There are in fact many differences between Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v MacKenzie [2018] NSWLEC 99 and the CJEU’s Palin Granit; and the regulatory context in NSW is quite different from the EU’s. My title therefore is a crowd pleaser rather than legally sound. Yet some of the issues are similar, hence justifying inclusion in the comparative environmental law /waste law binder (and a good teaser for the W-E).
Samantha Daly and Clare Collett have excellent as well as extensive analysis here and I am happy mainly to refer.
Defendants received materials from recycling depots operated by skip bin companies in Sydney. These materials were recovered fines which had been processed and recycled from building and demolition waste, for which there was no market for re-sale at the time (due to the high volumes of such material produced by the recycling industry). This material was trucked to the Premises by transporters from the recyclers and placed in mounds or stockpiles on the Premises.
Was there a stockpile of ‘waste’? Palin Granit considers similar issues in para 36 in particular.
Geert.
[2018] SGHCR 8 Ermgassen v Sixcap Financials to my knowledge is the first recognition and enforcement by any court under the 2005 Choice of Court Convention. Together with the 28 EU Member States (and the EU itself), Singapore, with Mexico, are the 30 States for which the Convention has entered into force.
In his decision for the High Court, Colin Seow AR recognises a High Court ex parte summary judgment, taking the process to the Hague motions: whether the issue is civil and commercial; whether choice of court was concluded in favour of the courts having issued the judgment; and pointing to the UK’s membership of the Convention and to counsel for the plaintiff having been heard at the London High Court hearing: this makes the judgment one on the merits, not just a judgment in absentia (of the defendant: a Singapore-domiciled company). Of note is Seow AR’s flexible approach to the requirement to produce certified copies of the judgment (at 23 ff).
Geert.
Advocate-General Bot opined on 4 July 2018 in the case of C-308/17 Leo Kuhn, domiciled at Vienna, who had purchased through an Austrian bank, Greek sovereign bonds. Pursuant to a forced exchanged /haircut carried out by Greece in March 2012, the bonds were replaced with new bonds with a lower nominal value. Mr Kuhn sued to have the initial borrowing terms enforced.
The Advocate-General is of course aware of the similarities with Fahnenbrock – in which he himself had also opined but was not followed by the Court. He first of all points out the similarities between the service Regulation and the Brussels I Recast (both e.g. limiting their scope of application to ‘civil and commercial’ matters), however also flags the specific recitals (in particular: recital 12) suggesting that in the context of the services Regulation the analysis needs to be done swiftly hence only cases which prima facie fall outside the scope of application (including where they manifestly (see the dictum of Fahnenbrock and para 50 of the AG’s Opinion in Kuhn) are not covered by that Regulation.
Coming next to the consideration of the application of ‘civil and commercial’, the facts of this case reflect very much the hybrid nature of much of sovereign debt litigation. In my view yes, the haircut took place within the wider institutional nature of Greece’s debt negotiations with the EU. Yet the ‘collective action clause’ (CAC) which was not part of the original terms and conditions (there was no CAC in the original lex causae, Greek law, but there is one in the newly applicable lex causae, English law: at 63 of the Opinion), was negotiated with the institutional holders of the bond and crammed down the minority holders like Mr Kuhn (at 66). The AG suggest that this does not impact on the qualification of the changes being ‘immediate and direct’, this being the formula employed by the Court in Fahnenbrock.
I am not so sure of the latter but it will be up to the CJEU to decide.
The Advocate General note bene subsequently ‘completes the analysis’ in case the CJEU disagrees with this view, and finds that if the issue is civil and commercial, it can be litigated under Article 7(1)’s rule on special jurisdiction for contractual obligations (the AG at para 88 ff distinguishes the case from C-375/13 Kolassa (in which the CJEU saw no contractual bond between the issuer of the bonds and the acquirer on the secondary market), the obligation at issue, he suggests, having to be performed in Greece. As for the latter element, the Advocate General does refer for the determination of the place of performance to the initially applicable law: Greek law, leaving the later lex causae, English law, undiscussed.
Whether the Court will follow the AG remains of course to be seen.
