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Pourvoi c/ Président de la Chambre de l'Instruction de Bordeaux , 02 février 2018

Pourvoi c/ Chambre de l'instruction de la cour d'appel de Nîmes, 29 décembre 2017

Pourvoi c/ Cour d'appel d'Amiens - 5e chambre, protection sociale, 21 septembre 2017

Pourvoi c/ Chambre de l'instruction de la cour d'appel de Paris, 7e section, 28 septembre 2017

Pourvoi c/ Cour d'appel de Toulouse, 4e chambre sociale, section 3, 20 septembre 2017

It is not quite orthodox to follow on oneself’s post, but I decided to make it as a short answer to some emails I got since yesterday. I do not know why Article 63 has not been agreed upon, although if I had to bet I would say: too complicated a provision. There is much too much in there, in a much too synthetic form; per se this does not necessarily lead to a bad outcome , but here… it looks like, rather. Just an example: Article 63 refers sometimes to provisions, some other to Chapters, and some to complete Regulations. Does it mean that “provisions regarding jurisdiction” are just the grounds for jurisdiction, without the lis pendens rules (for instance), although they are in the same Chapter of Brussels I bis?

One may also wonder why a separate rule on the assessment of the legal force of agreements of jurisdiction or choice of court agreements concluded before the end of the transition period in civil and commercial matters (Regulation 1215/2912) and maintenance (Regulation 4/2009): does the reference to “provisions regarding jurisdiction” not cover them already? Indeed, it may just be a reminder for the sake of clarity; but taken literally it could lead to some weird conclusions, such as the Brussels I Regulation taken preference over the 2005 Hague Convention “in the United Kingdom, as well as in the Member States in situations involving the United Kingdom”, whatever these may be. Of course I do not believe this is correct.

At any rate, for me the most complicated issue lies with the Draft Withdrawal Agreement provisions regarding time. As I already explained yesterday, according to Article 168 “Parts Two and Three, with the exception of Articles 17a, 30(1), 40, and 92(1), as well as Title I of Part Six and Articles 162, 163 and 164, shall apply as from the end of the transition period”, fixed for December 31st, 2020 (Article 121). In the meantime, ex Article 122, Union Law applies, in its entirety (for no exception is made affecting Title VI of Part Three). What are the consequences? Following an email exchange with Prof. Heredia, Universidad Autónoma de Madrid, let’s imagine the case of independent territorial insolvency proceedings – Article 3.2 Regulation 2015/848: if opened before December 31st, 2020, they shall be subject to the Insolvency Regulation. If main proceedings are opened before that date as well, the territorial independent proceedings shall become secondary insolvency proceedings – Article 3.4 Insolvency Regulation. If the main proceedings happen to be opened on January 2nd, 2021, they shall not – Article 63.4 c) combined with Article 168 Draft Withdrawal Agreement (I am still discussing Articles 122 and 168 with Prof. Heredia).

Another not so easy task is to explain Article 63.1 in the light of Articles 122 and 168. The assessment of jurisdiction for a contractual claim filed before the end of the transition period will be made according to Union Law, if jurisdiction is contested or examined ex officio before December 31st, 2020; and according  to the provisions regarding jurisdiction of Regulation 1215/2012 (or the applicable one, depending on the subject matter, see Article 63.1 b, c, d) Draft Withdrawal Agreement, if it -the assessment- happens later. Here my question would be, what situations does the author of the Draft have in mind? Does Article 63.1 set up a kind of perpetuatio iurisdictionis rule, so as to ensure that the same rules will apply when jurisdiction is contested at the first instance before the end of the transition period, and on appeal afterwards (or even only afterwards, where it is possible)? Or is it a rule to be applied at the stage of recognition and enforcement where the application therefor is presented after the end of the transition period (but wouldn’t this fall under the scope of Article 63.3)?

That is all for now – was not a short answer, after all, and certainly it is not the end of it.

Menci
DFON
Le principe « ne bis in idem » peut être limité dans l’objectif de protéger les intérêts financiers de l’Union et les marchés financiers de celle-ci

[2017] EWHC 2598 (Comm) Kaifer Aislimientos, is a good illustration of the limits of Article 25 juncto recital 20’s lex fori prorogati rule.

