Flux Belges et Lux

In Benkel v East-West German Real Estate Holding & Anor [2021] EWHC 188 (Ch), Morgan J was asked to join a party on the basis of Article 8(1) Brussels Ia’s anchor defendant mechanism, and obliged. Mr Dikautschitsch (domiciled in either Spain or Germany) is to be one of a number of defendants. One of the existing defendants, East-West UK, is domiciled in England and Wales.

Casio Computer Co Ltd v Sayo & Ors [2001] EWCA Civ 661 was the authority mostly relied on, as was, via the link with Article 30, Sarrio SA v Kuwait Investment Authority. Expediency to add the second defendant to the proceedings was found to be present given the possibility of conflicting findings of fact [59]. Morgan J rejected [64] a rather novel argument that given the possibility of the E&W courts’ findings of fact clashing with potential future proceedings elsewhere, he should refrain from exercising his discretion to consolidate.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.13.1.

I am busy on many fronts and not complaining, yet I am sorry if some posts are therefore a little later than planned. A quick flag of Duffy v Centraal Beheer Achmea [2020] EWHC 3341 (QB) in which Coe J noted parties agreed that interim payments are included in the Rome II exemption of evidence and procedure: at 8:

The claim is brought in the English Court against a Dutch motor insurer and it is agreed that the law of the Netherlands applies to this claim in tort. The claimant, as a result of Dutch law has a direct right of action against the insurer and, following the decision in FBTO v Odenbreit [2007] C 463-06, the jurisdiction of the English Court is not an issue. The law of the Netherlands applies (pursuant to Article 41(1) of the Rome II Regulation on applicable law in tort (Regulation 864/2007)). Dutch law will govern limitation, breach of duty and causation as well as the existence of, the nature of and the assessment of damages to which the claimant might be entitled. Matters of procedure and evidence are nonetheless reserved to the forum court (see Article 15 (c) of the Rome II Regulation and Article 1(3)). This is an application for an interim payment which is a procedural application and thus governed by English law. However, when it comes to any assessment of the damages to which the claimant might be entitled on which to base the interim payment decision, Dutch law has to be applied.

Coe J has little reason to disagree however I imagine she would have entertained the issues more had the distinction between Dutch and English law on the interim payment issue been materially different, hence had counsel made diverging noise. For as I have signalled before, the extent of the evidence and procedure exemption is not clear at all.

Geert.

EU Private International Law. 3rd ed. 2021, Chapter 4, Heading 4.8.

Application for interim payment.
Parties agree it is a procedural application under Rome II, governed by English law, lex fori.
To the assessment of damages to which claimant might be entitled on which to base the interim payment decision, Dutch law applies as lex causae. https://t.co/QztZJzSKyy

— Geert Van Calster (@GAVClaw) December 4, 2020

Lyle & Scott Ltd v American Eagle Outfitters, Inc [2021] EWHC 90 (Ch) entertains ia the question whether the governing law for passing-off claims involving an eagle trademark, fall under Article 6 or 8 Rome II. The application is for an earlier order allowing service of jurisdiction, to be set aside.

Parties had agreed a ‘memorandum’ (which may or may not be a ‘contract’ – it is further referred to in the judgment as a ‘contract’) following a disagreement on whether each corporation’s eagle (L&S’s being trademarked in the UK and various EU Member States; AEO’s not being trademarked here, I understand) incorporated in apparel involved infringement of trademark and passing off.

AEO are domiciled in the US  and have no physical presence in the UK (or, one assumes, anywhere in the EU (the litigation was initiated pre-Brexit); their apparel is offered via online sales.

Jurisdiction is decided on the basis of the laws of E&W. Applicable law comes into the discussion for per Lord Mance at 46 in VTB v Nutritek,

“The governing law, which is here English, is in general terms, a positive factor in favour of trial in England, because it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum…”.

Miles J discusses the governing law issue at 64 ff. Claimant argue the claim comes under A8 Rome II: infringement of intellectual property rights, English law, lex loci protectionis. Defendants argue they fall under A4 (by way of A6(2): Act of unfair competition), and that A4(3) is engaged to make the applicable law that of the state of Pennsylvania, because of the ‘contractual’ relationship.

At 72 Miles J agrees with the classification under A6, holding ia that ‘(t)he cause of action protects the goodwill of traders against deceptive conduct; goodwill is not an intellectual property right; and passing off is not the infringement of a right.’ Unlike the judge I do not think Rome II’s recital is of much help here and I suspect more can be made of the comparative law insights (common law and civil law) offered.

The next question is whether the claim falls within A6 (2). In Miles J’s succinctly expressed view it does, at 73: ‘The act of unfair competition alleged (passing off) affects exclusively the interests of a specific competitor (L&S). It follows that Art. 4 applies.’ As I have often noted, I find it very difficult to think of acts of unfair competition do not ultimately also impact the consumers of those involved.

The final hurdle then is whether A4(3) is engaged to displace E&W law as the lex loci damni, which at 75 the judge holds is not the case. Parties have not agreed on a governing law for the ‘contract’, they have conducted previous proceedings on the basis of that law being the laws of Pennsylvania. However even if the lex contractus is probably Penn law, and English law probably the lex causae for the passing off claim, Miles J holds this should not have an impact at the jurisdictional level: particularly seeing as there is no immediate reason to assume E&W courts will have great difficulty in applying Penn law to what on the contractual substance does not seem an overly complicated case.

Application dismissed, service out of jurisdiction stands.

This case once again highlights the level of complication resulting from having inserted different heads of applicable law into Rome II – a phenomenon which as I recently reported, might soon be expanded upon.

Geert.

EU private international law, 3rd ed. 2021, Chapter 4, Heading 4.5.2, 4.6.2, 4.6.4.

This post has been in my draft folder a long time for First Advocate General Szpunar opined Mid-October in C-469/19 All in One Star Ltd. Still worth a flag, with the CJEU presumably soon issuing judgment. The case concerns the refusal of German authorities to enter a branch of a UK-incorporated company, in the German commercial register.  C-106/16 Polbud is the most recent major case on the issue.

The Opinion follows the (slow) progress of positive harmonisation of EU company law, with Directive 2017/1132 core to the questions. The AG opined that that Directive does not preclude a national provision under which the managing director of the company has to provide an assurance that there is no barrier to his personal appointment under national law in the form of a prohibition, ordered by a court or public authority, on practising his profession or trade. However he suggests the Treaty provisions on free movement oppose the authorities of destination requesting the director provide assurances that a notary, a representative of a comparable legal advisory profession or a consular officer has confirmed such absence of obstacle to him.

The AG was asked by the CJEU not to discuss the other question: whether a Member State may insist upon indication of the amount of share capital or a comparable capital value, for a branch of a limited liability company with registered office in another Member State to be entered in the commercial register. Presumably because the answer is clearly ‘No’ in light of earlier case-law.

Clearly following Brexit (the TCA as far as I am aware has no straight free movement principles for corporations) the issue will be different for UK corporations however it will continue to present itself in light of the intra-EU competition in corporate law.

Geert.

EU Private international law, 3rd ed 2021, Chapter 6.

ICMY: Opinion Szpunar AG in All in One Star Ltd: Inbound free movement of corporations, further extension of Centros and Inspire Art case-law https://t.co/19bHt9w5U5 (no EN text available).
Re refusal to enter a branch of a company registered in the UK in DE commercial register.

— Geert Van Calster (@GAVClaw) October 15, 2020

Trower J confirmed mid-December (judgment was not published until earlier this week) jurisdiction for England and Wales courts over continental corporations using ‘Restructuring Plans’, in an echo of his earlier findings in Virgin Atlantic.  The plan has in the meantime also been sanctioned. Mother holding is a Dutch BV. Plan companies are all UK incorporated. Creditors in part UK based, largely non-UK based. However the presence of a sizeable number of them in E&W is held (36-38) to be sufficient to serve as anchor using A8(1) BIa.

As I flagged in my review of Virgin Atlantic, pre-Brexit and of course even more so post Brexit, jurisdiction for these Plans let alone their recognition and enforcement in the EU, involves additional challenges to Schemes of Arrangements. I have a paper on the issues forthcoming.