Geert.
I was at the Belgian Parliament yesterday for a hearing on the BIBC, following publication of the Government’s draft bill. For those of you who read Dutch, my notes are attached. We were limited to two pages of comments – the note is succinct.
An important change vis-a-vis the initial version (on which I commented here) is that the Court will now be subject to Belgian private international law (including primacy of EU instruments) for choice of law, rather than being able to pick the most appropriate law (arbitration panel style). That brings the court firmly within Brussels I. Also note my view and references on the Court being able to refer to the CJEU for preliminary review.
Geert.
In C-1/17 Petronas Lubricants, the CJEU held end of June, entirely justifiably, that assigned counterclaims may be brought by the employer in the forum chosen by the employee under (now) Article 20 ff Brussels I Recast to bring his claim. In the case at issue, the employer had only obtained the claim by assignment, after the employee had initiated proceedings.
The Court pointed to the rationale underlying Article 22(1), which mirrors all other counterclaim anchor provisions in the Regulation: the sound administration of justice. That the counterclaim is merely assigned, is irrelevant: at 28: ‘…provided that the choice by the employee of the court having jurisdiction to examine his application is respected, the objective of favouring that employee is achieved and there is no reason to limit the possibility of examining that claim together with a counter-claim within the meaning of Article 20(2)’ (Brussels I, GAVC).
Evidently the counterclaim does have to meet the criteria recently re-emphasised in Kostanjevec.
Geert.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.3.
Is it compatible with Article 38(1) Brussels I (and the equivalent provisions in the Brussels I Recast) to apply a time limit which is laid down in the law of the State in which enforcement is sought, and on the basis of which an instrument may no longer be enforced after the expiry of a particular period, also to a functionally comparable instrument issued in another Member State and recognised and declared enforceable in the State in which enforcement is sought?
A preservation order had been obtained in Italy. It had been recognised in Germany. However applicant then failed to have it enforced within a time-limit prescribed by the lex fori executionis.
On 20 June Szpunar AG in C‑379/17 Società Immobiliare Al Bosco opined (Opinion not yet available in English) that the lex fori executionis’ time limits must not obstruct enforcement. Moreover, he suggests that his view is not impacted by the changes to exequatur in the Brussels I Recast, and that his Opinion, based on the effet utile of the Brussels regime, has appeal even outside the case at issue (in which Italian law has a similar proviso).
A small but significant step in the harmonisation process of European civil procedure.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16
In [2018] EWHC 1670 (Comm) BNP Paribas v TRM, the High Court essentially had to hold on its jurisdiction in the face of competing choice of court clauses in an ISDA MAster Agreement (the courts of England; and lex contractus English law) and the attached Financing Agreement (the courts of Turin).
Knowles J dissected the agreements in relation to the claims made by the parties (again highlighting the relevance of formulation of claims): at 27: where, as here, there is more than one contract and the contracts contain jurisdiction clauses in favour of the courts of different countries, the court is faced with a question of construction or interpretation. And at 54: ‘The parties agreed jurisdiction in favour of the English Court under the Master Agreement. The fact that TRM further committed itself in the Financing Agreement to comply with its commitments under the Master Agreement does not mean that commitments under the Master Agreement and swap transaction are any the less subject to the jurisdiction agreed under the Master Agreement, or any the less able to be adjudicated upon and enforced by proceedings in England.’
Application to reject jurisdiction of the English Courts dismissed.
Geert.
The Court of Appeal in [2018] EWCA Civ 1532 has confirmed the High Court’s approach in [2017] EWHC 371 (QB) AAA et al v Unilever and Unilever Tea Kenya ltd, holding that there is no good arguable case (the civil law notion of fumus boni iuris comes closes, as Bobek AG notes in Feniks) against Unilever, which could then be used to anchor the case in the English jurisdiction.
Pro memoria: jurisdiction against Unilever is clear, following Article 4 Brussels I Recast. That Regulation’s anchor mechanism however is not engaged for Article 7(1) does not apply against non-EU based defendants. It is residual English private international law that governs this issue.
