Feed aggregator

Bail rural

Copropriété

Copropriété

Entrée en fonctions d’un nouvel avocat général à la Cour de justice

Centraal Israëlitisch Consistorie van België e.a.
Agriculture
L’avocat général Hogan propose à la Cour de déclarer que la législation flamande interdisant l’abattage d’animaux sans étourdissement, y compris pour les méthodes particulières d’abattage prescrites par des rites religieux, n’est pas autorisée par le droit de l’Union

VG Bild-Kunst
Liberté d'établissement
Selon l’avocat général Szpunar, l’incorporation, dans une page Internet, d’œuvres provenant d’autres sites Internet à l’aide de liens automatiques (inline linking) nécessite l’autorisation du titulaire des droits sur ces œuvres

Star Taxi App
Rapprochement des législations
Selon l’avocat général Szpunar, un service qui met en relation directe, au moyen d’une application électronique, des clients et des chauffeurs de taxi, constitue un service de la société de l’information

An interesting exchange with fellow practitioners on Twitter yesterday reminded me of this post which I have had in the draft folder since some time in June.  Back in February, the  Dutch SC confirmed the approach of the lower courts and the Court of Appeal on the correct approach to e-mail evidence and the existence of specific dispute resolution clauses. Here: an agreement to arbitration. The result is that a London-issued arbitral award cannot be enforced in The Netherlands.

When I flagged the case on Linked-in in June I observed there were two approaches to the judgment. Some emphasise the Courts’ refusal to recognise the validity of the agreement to arbitrate made by e-mail, in the face of what is common and very informal practice in the shipping industry /charterparty; others point more practically to parties having to be prepared to prove the authenticity of electronic correspondence.

Defendant did not enter an appearance but the lower Court in earlier ruling was alarmed by the print-out of e-mails allegedly containing the ‘agreement’ in the charterparty looking dodgy (there were for instance various white blots). It proprio motu pursued originality research. In subsequent rulings confirmed and completed by the Court of Appeal, the courts were not satisfied by the originality research, among others because the claimant’s ‘independent’ expert was an ICT employee with the law firm involved in the case.

Procureur Generaal Vlas with the Hoge Raad in his Opinion in December 2019, discussed the slight differences between the 1958 New York Convention and the Dutch law on the evidence required (with the Dutch rules in fact being more relaxed), and the nature and content of guidelines issued for the interpretation of the Convention. He advised to follow the lower court’s approach not because of some grand statement in principle but rather because he could not see fault in the courts’ factual observation of lack of independent and objective proof of authenticity. The Supreme Court followed in the most succinct of ways, without justifying rejection of the appeal. It is entitled to do so in cases where its findings have no impact on the unity in application of the law, indicating that the factual observations swayed the SC.

‘Before e-mail’ (my kids would respond to that ‘yes dad, when you got to work on horse and cart’) printers and warehouse assistants where a key link in the chain of general terms and conditions – GTCs. They needed to ensure the right content ended up on the right printed, blank order forms, and ended up with the right wholesalers, sales agents etc. – to be repeated every single time these GTCs were amended; and many a litigation has begun with sales agents continuing to use old forms ‘because it would be a shame to throw all that paper’. Fast forward to electronic correspondence, and website managers and general ICT staff have now assumed that role. In the context of any dispute resolution, they need to ensure everyone has the right e-mail footer, properly functioning link to the right version of the GTCs on the website, etc. They also need to have protocols in place to ensure authentication is thought of proactively. Lack of such proper electronic housekeeping leads to results no different than when sales agents continued to use the old paper forms.

Geert.

 

 

A new monograph written in German deals with cross-border insurance brokerage in the Single Market (Christian Rüsing, Grenzüberschreitende Versicherungsvermittlung im Binnenmarkt, 2020). The monograph is aimed at practitioners, national and European supervisory authorities as well as academics dealing with private international law, its relationship to international supervisory law and insurance law.

This book complements studies on the single market in insurance, which the EU has strived to establish for decades. EU institutions have primarily facilitated cross-border business of insurers by implementing rules on international supervisory law in the Solvency II Directive and on private international law for insurance contracts in Article 7 of the Rome I Regulation. The study focuses on intermediaries, such as insurance brokers and agents.

While intermediaries play a vital role in the cross-border distribution of insurance products, clear conflict-of-law rules for insurance intermediation are missing. The Insurance Distribution Directive (IDD), which intends to promote cross-border activities of intermediaries, focuses on the harmonisation of the substantive law on insurance intermediation, apart from provisions on international administrative cooperation. Furthermore, it has not fully harmonised national laws. Insurance intermediaries providing services in other countries are therefore still required to be aware of the relevant national regulatory requirements and private laws they have to comply with.

International Supervisory Law

With regard to international supervisory law, the author analyses where intermediaries have to be registered and which regulatory requirements they have to meet when exercising activities in another member state by using freedom to provide services or the freedom of establishment. One of the key findings is that although the IDD is partly based on the country of origin principle, intermediaries must comply with stricter national provisions protecting general interests of the host member state, irrespective of whether they serve consumers or professionals as policyholders.

Applicable Rules of Private International Law

Concerning private international law, the author analyses the intermediaries’ relationships with customers and insurers. A comparative legal analysis reveals that these relationships are based on contract in some member states and on tort in others. Therefore, it is even unclear whether the Rome I or the Rome II Regulation has to be applied. The author calls for an autonomous interpretation of the regulations’ scope of application, which also solves the problem of concurring claims. He suggests that the Rome I Regulation must be applied irrespective of whether the intermediary is an agent or a broker.

Rome I Regulation

Applying the Rome I Regulation to the relationship between intermediaries and customers leads to further difficulties. On the one hand, it is unclear whether the conflicts rule for insurance contracts in Article 7 of the Rome I Regulation can be applied to intermediation services. On the other hand, it is also uncertain whether Articles 3, 4 and 6 of the Rome I Regulation are applicable without modification given that the IDD uses different connecting factors with regard to international supervisory law rules. The author argues that certain IDD “flexibility clauses” constitute special conflict-of-law rules in the sense of Article 23 of the Rome I Regulation and therefore partially supersede Articles 3, 4 and 6 of the same Regulation.

With regard to the relationship between intermediaries and insurers, the author analyses whether Article 4(3) of the Rome I Regulation can be used to apply the law governing the insurance contract or the relationship between intermediaries and customers. He stresses that the parties must be aware of the customs they have to comply with and of certain mechanisms protecting insurance agents, which might include mandatory provisions.

Conclusion

This is a complex area, and the author has to be complemented for having taken a broad perspective, which combines international supervisory law and private international law. The study concludes with an assessment of the extent to which the current state of the law promotes cross-border activities of intermediaries. Particular attention is paid to the importance and legal framework of digital insurance intermediaries, which are also dealt with separately in each chapter.