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I am instructed for claimants in the case hence my post here is a succinct report, not a review and it must not be read as anything else.

Turner J yesterday struck out (not just: stayed) the case against the companies jointly operating the facilities that led to the 2015 Brazilian dam break and consequential human and environmental loss in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). I reported on the case before here.

Eyre J’s earlier Order had identified the threefold jurisdictional challenge: 1. Forum non conveniens for non-EU defendants; 2. Article 34 Brussels IA for the EU-based defendants; 3. Abuse of process, case management for both.

In his judgment Turner J makes abuse of process the core of the case, hinging his subsequent obiter analysis of forum non and of Article 34 on his views viz abuse. At the centre of his abuse analysis is his interpretation of AB v John Wyeth & Brother (No.4), also known as the benzodiazepine litigation, with the points he takes from that judgment (even after the subsequent CPR rules wre issued) summarized at 76.

At 80 ff is a discussion (see e.g. my earlier review of Donaldson DJ in Zavarco) on the use of case-management powers, including abuse, against EU-domiciled defendants post CJEU Owusu (the ‘back-door analogy per Lewison J in Skype technologies SA v Joltid Ltd [2009] EWHC 2783 (Ch) ).

At 99 ff Turner J pays a lot of attention to the impact of accepting jurisdiction on the working of the courts in England, discusses some of the practicalities including language issues, and decides at 141 in an extract which has already caught the attention of others, that ‘In particular, the claimants’ tactical decision to progress closely related damages claims in the Brazilian and English jurisdictions simultaneously is an initiative the consequences of which, if unchecked, would foist upon the English courts the largest white elephant in the history of group actions.’

At 146 ff follow the obiter considerations of the remaining grounds, Article 34 Recast, forum non conveniens and case management stay. On Article 34 viz BHP Plc, the issue of ‘relatedness’ is discussed with reference of course to Euroeco and the tension between that case and Privatbank, as I flag ia here, holding at 199 in favour of Privatbank as the leading authority (hence focus on desirability of hearing cases together rather than on practical possibility). On relatedness, Turner J does not follow the approach of either Zavarco or Jalla, both of course first instance decisions.

At 206 Turner J takes the instructions of recital 24 Brussels Ia’s ‘all circumstances of the case’ to mean including circumstances which would ordinarily be part of a forum non consideration, despite Owusu, and at 231 Jalla is distinguished (at least practically; Jalla is not authority for the judge here) and i.a. at 221 Turner J lists his reasons for allowing an Article 34 stay (again: these are obiter views). As already noted, these echo his findings on abuse of process.

The forum non conveniens analysis viz BHP Ltd at 235 ff, applying Spiliada, delivers inter alia on an inherent implication of Lord Briggs’ suggestions in Vedanta: that a commitment of defendants voluntarily to submit to the foreign alternative jurisdiction, hands them the key to unlock forum non. At 241: ‘In this case, both defendants have offered to submit themselves to the jurisdiction of Brazil. Thus the force of any suggestion that there may be a risk of irreconcilable judgements against each defendant is attenuated.’

Conclusions, at 265:

(i) I strike out the claims against both defendants as an abuse of the process of the court;

(ii) If my finding of abuse were correct but my decision to strike out were wrong, then I would stay the claims leaving open the possibility of the claimants, or some of them, seeking to lift the stay in future but without pre-determining the timing of any such application or the circumstances in which such an application would be liable to succeed;

(iii) If my finding of abuse were wrong, then I would, in any event, stay the claim against BHP Plc by the application of Article 34 of the Recast Regulation;

(iv) If my finding of abuse were wrong, then I would, in any event, stay the claims against BHP Ltd on the grounds of forum non conveniens regardless of whether the BHP reliance on Article 34 of the Recast Regulation had been successful or not;

(v) If my findings on the abuse of process point were wrong, then a free-standing decision to impose a stay on case management grounds would probably be unsustainable.

Appeal is of course being considered.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

3rd ed. forthcoming February 2021.

Jurisdiction denied in core #bizhumanrights case on the basis of abuse of process, Article 34 Brussels Ia and /or forum non conveniens.
For background to the case see https://t.co/CzkMFH98yH https://t.co/h9AjvJ6JIR

— Geert Van Calster (@GAVClaw) November 9, 2020

Commission / Italie (Valeurs limites - PM10)
Environnement et consommateurs
L’Italie a enfreint le droit de l’Union sur la qualité de l’air ambiant

The third issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Ilaria Viarengo, Professor at the University of Milan, Planning Cross-Border Successions: The Professio Juris in the Succession Regulation (in English)

• This article addresses the role of party autonomy in Regulation (EU) No 650/2012 in the context of estate planning, Against this backdrop, the interface between the law governing the succession and property aspects of marriage or of a registered partnership, as provided in the Regulations (EU) No 2016/1103 and 2016/1104, is also analysed. This article also proceeds to examine the optio juris functioning and, in particular, it focuses on, respectively, the object of the choice, the determination of the nationality, whose law may be chosen, and the formal and substantial validity of the agreement. Finally, the protection of close family members in connection with the freedom of choice is taken into account, as the choice of law could be in contrast with the legitimate expectations of family members on the applicability of certain provisions on forced heirship and lead to a law that actually undermines their position.