Appellants appeal in relation to the High Court’s ruling that neither Unilever nor UTKL (the Kenyan subsidiary) owed the appellants a duty of care. Unilever has put in a respondent’s notice to argue that the judge should have found that there was no duty of care owed by Unilever on the additional ground that, contrary to her view, there was no proximity between Unilever and the appellants in respect of the damage suffered by them, according to the guidance in Chandler v Cape Plc. Unilever and UTKL also sought to challenge that part of the judgment in which the judge held that, if viable claims in tort existed against Unilever (as anchor defendant) and UTKL, England is the appropriate place for trial of those claims. Unilever also cross-appealed in relation to a previous case management decision by the judge, by which she declined an application by Unilever that the claim against it should be stayed on case management grounds, until after a trial had taken place in Kenya of the appellants claims against UTKL.
The legal analysis by Sales LJ takes a mere five paragraphs (para 35 onwards). Most of the judgment is taken up by an (equally succinct) overview of risk management policies within the group.
At 35 Sales LJ notes ‘Having set out the relevant factual background in relation to the proximity issue (i.e. whether the appellants have any properly arguable case against Unilever in the light of Chandler v Cape Plc and related authorities), the legal analysis can proceed much more shortly. It is common ground that principles of English law govern this part of the case.‘
– the ‘common ground’ presumably being lex loci incorporationis.
This is an interesting part of the judgment for I find it by no means certain that English law should govern this part of the case. In one of my chapters for professor Vinuales’ en Dr Lees’ forthcoming OUP book on comparative environmental law, I expand on that point.
The long and the short of the argument is that Unilever did not intervene in the affairs of its subsidiary in a more intensive way than a third party would have done. Reference at 37 is made to the contrasting examples given by Sir Geoffrey Vos in Okpabi, ‘One can imagine … circumstances where the necessary proximity could be established, even absent the kind of specific facts that existed in Vedanta … Such a case might include the situation, for example, where a parent required its subsidiaries or franchisees to manufacture or fabricate a product in a particular way, and actively enforced that requirement, which turned out to be harmful to health. One might suggest a food product that injured many, but was created according to a prescriptive recipe provided by the parent. …’
and, at 38, to the raison d’être of mother /daughter structures,
“… it would be surprising if a parent company were to go to the trouble of establishing a network of overseas subsidiaries with their own management structures it if intended itself to assume responsibility for the operations of each of those subsidiaries. The corporate structure itself tends to militate against the requisite proximity …
– subject evidently to proof of the opposite in the facts at issue (a test seemingly not met here).
Geert.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.
Is the actio pauliana by a Polish company against a Spanish company, which had bought immovable property from the former’s contracting party, one relating to ‘contract’ within the meaning of Article 7(1) Brussels I Recast?
Bobek AG Opined in C-337/17 Feniks v Azteca on 21 June. His Opinion features among others a legal history class on the action pauliana, and eventually a justifiable conclusion: the action is not one in contract. In C-115/88 Reichert I the Court held that the French civil law actio pauliana does not fall within exclusive jurisdiction concerning rights in rem in immovable property (Article 24(1). Soon afterwards, the Court added in C-261/90 Reichert II that the same actio pauliana was neither a provisional measure nor an action bringing proceedings concerned with the enforcement of a judgment. It was also not a matter relating to tort, delict or quasi-delict.
That left only the potential for a forum contractus to be decided.
The AG reviews a number of arguments to come to his decision. One of those I find particularly convincing: at 62: assuming that the applicability of the head of jurisdiction for matters relating to a contract were to be contemplated, the question that immediately arises is which of the two contracts potentially involved should be taken as relevant? To which of the two contracts would an actio pauliana in fact relate? Among others (at 69-70) Sharpston AG’s Opinion in Ergo is discussed in this respect and the AG in my view is right when he dismisses the contractual relations at issue as an anchor point.
