Feed aggregator

Union européenne - Urbanisme

The first 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. Both articles deal with the topical issue of corporate social responsibility.

In the first article, Bernard Teyssié (University of Paris II – Panthéon-Assas) discusses the legal scope of the OECD Guidelines for multinational enterprises (“Les principes directeurs de l’OCDE à l’intention des entreprises multinationales”)

The English abstract reads:

The OECD Guidelines for multinational enterprises carry rules of conduct which, on a literal reading, are not binding. The recommendations made are designed to identify, prevent, exclude or, at least, mitigate the negative impacts generated by the activity of multinational enterprises or their suppliers and subcontractors in the social and corporate social responsability area. However, the reach of these recommandations is increased by the obligation imposed on any State, which has acceded to the Guidelines, to establish a national Point of contact to deal with complaints alleging a breach of the laid down Principles. The role of these Points of contact in fact confers a binding effect upon the enacted rules, contrary to what it is officially declared.

In the second article, Catherine Kessedjian (University of Paris II – Panthéon-Assas) analyses the Hague Rules on Business and Human Rights Arbitration drawn up under the auspices of the Center for International Legal Cooperation (CILC) (“The Hague Rules on Business and Human Rights Arbitration ou comment l’arbitrage et la médiation peuvent renforcer le respect des droits de l’homme par les entreprises“).

The English abstract reads:

Many recognize that access to justice is the Achilles’ heel of corporate respect for human rights. This is why, at the end of 2019, a group of jurists from various backgrounds proposed a set of arbitration rules specific to this area, which mixes public and private interests. The exercise was not easy. The purpose of the article that follows is to evaluate these rules in the light of the particularities of the subject matter and the concrete findings that have been made thanks to the procedures conducted before national courts in a few countries, some of which are still ongoing. Certain points are identified that could justify amendments to the rules when and if a revision is initiated. 

A full table of contents can be downloaded here.

La décision de demande de renseignements visée à l’article 18, § 3, du Conseil du 16 décembre 2002 relatif à la mise en œuvre des règles de concurrence prévues aux articles 101 et 102 du TFUE peut être prise par la Commission postérieurement à la procédure de communication des griefs. Elle constitue un acte préparatoire à une éventuelle décision de constatation d’infraction et présente ensuite, pour ce qui concerne la disposition prévoyant une astreinte, un caractère provisoire supposant, afin que puisse être contesté son montant, une décision définitive de condamnation au paiement de cette astreinte.

en lire plus

Preuve - Enregistrement

The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is currently recruiting new members for its team. Two fully-funded positions as Research Fellow (PhD candidate; m/f) for the Research Department of European and Comparative Procedural Law are currently open:

• Fixed-term contract for 2 years; contract extension is possible; 40 hrs/week; Luxembourg

Your tasks

The Research Fellow will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators.

The successful candidate will have the opportunity to contribute to the development of the Department of European and Comparative Procedural Law led by Prof. Dr. Dres h.c. Burkhard Hess and, in parallel, work on her/his PhD project. A supervision by Prof. Dr. Dres h.c. Hess of the successful candidate’s PhD thesis is also a possibility.

Your profile

Applicants shall have obtained at least a Master’s degree in Law with outstanding results: they must have ranked within the top 5-10 % of their class and shall have a deep knowledge of domestic and EU procedural law.

The successful candidate should demonstrate a great interest in academic research and have a high potential to develop excellence. Proficiency in English is compulsory (written and oral); further language skills (notably in French and German) are an advantage.

Documents required

A detailed CV comprising of a list of publications; copies of academic records; a PhD project description of no more than 1-2 pages with the name of the prospective PhD supervisor and the name of the institution awarding the PhD certificate; the name and contact details of two referees.

You may apply online until 28 February 2021.

Contact: recruitment@mpi.lu

The Max Planck Institute Luxembourg strives to ensure a workplace that embraces diversity and provides equal opportunities.