Claimant argues that the Court has jurisdiction pursuant to Article 25 Brussels I Recast because the relevant contract contains an English exclusive jurisdiction clause and further contends that the relevant contract was concluded by AMS Mexico and/or AMS on behalf of AT1 and Ezion as undisclosed principals and that, as undisclosed principals, the contract – together with the jurisdiction agreement – was binding on AT1 and Ezion.

That is the only part of the judgment to feature the Brussels Regulation at all. Peter MacDonald Eggers DJ could have referred to CJEU precedent pro inspiratio, including Refcomp for instance. He could certainly also have referred to recital 20, and equally failed to do so.

In substance he applies the Brussels I Recast rule by applying lex fori prorogati (here: English law) to all but the formation of consent questions relevant to the validity of choice of court (here: under what circumstance undisclosed principals are subject to choice of court).

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.4.

As we have already announced on this blog, the Albert-Ludwigs-University of Freiburg (Germany) will host a workshop on Friday, 13 April 2018, in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE). An updated flyer with further information has just been released here. The project aims to assess the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order, Order for Payment, Small Claims and the Account Preservation Order Regulations. Confirmed speakers include Professors Gerald Mäsch (University of Münster), Ivo Bach (University of Göttingen) and Stefan Huber (University of Tübingen), as well as Dr. Denise Wiedemann (Max-Planck-Institute, Hamburg) and Dr. Bernhard Ulrici (University of Leipzig). Their presentations will be commented on by distinguished practitioners, namely Dr. Max Peiffer (Munich), Prof. Dr. Andreas Baumert (Achern), Dr. Knut Messer (judge at the Central German Court for European Orders for Payment, Berlin), Dr. Bartosz Sujecki (Amsterdam), Dr. David Einhaus (Freiburg) and Dr. Nils H. Harbeck (Hamburg). The language of the workshop will be German. Participation is free of charge, but requires a registration.

Dans une recommandation publiée le 6 mars 2018, la Commission européenne définit un certain nombre de mesures devant être prises par les entreprises et les États membres pour lutter contre les contenus illicites en ligne, et notamment ceux à caractère terroriste.

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Constitue une violation de l’article 1er du Protocole additionnel à la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, le fait pour un État, par une législation encadrant les loyers, de favoriser le maintien dans les lieux d’un locataire payant des loyers très modérés, alors même que le coût actuel de la vie a augmenté.

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Le passager aérien qui réclame une indemnisation pour retard de vol est tenu d’apporter la preuve qu’il s’était présenté à l’enregistrement, ainsi que l’exige le règlement (CE) n° 261/2004 du 11 février 2004 sur les droits des passagers aériens. Par ailleurs, en dépit de ce règlement, le passager peut réclamer une indemnisation sur le fondement de la Convention de Montréal du 18 mai 1999.

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Today, the European Union and the United Kingdom have reached an agreement on the transition period for Brexit: from March 29 of next year, date of disconnection, until December 31, 2020. The news are of course available in the press, and the Draft Withdrawal Agreement of 19 March 2018 has already been published… coloured: In green, the text is agreed at negotiators’ level and will only be subject to technical legal revisions in the coming weeks. In yellow, the text is agreed on the policy objective but drafting changes or clarifications are still required. In white, the text corresponds to text proposed by the Union on which discussions are ongoing as no agreement has yet been found. For ongoing judicial cooperation in civil and commercial matters (Title VI of Part III, to be applied from December 31, 2020: see Art. 168), this actually means that subject to “technical legal revisions”, the following has been accepted:

• Art. 62: The EU and the UK are in accordance as to the application by the latter (no need to mention the MS for obvious reasons) of the Rome I and Rome II regulations to contracts concluded before the end of the transition period, and in respect of events giving rise to damage, and which occurred before the end of the transition period.
• Art. 64: There is also agreement as to the handling of ongoing cooperation procedures, whereby requests for service abroad, the taking of evidence and in the frame of the European Judicial Network are meant.
• Art. 65: There is agreement as well as to the way Council Directive 2003/8/EC (legal aid), Directive 2008/52/EC on certain aspects of mediation in civil and commercial matter, and Council Directive 2004/80/EC (relating to compensation to crime victims) will apply after the transition period.