Geert.

EU private international law, 3rd ed. 2021, paras 5.35 ff

Convening order is now here https://t.co/ADUj1QubUO
(and sanctioning order https://t.co/8BtUzj8KMM)
Brussels Ia jurisdiction re Deep Ocean #restructuring 'Plan' addressed in two paras simply confirming indeed arguendo approach as under Schemes of Arrangement, anchor defendants. https://t.co/Qb4nH1cPQO

— Geert Van Calster (@GAVClaw) January 28, 2021

In Top Optimized Technologies SL (A Company Incorporated Under the Laws of Spain) & Anor v Vodafone Group Services Ltd & Ors [2021] EWHC 46 (Pat) Smith J is asked to stay proceedings on the basis of Article 30 Brussels Ia’s related actions rule.

Three sets of proceedings are pending: one in Madrid; two in the UK. Parties, even some of them are of similar corporate blood, are not the same. Hence an Article 29 lis alibi pendens application is not possible. Arguments advanced at 39 ff in favour of a stay, are in the main, the same facts and matters being traversed (with an immediate indication of Smith J that the applicable law being different counts against, there being a ‘danger in overstating the overlap’); the danger of relitigating earlier proceedings elsewhere, and of consequential double recovery.

Smith J at 40 ff is in favour of what he calls the ‘wide approach’ to A30 (unlike a more narrow approach under A29 and incidentally under A45), to which I can subscribe. At 45 he sums up his reasons for declining the stay which of course are largely discretionary. However, among them is one oddity: at 45(4):

Moreover, this is a case where Vodafone has avoided – entirely properly – the jurisdiction of the Spanish courts by invoking the exclusive jurisdiction clauses in favour of England and Wales. Vodafone could have submitted to the jurisdiction of the Spanish courts under Article 26, but instead elected to invoke Article 25. As a result, proceedings involving all relevant parties (Vodafone and Huawei) and so eliminating any risk of irreconcilable judgments have not been possible. No criticism can be made of Vodafone in this: but, conversely, it seems to me perverse now to prevent the progression of the Second UK Proceedings in circumstances where the fragmentation of the originally constituted Madrid Proceedings against Huawei and Vodafone has occurred at Vodafone’s insistence. (emphasis in the original)

This echoes the findings of Lord Briggs in Vedanta, that the potential for submission carries a lot of weight in ultimate jurisdictional decisions. I am not convinced Brussels Ia supports this.

Geert.

European Private International Law, 3rd ed. 2021, Heading 2.2.15.2 (para 2.521 ff)

Application for a stay under A30 BIa dismissed, with oddly reference ia to the fact that Vodafone could have avoided the risk of irreconcilable judgments had it foregone its choice of court privilege and seized the Spanish courts for its own proceedings. https://t.co/T4XSzTk14J

— Geert Van Calster (@GAVClaw) January 14, 2021

A succinct post on yesterday’s reports that the French courts are now properly engaging with the action brought in France by more than a dozen US-based corporations (and one local, French defendant) on the continuing impact of the use of Agent Orange by the US Army in Vietnam. Thank you Taco van der Valk for pointing me to an earlier interlocutory judgment which identifies defendants.

Claimant is a dual French-Vietnamese citisen. Jurisdiction is based on Article 4 BIa against the one French defendant. Anchor jurisdiction with that defendant in play, reinforces the jurisdiction based on claimant’s French nationality (the infamous, often labelled ‘exorbitant’ jurisdictional rule of Article 14 of the Code Civil; on which see here). Claimant’s domicile in France presumably is an additional reinforcing factor.

Geert.

European Private International Law, 3rd ed. 2021, para 2.139.

Galapagos Bidco SARL v Kebekus & ors [2021] EWHC 68 (Ch) is yet again a fairly extensive first instance judgment merely on the issue of jurisdiction, entertaining Article 8(1) Brussel Ia’s anchor defendant mechanism as well as Article 25 choice of court.

On A8(1), focus of the discussion was the extent of a merits review under A8(1), which I also discuss  in Sabbagh v Khoury and Senior Taxi v Agusta Westland (both referred to here by Zacaroli J at 44 ff.; as was nb PIS v Al Rajaan). The issue was raised in CJEU C-98/06 Freeport but not answered. The judge here uses the notion of ‘sustainable claim’ to ensure absence of abuse of the anchor mechanism, concluding at 132 after fairly serious if arguably not excessive engagement with the merits, that the conditions of A8(1) are fulfilled.

Article 25 choice of court is discussed obiter at 138 ff., leading to some discussion on the timing of the binding character of the clause upon various parties (and a minor side-issue re Brexit).

A case-management stay was also applied for, with the judge justifiably adopting the strict approach at 160 that such a stay must not be used to circumvent the inapplicability of an Article 34 BIa challenge (the A34 route was dropped; in the light of A25 jurisdiction being established, it would be unavailable at any rate): case-management stay in such circumstances is in essence an application for forum non conveniens which is not permitted under BIa.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.13.1 (in particular 2.496); Heading 2.2.15.3.2.

In yet another very extensive jurisdictional ruling, jurisdiction in E&W accepted on the basis of A8(1) BIa anchor jurisdiction and A25 choice of court against another defendant. https://t.co/ppPZZqtxNy

— Geert Van Calster (@GAVClaw) January 19, 2021

Sánchez-Bordona AG opined last week in C-913/19 CNP. The issue is whether a Polish court has international jurisdiction to rule on a dispute between a company to which a person injured in a road traffic accident that occurred in Poland had assigned his rights, and the insurance undertaking, established in Denmark, which insures the risks of the person who caused the accident. Krzysztof Pacula has interesting Polish context here. He also gives more background to the market and legal implications of involving third parties (such as garages repairing vehicles and providing replacement vehicles) and I am happy to refer to his analysis.

On applicable law and assignment, the EC has proposed rules which complement Rome I. That proposal is making its way through the Institutions, at snail’s pace. On jurisdiction, CJEU Hofsoe clarified one or two things but also created extra fog. The UKSC distinguished Hofsoe in Aspen Underwriting, not however without great effort and with continuing question marks. This really is an area which could do with co-ordinated Rome I and BIa legislative tweaking.

On the specific issue of branch jurisdiction, the case echoes Ryanair v DelayFix. The AG finalises his analysis on that question as follows:

 a commercial company established in a Member State which operates under a contract with an insurance undertaking established in another Member State may be classified as a ‘branch, agency or other establishment’ of that undertaking if, cumulatively:

–        it operates in a Member State by providing compensation for material damage on the basis of insurance against civil liability arising from the use of motor vehicles the risks connected with which are covered by the insurance undertaking;

–        it has the appearance of an extension of the insurance undertaking; and

–        it has a management body and material facilities such as to enable it to transact business with third parties, so that the latter, although knowing that there will if necessary be a legal link with the insurance undertaking, do not have to deal directly with that undertaking.’

Not of course a set of criteria which lead to much spontaneous predictability – again an issue which in the specific insurance context could do with statutory intervention.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.293 ff, para 2.73 ff.

Opinion Sanchez-Bordona in C‑913/19 CNP this morning the concept of 'branch' (for: branch jurisdiction) in Brussels Ia https://t.co/R0ubu9kTDE
with reference to ZX v Ryanair (on which see https://t.co/LPpDMQwMTE)

— Geert Van Calster (@GAVClaw) January 14, 2021

Soriano v Forensic News LLC & Ors [2021] EWHC 56 (QB) engages ia the jurisdictional implications of the GDPR (this post focuses solely on the data protection claim). Claimant  (habitually resident in the UK) sues in relation to ten internet publications and various social media postings including on Facebook and on Twitter. He relies on various causes of action including data protection, malicious falsehood, libel, harassment and misuse of private information. Defendants are all domiciled in various US States.

