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Tribunal de police de Limoges, 24 février 2021

Pourvoi c. déc. Cour d'appel de Besançon du 6 octobre 2020

Tribunal judiciaire de Thionville, 22 mars 2021

Cour d'appel de Paris, 19 mars 2021

Pourvoi c. déc. cour d'appel de Paris du 18 septembre 2020

Pourvoi c. déc. Cour d'appel de Poitiers du 9 décembre 2020

Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 3 février 2021

Pourvoi c. déc. cour d'appel de Paris du 15 décembre 2020

Pourvoi c. déc. Cour d'appel de Montpellier du 6 janvier 2021

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 27 May 2021 at 1 pm (Mexico City time – CDT), 8 pm (CEST time). The topic of the webinar is the 25th anniversary of the Mexican Journal of Private International Law, a contribution to the national doctrine (in Spanish). Among the speakers are: Alejandro Ogarrio Ramírez-España, Carlos Novoa Mandujano, Jorge Alberto Silva Silva, José Carlos Fernández Rozas, Eduardo Picand Albónico and Leonel Pereznieto Castro.

This journal may be accessed by clicking here.

The details of the webinar are:

Link:  https://us02web.zoom.us/j/89448167313?pwd=Vi81L2tVZTJRa2NPVzVQQlFrRTNuUT09

Meeting ID: 894 4816 7313

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

The author of this post is Simon Laimer of the University of Linz.

By a ruling of 10 December 2020, the Austrian Supreme Court addressed a case relating to a statement of fault in respect of divorce, i.e. a statement that one spouse is to blame for the breakdown of marriage (the ruling’s reference is 3 Ob 58/20f). The case raised the question of whether, for the purposes of determining the applicable law, the matter ought to be characterised as a matter relating to divorce, or rather as a matter relating to maintenance. Under Austrian law, one key implication of fault is that the ex spouse who is found to be at fault is basically not entitled to maintenance.

Background

The plaintiff sought a declaration that the defendant was solely to blame for the breakdown of the marriage, which had previously resulted in a final divorce decree by the Tribunal of Brussels. The defendant objected inter alia that the Belgian divorce decree could not be supplemented by a declaration of fault. The court of first instance dismissed the action (on the grounds of equal fault). The Court of Appeal amended the decision to find that the defendant was predominantly at fault.

The generally accepted view in Austrian case law (see here) and doctrine (cf. Nademleinsky/Weitzenböck in Schwimann/Kodek, ABGB, 5th ed. [2019] § 61 EheG N° 21; Koch in Koziol/Bydlinski/Bollenberger, ABGB, 6th ed., [2020] § 61 EheG N° 4) is that even if a foreign court has terminated the marriage on the basis of a provision of a foreign legal system without a finding of fault (here, Belgian divorce law, which abandoned the principle of fault in 2007), the interested spouse may still seek a statement of fault as provided for under Section 61(3) of the Austrian Marriage Act.

Judgment

The Austrian Supreme Court upheld the extraordinary appeal. It observed that an action to supplement a divorce decree by a statement of fault does deal with the question of fault for the breakdown of marriage, but it does so for the purposes of determining the implications of divorce as regards maintenance. Consequently, there is only a need to supplement a foreign divorce decree with an award of fault if the post-marital maintenance is governed by a substantive law whereby the enforceability of a maintenance claim depends on whether the opposing ex spouse is predominantly at fault for the breakdown of the marriage, or not.

Article 1(2)(g) of the Rome III Regulation on the law applicable to divorce and legal separation expressly excludes from its scope maintenance obligations. Therefore, although the supplementary action complements the divorce proceedings with regard to the question of fault, its only objective is to make a separate decision on a (preliminary) question relevant to the maintenance claims. It follows that the applicable substantive law is rather to be determined in accordance with the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.

Pursuant to Article 3(1) of the Hague Protocol, maintenance is governed, as a rule, by the law of the State in which the maintenance creditor has his habitual residence, which in the specific case leads to the application of Austrian law. An exception applies if one of the parties objects and claims that there is a “closer connection of the marriage to another State”. As this had not yet been discussed with the parties, the decisions of the lower instances had to be set aside to supplement the proceedings. The court of first instance will therefore have to give the parties the opportunity to state their position on the matter.