The following comment is also featured:

Edoardo Benvenuti, PhD Candidate at the University of Milan, La tutela collettiva risarcitoria dei consumatori nelle controversie transfrontaliere: diritto interno e prospettive di armonizzazione (‘Cross-Border Consumer Collective Redress: Domestic Law and Prospects for Harmonisation’; in Italian)

• This article examines some developments in the area of consumer collective redress in the EU, especially in the light of the recent proposal for a Directive on representative actions. In Italy, Law No 31 of 12 April 2019 introduces a new type of class action which triggers some reflections and, in particular, doubts about its congruence with the Directive. The Author examines whether the principles set forth in the proposed Directive are consistent with the protection of consumer collective interests and whether, in matters with cross-border implications, Regulation (EU) No 1215/2012 is an efficient instrument. Even though some CJEU decisions seem to promote a flexible interpretation of this latter Regulation, its provisions do not encompass collective redress; therefore, a reform is desirable.

In addition to the foregoing, this issue features the following book review by Francesca C. Villata, Professor at the University of Milan: Chris Brummer (ed.), Cryptoassets: Legal, Regulatory and Monetary Perspectives, Oxford University Press, New York, 2019, pp. XIII-441.

 

In a recent e-mail exchange, Paul Beaumont and Jayne Holliday (both working now at the University of Stirling) drew my attention to Article 14 of the Hague Convention on the civil aspects of international child abduction. The provision is certainly a rarity in the field of ascertaining and applying foreign law, and of recognition. It reads as follows

In ascertaining whether there has been a wrongful removal or retention within the meaning of Article 3, the judicial or administrative authorities of the requested State may take notice directly of the law of, and of judicial or administrative decisions, formally recognised or not in the State of the habitual residence of the child, without recourse to the specific procedures for the proof of that law or for the recognition of foreign decisions which would otherwise be applicable.

The logic of Article 14 appears to be twofold. It is first and  foremost a practical rule: it should lead to speedy decisions on the return of a child, which are fundamental to the working of the Convention.

Its second rationale seems to be dogmatic. According to the Convention’s explanatory report by Elisa Pérez-Vera, at para 119, Article 14 does not address cases of application of foreign law in the narrow sense; it rather “takes it into account” to check whether the claim of wrongful removal is correct:

Since the wrongful nature of a child’s removal is made to depend, in terms of the Convention, on its having occurred as the result of a breach of the actual exercise of custody rights conferred by the law of the child’s habitual residence, it is clear that the authorities of the requested State will have to take this law into consideration when deciding whether the child should be returned. In this sense, the provision in article 13 of the preliminary draft Convention that the authorities ‘shall have regard to’ the law of the child’s habitual residence, could be regarded as superfluous. However, such a provision would on the one hand underline the fact that there is no question of applying that law, but merely of using it as a means of evaluating the conduct of the parties (…)” (emphasis added)

In a similar vein, judicial or administrative decisions on custody rights, the breach of which entails the wrongfulness of the removal (or of the retention, as the case may be), are not really recognized, but work as a piece of proof in the proceedings at the requested State:

… while on the other hand, in so far as it applied to decisions which could underlie the custody rights that had been breached, it would make the Convention appear to be a sort of lex specialis, according to which those decisions would receive effect indirectly in the requested State, an effect which would not be made conditional on the obtaining of an exequatur or any other method of recognition of foreign judgments.

There is no way to dispute the usefulness of Article 14 in practice. I have more doubts regarding the correctness of the conceptual distinction between “applying” a foreign law and “taking [it] into account” (which is usually understood as taking into account “as a matter of act”). The operations are possibly the same in nature; the difference between them, just a question of degree. Furthermore, I believe that in the context of Article 14 foreign law is actually applied. The conduct of the parties cannot be evaluated without looking into what that law prescribes; the authority in the requested State draws the corresponding consequences as to who is the holder of the rights of custody in the case at hand. The assessment of the parties’ conduct comes afterwards. In the same vein, I believe that a decision on custody rights is recognized, in the proper sense of the term, as a decision, and not as a piece of documentary evidence.

What makes the difference is therefore not “what is done” with the foreign law/foreign decision in the context of child abduction. It is rather the limited goal of the application of that law, and of the recognition of the foreign decision, which allows to proceed without resorting to the specific procedures for the proof of foreign law (or for the recognition of foreign decisions), which would normally apply.

Be it as it may, what really matters is what the alternative method – that of taking notice directly of the law of, and of judicial or administrative decisions, of the State of habitual residence of the child before removal or retention- means vis-à-vis quality. That foreign law is not, strictly speaking, applied, does not entail a lesser need for certainty about its contents. The authority in the requested State does indeed not determine the rights of custody. However, her understanding of the foreign legal system is not innocuous: it has immediate effects on the child in terms of return/not return, and therefore, of residence; these, in turn, affect the question of international jurisdiction for a claim on the merits. Furthermore, the view of the requested authority on the custody issue sets a precedent (in a non-technical sense, for it is not binding) for future discussions about parental responsibility.