The Brussels Ia Regulation is not engaged; the GDPR is. (On the partial overlap and conflict between BIa and the GDPR see my paper here). A79 GDPR reads

“Right to an effective judicial remedy against a controller or processor

1. 1. Without prejudice to any available administrative or non-judicial remedy, including the right to lodge a complaint with a supervisory authority pursuant to Article 77, each data subject shall have the right to an effective judicial remedy where he or she considers that his or her rights under this Regulation have been infringed as a result of the processing of his or her personal data in non-compliance with this Regulation.
   2. Proceedings against a controller or a processor shall be brought before the courts of the Member State where the controller or processor has an establishment. Alternatively, such proceedings may be brought before the courts of the Member State where the data subject has his or her habitual residence, unless the controller or processor is a public authority of a Member State acting in the exercise of its public powers.”

At 45-47 the ‘establishment’ issue is not much discussed for the claimant at any rate meets with the habitual residence gateway. Focus of the discussion is on A3’s territorial scope provisions (I am not sure I agree with the suggestion at 46 that A79 logically comes before consideration of A3). Reference is made to Google Spain, Weltimmo and  Verein fur Konsumerentenininformation- see also my review with Yuliya Miadzvetskaya here. The European Data Protection Board’s Guidelines 3/2018 on the Territorial Scope of the GDPR are then turned to to consider targeting, processing and ‘related to’ per A3(2) GDPR.

At 60, Claimant’s case on A3 (2)(a) is set out as arguing that the Defendants, to the extent that they are data controllers, offer services to readers in the UK irrespective of payment. As for A3.2(b), it is contended that the website places cookies on readers’ devices and processes their personal data using Facebook and Google analytics for the purpose of targeting advertisements, with Facebook Ireland Ltd and Google Ireland Ltd operating as the registered joint data controller. Further, it is submitted (By Greg Callus – the same counsel as in the Court of Appeal judgment in Wright v Grannath which I reported yesterday) that the Defendants were collecting and obtaining data about the Claimant and were monitoring his behaviour within the UK and the EU with a view to making publishing decisions.

Justice Jay held claimant has no real prospect of success on either (a) or (b). At 64 ff: the ‘journalistic endeavour’ complained of is not oriented towards the UK in any relevant respect; as for article 3.2(a), there is nothing to suggest that the First Defendant is targeting the UK as regards the goods and services it offers; as for article 3.2(b), at 68

First Defendant’s use of cookies etc. is for the purpose of behavioural profiling or monitoring, but that is purely in the context of directing advertisement content. There is no evidence that the use of cookies has anything to do with the “monitoring” which forms the basis of the Claimant’s real complaint: the Defendant’s journalistic activities have been advanced not through any deployment of these cookies but by using the internet as an investigative tool. In my judgment, that is not the sort of “monitoring” that article 3.2(b) has in mind; or, put another way, the monitoring that does properly fall within this provision – the behavioural profiling that informs advertising choices – is not related to the processing that the Claimant complains about (assuming that carrying out research online about the Claimant amounts to monitoring at all).

(Obiter, at 69, it is held that had the good arguable case succeeded, the claim would have withstood a forum non conveniens argument).

At 112 ff the jurisdictional case for libel is upheld.

An interesting illustration of the unsettled nature of jurisdictional claims under the GDPR.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.5, para 2.258 ff.

#GDPR, jurisdiction, merits test and forum non
Claimant represented by @Greg_Callus
On the A79 GDPR issue discussed in the judgment, see my paper here https://t.co/bjIRmMejB3 https://t.co/FJEpJ3nOy2

— Geert Van Calster (@GAVClaw) January 15, 2021

Wright v Granath [2021] EWCA Civ 28 is not the only litigation involving Mr Wright, defamation and bitcoin gossip: see my review of Wright v Ver [2020] EWCA Civ 672 (judgment to which Popplewell LJ refers for connections between Mr Wright and the UK) here. The judgment appealed here is Wright v Granath [2020] EWHC 51 (QB). Jurisdictional grounds evidently include the CJEU case-law right up to Bolagsupplysningen.

The title of this post is courtesy of Greg Callus, one of counsel for the claimant.

Defendant, Magnus Granath, is a citizen of Norway, resident in Oslo. He has tweeted on various technology issues, including cryptocurrencies, and has an interest in Bitcoin and its development. He believes that Dr Wright’s claim to be Satoshi Nakamoto (the developer of bitcoin) is false, a statement that was also tweeted at the since deleted @Hodlonaut account. By 15 May 2019 Dr Wright’s advisers thought they had identified Mr Granath as the owner of the @Hodlonaut account, and sent a further letter via Facebook and LinkedIn seeking confirmation. The letter was served by hand on Mr Granath on 20 May 2019. Meanwhile on the previous day, 19 May 2019, Mr Granath issued proceedings in the Oslo District Court seeking in effect a declaration of non-liability aka NDR: Negative Declaratory Relief: a classic (and as Popplewell LJ justifiably suggests, CJEU-blessed) flip side of the coin action to avoid jurisdiction of the English courts. 

It is common ground that the Norwegian court was first seised. Jurisdiction was accepted by the Norwegian courts right through to the Supreme Court (talk about speedy proceedings: within a year the jurisdictional issue was considered at first instance, appeal and SC) on the basis that the relief sought was “global” in the sense that it was not limited to any harm or loss suffered in Norway, and that A5(3) Lugano was applicable because the “harmful event” occurred in Norway, that being where Mr Granath lived and published the tweets (locus delicti commissi).

CJEU Gubish Machinenfabrik and The Tatry clarify for the English version of Brussels I hence also of Lugano (assuming the requirement of parrallel interpretation of the lis alibi pendens rule) what was already clearer in other language versions:  A27 Lugano requires three identities: identity of parties; identity of object or ‘ subject-matter ’; and identity of cause.

In the establishment of identity of cause of action, the ‘ cause of action’ comprises the facts and the rule of law relied on as the basis of the action (CJEU Gubbisch). 

Coming then to the decision, Popplewell J dissented, with Singh LJ and Moylan LJ allowing the appeal. At 41 ff Popplewell J discusses the cause of action criterion, with the core at 48-49: he identifies two core differences between the English and the Norwegian claims: 

there are two differences between the English and Norwegian Claims whose significance requires examination. The first is that the Norwegian Claim identifies negligence as a necessary ingredient of liability under Norwegian law, and asserts the absence of negligence on Mr Granath’s part. This gives rise to the possibility that Mr Granath could succeed in Norway on a basis that would not be inconsistent with liability to Dr Wright in England under English law: if the Norwegian Court were to hold that the tweet was untrue because Dr Wright is Satoshi Nakamoto, and there was no defence of lawfulness by way of public interest or freedom of expression, but that Mr Granath was entitled to his declaration on the grounds that although the tweet was wrong it was not negligently so, Dr Wright would have established all the ingredients of an English law defamation claim. However the consequence of the Court now declining jurisdiction under article 27 would be to preclude him from pursuing that English law claim or obtaining the relief it would provide.

The second difference between the claims is that were Mr Granath to fail in full in Norway, the relief available there to Dr Wright by way of counterclaim would not be co-extensive with that available in a successful English law claim. It would not include a s.12 statement; and it might not include an injunction. I say “might not” because it was in dispute as to whether that was so. Dr Wright sought to adduce expert evidence of Norwegian law before the Judge below, but permission was refused on the grounds that it came too late, with the result that there was no relevant evidence of Norwegian law or practice before the Court. Mr Tomlinson asserted that an injunction must be available in Norway as an effective remedy guaranteed by the EU Charter, but later confirmed that Norway was not a signatory to the Charter and not bound by it. He submitted in the alternative that such relief would be available as part of Dr Wright’s article 8 rights under the European Convention on Human Rights, but that is not self-evident to me and the point was not explored in argument. I shall assume for the purposes of my analysis that an injunction is not available in Norway because for the reasons explained below I do not regard any such unavailability as precluding the application of article 27.

At 51 ff, Popplewell J’s important take-aways from Gubisch, are that  when considering objet, the search is not for complete identity, but for identity on a question “which lies at the heart of” the two actions. Same does not mean same. The two claims need not be “entirely identical” (at 55). And at 56 that there can be the necessary identity of cause without complete identity of legal issues in the two sets of proceedings. Here too same does not mean same.