Réglementation - durée du travail

Impôts et taxes

Chambre de l'instruction

Douanes

Transaction

Those who combine my excitement of having professor McCorquodale contribute to the blog, with his enthusiasm at the end of his post, may find themselves in a perennial game of complimentary renvoi.

Robert, who represented interveners CORE in Okpabi v Shell (one-line summary in live tweeting here), signals the jurisdictional take-aways. The wider due diligence context of the case is considered by Ekaterina Aristova and Carlos Lopez here, Lucas Roorda signals ia the merits bar following the jurisdictional findings and Andrew Dickinson expressed his hope of an end to excessively lengthy jurisdictional proceedings here.

Okpabi v Shell: Judges’ Approach to Jurisdictional Issues is Crucial

In Okpabi v Shell [2021] UKSC 3, Nigerian farmers brought a claim against Shell’s parent company (RDS) and its Nigerian subsidiary (SPDC) for environmental and human rights impacts of oil pollution. The claim had been struck out at the initial state on the basis of lack of jurisdiction in relation to the actions of SPDC, and this decision had been upheld by the Court of Appeal.

The Supreme Court unanimously swept aside these decisions. It held that when considering issues of the court’s jurisdiction over such a claim, a court must start from the basis that the alleged facts of the claim are true and from there determine if the claim has a real prospect of success.  The defendant should not bring evidence of its own to dispute the alleged facts unless the facts are demonstrably untrue or unsupportable, as otherwise it risks showing that there is an issue to be tried.  If a judge engages with the evidence and makes findings on it in a summary judgment, the more likely it is that the decision to strike out will be overturned. Further, the Court considered that there was a danger of a court determining issues which arise in parent/subsidiary cases without sufficient disclosure of material documents in the hands of the defendants. Both courts below had acted incorrectly and conducted a “mini-trial”, and so the appeal by the claimants was successful.

The Court affirmed Vedanta that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that the Caparo test was inapplicable to these types of cases. The Court also clarified the scope of the duty of care by making clear that control is not determinative, it is the level of management involvement by the parent which is crucial. A parent company’s group-wide policies and standards were relevant in this respect. The Court, unfortunately, did not refer in its decision to any comparative law cases or international developments, even though these had been drawn to its attention.

This decision embeds the position that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that de facto management is a factor to consider. It examined the legal process by which courts consider these jurisdictional issues and made it much harder for a judge to strike out a case at the jurisdictional stage unless the facts on which the claim is based are demonstrably untrue or unsupportable. This could enable quicker proceedings towards the merits in these types of cases.

—Robert McCorquodale – it is my honour to contribute to this excellent blog.

By Jie (Jeanne) Huang, Associate Professor, University of Sydney Law School Australia

In 2013, the plaintiffs, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD) concluded a written contract with the defendant, LT Game International (Australia) Ltd (LT) about the development and installation of a computer betting game. LT is a company incorporated in the Virgin Islands and registered in Australia as a foreign company. The contract was signed in Australia. Its Clause 10 provides.

“10. Governing Law

Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

When a dispute arose, the plaintiffs commenced the proceedings at the Supreme Court of Queensland in Australia ([2020] QSC 318). The defendant entered a conditional appearance and applied to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract. This case shed useful light on how an Australian court may address the impacts of COVID-19 on foreign jurisdiction clauses.

The parties did not dispute that Clause 10 was an exclusive jurisdiction clause choosing courts in Macau China. However, an exclusive foreign jurisdiction clause does not exclude Australian courts’ jurisdiction. The plaintiffs alleged that the Supreme Court of Queensland should not enforce the exclusive jurisdiction clause due to the COVID?19 pandemic for two reasons.

First, the pandemic currently prevents the plaintiffs from commencing proceedings in Macau. The court rejected this argument because no evidence suggested that representatives of the plaintiffs had to be present in Macau for lawyers retained by them to commence proceedings.

