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In Public Institution for Social Security v Ruimy & Anor [2023] EWHC 177 (Comm) Jacobs J rejected both a forum non conveniens argument and an (acquired Brussels Ia) Article 34 Brussels Ia argument (raised by a Luxemburg-based defendant).

My paper on the Article 34 genesis and case-law hitherto is here.

Current claims are related to earlier jurisdictional challenges, culminating in The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 29 which I discuss here.

PIFSS is a Kuwaiti public institution responsible for Kuwait’s social security system and pension scheme. The claims involve alleged corruption of PIFSS. Director General by international financial institutions and intermediaries in return for causing or influencing PIFSS to invest substantial funds with or through those institutions and intermediaries (or related entities).

Following the Court of Appeal’s decision in January 2022 to uphold the successful jurisdictional challenge by some of the parties (‘the Mirabaud parties’), PIFSS have commenced proceedings against three of the Mirabaud parties (Banque Mirabaud, Mr Pierre Mirabaud and Mr Fauchier-Magnan) in Switzerland. These Swiss proceedings no longer, include a claim in respect of one of the schemes, the ‘Aerium’ scheme. Instead, the claim in those proceedings concerns a large number of other schemes in which the Mirabaud parties are alleged to have participated or assisted.

The forum non arguments are discussed [43] ff and are of course only possible because the United Kingdom are no longer party to the Lugano Convention (and the Swiss proceedings initiated post Brexit). At the heart of the forum non conveniens argument of some of the defendants in current claim, incl. Ruimy, is the proposition that the Aerium Scheme claims should be heard in Switzerland alongside the other claims advanced against the Mirabaud parties. [65] ff Jacobs J holds that defendants have not shown that Switzerland was clearly or distinctly more appropriate than the English forum.

I do not discuss forum non in detail for the interest of the post lies more with the Article 34 analysis.

This is discussed briefly [118] ff with the judge unfortunately albeit obiter following defendants’ concession that failure of the forum non argument would also sink Article 34. The reasoning seems to be that Article 34’s “necessary for the proper administration of justice” test fails if the third State at issue is not shown to be  the clearly or distinctly more appropriate than the English forum. As I discuss in my paper, this is wrong, and it falls into the same trap as the first instance judge in Municipio. While considerations relevant to the forum non test may play a role in Article 34, it is wrong to conflate the two tests.

As noted this view is made obiter only for the formal reason for the judge to reject the Article 34 defence is his decision that Article 34(1)’s condition  that an action be ‘pending before a court of a third State at the time when a court in a Member State is seised of an action which is related to the action in the court of the third State’, has not been met. Per the Court of Appeal in Municipio, “The action in the third state must be pending before the third state court when the member state court becomes seised of the action” (see also Henshaw J in Viegas v Cutrale[149]).

[122] Swiss proceedings which might potentially be considered to be relating to the English proceedings came too late, they were most definitely not pending at the time of the current English claims.

The only potentially relevant “proceedings”, in the context of Article 34, are the proceedings commenced by the service of the commandements de payer, however, they are held not to qualify: [129]

I agree with PIFSS that the request and issue of the commandements de payer did not mean that proceedings were “pending before a court” of Switzerland. In short, this is because there was no document lodged with any court. Commandments de payer are issued by administrative authorities, not a court. …a commandement de payer is at most a precursor to an action in court. In the present case, there was an objection by the recipient, with the result that court proceedings were then necessary if the requesting party wanted to take matters forward. This is what happened in the present case, when PIFSS did issue civil proceedings against the Mirabaud parties in 2022. But there were no relevant court proceedings issued by PIFSS in Switzerland prior to that time.

A judgment of note.

Geert.

Espagne / Commission
Aide d'État
Aides d’État : la Cour annule partiellement la décision de la Commission concernant le « régime espagnol de leasing fiscal »

Freikirche der Siebenten-Tags-Adventisten in Deutschland
Les subventions publiques versées aux écoles privées confessionnelles peuvent être réservées aux églises et sociétés religieuses reconnues par l’État membre concerné

A short note to refer to this post on the Wave News which focuses on third party litigation funding and how it might be used in climate change litigation, with input by Yours Truly. A good introductory summary of the opportunities and points of attention of third party funding generally, too.

Geert.

Of #climatelitigation note and happy to have contributed. https://t.co/tOYu0Lqr9N

— Geert Van Calster (@GAVClaw) February 1, 2023

 

In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) ruled that the exclusive jurisdiction of the courts of the place where a public registry is held under Article 24(3) of the Brussels I bis Regulation only covers actions concerned with the formal validity of an entry in such a registry.

