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The Faculty of Law of the University of Zagreb will hold a conference on Applicable Law in Cross-Border Insolvency Proceedings on 18 and 19 September 2020. Those interested in attending the conference may do so either in person or online.

Speakers include Paul Omar (INSOL Europe), Ignacio Tirado (Secretary-General UNIDROIT), Miha Žebre (European Commission), Andreas Piekenbrock (University of Heidelberg), Jasnica Garašić (University ofZagreb), Francisco Garcimartín (Autonomous University of Madrid), Edward Janger (Brooklyn Law School), John Pottow (University of Michigan), Bartosz Groele (Tomasik & Pakostewicz & Groele), Zoltan Fabok (DLA Piper Posztl, Nemescsói, Györfi-Tóth & Partners), Miodrag Đorđević (Supreme Court of the Republic of Slovenia), Leif M. Clark (former US Bankruptcy Judge), Simeon Gilchrist (Edwin Coe LLP), Renato Mangano (University of Palermo), Rodrigo Rodriguez (University of Lucerne) and Gerry McCormack (University of Leeds).

8 sept 2020 CCIP-CA RG 1906635Download

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (8 September 2020) a decision (RG 19/06635) on jurisdiction clauses.

Summary / Resumé: “This case involved a company incorporated under Belgian law and a company incorporated under Emirati law. The latter signed a letter of guarantee for its Gabonese subsidiary in favor of the Belgian company, thereby securing the performance of a telecommunications services contract signed between the Gabonese subsidiary and the Belgian company. This contract stipulated a jurisdiction clause in favor of the Paris courts. Although the Emirati company (the guarantor) did not sign the contract containing the jurisdiction clause, the International Commercial Chamber of the Court of Appeal of Paris decided that the French court had jurisdiction, considering that the said clause was enforceable against it in respect of the warranty action brought by the Belgian company.

The ICCP-CA held that the agreements, although distinct, were intimately linked, as one conditioned the second and vice versa. As a result, it found that both agreements constituted “the Agreement”, so that their existence and performance were only justified by the overall scheme of the operations. It considered that these two acts could be qualified as an indivisible contractual whole, as the parties had intended to include the two contracts in a single transaction, thus rendering the jurisdiction clause stipulated in the Agreement enforceable against the guarantor, which had, furthermore, expressly agreed to the “terms and conditions” and had therefore been aware of it ».

The decision (in French) is attached to this post. 

Saugmandsgaard AG opined yesterday in C-59/19 Wikingerhof v Booking.com (no English version of the Opinion at the time of writing). At issue is whether allegations of abuse of dominant position create a forum contractus (Article 7(1) Brussels Ia) or a forum delicti (A7(2) BIa).

I published on jurisdiction and applicable law earlier this year and I am as always genuinely humbled with the AG’s (three) references to the handbook.  Wikingerhof submits inter alia that it only ever agreed to Booking.com’s general terms and conditions (‘GTCs’) because Booking.com’s dominant position leaves it no choice. And that it had most certainly not agreed to updates to the GTCs, effected via amendments on the ‘Extranet’, which is the portal via which the hotel may update its information and retrieve reservations.

At 16 of its referral, the Bundesgerichtshof holds acte clair and therefore without reference to the CJEU that there is no durable record of the alleged consent by Wikingerhof of the amended GTCs, including choice of court. Booking.com claimed these amounted to a ‘form which accords with practices which the parties have established between themselves’ pursuant to Article 25(1)(b). This finding echoes the requirements of housekeeping which I signalled yesterday.

In my 2020 paper I point out (p.153) inter alia that in the context of Article 25’s choice of court provisions, the CJEU in C-595/17 Apple v eBizcuss suggested a fairly wide window for actions based on Article 102 TFEU’s prohibition of abuse of dominant position to be covered by the choice of court. At 28 in Apple v eBizcuss: ‘the anti-competitive conduct covered by Article 102 TFEU, namely the abuse of a dominant position, can materialise in contractual  relations that an undertaking in a dominant position establishes and by means of contractual terms’. The AG as I note below distinguished Apple on the facts and applicable rule.

In the request for preliminary ruling of the referring court, CJEU C-548/12 Brogsitter features repeatedly. The Bundesgerichtshof itself is minded to hold for forum delicti, given that (at 24 of its reference)

‘ it is not the interpretation of the contract that is the focus of the legal disputes  between the parties, but rather the question of whether the demand for specific contractual conditions or the invoking of them by a company with an — allegedly — dominant market position is to be regarded as abusive and is therefore in breach of provisions of antitrust law.

In fact on the basis of the request, the court could have held acte clair. It referred anyway which gives the AG the opportunity to write a complete if  to begin with concise précis on the notion of ‘contract’ and ‘tort’ in BIa. At 38, this leads him to conclude inter alia that despite the need strictly to interpret exceptions to the A4 actor sequitur forum rei rule, these exceptions including the special jurisdictional fori contractus ut delicti, must simply be applied with their purpose in mind.

He calls it an application ‘assouplie’, best translated perhaps as ‘accommodating’ (readers may check this against the English version when it comes out) (viz tort, too, the AG uses the term assouplie, at 45, referring eg to CJEU C-133/11 Folien Fisher).

