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Selon l’avocat général Saugmandsgaard Øe, la loi allemande sur la codétermination est compatible avec le droit de l’Union

It is one of the pinnacle theories of conflict of laws and when first introducing students to it, they almost invariably respond glassy-eyed. Renvoi has an unlimited ability to surprise parties and courts alike. It is best excluded, either by Statute, or by the parties, but frankly to be on the safe side: always and everywhere best by both. (Lest there are well considered arguments not to do so in a specific instance. As readers of my book now, the Brussels I Recast provisions on renvoi for choice of court (complicating less fori prorogati) is not such an instance: Handbook 2016, p.128-129, Heading 2.2.9.4.2).

At issue in Dankor [Dancor Construction, Inc. v. FXR Construction, Inc., 2016 IL App (2d) 150839] was the choice of court and governing law clause cited by the court at 44:

“The parties agree that this agreement was executed in Kane County, Illinois and shall be governed by the law of the State of Illinois. Any claims, lawsuits, disputes or claims arising out of or relating to this agreement shall be litigated in Kane County, Illinois.”

This clause could be a boilerplate or midnight clause except those routinely do exclude renvoi. ‘The law of the State of Illinois’ in the clause would then be followed by ‘excluding its choice of law rules’ or something of the kind. Why it was dropped here is entirely unclear. As Clifford Shapiro writes ‘So what happens when an Illinois general contractor fires a New York subcontractor who was working on a New York project under a subcontract that required Illinois law to apply and litigation to take place in Illinois? Unfortunately for litigants, what can happen is nearly three years of jurisdictional litigation in both New York and Illinois, and then dismissal of the Illinois case less than 60 days before trial with an order directing the case to be re-filed in New York.’

As the court notes (at 69) choice of court and choice of governing law are separate issues (for that reason they are als best deal with in clearly separated contractual clauses). Relevant precedent for the validity of the former is Rieker 378 Ill. App. 3d 77, 86 (2007). Applying Rieker, and following Section 187(2) of the Restatement (Second) of Conflict of Laws, the Court held (reference is best made to Clifford’s summary or to the judgment itself) that New York law applied to the validity of the clause, leading to its being void: New York law mandatorily prohibits application of another State’s law or litigation outside of the State for New York construction projects (Illinois incidentally has a mirror provision).

Need one say more? Renvoi is always best excluded. It would not necessarily have made this clause enforceable: ordre public discussions could always still be raised. However it sure as anything would have made the validity of the clause much more likely.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 1, Heading 1.4).

 

État d'urgence - lois et règlements

Pourvoi c/ Cour d'appel de Paris, pôle 5, Chambre 7, 23 septembre 2015

Pourvoi c/ Cour d'appel de Paris, pôle 5, Chambre 7, 23 septembre 2015

Pourvoi c/ Cour d'appel de Colmar, Chambre de l'instruction, 16 mars 2017

The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

C. Thole: The recast of the European Insolvency Regulation

On 26 June 2017, the recast of the European Insolvency Regulation (reg. 2015/848) will enter into force. Although the recast does not entail radical changes, it is not confined to minor editorial amendments either, but adds some distinct new features to the EIR. This article sketches the corner points of the recast and attempts to identify new legal questions brought up by the new regulation.

M.-P. Weller: The Recast of the Brussels II bis Regulation

On 6/30/2016 the European Commission presented its draft of a revised version of the Brussels II bis Regulation. The proposals for reform primarily affect proceedings in matters of paternal responsibility. The article provides an outline and a discussion of the benefits and shortcomings of the essential changes proposed by the draft. In addition, the article critically reviews the Commission’s opinion on the lack of a need for a reform of the rules on matrimonial matters.

B. Heiderhoff: The Adjustment of German Law to the Matrimonial Property Regulations

Before the EU regulations on matrimonial property regimes (2016/ 1103) and on property consequences of registered partnerships (2016/1104) come into force on 29th January 2019, the national law must be adjusted. This contribution makes suggestions for the alignment of the conflict of laws rules as well as the introduction of the necessary procedural complements. In essence, it recommends adopting the same conflict of laws rules contained in the regulations also for those general effects of marriage that are not covered by the regulation. The procedural implementation should be effected in a separate new law and structured as parallel as possible to the law implementing the EU Succession Regulation.