Further precedent is considered extensively (much of it discussed on the blog) leading to summary of the principles at 90 and application in fact at 93 ff: Popplewell J would have held that the claims have the same cause and the same objet and that A27 Lugano requires the EN claim to be dismissed.

At 99 ff he dismisses the argument,  which was encouraged (wrongly in my view, as readers know) by Vedanta and EuroEco, that the application of A27 to Mozaic claims as here, be an abuse of EU law. There is no authority to suggest that A27 is inapplicable to defamation claims, and no sound reason for restricting its applicability, and on this Singh LJ and Moylan LJ agree.

Of note is that Popplewell LJ is spot on at 101 where he says

in any tort claim in which article 5(3) confers a choice of jurisdiction on the claimant for a global claim, the choice is equally conferred on a defendant by way of an NDR claim; in each case the option is circumscribed by the simple and automatic mechanism (per Gantner paragraph 30) in article 27 of who starts first. That is not an abuse of the regime established by the Convention, but rather its implementation.

Singh LJ and Moylan LJ allowed the appeal, however: Moylan LJ for the majority summarises at 160 ff, largely on the basis of the same authority as that discussed by Popplewell (with The Alexandros at the core). At 168:

Although I agree with Popplewell LJ when he says, at paragraph 81, that irreconcilability may be a helpful tool in evaluating whether the article 27 test is met, the potential for conflicting decisions will not determine whether the causes of action are the same.

I should like to refer to the litmus test proposed by Adrian Briggs and applied eg in Awendale: whether a decision in one set of proceedings would have been a conclusive answer in the other. If it would, then there is identity of cause of action.

The appeal is allowed, the case may continue in E&W – clearly irreconcilability at the recognition stage might still be an issue.

Should the UK be successful in its Lugano accession attempt, this case will be crucial authority post The Alexandros. In the alternative, it will be among the last echoes of Lugano in the E&W courts.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.1.

Lis alibi pendens, Lugano, defamation claims
Held: A27 does not apply because the proceedings in Norway and the proceedings in England do not involve the same cause of action. https://t.co/1pijVLyvib

— Geert Van Calster (@GAVClaw) January 15, 2021

The Public Institution for Social Security v Al Rajaan & Ors [2020] EWHC 2979 (Comm) engages in lengthy discussion anchor jurisdiction (A6) and choice of court (A23) under the Lugano Convention which of course, albeit with some important mutatis mutandis, echoes Brussels I and Brussels Ia.

Henshaw J summarises the key issues at 74:

i)                    whether the exclusive jurisdiction clauses (‘EJCs’) relied on were agreed between the parties and incorporated into their respective contracts, applying;

a)                  the formal validity requirements set out in Lugano Convention Article 23/Recast Brussels Regulation Article 25, and

b)                 if relevant, the laws governing the contracts i.e. Swiss or Luxembourg law;

ii)                  if so, whether the EJCs satisfy the requirements for material validity under Lugano Convention Article 23/Recast Brussels Regulation Article 25;

iii)                if so, how the EJCs are to be interpreted under their respective governing laws;

iv)                whether, and if so to what extent, the EJCs apply to claims against the applicants;

v)                  if and to the extent that the EJCs apply to only some claims against particular applicants, or apply to some but not all of the applicants, whether this court has jurisdiction over the remainder of the claims pursuant to Lugano Convention Article 6(1)/Recast Brussels Regulation Article 8(1); and

vi)                whether the court should decline jurisdiction over the claims against Pictet Asia and Pictet Bahamas (seeing as they are neither EU or Lugano States domiciled) on forum non conveniens grounds.

The judgment is lengthy. These are my highlights:

• At 107 following review of CJEU authority including Refcomp and Hoszig, the finding that the issue of validity of choice of court by incorporation are to be addressed solely by reference to the requirements of what is now A25 BIa and the corresponding provision in Lugano Convention Article 23. This requires real consent which is discussed with reference ia to Profit Investment Sim at 109 ff.
• At 127 ff Henshaw J discusses the issue obiter under Swiss cq Luxembourg law as putative leges contracti for choice of court. At 142 the judge concludes that under Swiss law, as under EU law, it is sufficient, in order to incorporate a jurisdiction agreement into the parties’ contract, that the parties have made a written agreement which incorporates by reference general terms including a jurisdiction clause. Ditto with less discussion under Luxembourg law, at 148.
• At 187 ff: the issue of material validity under EU law. This discussion kicks off with a review of what one of the parties calls the ‘proximity requirement’: per C-214/89 Powell Duffryn (CDC, too, is discussed), the fact that choice of court (only) extends to a ‘particular legal relationship’ (reference here is also made to Etihad, at the time of the judgment this had not yet benefitted from the Court of Appeal‘s judgment). At 201 ff Justice Henshaw takes a broad view:

In principle I would agree that if a jurisdiction clause is not clear, then it may be restrictively construed, consistently with the policy expressed in the relevant EU case law of promoting certainty and avoiding parties being taken by surprise.  On the other hand, I see no reason why parties cannot make a jurisdiction clause in deliberately wide-ranging terms which covers many, or indeed all, of their present and future contractual relationships.  I do not read the Opinion of the Advocate General in Refcomp as indicating the contrary.  Refcomp was essentially concerned with whether a jurisdiction clause could be relied on against a sub-purchaser of goods, and it is notable that the CoJ referred in its judgment to “the principle of freedom of choice on which Article 23(1) is based” (§ 40).  Nor do I read Powell Duffryn as restricting the parties’ ability to choose the scope of the particular legal relationships to which a jurisdiction clause is to apply.

• Whether the claims at issue meet the ‘proximity’ requirements is then discussed at length, under EU law and again, obiter, under Swiss and Luxembourg law, largely leading to a conclusion of lack of jurisdiction in England and Wales for many of the claims.
• Anchor jurisdiction is discussed for some of the claims at 403 ff, leading to a classic discussion of the (CJEU Kalfelis introduced) close connection requirement, and at 418 support for the fragile Court of Appeal finding in Privatbank, that that the word “expedient” in the context of the lis alibi pendens provision in Lugano Convention Article 28 must mean “desirable” as opposed to merely practicable or possible. At 427 the issue of fragmentation of proceedings is discussed: what should the court do where a claimant is required to sue a defendant in an overseas jurisdiction under A23 Lugano in relation to some claims, but seeks to pursue in this jurisdiction (a) connected claims against the same defendant, or (b) connected claims against another defendant, in reliance on A6? Henshaw J concludes the E&W courts should not entertain the accessory claims.
• Forum non is discussed at 480 ff, with the final conclusion being that E&W does not have jurisdiction for any of the claims.

I fully expect there is scope for appeal.

Those criticising the intensity of jurisdiction squabbles will find ammunition in this 497 para judgment.

Geert.

EU Private International Law, 3rd ed. 2021, big chunks of Chapter 2.

Successful jurisdictional challenge engaging both anchor and choice of court jurisdiction under Lugano.
A lengthy judgment which I shall certainly post on soon on the blog. https://t.co/9r3a7zlyxi

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

TRW Ltd v Panasonic Industry Europe GmbH & Anor [2021] EWHC 19 (TCC)  adds to the slowly developing case-law on Article 34 Brussels Ia’s forum non conveniens light, on which I have reported at each occasion the Article to my knowledge has been applied (most recently in Ness Global Services).

The defendant Panasonic companies are based in Germany. Panasonic’s Group headquarters are in Japan. TRW is the English subsidiary, based in Solihull, of a German group of companies, ZF Group. The defendants say the parties agreed to German law and exclusive jurisdiction of the Hamburg court over any claim by TRW arising from supply of the resistors. TRW says the parties agreed to English law and jurisdiction.

There are related proceedings in Michigan, with judgment expected in about April 2021.

Kerr J decides at 55 ff here was valid A25 choice of court and hence jurisdiction for the courts at Hamburg, following the usual discussion on whether and if so which choice of court has been agreed in to and fro messages, purchase orders, invoices, references to general terms and conditions and the like. The kind of housekeeping complications which I discuss ia here.

