes the facts in Happy Flights v Ryanair at the Belgian Supreme Court.

Following inter alia  CJEU Jana Petruchova, the (absence of) impact of substantive European consumer protection rules on the consumer section of European private international law is now fairly settled. The separation between the two sets of laws seems quite clear for the application of the consumer section itself.

However under A25 BIa, EU consumer law might still play a role in those circumstances where the conditions of the consumer Section are not met (dual-use contracts, contracts for transport (such as here) etc.) yet where one of the parties may qualify as a consumer under substantive EU consumer protection law.

A core issue of contention is the consideration of the EU unfair terms in consumer contracts Directive 2019/2161 and its predecessor Directive 93/13 , which was applicable in Ryanair v DelayFix. Via Article 25’s lex fori prorogati rule on substantive validity for choice of court, the Directive plays an important role.

In the case at issue at the CJEU, Passenger Rights, now DelayFix, a company specialised in the recovery of air passengers’ claims under the EU Regulation on air passenger rights, has requested the courts at Warsaw to order Ryanair,  to pay EUR 250 in compensation, a passenger on the relevant flight having assigned DelayFix their claim with respect to that airline.

The CJEU first of all looks at the issue from the limited extent of what is actually materially regulated by A25: the requirement of ‘consent’ (as well as the formal expression of that consent. It holds, not surprisingly, that in principle of course a jurisdiction clause incorporated in a contract may produce effects only in the relations between the parties who have given their agreement to the conclusion of that contract (referring ex multi to Refcomp).  In the case at issue,  a jurisdiction clause incorporated in the contract of carriage between a passenger and that airline cannot, in principle, be enforced by the latter against a collection agency to which the passenger has assigned the claim.

However, at 47, there is a gateway for the choice of court nevertheless to extend to third parties, namely when the third party not privy to the original contract had succeeded to an original contracting party’s rights and obligations, in accordance with national substantive law. At 49, referring to A25(1), that law is the lex fori prorogati. Here: Irish law.

Recital 20 BIa in fact instructs to include the lex fori prorogati’s conflict of laws rules (in other words: an instruction for renvoi) to be part of the referral. In the aforementioned Belgian SC ruling in Happy Flights, renvoi was simply ignored. Here, the CJEU does not mention renvoi, even if it does not expressly exclude it.

The CJEU does point out that Directive 93/13 on unfair terms in consumer contracts of course is part of the Irish lex fori prorogati, as it is of all the Member States. In making that reference it would seem to have answered in the negative the question whether the ‘consent’ provisions of that Directive have not been superseded in the context of the ‘consent’ requirements of Article 25 Brussels Ia, as recently discussed obiter in Weco Projects.

Per previous case-law, the capacity of the parties to the original agreement at issue is relevant for the application of the Directive, not the parties to the dispute.  Further, a jurisdiction clause, incorporated in a contract between a consumer and a seller or supplier, that was not subject to an individual negotiation and which confers exclusive jurisdiction to the courts in whose territory that seller or supplier is based, must be considered as unfair under Article 3(1) of Directive 93/13 if, contrary to requirement of good faith, it causes significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. Reference is made in particular to Joined Cases C‑240/98 to C‑244/98 Océano Grupo (at 58).

It will be up to the national courts seised of a dispute, here: the Polish courts, to draw legal conclusions from the potential unfairness of such a clause (at 61). DelayFix therefore are not quite yet home and dry.

Geert.

European Private International Law, 3rd ed. February 2021, Chapter 2, para 2.240.

