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Landeshauptmann von Wien (Perte du statut de résident de longue durée)
Espace de liberté, sécurité et justice
Le ressortissant d’un pays tiers ne perd pas son statut de résident de longue durée si sa présence sur le territoire de l’Union se limite, au cours d’une période de douze mois consécutifs, à quelques jours seulement

Roumanie / Commission
Citoyenneté européenne
La Cour confirme la décision de la Commission d’enregistrer la proposition d’initiative citoyenne européenne « Minority SafePack - one million signatures for diversity in Europe »

Commission / Grèce (Récupération d’aides d’État - Ferronickel)
Aide d'État
La Grèce est condamnée à payer une somme forfaitaire de 5,5 millions d’euros et une astreinte de plus de 4 millions d’euros par semestre de retard pour ne pas avoir récupéré les aides d’État octroyées à Larco

La Ley – Unión Europea is a Spanish journal published monthly by Wolters Kluwer under the editorship of Professor Fernández Rozas (University Complutense, Madrid). It comprises several sections; contributions are classified depending on their length and nature – whether analytical or descriptive. Although not exclusively devoted to private international law, every issue contains at least an in-depth comment to a decision of the Court of Justice related to judicial cooperation on civil and commercial matters. An English abstract is attached to all of them.

A personal selection of five (random number) articles published in 2021, in chronological order:

Rafael Arenas García (University Autónoma of Barcelona), Jurisdiction over rights in rem in immovable property and jurisdiction in contractual matters in the case law of the Court of Luxembourg, La Ley-Unión Europea February 2021 – commenting C-433/19, Ellmes Property service Limited.

The judgment of November 11, 2020 interprets both the exclusive ground of jurisdiction in proceedings which have as their object rights in rem in immovable property and the ground of jurisdiction in matter relating to a contract of art. 7.1 of Regulation 1215/2012. Regarding the first of these forums, the Court considers that an action must be regarded as constituting an action «which has as its object rights in rem in immovable property, provided that the action may be relied erga omnes. With regard to the contractual forum, it is especially significant that the Court determines directly the place of fulfilment of the obligation without considering the governing law of the obligation according with the conflict rules of the court seised.

Ángel Espiniella Menéndez (University of Oviedo), Cross-Border Payments by Subrogation after the Insolvency, La Ley – Unión Europea September 2021, commenting (very critically) on C- 73/20, ZM.

The Judgment analyses the case of a cross-border payment made by the debtor by subrogation
and after the opening of the insolvency proceeding. The Court considers that this payment shall be governed by the law of the contract and not by the law of the insolvency proceeding. A very doubtful conclusion which is contrary to the equal treatment of creditors.

Santiago Álvarez González (University of Santiago de Compostela), A new, provisional and debatable delimitation of international jurisdiction over violations of personality rights, La Ley – Unión Europea September 2021, commenting (again, very critically) on C-800/19, Mittelbayerischer Verlag.

On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C-800/19,
Mittelbayerischer Verlag KG v. SM. The ECJ held that «Article 7(2) of Regulation (EU) n.o 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that the courts of the place in which the centre of interests of a person claiming that his or her personality rights have been infringed by content published online on a website is situated have jurisdiction to hear, in respect of the entirety of the alleged damage, an action for damages brought by that person only if that content contains objective and verifiable elements which make it possible to identify, directly or indirectly, that person as an individual».The author does not consider that the new ECJ judgement is justified by the predictability of the rules of jurisdiction laid down by Regulation no 1215/2012, the legal certainty which that regulation seeks to guarantee, or the sound administration of justice as the ECJ does. Furthermore, he thinks that all these objectives should lead down to an entire reconsideration of the ECJ doctrine on «centre of interests» and the «mosaic approach» in the framework of art. 7.2 Regulation no. 1215/2012.

(Follow up: a note by Pedro de Miguel on C-251/20, Gtflix tv is expected in La Ley, in January 2022)

Pilar Jiménez Blanco (University of Oviedo), The procedural risks of changing the consumer’s domicile: do the Brussels I bis Regulation and the Lugano convention need a reform?, La Ley-Unión Europea November 2021, on C-296/20, Commerzbank.