At 69 the AG also adds a knock-out point which could logically have come at the very beginning of the Opinion:
‘it should also be added and underlined that both approaches outlined above fail to satisfy the requirement of ‘obligation freely assumed by one party towards another’, [the AG refers to Handte, GAVC] that is by the Defendant towards the Applicant. Even if the case-law of this Court does not require that there is identity between the parties to the proceeding and to the respective contract, it appears difficult to consider that the mere filing of an actio pauliana creates a substantive-law relationship between the Applicant and the Defendant resulting from, for example, some kind of legal subrogation founded by an act of COLISEUM (as the Applicant’s initial debtor).’
Readers further may want to take note of para 92: the AG’s view to treat the power of recitals with caution. The AG ends at 97-98 with a robust defence of the Brussels regime, with specific reference to the common law (footnotes omitted):
‘What has to be sought is a principled answer that applies largely independently of the factual elements in an individual case. While fully acknowledging and commending the attractive flexibility of rules such as forum(non) conveniens that allow for derogation in the light of the facts of a specific case, the fact remains that the structure and the logic of the Brussels Convention and Regulations is indeed built on different premises. What is understandably needed in a diverse legal space composed of 28 legal orders are ex ante reasonably foreseeable, and thus perhaps somewhat inflexible rules at times, and less of an ex post facto explanation (mostly as to why one declared oneself competent) heavily dependent on a range of factual elements.
All in all, in the current state of EU law, actio pauliana seems to be one of the rare examples that only allows for the applicability of the general rule and an equally rare confirmation of the fact that ‘… there is no obvious foundation for the idea that there should always or even often be an alternative to the courts of the defendant’s domicile’. ‘
A solid opinion with extra reading for the summer season (on the Pauliana).
Geert.
In [2018] EWHC 1343 (Comm) Nori Holdings v Otkritie Males J follows exactly the same line as mine in commenting on West Tankers – specifically the bodged attempt in Brussels I Recast to accommodate the concerns over West Tankers’ sailing the Brussels I ship way too far into arbitral shores.
For my general discussion of the issues see here. A timeline:
I agree.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2.2.2.10.2.
Wahl AG advised late November in C-426/16 – see my post on his Opinion at the time and my previous posts on the issue. A European Regulation (1099/2009) provides for an unclear, and conditional, exemption from a requirement of stunning animals for religious slaughter.
The CJEU as readers will know practices judicial economy. On the face of it, the case only deals with the Flemish decision no longer to authorise, from 2015 onwards, the ritual (sic; why the EU institutions stubbornly refuse to name the practice by its proper name of religious slaughter is beyond me) slaughter of animals without stunning in temporary slaughterhouses in the that region during the Muslim Feast of Sacrifice (Eid al-Adha).
Readers best consult the text of the judgment for it is as concise as it is complete. As the Court points out at 56, the derogation authorised by Article 4(4) of Regulation 1099/2009 does not lay down any prohibition on the practice of religious slaughter in the EU but, on the contrary, gives expression to the positive commitment of the EU legislature to allow such slaughter of animals without prior stunning in order to ensure effective observance of the freedom of religion, in particular of practising Muslims during the Feast of Sacrifice. That is a clear indication of the CJEU being against a total ban (or at the least giving expression to the reality of the EU legislator not approving of such a ban).
That technical framework, the CJEU holds, is not in itself of such a nature as to place a restriction on the right to freedom of religion of practising Muslims. Whether the specific circumstances in Flanders, including the investment needed to convert temporary spaces into licensed abattoirs, in effect hinder Muslims’ practice of their faith in forum externum (at 44), is neither here nor there for the argument under consideration, which is that Article 4(4) itself is incompatible with the Charter on Fundamental rights.
One issue nota bene which was not sub judice, is the incomprehensible discrimination between ‘culture’ (exempt as a whole from the Regulation), and religion (regulated). In short: if myself and a bunch of locals slaughter animals without stunning on a Flemish medieval square, citing local custom, the Regulation does not catch me. But if I do so because I am religiously motivated not to stun, the Regulation’s regime kicks in.
