Conflictoflaws

A special call for applications for a one-year postdoctoral fellowship aimed at threatened researchers from developing countries (one or two bursaries can be awarded)

The details of the fellowship conditions are available on the web site at the following address:
https://uclouvain.be/en/research/news/call-for-applications-for-one-year-postdoctoral-fellowships.html

The deadline for submitting the application is August 31, 2018 at noon.

The decision is available here and further documentation is available in the following blog: http://www.scotusblog.com/case-files/cases/animal-science-products-inc-v-hebei-welcome-pharmaceutical-co-ltd/. I would also like to refer to previous posts by fellow editors here and here. The US Supreme Court held that: “A federal court determining foreign law under Federal Rule of Civil Procedure 44.1 should accord respectful consideration to a foreign government’s submission, but the court is not bound to accord conclusive effect to the foreign government’s statements.”

In a nutshell, the US Supreme Court said that the weight to be given to foreign government statements depends on the circumstances of the case. In particular, it notes that “[t]he appropriate weight [a federal court determining foreign law should give to the views presented by a foreign government] in each case, however, will depend upon the circumstances; a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials. No single formula or rule will fit all cases, but relevant considerations include the statement’s clarity, thoroughness, and support; its context and purpose; the transparency of the foreign legal system; the role and authority of the entity or official offering the statement; and the statement’s consistency with the foreign government’s past positions.”

One thing of note is that the US Supreme Court refers to Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, which is a very important case in the context of the Hague Evidence Convention.

Marmara University Law School in Istanbul/TURKEY is organizing an international conference on Contractual Issues in Private International Law on 11 October 2018. All the information regarding the application can be found at etkinlik.marmara.edu.tr/contractsinpil

The Spanish version of the 2018 Draft Convention on the Recognition and Enforcement of Foreign Judgments has been made available here.

Peter Hay (Emory University, School of Law, USA) has recently published a new book on Private International Law and Procedure. Published in the Elgar Advanced Introduction Series the author has kindly provided the following (extended) summary:

This book deals with the problems that arise in international litigation in civil and commercial cases. Some are familiar problems – for instance, when does a court have jurisdiction over an out-of-state defendant? – except that the international context adds complexity. Other problems are unique to the settlement of international disputes, for instance, does another country’s law apply to the substance of the case and how does one get a domestic judgment recognized and enforced in a foreign country?

The presentation is problem-oriented and takes a comparative-law approach. The three parts of the book present the principal problems parties face in dealing with cases with an international dimension. The latter may be either parties in different countries dealing with each other or facts or elements of the case that involve more than the state where suit is brought (the forum state).

There are no international law solutions to these problems, despite the name of the subject of this advanced introduction. “Private International Law” is the national law of each country dealing with international cases involving private law subject matters. Answers to the litigation problems identified and discussed in the text may therefore differ somewhat or substantially depending on the national law lens through which these problems are viewed. For this reason, this volume uses a comparative approach.

There are, of course, many nuances in the national laws around the world (see the Encyclopedia of Private International Law). But two main “systems” (again with differences within each) stand out, at least in the Western world: the civil law system, derived and developed from Roman law, which is the basis of much of European, South American and some other law, and the common law that spread from England to the United States, Canada and the British Commonwealth. To narrow things down, this volume compares – in the main, but not exclusively – the law of the European Union as largely representative of civil-law solutions and the approaches followed in the United States for the common law.

It would be a vast, indeed misleading overstatement to say that the systems show evidence of converging. Nonetheless, and with problems and the need for solutions being similar, some solutions do resemble each other. As the Conclusion suggests, European law has made particular strides in evolving a modern Conflicts law, in some respects adopting some of the flexibility that characterizes American law, but doing this in a circumspect and very principled way. Work on a new Restatement in the United States and beginning work in the Hague Conference on Private International Law on a new effort to come up with a multilateral convention on jurisdiction and judgment recognition may result in significant developments in the not too distant future.

On 18 June 2018, Professor Dr. Christian Kohler, former General Director at the CJEU and honorary professor for private international law, European civil procedural law and comparative law at the University of Saarbrücken, celebrated his 75th birthday. On this occasion, numerous colleagues and friends both from the CJEU and European academia contributed to a liber amicorum in his honour: Burkhard Hess, Erik Jayme and Heinz-Peter Mansel (eds.), Europa als Rechts- und Lebensraum, Liber amicorum für Christian Kohler, Gieseking Verlag (Bielefeld) 2018; XII and 596 pp.; ISBN: 978-3-7694-1199-7. The volume contains 44 articles (mostly) on private international law in English, French and German (moreover, it features a touching French poem by Catherine Kessedjian). The full table of contents and further information are available at the publisher’s website here.

