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Invitation by Angélique Devaux, Notary

The “Chaire du Notariat” of the University of Montreal is organising a webinar on 17 March 2021 at 9am (EST) on the impact in Quebec and in France of the new European Regulation on Successions.

Through practical cases, the speakers will deal with the resolution and prevention of disputes in matter international successions between France and Quebec by taking into consideration the scope of the New European Regulations on matrimonial property regimes and on successions.

Moderator:

Julie Loranger, Notary, Montreal (Canada), BCF Avocats

Speakers:

Me Angélique DEVAUX, Notaire, Cheuvreux Notaires, Paris (France), LL.M American Law IUPUI Robert McKInney School of Law

Me Jeffrey TALPIS, Montreal University, Head of Chaire du Notariat, corresponding of CRIDON Lyon

Professor Emeritus Georges Khairallah, Université de Paris II Panthéon – Assas, consultant au CRIDON de Paris, droit international privé

To enrol, see the website of the Chaire du Notariat.

As I seem to be in pedagogic blog mode today, a note on AdActive Media Inc v Ingrouille [2021] EWCA Civ 313. The case shows the complications that arise in recognition and enforcement proceedings outside of the Brussels regime. The proceedings were initiated prior to the end of the Brexit transition period however seeing as they involve a judgment from outside the EU, Brussels Ia was never engaged. Even had BIa been engaged, an interesting discussion would have ensued, I am sure, as to the impact of the arbitration exclusion on the case at issue.

The consultancy agreement between the parties (AdActive Media are incorporated in Delaware, Mr Ingrouille is resident in the UK) is by its express terms governed by the law of the State of California. It contains three provisions dealing with jurisdiction, two of which confer jurisdiction on US District and State Courts in California and the other provides for arbitration. The provision for arbitration expressly excludes claims by the company under two clauses, one of which (clause 7) contains covenants against the misuse and unauthorised disclosure of confidential information. Alleged breaches of clause 7 featured prominently in the claims made in the US proceedings. The relationship between these provisions and their effect is one of the issues arising on this appeal. The company argued before the judge who was asked to confirm recognition, that they were irreconcilable, and that the arbitration clause was ineffective. Alternatively, it argued that as the US proceedings included claims in respect of the misuse and unauthorised disclosure of confidential information, they were properly brought in the US Court.

Under the common law of recognition and enforcement, if the US proceedings were properly brought in the US Court in accordance with the terms of the consultancy agreement, that court is recognised as having jurisdiction over the claim against Mr Ingrouille and its judgment will prima facie be enforceable in England. However the lack of the Brussels’ regime mutual trust and harmonisation of jurisdictional rules means the English court will second-guess US jurisdiction under section 32 of the England and Wales Civil Jurisdiction and Judgments Act 1982 (I have copied the relevant extract below).

What follows are 50-odd paras of discussion of the scope of clause 7, reference to Fiona Trust and Enka, and a conclusion by Richards LJ that the judgment entered against Mr Ingrouille in the US proceedings cannot be enforced in England, by reason of the application of section 32(1) of the 1982 Act. Summary judgment was entered in favour of Mr Ingrouille.

Geert.

Successful appeal against the recognition and enforcement of a US (DC CAL) judgment on grounds of lack of US jurisdiction, resulting from issue being within scope of #arbitration clause interpreted under lex fori, EN law, not lex contractus, CAL law. https://t.co/iQELdp3FEg

— Geert Van Calster (@GAVClaw) March 5, 2021

S32:

“(1) Subject to the following provisions of this section, a judgment given by a court of an overseas country in any proceedings shall not be recognised or enforced in the United Kingdom if –

(a) the bringing of those proceedings in that court was contrary to an agreement under which the dispute in question was to be settled otherwise than by proceedings in the courts of that country; and

(b) those proceedings were not brought in that court by, or with the agreement of, the person against whom the judgment was given; and

(c) that person did not counterclaim in the proceedings or otherwise submit to the jurisdiction of that court.

(2) Subsection (1) does not apply, where the agreement referred to in paragraph (a) of that subsection was illegal, void or unenforceable or was incapable of being performed for reasons not attributable to the fault of the party bringing the proceedings in which the judgment was given.

(3) In determining whether a judgment given by a court of an overseas country should be recognised or enforced in the United Kingdom, a court in the United Kingdom shall not be bound by any decision of the overseas court relating to any of the matters mentioned in subsection (1) or (2).”

Invitation by Dr Orsolya Toth, Assistant Professor in Commercial Law, University of Nottingham

The University of Nottingham Commercial Law Centre will hold its inaugural Nottingham Arbitration Talk on Wednesday 17 March at 2-4 pm.  The Centre is delighted to welcome distinguished speakers to the event drawn from both academia and practice.  The Keynote address will be given by Professor Sir Roy Goode, Emeritus Professor of Law at the University of Oxford.  The speaker panel will host Angeline Welsh (Essex Court Chambers), Timothy Foden (Lalive) and Dr Martins Paparinskis (University College London).