Second, plaintiffs also alleged that their witnesses could not travel from Australia to Macau because of the pandemic. The court also rejected this argument because of insufficient evidence. According to the court, the plaintiffs did not provide any evidence of the impact of COVID?19 in Macau, for example, what restrictions were being experienced now, what restrictions were likely to be experienced in the future and how long those restrictions may persist. There was also no evidence showing when a trial of proceedings commenced now in Macau might be heard. Although Australian witnesses might be called in the Macau proceedings, the plaintiffs did not identify any specific persons who would be called were residents in Australia. It was also unclear whether overseas witnesses might be called if the proceedings were conducted in Australia as Australia also imposed strict travel restrictions.

Finally, the court ruled for the defendant and dismissed the plaintiffs’ claim. Nevertheless, the court indicated that the plaintiffs could recommence the proceedings in Queensland if the circumstances of the COVID-19 pandemic changed materially in Macao in the future.

Comments:

It is well established that an exclusive foreign jurisdiction clause does not operate to exclude Australian courts’ jurisdiction; however, the courts will hold the parties to their bargain and grant a stay of proceedings, unless the party who seeks that the proceedings be heard in Australia can show that there are strong reasons against litigating in the foreign jurisdiction.[1] In exercising its discretion, the court should take into account all the circumstances of the particular case. However, doubts have been cast as to whether courts should consider financial or forensic inconvenience attaching to the nominated foreign jurisdiction, at least when these factors should have been known to the parties at the time the exclusive jurisdiction clause was agreed by them.[2]

In RCD, the court correctly held that Clause 10 should be interpreted as manifesting an intention that disputes would be determined in Macau by applying the law of Macau. Although the application of Macau law might bring financial benefits to the defendant because it is more difficult to prove liability for damages under the Macau law than the law in Australia. However, this is insufficient to convince the court to exercise jurisdiction because the potential financial benefits for the defendant are what the parties have bargained for.

Regarding the location of witnesses, the court is also correct that parties should expect that breaches may occur in Australia as the contract would be partially performed there, and consequently, witnesses in Australia may need to be called for proceedings in Macao. Therefore, the location and travel of witnesses are not a strong reason for Australian courts to exercise jurisdiction.

The outbreak of the COVID-19 pandemic is a factor that parties could not reasonably expect when they concluded their foreign jurisdiction clause. If a plaintiff wants to convince an Australian court to exercise jurisdiction in spite of an exclusive foreign jurisdiction clause, this plaintiff must provide solid evidence of the impacts of the COVID-19 pandemic on foreign proceedings. If the plaintiff can show that the pandemic developed so as to effectively prevent, or unduly frustrate the plaintiff in litigating in the foreign jurisdiction, then that might be a discretionary consideration, with any other relevant considerations, in favor of allowing the plaintiffs to litigate in Australia.

[1] High Court of Australia decisions such as Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 at 445, Oceanic Sunline Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 259, Huddart Parker Ltd v The Ship Mill Hill (1950) 81 CLR 502 at 508-509.

Decisions of intermediate courts of appeal such as Global Partners Fund Ltd v Babcock & Brown Ltd (in liq) & Ors (2010) 79 ACSR 383 at 402-403, [88]-[89], Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419 at 438, [78], Venter v Ilona MY Ltd [2012] NSWSC 1029.

[2] Incitec Ltd v Alkimos Shipping Corp (2004) 138 FCR 496 at 506 and Australian Health & Nutrition Association Ltd & Anor v Hive Marketing Group Pty Ltd & Anor (2019) 99 NSWLR 419.

Zacaroli J this morning held in Gategroup Guarantee Ltd, Re [2021] EWHC 304 (Ch) on whether ‘part 26A’ English restructuring ‘Plans’ (see my review of ia Deep Ocean) are within the scope of the Lugano Convention’s insolvency exception (Lugano rather than Brussels Ia was engaged).