Following the successful international doctoral conference two years ago, the Faculty of Law in Rijeka is organising RiDoc 2018: Rijeka Doctoral Conference, to be held on 7 December 2018. The call for abstracts is available here and contains all the necessary details. It is important to note that the applications are welcome by 25 July 2018 and the results of the review will be known by 15 September 2018. Applications and any questions should be addressed to ridoc@pravri.hr.

In the judgment C-335/17 of 31 May 2018, the CJEU confirms that the autonomous concept ‘right of access’ under Brussels II bis Regulation encompasses the rights of access of grandparents to their grandchildren.

Facts

Ms Valcheva is the grandmother of a child born from the marriage between Ms Valcheva’s daughter and the father of the child. That marriage was dissolved. Ms Valcheva lives in Bulgaria. The child lives in Greece with his father, holding full custody of the child. Ms Valcheva found that she could not maintain quality contact with her grandson. She seised a court in Bulgaria with a request to establish arrangements so that she could see her grandson more frequently.

The Bulgarian court of first instance held that Bulgarian courts had no jurisdiction. According to the court, the scope of Brussels II bis covers a wide family circle including the child’s grandparents and, therefore, applied to Ms Valcheva’s claim. Based on Article 8 Brussels II bis it is, in principle, the courts of the child’s habitual residence at the time the court was seised that has jurisdiction (in this case, Greek courts). The decision was upheld on appeal. Ms Valcheva has subsequently seised the Supreme Court of Cassation, Bulgaria, which referred the following question to the CJEU.

Question referred for preliminary ruling

Is the concept of “rights of access” used in Article 1(2)(a) and Article 2.10 of Regulation No 2201/2003 to be interpreted as encompassing not only access between the parents and the child but also the child’s access to relatives other than the parents, that is to say the grandparents?

Consideration by the CJEU

The CJEU answers the question in the positive. The Court notes that that the concept ‘right of access’ must ‘be interpreted autonomously taking account of the wording, scheme and objectives of Regulation No 2201/2003, in the light, in particular, of the travaux préparatoires for that regulation, as well as of other acts of EU and international law’ (at [19]). The CJEU elaborates on these references in three main considerations.

First, the wording of the Regulation imposes no limitation in regard to the person who may benefit from the right of access (at [21]).

Second, the Regulation aims to create ‘a judicial area based on the principle of mutual recognition of judicial decisions through the establishment of rules governing jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility.’ (at [28]). Not only does the objective cover all decisions on parental responsibility (at [29]), according to recital 5, but the ‘decisions on visiting rights are also identified as a priority’, according to recital 2. The CJEU bases the interpretation of the recitals on the Commission working document on mutual recognition of decisions on parental responsibility COM(2001) 166 final of 27 March 2001. There, the EU legislature would have made an explicit choice not to impose restrictions on the persons who may exercise parental responsibility. (at [31]).

Third, the CJEU notes the risk of irreconcilable decisions from various Member States, pointed out by the Advocate General. If the right of access of grandparents would fall outside the scope of Brussel II bis, the ‘questions relating to those rights could be determined not only by the court designated in accordance with Regulation No 2201/2003 but also by other courts which might consider themselves to have jurisdiction on the basis of private international law.’ (at [35]). ‘As observed by the Advocate General in point 56 of his Opinion, the granting of rights of access to a person other than the parents could interfere with the rights and duties of those parents, namely, in the present case, the father’s rights of custody and the mother’s rights of access. Consequently, it is important, in order to avoid the adoption of conflicting measures and in the best interests of the child, that the same court — that is to say, as a rule, the court of the child’s habitual residence — should rule on rights of access’ (at [57]).

Written by Dr. iur. Baiba Rudevska (Latvia)

On 5 June 2018, the ECJ rendered a judgment in the Coman case (C-673/16). For the first time the ECJ had the opportunity to rule, on the concept of ‘spouse’ within the meaning of the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (Directive 2004/38) in the context of a same-sex marriage. Even if the Directive only covers questions related to the entry and residence in the European Union (EU), this judgment could be of interest for Private International lawyers as well.