The Court of justice delivered today its judgment in case C‑519/19 (Ryanair DAC v DelayFix, formerly Passenger Rights sp. z o.o.), which is about jurisdiction clauses, assignment of passenger claim and unfair terms:

“Article 25 of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that, in order to contest the jurisdiction of a court to hear and determine an action brought for compensation under Regulation (EC) No 261/2004 […]  establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, […] and against an airline, a jurisdiction clause incorporated in a contract of carriage concluded between a passenger and that airline cannot be enforced by the airline against a collection agency to which the passenger has assigned the claim, unless, under the legislation of the Member State whose courts are designated in that clause, that collection agency is the successor to all the initial contracting party’s rights and obligations, which it is for the referring court to determine. Where appropriate, such a clause, incorporated, without having been subject to an individual negotiation, in a contract concluded between a consumer, that is to say, the air passenger, and a seller or supplier, that is to say, the airline, and which confers exclusive jurisdiction on the courts which have jurisdiction over the territory in which that airline is based, must be considered as being unfair within the meaning of Article 3(1) of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=233867&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=14547437

Lietuvos geležinkeliai / Commission
Concurrence
Le Tribunal confirme la décision de la Commission constatant l’abus de position dominante de la société nationale des chemins de fer de Lituanie sur le marché lituanien du fret ferroviaire

Syndicat CFTC
SOPO
Une convention collective nationale peut réserver aux seules mères un congé supplémentaire de maternité

KCA Deutag UK Finance PLC, Re (In the Matter of the Companies Act 2006) [2020] EWHC 2977 (Ch) is in most part a classic scheme of arrangement sanctioning hearing, with the scheme proposed by a UK-incorporated company with COMI undisputedly there, too. See a range of posts on the blog for the classic jurisdictional analysis.

What is slightly out of the ordinary is the contractual commitment by the creditors not to oppose the scheme in foreign jurisdictions.  Snowden J, at 33:

In this case, two things give me that comfort. The first is that there was an overwhelming vote by Scheme Creditors in favour, and a very large number of such creditors entered into a lock-up agreement which bound them contractually to support the Scheme and not to do anything to undermine it. It is very difficult to see how such creditors who contractually agreed to support the Scheme and/or who voted in favour could possibly be allowed to take action contrary to the Scheme in any foreign jurisdiction, and the number and financial interests of those who did not vote in favour is comparatively very small indeed. That alone is sufficient to demonstrate to me that the Scheme is likely to have a substantial international effect and that I would not be acting in vain if I were to sanction it.

I would intuitively have felt quite the opposite, although detail is lacking (e.g. was the commitment given as a blank cheque before the details of the scheme were known): such contractual commitment even if valid under (presumably; no details are given) English law as the lex contractus of the commitment, could serve to undermine international effectiveness. For I would not be surprised if creative counsel on the continent could find a range of laws of lois de police or ordre public character, to try and object to contractual commitment to sign away the right to oppose.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5. Third edition forthcoming February 2021.

Scheme of arrangement, sanctioned
Company UK incorporated, & UK COMI
Number of creditors domiciled ex-UK
Novelty is that these contractually committed to not opposing the scheme in foreign jurisdictions
Expert evidence of enforceability in US, DE, NOR, RUS, Oman also considered https://t.co/mi8ruTIgPR

— Geert Van Calster (@GAVClaw) November 6, 2020

Napag Trading Ltd & Ors v Gedi Gruppo Editoriale SPA & Anor [2020] EWHC 3034 (QB) engages (and refers to) the issues I previously reported on in inter alia Bolagsupplysningen, Saïd v L’Express,

It is worthwhile to list both claimants and defendants.

On the claimants side, Napag Trading Limited (“the First Claimant”) is an English-domiciled company. Napag Italia Srl (“the Third Claimant”) is an Italian-domiciled subsidiary of the First Claimant. Sgr Francesco Mazzagatti (“the Second Claimant”), an Italian national with his main residence in Dubai, is the CEO and sole director of, and 95% shareholder in, the First Claimant. The First Claimant trades, and the Third Claimant has traded, in petroleum-based products.

On the defendants side, Gedi Gruppo Editoriale S.p.A. (“the First Defendant”) is the publisher amongst other things of L’Espresso which is a weekly Italian-language political and cultural magazine available both in print and online in England and Wales. Società Editoriale Il Fatto S.p.A. (“the Second Defendant”) is the publisher of Il Fatto Quotidiano (“Il Fatto”), a daily Italian-language newspaper published in England and Wales only on the internet.

