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On 31 March 2022, 4-7pm CEST, the German Association of International organizes an online panel, in German, on question of public and private international law regarding the Russian invasion of Ukraine: The topics are as follows:

• Public international law questions of armed conflict (Paulina Starski)
• Public international law questions “off the battlefield” (Markus Krajewski)
• The enforcement of claims from Russian government bonds: potential scenarios (Peter Kindler)
• The status of Ukrainian refugees in private international law (Jan von Hein)

More information here.

 

In 2019 in Würzburg a group of young researchers from several EU Member States met for a comparative Private International Law project and to create what later became the EAPIL Young Research Network.

The first project, initiated by Susanne Lilian Gössl (Germany) and  Martina Melcher (Austria), dealt with the national implementation of the CJEU/ECtHR case law regarding the so-called “recognition of status”.

The results, a comparative report and most of the national reports, of this project have now been published in the latest issue of the open-access journal Cuadernos de Derecho Transnacional.

The issue comes with national reports from Austria (Florian Heindler and Martina Melcher), Belgium (Sarah Den Haese), Baltic States (Katažyna Bogdzevič and Natalja Žitkevitš), Croatia (Tena Hoško), France (Marion Ho-Dac), Germany (Susanne Lilian Gössl), Hungary (Tamás Szabados), Italy (Marta Giacomini and Martina Vivirito Pellegrino), the Netherlands (Tess Bens and Mirella Peereboom-Van Drunick), Poland (Natalja Žitkevitš) and Spain (María Asunción Cebrián Salvat and Isabel Lorente Martínez)

A report from Sweden, by Laima Vaige, will be published in the forthcoming issue, in Autumn 2022.

I have reported on conflict of laws (jurisdictional and applicable law) angles to the EP’s draft proposals on Corporate Sustainability Due Diligence before. As I discuss in those posts (more analysis is on NOVA’s site here), many of the suggested routes created more difficulties than they solved. In the eventual February proposal (with 71 recitals: that is poor legislative drafting), the conflict of laws ambitions are much reduced. Leigh Day have a good summary of the issues here. Thank you Jorian Hamster for poking me to put my thoughts to paper.

The jurisdictional ambition is now merely expressed in terms of regulatory scope. On p.15 under the proportionality assessment, the proposal justifies its public international scope using the effects doctrine:

The EU turnover criterion for third-country companies creates a link to the EU. Including only turnover generated in the Union is justified since such a threshold, appropriately calibrated, creates a territorial connection between the third-country companies and the Union by the effects that the activities of these companies may have on the EU internal market, which is sufficient for the Union law to apply to third-country companies.

Proposed A2(1) focuses on ‘EU corporations’ (“companies which are formed in accordance with the legislation of a Member State) and proposed A2(2) looks at non-EU corporations (“companies which are formed in accordance with the legislation of a third country”), each with relevant thresholds distinguishing between quantitative (turnover) and qualitative (risk sectors: textiles, agriculture, extractive industries) criteria.

I am not sure why the lex incorporationis is preferred as the trigger criterion. Domicile as defined in Brussels Ia‘s Article 63 could be more attractive, seeing as it captures corporations with statutory seat outside of the EU but with their central administration or principal place of business here.

‘Turnover generated in the EU’ is bound to provoke some discussions however experience from in particular competition law should be able to help here.

The most obvious anchor point for applicable law is proposed A22. This sets out the requirement for Member States to define rules governing the civil
liability of the company for damages arising due to its failure to comply with the due diligence requirements, and then suggests in (5)

Member States shall ensure that the liability provided for in provisions of national law transposing this Article is of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.

The intention of this Article is to make the national civil liability rules which Member States are due to ensure in follow-up of the future Directive, so-called ‘overriding mandatory law’ aka ‘lois de police’ aka ‘lois d’application immédiate’ under A16 Rome II. The challenge for the EU to harmonise private law, such as civil liability rules, shows in this formulation. The EC makes recourse to a Directive, not a Regulation, since (p.17)

The proposed instrument is a Directive, since Article 50 TFEU is the legal basis for company law legislation regarding the protection of the interests of companies’ members and others with a view to making such protection equivalent throughout the Union. Article 50 TFEU requires the European Parliament and the Council to act by means of directives.