Main Facts:

Mr Coman (a Romanian and American citizen), and Mr Hamilton (an American citizen) met in the United States and lived there together. Mr Coman later took up residence in Belgium while Mr Hamilton continued to live in the US. In 2010 they got married in Belgium. In 2012 they contacted the competent Romanian authority to request information on the conditions under which Mr Hamilton, a non-EU citizen, could obtain the right to reside in Romania for more than three months. The Romanian authority replied that Mr Hamilton had only a right of residence for three months because, according to the Romanian Civil Code, marriage between two persons of same sex was not recognised. The case went up to the Constitutional Court, which decided to make the request for a preliminary ruling. One of the questions referred to the ECJ was as follows:

Does the term “spouse” in Article 2(2)(a) of Directive 2004/38, read in the light of Articles 7, 9, 21 and 45 of the Charter, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married in accordance with the law of a Member State other than the host Member State?

Only this question is of interest for private international law (hereinafter referred to as “PIL”). Let us take a look at the decision and at the reasoning of the ECJ.

Decision of the ECJ:

The ECJ decided that:

1. In a situation in which a Union citizen has made use of his freedom of movement by moving to and taking up genuine residence, in accordance with the conditions laid down in Article 7(1) of Directive 2004/38 in a Member State other than that of which he is a national, and, whilst there, has created and strengthened a family life with a third-country national of the same sex to whom he is joined by a marriage lawfully concluded in the host Member State, Article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex.
2. Article 21(1) TFEU is to be interpreted as meaning that, in circumstances such as those of the main proceedings, a third-country national of the same sex as a Union citizen whose marriage to that citizen was concluded in a Member State in accordance with the law of that state has the right to reside in the territory of the Member State of which the Union citizen is a national for more than three months. That derived right of residence cannot be made subject to stricter conditions than those laid down in Article 7 of Directive 2004/38.

As we can see from the operative part, the ECJ does not impose the recognition of same-sex marriages in all the Member States.

Main Reasoning of the ECJ:

The first important thing to be noted is that the ECJ only uses the term “recognition of marriage” (paras. 36, 40, 42, 45, 46 of the judgment) whereas the Advocate General only referred to the term “autonomous interpretation” (paras. 33-58 of the opinion). And vice versa– the ECJ does not directly mention the term “autonomous interpretation” and the Advocate General does not analyse the “recognition of marriage”. This raises an interesting question: what exactly was the method used by the ECJ in this case? Autonomous interpretation and recognition are two different methods; the former is widely used both in EU law (in general) and in international human rights law, whereas the latter is typical of PIL. Only in the second case (if we recognise that the ECJ has applied the recognition method) will this judgment be important and have a considerable impact in the field of PIL.

Here is my opinion on how this judgment should be construed:

1. The ECJ starts its reasoning by de facto using the method of autonomous interpretation:

(a) The term ‘spouse’ refers to a person joined to another person by the bonds of marriage (para. 34 of the judgment).

(b) The term ‘spouse’ within the meaning of Directive 2004/38 is gender-neutral and may therefore cover the same-sex spouse of the Union citizen concerned (para. 35 of the judgment).

(c) Article 2(2)(a) of that directive, applicable by analogy in the present case, does not contain any reference with regard to the concept of ‘spouse’ within the meaning of the Directive. It follows that a Member State cannot rely on its national law as a justification for refusing to recognise in its territory, for the sole purpose of granting a derived right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state (para. 36 of the judgment).

However, after that, the ECJ switches to the term ‘recognition of marriage’ (paras. 35 et seq.). Does the ECJ switch to recognition or is it still using autonomous interpretation with different words?

2. It seems that the ECJ continues to applyautonomous interpretation of the term ‘spouse’, as the Advocate General did in his observations. In fact, the use of the words ‘recognition of marriage’ must be understood within the context of Romanian domestic law (Civil Code) according to which marriages between persons of the same sex entered into or contracted abroad by Romanian citizens or by foreigners are not recognised in Romania (paras. 8, 36 of the judgment). From the point of view of PIL, it is important to point out that this Romanian legal provision already contains the Romanian public policy clause; in other words, the public policy exception is already integrated in this legal norm.

Why Autonomous Interpretation?

Both the Advocate General and the ECJ stressed that Article 2(2)(b) of the Directive 2004/38 refers to the conditions laid down in the relevant legislation of the Member State to which that citizen intends to move or in which he intends to reside, but Article 2(2)(a) of that Directive, applicable by analogy in the present case, does not contain any such reference with regard to the concept of ‘spouse’ within the meaning of the Directive. Consequently, the Member State cannot rely on its national law as a justification for refusing to recognise in its territory, for the sole purpose of granting a derived right of residence to a third-country national, a marriage concluded by that national with a Union citizen of the same sex in another Member State in accordance with the law of that state (para. 36 of the judgment; paras. 33, 34 of the opinion).