Then follows obiter the Article 34 discussion. Parties agree that if jurisdiction under A25 BIa is established by neither party, TRW was at liberty to sue in England as the place of delivery of the goods, under A7(1) BIa; and that for A34 purposes there is a related lis alibi pendens in Michigan. The discussion turned on whether the word “expedient” in A34(1)(a) bears the meaning “desirable, even if not practicable” or “both practicable and desirable”, given the inconsistent case-law in JSC Commercial Privatbank v. Kolomoisky, SCOR v Barclays, Municipio de Mariana,  Federal Republic of Nigeria v. Royal Dutch Shell plc. and of course  EuroEco.

At 94 Kerr J seems to side with Kolomoisky and with not reading EuroEco as a rejection of same, however he does not take definitive sides or does not attempt to reconcile the judgments. At 95 he says he would have not exercised his discretion for a stay, for the reasons earlier listed by counsel for claimants: these were (at 92-93)

Mr Caplan strongly opposed any stay. He submitted that, assuming I have any discretion to grant a stay (contrary to his reserved position), I should not exercise it. The risk of irreconcilable judgments could not be eliminated, he argued. The Michigan case would shortly produce a judgment binding on neither party to the present claim and, probably, applying Michigan law.

There was no scope for issue estoppel or abuse of process because the parties were different and the law could be different. Neither party in this case had opted for Michigan as the chosen forum and Michigan law as the choice of law. If the outcome of the Michigan litigation helped to promote settlement of the present claim, that could happen anyway, without a stay, since this claim is still at an early stage; the first case management conference has yet to take place.

At 98 Kerr J summarises

I would refuse a stay. The first condition in article 34(1)(a) – the expediency condition – may well be met, subject to clarification of the test emerging from the case law. The second condition is met. The third is not. I am far from satisfied that a stay is necessary for the proper administration of justice.

Kerr J concludes at 99

defendants have undertaken to submit to the jurisdiction of the Hamburg court, subject to seeking a stay of proceedings in Hamburg to await the outcome of the Michigan proceedings.

The Hamburg court is likely to see A34 arguments return, lest of course the Michigan proceedings will be concluded, in which case res judicata, recognition, and irreconcilability of judgment might be a core concern.

We have fairly little, if growing (*makes a note to now really really finish that paper*) authority to work with on A34. All bits help.

Geert.

European Private International, 3rd ed. 2021, Heading 2.2.15.3.2, para 2.539 ff

Jurisdiction dismissed on the basis of A25 BIa choice of court. A7 and A34 forum non conveniens light considered obiter (A34 stay dismissed).
Hamburg court is likely to have to entertain the A34 arguments. https://t.co/dwAbpXLGun

— Geert Van Calster (@GAVClaw) January 8, 2021

Just before Christmas the Court of Appeal dismissed the appeal in Etihad Airways PJSC v Flother [2020] EWCA Civ 1707. I discussed the High Court judgment here – the only properly discussed issue under appeal (the A25 discussion on the court being ‘seized’ as I noted was not entirely acte clair, either, yet is dealt with in 3 short paras at 89-91 ) is whether Brussels Ia’s Article 31(2) anti-torpedo mechanism applies to so-called asymmetric choice of court.

The High Court focused on not treating such clauses as a whole but rather on the parties’ individual obligations, in terms of jurisdiction, vis-a-vis the specific claim brought. That effectively meant it sidestepped having to rule on whether A31(2) applies to asymmetric choice of court.

Henderson LJ first of all (at 52, following discussion of the Article’s genesis as an antidote to CJEU Gasser) holds that A31(2) (ia because of the use of ‘without prejudice’ to A31(2) in A29) is not to be construed narrowly as being an exception to A29 and (at 68, again following discussion of the authorities) that the guiding rule for the application  of A31(2) must be party autonomy. At 73 he points out that the fundamental difficulty with the opposite conclusion is that on a narrow construction of Article 31(2), the job of rendering the torpedo harmless, was left only half done.  That may be so – however I am still not convinced. It might not have reached the judgment however I think more analysis (including linguistically) could  have been of the wording of ‘exclusive’ and ‘the proceedings’, for instance. Given BIa’s DNA I do not think it is the Member States courts’ place to finish the job if clear statutory language has left it hanging. A31(2) most certainly is not the only place in BIa where intentions expressed in the travaux are not completely reflected in the final law’s provisions.

At 82 ff the discussion, equally obiter as at the High Court, turns to the Hague Convention, which has of course increased in relevance following the no-deal Brexit for judicial co-operation. Justifiably Henderson LJ suggests obiter that there is no instruction at all to apply BIa and the Hague in conformity with each other, and that the Hague neither applies to non-exclusive choice of court nor has any A29 BIa-type lis pendens rule.

The request for a CJEU reference is dismissed, with at 94 reference in support to other Member States’ courts not having done so, either.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.10.5, para 2.343 in particular.

Appeal (dismissed) judgment re [2019] EWHC 3107 (Comm) which I review here https://t.co/REAZQBHVYr
Held ia acte clair that A31(2) BIA applies to asymmetric choice of court (on which no #CJEU authority exists). Refers to judgments in other MSs in support. https://t.co/qAzQeVBeyh

— Geert Van Calster (@GAVClaw) December 18, 2020

31 December 2020, the Seventh day of Christmas, delivered a hard Brexit in the area of judicial co-operation in civil matters – the core subject area of this blog. The moment the draft  Trade and Cooperation Agreement between the EU and the UK broke, a few of us poured over the text to find any deal on the issue – in vain. Peter Bert has reporting and analysis here and here; Ralf Michaels summarised here (he also links to our Twitter reactions, which readers might find of use) and Marta Requejo Isidro links further to official documents here.

The UK’s application to join Lugano is still out there (the EU have an effective veto), however as things stand it seems unlikely the EU will agree.

Andrew Dickinson summarises the many things on the UK’s to do list here. As was clear to many of us, Sylvester 2020 was never going to be an end to, rather the start of interesting times in the sector.

Geert.

EU Private International Law, 3rd ed. 2021, 1.36 ff.

The critical point in Monday’s judgment in  ING Bank N.V. & Anor v Banco Santander S.A. [2020] EWHC 3561 (Comm), an application for lack of jurisdiction, is whether this is a case about claims which a syndicate of eight lenders, including ING, had against Marme Inversiones 2007 S.L.U (“Marme”) under a loan agreement and related swap agreements (together “the Marme Agreements”) which were entered into between the lenders and Marme in September 2008, or whether it is about the effect of the ongoing liquidation of Marme in Spain on those claims. The Defendant Applicant says the latter, the Claimant Respondents say the former.

Of note is that on 2 January 2020, Sorlinda, whose agreements are at issue, merged into Santander. As a consequence of the merger, Santander assumed all of Sorlinda’s rights and liabilities.

At 4 Cockerill J summarises ‘the field of battle’ (at 4) as follows:

Santander contends that the court should refuse to exercise jurisdiction or order a stay because:

i) The claim falls within the EU Insolvency Regulation on insolvency proceedings (the “Insolvency Regulation”) and is excluded from the scope of the recast Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels Regulation”) pursuant to Article 1(2)(b) of the Brussels Regulation.

ii) Even if the Claim does not fall within the exception under Article 1(2)(b), ING cannot rely upon Article 25 of the Brussels Regulation.

iii) As a matter of Spanish law, ING has not established that Sorlinda became liable to ING for Marme’s liabilities.

iv) There are in any event grounds for the Court to refuse to exercise its jurisdiction and/or to order a stay.

ING contends that:

i) The bankruptcy/winding up exclusion in Article 1(2)(b) of the Brussels Regulation does not apply. The Claim is between two solvent entities in relation to contractual payment obligations under the Marme Agreements, and has no effect on Marme or any of its other creditors. The Claim does not derive directly from Marme’s winding up nor is it closely connected with that winding up.

ii) The question of whether or not Santander is bound by the Marme Agreements is a question of English law having appropriate regard to the effect of the relevant “assumption” of Marme’s obligations by Sorlinda (now Santander) as a matter of Spanish law.

iii) There is (at least) a good arguable case that as a consequence of the “assumption” Santander has a direct liability to ING under the Marme Agreements which are subject to the exclusive jurisdiction of the English courts.

iv) There are no grounds for the Court to refuse to exercise its jurisdiction and/or to order a stay. (GAVC underlining)

She holds that the jurisdictional challenge succeeds on the A25 BIa point, and also on the Insolvency Regulation point. The other grounds (assumption in Spanish Law and case management stay) would have failed.

