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[2019] EWHC 3196 (Ch) Kinsella et al v Emasan et al is not quite as extensive an analysis on choice of court as Etihad Airways v Prof Dr Lucas Flöther which I review here.  Nevertheless the required ‘good arguable case’ standard is again responsible for the extensive discussion of the issue.

Issues are similar as under A25 BIa – in the case at issue it is the Lugano Convention (Article 23) that is engaged. Teverson M’s analysis is very much a factual, contractual one: the basis of Emasan’s (defendant, domiciled at Switzerland) jurisdiction challenge is that: it is domiciled in Switzerland; an alleged 2002 Agreement was an oral agreement which was not subject to any jurisdiction agreement; that alleged 2002 Agreement was not varied by 2006 and 2007 Deeds in such a way as to bring claims for breaches of its alleged terms within the ambit of the jurisdiction clauses contained in those later Deeds, but was superseded by them; there is no other basis upon which the jurisdiction of the English Courts is established in relation to claims based on the 2002 Agreement.

Whether choice of court was made for the 2002 agreement depended on whether A23 Lugano’s conditions were fulfilled that the agreement be made in writing or evidenced in writing; or in a form which accords with practices which the parties have established between themselves (the lex mercatoria gateway was not relevant at issue).

Every one of the written agreements made to give effect to claimant’s entitlement under the original, oral 2002 Agreement included a jurisdiction clause recognising the jurisdiction of the English Courts. A great deal of emphasis was placed on witness statements. At 101 Master Teverson holds that the agreement on jurisdiction under the 2002 agreement can properly in the circumstances of this case be regarded as evidenced by the jurisdiction clauses in the 2006 and 2007 Deeds.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016, Ch.2, Heading 2.2.9

 

Le plan de lutte contre les violences faites aux femmes, présenté fin novembre à l’issu du Grenelle, semble être une réponse insuffisante, ou tout du moins partielle, au regard des obligations internationales que la Convention du Conseil de l’Europe sur la prévention et la lutte contre la violence à l’égard des femmes fait peser sur la France. 

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We are happy to officially announce that the European Association of Private International Law (EAPIL) has recently been founded!

An independent and non-partisan organization registered as a non-profit association under the laws of Luxembourg, EAPIL aims to promote the study and development of private international law by fostering the cooperation of academics and practitioners  as well as the exchange of information on the sources of the discipline, its scholarship and practice.

To learn more about EAPIL – and to become a member – please check out the Association’s website.

To learn about the EAPIL founding conference, to be held at the University of Aarhus (Denmark) in May 2020, please visit the official conference website.

 

Droit de diffusion

Indemnisation - Transport

Slovénie / Croatie
Principes du droit communautaire
Avocat général Pikamäe : la Cour de justice de l’Union européenne n’est pas compétente pour statuer sur un différend frontalier à caractère international ne relevant pas du droit de l’Union

The CJEU on Thursday last week largely confirmed Saugmansdgaard ØE’s Opinion which I reviewed here, in C-421/18 Dinant Bar v maître JN, however with different emphasis than the AG. The Court insists that in accordance with Belgian law, registration with the bar association constitutes a legal obligation to which practising as a professional lawyer is subject, and that individuals wishing to practise that profession must be a member of a bar association and must comply with decisions taken by that association, notably as regards the payment of fees.

Disputes concerning those fees then are not civil and commercial and therefore not covered by Brussels I a, unless,

‘in so far as those fees constitute consideration for services freely consented to, including insurance services, which that bar association may have negotiated with a third party with a view to obtaining more advantageous terms for its lawyer members, the obligation to pay those fees would be of a contractual nature and, therefore, an action initiated with a view to ensuring that that obligation is performed would come within the scope of Article 7(1)(a) of Regulation No 1215/2012. It is for the referring court to ascertain whether that is the case in the dispute in the main proceedings’.

The AG had emphasised the factual circumstances of the case, in which the Bar had lowered the fees for maître JN to the very insurance premium only. In most cases of course Bar fees disputes probably will be about more than that and the Court’s approach may lead to split (non)applicability of Brussels Ia, in which payments for services freely consented to will have to be distinguished from those due in return for public service obligations. (Bar councils may wish to split these sums in their yearly invoice).

Geert.

Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2