Background

The case was concerned with the enforcement of an English judgment over the shares of a French company owned by the judgment debtor.

The creditor, English corporation Barclay Pharmaceuticals, had obtained a judgment in 2012 from the English High Court ordering its debtor, a French individual, to pay over £ 12 million. The judgment was declared enforceable in France under the Brussels I Regulation.

It seems that it was not  easy to find assets belonging to the debtor and the creditor sought and obtained from the English high court an order in 2018 declaring that the shares owned by the wife of the debtor in a French company were only held fictitiously by the wife, and that they should be considered as actually owned by the debtor, her husband.

On the basis of the English 2012 judgment and 2018 order, the creditor had a French enforcement authority carry out an enforcement measure over the shares.

Judgment

The debtor challenged the validity of the enforcement measure in French courts on a number of grounds.

Nouveau Tribunal de Commerce et Conseil de Prud’hommes de Bobigny (93)

One of them was that the 2018 English order could not be enforced in France, because the proceedings fell within the exclusive jurisdiction of French courts. The debtor argued that the proceedings had “as their object the validity of an entry in a public register” in the meaning of Article 24(3) of the Brussels I bis Regulation. As a result, the English High Court lacked jurisdiction, and its order could not produce effect in France.

The particular company was a Société Civile Immobilière (SCI). The shareholders of French SCIs appear in the French register for companies (Registre du commerce et des sociétés). The name of the wife presumably appeared in the register. A logical (but, importantly, not necessary, see below) consequence of the English order was that the entry into the registry would become inaccurate. There was, therefore, some potential influence of the English order over an entry into a French registry.

The issue before the Cour de cassation was thus to define the scope of the exclusive jurisdiction under Art. 24(3). The Court defines it as limited to proceedings concerned with the “formal validity” of entries into the registry.

In this case, the English court had ruled on the accuracy of an entry. This was an issue of substance, not form. Nobody was suggesting, and certainly not the English court, that the requirement for registering those shares had not been complied with. The English order had only ruled that the owner of the shares was different from that appearing in the register.

The appeal was thus dismissed, and the enforceability of the 2018 English order confirmed, since the English court had not violated the exclusive jurisdiction of French courts.

Assessment

The rationale for the exclusive jurisdiction over public registries seems to be that such registries are public authorities, and that foreign states cannot interfere with the operation of a public authority. This certainly explain why the procedure for registering a company in a public registry is necessarily governed by the law of the local state, and that only local courts could assess whether it was complied with. That is likely the idea behind the concept of “formal validity”.

Yet, whether formal validity can always be distinguished from  substantive validity is not obvious. This might well depend on the effect of the registration. If, under the applicable law, the registration determines the existence of the right (e.g. the ownership of the shares), then it is not easy to distinguish between formal and substantive validity.

But the law was simpler in this case. Under French law, the ownership of shares in SCIs is not determined by the registration. The effect of the registration is merely to extend the effects of the right to certain third parties. But registration is not mandatory. A transfer of ownership of shares would be valid as between the parties and third parties knowing about it without registration.

In this context, the distinction of the Cour de cassation makes sense. If the parties could transfer shares without registration, an English court could equally rule on the ownership of shares without interfering with the French registry.

Conclusion: it is unclear whether the concept of validity of an entry in a public registry under article 24(3) can be defined without reference to national law and the effect of registration in the relevant Member State.

Si la cour d’appel a l’obligation de s’assurer que les parties intimées ont été régulièrement citées à comparaître, elle n’a pas l’obligation de vérifier que les conclusions ont été signifiées dans le délai à l’intimé non représenté, et donc de soulever la caducité de la déclaration d’appel à son égard.
Cet intimé, régulièrement cité, mais non représenté, et qui ne s’est donc pas prévalu de la caducité de la déclaration d’appel devant la cour d’appel, ne peut pas se prévaloir de cette caducité pour la première fois devant la Cour de cassation.

Sur la boutique Dalloz Procédures d’appel 2022/2023 Voir la boutique Dalloz

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Professor HE Qisheng  has published the annual report, Chronology of Practice: Chinese Practice in Private International Law in 2021, now in its 9th year. The article has been published by the Chinese Journal of International Law, a journal published by Oxford University Press..

