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On 14 October 2021 an online roundtable will take place devoted to the private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.

The event is organised by the Maastricht University at the initiative of Lotte Meurkens and Cedric Vanleenhove.

An often-heard obstacle [to the recognition of judgments awarding punitive damages] is the public policy-exception. In a number of European countries, for example Italy, Spain and Germany, the supreme courts have rendered decisions on this matter.

Following the decision of the Italian supreme court of 2017, a conference was organised in Milan by the Department of Italian and Supranational Public Law of the University of Milan in 2018. A program of this conference, in which the organizers of this M-EPLI roundtable took part, can be found here. During the conference, the private international law question has been addressed from the perspective of several European countries.

We have decided to broaden this question and look into countries outside of Europe because extensive research into such jurisdictions has not been done yet. In this M-EPLI roundtable we bring together a group of experts who will reflect on the current position of their country (and surrounding countries). The insights gained through this research could be useful for the ongoing debate on the future of punitive damages in Europe.

Speakers include Cedric Vanleenhove (Ghent University / University of Liège), Béligh Elbalti (Osaka University), Wenliang Zhang (Renmin University of China), María Guadalupe Martínez Alles (IE University), Vsevolod Chernyy (Lomonosov Moscow State University) and Lotte Meurkens (Maastricht University).

More information available here.

A short (and late – I am in mopping-up mood it seems) post on the AG’s Opinion in Case C‑124/20 Bank Melli Iran – in which he also cites my former colleague proximus Cédric Ryngaert. Hogan AG’s Opinion addresses the rock and the hard stone, or the devil and the deep blue sea dilemma facing corporations in the light of diverging export laws /sanctions law. May a German bank refuse to do business indeed end business with an Iranian bank, under pressure from US secondary export control laws?

More on the external relations aspects of the case is ia here and of course in the Opinion itself. My interest here lies in part of the Opinion: the AG’s view that an EU undertaking seeking to terminate an otherwise valid contract with an Iranian entity subject to the US sanctions must demonstrate to the  satisfaction of the national court that it did not do so by reason of its desire to comply with those sanctions. It must show other motives, such as ethical reservations about doing business with Iran. These reservations may be documented by a genuinely rolled-out CSR compliance program: (88)

‘In order, however, to establish that the reasons given in respect of any decision to terminate a contract on this ground were in fact sincere, the person referred to in Article 11 of the EU blocking statute in question − in the present case Telekom Deutschland – would need, in my view, to demonstrate that it is actively engaged in a coherent and systematic corporate social-responsibility policy (CSR) which requires them, inter alia, to refuse to deal with any company having links with the Iranian regime.’

CSR programs have been used as carrot ia in Trafigura and as stick ia in Vedanta. The view here is very much the carrot or if one likes, the shield function: CSR policies as a defensive weapon against the rock and hard stone dilemma. That is most interesting for the EU corporations concerned and likely to draw the attention of export sanctions practitioners (both in-house and out) to part of the corporation’s blurb which they may otherwise ignore. Yet it may put too much emphasis on fairly unregulated CSR policy drafting, and compliance issues.

Geert.

The Scientific Committee of the European Association of Private International Law has approved the establishment of a Working Group on a future European Regulation on International Property Law.

The aims of the Working Group will be to exchange information on current legislation and case law in the field of international property law, with a focus on (but not limited to) the EU Member States and to draw up proposals for law reform and codification of international property law both on the level of the EU and on national/international levels.

The Working Group is chaired by Eva-Maria Kieninger.

It is composed of the following members: Janeen Carruthers (University of Glasgow), Gilles Cuniberti (University of Luxemburg), Morten Fogt (University of Aarhus), Teemu Juutilainen (University of Turku), Eva-Maria Kieninger (University of Wuerzburg), Teun Struycken (University of Utrecht), Jonathan Schenk (University of Antwerpen), Afonso Patrão (University of Coimbra), and Juliana Rodríguez Rodrigo (Madrid)

The Working Group is still considering applications for membership, especially from Eastern European Member States.

The Working Group will include a limited number of Members. Other Members interested in following its progress may join the Consultative Committee of the Working Group.

The Working Group wil report and seek comments from the Consultative Committee at least once a year.

Members intersted in joining the Consultative Committee may contact its chair, Gilles Cuniberti (gilles.cuniberti@uni.lu).