M. Rohls/M. C. Mekat: The interplay between the provisions of the EU Service Regulation and the German Regulation on Judicial Assistance in Civil Matters (ZRHO) concerning the service of judicial documents to foreign States

The authors examine the interplay between the provisions of the EU Service Regulation and the German Regulation on Judicial Assistance in Civil Matters (Rechtshilfeordnung für Zivilsachen, abbreviated “ZRHO”) in the field of service of judicial documents to foreign states. The authors conclude that the options of service of documents as granted by the EU Service Regulation – within their scope – cannot be restricted by the ZRHO’s character as domestic administrative guidelines. Against this background, the authors call for a primary application of the provisions on the service of documents as foreseen in the EU Service Regulation, insofar as contrary national provisions in Germany (and other Member States of the EU) restrict a service of documents to foreign states.

G. Kühne: Some Observations on the 1986 German Reform of Private International Law

The German Private International Law Reform of 1986 has recently been the subject of discussions and contributions to this Review by various authors. The author of this article has contributed to the 1986 reform by a separate Draft, the so-called “Kühne-Entwurf” of 1980. In the following article he adds some supplementary observations on a few specific aspects concerning his Draft, in particular party autonomy in international matrimonial and succession law, where his proposals differed from those put forward by the German Council for Private International Law.

O. L. Knöfel: Public policy – The Concept of Extrajudicial Documents – Does the European Service Regulation Apply to Private Documents?

The article reviews a decision of the European Court of Justice (Case C-223/14 – Tecom Mican SL, José Arias Domínguez), dealing with the question whether the concept of “extrajudicial documents” (Art. 16 of the European Service Regulation of 13 November 2007) covers private documents. The Court answered this question in the affirmative, which is not convincing, as the notion of “extrajudicial documents” is habitually considered to encompass only documents emanating from authorities and judicial officers of a State. The author analyses the background of the notion of “extrajudicial documents” in the Hague Conventions on civil procedure and in other international legal instruments, and discusses the consequences of the decision of the ECJ for international legal assistance in civil and commercial matters.

S. Burrer: The question of cautio judicatum solvi in the case of German claimants domiciled outside of Germany and the Hague Convention on Civil Procedure

Following the amendment in 1998 to § 110 German Code of Civil Procedure to abolish the obligation on foreign claimants to furnish cautio judicatum solvi and the implementation of a new obligation on all claimants who are not residents in the EU/the EEA to provide security for costs, a question arose as to how German claimants domiciled outside of the EU/the EEA but domiciled in one of the signatory states of the Hague Convention on Civil Procedure (HCCP) should be treated. This question was neither discussed nor solved for several years. Initial views in both jurisprudence and literature refused an exemption of such expatriate German claimants as compared to nationals from other contracting states. Dissenting with these views, the Higher Regional Court of Munich decided in 2014 that such expatriate German claimants also enjoy exemption from the obligation to provide security where they are domiciled within the area of application of the HCCP due to the general principle of equality in Art. 3 para. 1 German Basic Law. This article critically discusses both the opposing view as well as the reasoning of the Higher Regional Court of Munich and shows by way of an analysis of the historic sources, a comparison with the legal situation in Switzerland and by purposive interpretation of the HCCP, that freedom from the security requirement within the scope of the convention is the correct outcome. This is not justified by applying the exemption in Art. 17 HCCP in conjunction with § 110 para. 2 no. 1 Code of Civil Procedure, but solely as a result of the commitment of enforcement in Art. 18 HCCP in conjunction with § 110 para. 2 no. 2 Code of Civil Procedure.

U. P. Gruber: Die Überleitung eines europäischen Mahnverfahrens in ein Erkenntnisverfahren

Pursuant to Art. 17 of the Regulation (EC) No 1896/2006, when the defendant lodges a statement of opposition to the European order for payment, the proceedings shall continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure. In its decision C-94/14, the ECJ emphasizes that the transfer to ordinary civil proceedings is governed by the national laws of the Member States. The laws of the Member States also govern the extent of the verification obligations to which national courts are subject when determining their international jurisdiction. European law only sets certain minimum standards that must be observed, i.e. the rights of the defence and the effectiveness of European regulations. German law meets these standards; in the author’s opinion, also the claimant’s obligation to designate the competent court (§ 1090 ZPO) is in accordance with European law.