The theme of the event will be ‘Procedure and Substance in Commercial and Investment Treaty Arbitration’.  It will address current and timeless issues, such as the influence of procedure on the parties’ substantive rights, the recent phenomenon of ‘due process paranoia’ in arbitration and the current state of the system of investment treaty arbitration.

All welcome and free to attend.  For detailed programme and registration please visit https://unclcpresents.eventbrite.co.uk

Rokkan v Rokkan & Anor [2021] EWHC 481 (Ch) is most excellent material for anyone looking to teach and /or understand the concept of ‘characterisation’ in private international law /the conflict of laws.

It also of course shows how qualification may be used (albeit here unsuccessfully) to try and reverse the unfortunate consequences of a particular action. In essence, claimant is a son of the deceased (she died in 2016 domiciled in the UK having lived there for a long time) who in her  2012 testament had been given the funds in two Norwegian bank accounts of the deceased, which she had emptied in 2014 via transfers to the UK.

Upon the 1979 death in Norway of her husband, the surviving spouse had applied for “uskifte” or “deferred probate” by which, in broad terms, the surviving spouse may apply to the court for an order by which (s)he is allowed to possess the whole of the joint estate of the deceased and the surviving spouse, and becomes subject to various obligations. The law provides that when the surviving spouse dies the joint estate is divided in two and each half passes to the heirs of the deceased spouse and the surviving spouse respectively (who may of course be the same).

Under England and Wales inheritance laws there is no reserved share. For claimant to obtain part of the estate, he must qualify his claim as something else than one in inheritance. The routes he opts for, are contractual (the argument here being that by exercising the right of deferred probate, the now deceased undertook obligations which were contractual and are governed by Norwegian law) or in trust (applying for and being granted deferred probate gave rise to a trust, whereby the now deceased held the joint assets on trust for herself but also for the first deceased heirs. It is alleged that the trust is governed by Norwegian law).

The characterisation principles are laid out at 33 ff, with focus mostly on characterisation following lex fori. Miles J does not discuss the role of the Rome Regulations (one imagines parties had not done so either) and under Rome I in particular, plenty of exceptions (family relationships, constitution of trusts) might well kick in. At 39 ff for the contract claim and at 49 ff for the trust claim under the Hague Convention, he rather swiftly decides the arguments are contrived: the Norwegian regime is near-entirely determined by Statute and that the initial kick-off requires the surviving spouse to apply for it, does not in and of itself render the whole regime a contractual one.

Good teaching material. Geert.

EU private international law 3rd ed. 2021, ia para 1.13

Exquisite judgment to teach characterisation, conflict of laws
Deceased wife having applied for uskifte=deferred probate viz late husband estate under NOR law
Whether it put her under contractual (held: no) or trust (@HCCH_TheHague Convention; no) duties.
Held: inheritance issue. https://t.co/ZsGy3xMpe4

— Geert Van Calster (@GAVClaw) March 4, 2021

On 5 March 2021, the Conclusions & Decisions of the HCCH governing body, the Council on General Affairs and Policy (CGAP), were released. Click here for the English version and here for the French version.

Although there is a wide range of topics discussed, I would like to focus on three aspects: gender issues, the Jurisdiction Project and future meetings.

1) Today is International Women’s Day and there are important conclusions on gender issues. The Conclusions & Decisions No 52-54 read as follows:

“G. Geographic Representation

“52. Reaffirming the principles of universality and inclusiveness, CGAP reiterated its commitment to ensuring appropriate geographic representation at the HCCH. Recognising the importance of this issue, CGAP agreed to maintain this item on the agenda for its 2022 meeting. CGAP invited the  PB  to facilitate,  within  existing  resources,  informal  consultations  ahead  of  the  2022 meeting of CGAP,  through in-person meetings, while ensuring the opportunity for any HCCH Member to participate.

53. In the context of this discussion, CGAP also recalled the importance of ensuring appropriate gender representation.

54. CGAP requested the  PB  to  provide  a  historical  overview  of  geographic  and  gender  representation in the key bodies and groups of the Organisation ahead of the 2022 meeting of CGAP.” (our emphasis)

Awareness of gender representation is always a victory for everyone!

2) As you may know, a spin-off from the Judgments Project was the establishment of the Experts’ Group on the Jurisdiction Project. The purpose of this Group was to continue its discussions on “matters relating to direct jurisdiction (including exorbitant grounds and lis pendens / declining jurisdiction)”, “with a view to preparing an additional instrument”. It met 5 times.

A report of the Experts’ Group was presented to the CGAP. It includes an aide-mémoire of the Chair (Annex I) and a Summary of the Responses to the Questionnaire on Parallel Proceedings and Related Actions in Court-to-Court Cases (Annex II). See here the Report on the Jurisdiction Project.