The Commerzbank Judgment shows the risks derived from the change of domicile of the consumer
after the conclusion of the contract in the cases of passive consumer of art. 17.1.c) of the Brussels I bis
Regulation [art. 15.1.c) of the Lugano Convention]. Such risks must be assumed when the consumer is the defendant, considering only the domicile at the time of filing the claim. However, these risks break with the predictability of the competence when the consumer is the plaintiff and the professional has not pursued or directed his commercial or professional activities to the State of the new domicile. Here is a reflection on the opportunity to adapt the Brussels Ia Regulation and the Lugano Convention to this situation.

Francisco Manuel Mariño Pardo (Notary), European Certificate of Succession. Temporary effectiveness of authentic copies and effectiveness with respect to the persons designated therein, La Ley-Unión Europea December 2021, on C-301/20, UE, HC y Vorarlberger Landes-und Hypothekenbank, with the added value of the author’s reflections on the impact on the Spanish notarial practice.

On its judgment of 1st. July 2021, the ECJ held that article 70(3) of Regulation (EU) n.o 650/2012
must be interpreted as meaning that a certified copy of the European Certificate of Succession, bearing the words «unlimited duration», is valid for a period of six months from the date of issue and produces its effects, within the meaning of Article 69 of that regulation, if it was valid when it was presented to the competent authority; and that article 65(1) of the same Regulation, read in conjunction with its Article 69(3), must be interpreted as meaning that the effects of the European Certificate of Succession are produced with respect to all persons who are named therein, even if they have not themselves requested that it be issued.This paper analyzes the ECJ judgment and add some thoughts on its effects on the Spanish notary activity.

Durant les six mois – dont trois en dehors vraiment de toutes considérations électorales – de la présidence française du Conseil européen (PFUE), les avocats sont aux avant-postes pour rappeler les fondamentaux de l’État de droit, tout en essayant de faire aussi entendre leur voix sur des sujets de compétitivité économique.

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La France préside le Conseil de l’Union européenne pour six mois. À cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz s’associent pour vous proposer ce podcast dont la vocation est de sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

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Deutsche Telekom / Commission
Concurrence
Le Tribunal accorde à Deutsche Telekom une indemnité d’environ 1,8 million d’euros à titre de réparation du préjudice qu’elle a subi en raison du refus de la Commission européenne de lui verser des intérêts moratoires sur le montant de l’amende qu’elle a indûment payé dans le contexte d’une infraction aux règles de la concurrence

Deutsche Telekom / Commission
Concurrence
Le Tribunal accorde à Deutsche Telekom une indemnité d’environ 1,8 million d’euros à titre de réparation du préjudice qu’elle a subi en raison du refus de la Commission européenne de lui verser des intérêts moratoires sur le montant de l’amende qu’elle a indûment payé dans le contexte d’une infraction aux règles de la concurrence

EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The sixth EFFORTS Newsletter was just released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.

The EFFORTS Reports on national case-law have also been posted: you may follow this link for the Reports on Belgian, French and Luxembourg case-law, respectively. The other reports will be posted in the forthcoming weeks.

Regular updates are also available via the Project’s website, as well as  LinkedIn and Facebook pages.

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Tommorow, 20 January 2022, the Department of Law of the European University Institute organizes a Conference on Appellate Review and Rule of Law In International Trade and Investment Law. The event will take place in a hybrid format that may be attended online via zoom or offline in person at the Badia Fiesolana-Refettorio.

The organzizers characterise the purpose of the Conference as follows:

“Do regulatory competition, geopolitical rivalries, climate change, regionalism and plurilateral agreements risk undermining the UN and WTO legal orders and sustainable development objectives? How should the EU respond? This conference aims to create an interactive and targeted discussion on these intricate questions, with presentations by esteemed scholars in international economic law and policy

Why is it that the EU promotes judicialization and appellate review in trade and investment relations while the US government has unilaterally disrupted the appellate review system of the Word Trade Organization and seeks to limit judicial remedies in trade and investment agreements? Is appellate review necessary for protecting rule of law, sustainable development and prevention of trade, investment and climate conflicts? Answers to these questions are influenced by the prevailing conceptions of international economic law. Commercial law conceptions and Anglo-Saxon neo-liberalism often prioritize private autonomy and business-driven arbitration and market regulation. Authoritarian governments tend to prioritize state sovereignty and intergovernmental dispute settlements. European ordo-liberalism emphasizes the need for embedding economic markets into multilevel human and constitutional rights and judicial remedies.