This survey contains materials reflecting the Chinese practice of Chinese private international law in 2021. Firstly, regarding changes in the statutory framework of private international law in China, six legislative acts, one administrative regulation on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and Other Measures, and six judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended in 2021, covering a wide range of matters, including punitive damages, online litigation, online mediation, and international civil procedure. Secondly, five typical cases on Chinese courts’ jurisdiction are selected to highlight the development of Chinese judicial practice in respect of consumer contracts, abuse of dominant market position, repeated actions and other matters. Thirdly, this survey considers 18 cases on choice-of-law issues relating, in particular, to capacities of legal persons, proprietary rights, employee contracts, mandatory rules, gambling and public policy. Fourthly, two significant decisions on punitive damages of intellectual property are reported. Fifthly, several key decisions in the recognition and enforcement of foreign judgments, international arbitration agreements and foreign settlement agreements, are reproduced. Lastly, this survey also covers the Summaries of the National Symposium on Foreign-related Commercial and Maritime Trials of Courts published by the SPC, an official document which represents the current judicial practices in the Chinese courts, and which is expected to provide guidance in the adjudication of foreign-related matters in the future.

Table of Contents

1. Introduction
2. Overview

II.A. Report on the Work of the SPC in 2021

II.B. Laws and the SPC’s interpretations

III. Jurisdiction

III.A. Rules in the SPC Summaries on Foreign-related Trials

III.B. Consumer contract

III.C. Different courts agreed upon in the principal and accessory contract

III.D. Jurisdiction over abuse of dominant market position

III.E. Repeated actions

1. Choice of law

IV.A. Rules in the SPC Summaries on Foreign-related Trials

IV.B. Capacity of legal person

IV.C. Rights in rem

IV.D. Obligations

IV.E. Mandatory rules

IV.E.i. Foreign exchange guarantee

IV.E.ii. Share transfer

IV.F. Gambling and public order

1. Intellectual property

V.A. New rules on punitive damages

V.B. Selected cases on punitive damages in Chinese courts

1. Foreign judgments

VI.A. Rules in the SPC Summaries on Foreign-related Trials

VI.B. Cases about recognition and enforcement of foreign judgments

VII. International arbitration and foreign awards

VII.A. Rules in the SPC Summaries on Foreign-related Trials

VII.B. Arbitration clause and a lien dispute over the subject matter

VIII. Confirmation of the validity of foreign settlement agreement

Here are the links to the article:

• Standard link:
  https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmac041/6988730?utm_source=advanceaccess&utm_campaign=chinesejil&utm_medium=email
• Free-access link:
  https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmac041/6988730?utm_source=authortollfreelink&utm_campaign=chinesejil&utm_medium=email&guestAccessKey=01d9c811-e555-4366-8b93-3259516005d8

Registration now open

 

Dates:                   

Friday and Saturday, 9 and 10 June 2023

Venue:                  

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

Registration:     

sekretariat.weller@jura.uni-bonn.de

 

Registration Fee: € 220.- Young Scholars Rate (limited capacity): € 110.- Dinner (optional):                      € 60.-

Registration: Please register with sekretariat.weller@jura.uni-bonn.de. Clearly indicate whether you want to benefit from the young scholars’ reduction of the conference fees and whether you want to participate in the conference dinner. You will receive an invoice for the respective conference fee and, if applicable, for the conference dinner. Please make sure that we receive your payment at least two weeks in advance. After receiving your payment we will send out a confirmation of your registration. This confirmation will allow you to access the conference hall and the conference dinner.

Please note: Access will only be granted if you are fully vaccinated against Covid-19. Please confirm in your registration that you are, and attach an e-copy of your vaccination document. Please follow further instructions on site. Thank you for your cooperation.

 

Programme

Friday, 9 June 2023

 

8.30 a.m.      Registration

9.00 a.m.      Welcome notes

Prof Dr Matthias Weller, Director of the Institute for German and International Civil Procedural Law, Rheinische Friedrich-Wilhelms-Universität Bonn;
Dr Christophe Bernasconi, Secretary General, HCCH

Moderators: Prof Dr Moritz Brinkmann, Prof Dr Nina Dethloff, Prof Dr Matthias Weller, University of Bonn; Prof Dr Matthias Lehmann, University of Vienna; Dr João Ribeiro-Bidaoui, Former First Secretary, HCCH

 

Part I: Cornerstones

1. Scope of application
   Prof Dr Xandra Kramer, Erasmus University Rotterdam, Utrecht University, The Netherlands

2. Judgments, Recognition, Enforcement
   Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

3. The jurisdictional filters
   Prof Dr Pietro Franzina, Catholic University of Milan, Italy

4. Grounds for refusal
   Adj Prof Dr Marcos Dotta Salgueiro, University of the Republic, Montevideo; Director of International Law Affairs, Ministry of Foreign Affairs, Uruguay