The Working Group will hold its first meeting in Wuerzburg in November 2021.

Further information on the project can be found on the Working Group’s webpage and sought from its chair, Eva-Maria Kienienger (kieninger@jura.uni-wuerzburg.de).

En dépit des mesures prises par le gouvernement pour améliorer la qualité de l’air dans plusieurs zones de France, celles-ci demeurent insuffisantes. En conséquence, l’État doit payer l’astreinte de 10 M€ pour le premier semestre 2021.

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Complicités de crimes contre l'humanité

Complicités de crimes contre l'humanité

Complicités de crimes contre l'humanité

A most late flag on Nestlé & Cargill v John Doe at the US Supreme Court, back in June. I reported on the case here and if you follow Lucas’ thread on the case, there is further interesting and impromptu analysis. Readers of the blog may know I have published on the issue before – search tag ‘ATS’ should give you all cases referred to below.

This case reconfirms the mood viz the Alien Tort Statute,  a popular (if not the only!) vehicle for corporate social responsibility litigation: since Kiobel, the USSC has seriously reigned in the scope of application of the ATS. In Nestlé, it would seem to impose a further squeeze on the ATS jurisdictional gateway. In Apartheid and Jesner Bank, ‘aiding and abetting’ by the US corporate headquarters of culpable conduct by their subsidiaries abroad, seemed to be a burden of proof claimants had to meet in order for the action to be admissible under the ATS. In Nestlé the Court in its current composition (sub III of the majority Opinion) suggests that aiding and abetting in that interpretation risks becoming a court-introduced (hence in its view noli sequi) action in tort.

Sub II, the Court is not at all clear what the jurisdictional hurdle might be, except that it is a very high one: ‘Nearly all the conduct that [claimants] say aided and abetted forced labor—providing training, fertilizer, tools, and cash to overseas farms—occurred in Ivory Coast… allegations of general corporate activity—like decisionmaking—cannot alone establish domestic application of the ATS.’ (Interesting contrast here with the UKSC in ia Vedanta).

Not only could one debate whether this decision represents the intention of the ATS (which, even if one applies it in limited fashion, did historically mean to catch at least in part activities outside of the US). One also immediately sees the most unattractive consequence of this judgment: as long as the dirty work is left for foreign affiliates to carry out overseas, one escapes the reach of ATS. As Lucas points out, it is not clear what kind of headquarter engagement could still trigger a suit under the ATS.

There is little solace in the indication that the Court (both in majority opinion and minority concurrence) accepts that corporations are not as such immune from suit under the ATS (which links to the issues currently discussed in Nevsun Resources).

There will be more attempts to further refine the ATS scope. At the same time one imagines claimants will study in even greater detail than before, the possibility to bring the suit under more recent US federal laws with clear extraterritorial intent, such as in the field of corruption of export controls. As past (but now gone) ATS litigation shows, human rights and /or environmental suit need not necessarily label themselves as such.

Nomen non est omen. It is the end goal of human rights or environmental protection or, say, environmental justice which determines a suit’s character, no matter what prima facie subject matter the suit addresses. If one can advance these causes by suing under the by-laws of the World Philately Federation, say, one should have a good go at it.

Geert.

EU Private International Law, 3rd ed. 2021, Chapter 7.

For background to the case see https://t.co/EcFiv6EDgQ https://t.co/gXdWqrR0jB

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

The third issue of the Journal du droit international for 2021 has just been released. It contains two articles and several case notes relating to private international law issues.

In the first article, Guillaume Feld (Avocat, Paris bar) and Guillaume Sauvaget (Associé, PS Consulting) discusse the concept of “dispute boards” as ADR technique in an international context (Les “dispute boards”: originalité, évaluation et perspectives d’un mode alternatif de règlement des différends singulier). 

The English abstract reads:

Original alternative dispute resolution (ADR) technique, dispute boards (known in French as « comités de règlement des différends ») have been conceived in the construction industry in North America in the 1960s-1970s as an empirical answer to the infrastructure projects’ high propensity to disputes and their negative consequences for all involved parties. Initially designed as a permanent body comprising one or more knowledgeable neutrals set up at the project’s inception in order to assist the parties in avoiding and/or overcoming any disagreements and/or disputes which could arise under or in connection the underlying contract, the popularity of dispute boards has grown significantly over the past two decades well beyond the construction industry. Their dual preventive and curative functions as well as their undeniable efficacy explain to the uniqueness of dispute boards which sets them apart from other ADR techniques. While they are not without inconveniencies and risks, dispute boards offer to their users numerous advantages and opportunities which justify their adoption under major international projects in various industries. The purpose of this article is to present : the concept, genesis and development of dispute boards ; their originality, typology and operation ; their advantages and inconveniencies ; their risks and opportunities ; and their possible future.