This conference aims to create an interactive and targeted discussion on these intricate questions, with presentations by esteemed scholars in international economic law and policy. The International Economic Law and Policy Working Group is therefore delighted to invite you to join this discussion on Thursday, 20th January 2022 at 14.30 (CET).

 

Speakers:

Professor Ernst-Ulrich Petersmann, European University Institute,

Professor Fabrizio Marrella, Ca’ Foscari University of Venice,

Dr Maria Laura Marceddu, European University Institute, and

Professor Bernard Hoekman, European University Institute”

This event is open to all. Please register via thefollowing link by Wednesday, 19th January 2022, indicating whether you would like to attend the event in person or online. The Zoom link as well as the participants allowed to attend the event in person will be shared with registered participants prior to the event.”

For the programme and further information on the EUI Conference please consult the attached programme as well as the event’s website.

 

 

 

At the beginning of December 2021 the European Commission launched a new initiative aiming to digitalise cross-border judicial cooperation – the Proposal for a Regulation on Digitalisation of Judicial Cooperation and Access to Justice in Cross-Border Civil, Commercial and Criminal Matters, and Amending Certain Acts in the Field of Judicial Cooperation.

The proposed regulation does not establish new European procedures, but focuses on electronic communication in the context of cross-border judicial cooperation procedures and access to justice in civil, commercial and criminal matters in the EU. With the adoption of this regulation the European legislator seeks to create the necessary legal framework to facilitate electronic communication in the context of the cross-border judicial cooperation procedures in civil, commercial and criminal matters.

The present text follows a proposal from December 2020 for a Regulation on a Computerised System for Communication in Cross-Border Civil and Criminal Proceedings (mentioned earlier in other blogs available here, here, and here) – and two recast regulations from November 2020 – the Service of Documents Regulation and the Taking of Evidence Regulation (see earlier blogposts here and here). The Service of Documents and Taking of Evidence Regulations establish a first comprehensive legal framework for electronic communication between competent authorities in cross-border judicial procedure, and will rely – as the present proposal – on the e-CODEX decentralized IT system to exchange standardized forms, documents, and certifications (more on the e-CODEX decentralized system pilots can be read here, here, and here).

The proposal is based on Articles 81(1) and 82 TFEU and follows an identical approach to the solutions chosen in the recasts of the Service of Documents and Taking of Evidence Regulations for the use of electronic communication means. However, the text of the present proposal will not become applicable in relation to the aforementioned regulations.

The EU Regulations covered by this initiative are listed in two annexes: one concerning legal acts in civil and commercial matters and the other the legal acts in criminal matters (available here).

The present development comes after a number of instruments have been adopted over the years to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. These instruments had been developed with a paper-based format in mind, an approach followed by most national procedures within the EU. This characteristic of the European instruments and the lack of interconnection of the national electronic systems (where available for judiciaries) meant that national authorities and individuals have not been able to rely extensively on the developments of digital communication or security mechanism offered by electronic documents, signatures and seals in cross-border proceedings. Given this situation, during the COVID-19 pandemic many technical solutions were developed in an ad-hoc manner to limit disruption of justice services and judicial cooperation. However, such solutions may not always satisfy the highest level of security and guarantee of fundamental rights.

For this reason further steps were considered necessary by the European legislator. Rules on digitalisation are becoming desirable to improve access to justice as well as the efficiency and resilience of the communication flows inherent to the cooperation between judiciaries and other competent authorities in EU cross-border cases. The pandemic increased consideration for creating a framework that is able to secures access to justice and facilitate communication of authorities in charge of delivering justice services during long lasting disruptive events.

The Explanatory Memorandum of the proposal emphasizes the importance to achieve the following goals: efficient cross-border cooperation, resilience in force majeure circumstances, and contributing to securing access to justice within ‘a reasonable time’ as crucial element for the right to a fair trial.