Interestingly, three options on the possible types of future instrument(s) were discussed by the Experts’ Group but views were divided: [Option A] Binding instrument on direct jurisdiction, including on parallel proceedings; [Option B] Binding instrument on parallel proceedings, and a binding additional protocol on direct jurisdiction; [Option C] Binding instrument on parallel proceedings, and a non-binding instrument (e.g., model law, guiding principles, etc.) on direct jurisdiction (see page 5).

A clear and strong preference was expressed for Options A and C (experts were divided).

In my personal opinion Option C seems to be the more sensible option. As expressed by the experts favoring this option: “[…] with  a  common  consideration being that diverse legal backgrounds and jurisdictional rules from around the world would  make  a  binding  instrument  on  direct  jurisdiction  difficult  to  conclude  and  to  implement.  These experts also noted that Option A may not be feasible due to existing differences in opinion of experts and considering past similar attempts. In this context, they considered it more useful to develop  a  soft  law  instrument  on  direct  jurisdiction  and  were  open  to  considering  the  viability  of  different  types  of  soft  law  instruments  such  as  a  model  law,  principles,  or  guidelines.  Given  the  need  to  deal  with  parallel  proceedings  in  practice,  they  expressed  a  preference  for  developing  a  binding instrument on parallel proceedings.”

Following the conclusion of the work of the Experts’ Group on the Jurisdiction Project, a new Working Group on matters related to jurisdiction in transnational civil or commercial litigation was established, and Professor Keisuke Takeshita (Japan) was invited to chair the Working Group.

The Conclusion & Decision No 9 of the CGAP reads:

“9. In continuation of the mandate on the basis of which the Experts’ Group had worked, CGAP mandated:

a. The Working Group to develop draft provisions on matters related to jurisdiction in civil or commercial matters,  including  rules  for  concurrent  proceedings,  to  further  inform  policy  considerations  and  decisions  in  relation  to  the  scope  and  type  of  any  new  instrument.

b. The Working Group to proceed in an inclusive and holistic manner, with an initial focus on developing binding  rules  for  concurrent  proceedings  (parallel  proceedings  and  related  actions  or  claims),  and  acknowledging  the  primary  role  of  both  jurisdictional  rules  and  the  doctrine  of  forum  non  conveniens,  notwithstanding  other  possible  factors, in developing such rules.

c. The Working Group to explore how flexible mechanisms for judicial coordination and cooperation can support  the  operation  of  any  future  instrument  on  concurrent  proceedings and jurisdiction in transnational civil or commercial litigation.

d. The PB to  make  arrangements  for  two  Working  Group  meetings  before the 2022 meeting of CGAP, with intersessional work, so as to maintain momentum. If possible, one meeting will be held after the northern hemisphere summer of 2021, and another in early 2022, with a preference, where possible, for hosting in-person meetings” (our emphasis).

3) With regard to future meetings, there are a few meetings in the pipeline, among them:

Special Commission meetings (SC – basically, a global meeting of experts)

• Special Commission on the practical  operation  of  the  2007  Child  Support  Convention  and  its  Protocol – postponed to March-June 2022 (first SC meeting ever on this Convention & Protocol)
• Special Commission on the Apostille Convention + 12th e-APP Forum – to be held online in October 2021
• Special Commission on the practical  operation  of  the  1993  Adoption  Convention – postponed to July 2022

Edition  2021  of  HCCH  a|Bridged will focus  on  the  2005 Choice  of  Court  Convention (incl. and “subject  to  available  resources,  the  circulation  of  a  brief  questionnaire  to  elicit  reasons  as  to  why  more  States  have  not  become  party  to  the  Convention”).

In a judgment of 27 January 2021, the French Supreme Court for private and criminal matters (Cour de cassation) indicated its willingness to apply strictly the definition of provisional measures developed by the European Court of Justice in Reichert, Van Uden and Saint Paul Dairy Industries. Three years earlier, the Cour de cassation had ignored the limits sets by these rulings and extended the jurisdiction of French courts to order evidentiary measures beyond purely protective measures.

The case was concerned with a contractual dispute between a French and a German company in the film industry. The contracts provided for the jurisdiction of German courts. As the German company wondered whether several French companies had commited the budget agreed upon by the parties to the production of a film and a series, it applied ex parte to a French commercial court for the appointment of a judicial officer (huissier de justice) with the task of conducting “computer investigation” and “gathering data”.

The judgment is short on the description of the measure, but it seems that the huissier was supposed to enter the premises of the French companies and collect data from their computer.

The French companies challenged the jurisdiction of the French court to grant such a measure.