Conversely, no agreement has been found regarding Art. 63, i.e., how to deal with jurisdiction, recognition and enforcement of judicial decisions, and related cooperation between central authorities (but whatever is agreed will also be valid in respect of the provisions of Regulation (EU) No 1215/2012 as applicable by virtue of the agreement between the European Community and the Kingdom of Denmark, see Art. 65.2, in green).

In the light of this it may  be not really worth to start the analysis of the Title as a whole: Art. 63 happens to be the less clear provision. Some puzzling expressions such as “as well as in the Member States in situations involving the United Kingdom” are common to approved texts, but may change in the course of the technical legal revision. So, let’s wait and see.

NoA: Another relevant provision agreed upon – in green-  is Art. 124, Specific arrangements relating to the Union’s external action. Title X of Part III, on pending cases and new cases before the CJEU, remains in white.

And: On the Draft of February 28, 2018 see P. Franzina’s entry here. The Draft was transmitted to the Council (Article 50) and the Brexit Steering Group of the European Parliament; the resulting text was sent to the UK  and made public on March 15.

 

 

 

Julien Huet and colleagues at White & Case have excellent insight in MK Group v Onyx. The Paris Court of appeal set aside an ICC arbitral award for violation of Laos overriding mandatory law. As such the violation of foreign ‘lois de police’ (overriding mandatory law in European private international law jargon) was seen as being comprised in French ‘ordre public international’.

It is clear that this approach increases the grip of the courts in ordinary on arbitral panels – lest the Cour de Cassation disagrees.

Geert.

 

 

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international law. The English abstracts, kindly provided by the journal’s editor-in-chief, Prof. Dr. Dörte Poelzig (M.jur., Oxon), University of Leipzig, read as follows:

Wie kann der Zugang zu ausländischem Recht in Zivilverfahren verbessert werden?
Michael Stürner

ZVglRWiss 117 (2018) 1-23

[How can we improve the access to foreign law in civil proceedings?]

In civil disputes quite frequently foreign law applies. Under German law, both the process of establishment and the application of foreign law rules lie within the responsibility of the court. However, there is only little solid knowledge about the practical problems in the process of establishing the content of foreign law. The existing legal instruments to establish foreign law are partly deficient. Above all there is a lack of readily available information channels. On an empirical basis the present paper identifies possible solutions.

__________

Welches Internationale Privatrecht wollen wir im 21. Jahrhundert?
Federico F. Garau Sobrino

ZVglRWiss 117 (2018) 24-49

[What kind of Private International Law do we want in the 21st century?]

A substantial part of the current European and conventional Private International Law [PIL] rules based on EU law or International treaties is characterized by abstruse wording, what is caused by a controversial, far-from-reality legislative technique. Many of these rules are unintelligible to the average legal mind. We are confronted with highly specialized PIL norms, created by and for specialists, but alien to everyday life and inaccessible to law practitioners, who often do not understand them nor know how to apply them. Private International Law does no longer address the needs of society; the question whether it provides a solution to legal cross-border problems, or whether it has become “the problem” itself, is a legitimate one.

___________

Das internationale Datenprivatrecht: Baustein des Wirtschaftskollisionsrechts des 21. Jahrhunderts
–Das IPR der Haftung für Verstöße gegen die EU-Datenschutzgrundverordnung–
Jan D. Lüttringhaus

ZVglRWiss 117 (2018) 50-82

[Private International Law of Data Protection: A Crucial Building Block of International Business Law in the 21st Century]

“Data is just like crude [oil]. It’s valuable, but if unrefined it cannot really be used”. As of May 18, 2018, the General Data Protection Regulation (EU) 2016/679 (GDPR) provides a European framework that regulates the refining of data as the “new oil”. In the digital age, data may not only be transferred across borders in a split second but, more often than not, data processing already takes place abroad. Against this backdrop, the GDPR reaches far beyond the borders of the EU Member States. This extraterritorial dimension raises a multitude of questions relating to both international data protection law and private international law. Conflict-of-law issues equally arise in intra-EU cases: For example, illegal data processing gives rise to a claim for damages under the GDPR. At the same time, the Regulation does not contain any rules on, for instance, fault, the calculation of damages or the limitation period. Thus, despite the autonomous nature of the claim under the GDPR, the applicable national law must still be determined in cross-border scenarios.

