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Réparation du préjudice

The latest issue of RabelsZ has just been published. It contains the following articles:

Olaf Meyer, Parteiautonomie bei Mehrrechtsstaaten (Party Autonomy in States with More than One Legal System), pp. 721 et seq

Where parties’ choice of law in private international law is limited to states with which they have reasonably close ties, similar restrictions usually apply to their choice of local law in states having more than one legal system. However, applying the same limits to both contexts is not mandatory. On the international level there is already a connecting factor that has designated the applicability of the law of a multi-law state. At the local level it is then a question of fine-tuning within that state’s legal order. To undertake this fine-tuning exercise on the basis of purely objective criteria is, however, more difficult within a single non-unified legal system than it is between two different states. This is because the relevant facts are packed more densely together and people are more mobile within the same state. Hence, the habitual residence of a person or the closest connection to the facts of a case tends to be more difficult to localise than in cases with connections to different states. Here lies an essential difference between international and inter-local conflicts of laws, which would justify a different approach to resolving them.

Zufall, Frederike, Shifting Role of the “Place”: From locus delicti to Online Ubiquity in EU, Japanese and U.S. Conflict of Tort Laws, pp. 760 et seq

This article examines the evolution of conflict rules in their perception of “place”: the basis for determining jurisdiction and the applicable law. To examine this topic from a global perspective, the legal systems of the EU, Japan, and the U.S. are analyzed and contrasted as representative legal systems from around the world (I.). Europe can be seen as the cradle of the concept of locus delicti, upholding it, albeit with reinterpretation, until today. Like other Asian countries, Japan received locus delicti as a legal transplant, implementing and adapting it in its own way. Finally, the U.S. is known for pursuing a different approach and different connecting places as a result of its conflicts revolution. This study, then, aims to combine a comparative approach with conceptual analysis, tracing the evolution of locus delicti as first received from Roman law (II.), through its reinterpretation to address cross-border and multi-state torts (III.), and the adoption of different connecting approaches (IV.), to questions arising from the ubiquity raised by the Internet (V.). To ensure a comprehensive approach, this paper will cover aspects of both the applicable law and jurisdiction, while at the same time having cognizance of their conceptual differences. It will be shown that in seeking “connecting factors”, “contacts”, or “interests”, connection to a place is increasingly lost, blurring territoriality and provoking the question of whether pursuing a fair balance between the parties should, instead, lead our legal reasoning (VI.).

Oliver Mörsdorf, Private enforcement im sekundären Unionsprivatrecht: (k)eine klare Sache? (Private Enforcement under Secondary EU Private Law: (Not) a Clear Matter?), pp. 797 et seq

National private law is increasingly determined by EU legislation which either directly establishes standards of conduct between individuals or obliges Member States to do so. However, such legislation often lacks clarity as to whether private law remedies are granted in cases of non-compliance. In Van Gend & Loos the EJC held that the EEC (now EU) creates individual rights that are directly enforceable before national courts. The Court later developed this principle of direct effect into a far-reaching duty for Member States to ensure the enforcement of individual rights by providing remedies such as a right to invoke the nullity of legal provisions or contract clauses and a right to claim damages from public authorities and private persons. Most legal writers take a functional approach to the question of which EU laws contain individual rights, arguing that the involvement of individuals in enforcement of EU law calls for over-all recognition of individual rights. This private enforcement approach might fit primary law but cannot be transferred to secondary law, where the ECJ’s recognition of individual rights goes along with a reduction of EU lawmakers’ prerogative to decide on the enforcement standard. The question of whether a secondary law provision contains an individual right thus must be answered strictly by interpreting that provision, taking into account not only its wording and context but also the legislative process preceding its adoption. A prerogative to decide autonomously on the creation of individual rights should be rejected, however, regarding EU provisions that give specific expression to individual rights deriving from primary law. Even if one accepts EU lawmakers’ power to define the scope of primary law to some extent, this power cannot include the very character of provisions as individual rights.