In the second article, Charlotte Ankaoua (PhD, University of Versailles-St-Quentin-en-Yvelines) analyses the recent caselaw of the CJUE dealing with the ‘Actio Pauliana’ under Brussels I bis Regulation (L’assimilation de l’action paulienne à une action contractuelle selon la Cour de justice de l’Union européenne).

The English abstract reads:

Through two court rulings, the Court of Justice of the European Union rules that the Paulian action is a legal action of a contractual nature within the meaning of Article 7, §1, of the Brussels I bis Regulation, even though the parties are not bound by a freely accepted commitment. The latter thus enshrines the extension of contractual matters undertaken in recent years and which makes the « cause of action » the main criterion of this autonomous concept. While these rulings seem to clarify the Paulian action, a «chameleon » action, the article tends to show that, on the contrary, they can distort it, in particular by undermining the principle of the relative effect of contracts which characterises it.

A full table of contents can be downloaded here.

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 9 September 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is Rethinking Private International Law (a look through its sources and methods) and will be presented by Professors Luciana B. Scotti and Candela Villegas (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/83622646486?pwd=ZzZwbFJ2R1NLaHFxUGNNUnE0M2FHQT09

Meeting ID: 836 2264 6486

Password: BMAAMEDIP

Participation is free of charge.

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

Par un arrêt du 8 juillet 2021, la Cour de cassation revient sur la question classique du déplacement d’un enfant, d’un État vers un autre, par l’un de ses parents malgré l’opposition de l’autre et l’existence d’un droit de garde commun.

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On 16 and 17 September 2021 an online course on European Union and Third Countries. Issues on jurisdiction and recognition of foreign judgments will take place as a part of the activities of the European Family Law Module funded by the EU ErasmusPlus programme led by Professor Elisabetta Bergamini of the University of Udine, Italy.

Excellent group of lecturers from different EU Member States will be discussing EU Regulations on jurisdiction and recognition and enforcement when those issues arise in situations connected with third States. The course will offer an overview of different aspects to this issue, having regard to EU rules both on civil and commercial matters and on family and succession matters. The course will be either in Italian or in English. The details of the programme are available in Flyer_E2106_EU_and_Third_Countries.

Participation is free of charge, but registration is required by 13 September here.

This note briefly analyses the recent decision of the Nigerian Supreme Court in BCE Consulting Engineers v Nigerian National Petroleum Corporation[1]on the issue of a foreign company that is not registered in Nigeria having the capacity to sue in Nigeria.

Generally, Section 78 of the Companies and Allied Matters Act, 2020 requires that a foreign company must be registered in Nigeria before it can carry on business in Nigeria. This provision is a carryover of the former Section 54 of the Companies and Allied Matters Act, 1990, which contains a similar provision.

However, Section 84(b) of the Companies and Allied Matters Act 2020, makes express provisions for a foreign company to sue and be sued in its corporate name or that of its agent (despite the fact that it is not a registered or incorporated company in Nigeria for the purpose of carrying on business (under Section 78). The same provision previously enacted in Section 60(b) of the Company and Allied Matters Act 1990. Section 60(b) of the Company and Allied Matters Act 1990 has been applied by Nigerian courts in some cases prior to the enactment of the Companies and Allied Matters Act, 2020.

In Companhia Brasileira De Infraestrututira (INFAZ) v Companhia Brasileira De Entrepostos E Commercio (COBEC) (Nig) Ltd,[2] the plaintiff-appellant was a company allegedly registered in accordance with Brazilian law. The plaintiff-appellant was also a shareholder with some Nigerian persons, which constituted the defendant-respondent company. There was a change in the name of the plaintiff-appellant to Companhia Brasileira De Infraestutura Fazendaria, which was allegedly in accordance with Brazilian law. The plaintiff-appellant prayed for the winding-up of the defendant-respondent company. The application was dismissed by the trial court and the appeal to the Court of Appeal was dismissed as well.  One of the issues for consideration was whether the plaintiff-appellant was competent to sue and be sued in Nigeria.