Hence rather than formulating the future Directive’s liability provisions itself as of overriding EU law nature (a possibility expressly foreseen in Rome I’s rules on applicable law for contracts, but not impossible I believe within Rome II), the Directive will oblige Member States to ensure the lois de police character of their future rules implementing the Directive. I understand the difficulty yet I think the proposal could shortcut the discussion (and avoid difficulties in case a Member State fails to declare the lois de police nature) by declaring ‘Member States’ provisions of national liability law transposing this Article are of overriding mandatory application in cases where the law applicable to claims to that effect is not the law of a Member State.’

(the latter part I believe is simply redundant).

In claims based on tortious liability, the Directive is most likely to be used to help establish fault (by action or omission). The remainder of the action (solidarity between various tortfeasors, damage calculation etc) will remain subject to the lex causae otherwise applicable. In claims based on unjust enrichment (a business and human rights route much worth exploring for supply chain cases) the Directive will most likely remain of smaller use seeing as these claims do not aim to establish liability, however the  paper trail which the Directive will ensure, may be of documentary use here, too.

Geert.

At first sight few conflict of laws anchors in EU's proposed due diligence law
EU turnover as threshold is reminiscent of EU competition law
Registered office as compliance anchor
A22 qualifies the Dir as lois de police viz Rome I, II
71 recitals – yukhttps://t.co/JV1dip9gfW pic.twitter.com/Obhkn3qXR8

— Geert Van Calster (@GAVClaw) February 23, 2022

Several French learned societies (International Arbitration Institute, Comité français de l’arbitrage, Comité français de droit international privé, French Branch of the International Law Association, Société de législation comparée) will pay a tribute to Emmanuel Gaillard in a conference held in the Grand Amphithéâtre of the Sorbonne in Paris on 15 April 2022.

The conference Emmanuel Gaillard Theory in Action will feature testimonials of a variety of professionals and discussions of some of the theories promoted by Emmanuel Gaillard, including the arbitral legal order and the boundaries of private international law.

The sudden passing of Professor Emmanuel Gaillard on 1 April 2021 came as a shock for the legal world. One year later, five learned societies, of which Professor Gaillard had been an active member, on whose governing board he had served or which he had founded, are endeavouring to pay tribute to his manifold contributions to the world of law as well as the depth of his thinking, in arbitration law and beyond. The testimonials, analyses and discussions that will be shared during this event will highlight Professor Gaillard’s ability to combine theory and practice. Though he is no longer with us, he will forever remain an inspiration to generations of lawyers, as they strive to carry forth his legacy: theory in action.

The full programme of the conference is available here. Registration to the conference is possible here.

Gaillard was a prolific author, who wrote many books and articles. He also liked to draw, and made some drawings which aptly summarise some of his theories.

Le maintien en zone d’attente d’un étranger pendant un délai de quatre jours sans l’intervention du juge judiciaire ne porte pas atteinte à la liberté individuelle, juge le Conseil constitutionnel.

en lire plus

The war in Ukraine has also affected the lives of legal researchers. The Max Planck Institute for Comparative and International Private Law is extending support to these individuals.

The Institute would like to assist scholars who have had to discontinue their research activities because of the war in Ukraine. Towards this end, the Institute is offering scholarships supporting a stay in Hamburg for research in the field of private law. In addition to office space and access to our library, we can also provide assistance in locating housing.

Affected researchers can contact the Institute’s Welcome Center. The offer is directed at doctoral candidates as well as individuals who have already earned their doctorates.

© shutterstock / MAKSIM ANKUDA

 

Under the Insolvency Regulation 2015, a transfer of the centre of main interests (COMI) of the debtor after lodging of the request for opening of insolvency proceedings affects the exclusive jurisdiction of the court seised with that application prior to the transfer?

This is the legal issue that the Court addresses in the judgement delivered this morning in the case Galapagos BidCo, C-723/20.

Factual context

A holding having its registered office in Luxembourg since 2014 contemplates, in June 2019, to move its actual centre of administration to England. In August 2019, its directors lodge a request before the High Court to have insolvency proceedings opened in respect of the debtor’s assets.

The following day the directors are replaced by a new one, who sets up an office for the holding in Germany.

The request to have insolvency proceedings opened before the High Court is not withdrawn. Quite to the contrary, they seem to continue although a decision opening these proceedings has not yet been delivered.

That being said, a request for the opening of insolvency proceedings is lodged by the holding also with a German court.

This court orders preservation measures and appoints a temporary insolvency administrator. The capital market and bondholders are informed that the centre of administration of the holding have been move to Germany. However, the second instance court ruling on an appeal introduced by the creditors reverses the order of the first instance and dismisses the debtor’s request to have insolvency proceedings opened, due to the lack of international jurisdiction.