Aims of the Proposal

The proposed regulation aims to ‘ensure an adequate and holistic infrastructure for electronic communication between individuals, legal entities or competent authorities with the authorities of another Member State’. This common approach should:

• Ensure the availability and broad use of electronic means of communication in cross-border cases between Member States’ competent authorities including the Justice and Home Affairs and EU bodies;
• Enable the use of electronic means of communication in cross-border cases between individuals and legal entities, and courts and competent authorities (except for situations covered by the Service Regulation);
• Facilitate the participation of parties in oral hearings through videoconference or other distance communication technology in cross-border civil and criminal proceedings for reasons other than the taking of evidence (taking of evidence by videoconference or other distance communication technology fall under the Evidence Regulation);
• Ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form (this is not to touch upon courts’ powers to decide on the validity, admissibility and probative value as evidence under national law); and
• Ensure the validity and acceptance of electronic signatures and seals in electronic communication in cross-border judicial cooperation and access to justice.

When adopted the text is set to coordinate Member States’ efforts in digitalising judicial services and establish a coherent framework for the existing EU rules, leading to simplification and speeding up of communication between Member States authorities and individuals and legal entities.

The e-CODEX system will secure the interoperability of national and EU access points, while the European e-Justice Portal is expected to undergo some modifications to support the interaction between natural and legal persons and courts and competent authorities in cross-border proceedings.

Overview of the Text of the Proposal

The first articles (Articles 1-2) establish the scope of the act, the limitations to its application and defines the concepts used within its provisions. Article 3 is dedicated to the rules concerning the decentralised system consenting electronic communication between courts and competent authorities. The use of the system is to be compulsory, except in case of disruption of the system or in other specific circumstances. Article 4 establishes the European electronic access point. The European electronic access point is to be part of the e-CODEX decentralised IT system and may be used by natural and legal persons for electronic communication with the courts and competent authorities in civil and commercial matters having cross-border implications. This is to be located on the European e-Justice Portal. Article 5 sets a duty on the EU Member States’ courts and competent authorities to accept electronic communication from natural and legal persons in judicial procedures, but leaves the choice of the electronic means of communication at the discretion of the natural and legal persons (e.g. European electronic access point, national IT portals were available for participation in judicial procedures). Article 6 recognises an electronic submission to be equivalent to a paper one and requires national authorities to accept such communications from natural and legal persons. Article 7 provides the legal basis and sets out the conditions for using videoconferencing or other distance communication technology in cross-border civil and commercial proceedings under the legal acts listed in Annex I and in civil and commercial matter where one of parties is present in another Member State. Additionally, special rules are set by this article for hearing children. Article 8 addressing the same aspect for criminal matters, including special rules for hearing a suspect person, an accused, convicted person or children. Article 9 focuses on using trust services (i.e. electronic signatures and seals) in electronic communication. Article 10 requires that electronic documents are not denied legal effects solely on the ground that they are in electronic form. This provision is similar to provisions on the matter included in the Recast Service of Documents and Tacking of Evidence Regulations as well as the eIDAS Regulation. Article 11 provides the legal basis for electronic payment of fees, including through the European e-Justice Portal. This point is of high significance in cross-border procedures as it proved to be a problematic aspects in the application of the European uniform procedures in several Member States (e.g. the European Order for Payment, the European Small Claims Procedure). Article 12 lays the framework for the Commission to adopt the necessary implementing acts, while Articles 13-14 mandate the Commission to create, maintain, and develop the reference implementation software and deal with the matter of cost bearing for various IT developments. Article 15 addresses the aspects related to the protection of personal data exchanged through the digital means. Articles 16-18 set the rules for collecting data and evaluation of the effectiveness of the proposed Regulation. This is followed by a number of articles focusing on the amendment of several regulations in civil, commercial and criminal matters. Articles 19-22 introduce a number of amendments to Regulations in civil and commercial matters included in Annex I, while Article 23 seeks to amend criminal matters side related to the Regulation on mutual recognition of freezing orders and confiscation orders.

Regulations to be Amended by the Proposal

The European uniform procedures regulations – European Order for Payment, European Small Claims Procedure and the European Account Preservation Order – will be amended by the present proposal. The rules seek to create the legislative format to: (1) recognise the submission of the applications or other forms of the procedures by electronic communication means provided by the present proposal or any other means of communication, included electronic, accepted by the Member State of origin or available to the court of origin, (2) secure the recognition of electronic signatures, (3) make available means of electronic payment of court fees (i.e. for the European Small Claims Procedure), (4) secure the communication by electronic means of communication between the authorities and the parties involved.