5. Article 29: From a Mechanism on Treaty Relations to a Catalyst of a Global Judicial Union
   Dr João Ribeiro-Bidaoui, Former First Secretary, HCCH
   Dr Cristina Mariottini, Senior Research Fellow at the Max Planck Institute for International, European and Regulatory Law, Luxembourg

 

1.00 p.m.     Lunch Break

6. The HCCH System for choice of court agreements: Relationship of the HCCH Judgments Convention 2019 to the HCCH 2005 Convention on Choice of Court Agreements
   Prof Dr Paul Beaumont, University of Stirling, United Kingdom
   

Part II: Prospects for the World 

1. European Union
   Dr Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

2. Perspectives from the US and Canada
   Professor Linda J. Silberman, Clarence D. Ashley Professor of Law, Co-Director, Center for Transnational Litigation, Arbitration, and Commercial Law, New York University School of Law, USA
   Professor Geneviève Saumier, Peter M. Laing Q.C. Professor of Law, McGill Faculty of Law, Canada

3. Southeast European Neighbouring and EU Candidate Countries
   Prof Dr Ilija Rumenov, Associate Professor at Ss. Cyril and Methodius University, Skopje, North Macedonia

 

8.00 p.m.     Conference Dinner (€ 60.-)

Dinner Speech
Prof Dr Burkhard Hess, Director of the Max Planck Institute for International, European and Regulatory Law, Luxembourg

 

Saturday, 10 June 2023

 

9.00 a.m.      Part II continued: Prospects for the World

4. Perspectives from the Arab World
   Prof Dr Béligh Elbalti, Associate Professor at the Graduate School of Law and Politics at Osaka University, Japan

5. Prospects for Africa
   Prof Dr Abubakri Yekini, University of Manchester, United Kingdom
   Prof Dr Chukwuma Okoli, Postdoctoral Researcher in Private International Law, T.M.C. Asser Institute, The Netherlands

6. Gains and Opportunities for the MERCOSUR Region
   Prof Dr Verónica Ruiz Abou-Nigm, Director of External Relations, Professor of Private International Law, University of Edinburgh, United Kingdom

7. Perspectives for ASEAN
   Prof Dr Adeline Chong, Associate Professor of Law, Yong Pung How School of Law, Singapore Management University, Singapore

8. China
   Prof Dr Zheng (Sophia) Tang, University of Newcastle, United Kingdom

 

1.00 p.m.     Lunch Break

 

Part III: Outlook

1. Lessons Learned from the Genesis of the HCCH 2019 Judgments Convention
   Dr Ning Zhao, Principal Legal Officer, HCCH

2. International Commercial Arbitration and Judicial Cooperation in civil matters: Towards an Integrated Approach
   José Angelo Estrella-Faria, Principal Legal Officer and Head, Legislative Branch, International Trade Law Division, Office of Legal Affairs, United Nations; Former Secretary General, UNIDROIT

3. General Synthesis and Future Perspectives
   Hans van Loon, Former Secretary General, HCCH

 

Poster Bonn HCCH Conference-30-01-23

 

 

 

 

Conventions & Instruments

On 1 December 2022, the 2007 Maintenance Obligations Protocol entered into force for Ukraine. At present, 31 States and the European Union are bound by the Protocol. More information is available here.

On 7 December 2022, the 1961 Apostille Convention entered into force for Saudi Arabia. The Convention currently has 124 Contracting Parties. More information is available here.

On 1 January 2023, the 1980 Child Abduction Convention entered into force for Cabo Verde. The Convention currently has 103 Contracting Parties. More information is available here.

On 19 January 2023, El Salvador deposited its instrument of accession to the 1970 Evidence Convention. The Convention, which currently has 65 Contracting Parties, will enter into force for El Salvador on 20 March 2023. More information is available here.

 

Publications & Documentation

On 20 December 2022, the Permanent Bureau published the Practitioners’ Tool: Cross-Border Recognition and Enforcement of Agreements Reached in the Course of Family Matters Involving Children. More information is available here.

On 18 January 2023, the Permanent Bureau published the second edition of the Practical Handbook on the Operation of the Apostille Convention. More information is available here.

 

Other

On 13 December 2022, the Permanent Bureau celebrated the 10th anniversary of the establishment of the HCCH Regional Office for Asia and the Pacific. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

UNIDROIT has started an online consultation on its Draft Principles and Commentary on Digital Assets and Private Law, which Marco Pasqua has thankfully posted on this blog.

Principle 5 titled “Conflict of laws” will be of special interest for our readers, yet even experts of the field may have trouble understanding this somewhat complex provision. As an observer in the Working Group, I would like to give some background.