Next, the creditors request to have insolvency proceedings opened, still in Germany, in respect of the debtor’s assets. The German court considers that it has jurisdiction to rule on the request as the centre of main interests of the holding is situated in Germany. It orders preservation measures and appoints a temporary insolvency administrator.

A subsidiary of the holding brings an appeal against the order. It argues that the German courts lack jurisdiction as the centre of administration of the holding has been moved to England in June 2019. The appeal is dismissed by the second instance court.

An appeal on a point of law is brought before the Bundesgerichtshof, which lodges a request for a preliminary ruling before the Court of Justice.

 

Preliminary questions

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that a debtor company the statutory seat of which is situated in a Member State does not have the centre of its main interests in a second Member State in which the place of its central administration is situated, as can be determined on the basis of objective factors ascertainable by third parties, in the case where, in circumstances such as those in the main proceedings, the debtor company has moved that place of central administration from a third Member State to the second Member State at a time when a request to have the main insolvency proceedings opened in respect of its assets has been lodged in the third Member State and a decision on that request has not yet been delivered?

If Question 1 is answered in the negative:

Is Article 3(1) of [the Insolvency Regulation 2015] to be interpreted as meaning that: the courts of the Member State within the territory of which the centre of the debtor’s main interests is situated at the time when the debtor lodges the request to have insolvency proceedings opened retain international jurisdiction to open those proceedings if the debtor moves the centre of its main interests to the territory of another Member State after lodging the request but before the decision opening insolvency proceedings is delivered, and such continuing international jurisdiction of the courts of one Member State excludes the jurisdiction of the courts of another Member State in respect of further requests to have the main insolvency proceedings opened received by a court of that other Member State after the debtor has moved its centre of main interests to that other Member State?

 

The judgement of the Court

The Court decided to answer the preliminary question without first requesting its Advocate General to present an Opinion.

In its judgement, the Court focuses its attention on the second preliminary question.

Its considers that, by this question, which it is appropriate to examine first, the referring court seeks to establish, in substance, whether Article 3(1) of the Insolvency Regulation 2015 is to be interpreted as meaning that the court of a Member State to which an application for the opening of main insolvency proceedings has been made retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after that application has been lodged but before that court has given a decision on it (paragraph 24).

The Court answers in the sense that the court of a Member State seised of an application for the opening of main insolvency proceedings retains exclusive jurisdiction to open such proceedings where the centre of the debtor’s main interests is transferred to another Member State after the application has been lodged but before that court has given a ruling on it. Consequently, and insofar as that Regulation remains applicable to that application, the court of another Member State subsequently seised of an application made for the same purpose may not, in principle, assume jurisdiction to open main insolvency proceedings until the first court has given judgement and declined jurisdiction (paragraph 40).

Having in mind the specificity of the case which concerns the UK, the Court makes some additional remarks as to the implications of Brexit. Indeed, the aforementioned passage relating to the fact that “the Regulation remains applicable to the application” echoes this issue.

In essence, the Court clarifies that if on the date of expiry of this transitional period (31 December 2020), High Court had still not ruled on the application for the opening of main insolvency proceedings (it seems that it is not clear whether this was the case), it would follow that Insolvency Regulation 2015 would no longer require that, as a result of this application, a court of a Member State, on the territory of which debtor’s centre of main interests would be located, should refrain from declaring itself competent for the purposes of opening such proceedings (paragraphs 38 and 39)

Given the answer to the second question and having in mind that at least potentially the court seized first with the request for the opening of main insolvency proceedings may have retained its exclusive jurisdiction, the Court deems it not necessary to address the first preliminary question  (paragraphs 41 to 43)

The judgement can be consulted here.

Austro-Mechana
Liberté d'établissement
L’exception dite de « copie privée » au titre de la directive sur le droit d’auteur s’applique au stockage sur le nuage (cloud) d’une copie à des fins privées d’une œuvre protégée

Upfield Hungary
Agriculture
La liste des ingrédients d’une denrée alimentaire contenant une vitamine ne doit pas obligatoirement mentionner la formule vitaminique spécifiquement utilisée

Guillaume Laganière – Professor of Law at the Université du Québec à Montréal – has recently published a monograph (based on his doctoral dissertation) titled Liability for Transboundary Pollution at the Intersection of Public and Private International Law. The book was published by Hart Publishing within its series Hart Monographs in Transnational and International Law.