He held they are, leading to neutralisation of an exclusive choice of court agreement in the relevant bonds, and making the courts of England and Wales have jurisdiction despite this choice of court.

Oddly Kaupthing was not referred to. Neither was Enasarco.

The judge relied unconvincingly in my view on the dovetail discussion (most recently discussed by me viz Alpine Bau) under the Brussels IA Recast and the EU Insolvency Regulation (‘EIA’)- neither of course applicable to the UK anymore, as indeed is the case for the Lugano Convention.

All in all this is a case in which the  reasoning has a potentially long term impact. The claim form in this case was issued on 30 December 2020. As such, by reason of Regulation 92(1), (2)(d) and (3) of the Civil Jurisdiction and Judgment (Amendment) (EU Exit) Regulations 2019, the Lugano Convention continues to apply.

The Plan Company was incorporated on 8 December 2020 as a wholly owned subsidiary of gategroup Holding AG (the ‘Parent’, a company incorporated in Switzerland. At [55] , if Lugano applies to applications under Part 26A, then the Plan Company accepts that by reason of A23(1) Lugano and the exclusive jurisdiction clause in favour of the courts of Zurich in the Bonds, this court has no jurisdiction. That acceptance is made notwithstanding that the Deed Poll contains a non-exclusive jurisdiction clause in favour of the courts of England. The Plan Company acknowledges that since the purpose of the Plan is to effect amendments to the terms of the Bonds, the exclusive jurisdiction clause in the Bonds is engaged.

The usual modus operandi of assuming application of Brussels Ia arguendo (see viz schemes of arrangement most recently KCA Deutag and viz Plans Deep Ocean and Virgin) did not fly here for as noted the Plan Company accepts that the exclusive jurisdiction clause in favour of the Zurich courts is a complete bar to this court assuming jurisdiction if the Lugano Convention applies (in the preceding cases the point need not be decided, since jurisdiction under BIa could be established arguendo as in none of them was there adversarial argument on the point).

At 70 Justice Zacaroli introduces effectively an amicus curiae by Kirkland & Ellis, opposing the view that the insolvency exception applies.

At 73 ff a first point is considered: Part 26A Plans have not been notified under the EIA Annex. This refers to the so-called dovetailing between Brussels Ia, Lugano and the EIR. The suggestion is that if a procedure is not listed in Annex A EIR, it is conclusively not an insolvency proceeding and “that is the end of the matter” because the dovetailing principle leads inexorably to the conclusion that it falls within the Recast (‘and thus within the Lugano Convention’  [73]). At 82 the judge incidentally is under the impression that the older, heavier procedure of amendment by (EP and Council) Regulation applies – which it no longer does since the EIR 2015.

I have since long submitted that there is no such dovetail. It is also clear that there cannot be identity of interpretation between the Lugano Convention’s insolvency exception and the Brussels regime given that non-EU Lugano States are not part of the EIR. The judge confirms as much at 81 and at 91 ff  and, in a first approach, revisits the principles of modified universalism and the origin of the insolvency exception in particular in the Jenard report. He holds at 103 that the ratio behind the insolvency exception in the Rapport Jenard is the same as the ratio behind Plans, hence that the exception applies.

In a second (presumably subsidiary) approach, the judge queries whether proceedings under Part 26A comply with the abstract requirements for an ‘insolvency’ procedure under of A1(1) EIR and finds at 133 that they do. I am really not convinced by the relevance of that analysis. He includes at 134 ff an argument that the Dutch ‘WHOA’ (Wet homologatie onderhands akkoord) proceedings are to be included in Annex A. Again I am not convinced that serves much purpose. Member States populate the Annex and a Member State proposal for inclusion is not checked against A1(1) EIR.

Conclusion on the jurisdictional issue at 137: ‘proceedings under Part 26A are within the bankruptcy exclusion in the Lugano Convention. This court accordingly has jurisdiction notwithstanding the exclusive jurisdiction clause in the Bonds.’