Leon Theimer, The End of Consumer Protection in the U.S.? –Mandatory Arbitration and Class Action Waivers, pp. 841 et seq

Historically, in the early twentieth century, mandatory arbitration was almost non-existent due to the judiciary’s widespread refusal to enforce arbitration agreements. This began to change slowly when Congress passed the Federal Arbitration Act (FAA) in order to provide a forum for merchants to settle fact-based contractual disputes. […] The sweeping change towards individual arbitration in consumer disputes is underpinned by the Supreme Court’s jurisprudence, which over the last forty years has overwhelmingly favoured the party seeking to arbitrate.  While it is beyond the scope of this article to analyse the entirety of the Supreme Court’s FAA jurisprudence, Part II will trace arbitration’s ascent from the enactment of the FAA in 1925 to the prominent status it enjoys today, particularly focusing on and critically analysing key decisions rendered in the last four decades. Part III will discern some of the most important implications of the status quo and discuss what is left of consumer protection in the arbitration context in the United States today. Lastly, Part IV will explore some approaches that would enhance consumer protection in arbitration along with their prospects, criticisms and justifications.

Rendez-vous lundi 4 novembre.

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Thank you AKD for flagging the Dutch Hoge Raad (Supreme Court) reference to the CJEU in what at the Court is now known as case C-709/19 Vereniging van Effectenbezitters (VEB) v BP. The Hoge Raad’s decision is here, AKD have the questions in English.

The case essentially seeks clarification of Kolassa, Universal Music and Lober, given the specifics in the VEB case as pointed out in the AKD summary: the case concerns a class action, not that of an individual shareholder; no prospectus was specifically addressed at Dutch investors, who instead feel they received incomplete and misleading information that was made public through press releases, websites and public statements by directors; finally the Dutch Supreme Court questions the CJEU on an e-Date accessibility type jurisdictional basis.

One to look out for.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.7

Après deux mois de réflexion, les onze groupes de travail issus du Grenelle des violences conjugales ont rendu mardi leurs copies. Au total, 66 mesures sont dévoilées pour un « changement systémique ». Peu ou prou se concentrent sur la prise en charge des auteurs de ces violences.

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Claude Chossat, 42 ans, comparaît, du 28 octobre au 8 novembre, pour assassinat en bande organisée de Richard Casanova. Claude Chossat a quitté le milieu criminel pour en dénoncer les arcanes aux services de police, et revendique aujourd’hui le statut de repenti. Il accuse son ancien patron, Francis Mariani, d’être l’assassin de Casanova.

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La France a manqué, depuis le 1er janvier 2010, aux obligations qu’impose la directive n° 2008/50/CE du 21 mai 2008 Qualité de l’air ambiant, a jugé le 24 octobre, la Cour de justice de l’Union européenne. La CJUE a fait droit au recours en manquement engagé par la Commission européenne du fait du dépassement régulier, dans douze agglomérations, des valeurs limites d’émission de dioxyde d’azote (NO2) fixées par cette directive.

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Written by Professor Stephen G.A. Pitel, Western University

The decision of the Supreme Court of Canada in R.S. v P.R., 2019 SCC 49 (available here) could be of interest to those who work with codified provisions on staying proceedings. It involves interpreting the language of several such provisions in the Civil Code of Quebec. Art. 3135 is the general provision for a stay of proceedings, but on its wording and as interpreted by the courts it is “exceptional” and so the hurdle for a stay is high. In contrast, Art. 3137 is a specific provision for a stay of proceedings based on lis pendens (proceedings underway elsewhere) and if it applies it does not have the same exceptional nature. This decision concerns Art. 3137 and how it should be interpreted.

P.R. (the husband) filed for divorce in Belgium. R.S. (the wife) filed for divorce three days later in Quebec. The husband sought to stay the Quebec proceedings on the basis of lis pendens. [para. 2] The motions judge refused a stay but the Quebec Court of Appeal reversed and granted a stay. The Supreme Court of Canada (6-1) reversed and restored the original refusal of a stay. The upshot is that the wife is allowed to proceed with divorce proceedings in Quebec.

The dispute was protracted largely because the husband, under Belgian law, purported to revoke all gifts he had given to the wife during their marriage. [paras. 2 and 13] These were worth more than $33 million. This is legal under Belgian law though not free from controversy [para. 59].

Art. 3137 provides “On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.”

One of the central issues for the court was whether a Belgian decision could be recognized in Quebec. Because a Belgian court would give effect to the revocation of the gifts in its decision, Justice Abella did not think so. She held that “foreign judgments which annihilate not only countless international instruments regarding the equality of spouses and the protection of a vulnerable one, but also the very philosophical underpinnings of the provisions in the [Civil Code of Quebec] contradict those conceptions and will not be recognized in Quebec.” [para 142] In her view no Belgian decision accepting the revocation of the gifts on these facts could be recognized in Quebec: refusal under Art. 3155(5) – “the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations” – was inevitable. On this view, Art. 3137 did not apply and so there was no basis for a stay.