Because of the jurisdiction clauses, French courts lacked jurisdiction on the merits. Their jurisdiction could only be grounded in Article 35 of the Brussels I bis Regulation. However, in order to avoid that parties bypass the jurisdiction of the chosen court (or any other court having jurisdiction on the merits), the ECJ has limited the scope of this provision to protective measures. As is well known, the ECJ has consistently defined ‘provisional, including protective measures’ in the meaning of this provision as:

referring to measures which, in matters within the scope of the Convention/Regulation, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is otherwise sought from the court having jurisdiction as to the substance of the case.

The concept, thus, is limited to measures which ‘preserve a situation’. Despite the title of Article 35, they actually only include protective measures. This narrow definition was codified in Recital 25 of the preamble of the Brussels I bis Regulation, which codified Saint Paul Dairy Industries in the following terms:

The notion of provisional, including protective, measures (…) should not include measures which are not of a protective nature, such as measures ordering the hearing of a witness.

The critical issue was thus to define the purpose of the requested measure.

The lower court had found that the aim of the measure was to prepare the proceedings on the merits by gathering information. It had thus ruled that the requested measure was not protective, as it did not aim at preserving any legal or factual situation. It had also held that the measure was not provisional either, as the provision of the information could not be undone.

The Supreme Court allowed the appeal. It ruled that the reasons of the lower court were too general, and that it should have explored whether the requested measure did not also aim at preserving evidence.

In 2018, the French Supreme Court had allowed the appointment of judicial experts for the purpose of conducting investigations in France and establishing facts without any assessment of whether there was any need to preserve a situation. As foreign courts had jurisdiction on the merits, these judgments were arguably non compliant with the case law of the CJEU defining the scope of Article 35. It seems that these decisions have now been overruled, and rightly so.

The COVID-19 Pandemic has impacted on commercial dispute resolution in China, Singapore and Australia. The important question is whether these impacts will be transformed into legal doctrines and shape the development of law for commercial dispute resolution in the long term.

Experienced panellists will consider how Covid-19 has promoted online trials in China, influenced forum non conveniens and other aspects of international commercial litigation in the Singapore courts, and challenged service of process outside Australia and other private-international-law related issues.

In 2021, besides this panel discussion, the Centre for Asian and Pacific Law (CAPLUS) at the Sydney Law School will organize a series of events on the (post)development of Covid-19 in the Asia-Pacific region focusing on social justice, civil rights and religion, and trade and investment legal issues.

Professor Vivienne Bath’s teaching and research interests are in international business and economic law, private international law and Chinese law. Professor Bath has extensive professional experience in Sydney, New York and Hong Kong, specialising in international commercial law, with a focus on foreign investment and commercial transactions in China and the Asian region.

Dr. Wenliang Zhang is an Associate Professor at Renmin University of China Law School. He has been teaching and doing research in the field of international disputes resolution, with a focus on international jurisdiction and global judgments recognition. His works appear in peer-reviewed international journals including Vanderbilt Journal of Transnational Law, Journal of International Dispute Settlement, Yearbook of Private International Law and Chinese Journal of International Law.

Dr. Adeline Chong is an Associate Professor at the School of Law, Singapore Management University. She has published in leading peer-reviewed journals such as the LQR, ICLQ, LMCLQ and JPIL. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the Singapore and New Zealand High Courts, the UK Law Commission, as well as in leading texts on conflict of laws. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Dr. Jie (Jeanne) Huang is an Associate Professor at the Sydney Law School. She teaches and researches in the fields of private international law and digital trade. She has published four books and authored many articles in peer-reviewed law journals, such as Journal of Private International Law and Journal of International Economic Law. She is the Deputy Director of CAPLUS. She also serves as an Arbitrator at the Hong Kong International Arbitration Center, Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center), Nanjing Arbitration Commission and Xi’an Arbitration Commission. She has also appeared as an expert witness for issues of Chinese law and private international law at the courts in Australia and the US.

Webinar via Zoom, Friday 12 March, 1pm AEST.

Once registered, you will receive Zoom details closer to the date of the webinar.

CPD Points: 1

Registration: https://law-events.sydney.edu.au/talkevents/aftermath-of-pandemic

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution

Edited by Luke Nottage, Shahla Ali, Bruno Jetin & Nubomichi Teramura

Discount 25% by applying Code 25NEWF21

Le Conseil d’État précise que les obligations de déclaration préalable au détachement de salariés européens s’appliquent à tout détachement effectif réalisé à compter du 1er mai 2015.

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You are kindly invited for the conference on “Regional Migration Governance: Soft Law and the Diffusion of Policies on Integration and Inclusion (Focus on South America Regionalism)” by Dr. Verónica Ruiz Abou-Nigm (senior Lecturer in Private International Law at Edinburgh Law School and the principal investigator of the GCRF funded project Migration in Latin America (MiLA)) on March 9, 2021, Tuesday between 12.30-13.30 (GMT+3). The conference is organised by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.