Arguments in essence concern Brussels Ia’s insolvency exception. Per CJEU Gourdain, an action is related to bankruptcy only if it derives directly from the bankruptcy and is closely linked to proceedings for realising the assets or judicial supervision. Valach and F-Tex is CJEU authority also discussed.

In general, it is the closeness of the link between a court action and the insolvency proceedings that is decisive for the purposes of deciding whether the insolvency exclusion is applicable (CJEU German Graphics). In the absence of substantive EU insolvency law, the CJEU does not push an autonomous interpretation of the concept and defers largely to national insolvency law.

Whether the action is within the scope of BIa therefore requires examination of the national laws at issue, and that is done at length (featuring ia prof Virgós,  whose expert report clearly impressed Mrs Justice Cockerill).

Core of the decision on the insolvency exception, is at 197:

..the nature of the claim is one which is defined by something which took place in the liquidation, and the dispute effectively cannot be expressed without reference to the conduct of the liquidation. Although there is no challenge to the validity of the liquidator’s actions, the proceedings do necessarily require a consideration of the ambit of those powers and the ambit of actions done as part of those powers. The question of to what extent Sorlinda assumed the relevant liability can only be answered by looking at the deal which was struck in the context of the Liquidation Plan (governed by Spanish insolvency law) and the statutory insolvency framework.

The claim is not covered by BIa. English courts do not have jurisdiction over it.

Article 25 BIa is discussed first in fact, at 113 ff. However I would have thought (although Cockerill J suggest quite the reverse) that the A25 arguments must be obiter, with the insolvency exception findings logically coming first. This may be at issue when this judgment is appealed and /or referred to later.

On A25, ING must demonstrate a good arguable case either as to succession to choice of court, or as to specific consent. It was clear that the latter was not established hence discussion focused on novation /succession.  Authority discussed was of course Refcomp, Coreck Maritime, Tilly Russ etc.

This section of the judgment does not have the same clarity as the discussion on insolvency. Much reference is made to the relevance of either Spanish or English law on the issue of privity of choice of court, however this seems to be mostly done with reference to those laws being potential lex contractus (of the underlying contract). Even if the issue is not completely dealt with autonomously by EU law (which is arguable; and would have ended reference to any national laws), discussion of national law arguably should be to lex fori prorogati per the new rule in Brussels Ia (even a putative lex fori prorogati). At any rate, no succession or novation is established.

Something to clear out in my head over the end of year break.

This was most probably my last posting for the year.

Merry Christmas, everyone, and Guten Rutsch. Be safe, and remember this nice thought.

Geert.

European Private International Law, 3rd ed., 2021, Heading 2.2.3.1 (2.73 ff) and Heading 2.2.10.7 (2.355 ff).

Jurisdiction.
Bankruptcy/winding up (#insolvency) exclusion, A1(2)(b) BIa.
Whether it is triggered. Whether if it is not, A25 BIa applies. https://t.co/PbU6pCL9hM

— Geert Van Calster (@GAVClaw) December 22, 2020

In Owen v Galgey & Ors [2020] EWHC 3546 (QB), Linden J yesterday dealt with the application of Rome II’s common habitual residence exception to A4(1) lex loci damni rule, and with the general escape clause of A4(3).

These cases often involve tragic accidents and injuries and the sec conflict of laws analysis below in no way of course mean any disrespect to claimant and his loved ones.

Claimant is a British citizen who is domiciled and habitually resident in England. He brings a claim for damages for personal injury sustained by him as result of an accident in France (3 April 2018), when he fell into an empty swimming pool which was undergoing works at a villa in France, a holiday home owned by the First Defendant, whose wife is the Second Defendant. They are also British citizens who are domiciled and habitually resident in England, Third Defendant is a company domiciled in France, and the public liability insurer of the First and Second Defendants. Fourth Defendant is a contractor which was carrying out renovation works on the swimming pool at the time of the accident. Fifth Defendant is the public liability insurer of the Fourth Defendant. Fourth and Fifth Defendants are both companies which are domiciled in France.

That French law applies to the claims against Fourth and Fifth Defendant is undisputed. There is however a dispute as to the applicable law in relation to his claims against the First to Third Defendants. These Defendants contend that, by operation of A4(2) Rome II, English law applies because the Claimant and the First and Second Defendants are habitually resident in England. Claimant contends that French law applies by operation of A4(3) Rome II: the ‘manifestly more closely connected’ rule.

Textual argument suggest that on the basis of the text of Recital 18 and A4(2) itself, A4(2) only applies to two party cases and does not apply in multi-party cases. Linden J at 29 notes that this would also correspond with the narrow reading required of A4(2). However he follows of course the authority of Marshall, which I approved of at the time (if only because, if multi-party claims were outside the scope of A42(), it would suffice for either claimant artificially to add a defendant to the claim, or for a defendant similarly to manoeuvre in a second defendant, for A4(2) to become inoperable). A4(2) also applies if more than one party is involved.

On A4(3), then, Marshall, too, is authority and Winrow v Hemphill another rare case that seriously engaged with the issue. In the latter case, Slade J held that the balance was in favour of not applying the escape clause, particularly in view of the period of time of habitual residence in Germany, and subsequent continuing residence in that country (inter alia for follow-up treatment). In the former, Dingemans J did reach a conclusion of applying A4(3) hence lex causae being French law on the grounds I discuss in my post on the case. Here, Linden J discusses the various factors at issue in Winrow v Hemphill and in Marhsall and reaches a conclusion of French law:

In my view it is clear that the tort/delict in the present case is manifestly more closely connected with France. France is where the centre of gravity of the situation is located and the preponderance of factors clearly points to this conclusion. This conclusion also accords with the legitimate expectations of the parties.

The reasons for that are essentially listed at (75  ff)

The tort/delict occurred in France, as I have noted. This is also where the injury or direct damage occurred. The dispute centres on a property in France and it concerns structural features of that property and how the First, Second and Fourth Defendants dealt with works on a swimming pool there. Although these defendants deny that there was fault on the part of any of them, the First and Second Defendants say that the Fourth Defendant was responsible if the pool presented a danger and the Fourth Defendant says that they were. The allegations of contributory negligence/fault also centre on the Claimant’s conduct whilst at the Villa in France.

The First and Second Defendants also had a significant and long-standing connection to France, the accident occurred on their property and the works were carried out by a French company pursuant to a contract with them which is governed by French law. Their insurer, the Third Defendant, is a French company and they are insured under a contract which is governed by French law. The contract was to insure a property in France albeit one which, I accept, applied to claims under English and French law. It is also common ground that the claim against the Fourth Defendant, and therefore against the Fifth Defendant, also a French company, is entirely governed by French law and will require the court to decide whether the Fourth Defendant or, at least by implication, the First and Second Defendants were “custodians” of the property for the purposes of French law.

Whilst it cannot be said at this stage that, by analogy with Marshall, the accident was entirely caused by the Fourth Defendant in particular, the situation in relation to the swimming pool which is said to have been the cause of the accident was firmly rooted in France and it resulted from works which were being carried out by the Fourth Defendant as a result of it being contracted to do so by the First and Second Defendants. The liability of the First and Second Defendants, if any, will be affected by how they dealt with that situation, including by evidence about their dealings with the Fourth Defendant. That situation had no significant connections with England other than the nationality and habitual place of residence of the First and Second Defendants.