An earlier Brexit-anticipatory forum non conveniens challenge was waived away by Jay J at 7: ‘Only the Second Defendant saw fit to raise a forum non conveniens challenge in advance of 1st January 2021 and the relevant EU regulation no longer applying. I would have been very reluctant to rule on this sort of application on an anticipatory basis.’

Identifying a centre of interest in England and Wales, leading to full jurisdiction there for damages, per CJEU e-Date and Bolagsupplysningen and also a precondition to apply for injunctive relief (see also Bolagsupplysningen: only courts with full jurisdiction may issue such relief) is of course a factual assessment.

The Second Claimant is an entrepreneur, born in Calabria but now living in Dubai. He founded the Third Claimant in 2012. Initially, it traded in oil and petroleum products from offices in Rome. The Third Claimant dealt in particular with the Italian oil company Eni S.p.A. (“Eni”), headquartered in Rome and in part state-owned, and Eni Trading & Shipping S.p.A. (“Ets”) which is based in Rome and has a branch in London. Second Claimant incorporated the First Claimant in April 2018. His evidence is that London was a better base from which to conduct and grow his business because he was encountering resistance from some banks and financial institutions who were diffident about working with an Italian company. More specifically, the strategy was to hive off the Third Claimant’s oil and gas business into the First Claimant, and the former would devote itself to trading in petrochemicals. Additionally, the idea was to invest in an “upstream” development in the UK Continental shelf, and the first discussions about this were in November 2018.

Justice Jay revisits the CJEU’s instructions re centre of interests for natural persons per e-Date. At 29:

First, other things being equal, and certainly in the absence of evidence to the contrary, a natural person’s “centre of interests” will match his or her habitual residence. Whether or not this may accurately be described as an evidential presumption does not I think matter (in my view, no legal presumption is generated); in any case, the CJEU – subject to my second point – is not purporting to assist national courts as to the rules of law that should govern the exercise of ascertainment. Secondly, general considerations of predictability and the need for clarity militate in favour of straightforward and readily accessible criteria rather than any microscopic examination of the detail.

At 32 follows an interesting discussion of para 43 of the CJEU Bolagsupplysningen judgment

“43. It is also appropriate to point out that, in circumstances where it is not clear from the evidence that the court must consider at the stage when it assesses whether it has jurisdiction that the economic activity of the relevant legal person is carried out mainly in a certain member state, so that the centre of interests of the legal person which is claiming to be the victim of an infringement of its personality rights cannot be identified, that person cannot benefit from the right to sue the alleged perpetrator of the infringement pursuant to article 7(2) of Regulation No 1215/2012 for the entirety of the compensation on the basis of the place where the damage occurred.”

After a reference to what Justice Jay calls Bobek AG’s ‘masterly opinion’, in particular the burden of proof issues are discussed which Jay J justifiably holds are not within the scope of Brussels Ia (not at least in the sense of deciding the procedural moment at which proof must be furnished). I agree with his finding that the CJEU’s meaning of para 43 is simply that

in the event that the national court concluded that it could not identify the “centre of interests” because the evidence was unclear, article 7(2) of the RBR could not avail the claimant.

Conclusion of the factual consideration follows (probably obiter: see 150) at 161: first Claimant has the better of the argument that its “centre of interests” is in England and Wales.

Jay J then discusses at 35 ff that whether there actually is damage within E&W as a matter of domestic law to decide to good arguable case standard, that the case may go ahead. That discussion shows that  the actual concept of ‘damage’ within the meaning of Brussels Ia and indeed Rome II is not quite so established as might be hoped, and it is held at 141 that no serious damage has occurred within E&W for there to be jurisdiction.

The case is a good illustration of the hurdle which national rules of civil procedure continue to form despite jurisdictional harmonisation under EU private international law rules.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.

Third ed. forthcoming February 2021.

 

Jurisdiction, libel over the internet.
Consideration of centre of interests per #CJEU Bolagsupplysningen (found to be E&W at good arguable case level). https://t.co/VOi2KS5qFb

— Geert Van Calster (@GAVClaw) November 13, 2020

The CJEU held yesterday in C‑433/19 Ellmes Property Services.