The publisher informs that:

This book focuses on how public and private international law address civil liability for transboundary pollution. In public international law, civil liability treaties promote the implementation of minimum procedural standards in domestic tort law. This approach implicitly relies on private international law to facilitate civil litigation against transboundary polluters. Yet this connection remains poorly understood. Filling the gap, this book engages in a meaningful dialogue between the two areas and explores how domestic private international law can reflect the policies developed in international environmental law. It begins with an investigation of civil liability in international environmental law. It then identifies preferable rules of civil jurisdiction, foreign judgments and choice of law for environmental damage, using Canadian private international law as a case study and making extensive references to European law. Liability for transboundary pollution is a contentious issue of the law, both in scholarship and practice: international lawyers both private and public as well as environmental lawyers will welcome this important work.

Table of contents may be consulted here.

Al Assam & Ors v Tsouvelekakis [2022] EWHC 451 (Ch) shows the way many claims involving EU Member States facts or defendants are likely to go, until the novelty of newly found forum non freedom wears off perhaps: with intensive forum non conveniens-based jurisdictional challenges.

The defendant is domiciled in England and Wales. The claimants are the settlors of 2 Cypriot trusts who claim for the losses suffered in connection with the trusts’ investments. The trusts were both established under the International Trusts Law of the Republic of Cyprus.

As in Klifa v Slater, the forum non test, following Spiliada and VTB v Nutritek, [12] involves two limbs: Under limb 1 of the test, the Defendant must establish that the courts of Cyprus are both (i) “available” and (ii) are clearly or distinctly more appropriate than the English courts as a forum for determining the dispute. If the Defendant can establish that limb 1 of Spiliada is satisfied, it becomes necessary to consider limb 2. Limb 2 requires a consideration of whether, even if the courts of Cyprus are an available forum that is clearly or distinctly more appropriate for the trial of the action than the courts of England, justice nevertheless requires that a stay of the English proceedings should not be granted.

On availability, there is a bit of to and fro and each other’s Cypriot law legal experts, particularly on the territorial jurisdiction under residual Cypriot rules. However the conclusion [26] is that the Cypriot courts are ‘available’.

Obiter, Richards DJ discusses whether if there is no availability under Cypriot law, there might be availability if there is a submission to jurisdiction and/or an agreement /choice of court.

Discussion here was first whether A26 Brussels Ia could remedy the lack of territorial jurisdiction under Cypriot law. Unlike A25 choice of court, A26 does not include language making the defendant’s domicile in the EU a precondition for its application. At [32] the conclusion for the purpose of these proceedings is that there is a real risk that the Cypriot courts will not have jurisdiction on the basis of A26.

The discussion then [33ff] turns to the Cypriot courts being the clearly or distinctly a more appropriate forum with the conclusion being in the negative.

Helpfully, and suggested by counsel, the judge puts the following structure to the analysis:

a) personal connections ([39]: defendant’s residence in England remains a relevant factor pointing towards the English courts being the appropriate forum);

b) factual connections (held: correspondence between the parties will be of more relevance than the physical location of parties in Cyprus);

c) evidence/convenience/expense (conflicting factors here but none leading overwhelmingly to Cyprus);

d) applicable law (most likely Cypriot law for many of the claims however ia given the similarity with English law, this is not an overwhelmingly relevant issue [56] and some Swiss law will have to be applied anyways); and

e) the “overall shape of the litigation”, held [59] not to be Cypriot.

Limb 2, the requirements of justice, is considered obiter under two angles [61]: delays and the possibility of statutes of limitation kicking in. On the delays, [67] comity and caution to express chauvinistic views upon a friendly jurisdiction argue against a finding of unavailability of justice on this ground, particularly as the experts’ views on this were inconclusive; the possibility of statute of limitation is held [68] largely to be of the claimants’ own making (ia because they had started but discontinued proceedings in Cyprus. Limb 2 therefore, had it mattered, would not have been satisfied and had limb 1 been met, a stay of the proceedings in England would have been ordered.

Geert.

Defendant domiciled in E&W. Claimants (settlors of 2 Cypriot trusts sue for losses suffered in connection with Trusts' investments. Forum non argument dismissed. Another lengthy discussion following Brexit

Al Assam ea v Tsouvelekakis [2022] EWHC 451 (Ch) https://t.co/Sd7TJSkG3k

— Geert Van Calster (@GAVClaw) March 8, 2022

Many thanks indeed Hélène Péroz for flagging Sherpa & Les Amis de la terre France v Perenco ECLI:FR:CCASS:2022:C100199. The issue concerns what law applies to the issue of standing of NGOs in making recourse to France’s action for preserving evidence, in this case evidence relating to a future claim that France’s Perenco is liable for environmental damage in Congo.