Malik Laazouzi (Paris II University) is the editor of a new book on choice of court agreements (Les clauses attributives de compétences internationales : de la prévisibilité au désordre).

The book is the publication of the proceedings of a conference held on 21 November 2019 in Paris.

The speakers and contributors included Marie-Élodie Ancel, Sylvain Bollée, Sandrine Clavel, Samuel Fulli-Lemaire, Jeremy Heymann, Fabienne Jault, Caroline Kleiner, François Mailhé, Renato Nazzini, Cyril Nourissat, Ludovic Pailler, David Sindres, Édouard Treppoz.

More detail on the topics addressed by each of the speakers can be found here.

written by Nicolás Zambrana-Tévar LLM(LSE) PhD(Navarra), Associate Professor KIMEP University (Kazakhstan), n.zambrana@kimep.kz

Some months ago I commented here about an interlocutory ruling of September 2019, issued by the First Instance Court of Palma de Mallorca (Spain). The ruling stayed proceedings commenced by Central Santa Lucía L.C., a US corporation, against Meliá Hotels International S.A., on grounds of sovereign immunity. The court ruled that although the defendant was a Spanish legal entity, the basis of the claim entirely depended on a declaration that the nationalization of the land formerly owned by the claimants’ predecessors in Cuba had been contrary to international law.

In March 2020, the Court of Appeal of Mallorca overturned the abovementioned interlocutory ruling and established the jurisdiction and competence of Spanish courts. The Court of Appeal found that the Cuban state was not a defendant in the proceedings, and neither was Gaviota S.A., a Cuban corporation owned by the Cuban state and the current owner of the expropriated land. Although the Court of Appeal admitted that any right to compensation for the allegedly illicit or unjustified enrichment of Meliá Hotels depended upon the illegality of the nationalization program introduced by Cuban Law 890 of 13 October 1960, the fact remained that the only defendant in the proceedings was a non-sovereign legal entity incorporated in Spain. Meliá Hotels argued that under the UN Convention on Jurisdictional Immunities of States and Their Property of 2004 it was not necessary that the claim be addressed to a foreign state; it was enough that the proceedings were meant to harm the interests, rights or activities of the foreign state. The Court of Appeal was not convinced and insisted that under Spanish Organic Law 16/2015 it was necessary that the proceedings had commenced against a foreign state or that measures had been requested against the property of the foreign state, in enforcement proceedings.

The Court of Appeal discussed several past rulings where Spanish courts had had an opportunity to deal with the effects of the nationalizations which followed the Cuban revolution of 1959. From this series of cases arises the doctrine that even where Spain and Cuba had entered into a lump sum agreement in 1986, whereby Cuba agreed to pay the Spanish Government a fixed amount as compensation for all Spanish nationals affected by the expropriation program, the rights of those Spanish nationals were not extinguished and might be raised again before the present or future Cuban Governments (Supreme Court Ruling of 10 December 2003). Moreover, although Spanish courts could not control the legality of the expropriations, they could indeed assess such legality in so far as it may be necessary to determine their private law effects in Spain (Supreme Court Ruling of 25 September 1992).

The Court of Appeal also disagreed with the Court of First Instance in another respect. The latter had found that, regardless of the issue of sovereign immunity, Spanish courts did not have jurisdiction to hear claims concerning property rights over immovable assets located outside Spain. The Court of Appeal found that EU Regulation (EU) No 1215/2012 (Brussels I) was applicable despite the fact that the asset was situated in Cuba, i.e. outside the territory of the European Union. However, the Court of Appeal found that these proceedings did not have as their object a right in rem in immovable property. Instead, the claimants were exercising a right in personam to obtain monetary compensation. In this regard, the court mentioned that under Article 2 of Regulation (EC) No 864/2007 (Rome II), the concept of damage includes unjust enrichment. Therefore, Spanish courts had jurisdiction as the defendant corporation was domiciled in Spain.

