Bail commercial
La CEDH établit une conciliation entre le droit au respect de la vie privée du requérant et la liberté d’expression d’un journal et considère que le droit à l’oubli ne s’applique pas aux informations publiées qui présentent un intérêt public reposant sur une base factuelle suffisante et qui sont exemptes de propos polémiques ou insinuations.
Concurrence déloyale ou illicite - Rupture brutale d'une relation commerciale - Conditions
Contrats et obligations conventionnelles - Fourniture d'eau potable - Obligation de facturation
I was asked yesterday (interview in Dutch) for my thoughts on the Belgian Government’s plans for a Brussels International Business Court. Here goes, in bullet-points format, a slightly extended and more technical version of those preliminary thoughts:
Much to chew on. My analysis is based on a draft Bill which a little bird sent me. This is probably not the final say on the BIBC. (On an aside: @BIBC is already taken. I can think of one or two Twitter Handles which the BE government may want to snap up before someone else does).
Geert.
Expecting higher demands for international commercial dispute resolution following Britain’s departure from the EU, Belgium plans to set up a new English-language commercial court, the Brussels International Business Court (BIBC), to take cases away from the courts and tribunals in London. This decision was announced on 27 Oct 2017. This BIBC is designed to address disputes arising out of Brexit and major international commercial disputes. The court will take jurisdiction based on parties’ choice, and will do the hearing and deliver judgments in English. The parties would have no right to appeal. BIBC combines elements of both traditional courts and arbitration. See comments here.
Although Brexit may cause uncertainty to litigants in the UK, a survey suggests that the EU judicial cooperation scheme is not the main reason for international parties choosing London to resolve their disputes. The top two factors that attract international litigants to London are the reputation and experience of English judges and combination of choice of court clauses with choice of law clauses in favor of English law, followed by efficient remedies, procedural effectiveness, neutrality of the forum, market practice, English language, effective UK-based counsel, speed and enforceability of judgments. Furthermore, Brexit will not affect the New York Convention and would less likely affect London as an arbitration centre. It may be more reasonable to suggest that the main purpose of BIBC is not to compete with London at the international level, but to offer additional judicial tool and become a new commercial dispute resolution centre within the EU to attract companies and businesses to Brussels.
Cour d'appel de Paris, Pôle 6, Chambre 12, 26 octobre 2017
Cour d'assises des mineurs du Rhône, 7 avril 2017
Tribunal d'instance, Paris 13e, 26 octobre 2017
Tribunal Correctionnel de Paris, 13e chambre correctionnelle, 24 octobre 2017
Tribunal de Grande Instance de Béthune, 12 octobre 2017.
First personal impressions presented by Edina Márton, LLM, PhD (Saarbruecken)
For jurisdictional purposes, the localisation of cross-border violations of personality rights under European instruments, such as Regulation (EU) No 1215/2012 (Brussels Ia), has attracted the attention of a considerable number of scholars and often led to different legal solutions in the national judicial practice. At EU level, besides Shevill (C-68/93; ECLI:EU:C:1995:61) as well as eDate and Martinez (C-509/09 and C-161/20; ECLI:EU:C:2011:685), since 17 October 2017, a third judgment in case Bolagsupplysningen (C-194/16; ECLI:EU:C:2017:766) has given further clarification in this area. In the recently delivered judgment, the ECJ specified one of the two limbs of the connecting factor “where the harmful event occurred or may occur” under Article 7(2) of Brussels Ia, namely the place of the alleged damage.
Two key factual elements of Bolagsupplysningen differentiate this case from Shevill, as well as eDate and Martinez. First, one of the alleged victims is a legal person established under Estonian law and has business activities in Sweden (paras 9 and 10). Secondly, the case concerned “the rectification of allegedly incorrect information published on … [the] website [of the Swedish defendant], the deletion of related comments on a discussion forum on that website and compensation for [the entire] harm allegedly suffered” (para 2; emphases omitted; words in square brackets added).
Regarding the determination of the jurisdictionally relevant place of damage, the ECJ basically ruled that a legal person asserting that its personality rights have been violated through the Internet may bring an action for rectification and removal of the allegedly infringing information, and compensation for all the damage occurred before the courts of the Member State in which its centre of interests is situated. In addition, it also stated that the courts of each Member State in which the contested online information is or was accessible are not competent to hear actions brought for rectification and removal of that information.
In the present author’s view, one of the most significant aspects of the judgment is that the ECJ treated the pecuniary and non-pecuniary damage equally for determining the jurisdictionally relevant place of damage (para 36). In addition, the ECJ applied the “centre of interests” connecting factor introduced in eDate and Martinez to this case and identified it vis-à-vis a legal person pursuing business activities in a Member State other than in the Member State in which its registered office is located (paras 40 ff.). The decisive element for this identification seems to be the pursuit of business activities. As a side note, it is worth questioning how to define this approach for entities that do not carry out such activities (cf. the centre of interests of a natural person generally coincides with his/her habitual residence in eDate and Martinez, para 49). Finally, and, in the opinion of the present author, most importantly, regarding claims for rectification and removal of allegedly infringing online information, the ECJ disregarded the so-called mosaic principle (paras 45 ff.).
Une personne morale, qui invoque une publication de données inexactes la concernant sur internet et la non-suppression de commentaires à son égard, peut former un recours tendant à la rectification de ces données, à la suppression de ces commentaires et à la réparation de l’intégralité du préjudice subi devant les juridictions de l’État membre dans lequel se trouve le centre de ses intérêts.
Tribunal de grande instance d'Albi, 25 octobre 2017
Pourvoi c/ Cour d'appel de Paris, pôle 7, 2e chambre de l'instruction, 26 janvier 2017
Pourvoi c/ Cour d'appel de Poitiers, 2e chambre civile, 11 avril 2017
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