Finally, I introduced my students at American University Washington, College of Law this morning to Case C-497/17, Oeuvre d’assistance aux bêtes d’abattoirs. In this case (hearing at Kirchberg tomorrow) an NGO requests a certification body to stop certifying as ‘organic’, products obtained from religious slaughter, even though neither Council Regulation 834/2007 nor the Commission implementing Regulation 889/2008 on organic production and labelling of organic products with regard to organic production, labelling and control, mention stunned or unstunned slaughter. That case turns around scope of application, I would suggest, albeit that the shadow of the human rights implications hangs over it.
Geert.
In re B.C.I Fins. Pty Ltd. (In Liquidation) (thank you Daniel Lowenthal for flagging) illustrates to and fro exercise, hopping between laws, and the use of choice of law rules to establish (or not) jurisdiction. This method is often called the ‘conflicts method’ or ‘looking over the fence’: to establish whether one has jurisdiction a judge has to qualify his /her district as a place of performance of an obligation, or the situs of a property, requires the identification of a lex causae for the underlying obligation, application of which will in turn determine the situs of the obligation, property etc.
As Daniel points out, Bankruptcy Code section 109(a), says that “only a person that resides or has a domicile, a place of business, or property in the United States, or a municipality may be a debtor under this title.” Lane J considers the issue in Heading B and concludes that the Debtors’ Fiduciary Duty Claims against Andrew and Michael Binetter constitute property in the United States to satisfy Section 109(a).
There is no federal conflicts rule that pre-empts. New York conflict of law rules therefore apply. New York’s “greatest interest test” pointed to Australian substantive law to determine the situs of the fiduciary duties claims: “[t]he Liquidators were appointed by an Australian court, and are governed by Australian law, and Andrew Binetter is an Australian citizen. Perhaps even more importantly, the Fiduciary Duty Claims arose from acts committed in Australia and exist under Australian law, and any recovery will be distributed to foreign creditors through the Australian proceeding.’
Lane J then applies Australian substantive law eventually to hold on the situs of the fiduciary duty: considering the (competing) Australian law experts, he is most swayed by the point of view that under Australian law ‘not only debts, but also other choses in action, are for legal purposes localised and are situated where they are properly recoverable and are properly recoverable where the debtor resides.’ The Binetters reside in New York.
In summary: New York conflict of law rules look over the fence to locate the situs of a fiduciary debt to be in New York, consequently giving New york courts jurisdiction. A neat illustration of the conflicts method.
Geert.
(Handbook of) EU private international law, Chapter 3, Heading
The title of this piece almost reads like an encyclical. C-250/17 Esprito Santo (in full: Virgílio Tarragó da Silveira Massa v Insolvente da Espírito Santo Financial GroupSA – readers will appreciate my suggestion of shortening), held last week, concerns the scope of Article 15 juncto 4(2)(f) of the EU’s Insolvency Regulation 1346/2000 (materially unchanged in Regulation 2015/848).
In many jurisdictions lawsuits pending are subject to vis attractiva concursus: all suits pending or not, relevant to the estate of the insolvent company are centralised within one and the same court. In the context of cross-border insolvency however this would deprive the courts and the law of the Member State other than the State of opening of proceedings, of hearing cq applying to, pending suits.
The Court has now held along the lines what is suggested in the Virgos-Schmit report: only enforcement actions are subject to Article 15. Lawsuits pending which merely aim to establish the merits of a claim without actually exercising it (in the judgment: ‘Substantive proceedings for the recognition of the existence of a debt’), remain subject to the ongoing proceedings in the other Member State.
The judgment evidently has more detail but this is the gist of it. Of note is that yet again, linguistic analysis assists the court in its reasoning.
Geert.
(Handbook of) EU Private International, 2nd ed. 2016, Chapter 5.
When I reported the first salvos in Goldhar v Haaretz I flagged that the follow-up to the case would provide for good comparative conflicts materials. I have summarised the facts in that original article. The Ontario Court of Appeal in majority dismissed Haaretz’ appeal in 2016, 2016 ONCA 515. In Haaretz.com v. Goldhar, 2018 SCC 28, the Canadian Supreme Court has now held in majority for a stay on forum non conveniens grounds. Both the lead opinion, the supporting opinions and the dissents include interesting arguments on forum non conveniens. Many of these, as Stephen Pitel notes, include analysis of the relevance of obstacles in enforcement proceedings.