A most relevant judgment, on which the issues are not at all clear. Expect appeal lest the restructuring timing has made this nugatory – settling these issues would most certainly be welcome.

Geert.

EU private international law, 3rd ed. 2021, paras 2.73 ff (2.81 ff in particular) and 5.35 ff.

Important first instance decision on whether a restructuring plan is an insolvency proceeding for the purposes of the Lugano Convention.
Held that it is, with confusing analysis of the EU Insolvency Regulation.
Held Lugano does not apply, E&W courts have jurisdiction. https://t.co/XqZ0J6IIIH

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

Paul Lorenz Eichmüller (University of Vienna) has kindly provided the following post.

Austria is one of the few European countries that still retains the institution of fault divorce, which means that a court will have to examine the grounds for a separation. With an increasing number of States abolishing this type of divorce (England and Wales being one of the most recent examples), conflicts problems may arise due to the incompatibility between the different systems. This is well illustrated by a recent decision of the Austrian Supreme Court from 10 December 2020.

The parties of the underlying case were both Austrian citizens who got married in Austria and later moved to Belgium for professional reasons. Subsequently, they got divorced there under Belgian law in accordance with Article 8(a) of the Rome III Regulation. Belgium had abolished fault divorce in 2007. Thus, no statement on fault for the divorce was issued in the judgment.

After the divorce, the former wife moved back to Austria and brought an action for a supplementary pronouncement of fault in Austrian courts to improve her situation in subsequent maintenance proceedings under Austrian law. The former husband had in the meanwhile relocated to Guinea.

After the court of first did not discuss the applicable law at all and the court of second instance ruled that pursuant to Article 8(c) of the Rome III Regulation, Austrian law was applicable to the issue of determining fault in a marriage, the Supreme Court of Austria decided that Austrian law was indeed applicable. According to the Supreme Court, the supplementary pronouncement of fault serves primarily for the purposes of maintenance, as it determines the amount of maintenance that a divorced spouse receives. As such, it is a preliminary question for the maintenance claim and hence governed by the maintenance statute, rather than the divorce statute. This would also be in line with the Rome III Regulation, which excludes matters of maintenance from its sphere of application in Article 1(2)(g). The Hague Protocol on the Law Applicable to Maintenance Obligations, which determines the maintenance statute in Austria (Article 15 of the Maintenance Regulation), stipulates in Article 3 that the applicable law is the law at the habitual residence of the creditor, which in this case was Austria. However, in order to give the former husband the opportunity to argue for the possible application of a law with a closer connection according to Article 5 of the Hague Protocol, the court referred the dispute back to the court of first instance.

The decision of the Supreme Court is overall not very convincing, leaving many open questions that have not been dealt with in the reasoning of the judgment.

First of all, the decision is insofar remarkable as it unnecessarily brought confusion to an issue that had previously been settled in well-established case law. Given the unclear qualification of fault in a divorce in private international law, a referral of the case to the ECJ for a preliminary ruling would have thus been preferrable, as the scope of application of the Rome III and Maintenance Regulations is concerned. The previous rulings of the Austrian Supreme Court had always determined the supplementary pronouncement of fault according to the divorce statute (RS0077266; approving also in literature: Nademleinsky, EF-Z 2019, p. 139).

Apart from this procedural issue, the Supreme Court surprisingly broke with precedent (1 Ob 340/58) stating that it is not a preliminary question for the award of maintenance whether there was fault, but rather a mere question of fact, whether the divorce judgment contains a pronouncement of fault. That approach is also followed in literature (Zankl/Mondel in Schwimann/Kodek, ABGB4 § 69 EheG Rz 1). But even if it is classified as a preliminary question in the exception of international cases (as supported by Nademleinsky, EF-Z 2019, p. 139), the law applicable to preliminary questions nevertheless has to be determined separately in accordance with the applicable rules of private international law. Therefore, this would in itself not provide any additional value for the scope of application of the abovementioned regulations or for the applicable law.