On the application of Article 24(1) Brussels Ia rights in rem it confirms Szpunar AG’s Opinion which I discussed here: the erga omnes charachter or not of the rights relied upon needs to be confirmed by the referring court for A24(1) to be engaged.

I suggested the forum contractus analysis was the more exciting one. The Advocate General advised it be determined by the Italian judge following the conflicts method per CJEU 12/76 Tessili v Dunlop, with little help from European harmonisation seeing i.a. as the initial co-ownership agreement dates back to 1978.

The Court held at 39 that the fact that a downstream co-owner was not a party to the co-ownership agreement concluded by the initial co-owners has no effect on there being a contract per A71(a)  BIa, per Ordre des avocats du barreau de Dinant and Kerr. 

Unlike the AG, however, the CJEU does not hold that the Tessili Dunlop looking over the fence test is required. It comes seemingly uncomplicated to the conclusion of the locus rei sitae as the forum contractus. At 44, yet linking it to the intention of the contractual obligations:

It seems that that obligation is thus intended to ensure the peaceful enjoyment of the property subject to co-ownership by the owner of that property. Subject to verification by the referring court, that obligation relates to the actual use of such property and must be performed in the place in which it is situated.

This may however harbour more uncertainty than first meets the eye. The CJEU here seems to suggest the original contractually designed ‘peaceful enjoyment by the owner’ , which indicates the contractual performance as being one of ‘actual use’ as determining the forum contractus.  A claim relating to a more immaterial use of the property, such as arguably letting the property for financial gain, or indeed an intention to divest the property, would in this perception not necessarily be linked to the locus rei sitae – which brings one back to the discussion entertained by the AG: depending on who brings which claim and how that claim is formulated (an echo from De Bloos, whose usefulness is currently sub judice in Wikingerhof), forum contractus will vary.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.6.1 (cited by the AG) and Heading 2.2.11.1.

(Third edition forthcoming February 2021).

AG Hogan delivered today his opinion in case C‑729/19 (TKF v Department of Justice for Northern Ireland), which is about the Maintenance Regulation.

Context: the case “concerns the recognition and enforcement in the United Kingdom of decisions in matters relating to maintenance obligations given in Poland prior to its accession to the European Union on 1 May 2004 and prior to the date of application, namely 18 June 2011, of Regulation No 4/2009”.

Opinion: “1. The derogation from the temporal application of Council Regulation (EC) No 4/2009 […], laid down in Article 75(2) of Regulation No 4/2009, is to be interpreted as applying only to decisions which were given by a court in States which were already members of the EU at the time those decisions were given.

2. It is not possible to obtain, on the basis of Article 75 of Regulation No 4/2009 or any other provision of that regulation, the recognition and enforcement of a decision made by a court of a State before its accession to the Union in accordance with the rules laid down in Regulation No 4/2009”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=233586&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=13696852

Troke & Anor v Amgen Seguros Generales Compania De Seguros Y Reaseguros SAU (Formerly RACC Seguros Compania De Seguros Y Resaseguros SA) [2020] EWHC 2976 (QB) is an appeal against a decision of the country court at Plymouth. It has a case-name almost as long as the name some Welsh villages (that’s an observation, I mean no disrespect. I live in a country which has names such as Erps-Kwerps; but I stray).

For brevity’s sake I suspect it is best shortened to Troke v Amgen. The case involves only the rate of interest awarded on what were otherwise agreed awards of damages against the defendant insurer  to the  claimant, victims of a road traffic accident in Spain.

