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Pourvoi c/ Cour d'appel de Cayenne, 15 juillet 2020

Pourvoi c/ Cour d'appel de Lyon, 9 juillet 2020

Pourvoi c/ Cour d'appel de Chambéry, 21 janvier 2020

On Tuesday, October 6, the Hamburg Max Planck Institute will host its fourth monthly virtual workshop in private international law at 11:00-12:30. Anatol Dutta (Ludwig Maximilian University Munich) will speak in German family law and multicultural society, followed by open discussion. All are welcome. More information and sign-up here.

This is the fourth such lecture in the series, after those by Mathias Lehmann in June, Eva-Maria Kieninger in July, and Giesela Rühl in September. The designated November speaker is Marc-Philippe Weller (Heidelberg). So far, all presentations have been in German, but in the future we plan to alternate between German and English, in order to enable more interested scholars to participate.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de

On 30 September Belgium ratified the Hague Convention of 13 January 2000 on the International Protection of Adults. This means that the Convention will enter into force for Belgium on 1 January 2021. The Convention will then have 13 Contracting States. All of them are in Europe (EU or neigbouring States): Austria, Belgium, Cyprus, the Czech Republic, Estonia, France, Finland, Germany, Latvia, Monaco, Portugal, Switzerland and the United Kingdom (only Scotland). The Convention has additionally been signed by a number of other States (all EU): Greece, Ireland, Italy, Luxembourg, the Netherlands and Poland.

The European Parliament has attempted to have the Commission adopt EU legislation on this topic (see its resolutions of 2008 and of 2017). The European Law Institute has conducted a study on which we reported earlier (here). Although the Commission has not initiated legislation, they are following up the signing and ratifying of the Convention by Member States. They seem to have success.

Belgium has been preparing the implementation legislation since 2019 and initially planned to ratify the convention a year earlier, but the process was delayed due to the setting up of an electronic central register of protected persons.

(On the same day Belgium’s new federal government was sworn in after 493 days, but that is unrelated!)

Thank you Irene Pietropaoli for alerting me to the European Parliament’s draft proposal for a mandatory human rights due diligence Directive. The official title proposed is a Directive on Corporate Due Diligence and Corporate  Accountability). Parliament also proposes insertions in both Brussels Ia and Rome II. For the related issues see a study I co-authored on the Belgian context, with links to developments in many jurisdictions.

I do not in this post go into all issues and challenges relating to such legislation, focusing instead on a first, preliminary analysis of the conflicts elements of the proposal.

A first issue of note in the newly proposed Directive is the definitional one.  The proposal’s full title as noted uses ‘corporate due diligence and corporate accountability’. However in its substantive provisions it uses ‘duty to respect human rights, the environment and good governance’ and it defines each (but then with the denoter ‘risk’) in Article 3. For human rights risks and for governance risks these definitions link to a non-exhaustive list of international instruments while for the environment no such list is provided.

The proposed Directive points out the existence of sectoral EU due diligence legislation e.g. re timber products and precious metals, and suggests ‘(i)n case of insurmountable incompatibility, the sector-specific legislation shall apply.’ This is an odd way to formulate lex specialis, if alone for the use of the qualifier ‘insurmountable’. One assumes the judge seized will eventually be the arbitrator of insurmountability however from a compliance point of view this is far from ideal.

As for the proposed amendment to Brussels Ia, this would take the form of a forum necessitatis as follows:

Article 26a
Regarding business-related civil claims on human rights violations within the value chain of a company domiciled in the Union or operating in the Union within the scope of Directive xxx/xxxx on Corporate Due Diligence and Corporate Accountability, where no court of a Member State has jurisdiction under this Regulation, the  courts of a Member State may, on an exceptional basis, hear the case if the right to a fair trial or the right to access to justice so requires, in particular: (a) if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely related; or (b) if a judgment given on the claim in a third State would not be entitled to recognition and enforcement in the Member State of the court seised under the law of that State and such recognition and enforcement is necessary to ensure that the rights of the claimant are satisfied; and the dispute has a sufficient connection with the Member State of the court seised.

This proposal is a direct copy paste (with only the reference to the newly proposed Directive added) of the European Commission’s proposed forum necessitatis rule (proposed Article 26) at the time Brussels I was amended to Brussels Ia (COM (2010) 748). I discussed the difficulty of such a forum provision eg here (for other related posts use the search string ‘necessitatis’). The application of such a rule also provokes the kinds of difficulty one sees with A33-34 BIa (including the implications of an Anerkennungsprognose).