Now, what actually is the applicable law determining fault in a divorce? At a first glance, the argumentation of the Supreme Court seems plausible: As the pronouncement of fault after a finalised divorce only serves the purpose of creating a better position for the maintenance creditor, it might be regarded as an issue of the Maintenance Regulation. However, a question is not automatically within the scope of the Maintenance Regulation, solely because its main relevance lies in maintenance law. In a fault divorce, the question who bears fault for the end of the marriage falls without the shadow of a doubt under the divorce statute. Yet, in maintenance proceedings following a no-fault divorce the exact same question would be determined by another statute, just because the law applicable to the divorce under Art 8 Rome III does not know a fault divorce. It is not convincing that the classification should depend on the type of proceedings initiated, as this undermines the aim of the European private international law regulations, namely to uniformly determine the applicable law.

Additionally, the rules of the Hague Protocol are designed in such a way that they protect the creditor by referring to the law at the creditor’s habitual place of residence. This is appropriate given that the creditor has to make a living at that place. However, the question whether there was fault in ending the marriage is not at all connected to the place of the creditor’s habitual residence. It is much more closely connected to the marriage and its dissolution. Thus, it should be determined according to the divorce statute.

Contrary to the Supreme Court’s ruling, Belgian law is thus relevant for fault in divorce in the present case. Does that, however, mean that the former wife necessarily receives a lower maintenance and the husband’s fault cannot be taken into account? Not necessarily. If there is no pronouncement of fault in the divorce judgment, the maintenance is determined according to equity (§ 69(3) EheG) rather than by a fixed percentage, as when there is a pronouncement of fault. Up to the present decision, this was also the case for any foreign judgment from a jurisdiction without fault divorce (RS0114475).

According to some opinions (Zankl/Mondel in Schwimann/Kodek ABGB4 § 69 EheG Rz 18; LGZ Wien 11.6.1984, 44 R 1049/84), the fault of a spouse can then be weighed in this equitable evaluation. Although the Supreme Court seems to disagree with this interpretation – for good reasons if both the divorce and the maintenance proceedings were held under Austrian law – this line of jurisprudence should not be followed in an international context, since a failure to consider fault would lead to a qualitative discrepancy of norms.

If the Supreme Court were to remain adamant in its position that the fault may in principle not be weighed in cases of § 69(3) EheG, the legal norms in the foreign divorce statute and the Austrian maintenance statute would be in qualitative discrepancy to each other, as the latter simply assumes that fault will be pronounced in the divorce judgment if there is any. Based on this assumption, it assigns lower maintenance to divorces where no fault is pronounced. However, this assessment does not have foreign judgments in mind where there is no possibility for a pronouncement of fault according to the divorce statute. While Austrian maintenance law requires the existence of this legal institute, its absence in many jurisdictions results in the connection of this question ending up nowhere. Hence, the incompatibility of the two legal systems has to be remedied by the means of adaptation.

While adaptation can be conducted both on the level of private international law (as Gitschthaler in Gitschthaler, IntFamR Art 11 HUP Rz 2 seems to suggest) and on the level of substantive law, the choice between the two should depend on which one is the less invasive.

As maintenance after divorces without the pronouncement of fault is under Austrian law determined on the basis of equity anyway, the adaptation on a substantive level – by allowing the weighing of fault – is relatively non-invasive compared to applying a different statute altogether. The application of Austrian law on the determination of fault can therefore not be considered the preferred option.

Thus, the Supreme Court should have dismissed the action for a supplementary pronouncement of fault, so that the maintenance court could weigh the fault in its equitable evaluation – if not by default, then at least by the means of adaptation. Also from a point of procedural economy, this would be a desirable outcome, as the additional supplementary proceedings could be avoided.

Indemnisation des victimes d'infractions