If ever I were to get round to compiling that published reader on comparative conflicts, this case would certainly feature.
Have a good start to the working-week (lest is started yesterday in which case: bonne continuation).
Geert.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.
Thank you Elias Neocleous & Co for reporting Andrew Burness v Saipem SpA, in which the Cypriot Supreme Court confirmed jurisdiction over claims related to Cyprus’ Exclusive Economic Zone (under UNCLOS), and rejected application of forum non conveniens. The claims followed an accident on board the vessel Saipem 1000 in the Cyprus EEZ.
The first issue is one under public international law, which I will leave to others. The second is an interesting application of forum non conveniens. Its application had been suggested for none of the parties are Cypriot nationals, neither were the witnesses, or any of the insurance and other companies involved. One assumes the card played was one of convenience, and costs. However the Supreme Court particularly emphasised that the accident had occurred in the process of prospection or exploitation of Cyprus’s natural resources: that makes the Cypriot courts particularly suited to hearing the case, despite the many foreign elements.
Geert.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.`
Choices, choices. I will continue to follow the GDPR for jurisdictional purposes, including territorial scope. (And I have a paper coming up on conflict of laws issues in the private enforcement of same). But for much of the GDPR enforcement debate, I am handing over to others. Johannes Marosi, for instance, who reviews the CJEU judgment this week in Fansites, over at Verfassungsblog. I reviewed the AG’s Opinion here.
Judgment in Grand Chamber but with small room for cheering.
As Johannes’ post explains, there are many loose ends in the judgment, and little reference to the GDPR (technically correct but from a compliance point of view wanting). (As an aside: have a look at Merlin Gömann’s paper, in CMLREv, on the territorial scope of the GDPR).
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.
[2017] EWHC 3012 (QB) Spring v MDO and Evengelisches Krankenhaus Bielefeld is unreported as far as I can tell (and I have checked repeatedly). Thank you Max Archer for flagging the case and for sending me copy of judgment a few months back. (I am still chipping away at that queue).
In 1997, Claimant was stationed in Germany with the British Army. The Claimant very seriously fractured his right leg and ankle whilst off duty in Germany (the off duty element evidently having an impact – on duty injuries arguably might not have been ‘civil and commercial’). He was then treated at the Second Defendant’s hospital under an established arrangement for the treatment of UK service personnel between the First (the Ministry of Defence) and Second Defendants (the German hospital). Various complications later led to amputation.
The Brussels I Recast Regulation applies for claimant did not introduce the claim against the second defendant until after its entry into force: 18 years in fact after the surgery. This was the result of medical reports not suggesting until after July 2015 that the German hospital’s treatment has been substandard. Rome II ratione temporis does not apply given the timing of the events (alleged wrongful treatment leading to damage).
Yoxall M held that Article 8(1)’s conditions for anchoring /joinder were fulfilled, because of the risk of irreconcilable judgments (at 35). Even if the claim against the First Defendant is a claim based on employer’s liability whereas the claim against the Hospital is based on clinical negligence. Should the proceedings be separate there is a risk of the English and German courts reaching irreconcilable judgments on causation of loss. At 35: ‘It would be expedient for the claims to be heard together – so that all the factual evidence and expert evidence is heard by one court. In this way the real risk of irreconcilable judgments can be avoided.’
With reference to precedent, Master Yoxall emphasised that ‘in considering Article 8(1) and irreconcilable judgments a broad common sense approach is justified rather than an over-sophisticated analysis’ (at 36).
Yoxal M is entirely correct when he states at 37 that Article 8(1) does not include a requirement that the action brought against the different defendants have identical legal bases. For decisions to be regarded as contradictory the divergence must arise in the context of the same situation of law and fact (reference is made to C-98/06 Freeport).