Another regulation to be amended is the Insolvency Regulation. The proposal introduces provisions related to the cooperation and communication between courts for secondary insolvency proceedings in the sense that these should be carried out via the decentralised electronic means referred to by the present proposal – e-CODEX. Additionally, any foreign creditor should be able to lodge claims in insolvency proceedings by any means of communications accepted by the State of opening of the proceedings or by the electronic means provided by Article 5 of the proposal.

In criminal matters, the Regulation on the mutual recognition of freezing orders and confiscation orders will also be amended when the proposed regulation will be adopted. The e-CODEX decentralized system consenting electronic communication between courts and competent authorities will have to be used for a number of actions, namely: (1) by the issuing authority to transmit the freezing order to the executing authority, or central authority; (2) for the executing authority to report on the execution of the freezing order; (3) to inform the issuing authority on any decision to recognise and execute or not to recognise and execute an issued freezing order; (4) for the executing authority to report the postponement of the execution to the issuing authority and subsequent measures taken for its execution; and (5) for the execution authority to make a reason request to the issuing authority to limit the period for which the property is to be frozen. The same applies for similar provisions related to confiscation orders.

Concluding Remarks

When adopted this regulation will achieve one of the goals set out in last year’s Communication on the Digitalisation of Justice: making ‘digital communication channels the default channel in cross-border judicial cases’. If properly applied this will address two main problems of cross-border judicial cooperation: inefficiencies affecting this cooperation and barriers to access to justice in cross-border civil, commercial and criminal cases.

Now, it remains to be seen how the adopted text of the regulation will look like and how long it will take for achieving its full deployment in cross-border civil, commercial and criminal cases.

La Commission européenne a engagé, le 22 décembre 2021, une procédure en manquement contre la Pologne à la suite des décisions de son Tribunal constitutionnel des 14 juillet et 7 octobre 2021. Dans la continuité de nombreuses autres procédures, le sens et la portée de cette décision laissent entrevoir la transposition dans l’ordre juridique de l’Union de la logique de la procédure pilote telle qu’elle existe à l’article 61, § 1er, du règlement de procédure de la Cour européenne des droits de l’homme.

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Following successful conferences in Bonn, Würzburg and Hamburg, please save the date for the 4th German-speaking Conference for Young Scholars in Private International Law, which will take place on 23 and 24 February 2023 at Sigmund Freud University in Vienna.

The theme of the conference will be

Deference to the foreign – empty phrase or guiding principle of private international law?

The organisors explain: “As part of the legal system, rules of private international law are bound by the principles of their national jurisdiction, but they also open up the national system to foreign rules. Is the claim of deference to the foreign merely an empty phrase or, at best, a working hypothesis, or can it serve as a meaningful guiding principle of private international law? Are there tendencies within or across specific areas of private international law to move away from deference to, and towards a general suspicion against, the foreign? To what extent does (mutual) trust become the basis of deference to the foreign in the process of internationalisation and Europeanisation? What, if any, is the relationship between deference to the foreign and the methods of private international law?

We would like to explore these and many other related questions at the 4th German-speaking Conference for Young Scholars in Private International Law. We are inviting contributions from all areas of private international law, including but not limited to contract and tort law, company law, family and succession law as well as international procedural law, international arbitration and uniform law. The written contributions will be published in an edited conference volume. The conference will be held in German, but English presentations are also welcome. The call for papers will be released in spring 2022 and we expect the submission of abstracts until late summer 2022.

We cordially invite all interested scholars to save the date of the conference. Please feel free to contact us with any questions (ipr@sfu.ac.at). Further information on the conference is available at https://tinyurl.com/YoungPIL.

Andreas Engel, Florian Heindler, Katharina Kaesling, Ben Köhler,
Martina Melcher, Bettina Rentsch, Susanna Roßbach, Johannes Ungerer.”

For the German text of the note, please consult the attached pdf: Save-the-date-IPR-2023_DE

 

Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2021] EWHC 3462 (Comm), sees Henshaw J unpicking the follow-up to a trial of applications and claims made by the Claimants for the purpose of enforcing an unsatisfied judgment for approximately US$300 million, handed down in December 2017.

