Conflictoflaws

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

Professor Ronald Brand has recently posted a paper titled “Recognition of Foreign Judgments in China: The Liu Case and the ‘Belt and Road’ Initiative.” The posting includes an English translation of the first Chinese case to recognize and enforce a U.S. judgment, prepared by Yuting Xu. The combined paper and case translation are available here.

By way of a brief summary, in June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.

The UM Macao Distinguished Visiting Scholar (MDS), established by University of Macau (UM) under the UM Macao Talent Program, aims to attract established scholars to conduct inter/multi-disciplinary research activities with UM faculty members or to promote joint research projects/publications.

Qualifications:

– Associate Professor or above from prestigious universities or research institutions (e.g. top 200 universities of recognized world university rankings or Project 985/211 universities in Mainland China).

– Proven track records in related fields of expertise.

Honorarium and Duration:

– Maximum honorarium of MOP100,000 (around 10, 000 Euros, taxable).

– Agreed visiting period with the hosting faculty.

– University accommodation will be provided.

Application Procedures and Deadline

– Fill in the attached application form “MacaoTalentProgram_AppForm_VisitingScholar” and provide the necessary materials (e.g. copy of identity card/passport, detailed curriculum vitae and visiting plan etc.).

– Submit all application materials to “rdao@umac.mo” (in PDF format).

1st batch: on or before 31/05/2018

2nd batch: on or before 30/09/2018

For any enquiries, please contact us via e-mail to “ummtp@umac.mo” or phone (853) 8822 4388 / 8822 4389 / 8822 4311.

The UM Macao Post-doctoral Fellowship (MPF), established by University of Macau (UM) under the UM Macao Talent Program, aims to attract high-calibre PhD graduates for faculties to sustain and strengthen their research capabilities and build up areas of expertise.

Qualifications:

– PhD graduates from reputable universities in the past 1-2 years (e.g. top 200 universities of recognized world university rankings or Project 985/211 universities in Mainland China).

– Outstanding research achievements with proven publication records, patents, etc. in previous research experience.

Honorarium and Duration:

– Monthly remuneration of MOP40,000 (around 4,000 Euros, taxable).

– Annual conference and research related trips allowance of MOP20,000.

– Maximum contract period of 2 years*.

– On campus accommodation will be available at own expense.

* Working permit must be obtained for non-local resident before commence their duties.

Application Procedures and Deadline

– Fill in the attached application form “MacaoTalentProgram_AppForm_PostDoc” and provide the necessary materials (e.g. copy of PhD certification, identity card/passport, detailed curriculum vitae and letter of reference/recommendation etc.).

– Submit all application materials to “rdao@umac.mo” (in PDF format).

1st batch: on or before 31/05/2018

2nd batch: on or before 30/09/2018

For any enquiries, please contact us via e-mail to “ummtp@umac.mo” or phone (853) 8822 4388 / 8822 4389 / 8822 4311.

1. Background and Purpose

The UM Macao PhD Scholarship (MPDS) was established by the University of Macau (UM) in 2018, which aims at attracting excellent students in the world to pursue their PhD programmes in the UM.

2. Eligibility and Application Process

Bachelor or master students from reputable schools(e.g., top 200 universities of any recognized world university rankings or Project 985/211 universities in Mainland China are preferable), who are seeking admission as new full-time PhD students in the UM, irrespective of their country of origin, prior work experience and ethnic background, should be eligible to apply.

Applicants are required to select full-time PhD programmes of the UM. They are required to submit application for the MPDS directly at the time when submitting the online application to PhD programmes via the online application system. Whether applicants will be selected as scholarship recipient is subject to final decision made by the UM.

The MPDS application deadlines are as follows.

Academic Year 2019/2020
MPDS Application Period
01 June 2018 – 31 October 2018
01 November 2018 -30 April 2019

3. Amount and Duration

The MPDS provides each awardee of the Scholarship with a monthly stipend of MOP20,000 (around 2000 Euros) and a conference and research related travel allowance1 of MOP10,000 per academic year for a period up to four years. Tuition and/or any other kinds of fees that may incur during the course of studies of the awardee will not be covered by the Scholarship.

For more details, please refer to Guidelines for UM Macao PhD Scholarship which is available at http://www.umac.mo/grs/en/admissions_scholarship.php.

For enquiry, please contact us via email at ummtp@umac.mo or by phone at (853) 8822 4898.

