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VG Bild-Kunst
Liberté d'établissement
Lorsque le titulaire du droit d’auteur a adopté ou imposé des mesures de restriction contre la transclusion (framing), l’incorporation d’une œuvre dans une page Internet d’un tiers, par cette technique, constitue une mise à la disposition de cette œuvre à un public nouveau

Radiotelevizija Slovenija (Période d’astreinte dans un lieu reculé)
SOPO
Une période de garde sous régime d’astreinte ne constitue, dans son intégralité, du temps de travail que lorsque les contraintes imposées au travailleur affectent très significativement sa faculté de gérer, au cours de cette période, son temps libre

Gilles Cuniberti  discusses Koch Films v Ouragan Films et al at the French Supreme Court, a case which as also signalled by Hélene Péroz. The judgment is an important one for it signals the continuing uncertainty of interpreting ‘provisional’ under Brussels Ia. In its earlier case-law (Ergo; Haras de Coudrettes) the SC took a more relaxed approach than a strict reading of CJEU St.Paul Dairy might suggest. Unlike Gilles I do not think the SC’s judgment here necessarily signals a return to orthodoxy. In rebuking the Court of Appeal for having too readily dismissed the measures as not being provisional, and in demanding it review whether the measures might not (also) be meant to preserve evidence, it could be said that the opposite might be true: as long as the measure at least in part preserves evidence, other motives do not endanger its provisional character.

En se déterminant ainsi, par une affirmation générale, sans rechercher si ces mesures, qui visaient à obtenir la communication de documents en possession des parties adverses, n’avaient pas pour objet de prémunir la société Koch contre un risque de dépérissement d’éléments de preuve dont la conservation pouvait commander la solution du litige, la cour d’appel a privé sa décision de base légale au regard des textes susvisés [7]

One will have to await future direction.

Geert.

EU Private International Law 3rd ed 2021, 2.559.

 

French SC holds that application by DE film producer, for discovery (involving bailiff) of ICT data from French corporation holding exclusive distribution rights, in spite of choice of court in favour of DE court, may be included in A35 BIa provisional or protective measures. https://t.co/XOxhdwDot6

— Geert Van Calster (@GAVClaw) January 27, 2021

Gilles Cuniberti on French SC in Koch Films v Ouragan Films et al
Provisional measures under BIa
Compare its earlier case-law in Ergo, and Haras de Coudrettes https://t.co/pCIypgvASu which, Gilles argues, has been overruled. https://t.co/WgaZaXhOnW

— Geert Van Calster (@GAVClaw) March 8, 2021

On 11 November 2020, the Court of justice issued a judgment on jurisdiction under Brussels I bis Regulation in respect of a dispute on the use of immovable property subject to co-ownership (Case C-433/19, Ellmes Property Services, already reported here and here). Both article 24, point 1, on rights in rem matters and article 7, point 1, a) on contractual matters were submitted to the interpretation of the Court.

Regarding the first provision, the Court leads a classical and very brief analysis of the jurisdictional rule, leaning on the national judge to implement it in casu. On the contrary, the interpretation of the second provision deviates from the settled caselaw and the Court is more prescriptive towards the referring judge.

All in all, the reading of the judgment gives an impression of inconsistency and unfinished work.

Facts and Issues at Stake

 A British company is co-owner of an apartment in Austria, which is designated for residential purposes. However, it was using that apartment for touristic purposes by regularly renting it out to holidaymakers. Another co-owner, SP, sought the cessation of that “touristic use” on the ground that it is contrary to the designated use of that building and, therefore, it interferes with his right of co-ownership.

The question of international jurisdiction arose. SP seized the Austrian court following the exclusive jurisdiction provided for in article 24, point 1, of Brussels I bis Regulation, in favour of the court of the Member State in which the property is situated. The British company contested the jurisdiction of that court on the basis of the forum contractus, pursuant to article 7, point 1, a). For the referring court, both grounds of jurisdiction could be admissible under Austrian civil law. Therefore, the Court of justice ruled on both provisions.

Jurisdiction in Matters Relating to Rights in rem in Immovable Property: A Self-restraint Approach? Reasoning

The Court of justice first assessed whether the action brought by the co-owner against the British company was to be characterised as an action “in matters relating to rights in rem in immovable property” pursuant to article 24, point 1 of the Brussels I bis Regulation. This requires, in particular, that the action is based on a right in rem and not on a right in personam (see the CJEU judgment in Reitbauern, para. 45). A right in rem, existing in corporeal property, has effect erga omnes. The tricky point here was to determine whether the designated use of the building produces such effect. Is the co-owner entitled to oppose the residential purposes of his property beyond the co-ownership agreement, to third parties? For the Court of justice, it falls to the referring court to respond to this question, following its national legal framework. Therefore, the application in casu of article 24, point 1, remains unsure.

Assessment

Eventually, the national judge would have been in the same position without referring any question to the Court of justice, since its interpretation adds nothing to the settled caselaw in the field. The Advocate General Szpunar went much further in its opinion, clearly doubting of the application of this exclusive ground of jurisdiction. He stressed that “there was a considerable underlying interest at stake in the EU legislature’s decision to make the jurisdiction established by that article [24 point 1] exclusive in nature”, namely “a public interest”. It is characterised when “rights [are] capable of affecting the legal situation of any person (effect erga omnes) or of the public in general” (para. 62). No such public interest seems to be at stake here, as far as “adherence to contractual arrangements between co-owners relating to the designated use of an immovable property” is concerned (para. 68); this is a pure contractual issue, subject to private autonomy.