In contrast, Justice Gascon, joined by four other judges, held that a Belgian decision could be recognized in Quebec. The threshold is low, requiring only the possibility or plausibility of recognition. [para. 48] The focus is not on the specific provisions of any rule that the foreign court might apply in reaching its decision but on the outcome or decision itself. [para. 56] He held that “the husband was required to show only that there was a possibility that the eventual Belgian decision would not be manifestly inconsistent with public order as understood in international relations.” [para. 57] He listed several possible outcomes by which the Belgian court might render a decision that could be recognized in Quebec, including the prospect that a Belgian court might not give effect to the revocation of the gifts on the basis that the law so allowing is unconstitutional. [paras. 58-63]

On Justice Gascon’s reasoning, Art. 3137 did apply, making a stay available. However, the provision is discretionary, expressly using the word “may”. [para. 67] Justice Gascon considered that the motions judge’s decision to not grant a stay based on this discretion was not unreasonable and so should not have been disturbed by the Court of Appeal. [para. 80]

Unlike the other six judges, Justice Brown thought that a stay should be granted. In his dissent, he expressed concern about the motions judge’s reasoning. He held that the motions judge had, in interpreting the conditions that trigger Art. 3137, made “overriding” errors that justified appellate intervention. [para. 162]  He also held that the motions judge had not truly exercised the discretion under Art. 3137. [para. 169] Accordingly he was prepared to exercise it afresh and held (agreeing with the Quebec Court of Appeal) that the Quebec proceedings should be stayed. The factors favoured proceedings in Belgium, especially the concern that any Quebec judgment would not be recognized in Belgium because the Belgian proceedings had started first. [para. 186]

It appears that one of the key reasons for the split between Justice Gascon and Justice Brown is that the former focused on the substantial assets in Quebec, which would of course be subject to a Quebec divorce decision [para. 91], whereas the latter focused on the substantial assets in Belgium that would be unaffected by a Quebec divorce decision [para. 187]. This goes to the exercise of the discretion to ignore the lis pendens and refuse a stay. One of the relevant factors for this is whether the court’s eventual judgment would be recognized by the forum first seized. It is easy to appreciate that this factor does not matter if that judgment does not need to be recognized there at all to be effective and, in contrast, that it is vital if it must be. [para. 90] The facts position this case somewhere in between the ends of this spectrum.

The split between Justice Gascon and Justice Abella in part is based on their understanding of Belgian law. Justice Abella repeatedly noted that there is no evidence – Belgian law being a matter of fact in a Canadian court – that a Belgian court would do anything other than give effect to the revocation. [paras. 117-21] In contrast, Justice Gascon held there was at least some evidence going the other way [para. 59] and in addition he was prepared to rely on the possibility that certain arguments might be successfully advanced. [paras. 61-62]

Many of the issues in this case arise specifically because of the separate treatment under Quebec law of lis pendens. The analysis at common law could have been quite different, all conducted under the rubric of the doctrine of forum non conveniens. Parallel proceedings would have been one of the factors considered in the analysis. But the common law has been prepared to reject according much if any weight to first-in-time proceedings based only on relatively short differences in timing (in this case, three days). Indeed, Justice Gascon noted the tension caused by strict application of first-in-time rules, either when staying proceedings or deciding whether to recognize a foreign judgment. [para. 89]

One small point might be worth a final comment. In developing the proper interpretation of Art. 3137 the judges stressed that if successfully invoked by the defendant it leads to a stay of proceedings, which is less final and so less prejudicial to the plaintiff than an outright dismissal of the proceeding. A proceeding so stayed could, if justice demanded, be reactivated. This is contrasted with the general provision in Art. 3135. [paras. 72-73 and 179] However, that provision, while not using the word “stay”, uses the phrase “decline jurisdiction”. The judges treated it is as a given that this means the proceedings are dismissed and at an end. But is it not at least arguable that to decline jurisdiction the court must first have jurisdiction, and that the declining amounts to a stay of that jurisdiction and not a dismissal? The court could have explained the basis for its position on this issue somewhat more fulsomely.

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