Further, the AG notes that in deciding whether the claim is one in contract, necessarily the claimant’s cause of action has an impact, per CJEU C-274/16 Flightright (at 61 of that judgment, itself refering to C‑249/16 Kareda which in turn refers to 14/76 De Bloos). The impact of claimant’s claim form evidently is a good illustration of the possibility to engineer or at least massage fora and I am pleased the AG openly discusses the ensuing forum shopping implications, at 58 ff. He starts however with signalling at 53 ff that the substantive occurrence of concurrent liability in contract and tort is subject to the laws of the Member States and clearly differs among them, making a short comparative inroad e.g. to English law, German law and Belgian /French law. (Michiel Poesen recently wrote on the topic within the specific context of the employment section).

The AG’s discussion of CJEU authority eventually brings him to Brogsitter. He he firmly supports a minimalist interpretation.  This would mean that only if the contractual context is indispensable for the judge to rule on the legality or not of the parties’ behaviour, is forum contractus engaged. This is similar to his Opinion in Bosworth, to which he refers. He rejects the maximalist interpretation. This approach puts forward that contractual qualification trumps non-contractual (arguably, a left-over of CJEU Kalfelis; but as the AG notes at 81: there is most certainly not such a priority at the applicable law level between Rome I and II) hence the judge regardless of the claimant’s formulation of claim, must qualify the claim as contractual when on the facts a link may exist between the alleged shortcomings of the other party, and the contract.

The maximum interpretation, at 76 ff, would require the judge to engage quite intensively with the merits of the case. That would go against the instructions of the CJEU (applying the Brussels Convention (e.g. C-269/95 Benincasa)), and it would (at 77) undermine a core requirement of the Brussels regime which is legal certainty. That the minimalist approach might lead to multiplication of trials seeing as not all issues would be dealt with by the core forum contractus, is rebuked at 85 by reference to the possibility of the A4 domicile forum (an argument which the CJEU itself used in Bier /Mines de Potasse to support the Mozaik implications of its ruling there) and by highlighting the Regulation’s many instances of support for forum shopping.

The AG then discusses abusive forum shopping following creative claim formulation at 88 ff. This  is disciplined both by the fact that as his comparative review shows, the substantive law of a number of Member States eventually will not allow for dual characterisation and hence reject the claim in substance. Moreover clearly unfounded claims will be disciplined by lex fori mechanisms (such as one imagines, cost orders and the like). This section confuses me a little for I had understood the minimalist approach to lay more emphasis on the judge’s detection of the claim’s DNA (along the lines of Sharpston AG in Ergo) than on the claim’s formulation.

The AG then continues with further specification of the minimalist approach, including at 112 a rejection, correct in my view (for the opposite would deny effet utile to A7(2), of the suggestion to give the A7(1) forum contractus the ancillary power to rule of over delictual (A7(2)) issues closely related to the contractual concerns.

Applying the minimalist test to the case at issue the AG concludes that it entails forum delicti, referring in support to CDC and distinguishing Apple v eBizcuss (which entails choice of court and relies heavily on textual wording of the clause).

It will be interesting to see which of the two possible interpretations of Brogsitter the CJEU will follow and whether it will clarify the forum shopping implications of claim formulation.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9.

 

Les dispositions de l'article 7, point 2, du règlement (UE) n° 1215/2012 doivent-elles être interprétées en ce sens que la personne qui, estimant qu'une atteinte a été portée à ses droits par la diffusion de propos dénigrants sur Internet, agit tout à la fois aux fins de rectification des données et de suppression des contenus, ainsi qu'en réparation des préjudices moral et économique en résultant, peut réclamer, devant les juridictions de chaque Etat membre sur le territoire duquel un contenu mis en ligne est ou a été accessible, l'indemnisation du dommage causé sur le territoire de cet État membre, conformément à l'arrêt eDate Advertising (points 51 et 52) ou si, en application de l'arrêt Svensk Handel (point 48), elle doit porter cette demande indemnitaire devant la juridiction compétente pour ordonner la rectification des données et la suppression des commentaires dénigrants ?

An online roundtable addressing the coordination between the Brussels Ia Regulation and other instruments of EU law will take place next 24 September, 3 p.m., on Teams channel.

The event is part of the EU co-financed “EN2BRIa” Project and scheduled within the PEPP Programme (Programme in European Private Law for Postgraduates). EN2BRIa mainly aims to shed light on how the relationship between the Brussels Ia Regulation and other EU law instruments is to be handled. The upcoming roundtable will showcase and discuss the preliminary results of the investigation conducted by the Partners of the Project, namely the Universities of Genoa, Nice, Valencia, and Tirana. Chaired by Chiara E. Tuo (Univ. Genoa), the roundtable features as speakers Jean-Sylvestre Bergé (Univ. Nice), Guillermo Palao Moreno (Univ. Valencia), Giulio Cesare Giorgini (Univ. Nice), Rosario Espinosa Calabuig (Univ. Valencia), Rosa Lapiedra Alcami (Univ. Valencia), Isabel Reig Fabado (Univ. Valencia), and Stefano Dominelli (Univ. Genoa).

Participation is free; more info, specially about the access to the Teams channel, may be found here.