Next however the court considers as a preliminary issue, the limitation period applying between claimant and the German defendant and holds that the Hospital have an arguable case that the claim is statute barred in German law (German expert evidence on the issue being divided). The latter is the lex causae for the material dispute (on the basis of English residual private international law), extending to limitation periods per Section 1(3) of the Foreign Limitations Period Act 1984 (nota bene partially as a result of the 1980 input by the Law Commission, and not entirely in line with traditional (or indeed US) interpretations of same). This ultmately sinks the joinder.
As a way forward for plaintiff, the Court suggests [2005] EWCA Civ 1436 Masri. In this case the Court of Appeal essentially held that joinder on the basis of Article 8(1) may proceed even if litigation against the England-based defendants are not the same proceedings, but rather take place in separate action. Masri has not been backed up as far as I know, by European precedent: Clarke MR held it on the basis of the spirit of C-189/87 Kalfelis, not its letter. Moreover, how the German limitation periods would then apply is not an obvious issue, either.
An interesting case and I am pleased Max signalled it.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.12.1.
I post this item mostly as a point of reference for discussions on mandatory law, employment disputes, and the use of arbitral tribunals to circumvent limitations in domestic litigation.
In FC Black Stars Basel 4A_7/2018, the Swiss Supreme Court held in April that mandatory Swiss law on limited arbitrability of domestic employment disputes, cannot be circumvented by submitting dispute to international arbitration. Schellenberg Witmer have succinct analysis here.
Note in particular 2.3.3:
Vor diesem Hintergrund erscheint es zur Vermeidung von Wertungswidersprüchen folgerichtig, den in Art. 341 OR angeordneten Schutz der sozial schwächeren Partei im Rahmen der Beurteilung der freien Verfügbarkeit nach Art. 354 ZPOinsoweit in das Prozessrecht hinein zu verlängern, als Schiedsvereinbarungen nicht uneingeschränkt zugelassen werden
Geert.
I reported earlier on Sulamerica and the need properly and preferably, expressly to provide for choice of law vis-a-vis arbitration agreements, in particular vis-a-vis three elements: lex arbitri, lex curia, lex contractus. In Shagang the High Court added its view on the possible relevance of a fourth factor: the geographical venue of the arbitration, and its impact in particular on the curial law: the law which determines the procedure which is to be followed.
Atlas Power Ltd -v- National Transmission and Despatch Co Ltd [2018] EWHC 1052 is another good illustration of the relevance (but in practice: rarity) of the proper identification of all four factors.
Bracewell excellently identify the four take away points from Atlas Power:
The core point which Atlas Power illustrates is that specific identification of arbitration venue, curial law, lex contractus and lex arbitri is best done in simple terms. Overcomplication, particularly variance of any of these four points, is a truly bad idea. Specifically: the arbitration clause in the contracts between the parties (text from Bracewell’s overview)
Various procedural events led to Phillips J essentially having to decide: whether the parties had validly and lawfully chosen London as the seat of the arbitration (answer: yes); and whether, in light of Pakistani law (which was the law governing the contracts), the choice of London as the seat of arbitration did not result in the English courts having exclusive supervisory jurisdiction with the effect that the courts of Pakistan had at least concurrent jurisdiction (answer: no, for this would result in an unsatisfactory situation where more than one jurisdiction could entertain challenges to an award)
Variation of any litigation relevant articles really does open all sorts of cans of worms.
Geert.
‘Reading’ Arica Victims v Boliden Mineral (I have a copy of the case, but not yet a link to ECLI or other database; however there’s a good uncommented summary of the judgment here] leaves me frustrated simply for my lack of understanding of Swedish. Luckily Matilda Hellstorm at Lindahl has good review here (including a hyperlink to her earlier posting which alerted me to the case in 2017).
Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies, which determined lex causae as lex loci damni. The Court found this to include statute of limitation. This would have been 10 years under Swedish law, and a more generous (in Matilda’s report undefined) period under Chilean law. Statute of limitation therefore following lex causae – not lex fori.
Despite this being good for claimants, the case nevertheless failed. The Swedish court found against liability (for the reasons listed in Matilda’s report). (With a small exception seemingly relating to negligence in seeing waste being uncovered). Proof of causality seems to have been the biggest factor in not finding liability.
Leave for appeal has been applied for.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 8.
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