On 26 June 2018 the International Council for Commercial Arbitration (ICCA) together with the Amsterdam Center for International Law (ACIL) will host a colloquium on the CJEU’s recent Achmea judgment. The event will take place from 10.30 am through 5 pm at the University of Amsterdam, Faculty of Law, Room A.3.15, Nieuwe Achtergracht 166, 1018 WV Amsterdam.

Confirmed speakers:

Prof. George Bermann (Columbia Law School)
Prof. Catherine Kessedjian (University Panthéon-Assas Paris II)
Prof. Jan Kleinheisterkamp (London School of Economics)
Prof. Stefan Talmon (20 Essex Street, University of Bonn)
Dr. Angelos Dimopoulos (Queen Mary University of London)

Moderator:

Prof. Stephan Schill, University of Amsterdam, Amsterdam Center for International Law

More information (including registration details) is available here.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features four articles on private international law. The English abstracts, kindly provided by the journal’s editor-in-chief, Prof. Dr. Dörte Poelzig (M.jur., Oxon), University of Leipzig, read as follows:

Die Abwicklung von Bankengruppen und der Einfluss von Trennbankenregeln im transatlantischen Rechtsvergleich

Moritz Renner und Roman Kowolik*

ZVglRWiss 117 (2018) 83-116

[The Resolution of Banking Groups and the Influence of Bank Separation Rules –
a Transatlantic Comparison]

In the wake of the recent financial crisis, structural reforms of the financial sector have been intensely discussed as a means to address the failure of systemically important banking groups. In the US, the prevalent resolution strategy solely targets the top holding company of a banking group. This approach ought to enable the resolution of cross-border operating banking conglomerates while preserving the financial and organizational structure of the group and the operational contractual relations of its subsidiaries. In contrast, this resolution strategy has not yet prevailed within the European Union due to the traditional universal bank structure of European banking groups that impedes such an approach. The attempt of the European legislator to introduce bank separation rules had the potential to mitigate these structural constraints. However, the European Commission recently withdrew its proposal and hence stopped the formerly envisaged structural reforms. Considering prospective reform attempts, the European legislator should favor a functional separation of business areas within a banking group over group-wide activity restrictions in order to facilitate a centralized resolution approach.

__________

The Regulation of Bitcoin and Other Virtual Currencies under Japanese Law in Comparative Perspective

Christopher Danwerth*

ZVglRWiss 117 (2018) 117-155

Japan amended its Payment Service Act to regulate virtual currency exchange service providers in April 2017. Those providers must register with the FSA, prevent money laundering and terrorist financing and ensure customer protection. The regulation is mainly driven by the Mt. Gox bankruptcy. In Germany, virtual currencies are considered “units of account” and are, therefore, “financial instruments”, falling under within the scope of the German Banking Act. The Japanese and German regulations differ in technicality and structure. Regarding the content, both approaches are broadly similar. The rise of Initial Coin Offerings, high volatility and speculation and unregulated online wallet services require further adjustments that should lean to a capital market-based regulation, including a prospectus requirement, investor tests and the prevention of insider trading and market manipulation.

___________

Are Statutory Damages the New Punitive Damages? –
Haftungs- und Prozessrisiken durch pauschalierte Schadenersatzansprüche im U.S.-amerikanischen Recht

Martin Konstantin Thelen*

ZVglRWiss 117 (2018) 156-188

In the United States, statutory damages allow plaintiffs to sue even if they cannot demonstrate the precise economic harm they have suffered from the defendant’s violation of a statute. As a result, the alleged damages can exceed the actual harm by far. When thousands of consumers join together in a class action, the multiplication effect makes defendants face immense liability amounts. The question whether and how to reduce these amounts is still unsettled in U.S. law. Vice versa, German courts have to decide whether American class actions for statutory damages shall be served and U.S. judgments shall be recognized. This article shows that German courts cannot refuse to serve a suit under Art. 13(1) of the Hague Service Convention. However, based on the public policy exception of § 328(1)(4) German Civil Procedure Code, they can deny the recognition of a foreign statutory damages judgement if it does not specifically indicate what kind of harms shall be compensated by the statutory damages amount. Notably, if the foreign judgement itemizes the kinds of intangible harms the plaintiff shall be compensated for, German courts should recognize this verdict at least in part.