Months afterwards, Meliá Hotels applied for a new stay of the proceedings, alleging that Central Santa Lucía was not the real successor of the original owners of the land in Cuba but an entity exclusively created for the purposes of obtaining compensation for the Cuban expropriations and that the claim was an attempt to circumvent Council Regulation (EC) No 2271/96, a “blocking statute” protecting against the effects of the extra-territorial application of legislation adopted by a third country. That is, Central Santa Lucía was trying to hide what was actually a claim indirectly based upon the Helms–Burton Act and from which the blocking statute was trying to shield European companies. The First Instance Court found that Central Santa Lucía seemed to have commenced proceedings in the US under the abovementioned US statute but that the current litigation in Spain did not derive from those proceedings nor could have any incidence on them. Furthermore, in the Spanish proceedings the Helms-Burton Act would not be applied and would not be taken into account.

Next, Meliá Hotels applied for a mandatory joinder (litisconsorcio pasivo necesario), requesting that the Cuban State be joined to the proceedings. The Court of First Instance ordered the joinder drawing on its own arguments in the earlier ruling where it had established its lack of jurisdiction on the basis of the sovereign immunity of Cuba. The court indicated that Central Santa Lucía claimed that Meliá Hotels had unjustifiably or illegitimately enriched itself by exploiting the expropriated land and that the examination of the illegality of such expropriation necessarily called for the participation of Cuba in the proceedings because any right of the claimants depended upon a declaration of the Spanish courts that the land was being illegitimately held by Cuba or, rather, by Gaviota S.A. It was wrong, the court seemed to say, to analyse the legitimacy of the acquisition of property without listening to the party who had carried out that act of acquisition. It was also impossible to recognize the original property right of Central Santa Lucía, a right which was in opposition to the present property rights of Cuba, without allowing Cuba to be heard in that respect. For these reasons, not only the State of Cuba but Gaviota S.A. had to be brought in as co-defendants with Meliá Hotels.

Finally, the Court of First Instance issued a new interlocutory decision last 3 May, where it established that it had no jurisdiction to hear the claim because now one of the defendants is a foreign sovereign state. The Office of the Prosecutor was also of the same opinion. The Spanish Ministry of Foreign Affairs had also filed a report indicating that the act of nationalization was an act iure imperii and that the Cuban State enjoyed immunity for that reason. However, the ministry added that any contractual relationships between Meliá Hotels and Gaviota S.A. could be the subject matter of civil proceedings in Spain. The Court of First Instance relied much on its own ruling of September 2019 but it also drew on its own mandatory joinder of November 2020, insisting that any decision of the Spanish courts concerning the right of Central Santa Lucía to be compensated by Meliá Hotels would involve analysing the act of acquisition as well as the property rights of the Cuban State and Gaviota S.A. This was the reason why the latter had been joined and were now co-defendants, one of whom – Cuba – was a foreign sovereign which enjoyed immunity from jurisdiction. Since it was impossible to separate the analysis of the jurisdiction of the Spanish court from that of the claim against Meliá Hotels, the proceedings had to be stayed against all parties. Finally, the Court of First Instance mentioned that although Cuba had not made an appearance in the proceedings after being named as a defendant, that could not be interpreted as tacit submission under Spanish law.

The Court of First Instance does not seem to be aware of the “Catch 22” type of decision it has made. On the one hand the claim could not be heard because Central Santa Lucía had not brought Cuba in as a co-defendant. On the other hand, now the Spanish court does not have jurisdiction precisely because Central Santa Lucía has brought a sovereign defendant into the proceedings, further to the mandate of the same court, at the request of the primary defendants.

The Court of First Instance also seems to have given a lot of weight to the fact that if it decided that the nationalization had been illegal, that would have affected the property rights of Cuba over the nationalized land. This is obviously not the case, precisely because Spain does not have any kind of enforcement jurisdiction over property located in Cuba. As the abovementioned Supreme Court ruling of 25 September 1992 indicated, even if Spanish courts cannot control the legality of the Cuban expropriations, they can indeed draw certain consequences from their illegality, provided that those consequences are of a private law nature and are limited to the Spanish territory.

As it was mentioned in my first post, the Spanish Court also seems to have confused immunity from jurisdiction with the act of state doctrine – which has no place in the Spanish legal system –, mentioning once and again that the acts of nationalization of the Cuban State are protected when, in fact, the only one protected is Cuba itself, but this protection is restricted to certain types of acts.