The Court of Appeal had held that the issue of standing is subject to lex causae, which under the Rome II Regulation it had identified as the laws of Congo (whether this judgment included discussion of Article 7 Rome II on environmental damage, I do not know) and had declared the claim inadmissible.

The SC correctly in my mind holds that the issue of standing falls under the evidence and procedure carve-out of Rome II and is subject to lex fori, French law. However seeing as that law in the case of public interest litigation such as here requires the claimant to have included the broad purpose of the sector at issue within its scope of activities under its by-laws, the SC also holds that whether a particular claim is within the NGO’s scope, needs to be determined in accordance with its lex societatis.  This leads to the interesting conclusion (of little relevance in casu) that a foreign NGO’s action remit will have to be determined by foreign lex societatis, and that those foreign laws which have a less broad view of corporate scope, may put a spanner in the works of cross-border business and human rights litigation. (Quite easily circumvented one assumes by involving NGOs of an ‘attractive’ jurisdiction).

The SC nota bene does not specify whether its views on corporate (here: NGO) action radius are a result of the corporate carve-out in Rome II.

Geert.

EU Private International Law, 3rd ed. 2021, para 4.79 ff.

 

Must read this properly tomorrow for currently on cooking duty. (All under control. Nothing burning).
Potentially quite exciting. French SC on the applicable law for capacity to represent a (Congolese) NGO re a #bizhumanrights environmental claim. https://t.co/ZP4IxXAzWi

— Geert Van Calster (@GAVClaw) March 9, 2022

In Klifa v Slater & Anor [2022] EWHC 427 (QB), concerning a ski accident in Courchevel, France, the Claim Form was issued on 14 January 2021, just within the three year limitation period of England and Wales but just after the Brexit “Exit Day” also know as IP day (Brexit implementation day) (of 31 December 2020). Defendants take advantage of that to argue a forum non conveniens defence (which readers will know would have been impossible under Brussels Ia). France is suggested to be the ‘most appropriate forum’.

The skiing accident took place on 27 January 2018 and when (and as still is the case) the Claimant was domiciled and resident and habitually resident in France, the First Defendant was domiciled and resident (they being on holiday) in England & Wales, and the Second Defendant (the insurance company) was domiciled in England & Wales. Under Rome II, French law is the applicable law, other than for procedural law, including as to recovery of legal and other costs of the litigation, which is subject to English law, lex fori.

That latter element returns (with reference to ia Wall v Mutuelle de Poitiers) [25] as part of the forum non conveniens assessment, seeing as (Dagnall M) ‘in consequence of the difference in their methods of adducing expert evidence, the English & Welsh jurisdiction procedural approach is likely to be considerably more expensive than that in France, and which is reflected in the costs rules and approach of each country.’

At [40] Master Dagnall sums up the many issues leading to the case being very ‘French’ in nature, deciding on balance however [42] that the defendants have not met the (high hurdle) of proving that France is “distinctly” or “clearly” the more appropriate forum.

At [44] ff he holds obiter that even if they had met that test, a stay in favour of proceedings in France would not assist with “achieving the ends of justice”L the second part of the forum non test. At [48] two factors are singled out: enforcement will have to take place in England; and a lot of work prior to the claim form being issued was carried out prior to IP day, when forum non was not an issue. Recovering those costs would be impossible in France.

The point has been made ad nauseam by many and this case is a good illustration: post Brexit, forum non is back with a vengeance and it is a time-consuming and costly business.

Geert.

Evidence & procedure, quantification of damages under French law, impact on forum non conveniens (denied on the facts) in case of tort which occurred whilst Brussels Ia applied but with claim brought after Brexit
Klifa v Slater & Anor [2022] EWHC 427 (QB) https://t.co/xCfJYJws2f

— Geert Van Calster (@GAVClaw) March 8, 2022

The EAPIL founding conference is fast approaching! The conference will take place onsite in Aarhus on 2, 3 and 4 June 2022.

Those wishing to attend, are invited to register by 14 April 2022 at the latest. Please do so by filling the form available here. 

Registration fee is 100 Euros. Furthermore, you are very welcome to sign up for the conference dinner.