Spanish law is lex causae. Rome II like Rome I excludes “evidence and procedure…”. The extent of this exception is not settled as I have discussed before. Of particular recurring interest is its relation with Article 15 ‘scope of the law applicable’ which reads in relevant part for the case

 “15. The law applicable to non-contractual obligations under this Regulation shall govern in particular: (a) the basis and extent of liability… (…) (c) the existence, the nature and the assessment of damage or the remedy claimed; (d) within the limits of powers conferred on the court by its procedural law, the measures which a court may take to prevent or terminate injury or damage or to ensure the provision of compensation;”

Griffiths J refers in particular to Actavis v Ely Lilly and to KMG v Chen, and at 45 holds obiter that were the interest a contractual right, it would clearly not be covered by Rome I’s exclusion for procedural issues seeing as it would then clearly amount to a substantive right under the contract.

At play here however is Rome II. Griffiths J first refers to a number of inconclusive precedent on the interest issue under various foreign applicable laws, to then note at 65 ff that the judge in the county court whose findings are being appealed, was informed in the expert reports that the interest sought under Spanish law were not mandatory ones but rather discretionary ones: the terminology used in the expert report which determined that decision was ‘contemplates’.

This leads Griffiths J to conclude ‘I reject the argument that the Expert Report was describing a substantive as opposed to a procedural right to interest. It follows that the Judge was right not to apply the Spanish rates as a matter of substantive right to be governed by the lex causae.’

This is most odd. It could surely be argued that a discretionary substantive right is still a substantive right, and not a procedural incident. Whether the right is mandatory or discretionary does not in my view impact on its qualification as being substance or procedure.

The judge’s findings

It follows that I agree with the Judge that the award of interest in this case was a procedural matter excluded from Rome II by Article 1(3); that there was no substantive right to interest at Spanish rates to be awarded to the Claimants under the lex causae; that interest could be awarded under section 69 of the County Courts Act 1984 as a procedural matter in accordance with the law of England and Wales as the lex fori; and that he was entitled to award interest at English and not Spanish rates accordingly.

in my view surely therefore most be appealable.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.8.

Third edition forthcoming February 2021.

What law governs the award of interest in relation to a tort sued upon within this jurisdiction but committed in another jurisdiction.
Whether procedural issue hence lex fori under Rome II. https://t.co/nnnkYczvz2

— Geert Van Calster (@GAVClaw) November 9, 2020

Openbaar Ministerie (Indépendance de l’autorité judiciaire d’émission)
Espace de liberté, sécurité et justice
Selon l’avocat général Campos Sánchez-Bordona, l’aggravation des défaillances systémiques ou généralisées affectant l’indépendance de la justice en Pologne ne justifie pas l’inexécution automatique de tous les mandats d’arrêt européens provenant de cet État membre

The Court of Justice delivered today its judgment in case C‑433/19 (Ellmes Property Services Limited v SP), which is about Articles 24.1 and 7.1 Brussels I bis in relation to immovable property:

“1. Point 1 of Article 24 of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that an action by which a co-owner of immovable property seeks to prohibit another co-owner of that property from carrying out changes, arbitrarily and without the consent of the other co-owners, to the designated use of his or her property subject to co-ownership, as provided for in a co-ownership agreement, must be regarded as constituting an action ‘which has as its object rights in rem in immovable property’ within the meaning of that provision, provided that that designated use may be relied on not only against the co-owners of that property, but also erga omnes, which it is for the referring court to verify.

2. Point 1(a) of Article 7 of Regulation No 1215/2012 must be interpreted as meaning that, where the designated use of immovable property subject to co-ownership provided for by a co-ownership agreement cannot be relied upon erga omnes, an action by which a co-owner of immovable property seeks to prohibit another co-owner of that property from carrying out changes, arbitrarily and without the consent of the other co-owners, to that designated use must be regarded as constituting an action ‘in matters relating to a contract’, within the meaning of that provision. Subject to verification by the referring court, the place of performance of the obligation on which that action is based is the place where the property is situated”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=E10A5086D2E9CBE2886CE0C4AE8886E4?text=&docid=233541&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=12753411

Orange Romania
Rapprochement des législations
Un contrat de fourniture de services de télécommunication contenant une clause selon laquelle le client a consenti à la collecte et la conservation de son titre d’identité ne peut démontrer qu’il a valablement donné son consentement lorsque la case y afférente a été cochée par le responsable de traitement avant la signature du contrat

Forum non conveniens featured not just in Municipio de Mariana at the High Court yesterday but also in Qatar Airways Group QCSC v Middle East News FZ LLC & Ors [2020] EWHC 2975 (QB).