The core counterarguments which were dismissed, are (78 ff)

I take the point that the Claimant and the First and Second Defendants were habitually resident in England at the relevant time, that there was a pre-existing relationship between them, and that the Claimant and his family came to be at the Villa as a result of an agreement which was made in England. But, applying an objective test (see Chitty on Contract Volume 1 at paragraph 2-171 in particular), I am not satisfied that this agreement, on the information available at this stage, was contractual in nature. Part of the difficulty in relation to this aspect of the First to Third Defendants’ argument is that there is very little information before the court as to what precisely happened. Looking at the agreed facts in the context of the statements of case and the other materials which I have been shown, however, it appears that the agreement resulted from a casual conversation between social acquaintances in the context of mutual favours having been done in the past. It was informal in nature and it appears that the Claimant offered to do the work as a favour and the First and Second Defendant invited him and his family to the Villa to return that favour.

If I had found that there was a contract, I would also likely have found that it was governed by French law. Although it was entered into in England between British parties, it related entirely to a property in France. Performance of the contract on both sides could only be effected at a particular property in France and was very strongly connected to France in that it involved work on a villa there and a family holiday there. This and the other features of the case would have led me to conclude that [A4(3) Rome I] indicated that there was a manifestly closer connection between the contract and France, although I acknowledge that there is a degree of circularity in this approach. ….

Mr Doherty understandably emphasised that, even if there was no contract with the Claimant, the relationship and the agreement which led to the Claimant and his family being in France were based and made in England. I was also initially attracted by his argument that in effect the Claimant’s complaint is about the way in which the First and Second Defendants fulfilled their side of that agreement. But that is not the claim which he makes, and, in any event, their performance of the agreement was in the form of allowing the Claimant and his family to occupy a villa in France. Nor is this a case in which, for example, the injury occurred whilst the Claimant was carrying out work on the Villa and potential tortious and contractual duties (if the relationship was contractual) therefore arose directly out of the relationship between the parties.

To my mind the tort/delict in this case is much more closely connected to the state of the swimming pool which, as I have said, was part of a property in France and resulted from the French law contract between the First and Second Defendants and the Fourth Defendant. If any of the Defendants is liable, that liability will be closely connected with this contract. This point, taken in combination with the other points to which I have referred, in my view clearly outweighs the existence of any contract with the Claimant relating to the Villa, even if I had found there to be a contractual relationship and even if it was governed by English law.

Similarly, although I have taken into account the nationality and habitual place of residence of the Claimant and the First and Second Defendants, these do not seem to me to alter the conclusion to which I have come. I have also taken into account the fact that the consequences of the accident have to a significant extent been suffered by the Claimant whilst he was in England, but in my view the other factors to which I have referred clearly outweigh this consideration.

Of particular note for future direction on Rome II, is the discussion on existing pre-contractual relations.

This is of course a fact-specific and to a certain extent, discretionary assessment. I also agree there is no limit to the kinds and amount of factors which a judge may take into account when applying the A4(3) exception.

I am minded to disagree with the conclusion reached here, however.  The judge’s assessment is one that echoes a proper law of the tort approach, starting from scratch. But that is not what A4(3) is about: it does not start from scratch; it starts from the clearly stated rule of A4(2), which requires a lot of heavy lifting to be dislodged. The arguments pro upholding the A4(2) presumption listed in 78ff in my view give the finding for sustaining its consequence and hence English law as lex causae, strong foundations indeed which I believe, respectfully of course, the judge did not show enough deference to.

Geert.

European Private International Law, 3rd ed. 2021, Heading 4.5.

Article 4(2) and (3) Rome II Regulation, applicable law for tort. https://t.co/cYGtr7m0jx

— Geert Van Calster (@GAVClaw) December 21, 2020

When I flagged the Dutch SC reference to the CJEU in C‑709/19 Vereniging van Effectenbezitters, asking for clarification of the Universal Music case-law on purely economic damage, I signalled the specificities of this case:  the case concerns a class action, not that of an individual shareholder; no prospectus was specifically addressed at Dutch investors, who instead feel they received incomplete and misleading information that was made public through press releases, websites and public statements by directors; finally the Dutch Supreme Court questions the CJEU on an e-Date accessibility type jurisdictional basis.

BP plc, defendant, is domiciled in the UK.

Sanchez-Bordona AG Opined last Thursday (apologies I did not make the Twitter-promised Friday review). He kicks off  his Opinion with calling into question the very premise of the Universal Music case-law: at 24

the fact that the applicant’s account is located in that Member State is a relevant consideration in any non-contractual action for damage suffered by investments as a result of defective information, even when supplemented by other factors. While noting that the Court of Justice has inclined towards that view, in my opinion it is an open question.

That is a bold proposition not borne out by either CJEU or national case-law. Arguably better formulated is the position at 28 that the interest of the location of the bank account ‘should not be overstated’.

At 32 ff the AG repeats his call (joining a list of AG’s) to abandon the Bier Handlungsort Erfolgort distinction which he also expressed in his Opinion in Volkswagen. He emphasises again that in cases like these, the procedural decision on jurisdiction requires the judge too intensive an engagement with the substance of the case, consequently (at 36) ‘the very nature of the criterion may well create uncertainty among legal practitioners and encourage procedural delaying tactics, as well as divergent interpretations in Member States and further requests to the Court of Justice for preliminary rulings.’

At 37 (and with reference to national case-law) follows a repeat of the call to ‘ruling out the place where the investment account is located’. However the AG himself then acknowledges that call is likely to fall on deaf CJEU ears (at 39):

having regard to the wording of the questions referred, I shall answer them in accordance with their own premisses, that is to say, in the light of the existing case-law of the Court of Justice

hence he continues the Opinion taking Universal Music and its descendants into account:

at 46: ‘the fact that the financial damage took place in an investment account located in the Netherlands cannot be accepted as a ‘sufficient connecting factor for the international jurisdiction’ of the courts of that State.’ – I agree.

Again with reference to his Opinion in Volkswagen, and using the initial justification of the CJEU in Bier to put forward locus damni, the AG at 49-50 reiterates that

the ‘specific circumstances’ relevant to attributing jurisdiction are those which demonstrate the proximity between the action and the jurisdiction, and the foreseeability of that jurisdiction, .. Those circumstances must include: factors that facilitate the sound administration of justice and the smooth operation of proceedings; and factors that may have helped the parties to determine where they should institute proceedings or where they might be sued as a result of their actions.

He then rejects, for reasons succinctly explained in the Opinion, as being relevant: BP’s settlement with other shareholders; the status as consumer of some of the shareholders; BP’s information about its shares.

He concludes on this point at 60 ff that there simply is not a locus damni that meets with A7(2) Brussels Ia’s conditions. He refers as he did in Volkswagen pro inspiratio to the CJEU’s similar holding viz A7(1) forum contractus in C-56/00 Besix:  that we are dealing with an obligation which ‘is not capable of being identified with a specific place or linked to a court which would be particularly suited to hear and determine the dispute relating to that obligation’.

Finally the AG deals with the question whether the nature of the action brought by VEB (the fact that it is a collective action) and the fact that it is purely an action for a declaratory judgment, should have an impact. The referring court fears that extending the CJEU rule of CDC, that the transfer of claims by each original creditor to the applicant does not affect the determination of the court having jurisdiction under Article 7(2), would make collective action ineffective.

The AG points out first of all that following ia Folien Fischer, the courts of the Member State in which either the causal event took place or the harm occurred or may occur may lawfully accept jurisdiction by virtue of A7(2) in actions in which specific damages have not (yet) been sought.

He then suggests at 79 that he sees ‘no difficulty in applying [A7(2)] to declaratory actions such as that brought by VEB, in advance of subsequent actions for damages which may be brought only by the individual injured parties, whose identity and residence are unknown at the time of the (first) action.’ Here I do not quite follow. The questions asked by VEB are not merely provisional in an A35 sense (indeed that Article is not discussed). VEB are asking the court to hold

that the courts in the Netherlands have international jurisdiction to hear the claims for compensation brought by the BP shareholders; that the rechtbank Amsterdam (District Court, Amsterdam) has territorial jurisdiction to hear those claims; that BP acted unlawfully towards its shareholders inasmuch as it made incorrect, incomplete and misleading statements about: (i) its safety and maintenance programmes prior to the oil spill on 20 April 2010; or (ii) the extent of the oil spill; or (iii) the role and responsibility of BP in regard to the oil spill; that, had it not been for the unlawful conduct on the part of BP, the purchase or sale of BP shares by the BP shareholders would have been effected at a more favourable market price, or not at all; that there is a conditio sine qua non link between BP’s unlawful conduct and the loss suffered by the BP shareholders due to the fall in the share price in the period between 16 January 2007 and 25 June 2010.