Law students without a final master degree in law can participate at a fee of 30 Euros (conference, including lunch and reception) and must register on the above link. If students wish to participate in the conference dinner, the separate conference dinner fee applies (see the registration link).

Participants who have previously chosen to transfer their registration/fee to the 2021 conference have been contacted directly by e-mail and offered to transfer their registration to 2022 or be reimbursed.

As there are other events in Aarhus during the days of the conference, it is strongly recommended that hotel reservations are made soon. Here are some suggestions in this regard.

The Max Planck Institute for Comparative Public Law and International Law (Heidelberg) and the Max Planck Institute for Comparative and International Private Law (Hamburg) are pleased to announce an intensive three- day seminar on “Populism and the New Foreign Relations Law: Between Public International Law, ‘External Public Law, and Conflict of Laws.”

The seminar will take place in Heidelberg on June 18-20, 2022, and will be co-directed by Prof. Anne Peters, Director, MPIL Heidelberg; Prof. Ralf Michaels, Director, MPI Hamburg; and Prof. Karen Knop, University of Toronto and Max Planck Law Fellow.

Costs for transportation (economy train or flight in Europe, lump sum for overseas), accommodation and meals in Heidelberg will be provided.

The seminar will host 20 Doctoral, Post-Doctoral and graduate researchers in law or other related fields. Application deadline: April 24, 2022

More information here.

 

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 9th CPLJ Webinar on 1 April 2022, 3:00 – 5:00 pm (CET).

The programme reads as follows:

Russell Miller – Senior Research Fellow and Head of Max Planck Law, J.B. Stombock Professor of Law (W&L University – Virginia)

          Comparing Comparisons: A Survey of Approaches to Comparative Law

The webinar is an open event. For more information and to register see here.

(Image credits:  Rijksmuseum, Amsterdam)

 

 

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

H.-P Mansel/K. Thorn/R. Wagner: European Conflict of Law 2021: The Challenge of Digital Transformation

This article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from January 2021 until December 2021. It gives information on newly adopted legal instruments and summarizes current projects that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore, the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the CJEU as well as important decisions from German courts pertaining to the subject matter of the article. In addition, the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

 

H. Wais: The Applicable Law in Cases of Collective Redress

Both the European and the German legislator have recently passed legislation aimed at establishing access to collective redress for consumers. As European conflict of law rules do not contain any specific rules on the applicable law in cases of collective redress, the existing rules should be applied in a way that enables consumers to effectively pursue collective actions. To that aim, Art. 4 (3) 1st S. Rome II-Regulation provides for the possibility to rely on the place of the event that has given rise to the damages as a connecting-factor for collective redress cases in which mass damages have occurred in different states. As a consequence of its application, all claims are governed by the same applicable law, thereby fostering the effectiveness of collective redress.

 

M. Lehmann: Locating Financial Loss and Collective Actions in Case of Defective Investor Information: The CJEU’s Judgment in VEB v BP

For the first time, the CJEU has ruled in VEB v BP on the court competent for deciding liability suits regarding misinformation on the secondary securities market. The judgment is also of utmost importance for the jurisdiction over collective actions. This contribution analyses the decision, puts it into larger context, and discusses its repercussions for future cases.

 

M. Pika: Letters of Comfort and Alternative Obligations under the Brussels I and Rome I Regulations

In its judgment of 25 November 2020 (7 U 147/19), the Higher Regional Court of Brandenburg ruled on special jurisdiction regarding letters of comfort under Article 7 No. 1 Brussels I Regulation. While the court left the decision between lit. a and lit. b of that Article open, it ruled that either way, the courts at the domicile of the creditor of the letter of comfort (in this case: the subsidiary) have no special jurisdiction. This article supports the court’s final conclusion. In addition, it assesses that Article 7 No. 1 lit. b Brussels I Regulation on services may apply to letters of comforts given the CJEU’s decision in Kareda (C-249/16).

 

B. Hess/A.J. Wille: Russian default interests before the District Court of Frankfort

In its judgment of February 2021, the Landgericht Frankfurt a.M., applying Russian law, awarded a three-month interest rate of 37% to a defendant domiciled in Germany. When examining public policy, the regional court assumed that there was little domestic connection (Inlandsbezug), as the case was about the repayment of a loan issued in Moscow for an investment in Russia. However, the authors point out that the debtor’s registered office in Hesse established a clear domestic connection. In addition, the case law of German courts interpreting public policy under Article 6 EGBGB should not be directly applied to the interpretation of Articles 9 and 21 of the Rome I Regulation.