The relevant part of the complex judgment, for the purposes of the blog, is a ‘tracing claim’: claimant argue that monies stolen from them by one of the defendants can be traced or followed into a variety of assets said to be held by companies within Cypriot trusts structures for the benefit of said defendant and his family. What is being traced are shares in Exillon, an oil company which Mr Arip developed after he fled Kazakhstan for Dubai. The proceeds of the shares went partially into the purchase of real estate, with another (substantial) part remaining liquid in a Swiss bank account.

Defendants submit that the tracing claim is governed by Kazakh law, and that that law does not recognise the concept of tracing. The judge, with respect, and perhaps he was echoing submissions, takes a rather unstructured approach to the conflict of laws analysis from which the judgment subsequently never recovers. Many first instance judgments in the UK intuitively start by quoting a relevant section from Dicey (whose 16th ed I am told might be out end of 2022), and then somehow engineer the analysis around it. In the case at issue, the Dicey rule that is zoomed in on [85], is disputes over real property, which are subject to lex situs (lex rei sitae). At [88] the judge then refers to Akers v Samba in which the Supreme Court, albeit at the jurisdictional level, held “the situs or location of shares and of any equitable interest in them is the jurisdiction where the company is incorporated or the shares are registered”. [89]:

It would follow that, insofar as relevant, questions of title to the Exillon shares, whose proceeds (a) were used to purchase the Properties and (b) remain in the form of the £72 million in the BJB account in Switzerland, would be likely to be governed by Manx law, Exillon having been incorporated in the Isle of Man.  A possible alternative would be English law on the basis that the shares were traded on the London Stock Exchange.  The parties have in any event agreed that, so far as relevant to these claims, Manx law is the same as English law.

[91] some role for Kazakh law is suggested to still exist when considering whether the English law preconditions for a tracing claim are met.  ‘It is generally a pre-condition of tracing in equity that there be a fiduciary relationship which calls the equitable jurisdiction into being’. [92] The law applicable to a cause of action or issue determines whether a person is required to hold property on constructive or resulting trust, hence it is necessary to consider whether duties imposed by the relevant foreign law are to be regarded as fiduciary.

Only in an afterthought [94] does the judge consider the lex causae governing unjust enrichment, equitable claims and negotiorum gestio, per Rome II as retained in UK law (and in Dicey). [The judgment is not in fact clear on when the claim was introduced and therefore might be subject to acquired as opposed to retained EU law].

The lex causae for the qualification of the current claims (proprietary restitution) as one of these entries in Rome II [96] is matter of factly presented as English law. [99] the judge dismisses the relevance of the succinct Rome II analysis for, harking back to his first reference to Dicey, the fundamental nature of the Claimants’ claim in the present case is held to be a proprietary one hence Dicey’s lex situs rule is said to apply without a need to consider Rome II.

Surely the right order is to qualify the claim, using autonomous EU interpretation, under (retained) Rome I cq Rome II and with reference to CJEU authority- with of course some of the recent qualification issues following CJEU Hrvatske Sume thrown in. Subsequently to only consider the English common law to the extent statutorily retained EU law does not govern the issue. The approach in the judgment is unsatisfactory and in that respect joins Fetch.AI Lrd & Anor v Persons Unknown Category A & Ors [2021] EWHC 2254 (Comm) , which Amy Held and Matthias Lehmann discuss critically this morning.

Geert.

Kazakhstan Kagazy Plc & Ors v Zhunus & Ors [2021] EWHC 3462 (Comm) (21 December 2021)
Includes somewhat fuzzy discussion of applicable law to (share) tracing and ownership claims, as well as unjust enrichment etc and Rome IIhttps://t.co/6GCjwBJCqY

— Geert Van Calster (@GAVClaw) December 22, 2021

Thelen Technopark Berlin

Malgré le fait que la Cour ait déjà constaté que la réglementation allemande fixant des montants minimaux d’honoraires pour les prestations des architectes et des ingénieurs (HOAI) est contraire à la directive « services », une juridiction nationale, saisie d’un litige opposant des particuliers, n’est pas tenue, sur le seul fondement du droit de l’Union, de laisser inappliquée cette réglementation allemande

Wiener Landesregierung (Révocation d'une assurance de naturalisation)
Citoyenneté européenne
La révocation d’une assurance de naturalisation doit respecter le principe de proportionnalité lorsqu’elle empêche de recouvrer la citoyenneté de l’Union

This post was written by Amy Held and Matthias Lehmann.