In that respect, despite the remaining divergence of national civil and property laws within the Member States, it was possible to give the domestic court a clearer guidance. Then I wonder why the Court of justice decided not to be more explicit in its interpretation. Did the Court exercise self-restraint to preserve national private laws? Numerous Member States are indeed still hostile to the European harmonisation in the field. If it is the Court’s motive, it is unfortunate. On the contrary, it seems necessary to reflect on what extent an approximation of core notions of private law within the EU could improve the uniform application of European PIL rules. This reflection is the natural follow-up of the “autonomous interpretation” based on EU law developed and applied by the Court of justice, including in the field of EU PIL.

Jurisdiction in Matters Relating to a Contract: A Return to Orthodoxy? Reasoning

Given the uncertainty of application of the exclusive jurisdiction provided for in article 24, point 1, the Court of justice also interpreted article 7, point 1, on contractual matters. The Court started to recall the great flexibility of the notion of “contractual matters”. By analogy with its judgment in Kerr, it held that “the co-owners are, on account of the co-ownership agreement, in a contractual relationship freely consented to” (para. 40). Therefore, the action brought by the co-owner against the British company, itself co-owner, is an action “in matters relating to a contract”.

Then, the Court implemented the complex connecting factor laid down in article 7, point 1, a) – since the special rules in respect of the contracts on sale of goods and the contracts regarding the provision of services did not apply here, i.e. the presumptions regarding the place of performance –. Remarkably, the Court of justice removed the classical conflict-of-laws reasoning inherited from its judgment in Tessili (contrary to the Advocate General Szpunar in his opinion, para. 83 in fine). Following this settled caselaw, if the parties did not agree on the place of performance, that place must be determined by the law governing the contract in question pursuant to the PIL rules of the forum.

However, the Court of justice decided here to locate “directly” the place of performance, without the intermediary of the applicable law to the contract. The obligation in question is the guarantee of a “peaceful enjoyment of the property subject to co-ownership” by the owner and “must be performed in the place in which it is situated” (para. 44), i.e. in Austria.

Assessment

This solution makes the application of article 7, point 1), a), much easier in practice. The “direct” reasoning followed by the Court of justice leads to a substantial designation of the competent jurisdiction, here the Austrian judge. The two-steps reasoning, i.e. the implementation of a conflict-of-laws rule in order to apply a jurisdictional rule, has always been criticized by a large majority of scholars. It is indeed unorthodox regarding the classical PIL methodology. Issue of competence is, in principle, independent from the solution of conflict-of-laws.

The law designated by the choice of law rules has generally to be determined under the Rome I Regulation, except if the contract in question was concluded before the entering into force of this text. It seemed to be the case here (see par. 84 of the opinion, and even before the entering into force of the 1980 Rome Convention), imposing the referring court to apply its previous national choice of law rules in contractual matters. This further difficulty was probably an additional incentive for the Court to remove the Tessili reasoning.

This “streamlined” interpretation was already followed by the Court, a few years ago, in a case related to the avoidance of a contract of gift of immovable property (see the CJEU judgment in Schmidt, para. 39). However, in both judgements, the Court of justice did not bother to mention the change of approach. This is unfortunate as it makes difficult to assess the scope of the solution.

It is, most probably, only an exception in the context of immovable property, based on its strong attraction on the place where the property is situated and on the resulting proximity with the forum. In that sense, the Court of justice has stated that this solution “meets the objective of predictability of the rules of jurisdiction laid down by Regulation n° 1215/2012 since a co-owner bound by a co-ownership agreement stipulating such a designated use may, when he or she arbitrarily and unilaterally changes that designated use, reasonably expect to be sued in the courts of the place where the immovable property concerned is situated” (para. 45).

However, the “simplification” of application of article 7, point 1), a), stays unclear. The Court of justice mentions that the obligation in question “relates to the actual use of such property” (para. 44 in fine). Following an a contrario reading, would the “direct” location of the place of performance still be the solution if the obligation relates to an abstract use of property? (in that sense, see here). And how to understand and to draw the line between actual and abstract use of property?

Finally, it seems that a same “direct” approach was recently followed by the Court in the field of prorogation of jurisdiction. In its judgment in DealyFix (reported here on this blog), where the enforceability of a choice of court agreement to a third party was at stake, the Court held that it can be enforced only if, under the (substantive) legislation of the Member State whose courts are designated in that clause, the enforceability is allowed. The Court of justice did not refer to the “rules of private international law of the court” designated in the agreement, as it did before in its judgment in CDC (see para. 65, regarding the “court seised of the matter”). By analogy, the same “renvoi” to PIL rules is laid down in article 25, §1 and recital 20 of the Brussels I bis Regulation, in case of alleged substantive invalidity of a choice-of-court agreement; the question shall be decided “in accordance with the law of the Member State of the court […] including the conflict-of-laws rules of that Member State”.

I wonder whether it could illustrate a latent tendency of the Court of justice to avoid the overriding conflict-of-laws reasoning, in favour of a direct application of the jurisdictional rules concerned. Such a “material approach” is convincing, but one could call the Court to be more explicit in its judicial policy. It would make its interpretation more convincing and effective.

La Cour de justice de l’Union européenne explicite les régimes de protection des espèces à la lumière des directives Habitats (92/43/CEE) et Oiseaux (2009/147/CE).

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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