Scope ratione materiae

The subject of Principle 5 is the law applicable to proprietary issues in digital assets. A digital asset is defined in a broad way as an “electronic record which is capable of being subject to control” (Principle 2(2)). This covers all cryptocurrencies and tokens. The term “proprietary issues” is not defined but can be understood as encompassing the existence and transfer of ownership as well as other rights in rem.

Party Autonomy

The law governing proprietary issues in digital assets is defined by a waterfall.

The first two levels are dominated by party autonomy. Principle 5(1)(a) refers to the law expressly specified in the digital asset itself, whereas Principle 5(1)(b) points to the law chosen for the system or platform on which the asset is recorded.

Free choice of law may be seen as a heresy in property law. Yet it must be borne in mind that the blockchain environment is relatively self-contained. A restricted choice of the applicable property law has already been accepted in the Hague Intermediated Securities Convention. This was a door-opener, even though the EU did not sign up.

The problem lies elsewhere. Virtually none of the existing digital assets or systems contains a choice of law. This is by no means a coincidence, but the result of the anti-etatist beliefs of the social circles in which the technology was conceived. Since these beliefs are unlikely to change any time soon (if ever), choice of law for a blockchain will remain as rare as hen’s teeth.

Options A and B

If the governing law is not chosen (i.e. virtually always), the draft provides two options (Principle 5(1)(c)). Under Option A, a state can specify the relevant rules of its forum law which should govern, and to the extent these are insufficient, refer to the UNIDROIT Principles as a kind of gap-filler. Under Option B, it can declare the UNIDROIT Principles to apply directly, without specifying any part of its domestic law.

What is striking is that the conflict-of-laws method is completely ignored here. The law of the forum or the UNIDROIT Principles govern, regardless of the connections of the case.

This may be justified insofar as substantive law harmonisation on the international level is achieved, i.e. in case of Option B. But where a state follows Option A by specifying certain rules of the forum as applicable, these rules would in fact govern all situations world-wide before its courts. Other states following Option A would also specify their own national rules. Divergences between these rules will not only be cast in stone, but exacerbated by substantive rules of PIL (règles matérielles de droit international privé). The result will be a global jumble, leading to the opportunities of forum shopping which PIL experts know so well. 

UNIDROIT Trumps National Law

If the governing law is not chosen, nor the substantive rules or the UNIDROIT Principles on Digital Assets apply, then the law applicable by virtue of the PIL rules of the forum governs (Principle 5(1)(c)). The PIL rules are thus relegated to the last level. What is more, no harmony is achieved, as not a single indication is given on how the states should fashion their PIL. Anything goes – hardly a recipe for global harmonisation.

Joint Project with HCCH

The Hague Conference on PIL has just published a joint proposal with UNIDROIT for a “Project on Law Applicable to Cross-Border Holdings and Transfers of Digital Assets and Tokens”. It shall deal specifically with Principle 5 of the UNIDROIT Draft. This is the first joint project between the two institutions. One may nurture the hope that it will result in more precise and elaborate connecting factors. Until then, the need for clearer conflicts rules may be highlighted in the UNIDROIT online consultation, which is open until 20 February 2023.

La CEDH réitère sa jurisprudence antérieure selon laquelle le refus des juridictions internes d’auditionner des témoins à charge peut, à l’aune de l’ensemble de la procédure, porter atteinte au droit à un procès équitable.

Sur la boutique Dalloz Droit et pratique de l’instruction préparatoire 2022/23 Voir la boutique Dalloz

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Puig Gordi e.a.
Espace de liberté, sécurité et justice
Une autorité judiciaire d’exécution ne peut pas, en principe, refuser l’exécution d’un mandat d’arrêt européen en se fondant sur le défaut de compétence de la juridiction appelée à juger la personne recherchée dans l’État membre d’émission

The rules on negotorium gestio in Article 11 Rome II Regulation have received little attention so far and are rarely well understood. Jonas Fritsch has written a PhD thesis on them, in which he compares the different legal systems of the Member States and examines in detail the connecting factors of Article 11 Rome II. He has kindly provided the following summary:

“Negotiorum gestio is a concept that can be described as multifaceted. Whilst in Germany it is subject to many controversial discussions in academia, other Member States of the EU barely know it. In any case, its scope is vague. This is why the EU’s ambition to create a uniform conflict of laws rule was described by the Hamburg Group for Private International Law as “a bold attempt”. The presented thesis sheds light on the end product of EU’s work by analyzing in particular Article 11 of EU’s Rome II Regulation. This provision is interpreted in detail and considered in the context of the other provisions of EU’s regulatory framework.