The Court of Appeal held that by virtue of Section 60(b) of the Companies and Allied Matters Act 1990, a foreign company not registered in Nigeria can sue and be sued in Nigerian courts provided that said foreign company was duly incorporated according to the laws of a foreign state recognised in Nigeria. But, if there is a change in the name of that foreign company, evidence of compliance with the law of the land where it was incorporated must be given. In the instant case, the Court of Appeal held that there was no material evidence placed before the court to establish the change of name of the plaintiff-appellant company, and the resolution for change of name in Brazil that was provided before the court was deemed insufficient.[3]

In Edicomsa International Inc and Associates v CITEC International Estates Ltd,[4] the plaintiff-appellant was a foreign company incorporated in the United States of America. However, it was not registered in Nigeria. The plaintiff-appellant was engaged by the defendant-respondent to provide some services. Subsequently, there was a disagreement between the parties on payments due to the plaintiff-appellant, which led to the action before the court. The defendant-respondent, inter alia, challenged the jurisdiction of the trial court on the basis that the plaintiff-appellant was not registered in Nigeria. The trial court upheld the submission of the defendant-respondent. The plaintiff-appellant appealed to the Court of Appeal, which unanimously allowed the appeal. The majority of the Court of Appeal rightly applied Section 60(b) of the Companies and Allied Matters Act 1990 to the effect that the plaintiff-appellant, though not registered in Nigeria, could sue in Nigeria.[5]

In the recent case of BCE Consulting Engineers v Nigerian National Petroleum Corporation[6] the Nigerian Supreme Court did not consider Section 60(b) of the Companies and Allied Matters Act 1990 (now Section 84(b) of the Companies and Allied Matters Act 2020), though its final decision was correct. In that case, the claimant/1st appellant claimed that it entered into a consultancy service agreement with the defendant/respondent which the latter unlawfully terminated. The plaintiff/1st appellant therefore filed an action via originating summons in the Federal High Court, Lagos State Judicial Division, seeking declaratory reliefs to that effect. It further claimed the total value of outstanding claims on invoices submitted by it, special and general damages. One of the issues canvassed at the Supreme Court was whether the Court of Appeal was right when it held that the contract entered into by the claimant-1st appellant a foreign company without incorporation in Nigeria was illegal and unenforceable? The Supreme Court Justices unanimously agreed with Peter-Odilli JSC who held as follows in her leading judgment:

“I agree with learned counsel for the appellants that section 54 of the Companies and Allied Matters Act [Cap C20 LFN 2004][7] does not apply to the facts of this case because the situation before the court in this case is one of a firm registered in Nigeria and entering into contract with the respondent but subsequently to the execution of the contract incorporating itself outside Nigeria as a limited liability company”.[8]

It is submitted that the Supreme Court should also have had regard to Article 60(b) of the Companies and Allied Matters Act 1990 (now Section 84(b) of the Companies and Allied Matters Act, 2020) in holding that assuming the claimant-1st appellant was a foreign company that was not registered in Nigeria, it was capable of maintaining an action in Nigeria. This would have put to doubt any question as to the capacity of a foreign company that is not registered in Nigeria to sue or be sued in Nigeria. It would also have made the Supreme Court’s decision exhaustive in this regard.

[1] (2021) All FWLR (Pt. 1083)  359.

[2](2004) 13 NWLR 376.

[3]Companhia Brasileira De Infraestrututira v Cobec (Nig) Ltd (2004) 13 NWLR 376, 391, 395 (Aderemi JCA, as he then was) (overturned on another point in INFAZ v COBEC (Nig) Ltd (2018) 12 NWLR 127). See also Watanmal (Singapore) Pte Ltd v. Liz Olofin and Company Plc (1997) LPELR-6224(CA) 13 (Musdapher JCA as he then was); NU Metro Retail (Nig) Ltd v. Tradex S.R.L & Anotherr (2017) LPELR-42329(CA) 41-2 (Garba JCA as he then was).

[4](2006) 4 NWLR 114.