Prima facie, it does not seem that anyone need be overly concerned about the post-Brexit relationship between the Rome II Regulation and English law.  However, such complacency overlooks the continued relevance of the Rome II Regulation, as part of UK domestic law, in the English courts by virtue of s 3(1) of the European Union Withdrawal Act 2018, as amended by reg 11 of the The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019. These points were recently highlighted by the High Court of England and Wales in Fetch.AI Ltd v Persons Unknown [2021] EWHC 2254 (Comm).

Background

The First Applicant was an English-registered company which alleged that Persons Unknown had, without authorisation, accessed its account with the Binance Exchange and effected a series of transactions at an undervalue, thereby causing it loss in excess of USD 2.6 million.  Accordingly, the First Applicant sought several court orders in claims for, inter alia, breach of confidence. As the Respondents were without the English jurisdiction or were otherwise in an unknown location, the First Applicant also required permission to serve proceedings out of the jurisdiction under CPR rr 3.6 and 3.7.

As summarised in Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2011] UKPC 7; [2012] 1 W.L.R. 1804, applications to serve out are subject to a three-limb test.  Of these, limb two requires the applicant to show that there is a “good arguable case” against the foreign defendant that falls within the classes of case for which leave to serve out may be given, as set out in PD 6.B para 3.1.  In the present case, HHJ Pelling QC (‘the Judge’) was satisfied that there was a good arguable case for breach of confidence, and that the other limbs of the test were made out.  Permission was therefore granted.

In this post, we examine from an EU perspective the basis upon which the Judge concluded that, applying Rome II, that English law governed the claim. Our fuller analysis, encompassing an analysis of English substantive law, may be found in Amy Held & Matthias Lehmann, ‘Hacked crypto-accounts, the English tort of breach of confidence and localising financial loss under Rome II’ (2021) 10 JIBFL 708.

The Applicability of Rome II

The Judge referred to the Rome II Regulation (sometimes mistakenly as the “Rome Convention”), given its continued application in the UK pursuant to the EU Withdrawal Act 2018; and considered the bases upon which the English cause of action of breach confidence may properly fall within its scope.

The Judge first (correctly, it is submitted) rejected Article 6 Rome II, distinguishing Shenzhen Senior Technology Material Company Limited v Celgard LLC [2020] EWCA Civ 1293 on the basis that this earlier case concerned a claim for breach of confidence arising from an act of unfair competition within the scope of the Trade Secrets (Enforcement, etc) Regulations 2018.  The present case, however, did not concern unfair competition and, in the Judge’s view, Shenzhen Senior Technology Material Company did not form authority for the general proposition under English law and characterisation that all breach of confidence claims fall within Article 6.

The Judge then considered the general rule for tort/delict in Article 4, and found it encompassed a common law claim of breach of confidence.  In doing so, the Judge applied the English characterisation of breach of confidence as a common law tort, rather than the civilian characterisation as a privacy or personality rights falling within the exclusion in Article 1(2)(g) Rome II. 

Localisation

Having thus concluded that Article 4 of Rome II applied, the Judge considered the main issue to be identifying “the law of the country in which the damage occurs.”  In this respect, the Judge considered the decisive issue to be localising the relevant property, i.e., the cryptocurrency.  Citing Ion Science v Person Unknown (Unreported, 21 December 2020) (commentary in A Held, ‘Does situs actually matter when ownership to bitcoin is in dispute?’ (2021) 4 JIBFL 269), the Judge held that the cryptocurrencies were situate at the place where its owner is domiciled.  Given that the First Applicant was domiciled in England, the Judge concluded that the relevant property was situate in England. In his opinion, English law therefore governed the proposed claim. 

Analysis

There are at least two issues with this decision from the perspective of Rome II.

First, the approach taken by the Judge in localising loss by reference to the domicile of the owner is inherently circular: identifying the place of damage with the domicile of the owner of crypto assets begs the question of which law determines ownership over crypto assets. This question cannot be answered by referring (again) to the domicile of the owner without entering a vicious circle.