 

D. Looschelders: Implied choice of law under the EU Succession Regulation – not just a transitional problem in connection with joint wills

The decision of the German Federal Supreme Court focuses on the question, under which conditions an implied choice of law may be assumed within the framework of the EU Succession Regulation (Regulation No 650/2012). In this particular case, an implied choice of German law as the law governing the binding effect of the joint will drawn up by the German testator and her predeceased Austrian husband was affirmed by reference to recital 39(2) of the EU Succession Regulation. Actually, the joint will of the spouses stipulated the binding effect as intended by German law. As the spouses had drawn up their will before the Regulation became applicable, the question of an implied choice of law arose in the context of transition. However, the decision of the German Federal Supreme Court will gain fundamental importance regarding future cases of implied choices of law for all types of dispositions of property upon death, too. Nevertheless, since the solution of the interpretation problem is not clear and unambiguous, a submission to the ECJ would have been necessary.

 

M. Reimann: Human Rights Litigation Beyond the Alien Tort Claims Act: The Crucial Role of the Act of State Doctrine

The Kashef case currently before the federal courts in New York shows that human rights litigation against corporate defendants in the United States is alive and well. Even after the Supreme Court’s dismantling of the Alien Tort Claims Act jurisdiction remains possible, though everything depends on the circumstances. And even after the Supreme Court’s virtual elimination of federal common law causes of action claims under state or foreign law remain possible, though they may entail complex choice-of-law issues.

Yet, so far, the most momentous decision in this litigation is the Court of Appeals’ rejection of the defendants’ potentially most powerful argument: the Court denied them shelter under the act of state doctrine. It did so most importantly because the alleged human rights abuses amounted to violations of jus cogens.

Coming from one of the most influential courts in the United States, the Second Circuit’s Kashef decision adds significant weight to the jus cogens argument against the act of state doctrine. As long as the Supreme Court remains silent on the issue, Kashef will stand as a prominent reference point for future cases. This is bad news for corporate defendants, good news for plaintiffs, and excellent news for the enforcement of human rights through civil litigation.

 

J. Samtleben: Paraguay: Choice of Law in international contracts

To date, Paraguay is the only country to have implemented into its national law the Hague Principles on Choice of Law in International Commercial Contracts. Law No. 5393 of 2015, which closely follows the Hague model, owes its creation primarily to the fact that the Paraguayan delegate to the Hague was actively involved in drafting the Principles. Unlike the Principles, however, Law No. 5393 also regulates the law governing the contract in the absence of a choice of law, following the 1994 Inter-American Convention on the Law Applicable to International Contracts of Mexico. Contrary to the traditional rejection of party autonomy in Latin America, several Latin American countries have recently permitted choice of law in their international contract law. Paraguay has joined this trend with its new law, but it continues to maintain in procedural law that the jurisdiction of Paraguayan courts cannot be waived by party agreement.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features the following articles on private international and comparative law:

 

Werner F. Ebke: Prüfungs- und Beratungsnetzwerke und die Unabhängigkeit des Abschlussprüfers: Versuch einer europarechtskonformen Konturierung des § 319b Abs. 1 Satz 3 HGB

Independence is the cornerstone of the law requiring corporations to have their annual financial statements and consolidated statements audited by independent accountants. To ensure confidence in the audit function, EU Directive 2006/43/EC and EU Directive 2014/56/EU emphasize that statutory auditors and audit firms should be independent when carrying out statutory audits. Accordingly, Member States are required to ensure that an auditor or an audit firm shall not carry out a statutory audit if there is any direct or indirect financial, business, employment or other relationship – including the provision of additional non-audit services – between the statutory auditor, audit firm or network and the audited entity from which an objective, reasonable and informed third party would conclude that the statutory auditor’s or audit firm’s independence is compromised. Building on these two Directives, Regulation (EU) 537/2014 states that a statutory auditor or an audit firm carrying out the statutory audit of a public-interest entity (PIE), or any member of the network to which the statutory auditor or the audit firm belongs, shall not directly or indirectly provide to the audited entity, to its parent company or to its controlled companies within the EU any of the prohibited non-audit services listed in its Article 5. The reference to a “network” takes account of the fact that, since the 1980ies, audit firms are increasingly cooperating with each other, both nationally and internationally, to provide audit and consulting services pursuant to (worldwide) uniform standards close to their clients with highly qualified personell at reasonable costs (economies of scale; regional or global presence). Article 2 No. 7 of EU Directive 2006/43/EC contains a broad defintion of the term “network” which is also applicable within the ambit of Regulation (EU) 537/2014. The German legislature has implemented the definition in § 319b of the Commercial Code (HGB), although not verbatim. After a short desciption of the rules requiring the auditor’s independence (II.), we shall illuminate the legal environment within which § 319b operates (III.). Thereafter, the present essay analyses the term “network”, using the classic means of interpretation of statutes and secondary European law in light of the jurisprudence of the ECJ (IV.). Against this backdrop, the application of § 319b will be examined (V.). A brief summary of the findings will conclude the essay (VI.).