The Advocate General points out that the terms of a provision of EU law without express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the EU (para. 34 of the opinion). The method of autonomous interpretation (qualification lege communae) is the only alternative to a reference to domestic law (qualification lege forior lege causae). There are no other alternatives, even if in practice the ECJ does not clearly emphasise the application of this method [Audit M. L’interpretation autonome du droit international privé communautaire // Journal du droit international, 2004, n° 3, p. 799].

The use of the Advocate General’s opinion in the reasoning of the ECJ leads to the conclusion that the ECJ has applied the method of autonomous interpretation (rather than recognition) of a precise term to construe, namely ‘spouse’ (Article 2(2)(a) of the Directive).

Why Not Recognition?

The method of recognition is one of the methods used within the framework of PIL. However, as Professor Lagarde has shown, this method can be applied in primary EU law and not in secondary law (like directives or regulations) [Lagarde P. La reconnaisance. Methode d’emploi. In: Vers de nouveaux équilibres entre ordres juridiques. Mélanges en l’honneur de H.Gaudemet-Tallon. Paris: Dalloz, 2008, p. 483].

Therefore, in cases like Grunkin Paul(C-353/06) and Bogendorff von Wolffersdorff(C-438/14) we see the application of this method to names, according to provisions of TFEU (see operative parts of both judgments). The application of recognition also implies some changes in the civil registers of the Member States. On the other hand, what had been requested in the Comancase was the interpretation of Article 2(2)(a) of the Directive and not a ruling on the recognition of same-sex marriages within the EU. The sole context of the word ‘recognition’ can be found in the relevant provision of Romanian law, excluding the recognition of foreign same-sex marriages. One can only guess, but it seems that the confusion of two methods – “autonomous interpretation” and “recognition” – has been ultimately inspired by the wording of the Romanian legal provision.

Conclusions:

The interpretation and application of the judgment in the Coman case is  narrower than it seems at the first glance. In reality, the ECJ has applied the method of autonomous interpretation of the term ‘spouse’ used in Article 2(2)(a) of the Directive 2004/38. According to the ECJ, this term is gender-neutral and must be understood as encompassing same-sex spouses – but only in the context of the Directive.

Therefore, this judgment does not impose the recognition of foreign same-sex marriages within the EU. It only means that Romania must grant entry and residence permits to same-sex spouses too. In such situations Romania must apply the autonomous interpretation of the term ‘spouse’ instead of a domestic legal norm prohibiting the recognition of foreign same-sex marriages in Romania. In other words, Article 21(1) TFEU must be seen as precluding a Member State from applying its domestic law on this particular point, and the domestic public policy exception cannot be applied either. However, this interpretation relates only to the Directive. The qualification lege communae of the term ‘spouse’ shall prevail over its qualification lege fori. No more and no less.

An additional remark: see the new Regulation (EU) 2016/1191 of the European Parliament and of the Council on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union and amending Regulation (EU) No 1024/2012 [OJ L 200, 26.7.2016, pp. 1-136]. Article 2(4) of this Regulation states that it does not apply to the recognition, in a Member State, of legal effects relating to the content of public documents (including public documents establishing the fact of marriage, capacity to marry, and marital status; Article 2(1)(e)), issued by the authorities of another Member State.

As announced earlier the seminar Innovating International Business Courts, organized by Erasmus School of Law (ERC project Building EU Civil Justice), the Max Planck Institute Luxembourg, and the Montaigne Center of Utrecht University) will take place in Rotterdam on 10 July 2018. We have a great line-up of speakers and over 100 participants, including practitioners, academics, business representatives and policy makers from from all over Europe and beyond. During the drinks young researchers will do a poster presentation.

While the expectation was that the Netherlands Commercial Court (NCC) would open its doors on 1 July 2018 (see also the previous post), discussions in the Senate have caused delay. The discussions evolve around a number of issues, but most importantly the relatively high flat fee (compared to the fees of ordinary proceedings and for smaller companies/claims). Prof. Eddy Bauw, one of the founding fathers of the NCC, will update us on the 10th of July.

For more information and registratation click here; registration closes on 9 July at 9 a.m.

The Faculty of Law at the University of Trier is looking for a research fellow (Wissenschaftliche(r) Mitarbeiter(in)) at the Chair for Private Law, Private International Law and Comparative Law (Prof. Dr. Jens Kleinschmidt, LL.M. (Berkeley)) on a part-time basis (50 %) as soon as possible.

The position will be paid according to the salary scale E 13 TV-L, and the contract will be for an initial period of two years.