Second, the decision fails to consider the long-standing line of CJEU caselaw that deals specifically with the question of localising financial and/or pure economic damage under the Brussels Ibis Regulation and its predecessors which, pursuant to Recital 7 of Rome II, is to be followed when Rome II applies. As the CJEU ruled in Kronhofer, the ‘place where the damage occurred’ does not “refer to the place where the claimant is domiciled or where ‘his assets are concentrated’ by reason only of the fact that he has suffered financial damage there.” Although the CJEU has given some scope to consider the place of domicile of the injured party (e.g. in Kolassa and Löber), localising pure economic loss nevertheless entails a multifactorial approach taking into account all the facts of the case.

Conclusion

Fetch.AI demonstrates the potential trend for divergence between the CJEU and the English courts as to the application of EU instruments of private international law. As the decision shows, insufficient attention is given even to pre-Brexit decisions of the CJEU, notwithstanding that they are presently binding “retained case law” pursuant to s 6(3) of the European Union Withdrawal Act 2018 on courts in the UK, except the UK Supreme Court, the High Court of Justiciary in certain circumstances, and where Regulations otherwise provide (s 6(4) European Union Withdrawal Act 2018). Accordingly, greater attention should be paid by UK courts to both the express terms of EU instruments of private international law, and the case law of the CJEU on their interpretation.

I am hoping to tackle some of the pre-Christmas queue this week, kicking off with the Opinion (no English version available) of Pikamae AG in C-568/20 J v H Limited. The case concerns the enforcement of a 2019 decision of the England & Wales High Court [I believe that judgment is Arab Jordan Investment Bank Plc & Anor v Sharbain [2019] EWHC 860 (Comm). The dates do not quite correspond (6 days of) but the amounts and line of argument do].

Clearly the UK were still a Member State at the time. The English decision was based, in turn, on two Jordanian judgments of 2013. It had rejected, on the basis of the English common law (judgments issued outside the EU are not subject to EU recognition and enforcement rules), the arguments against enforcement in the UK. The judge subsequently issued an Article 53 Brussels Ia certificate.

The issue is not whether a judgment merely confirming a non-EU judgment, may be covered by Article 53 Brussels Ia. CJEU Owens Bank has already held they cannot (see Handbook, 3rd ed. 2021, 2.573). The issue is rather whether, exequatur having been abandoned in Brussels Ia, arguments as to whether the judgment in the State of origin be at all covered by Brussels Ia, may be raised by way of an Article 45 objection to recognition and enforcement.

CJEU Diageo Brands, among others, has confirmed the narrow window for refusal of recognition on the basis of ordre public. The AG suggests wrong decisions on the scope of application of BIa, leading to incorrect A53 certificates, may fall within that category. Far from upsetting the principle of mutual trust, he suggests it is a necessary ‘safety valve’, a “soupape de sécurité » (40) which assist with said mutual trust. The AG qualifies the opinion by suggesting the issuing of an A53 certificate for a judgment that merely enforces an ex-EU judgment, is a grave error in the scope of application of the Regulation.

Should the CJEU confirm, discussion of course will ensue as to what are clear errors in the scope of application, or indeed in the very interpretation of Brussels Ia.

Geert.

EU Private International Law, 3rd ed 2021, Heading 2.2.17.1.

Opinion Pikamae AG yday, #CJEU C-568/20
Member State court may refuse recognition of other MS (UK, pre #Brexit) High Court judgment if said judgment merely enforces judgment from a third State, Jordan. Brussels Ia Title 3 'judgments' must emanate from a MShttps://t.co/NkJ6zh9FU9

— Geert Van Calster (@GAVClaw) December 17, 2021

To conclude its current research project on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, the Young Research Network of the EAPIL will host a conference in Dubrovnik on 14 and 15 May 2021 (currently planned as an in-person event).

The conference will highlight the findings of the research project and link them to the wider question of whether or not the Regulation should be extended to non-EU defendants. To this end, the panelists will include participants in the research project, other members of the Young Research Network as well as representatives of stakeholders such as the European Commission and the Hague Conference on Private International Law.

Attendance of the conference will be free of charge. Further information will soon be made available on this blog.

Par un arrêt du 9 décembre 2021, la Cour de justice se prononce sur la détermination du juge compétent dans une affaire dans laquelle à la suite de l’invalidation d’une mesure d’exécution forcée, son bénéficiaire s’est vu demander la restitution de la somme litigieuse.

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