Coming to the proposed insertion into Rome II, this text reads

Article 6a
Business-related human rights claims
In the context of business-related civil claims for human rights violations within the value chain of an undertaking domiciled in a Member State of the Union or operating in the Union within the scope of Directive xxx/xxxx on Corporate Due Diligence and Corporate Accountability, the law applicable to a non-contractual obligation arising out of the damage sustained shall be the law determined pursuant to Article 4(1), unless the person seeking  compensation for damage chooses to base his or her claim on the law of the country in which the event giving rise to the  damage occurred or on the law of the country in which the parent company has its domicile or, where it does not have a domicile in a Member State, the law of the country where it operates.

I called this a choice between lex locus damni; locus delicti commissi; locus incorporationis; locus activitatis. Many of the associated points of enquiry of such a proposal are currently discussed in Begum v Maran (I should add I have been instructed in that case).

A first obvious issue is that the proposed Article 6a only applies to the human rights violations covered by the newly envisaged Directive. It does not cover the environmental rights. These presumably will continue to be covered by Rome II’s Article 7 for  environmental damage. This will require a delineation between environmental damage that is not also a human rights issue, and those that are both. Neither does the proposed rule apply to the ‘good governance’ elements of the Directive. These presumably will continue to be covered by the general rule of A4 Rome II, with scope for exception per A4(3).

My earlier description of the choice as including ‘locus incorporationis’ is not entirely correct, at least not if the ‘domicile’ criterion is the one of Brussels Ia. A corporation’s domicile is not necessarily that of its state of incorporation and indeed Brussels Ia’s definition of corporate domicile may lead to more than one such domicile. Does the intended rule imply claimant can chose among any of those potential domiciles?

Locus delicti commissi in cases of corporate due diligence (with the alleged impact having taken place abroad) in my view rarely is the same as locus damni, instead referring here to the place where the proper diligence ought to have taken place, such as at the jurisdictional level in CJEU C-147/12 OFAB, and for Rome II Arica Victims. This therefore will often co-incide with the locus incorporationis.

Adding ‘locus activitis’ as I called it or as the proposal does, the law of the country where the parent company operates, clearly will need refining. One presumes the intention is for that law to be one of the Member States (much like the proposed Directive includes in its scope ‘limited liability undertakings governed by the law of a non-Member State and not established in the territory of the Union when they operate in the internal market selling goods or providing services’). Therefore it would be be best to replace ‘country where it operates’ with ‘Member State’ where it operates. However clearly a non-EU domiciled corporation may operate in many Member States, thereby presumably again expanding the list of potential leges causae to pick from. Moreover, the very concept of ‘parent’ company is not defined in the proposal.

In short, the European Parliament with this initiative clearly hopes to gain ground quickly on the debate. As is often the case in such instances, the tent pegs have not yet been quite properly staked.

Geert.

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

(3rd ed forthcoming February 2020).

Tribunal judiciaire de Paris, 17 septembre 2020

Pourvoi c/ Cour d'appel de Rouen, 2 juillet 2020

On 14 August 2020, the Department of European and Comparative Procedural Law of the MPI Luxembourg met online with a special invitee, Steven Gee QC, joining actually from Hong Kong, where he was staying at the time.

Mr. Gee is the author of a treatise on, and entitled, Commercial Injunctions (Sweet & Maxwell, last edition 2016, a new updated one in the making). The book is mainly about UK law but at the end it addresses as well other jurisdictions. This is why Mr. Gee got in touch with the MPI (Prof. Burkhard Hess and Dr. Vincent Richard will contribute to the European part of the next edition of Commercial Injunctions), and how he ended up sharing with the researchers and MPI guests a two-hours talk on injunctions.

I thought his presentation and the following debate had been recorded but, unfortunately, it had not. Therefore, I cannot accurately report on the contents. What I can do, though, is to explain here an idea I had already in mind and was, to some extent, confirmed by Mr. Gee during the discussion.

It has to do with antisuit injunctions and the preliminary reference sent to the Court of Justice last December by the Court of Appeal (England & Wales), on the interpretation of Article 4(1) of the Brussels I bis Regulation (C-946/19). At the time I am writing these lines a settlement has been reached between the litigants in the main proceedings, and the request consequently withdrawn. A fact which strengthens my dismayed suspicion that the whole thing was a practical joke on the Court of Justice (but not only). Of course, I know I am exaggerating and, regarding the intentions of the referring court, wrong. This notwithstanding: a request relating to antisuit injunctions, i.e., to one of the most distinctive institutions of the common law tradition, already firmly rejected by the Court of Justice in ad intra situations; asking whether the injunction could (rather: had to) be mandatorily (no discretion!) granted on the basis of a crucial provision of a pivotal EU instrument [article 4(1) of the Brussels I bis Regulation], in ad extra situations (an invitation to indulge in “eurocentrism”?); sent to the Court of Justice barely one month before Brexit (and twelve months away from the end of the transitional period)? Some eyebrows have surely gone up.