___________

Effekte des Brexit aus europäisch gesellschaftsrechtlicher Perspektive

– de lege lata über lege ferenda –

Jean Mohamed*

ZVglRWiss 117 (2018) 189-213

[Effects of the Brexit from the Perspective of European Corporate Law]

Around nine months after the historic Brexit referendum on the 23rd of June 2016, the British government has initiated the withdrawal process from the EU on the 29th of March 2017. For European company law – a British top export – Brexit could soon have far-reaching implications with regard to the recognition of UK-legal forms. With this article, two issues should be addressed from a corporate law perspective. Firstly (according to law as it exists) the implications that affect the corporate law of the remaining Member States and of the United Kingdom itself are briefly presented. Then, perspectives on corporate law are discussed de lege ferenda and in concreto for the new British “partnership” with the European Union. At any rate, the list of questions and topics is long: Will the common law still shape the future of European corporate law? Who will benefit from the new regulatory competition in company Law (GER/UK)? And it is also questionable what will happen to companies based on the UK model established within the UK and having their headquarters in another Member State after a “hard” Exit. In this context, the author discusses “international private law”, “intertemporal law” and “cross-border transitions”.

___________

*              Prof. Dr. Moritz Renner ist Inhaber des Lehrstuhls für Bürgerliches Recht, Internationales und Europäisches Wirtschaftsrecht an der Universität Mannheim. Dr. Roman Kowolik ist derzeit LL.M.-Kandidat an der Cornell Law School.

*              Dr. iur. Christopher Danwerth, LL.M is research assistant at the Institute for Company and Capital Market Law, University of Muenster. This article is the result of a research stay at Ch?? University, Tokyo, that was funded by the Japan Society for the Promotion of Science (JSPS). The author wishes to thank Prof. Dr. Nobuhiko Sugiura and Prof. Dr. Tetsuo Morishita for good discussions and valuable comments as well as Prof. Dr. Marc Dernauer, LL.M. for his support and coordination of the research stay.

*              Martin K. Thelen, LL.M. (Columbia) ist Referendar am LG Frankfurt und Doktorand bei Prof. Dr. Matthias Lehmann, Institut für Internationales Privatrecht und Rechtsvergleichung der Universität Bonn.

*             Dr. Jean Mohamed, Mag. iur., ist wissenschaftlicher Mitarbeiter am Seminar für Handels-, Schifffahrts- und Wirtschaftsrecht der Universität Hamburg und Referendar am Hanseatischen OLG Hamburg. Zum Zeitpunkt der Erstellung der Abhandlung war er Doktorand bei Prof. Dr. Ulrich Noack an der Heinrich-Heine-Universität Düsseldorf. Die Abhandlung wurde im September 2017 mit dem 1. Platz des Stiftungspreises 2017 der Stiftung Wissenschaftsforum Wirtschaftsprüfung und Recht ausgezeichnet und im Rahmen einer Podiumsdiskussion am 4. 9. 2017 vorgestellt. Der neueste Stand von Schrifttum und Rechtsprechung wurde nachgetragen.

It is my pleasure to announce the release of the Mélanges en l’honneur du Professeur Bertrand Ancel – Le droit à l’épreuve des siècles et des frontières.

Bertrand Ancel has devoted his academic career to private international law and civil law, enriched with comparative law and history. Professor emeritus of the University Paris II Panthéon-Assas, editor-in-chief of the Revue critique de droit international privé from 2014 to 2017, author of the Éléments d’histoire du droit international privé, he is also a co-author, with Yves Lequette, of the Grands arrêts de la jurisprudence française de droit international privé. Combining in-depth historical knowledge of conflict of laws and international litigation with accurate analysis of the most recent case law, Bertrand Ancel belongs to the scholars who preserve private international law from dogmatism.

The many articles in French, Spanish and Italian, forming the Mélanges, have been gathered to honor his erudition, intellectual accuracy and generosity.

The list of all contributors is available here, and the book can be ordered here.

Earlier this month, the English High Court rendered an interesting decision on the (un-)availability of anti-suit injunctions in protection of arbitration agreements under the Brussels I Recast Regulation (No 1215/2012). In Nori Holdings v Bank Otkritie [2018] EWHC 1343 (Comm), Males J critically discussed (and openly disagreed with) AG Wathelet’s Opinion on Case C-536/13 Gazprom and confirmed that such injunctions continue to not be available where they would restrain proceedings in another EU Member State.