The assumption that Article 14 supports lower standards of proof of the foreign law (and more lenient conditions of recognition) is only this: an assumption. To date, INCADAT lists 39 national decisions on the provision. In fact, in some of them Article 14 is simply mentioned . The remaining decisions have been rendered in different jurisdictions (Austria, Canada, France, Germany, Israel, US, Switzerland): the sample is hence not good enough for a study aimed at finding out the differences with the usual methods to ascertain foreign law, nor to make any assessment about quality.

Still, it might not be a useless effort. For, if Article 14 proves to work, it may be worth trying it elsewhere (the suggestion, with a question mark, is actually from Professor Beaumont).

Condamné à cinq ans d’emprisonnement en première instance, l’ancien homme d’affaires, reconverti dans la lutte contre la récidive et l’amélioration des conditions carcérales après un passage en prison au mitan des années 1990, a vu sa peine réduite à trois ans en appel. Il reste en détention.

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La chambre de l’instruction saisie sur une demande de remise formulée par le Mécanisme pour les tribunaux pénaux internationaux vérifie si les conditions de remise sont remplies (identité de la personne, production des titres fondant la demande, existence de faits entrant dans la définition posée, absence d’erreur évidente) et, si sa violation est invoquée, le respect des garanties fondamentales accordées à la personne réclamée

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Le Conseil de l’Union européenne a procédé à l’examen de la levée progressive des restrictions temporaires des déplacements non essentiels vers l’UE et a mis à jour dans une recommandation datée du 21 octobre la liste des pays à l’égard desquels les restrictions de déplacement devraient être levées. 

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Thank you Angus Macinnis for flagging RCD Holdings Ltd & Anor v LT Game International (Australia) Ltd [2020] QSC 318 in which  Davis J upheld choice of court in favour of the courts at Macau and held against a stay. The judgment is a good one for comparative purposes.

Claimants, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD), in their contract with the defendant, LT Game International (Australia) Ltd (LT) (a BVI domiciled company), agreed that any dispute between them would be litigated in Macau. However, when a dispute did arise they commenced proceedings in Queensland. LT entered a conditional appearance and now applies to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract.

Article 10 of the contract carries the title Governing law but actually is a choice of court clause – an oddity one sees more often than one might expect in B2B contracts: ‘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.”

Comparative insight includes the issue of whether A10 us a non-exclusive (an agreement not to object when proceedings are brought in the court designated) or exclusive (an agreement only to bring proceedings in the court designated) choice of court. Davis J settled for exclusive which would also seem to have been the position of both parties, despite some ambiguity at the start of proceedings.

Lex contractus is disputed, and at 27 Davis J settles for Macanese law, based upon factual construct of the contractual intention of the parties. Clearly that choice of court was made for Macau was an important factor – as it is in Rome I for consideration of so-called ‘implied’ choice of law in the event of choice of court made.

A stay on the basis of Covid19 impracticability (ia because of alleged difficulties for witness testimony) is dismissed, ia (at 34) because it is uncertain whether current travel restrictions will still be in place when the case in Macau might be heard. Davis j does suggest that a renewed application for a stay must not be ruled out in light of Covid19 developments, however will be seen against abuse of process: in other words claimants had best not do so lightly.

Geert.

RCD Holdings & Aor v LT Game [2020] QSC 318

Davis J noting that claimants can re-apply, should #Covid19 unduly frustrate proceedings in Macau https://t.co/00DH1VQf9j

— Geert Van Calster (@GAVClaw) November 3, 2020

Today (9 November 2020) ASADIP and UNCITRAL are organising a preparatory conference to the first edition of UNCITRAL Day in Latin America and the Caribbean region (UNCITRAL LAC DAY 2020 – la primera edición del Día de UNCITRAL en América Latina y el Caribe). For more information see here. Free registration here. For other events on UNCITRAL Day click here.

David Hodson is the author of Family Law Leaves the EU – A Summary Guide for Practitioners, published by Jordan Publishing. The book aims to provide family law practitioners with an accessible guide to the law and practice which will apply on the UK’s final departure from the EU on 31 December 2020. The publisher’s blurb reads as follows.

The government has indicated that the UK will not be party to any further EU laws, instead relying on existing international laws (eg Hague Conventions) to which we will be a party in our own right. There will also be new provisions in national law, where previously EU law existed, and some court procedures will change. This invaluable title will provide an overview of the legal position and the practical issues which will arise in all areas of family law, including the preparatory steps which lawyers should take in readiness for departure, so as to advise clients effectively.

More information available here.

Les poursuites disciplinaires et les poursuites pénales peuvent se cumuler sans violer le principe non bis in idem, car les premières ne relèvent pas, comme telles, de la matière pénale ; il en va ainsi des poursuites disciplinaires des médecins, y compris lorsqu’il s’agit d’infliger une sanction d’une certaine sévérité comme l’interdiction de donner des soins aux assurés pendant une période déterminée.

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