Although this ruling of 3 May may be appealed, the exiled Cubans are running out of options, especially now that two years have elapsed since the Helms-Burton act was activated without much to show for. Title III lawsuits continue to face legal obstacles and conflicting rulings by US courts. The growing body of case law is, nevertheless, clarifying the conditions concerning the right of action of the claimants, which must be based on their standing and on the knowledge that defendants had about the confiscated nature of the property.

Maybe the best option for the Cuban community in the US is not to hope for a full implementation of the Helms-Burton act but to lobby for a lump-sum agreement between Cuba and the US, similar to the agreement between Cuba and Spain of 1986. The diplomatic opening that commenced with President Obama would have been a good start for that but there are doubts that President Biden wants to push forward in the same direction, given the communist island’s poor human rights record. Still, Venezuela, the oil rich and long standing ally of the Castro brothers is now in a state of such turmoil that Cuba may feel the need to make concessions.

A webinar titled 1981-2021: 40 Years Since the Accession of the Hellenic Republic to the EU – The Impact on the Domestic Procedural Legal Order will take place on 26 May 2021 at 5 pm CET, organised by the law review Lex & Forum and Sakkoulas Publications.

The webinar, which will be held in Greek, will consist of four sections: (1) A flashback to the common European procedural roots; (2) The practical dimension; (3) The steps ahead; (4) A glimpse at the common European procedural future.

Speakers include Paris Arvanitakis (Aristotle University, Thessaloniki), Antonios Alapantas (President of the Court of first Instance, Piraeus), Ioannis Valmantonis (President of the Court of first Instance, Athens), Vassilios Sariyannidis (Director of the Unit on special legal matters of the Greek Ministry of Justice), Ioannis Delikostopoulos (University of Athens), Lida Pipsou (Aristotle University, Thessaloniki), Apostolos Anthimos (Attorney at law and  Editor in chief of Lex & Forum), Dimitrios Titsias (President of the Court of first Instance, Justice Counselor, Permanent Representation of Greece to the EU).

The full programme and the registration form can be found here. Registrations are open until 25 May at noon. Attendance is free.

The Hague Conference on Private International Law (HCCH) and the World Intellectual Property Organization (WIPO) have just launched a questionnaire that aims to identify problems of private international law, from jurisdiction to enforcement, relating to disputes involving intellectual property. The questionnaire is adressed to the member states of both organisations and other intergovernmental organisations as well as to individual practitioners, academics and other interested parties. It will inform the future work of both organisations on the intersection between PIL and IP.

The English version of the questionnaire can be found here; further information can be found here and here. Readers of this blog with an expertise and/or interest in IP are warmly invited to participate before the end of the consultation on 30 June 2021.

 

Back in January, we reported about the Opinion presented by AG Campos Sánchez-Bordona in the case CNP, C-913/19. At the request of the Court, the Opinion addressed only the second preliminary question on the branch jurisdiction under the Brussels I bis Regulation. This Thursday the Court delivered its judgment, which answers the second as well as two other (first and third) questions of the referring court, pertaining to the jurisdiction in matters of insurance.

The outline of the factual and legal contexts of the case can be consulted in the previous post. Remarks on the EU legal framework of relevance for the issues raised by the present case were made by Geert Van Calster and they should still be a point of consideration for those wishing to delve thoroughly into these issues.

Factual context in the main proceedings

In brief summary, an owner of a vehicle damaged in a road accident occurred in Poland assigns the claim against a Danish insurer covering, under a motor liability insurance, the liability of the person responsible for the accident to an automobile repair workshop, which provides a replacement vehicle to the assignor. Subsequently, the automobile repair workshop assigns that claim to CNP, a liability limited company established in Poland.

In its attempts to obtain the payment corresponding to the rental amount for the replacement vehicle, CNP is interacting with two companies established in Poland that represent the interests of the insurer in this Member State, namely Polins and Crawford Polska.

Failing to obtain full payment of the rental amount, CNP brings an action against the Danish insurer before a Polish court. The insurer argues that the claim should be rejected due to the lack of jurisdiction of the Polish court. The national court decides to refer three question for a preliminary ruling.