Twenty Essex have good summary of the background and decision. Context is of course the blockade on Qatar, led by Saudi Arabia and the UAE. Qatar Airways Group (QAG) sue on the basis of tort, triggered by a rather chilling clip aired by Al Arabiya which amounted to a veiled threat against the airline.

Saini J at 27 notes what Turner J also noted in Municipio de Mariana and what Briggs LJ looked at in horror in Vedanta, namely the spiralling volume and consequential costs in bringing and defending a jurisdictional challenge. (Although at least for Vedanta and Municipio de Mariana the issues discussed are matters of principle, which may eventually settle once SC (and indeed CJEU) authority is clear).

The judgment recalls some principles of international aviation law under the Chicago Convention (with noted and utterly justifiable reference a 77 ff to an article on the opiniojuris blog by prof Heller) which is important here because (at 61) it is the starting point of QAG’s case that anyone who had taken steps to inform themselves of the legal position would have known that contrary to what (it argues) is the message of the Video, there was no real risk of any internationally legitimate interception, still less legitimate shooting at or down, of a QAG scheduled service in flight along one of the defined air corridors. At 88 Saini J concludes on that issue that there is an arguable case as to meaning and falsity.

On good arguable case, reference is to Kaefer v AMS, Goldman Sachs v Novo Banco, and Brownlie.

At 164 ff the judge discusses the issue of pleading foreign law at the jurisdictional threshold of making a good arguable case. Here, Saini J holds on the basis of the assumption that malicious falsehood is not covered by Rome II, which is the higher threshold for the purposes of establishing jurisdiction. He does suggest that it is likely that in fact malicious falsehood is covered by Rome II and not by the exception for infringement of personality rights (at 166: ‘Malicious falsehood is not a claim for defamation, and what is sought to be protected is not Qatar Airways’ reputation or privacy rights, but its economic interests’).

As for applicable law for conspiracy, that is clearly within the scope of Rome II and poses the difficulty of determining locus damni in a case of purely economic loss. Here, at 169 Saini J suggests preliminarily that parties agreed “damage” for the purposes of Article 4(1) of Rome II to have been suffered in the place where the third parties (that is, potential passengers) failed to enter into contracts with QAG (which they otherwise would have done) as a result of the video. Location of purely economic damage under Rome II as indeed it is under Brussel Ia is however not settled and I doubt it is as simple as locating it in the place of putative (passenger) contract formation.

Of long-term impact is the judge’s finding that for jurisdictional threshold purposes, he is content for claimant to proceed with a worldwide claim for tort on the basis of any foreign law that might be applicable having the same content as English law. 

Of note in the forum non analysis is that not just the obvious alternative of the UAE was not good forum, but neither would the DIFC be. At 374:’the UAE is not an appropriate forum is what I would broadly call “access to justice” considerations in what has clearly become a “hostile environment” for Qataris in the UAE.’ And at 379, re the DIFC: ‘The DIFC courts are a sort of “litigation island” within the UAE, created to attract legal business by their perceived superior neutrality, and higher quality, compared to the local courts. But as such, they have no superiority compared to the English courts, also a neutral forum. The English courts have the other connections to the case, which the DIFC courts do not.’

Geert.

 

 

409 paras of jurisdictional challenge based on serious issue to be tried and forum non conveniens.
Dismissed (with summary judgment re one of the defendants).
Discussion of international aviation law (with reference to article on @opiniojuris). https://t.co/Qz2GpqgLoF

— Geert Van Calster (@GAVClaw) November 9, 2020

I am instructed for claimants in the case hence my post here is a succinct report, not a review and it must not be read as anything else.

Turner J yesterday struck out (not just: stayed) the case against the companies jointly operating the facilities that led to the 2015 Brazilian dam break and consequential human and environmental loss in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). I reported on the case before here.