The analysis is preceded by a section deemed to create a methodological foundation for the later work. Here, for example, the question is addressed as to whether in European law a distinction must be made between “mere” interpretation and further development of the law (so-called “Rechtsfortbildung”). Whilst the CJEU does not differentiate between both concepts of methodology, it is shown that they differ considerably. For this reason, the author opts for identifying a legal finding that goes beyond mere interpretation and applying the appropriate methods to this. By referencing the discussion in German academia, it is shown that it is no longer a matter of “mere” interpretation when the law’s wording is exceeded.

On this basis, Article 11 Rome II is examined. Here, selected legal systems (in particular Germany, Austria, France, Spain and Italy) are studied with regard to their view on negotiorum gestio. From this, conclusions are drawn on the scope of application of Article 11 Rome II. At the end it becomes clear that the provision’s scope includes all claims that arise when a person (the intervenor) intervenes in the affairs of a third party (the principal), does not (exclusively) act in his or her own interest and is not obliged to do so.

Subsequently, the connecting factors provided for in Article 11 Rome II are analyzed. Particularly neuralgic is Article 11(3) Rome II. The “country in which the act was performed” is difficult to identify in some cases as there is uncertainty about the meaning of the term “act”. This causes problems, for example, when the actions of the intervenor are locally distinct from their effects – additional examples are presented in the book. It is demonstrated that Article 11(3) Rome II can be directly applied only if the intervenor’s actions immediately coincide with an interference with absolutely protected rights (such as body integrity or property) or the principal’s unpaid obligations (i. e. payment of the principal’s debts). In all other cases, the purpose (or “telos”) underlying Article 11(3) Rome II is missed. This is why the author states that Rome II contains an unconscious lacuna in this regard: It can be assumed that the European legislator intended to regulate all cases of negotiorum gestio; however, it has not been able to consider all possible constellations. This lacuna needs to be filled and this should be done by applying the law of the place where the specific interest of the principal is located; this constitutes a neutral connecting factor and is thus in line with the telos of Article 11(3) Rome II. Stating this, the author also mentions that other scholars might disagree with the presented way of solution and rather refer to the escape clause contained in Article 11(4) Rome II to handle those cases. However, he points to the uncertainties regarding the proper application of the escape clause and that it does not apply here on the basis of the proper understanding.

Finally, the European civil procedural law and the qualification of claims arising out of negotiorum gestio are discussed. The thesis reveals that such claims are subject to the jurisdiction according to Article 7 No. 2 Brussels Ibis and cannot be qualified contractually”.

Contact the author: jonas.fritsch@staff.uni-marburg.de

On 3 March 2023, the Catholic University of the Sacred Heart will host a conference titled The European Account Preservation Order – Six Years On. The aim is to discuss the operation of Regulation (EU) 655/2014 in light of practice and case law, six years after its provisions became applicable, in January 2017.

Presentations will be given in English and Italian, with simultaneous interpretation.

The speakers include Fernando Gascón Inchausti (Complutense University of Madrid), María Luisa Villamarín López (Complutense University of Madrid), Katharina Lugani (Heinrich Heine University, Düsseldorf), Antonio Leandro (University of Bari), Carlos Santalò Goris (Max Planck Institute, Luxembourg), Caterina Benini (Catholic University of the Sacred Heart), Elena Alina Ontanu (Tilburg University), Raffaella Muroni (Catholic University of the Sacred Heart), Elena D’Alessandro (University of Torino), and Gilles Cuniberti (University of Luxembourg).

The event will also serve as a launch event for an article-by-article commentary on the EAPO Regulation, edited by Elena D’Alessandro and Fernando Gascón Inchausti, and recently published by Edward Elgar Publishing in its Commentaries in Private International Law series. Augusto Chizzini (Catholic University of the Sacred Heart) and Luca Radicati di Brozolo (formerly of the same University, now partner at ArbLit) will discuss the commentary with the editors and the audience.

Attendance is free, but prior registration is required.

See the registration form and the full programme. For further information: pietro.franzina@unicatt.it

A conference on The Law of Treaties as Applied to Private International Law is scheduled to take place in Milan on 5 and 6 May 2023, under the auspices of the Italian Society of International Law and EU Law (SIDI) and the European Association of Private International Law (EAPIL).

The conference will be opened by two general presentations. Catherine Brölmann (University of Amsterdam) will present the rules of public international law relating to treaties and discuss the manner in which, and the extent to which, they can reflect the specificities of the subject-matter of the treaty concerned. Patrick Kinsch (University of Luxembourg) will outline the relevance of the law of treaties to the development and implementation of international conventions in the field of private international law.