The research fellow will be given the opportunity to conduct his/her own Ph.D. project under the chairholder’s supervision (according to the applicable regulations of the Law Faculty). His/her tasks will include supporting the chairholder in research, teaching and administrative matters, an independent teaching obligation of 2 hours/week (in German) and pursuing his/her own Ph.D. project.

The successful candidate holds a first law degree (Erste juristische Prüfung) above average and has a particular interest in private law and the willingness to work in the research areas of the chair. A very good command of German and, in addition, English or French is required. Knowledge of another language or a stay abroad will be an asset.

Candidates with disabilities will be given preference in case of equal qualification. Applications by qualified women are particularly welcome.

If you are interested, please send your application (cover letter in German, CV, all relevant documents including transcripts and copy of law degree) by 31 July 2018 to: Professor Dr. Jens Kleinschmidt, Universität Trier, FB V – Rechtswissenschaft, 54286 Trier, Germany.

The job advert in full detail is available here.

Dear readers,

some of you might have noticed that we are currently working to improve conflictoflaws.net. If the site does not look the way it used to look like, that is why.

We do our best to keep the blog up and running while we are working on it, but ask for your understanding if once in a while things do not work out or do not look as expected. Thank you!

The editors

The publisher’s blurb is as follows:

“NEW ONLINE SERVICE

International Arbitration

Global arbitration research from the experts

The Chinese perspective on The South China Sea Arbitration, is just one of the 40+ texts searchable on the new online service, International Arbitration.

The service is made up of content from three respected publishing brands (Hart Publishing, CH Beck-Nomos and Bloomsbury Professional). It provides access to materials by over 60 respected author names with the speed and convenience of online research.

International coverage in depth and breadth

The content covers a broad range of jurisdictions from arbitration centres all over the world including:

• China
• New York
• Switzerland
• Germany
• The Middle East

Expert authors and contributors

Authors and contributors are drawn from leading firms and academic institutions, including:

• Allianz SE
• Gleiss Lutz
• PriceWaterhouseCoopers
• Herbert Smith Freehills LLP
• Freshfields Bruckaus Deringer
• Oxford University
• University College London

Regional experts include Kun Fan on Arbitration in China and Reinmar Wolff on the New York Convention.

You can only fully appreciate the quality of International Arbitration by trying it for yourself. For more information, or to sign up for a free trial please visit http://www.bloomsburylawonline.com/internationalarbitration/”

Although it is hard to believe in light of her vitality and prolific academic output, Professor Dr. Jolanta Kren Kostkiewicz (University of Berne, Switzerland) will actually retire at the end of the spring term 2018. On this occasion, many colleagues and friends both from Switzerland and abroad have contributed to a voluminous Festschrift in her honour which is published under the general heading “Civil procedure and execution in the national and international sphere – intersections and comparisons” (Alexander R. Markus/Stephanie Hrubesch-Millauer/Rodrigo Rodriguez [eds.], Zivilprozess und Vollstreckung national und international – Schnittstellen und Vergleiche, Stämpfli Verlag AG, Bern 2018, 858 pp., ISBN: 978-3-7272-2289-4, CHF 158).

The Festschrift contains numerous articles (all in German) on Swiss and EU private international law, international civil litigation (in particular the Lugano Convention), arbitration, the CISG, Swiss procedural law and comparative law. For further details and a full table of contents, please click here.

The Law Faculty and the Department of Private International Law of the University of Geneva are organizing a symposium on international dispute settlement in honour of Prof. Gabrielle Kaufmann-Kohler. This event will take place on 27 September 2018 in Geneva. The organizers wish to celebrate Kaufmann-Kohler’s career as professor, arbitrator, counsel, researcher and director of research. Her colleagues, friends and former students will gather to celebrate this extraordinary lawyer whose talents and personality are recognized worldwide. Further information about the programme and details on registration may be found here.

Professor Daniel Girsberger of the University of Lucerne is seeking to employ a Senior Research Assistant to work on a global project on Choice of Law in International Commercial Contracts. The part-time position is funded by the Swiss National Research Fund (SNF), initially for a period of three years. It is envisaged that the successful candidate would work from the University of Lucerne (and/or Geneva).

The successful candidate will:

– be a lawyer
– have very good credentials
– have completed a doctoral dissertation or be an advanced doctoral candidate
– be multilingual: ideally a native (or otherwise an excellent) English speaker with excellent English writing skills, and with very good writing (and good speaking) skills in German and at least two other languages, such as French and Spanish
– have specific research and practical skills, experience and an interest in:
o private international law on a domestic as well as regional or global level
o (ideally) international arbitration
o international instruments in the area of commercial law (such as the CISG, UNIDROIT Principles, New York Convention 1958 and Hague Conference instruments)
– have very good practical skills in using legal databases (search and management of such databases) and electronic data processing
– be very well organized and have very good communication skills to communicate with legal academics from all over the world.