Eyre J’s earlier Order had identified the threefold jurisdictional challenge: 1. Forum non conveniens for non-EU defendants; 2. Article 34 Brussels IA for the EU-based defendants; 3. Abuse of process, case management for both.

In his judgment Turner J makes abuse of process the core of the case, hinging his subsequent obiter analysis of forum non and of Article 34 on his views viz abuse. At the centre of his abuse analysis is his interpretation of AB v John Wyeth & Brother (No.4), also known as the benzodiazepine litigation, with the points he takes from that judgment (even after the subsequent CPR rules wre issued) summarized at 76.

At 80 ff is a discussion (see e.g. my earlier review of Donaldson DJ in Zavarco) on the use of case-management powers, including abuse, against EU-domiciled defendants post CJEU Owusu (the ‘back-door analogy per Lewison J in Skype technologies SA v Joltid Ltd [2009] EWHC 2783 (Ch) ).

At 99 ff Turner J pays a lot of attention to the impact of accepting jurisdiction on the working of the courts in England, discusses some of the practicalities including language issues, and decides at 141 in an extract which has already caught the attention of others, that ‘In particular, the claimants’ tactical decision to progress closely related damages claims in the Brazilian and English jurisdictions simultaneously is an initiative the consequences of which, if unchecked, would foist upon the English courts the largest white elephant in the history of group actions.’

At 146 ff follow the obiter considerations of the remaining grounds, Article 34 Recast, forum non conveniens and case management stay. On Article 34 viz BHP Plc, the issue of ‘relatedness’ is discussed with reference of course to Euroeco and the tension between that case and Privatbank, as I flag ia here, holding at 199 in favour of Privatbank as the leading authority (hence focus on desirability of hearing cases together rather than on practical possibility). On relatedness, Turner J does not follow the approach of either Zavarco or Jalla, both of course first instance decisions.

At 206 Turner J takes the instructions of recital 24 Brussels Ia’s ‘all circumstances of the case’ to mean including circumstances which would ordinarily be part of a forum non consideration, despite Owusu, and at 231 Jalla is distinguished (at least practically; Jalla is not authority for the judge here) and i.a. at 221 Turner J lists his reasons for allowing an Article 34 stay (again: these are obiter views). As already noted, these echo his findings on abuse of process.

The forum non conveniens analysis viz BHP Ltd at 235 ff, applying Spiliada, delivers inter alia on an inherent implication of Lord Briggs’ suggestions in Vedanta: that a commitment of defendants voluntarily to submit to the foreign alternative jurisdiction, hands them the key to unlock forum non. At 241: ‘In this case, both defendants have offered to submit themselves to the jurisdiction of Brazil. Thus the force of any suggestion that there may be a risk of irreconcilable judgements against each defendant is attenuated.’

Conclusions, at 265:

(i) I strike out the claims against both defendants as an abuse of the process of the court;

(ii) If my finding of abuse were correct but my decision to strike out were wrong, then I would stay the claims leaving open the possibility of the claimants, or some of them, seeking to lift the stay in future but without pre-determining the timing of any such application or the circumstances in which such an application would be liable to succeed;

(iii) If my finding of abuse were wrong, then I would, in any event, stay the claim against BHP Plc by the application of Article 34 of the Recast Regulation;

(iv) If my finding of abuse were wrong, then I would, in any event, stay the claims against BHP Ltd on the grounds of forum non conveniens regardless of whether the BHP reliance on Article 34 of the Recast Regulation had been successful or not;

(v) If my findings on the abuse of process point were wrong, then a free-standing decision to impose a stay on case management grounds would probably be unsustainable.

Appeal is of course being considered.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

3rd ed. forthcoming February 2021.

Jurisdiction denied in core #bizhumanrights case on the basis of abuse of process, Article 34 Brussels Ia and /or forum non conveniens.
For background to the case see https://t.co/CzkMFH98yH https://t.co/h9AjvJ6JIR

— Geert Van Calster (@GAVClaw) November 9, 2020

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