The application for an anti-suit injunction was made by three companies that had all entered into a number of transactions with the defendant bank involving shares of companies incorporated in Cyprus. These arrangements were restructured in August 2017. In October 2017, the defendant alleged that the agreements entered into in the course of this restructuring were fraudulent and started proceedings in Russia – based, inter alia, on Russian bankruptcy law – to set them aside. In January 2018, the claimants reacted by commencing LCIA arbitrations against the bank – based on an arbitration clause in the original agreements, to which the restructuring agreements referred – seeking a declaration that the restructuring agreements are valid and an arbitral anti-suit injunction against the Russian proceedings. Meanwhile, each of the parties also commenced proceedings in Cyprus.

The defendant bank advanced several reasons for why the High Court should not grant the injunction, including the availability of injunctive relief from the arbitrators and the non-arbitrability of the insolvency claim. While none of these defences succeeded with regard to the proceedings in Russia, the largest individual part of the decision ([69]–[102]) is dedicated to the question whether the High Court had the power to also grant an anti-suit injunction with regard to the proceedings in Cyprus, an EU member state.

The European Court of Justice famously held in West Tankers (Case C-185/07) that ‘even though proceedings do not come within the scope of Regulation No 44/2001, they may nevertheless have consequences which undermine its effectiveness’ (at [24]) and that

[30] […] in obstructing the court of another Member State in the exercise of the powers conferred on it by [the Regulation], namely to decide, on the basis of the rules defining the material scope of that regulation, including Article 1(2)(d) thereof, whether that regulation is applicable, such an anti-suit injunction also runs counter to the trust which the Member States accord to one another’s legal systems and judicial institutions and on which the system of jurisdiction under [the Regulation] is based […].

Accordingly, it would be ‘incompatible with [the Regulation] for a court of a Member State to make an order to restrain a person from commencing or continuing proceedings before the courts of another Member State on the ground that such proceedings would be contrary to an arbitration agreement’ (at [34]).

Shortly thereafter, the European legislator tried to clarify the relationship between the Brussels-I framework and arbitration in Recital (12) of the recast Regulation. This Recital included, among other things, a clarification that a decision on the validity of an arbitration agreement is not subject to the Regulation’s rules on recognition and enforcement. Rather surprisingly, this was understood by Advocate General Wathelet, in his Opinion on Case C-536/13 Gazprom, as an attempt to ‘correct the boundary which the Court had traced between the application of the Brussels I Regulation and arbitration’ (at [132]); consequently, he argued that ‘if the case which gave rise to the judgment in [West Tankers] had been brought under the regime of the Brussels I Regulation (recast) […] the anti-suit injunction forming the subject-matter of [this judgment] would not have been held to be incompatible with the Brussels I Regulation’ (at [133]). AG Wathelet went even further when he opined that Recital (12) constituted a ‘retroactive interpretative law’, which explained how the exclusion of arbitration from the Regulation ‘must be and always should have been interpreted’ (at [91]), very much implying that West Tankers had been wrongly decided.

The Court of Justice, of course, did not follow the Advocate General and, instead, reaffirmed its decision in West Tankers in Case C-536/13 Gazprom. As Males J rightly points out (at [91]), the Court did not only ignore the Advocate General’s Opinion, it also very clearly regarded West Tankers a correct statement of the law under the old Regulation. While Males J considered this observation alone to be ‘sufficient to demonstrate that the opinion of the Advocate General on this issue on [sic] was fundamentally flawed’ (at [91]), he went on to point out six (!) further problems with the Advocate General’s argument. In particular, he argued (at [93]) that if the Advocate General were right, any proceedings in which the validity of an arbitration were contested would be excluded from the Regulation, which, indeed, would go much further than what the Recital seems to try to achieve.

Consequently, Males J concluded that

[99] […] there is nothing in the Recast Regulation to cast doubt on the continuing validity of the decision [in West Tankers] which remains an authoritative statement of EU law. […] Accordingly there can be no injunction to restrain the further pursuit of the Bank’s proceedings in Cyprus.

Of course, this does not mean that claimants will receive no redress from the English courts in a case where an arbitration agreement has been breached through proceedings brought in the courts of another EU member state. As Males J explained (at [101]), the claimants may be entitled to an indemnity ‘against (1) any costs incurred by them in connection with the Cypriot proceedings and (2) any liability they are held to owe in those proceedings.’ While one might consider such an award to be ‘an antisuit injunction in all but name’ (Hartley (2014) 63 ICLQ 843, 863), the continued availability of this remedy in the English courts despite West Tankers has been confirmed in The Alexandros T [2014] EWCA Civ 1010. In the present case, Males J nonetheless deferred a decision on this point as the Cypriot court could still stay the proceedings and because the claimants might still be able to obtain an anti-suit injunction from the arbitral tribunal.