Five thematic panels will follow, each featuring a discussion between experts in the law of treaties and speakers familiar with the practice relating to private international law treaties, respectively.

The first panel, on The conclusion and entry into force of private international law treaties, will be chaired by Hans Van Loon (former Secretary-General of the Hague Conference on Private International Law). The discussion will involve Jean-Marc Thouvenin (University of Paris Nanterre; Secretary-General of The Hague Academy of International Law) and Antonio Leandro (University of Bari).

The second panel, chaired by Sergio Carbone (University of Genova, Emeritus), will be devoted to The observance, application and interpretation of private international law treaties. Luigi Crema (University of Milan), Pedro De Miguel Asensio (Complutense University of Madrid) and Paul Beaumont (University of Stirling) will speak on the topic.

The third panel will be about The amendment and succession of private international law treaties: Catherine Kessedjian (University Paris II Panthéon-Assas, Emerita) will moderate a discussion between Jan Wouters (KU Leuven) and Andrea Schulz (German Federal Ministry of Justice).

Burkhard Hess (Director of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law) will chair the fourth panel, on The management of conflicts between private international law treaties, with Jan Klabbers (University of Helsinki, TBC) and Alex Mills (University College London) as speakers.

Finally, with Etienne Pataut (University Paris I – Panthéon-Sorbonne) chairing, Malgosia Fitzmaurice (Queen Mary University of London), Chiara Tuo (University of Genova) and Zeno Crespi Reghizzi (University of Milan) will discuss issues in connection with Avoiding, exiting and litigating commitments arising from private international law treaties.

A roundtable on The role of IGOs in the elaboration, implementation and coordination of private international law treaties, chaired by Fausto Pocar (University of Milan, Emeritus), will follow. Participants will include: Nicolas Nord (Secretary-General of the International Commission on Civil Status), Andreas Stein (Head of Unit (Civil Justice) at the European Commission Directorate-General for Justice and Consumers – Civil and commercial justice), Ignacio Tirado (Secretary-General of the International Institute for the Unification of Private Law (Unidroit), and Luca Castellani (Secretary of Working Group IV (Electronic Commerce) – Uncitral).

The conference, which will also feature a key-note speech by Maciej Szpunar (Judge at the Court of Justice of the European Union, TBC), will be closed by remarks by Stefania Bariatti (University of Milan).

The conference is organised by a scientific committee consisting of Stefania Bariatti, Giacomo Biagioni, Pietro Franzina and Lorenzo Schiano di Pepe, and will take place at the Catholic University of the Sacred Heart.

The full programme can be found here, together with additional practical information. Those wishing to attend must fill in the registration form available here. Early bird rates are offered to those registering before 6 March 2023.

For further information, please write an e-mail to: pietro.franzina@unicatt.it.

En réponse à deux questions préjudicielles posées à quelques jours d’intervalle par les Conseil d’État belge et français, la Cour de justice de l’Union européenne rappelle et précise les règles d’harmonisation des législations en matière de produits phytosanitaires.

Sur la boutique Dalloz Les grands arrêts de la Cour de justice de l’Union européenne Voir la boutique Dalloz

en lire plus

The Centre for Private International Law of the University of Aberdeen is organising a webinar/book launch for Csongor István Nagy (ed.), Cross-Border Litigation in Central Europe (Kluwer Law International, 2022) on 23 February 2023, 13:00 – 15:00 UK time.

Speakers: 

Prof Carmen Otero García-Castrillón, Complutense UniversityComplutense University, Madrid (Spain)

Dr Mihail Danov, University of Exeter (UK)

Prof Csongor István Nagy, University of Szeged (Hungary)

Moderator: 

Dr Michiel Poesen, University of Aberdeen (UK)

Please register and find more information here.

 

In Bravo & Ors v Amerisur Resources Ltd (Re The Amerisur plc Putumayo Group Litigation) [2023] EWHC 122 (KB) claimants, who live in remote rural communities in the Putumayo region of Colombia, seek damages from the defendant pursuant to the Colombian Civil Code, and in reliance on Colombia Decree 321/1999, in respect of environmental pollution caused by a spill (or spills) of crude oil on 11 June 2015. The claimants’ two causes of action are pleaded under the headings (i) guardianship of a dangerous activity and (ii) negligence. It is common ground between the parties that the oil spillage was the result of deliberate acts by terrorist organisation, FARC.

Steyn J yesterday held on preliminary issues, including statute of limitation. Defendant contends that the two year limitation period provided by relevant Colombian law re Colombian group actions (‘Law 472’), applies to the claim. Parties agree that in substance, Colombian law is lex causae per A4 and A7 Rome II.