 

Francesco A. Schurr/Angelika Layr: Emission und Übertragung von DLT-Wertrechten im internationalen Privatrecht Liechtensteins und der Schweiz

The legal scholarly discussion of the last decade has brought to the establishment of various models in the fields of contract law, property law, company law, securities law etc. Thus, various legal problems in these fields of law could be solved. On the contrary, many legal questions regarding the tension between DLT and the conflict of law rules still need to be answered. The present paper intends to contribute to finding answers to these questions and analyses the progressive legislation of Liechtenstein and Switzerland in the fields of Blockchain. In most scenarios analysed in the paper there is a need to rely on a choice of law clause in order to achieve the desired legal certainty.

 

Marco Lettenbichler: Die Generalversammlung der liechtensteinischen Aktiengesellschaft und die Übertragung von deren Befugnissen auf andere Organe

This article deals with the question whether powers of a general meeting of a Liechtenstein stock corporation are transferable to other organs. According to Art. 338 (3) PGR, the flexible Liechtenstein Persons and Companies Act allows for transferring all tasks assigned by law and by the articles of association to another body. This norm is the subject of this article. It is to be examined whether a full transfer of tasks is compatible with the Liechtenstein legal system. After a legal comparison with Austrian, German and Swiss stock corporation law, it is concluded that there is an inalienable and non-transferable core area of tasks of the general meeting.

 

WANG Qiang: Optimiert oder nur halbherzig geändert? – Die Erbenhaftung für Nachlassverbindlichkeiten in Chinas neuem Erbrecht im rechtswissenschaftlichen und -terminologischen Vergleich zum deutschen Erbrecht

On May 28th 2020, the People’s Republic of China witnessed the promulgation of its Civil Code after having it put on high political and legislative agenda in the past years. Since its founding in 1949, the PRC have undertaken numerous endeavors to codify its civil law, which finally culminated in this codification. A landmark law of the PRC, the new Civil Code embodies furthermore a significant milestone in China’s legal history, especially of civil law legislation, which, in contrast to its long and turbulent history, had not started until the late Qing-Dynasty (1911). With the Civil Code’s implementation on January 1st, 2021, the leges speciales, which had been drawn upon as essential basis for the seven books of the Civil Code, were replaced by the latter. Expecting comprehensive law renewals fulfilled in the course of the codification, legal scholars in the PRC, especially those of the inheritance law, set great hope on the newly codified inheritance law as an initiative to thoroughly update and improve the old one, which had been in force as lex specialis ever since 1985 and needed urgent reform in numerous aspects. However, the long-expected substantial reform of the outdated inheritance law has failed to materialize. First and foremost, the regulations on the heirs’ liabilities for obligations of the estate, which are comprehensive in content and therefore complicated, but at the same time highly important in legal practice, still remain extremely cursory. The article aims at providing an in-depth analysis of the afore-mentioned regulations stipulated in the newly codified inheritance law in comparing them with those of the German inheritance law. Shedding light nevertheless on the reform achievement of the new inheritance law in certain aspects, this article will probe into the roots of the relevant problems while exploring potential solutions mainly from the legal-technical, legal-systematic and legal-terminological perspective.

bpost, Nordzucker e.a
DFON
Cumul de poursuites et de sanctions de nature pénale en droit de la concurrence : la Cour précise la protection qu’offre le droit de l’Union contre la double incrimination

Prokurator Generalny (Chambre disciplinaire de la Cour suprême - Nomination)
Principes du droit communautaire
La Cour déclare irrecevable la demande de décision préjudicielle d’une juridiction polonaise, visant à savoir si le droit de l’Union lui confère le pouvoir, qu’elle ne détient pas en vertu du droit polonais, de constater que la relation de travail d’un juge est inexistante en raison de vices entachant l’acte de nomination de celui-ci