The British Institute of International and Comparative Law is organising an event to be held on 3 July on the recent developments pertaining to third-party effects of assignment.

Time: 16:30 – 19.00 (Registration open from 16:00)

Venue: British Institute of International and Comparative Law, Charles Clore House, 17 Russell Square, London WC1B 5JP

The panel of distinguished speakers will discuss the recent proposal for an EU Regulation on the law applicable to third-party effects of assignment. The Rome I Regulation regulates contractual aspects of assignment but for a prolonged period of time the third-party aspects of assignment were surrounded by haze. Third-party effects of assignment are notoriously important in certain industries, such as securitisation and factors. Speakers involved in the preparatory work leading up to the proposal reflect on the operation of the proposal in practice. Further details can be found here.

Leuphana Law School is looking for a highly skilled and motivated Ph.D. candidate and fellow (wissenschaftliche/r Mitarbeiter/in) on a part-time basis (50%) as of 1 September 2018.

The successful candidate holds a first law degree (ideally the First State Exam (Germany) or LL.M. (UK)/J.D. (USA)/similar degree) and is interested in private international law, international economic law, and intellectual property law-all from a comparative and interdisciplinary perspective. A very good command of German and English is expected.

The fellow will be given the opportunity to conduct his/her own Ph.D. project (under the faculty’s regulations). The position is paid according to the salary scale E-13 TV-L, 50%. The initial contract period is three years, with an option to be extended. The research fellow will conduct research as part of the unit led by Professor Dr. Tim W. Dornis (Chair in Private Law, International Private and Economic Law, and Comparative Law) and will have an independent teaching obligation (2 hours/week).

If you are interested in this position, please send your application (cover letter, CV, and relevant documents) by 31 July 2018 to

Leuphana Universität Lüneburg
Personalservice, Corinna Schmidt
Kennwort: WiMi Rechtswissenschaften
Universitätsallee 1
21335 Lüneburg
bewerbung@leuphana.de

Leuphana University is an equal opportunity employer.

The job advert in full detail is accessible here.

The videos of the opening speeches, the keynote speech and the sessions of the global Conference “HCCH 125 – Ways Forward: Challenges and Opportunities in an Increasingly Connected World” (which took place in Hong Kong on 18-20 April) have been uploaded onto the HCCH YouTube channel.

Riga Graduate School of Law (RGSL) will be hosting the Erasmus+ Jean Monnet conference titled “Consumer Protection and Fundamental Rights” on 18-19 June.

The idea of the RGSL Jean Monnet Project is to conduct a multidisciplinary exploration of Fundamental Rights including their philosophical, geographic, technological, political, cultural, societal and economic dimensions. The project is designed for researchers, public administrators, professional groups and civil society representatives. There are four conferences envisaged with the first conference focusing on consumer protection.

The conference programme is available here.

For more info on the project click here.

In common law Canada there is a clear separation between the question of a court having jurisdiction (jurisdiction simpliciter) and the question of a court choosing whether to exercise or stay its jurisdiction.  One issue discussed in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) is the extent of that separation.  Does this separation mean that a particular fact cannot be used in both the analysis of jurisdiction and of forum non conveniens?  On its face that seems wrong.  A fact could play a role in two separate analyses, being relevant to each in different ways.

Justice Cote, with whom Justices Brown and Rowe agreed, held that “applicable law, as determined by the lex loci delicti principle, should be accorded little weight in the forum non conveniens analysis in cases where jurisdiction is established on the basis of the situs of the tort” (para 90).  She indicated that this conclusion was mandated by the separation of jurisdiction and staying proceedings, which extends to each being “based on different factors”.  So if the place of the tort has been used as the basis for assuming jurisdiction, the same factor (the place of the tort) should not play a role in analyzing the most appropriate forum when considering a stay.  And since the applicable law is one of the factors considered in that analysis, if the applicable law is to be identified based on the connecting factor of the place of the tort, which is the rule in common law Canada, then the applicable law as a factor “should be accorded little weight”.