Moreover, standard contract terms may also lie in the focus of both conflict of laws and data protection law, e.g., when determining whether data processing is necessary for the performance of a contract or whether the data subjects’ pre-formulated consent is valid. Generally speaking, various preliminary questions may arise in the areas of conflict of laws and international administrative law given that the GDPR provides only an incomplete framework that often relies on and has to be complemented by national law.

The very recent ECJ Schrems-case illustrates that data protection litigation is often international by nature. In light of this, the GDPR also contains rules on jurisdiction which have to be reconciled with the Brussels Ibis Regulation. Finally, as the GDPR paves the way for national instruments on collective redress in data protection cases, the international dimension of these actions must equally be examined.

Par un arrêt du 8 mars 2018, la Cour de justice de l’Union européenne (CJUE )se penche sur un contrat de concession commerciale conclu entre une société portugaise et une société belge et fournit une nouvelle illustration de sa jurisprudence concernant les clauses attributives de compétence et la détermination du tribunal compétent en matière contractuelle.

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A new book co-edited by Prof. F.J. Zamora Cabot and M.C. Marullo has just been published in the field of human rights and business by the Italian publisher house Editoriale Scientifica, as part of the collection  “La ricerca del diritto nella comunità internazionale”. The diversity of the approaches of the contributions – constitutional law, International Public Law, investment arbitration, Procedural Law, Private International Law-, makes it worth for specialists in the different areas.  The index and Foreword can be looked up here.

A saga that has kept Malaysians engaged for years has finally founds its conclusion. A woman, named (rather improbably, at least for European observers) Indira Gandhi, was fighting with her ex husband over custody. The ex-husband had converted to Islam and had extended the conversion to their three children, with the consequence that the Syariah courts gave him sole custody. What followed was a whole series of court decisions by civil courts on the one hand and Syariah courts on the other, focusing mainly on the jurisdictional question which set of courts gets to decide matters of religious status and which law—Islamic law or civil law—determines the question. The Malaysian Federal Court now quashed the conversion as regards the children, thereby claiming, at least for children, a priority of the Constitution and the jurisdiction of civil courts.

Although the case is mostly discussed in the context of religious freedom and (civil) judicial review, it also raises core issues of conflict of laws. Malaysia is a country with an interpersonal legal system, which leaves jurisdiction over certain matters of Islamic law to the Syariah courts. Indira Gandhi’s ex-husband here used this system, effectively, for a form of forum shopping: converting to Islam enabled him, ostentatiously, to opt into a system more favorable to his own situation. The background, from the perspective of conflict of laws, is that the decisive connecting factor, namely a person’s religion, is open to manipulation in a way in which other connecting factors are not. According to Article 121 of the Federal Constitution, the civil courts have no jurisdiction over matters of the Syariah Courts. On the other hand, Art. 12(4) of the Constitution provides that a minor’s religion is determined by his parent or guardian, a provision the Syariah Courts neglected here. Letting the Constitution trump leads to a desirable result in this case, but it does not, by itself, resolve the underlying conflict-of-laws issues. Here, as in comparable situations, the doctrinal problem appears to lie first in the issue of unilateral determination of personal status and second in a conflation of issues of jurisdiction and applicable law.

The case is Indira Gandhi v. Pengarah Jabatan Agama Islam Perak u.a., [2018] 1 LNS 86 (Federal Court of Malaysia); it is available here. A short summary is here,  another one, including a useful timeline of events, is here. For a very helpful analysis of the case and its background and implications by Jaclyn L. Neo, focusing especially on questions of jurisdiction and judicial review, see here.  A longer discussion by Dian A.H. Shah focuses also on two other cases and more broadly on the issues of religious freedom: Dian A.H. Shah, Religion, conversions, and custody: battles in the Malaysian appellate courts, in  Law and Society in Malaysia: Pluralism, Religion and Ethnicity (Andrew Harding/Dian A.H. Shah eds., 2018). The affair is also discussed in Yvonne Tew‘s article ‘Stealth Theocracy,’ which is forthcoming with the Virginia Journal of International Law.

Non admission