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Cour d'appel de Nancy, 29 avril 2020

Pourvoi c/ cour d'appel de Montpellier, 30 juin 2020

Presse

The European Law Institute informs us that the ELI-UNIDROIT Model European Rules of Civil Procedure were approved by the ELI bodies on 15 July and 5 August 2020. The UNIDROIT Governing Council will vote upon the Model European Rules of Civil Procedure soon at its meeting on 23–25 September 2020.

if adopted as wll there, the ELI/UNIDROIT Rules may contribute harmonising the national procedural rules of the EU Member States and as such broaden the basis for mutual trust in the Member States’ judicial cooperation in civil matters. The Rules may be taken as a kind of minimum standard or best practice, as the case may be in the respective issue in question, and the more a national rule of civil procedure deviates from these standards, the more justifications and explanations are invited, if not expected (see e.g. Matthias Weller, in Matthias Weller/Christoph Althammer, Mindeststandards im europäischen Zivilprozessrecht – Grundvoraussetzung für gegenseitiges Vertrauen, Mohr Siebeck, Tübingen 2015, Vorwort, p. VI, comparing this mechanism to some extent with the control of standard terms).

The full text of the ELI announcement and further information can be found here.

Traxys Europe SA v Sodexmines Nigeria Ltd [2020] EWHC 2195 (Comm)  concerns the alleged dishonest substitution by Sodexmines Nigeria Limited in Nigeria in 2018 of a virtually worthless product in place of a valuable tin product which it had agreed (with choice of court and law pro England) to sell to the Claimant, Traxys Europe SA.  Second defendant is the beneficial owner and alter ego of the First Defendant (note at 31 Teare J’s insistence that they are legally separate and distinct persons). Permission to serve Mr. Ali out of the jurisdiction was granted on the basis that he was a necessary and proper party to the claim against First Defendant and that England is the proper place in which to bring the claim.

Mr Ali has applied for a stay (oddly not: an application to set aside the service order) on forum non conveniens grounds, which would ordinarily per Lord Goff in Spiliada (see discussion at 9 ff) with Teare J here at 11 holding he

‘should have regard to the substance of the matter, namely, that this is a case where the Claimant was not entitled to commence proceedings against Mr. Ali “as of right” (the expression used by Lord Goff at p.481 E) but needed to persuade the court, not only that there was a jurisdictional gateway permitting service out, but also that England was the forum conveniens for the claim against Mr. Ali. Thus, notwithstanding that as a matter of form and language Mr. Ali is seeking a stay, I consider that once battle lines were drawn as to whether England was the forum conveniens the burden lay on the Claimant to establish that England was the forum conveniens.’

At 16-17 arguments for both are listed, summarily discussed (per Lord Briggs’ instruction in Vedanta) with conclusion at 38

the claim against him lies in tort. The events which have given rise to those claims took place (in the main) in Nigeria. The witnesses upon whom the Claimant will rely to establish their claim against Mr. Ali are in Nigeria. In truth this is a Nigerian case, not an English case. The centre of gravity of the case is in Nigeria, not in England. To use the phrase used in one of the cases to which I was referred “the fundamental focus of the litigation” is on Nigeria, not England.

Of note is that the contractual and in all likelihood tort case against the first defendant will go ahead. I am not au fait whether leave to appeal was granted. On burden of proof, Teare J’s findings are quite relevant and must be I imagine subject to differences of view.

Geert.

Vesna Rijavec, Katja Drnovsek, C.H. van Rhee have edited Cross-border enforcement in Europe: national and international perspectives, published by Intersentia.

The volume addresses the enforcement of judgments and other authentic instruments in a European cross-border context, as well as enforcement in a selection of national European jurisdictions. The volume is divided into two parts. Part I on ‘Cross-border Enforcement in Europe’ opens with a contribution comparing the European approach in Brussels I Recast with the US experience of enforcement in the context of judicial federalism. This is followed by two contributions concentrating on aspects of Brussels I Recast, specifically the abolition of exequatur and the grounds for refusal of foreign judgments (public order and conflicting decisions). The two concluding texts in this part deal with the cross-border enforcement of notarial deeds and the sister regulation of Brussels I Recast, Brussels II bis (jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility). Part II is devoted to aspects of (cross-border) enforcement in a selection of European states (Poland, the Czech Republic, the Netherlands, Slovenia and the Republic of North Macedonia). The topics discussed include the authorities entrusted with enforcement, judicial assistance and the national rules relevant from the perspective of Brussels I Recast. 

The book’s table of contents can be found here. See here for further information.

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