Enquiries and applications (CV and covering letter) should be directed to Daniel Girsberger: Daniel.Girsberger@unilu.ch.

Applications close on 31 August 2018.

A link to the advertisement on SSRN is available here.

Last Thursday, the ECJ rendered a short (and rather unsurprising) decision on the interpretation of Art 20(2) Brussels I (= 22(2) of the Recast Regulation). In Petronas Lubricants (Case C 1/17), the Court held that an employer can rely on the provision to bring a counter-claim in the courts chosen by the employee even where said claim has been assigned to the employer after the employee had initiated proceedings.

The question had been referred to the ECJ in the context of a dispute between an employee, Mr Guida, and his two former employers, Petronas Lubricants Italy and Petronas Lubricants Poland. Mr Guida’s parallel employment contracts with these two companies had been terminated among allegations of wrongly claimed reimbursements. Mr Guida, who is domiciled in Poland, had sued his Italian employer in Italy for wrongful dismissal and his employer had brought a counter-claim for repayment of the sums Mr Guida had allegedly wrongfully received, which had been assigned by the Polish employer.

Art 20(2) Brussels I contains an exception to the rule in Art 20(1), according to which an employee can only be sued in the courts of their country of domicile, to allow the employer to bring a counter-claim in the courts chosen by the employee. Similar exceptions can be found in Art 12(2) Brussels I (= Art 14(2) of the Recast; for insurance contracts) and Art 16(3) Brussels I (= Art 18(3) of the Recast; for consumer contracts), all of which incorporate the ground for special jurisdiction provided in Art 6 No 3 Brussels I (= Art 8(3) of the Recast). In the present case, the ECJ had to decide whether this exception would also be available for counter-claims that had been assigned to the employer after the employee had initiated proceedings.

The Court answered this question in the affirmative, pointing out that

[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].

At the same time, the Court emphasised that a counter-claim can only be brought in the court chosen by the employee if it fulfils the more specific requirements of Art 6 No 3 Brussels I, according to which the counter-claim must have arisen ‘from the same contract or facts on which the original claim was based’. This has recently been interpreted by the ECJ (in Case C-185/15 Kostanjevec) as requiring that both claims have ‘a common origin’ (see [29]–[30] of the decision). Where this is the case – as it was here (see [31]–[32]) –, it does not matter that the relevant claims have only been assigned to the employer after the employee had initiated proceedings (see [33]).

Ekaterina Aristova, a PhD in Law Candidate at the University of Cambridge, has made available on SSRN her article “Tort Litigation against TNCs in the English Courts: The Challenge of Jurisdiction”. Published earlier this month in the Utrecht Law Review the article discusses a recent trend of private claims alleging direct liability of parent companies for overseas human rights abuses (‘Tort Liability Claims’) focusing on the rules of civil jurisdiction applied by the English courts. It demonstrates how jurisdictional issues arising in Tort Liability Claims challenge the traditional value-neutralism paradigm of private international law as an abstract and technical disciplineby necessitating increasing involvement of domestic courts in the regulation of transnational corporations (‘TNCs’).

The author has kindly provided us with a brief summary of her key findings:

1) Tort Liability Claims are typically initiated in England by private partiesaffected by the activities of TNCs in the host (foreign) state.These arecivil liability cases in which the cause of actionagainst English-domiciled parent companiesis framed through the tort law concept of duty of carerather than the corporate law doctrine of piercing the corporate veil or customary international law on human rights. The allegations are based on the common law principles which provide that in certain circumstances the parent company may be found to have assumed a duty of care, owed to the claimants, to ensure their safety.The article explainsthat duty of care is invoked by the claimants in order to: (1) attribute liability for the overseas abuse to the parent company; (2) establish the necessaryterritorialconnection between the alleged tort and England; and (3) weaken the extraterritoriality concerns raised by the judgment of the English courtswith respect to the events occurred on the territory of the host(foreign)state.