Jurisdiction in matters relating to insurance and assignment of claims

At the outset the Court clarifies that it deems it appropriate to examine together the first and third questions by which, as the Court puts it, the referring courts asked, in essence, whether Article 13(2) the Brussles I bis Regulation, read in conjunction with Article 10 thereof, must be interpreted as precluding jurisdiction being founded independently under Article 7(2) or Article 7(5) of that Regulation in the case of a dispute between, on the one hand, a professional which has acquired a claim originally held by an injured party against a civil liability insurer and, on the other hand, this insurer.

It seems that the referring court invited the Court to examine whether an action can, as to its substance, fall within the scope of the Section 3 (“matters relating to insurance”), yet the applicant bringing that action and being a professional is barred from relying on the rules on jurisdiction of the Section 2 (as an action in matters relating to insurance is covered exclusively by the Section 3), namely on Article 7(2) and (5) of the Brussels I bis Regulation.

After reminding that an entity that recovers claims from insurance undertakings has to be considered as a professional in insurance sector (paragraph 43), the Court examines whether such professional is barred from relying on Articles 7(2) and (5) of the Brussels I bis Regulation and answers this question in the negative (paragraph 46).

On a side note, as previously hinted, in the present case, the claim was first assigned to the repair workshop and then by this repair workshop to CNP. The latter sought to build up upon this particularity an argument in its favour in the proceedings pending before the Polish court.

While the particularity in question, which distinguishes the present case from the case Hofose (where the owner of the damaged vehicle assigned the claim against the insurer directly to the applicant in the main proceedings), is not reflected in the wording of the preliminary questions, the Court does seem to hint it the presentation of these questions (“claim originally held by an injured party”, paragraph 29). However, it seems to be of no relevance as “no special protection is justified where the parties concerned are professionals in the insurance sector, neither of whom may be presumed to be in a weaker position than the other” (paragraph 40). Besides, the request for a preliminary ruling arose out of the proceedings to which the repair workshop is not a party.

Notion of “branch, agency or other establishment”

By its second question, the referring court asked, in essence, whether Crawford Polska must be regarded as being a “branch, agency or other establishment” within the meaning of Article 7(5) of the Brussels I bis Regulation.

Against this background, just as AG in his Opinion, the Court had to establish which of the two companies representing the insurer’s interests in Poland (Polins or Crawford Polska) is the relevant entity for the purposes of Article 7(5) of the Brussels I bis Regulation (see points 53 – 58 of the Opinion). The Court held that referring court is seeking guidance about the scope of this provision in the light of the activity of Crawford Polska, this company had been “instructed by [the insurer] to adjust the claim at issue in the main proceedings” (paragraph 53).

In line with the Opinion, the Court considered that an undertaking which adjusts losses in the context of motor liability insurance in one Member State pursuant to a contract concluded with an insurance undertaking established in another Member State, in the name and on behalf of that undertaking, must be regarded as being a branch, agency or other establishment, within the meaning of that provision, where that undertaking:

• has the appearance of permanency, such as an extension of the insurance undertaking; and
• has a management and is materially equipped to negotiate business with third parties, so that they do not have to deal directly with the insurance undertaking (paragraph 61).

On a side note, in its request for a preliminary ruling, the referring court sought to establish whether the Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) may impact the interpretation of the notion of “branch, agency or other establishment” within the meaning of Article 7(5) of the Regulation.

In this regard, the Court notes that the interpretation of the latter must be performed in an independent manner (paragraph 60). The judgment echoes therefore the case law built up upon the judgment in Kainz, C-45/13, paragraph 20 (Brussels I Regulation/Rome II Regulation), and brings to mind in particular the judgment in Pillar Securitisation, C-694/17, paragraph 35 (Lugano II Convention / Directive 2008/48/EC on credit agreements for consumers).

The judgment, which is also the subject of a press release, can be consulted here.

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Posted at the request of Aastha Asthana, Managing Editor, Trade Law and Development

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Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 18 septembre 2020 (RG 18/13534, 18/13018, 18/08172 et 18/07171)

Pourvoi c. déc. Cour d'appel de Pau du 6 octobre 2020