Claimants rely on two points of English law and one of Colombian law. First, they contend that the relevant Article of Law 472 is a procedural provision within the meaning of A1(3) Rome II, and therefore it falls outside the scope of Rome II. I believe they are right but the judge did not. Secondly, they refute the defendant’s contention that this action should be treated as a group action under Law 472. Thirdly, even if they are wrong on both those points, they submit that application of the time limit of Law 472 would be inconsistent with English public policy, and so the court should refuse to apply it pursuant to A26 Rome II.

All but one links to case-law in this post refer to my discussion of same on the blog, with pieces of course further linking to the judgment. Apologies for the pat on my own back but it is nice to see that all but one (Vilca, where parties essentially agreed on the Rome II issue) of the cases referred to in the judgment all feature on the blog.

For claimants, Alexander Layton KC referred to Wall v Mutuelle de Poitiers Assurances and Actavis UK Ltd & ors v Eli Lilly and Co (where the issues were discussed obiter). Defendants rely on Vilca v Xstrata Ltd [2018] EWHC 27 (QB), KMG International NV v Chen [2019] EWHC 2389 (Comm), Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB), [2020] ILPr 44 and Johnson v Berentzen [2021] EWHC 1042 (QB).

My reception of the High Court’s conclusions in KMG, Pandya, and Johnson was not enthusiastic, and in my review of Pandya in particular I also suggest that the same scholarship relied on in this case, did not actually lend support to the  defendant’s arguments, and I stand by that, too.

Hence Steyn J’s conclusion [102] that Article 15 Rome II

contains a list of matters which are ‘in particular’ to fall under the designated law, irrespective of whether they would be classified as matters of substance or procedure

and [106]

that the provisions of article 15 of Rome II should be construed widely

in my view is wrong. (Note the linguistic analysis in [110] will be of interest to readers interested in authentic interpretation of multi-lingual statutes).

 

[109] The key question then is which Colombian limitation period applies to these English proceedings, which brings the judge to discuss [115] ff ia Iraqi Civilians v Ministry of Defence (No.2). Here the judge, after discussing Colombian law evidence, holds [137]

that this action has not been brought under Law 472, and it does not fall to be treated as if it had been brought as a Colombian group action. Therefore, this action is not time-barred pursuant to article 47 of Law 472.

Hence claimants lost the argument on Rome II’s procedural exception but won the argument on application of Colombian law.

[139] ff whether the limitation rule should be disapplied pursuant to A26 Rome II is discussed obiter and summarily, with reference of course to Begum v Maran which I discuss here. The judge holds A26’s high threshold would not be met.

Both parties have reason to appeal, and one wonders on which parts of Rome II, permission to appeal will be sought.

Geert.

EU Private International Law, 3rd ed. 2021, ia para 4.80.

 

Successful claimants (represented ia by @alexwlayton instructed by @leighdayintl) in Amerisur Putumayo Group Litigation -Colombia crude oil spill
Preliminary Rome II issues include qualification of issues as procedural, public policy

[2023] EWHC 122 (KB)https://t.co/X139KicNzR

— Geert Van Calster (@GAVClaw) January 27, 2023

The International Institute for the Unification of Private Law (UNIDROIT) is presently conducting a public consultation regarding a set of Draft Principles and Commentary on Digital Assets and Private Law.

These Principles have been prepared by the Working Group on Digital Assets and Private Law over the course of 7 sessions between 2020-2022. Additional information about the Working Group and its meetings can be found here.

Comments should be provided in English, using this online form. The form is divided into seven sections consistent with the text of the Principles; section II is about private international law.

The deadline to submit comments is 20 February 2023. The Working Group will consider the comments received at its next session (8-10 March 2023).

For further information, please contact Hamza Hameed at h.hameed@unidroit.org.

The European Commission has announced earlier today that it has sent a letter of formal notice to Poland (INFR(2021)2001) for failure to fulfil its obligations under the Brussels IIa Regulation.

The infringement case concerns the non-conformity of the Polish law with the Brussels IIa Regulation, specifically the provisions relating to the enforcement of judgments or orders that require the return of abducted children to their place of habitual residence. The Commission considers that there is a systematic and persistent failure of Polish authorities to speedily and effectively enforce judgments ordering the return of abducted children to other EU Member States.

Poland now has two months to reply to the Commission’s letters of formal notice and take the necessary measures to remedy the breach of EU law identified by the Commission. Failing this, the Commission may decide to issue a reasoned opinion.

The editors of the blog welcome additional information on the background of this infringement action.