Surely these kinds of questions can only be entertained by court that has A7(2) jurisdiction which, the AG had just opined, is highly unlikely (although the referring court will have the last word on that).  That he sees ‘no difficulty in applying [A7(2)] to declaratory actions such as that brought by VEB’ either then contradicts what he just advised (unlikely) or reinforces it cynically (as in ‘no difficulty in applying it, meaning there is no such jurisdiction’) – also perhaps unlikely. Am I missing something?

Finally at 95 the AG (not further discussing Qs 3 and 4) concurs with Bobek AG in Schrems: on the issue of assignment, it is not up to the CJEU to write the law.

Most relevant.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.459.

Among flurry of #CJEU documents on this Super Thursday is SÁNCHEZ-BORDONA AG's Opinion in Vereniging van Effectenbezitters: location, for jurisdictional purposes, of purely financial damage, application of the Universal Music criteriahttps://t.co/xUwiMNYZFA
I shall review 2mrw.

— Geert Van Calster (@GAVClaw) December 17, 2020

Ness Global Services Ltd v Perform Content Services Ltd [2020] EWHC 3394 (Comm)  engages Articles 33-34 of the Brussels Ia Regulation, its so-called forum non conveniens light regime. I reported on it before of course, most recently re Municipio de Mariana in which the judge arguably failed to engage with BIa properly (making A33-34 a carbon copy of abuse and /or forum non arguments in my view is noli sequi).

Perform and Ness are UK-registered companies with offices in London.  Perform are defendants in the UK action. Ness Global Services and its parent Ness Technologies Inc are defendants in parallel proceedings in New Jersey. Both sets of proceedings are based on the same facts and matters. These are said to constitute the basis for termination by both sides of a written agreement.

Ness argue application of A33-34 must be dismissed for there is non-exclusive choice of court in favour of England which, it argues, makes the A33-34 threshold very high. (The clause reads ‘”Governing Law and Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the Courts of England and Wales as regards any claim, dispute or matter arising under or in connection with this Agreement.”)

Houseman J introduces BIa’s scheme clearly and concisely, using the excellent Adrian Briggs’ suggestion of there being a hidden hierarchy in the Regulation – which in my Handbook I have also adopted (clearly with reference to prof Briggs) as the ‘jurisdictional matrix’. Houseman J at 39 notes that non-exclusive jurisdiction is hardly discussed in the Regulation. and concludes on that issue ‘If the internal hierarchy is “hidden” then is fair to say that the concept of non-exclusive prorogated jurisdiction is enigmatic and elusive. It is The Scarlet Pimpernel of the Regulation.’ Later non-EJA is used as shorthand for non-exclusive jurisdiction agreement.

At 62 after consideration of the reflexive application of exclusive jurisdictional rules, including choice of court, the text of A33-34, and recital 24, the judge considers that the recital

focusses upon connections with the ‘first seised’ Non-Member State, rather than the ‘second seised’ Member State which is applying Article 33 or Article 34. This is conspicuous notwithstanding the fact that the jurisdictional gateway language presupposes some connection between either the defendant (domicile) or the circumstances of the case (special jurisdiction) and the ‘second seised’ forum. Further, there is no obvious room in this wording for accommodating or giving effect to a Non-EJA in favour of the courts of the latter forum, and no warrant for affording it the significance that it would receive under English private international law principles, as noted below. In contrast, the second paragraph of the recital appears to contemplate the conferral of exclusive prorogated jurisdiction (albeit reflexively) in favour of the ‘first seised’ Non-Member State, as noted above.

At 80, Houseman J emphasises that in his view the internal hierarchy of the Regulation (the matrix) has no direct role to play in interpreting or applying the gateway language in A33-34. Those articles are themselves part of such hierarchy and are themselves a derogation from the basic rule of domiciliary jurisdiction. He then refers in some support to UCP v Nectrus (reference could also have been made to Citicorp) to hold at 95 that

where Article 25 operates to confer prorogated jurisdiction upon the courts of the ‘second seised’ Member State, whether exclusive or non-exclusive, Articles 33 and 34 are not applicable. In such a case it cannot be said that the court’s jurisdiction is “based upon” Article 4.

A suggestion at 96 that in such case A33-34 can apply reflexively is justifiably rejected.

At 109 application of A33-34 had they been engaged is declined obiter as being not in the interest of proper administration of justice. At 107 mere reference, neither approving nor disapproving was made ia to Municipio de Mariana which effectively places the Articles on a forum non footing.  At 112 it is held obiter

Without engaging in a full granular balancing exercise, given that this is a hypothetical inquiry in the present case, I am not persuaded that it is or would have been necessary for the proper administration of justice to stay these proceedings in favour of the NJ Proceedings. The parties bargained for or at any rate accepted the risk of jurisdictional fragmentation and multiplicity of proceedings by agreeing clause 20(f). That risk has manifested, largely through the tactical choice made by Perform to commence proceedings pre-emptively in New Jersey. The continuation of these proceedings, notwithstanding the existence of the NJ Proceedings, is a foreseeable consequence of the parties’ free bargain and a risk that Perform courted by suing first elsewhere.

An interesting addition to the scant A33-34 case-law, in an area this time of purely commercial litigation.

Geert.

European Private International Law, 3rd ed. 2021, 2.539 ff.

Application (dismissed) for a stay on the basis of Articles 33-34 Brussels Ia, 'forum non conveniens light'. https://t.co/gwl3B5y3hl

— Geert Van Calster (@GAVClaw) December 11, 2020

The CJEU held last week in C-774/19 AB and BB v Personal Exchange International Limited. I propose for the sake of our memories that we call it Personal Exchange International Limited or even PEIL. (No English version of the judgment available at the time of writing).

May an online poker playing contract, concluded remotely over the internet by an individual with a foreign operator of online games and subject to that operator’s general terms and conditions, also be classified as a contract concluded by a consumer for a purpose which can be regarded as being outside his trade or profession, where that individual has, for several years, lived on the income thus obtained or the winnings from playing poker, even though he has no formal registration for that type of activity and in any event does not offer that activity to third parties on the market as a paid service?

The case echoes Schrems, Petruchová and Reliantco and the CJEU refers to the two former extensively.

At 21 the referring court had signalled the linguistic difference in e.g. the Slovenian and the English version of Article 17 BIA (A15 in BI which is discussed in the judgment), where mention is made of elements over and above the  use of ‘professional’ in the other language version (e.g ‘trade and profession’ in the English version). The CJEU at 27 refers to the classic collective authentic force of the various language versions to dismiss paying too much attention to this difference.

With reference to Petruchová, the Court at 23 dismisses the relevance of whether the player’s winnings allow him to earn a living. Since the player does not beforehand know those winnings, the consumer title would become unpredictable which is of course a big no-no.

At 37 ff the intimate knowledge of the market is dismissed, too, with reference to Schrems: for this would make the title too dependent upon the subjective situation of the individual.

At 41 ff the Court does reiterate the dynamic interpretation of the title per Schrems (reminder: that has only so far been held in the direction of losing the protection one once has a consumer).

Finally, the frequency and length of play does not constitute a singularly relevant criterion either (at 46), even if they can be taken into account. However the Court confusingly (and unlike eg in  Salvoni) does here refer to substantive consumer law in which it has held (eg in C‑105/17 Kamenova) that these elements do play some role.

All in all a fairly standard re-emphasis of earlier case-law. The referring court is asked to do the remaining math itself.

Geert.

EU Private International Law, 3rd ed. 2021, 2.235 ff.

CJEU this morning in PEIL confirms dynamic interpretation of concept of 'consumer' within the meaning of Brussels Ia (as in Schrems).
Extent of knowledge of the market, by the individual, not as such determinanthttps://t.co/w9TfLmGWCj

— Geert Van Calster (@GAVClaw) December 10, 2020