2) To date, the application of Brussels I and English common law by English courts to Tort Liability Claims has resulted in the development of a jurisdictional solution for claims brought against English-domiciled parent companies and their foreign subsidiaries as co-defendants. The concept of duty of care allows claimants to bring claims against English-domiciled parent companies as anchor defendants so as to allow the joinder of the foreign subsidiary as a necessary or proper party under common law. Following the CJEU’s decision in Owusu, the general rule of domicile under Article 4 of Brussels I has a mandatory effect in the proceedings against English-domiciled parent company and claimants cannot rely onthe doctrine of forum non conveniens under English traditional rules. As a result, claims brought against foreign subsidiaries are also likely to survive the forum convenienscontrol. The overall analysis of the rules of jurisdiction in this article suggests that: (1) claims against the English-domiciled parent company in relation to the overseas operations of its foreign subsidiary can be heard in the English courts; and (2) the existence of an arguable claim against an English-domiciled parent company also establishes jurisdiction of the English courts over the connected claims against the subsidiary even if the factual basis of the case occur almost exclusively in the foreign state.

3) One of the most recent successful attempts of foreign citizens to establish English jurisdiction over legal entities of TNC is litigation against English-based mining corporation Vedanta Resources Plc (‘Vedanta’) and its Zambian subsidiary Konkola Copper Mines (‘KCM’) in relation to the environmental pollution in Zambia resulting from the KCM’s operations. Both the High Court (discussed by the author earlier on this blog) and the Court of Appeal (also refer to author’s earlier post) confirmed that Zambian citizens can pursue in England claims against Vedanta and KCM. Decisions of the English courts inVedanta allow making few important observations. Firstly, if the parent company merely held shares in the capital of a foreign subsidiary this would not lead to the establishment of a duty of care and additional circumstances are required to conclude whether the parent company could be held responsible. Second, the parent’s direct and substantial oversight of the subsidiary’s operations in question, including specific environmental and technical deficiencies of the infrastructure in the host state, is likely to give rise to the duty of care. Third, engagement in a mini-trial on the substantive liability issues is not appropriate at the early jurisdictional stage of proceedings, before full disclosure of the relevant documents. Fourth, in the context of applying the ‘necessary or proper party’ gateway, the practical objectives of avoiding two trials on similar facts and events in different parts of the world outweigh the need for the existence of a territorial connection between England and the claim against a foreign subsidiary of the English-domiciled parent company.

4) Unlike in Vedanta, the foreign claimants in Okpabi v Shellfailed to establish jurisdiction of the English courts over claims against Royal Dutch Shell, an English-domiciled parent company (‘RDS’), and its Nigerian operating subsidiary Shell Petroleum Development Company of Nigeria Ltd (‘SPDC’) for the ongoing pollution and environmental damage caused by the oil spills in Nigeria. In 2018, the Court of Appeal in a split decision concluded that the claimants had not established an arguable duty of care assumed by RDS in relation to SPDC’s operations and that, hence, there was no real issue to be tried by RDS and the claimants. As a result, claims against RDS and SPDC were dismissed. The article criticises the Court of Appeal decision for two major shortcomings. First of all, it is submitted that the court took a highly restrictive approach for the imposition of the duty of care on English-domiciled parent companies in relation to the overseas activities of their subsidiaries. The second serious shortcoming of the Court of Appeal’s majority decision in Okpabiis an unreasonably high burden on the claimants to establish an arguable case on the duty of care at the jurisdictional stage of proceedings. Arguably, such approach blurs the boundary between jurisdictional inquiry and resolution of the case on the merits.

5) Finally, the article also discusses the Anglo American Group litigation, where the South African claimants contended that they had suffered from silicosis and silico-tuberculosis in the course of their employment by AASA, the South African company. The claimants argued that the central administration of AASA was in London, since this was the location of Anglo American plc, its English-based parent company, and that it followed that AASA was domiciled in England under the meaning of Brussels I. The Court of Appeal, who defined ‘central administration’ as the place ‘where the company concerned, through its relevant organs according to its own constitutional provisions, takes the decisions that are essential for that company’s operations’, declined to find that decisions of the English-domiciled parent company with respect to the operations of the group had any relevance in determining the domicile of the foreign subsidiary. As a result, it is challenging for the claimants in the Tort Liability Claims, if not impossible, to assert jurisdiction over a foreign subsidiary directly without also commencing proceedings against an English-domiciled parent company. The article further criticised Court of Appeal decision for the lack of jurisdictional analysis of the integrated nature of TNCs and their managerial organisation.

6) The overall conclusion of the article is that Tort Liability Claims offer the discipline an opportunity to reconsider its role of the neutral mediator in international litigation and contribute to the debate on international corporate accountability. Itis notargued that private international law should close the gap in group liability through unilateral transformation of judges into agents of justice by substituting the norms of public international law and substantive domestic law governing overseas operations of business actors. Rather,the disciplinemay engage where appropriate and the uniform rules of jurisdiction are capable of balancing the regulatory impact of these jurisdictional rules with its potential to cause inter-state jurisdictional conflicts.