In separate concurring reasons, Justice Karakatsanis agreed that the applicable law “holds little weight here, where jurisdiction and applicable law are both established on the basis of where the tort was committed” (para 100).  In contrast, the three dissenting judges rejected this reason for reducing the weight of the applicable law (para 208).  The two other judges did not address this issue, so the tally was 4-3 for Justice Cote’s view.

As Vaughan Black has pointed out in discussions about the decision, the majority approach, taken to its logical conclusion, would mean that if jurisdiction is based on the defendant’s residence in the forum then the defendant’s residence is not a relevant factor in assessing which forum is more appropriate.  That contradicts a great many decisions on forum non conveniens.  Indeed, the court did not offer any supporting authorities in which the “double counting” of a fact was said to be inappropriate.

The majority approach has taken analytical separation too far.  There is no good reason for excluding or under-weighing a fact relevant to the forum non conveniens analysis simply because that same fact was relevant at the jurisdiction stage.  Admittedly the court in Club Resorts narrowed the range of facts that are relevant to jurisdiction in part to reduce overlap between the two questions.  But that narrowing was of jurisdiction.  Forum non conveniens remains a broad doctrine that should be based on a wide, open-end range of factors.  The applicable law, however identified, has to be one of them.

The University of Milan-Bicocca – School of Law has issued a call for papers for the Academic Conference “Waiting for Brexit: open issues in the internal market and in the area of freedom, security and justice”. The Conference represents the closing event of the Jean Monnet course “The EU Court of Justice: techniques and instruments” and will be held at the University of Milan-Bicocca on Friday 19 October 2018.

Prof. Antonio Tizzano (Vice-President of the Court of Justice of the European Union) will chair the morning session and Prof. Fausto Pocar (Emeritus of International Law at the University of Milan) will chair the afternoon session.

Concept and main topics of the Conference

The result of the 2016 Brexit referendum was not only a political shock, but also and foremost a symbolic turning point in the history of the EU. The United Kingdom’s foreseen withdrawal from the Union has given rise to many political, legal, economic and social debates.

The main aim of the Conference is to contribute to analyse the impact and effects of Brexit on both EU Law and Italian law in practice. The “Waiting for Brexit” Conference – after a short overview of the main institutional aspects – will offer the audience with an insight into the changes that the withdrawal from the EU of a Member State will have on specific socio-economic areas. In particular, national and international experts (scholars, public officials, legal practitioners, industry representatives) will analyse and discuss topics such as banking and investment law, the transfer of personal data outside the EU, competition law, as well as certain aspects of judicial cooperation in civil and criminal matters.

In this context, the present Call aims to provide young researchers (i.e., PhD students and fellow researchers) of all disciplines with the opportunity to present their views on specific topics such as company law, IP law, consumer law, insolvency law, family law, labour law, tax law and customs union, air and maritime transport, relocation of EU agencies, etc. Nevertheless, the Organising Committee welcomes innovative and original contributions that cover topics already analysed by the expert speakers.

Abstract submission guidelines

Interested applicants should submit a short CV and a paper abstract in Italian or English of no more than 700 words (in .doc, .docx or .pdf format) to the attention of the Organising Committee (via e-mail at convegnobrexit.unimib@gmail.com).

The deadline for submission is 15 July 2018. Applications will be selected on the basis of the submitted abstracts and successful applicants will be informed by 6 August 2018.

Afterwards, successful applicants should send the draft papers to the Organising Committee by 15 September 2018. The final versions of the papers should be no longer than 40,000 characters (footnotes and spaces included). The Organising Committee will provide opportunity for publication of the best papers in a top-tier peer-reviewed European law journal.

Organising Committee

The Organising Committee is composed of Costanza Honorati (Full Professor of EU Law and Private International Law, University of Milan-Bicocca), Serena Crespi (Aggregate Professor of EU Law, University of Milan-Bicocca) and Paolo Iannuccelli (Référandaire at the Court of Justice of the European Union).

All questions and inquiries should be addressed to convegnobrexit.unimib@gmail.com. The Organising Committee is committed to answer at its earliest convenience.