The doubts of the national court regarding Article 4(1) of the Regulation read as follow:

whether the true effect of the Article is to give a right to every defendant who is domiciled in a Member State to be sued exclusively in the State of their domicile in all but the slender circumstances where that outcome is specifically excluded or some other outcome is permitted by the Judgments Regulation itself.

As a matter of fact, the Court of Appeal looked rather keen on answering in the affirmative [at 50]: ‘we acknowledge that [the antisuit injunction applicant’s] interpretation of the meaning and effect of Article 4(1) is a possible interpretation’.

The actual ground for referring the question to the Court of Justice had rather to do with the consequences of spousing such view [id. loc.]: ‘[…] but it is not one [interpretation] that we would wish to adopt in the present case unless required to do so’. Should Article 4(1) create a directly enforceable right, the Court of Appeal feared its breach would automatically lead to an antisuit injunction [id. loc.]: ‘[an]  extreme result[s] that would not be contemplated by an application of domestic law’.

In the case at hand, the Court of Appeal had already confirmed the first instance determinations in the sense that previous national case law on employment contracts, according to which Article 20(1) of the Brussels I Regulation and Article 22(1) of the Brussel I bis Regulation create a right protecting the employee against being sued in a third State by his employer, was not binding on it.

My experience with English practitioners and academics is that they do have a good knowledge and understanding of EU law. That Article 4(1) of the Brussels I bis Regulation is not meant to confer an individual right is something the referring court could have easily concluded itself, without asking Luxembourg.

We – scholars- tend to be thorough and go to the bottom of the arguments: legislative intention based on history (not just the very illustrative Jenard and Schlosser Reports, but, here, also the rich publication of GAL Droz on the Brussels Convention, and all those he quotes); text; system; object and purpose of the provision; legal comparison. But for the sitting judges to decide on the dispute at stake, a look at Article 4(1) in a language other than English, coupled with a comparison between the rationale of the provisions on employment contracts and of Article 4(1), should have been enough if they wanted to move forward keeping the reasoning sober.

On the occasion of the MPI’s meeting mentioned above, Mr. Gee’s stressed a factor of the proceedings before the Court of Appeal that may help understanding the situation; he highlighted the asymmetry between the parties to the dispute. Throughout the proceedings before the Judge, both parties had been represented by solicitors and by leading and junior counsel. Before the Court of Appeal it remained so regarding the antisuit injunction’s applicant, but not the defendant, who did neither attend nor was represented, due to, allegedly, financial inability. The Court had only the written submissions previously made by his legal team to resist the antisuit injunction. They may have been enough to convince the first instance Judge not to grant the injunction; but before the Court of Appeal, and against the (slightly) more sophisticated (and, by all means, radical) submissions of Mr Cohen QC on behalf of the applicant at the hearing, he probably needed to do better.

As indicated, the case will no longer keep the Court of Justice busy. My (strictly) personal view remains that the preliminary reference was a practical joke: on the Court of Justice, and on second thought also on the Court of Appeal. Both seem to have been strategically used by one of the litigants.

In any event, I expect academics to study further the questions referred in C-946/19. For sure, I do not see any individual right “hidden” in Article 4(1) of the Brussels I bis Regulation. But, contrary to some scholars’ views (A. Dickinson, C.M. Clarkson and J. Hill, following A. Briggs) I believe other provisions in the Regulation may be interpreted in that way: not because they were conceived with the purpose of conferring directly enforceable rights upon persons domiciled in a Member State, but because such understanding of the jurisdictional grounds would help ensuring that specific substantive EU law is effective also extraterritorially, where needed.

(NoA: MPI Department I “Referentenrunde” have been resumed on the usual weekly basis every Wednesday via Zoom. A series of lectures is foreseen for the fall; specific dates will be announced in due time through the MPI website. Events are open to all having an interest. Contact person: michalis.spyropoulos@mpi.lu)

Yesterday (30 September 2020), Belgium ratified the Hague Convention of 13 January 2000 on the International Protection of Adults, which will enter into force for Belgium on 1 January 2021.

Source:

here

Le contrevenant ou l’intéressé, qui entend présenter une requête en exonération d’une infraction au code de la route ou une réclamation en contestation d’une amende forfaitaire majorée, a la faculté, sans préjudice des prérogatives de l’autorité de poursuite, d’être représenté dans ses démarches par un avocat.

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Pourvoi c/ Cour d'appel de Paris, 9 septembre 2020

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