[5]Edicomsa International Inc and Associates v CITEC International Estates Ltd (2006) 4 NWLR 114, 125-26 (Rhodes-Vivour JCA, as he then was), 130 (Omage JCA).  See also B.C.N.N. Ltd. v. Backbone Tech. Net. Inc.  (2015) 14 NWLR (Pt. 1480) 511. Cf.  AG Butler (Nig) (Ltd) v The Sanko Steamship Co. Ltd (2020) LPELR -51141 (CA). Cf. Hung & Ors v. EC Investment Co. (Nig) Ltd (2016) LPELR -42125 (CA) (Tur JCA dissenting).

[6] (2021) All FWLR (Pt. 1083)  359

[7] “Subject to sections 56 to 59 of this Act, every foreign company which before or after the commencement of this Act was incorporated outside Nigeria, and having the intention of carrying on business in Nigeria, shall take all steps necessary to obtain incorporation as a separate entity in Nigeria for that purpose, but until so incorporated, the foreign company shall not carry on business in Nigeria or exercise any of the powers of a registered company and shall not have a place of business or an address for service of documents or processes in Nigeria for any purpose other than receipt of notices and other documents, as matters preliminary to incorporation under this Act.” This provision is now contained in Section 78 of the the Companies and Allied Matters Act, 2020.

[8] ibid, 396.

Ilaria Pretelli (Swiss Institute of Comparative Law; University of Urbino) has posted Three Patterns, One Law – Plea for a Reinterpretation of the Hague Child Abduction Convention to Protect Children from Exposure to Sexism, Mysogyny and Violence against Women on SSRN.

The abstract reads:

The 1980 Hague Convention must be read today in light of the 2011 Istanbul Convention that brings to full light that violence against women is a world-wide phenomenon, and “one of the most serious forms of gender-based violations of human rights in Europe that is still shrouded in silence”. The perspective proposed by this paper allows to break the silence and solve the conundrum of the dilemma on how the return mechanism should operate in practice, in order to ensure full compliance with the best interests of the child. Sexism, misogyny and violence against women may be the premise of child abductions carried out by taking fathers, permeated with a sexist culture, but also by taking mothers fleeing violence. The solution proposed here consists in re-establishing the original distinction of the 1980 Convention, between illicit transfers of a child’s residence and child abductions in the true sense.

Par son arrêt du 15 juillet 2021, la Cour de justice se penche sur la détermination de la juridiction compétente, en application du règlement Bruxelles I bis, en présence d’un préjudice subi par une entreprise ayant acheté des biens à des prix trop élevés en raison d’une entente entre fabricants.

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The Hague Academy of International Law has recently published its programmes for the Summer Courses in 2022. The part on public international law will take place from 11 to 29 July 2022, the part on private international law will follow from 1 to 19 August 2022.

This latter part will start with an inaugural lecture by Dominique Hascher, the general course will be given by Louis d’Avout, and special courses will be offered by Marco Frigessi di Rattalma, João Bosco Lee, Ulla Liukkunen, Kermit Roosevelt III, Tiong Min Yeo, and Arnaud Nuyts – a truly impressive global gathering of expertise – highly recommended! Opening of the registration period: November 1st, 2021. Further information can be found here.

A special feature of the 2022 programme will be a conference in memoriam of Emmanuel Gaillard who passed away last year, far too early (for a memorial note on CoL by Ralf Michaels see here). Contributors will be Yas Banifatemi, Diego P. Fernández Arroyo, Dominique Hascher, Horatia Muir Watt, Luca Radicati di Brozolo.

More and more participants decide to take part in both parts, which of course is the best of all choices, as the two branches of international law have much in common and the lines more and more blur (again). In addition, most of the global challenges of our time can only be dealt with adequately if tackled in an integrated approach. Therefore, it is with good reason that, following to the two parts on public and private international law courses, the Academy’s Centre for Studies and Research again addresses such a cross-over topic in its programme from 22 August to 9 September 2022: Climate Change and the Testing of International Law. For more information see here.

An important publication on the HCCH 2019 Judgments Convention has come out: Holger Jacob’s PhD thesis, “Das Haager Anerkennungs- und Vollstreckungsübereinkommen vom 2. Juli 2019“, supervised by our esteemed colleague Peter Huber, University of Mainz, Germany. The book is certainly the most comprehensive treatise on the subject matter in German language at this moment, and it is highly recommended: thorough analysis and precision invite anyone interested in the topic to study concepts and details of the new core element of the “Hague system” for judicial cooperation in civil matters.