Value of award

100% of UK/EU tuition fees for 3 years and an annual stipend at the UKRI postgraduate rate, currently £14,777.

Start date and duration

1 September 2018 for 3 years.

Application closing date

12 July 2018.

Overview

Applications are invited from candidates with an interest in pursuing a PhD in any area of Law in which the School offers supervision. See our list of staff members to find an appropriate supervisor for your research topic.

Eligibility Criteria

Candidates are expected to hold at a minimum either a first class, or a very good upper second class undergraduate degree in Law.

Applications will be considered on their merits, including further education at Masters level, a publication record, professional qualifications, or relevant work experience.

The successful candidate must take up their scholarship at the commencement of the 2018/19 academic year, studying full-time.

It is a condition of the award that the successful candidate undertake some undergraduate teaching and academic support activities within the Law School, normally from the second year of their PhD studies, to a maximum not normally exceeding an average of 6 hours per week during semester 1 and 2 of the academic year.

How to apply

You must apply through the University’s online postgraduate application system. To do this please ‘Create a new account’.

All relevant fields should be completed, but fields marked with a red asterisk must to be completed. The following information will help us to process your application. You will need to:

• insert the programme code 8230F in the programme of study section;
• select ‘PhD Newcastle Law School (full-time)’ as the programme of study;
• insert the studentship code LAW007 in the studentship/partnership reference field;
• attach a covering letter and  CV. The covering letter must state the title of the studentship, quote reference code LAW007, and state how your interests and experience relate to the project;
• attach degree transcripts* and certificates and, if English is not your first language, a copy of your English language qualification.

*You will not be able to submit your application until you have submitted your degree transcript/s.

Candidates who have already applied for a place on the Law PhD programme from September 2018 will be considered and need not reapply.

Contact

Professor Sophia Tang

Whether the Singapore court has the jurisdiction or power to grant a Mareva injunction in aid of foreign court proceedings was recently considered by the Singapore High Court in PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] SGHC 64. Both plaintiff and defendant were Indonesian and the claim related to alleged breaches of duties which the defendant owed to the plaintiff. The plaintiff had obtained leave to serve the writ in Indonesia on the defendant. The defendant thereupon applied, inter alia, to set aside service of the writ and for a declaration that the court has no jurisdiction over him. In response, the plaintiff applied for a Mareva injunction against the defendant in respect of the defendant’s assets in Singapore. The plaintiff had, after the Singapore action was filed, commenced actions in Malaysia and Indonesia covering much the same allegations against the defendant.

Under Singapore law (excluding actions commenced in the Singapore International Commercial Court where different rules apply), leave to serve the writ on the defendant abroad may be granted at the court’s discretion if the plaintiff is able to show: (i) a good arguable case that the claim falls within one of the heads of Order 11 of the Rules of court; (ii) a serious issue to be tried on the merits; and (iii) Singapore is forum conveniens. On the facts, the parties were Indonesian and the alleged misconduct occurred in Indonesia. As the plaintiff was unable to satisfy the third requirement, the court discharged the order for service out the writ out of the jurisdiction. Other orders made in pursuant of the order for service out were also set aside.

On the Mareva injunction, the Singapore High Court adopted the majority approach in the Privy Council decision of Mercedes Benz v Leiduck [1996] 1 AC 284. Lord Mustill had distinguished between two questions, to be approached sequentially: first, the question of whether the court has in personam jurisdiction over the defendant; secondly, the question of whether the court has a power to grant a Mareva injunction to restrain the defendant from disposing of his local assets pending the conclusion of foreign court proceedings. Valid service is required to found in personam jurisdiction under Singapore law. In PT Gunung Madu Plantations, as in Mercedes Benz itself, as the answer to the first question was in the negative, the second question did not arise.

Justice Woo was cognisant of the difficulties caused by hewing to the traditional approach of viewing Mareva relief as strictly ancillary to local proceedings but stated ‘that is a matter that has to be left to a higher court or to the legislature’ (para 54). His Honour referenced developments in the UK and Australia, where freestanding asset freezing orders in aid of foreign proceedings are permitted. Further, the Singapore International Arbitration Act was amended in 2010 to give the court the power to grant an interim injunction in aid of a foreign arbitration. It is likely that legislative intervention will be required to develop Singapore law on this issue.

The judgment may be found here: http://www.singaporelaw.sg/sglaw/laws-of-singapore/case-law/free-law/high-court-judgments/23135-pt-gunung-madu-plantations-v-muhammad-jimmy-goh-mashun