Timeline for answers

• 15 July 2018 – Deadline for the submission of abstracts
• 6 August 2018 – Notifications sent to the successful applicants
• 15 September 2018 – Deadline for the submission of the draft papers
• 19 October 2018 – “Waiting for Brexit” Conference

Prof. Zamora Cabot has just made available on SSRN his contribution to the collective book Implementing the UN Principles on Business and Human Rights. Private International Law Perspectives (F. Zamora, L. Heckendorn, S. de Dycker, eds.), Shulthess Verlag, Zurich, 2017. The abstract reads as follows:

“For some time, the changing concept of extraterritoriality has been associated in a variety of ways with the international protection of Human Rights. It is, for example, linked to efforts to make the reparation mechanisms of the UN’s Guiding Principles accessible. Similarly, the notion is relevant to the States’ formal Extraterritorial Obligations (ETOS), which pressure States to fulfil the framework established in the International Covenant on Economic, Social and Cultural Rights. In both cases, the volume and quality of the technical contributions that have been produced are remarkable and worth taking into consideration.

In the context of this contribution and its focus on private international law, I will however limit my remarks to this particular field. In Section I, I will address questions that are arising in the United States following the US Supreme Court’s decision in the Kiobel case. Following that, in Section II, I will introduce a cross section of extraterritorial laws that particularly impact the fields under consideration here – corporations and human rights – before summing up with some concluding remarks.”

 (You can access to the ToC of the book itself here)

Another issue in the recent Supreme Court of Canada decision in Haaretz.com v Goldhar (available here) involves the applicable law as a factor in the forum non conveniens analysis.  It is clear that one of the factors in determining the most appropriate forum is the applicable law.  This is because it is quite easy for the forum to apply its own law and rather more difficult for it to apply the law of another jurisdiction.

So if the defendant can show that the forum would apply not its own law but rather the law of another jurisdiction, that points to a stay of proceedings in favour of that other jurisdiction.  In contrast, if the plaintiff can show that the forum would apply its own law, that points against a stay of proceedings.  In Haaretz.com the plaintiff was able to show that the Ontario court would apply Ontario law, not Israeli law.  So the applicable law factor favoured Ontario.

Not so, argued the defendant, because an Israeli court would apply Israeli law (see para 88).  So as between the two jurisdictions neither was any more convenient than the other!

In the Supreme Court of Canada, four of the judges rejected the defendant’s rejoinder.  The dissenting judges held that “[i]t is entirely appropriate, in our view, for courts to only look at the chosen forum in determining the applicable law.  Requiring courts to assess the choice of law rules of a foreign jurisdiction may require extensive evidence, needlessly complicating the pre-trial motion stage of the proceedings” (para 207).  In separate concurring reasons, Justice Karakatsanis agreed with the dissent on this point (para 100).  So because Ontario would apply Ontario law, this factor favours proceedings in Ontario rather than proceedings in Israel.

In contrast, Justice Cote, with whom Justices Brown and Rowe agreed, stated that “I am concerned that disregarding the applicable law in the alternative forum is inconsistent with the comparative nature of the forum non conveniens analysis” (para 89).  She cited in support an article by Brandon Kain, Elder C. Marques and Byron Shaw (2012).  The other two judges did not comment on this issue, so the court split 4-3 against looking at the applicable law in the alternative forum.

There is force to the practical concern raised by the dissent, and even with the assistance of the parties in many cases the court will be unable to form a sufficiently strong view as to what law the foreign forum would apply.  But conceptually it does seem that if it is established that the foreign forum will apply its own law, that should go to negate the benefits of the plaintiff’s chosen forum applying its own law.  Neither is any more convenient where compared against the other.

Perhaps because of the novelty of the approach, Justice Cote’s application of it may have missed the mark.  She held that “[a]s each forum would apply its own law, the applicable law factor cannot aid Haaretz in showing that it would be fairer and more efficient to proceed in the alternative forum” (para 88).  But the true point flowing from establishing that Israel would apply Israeli law, it would seem, should be that the applicable law factor cannot aid Goldhar (the plaintiff) in showing that it would be fairer and more efficient to proceed in Ontario.  If it cannot aid Haaretz.com that Israel would apply its own law, then how is the factor relevant and why is the court indicating a willingness to consider it?  It surely could not aid Haaretz.com that Israel would apply some other law.

On a motion for a stay, if the court did know what law would be applied in both the chosen forum and the alternative forum, we would have four possible situations.  On Justice Cote’s approach, if both forums would apply their own law, this is a neutral factor.  Similarly, if both forums would apply law other than forum law, this is also a neutral factor.  In the other two situations, the applicable law factor favours the forum that would be applying its own law.  With the court splitting 4-3 against looking at the applicable law in the alternative forum, this is not the approach – but should it be?