B. Rentsch/M.-P. Weller: Recognition of judgments in International Family Law – regulatory levels in Brussels IIbis vs. leveled balancing of public policy

The Brussels IIbis Regulation is unique in its intertwinement with both European and International Family Law instruments. Despite its independence both from International treaties on child protection and neighboring EU instruments, all regimes of child protection tend to coincide in International family law litigation. In its judgment P ./. Q, the ECJ makes an effort to distinguish, namely, protection mechanisms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the return regime provided by Art. 10 Brussels IIbis-Regulation. Given its advocacy for a clear-cut separation, the judgment still evidences how both regimes may end up converging on the level of public policy.

P. F. Schlosser: Standard Forms and unclearly drafted choice of law stipulations

Regarding private international law the court makes three statements of general interest.
1. The issue whether the applicability of a national legal system has validly been agreed is to be dealt with according to the law possibly designated.
2. This rule includes the inference of unclear drafting which, according to § 305c (German) BGB, leads to the solution, and hence in the case of choice of law stipulations, to the law most favorable for the partner of the user of general trade terms.
3. In this specific case the judgment relied on the common view of both parties that German law was the most favorable for the co-contracting partner. By arguing in this way the court could not reach the more general issue, which solution should be “more favorable” for the co-contracting party if the unclear stipulation refers to a complex multitude of terms or to a national legal system encompassing both, elements favorable as well as unfavorable for the co-contracting party. The author’s proposition is: to grant an option to the co-contracting party; but only to choose between the respective entirety of the standard terms or of the dispositions of a national legal system.

P. Huber: CISG: traditional analysis on the right to avoid and a new approach to set off (note on a judgment by the German Bundesgerichtshof)

The article discusses a judgment by the German Bundesgerichtshof on the Convention for the International Sale of Goods (CISG). The main issues covered are the buyer’s right to avoid the contract for non-conforming delivery by the seller and the issue of set off in a CISG contract. With regard to avoidance, the court mainly affirms the prevailing opinion. A rather new aspect, however, is that the court requires the seller who wishes to cure the non-conformity to give notice of that intention to the buyer. The author agrees with this part of the decision. With regard to set off, the court explores new ground by assuming that set off is governed by (general principles underlying) the CISG in cases where both claims are based on the same contractual relationship and where this contract is governed by the CISG. The author criticizes this part of the judgment and argues that set off should be left to the applicable (national) law.

A. Reinisch: On the Scope of Immunity of the Swiss National Bank before Austrian Courts and Central Banks in General. Case Comment on Austrian Supreme Court, 17 August 2016 – 8 Ob 68/16g.

The Austrian Supreme Court had an opportunity to rule on a novel issue of immunity from jurisdiction enjoyed by foreign central banks. It decided that public statements formulated by central bank officials supporting and explaining its foreign exchange policy were so closely connected to the bank’s sovereign tasks that they also qualified as non-commercial, iure imperii activities justifying their exemption from judicial scrutiny as a result of sovereign immunity principles. It thereby also confirmed the settled Austrian jurisprudence that foreign states enjoyed a limited, restrictive immunity for iure imperii acts only and that this standard was specifically relevant for foreign central banks where the 1972 Council of Europe Convention on State Immunity was applicable.

S. Corneloup: Validity and Third-Party Effect of Choice of Court Agreements. The Cour de cassation between European and national interpretation

The national courts of the Member States are often torn between, on the one hand, the necessity to respect the autonomous interpretation of EU law given by the ECJ and, on the other hand, the temptation to translate their own visions based on national particularities. This tension has become particularly obvious in the recent case-law of the French Cour de cassation with respect to the validity and third-party effect of choice of court agreements. In the matter of third-party effect of choice of court agreements, the Cour de cassation implements the restrictive rulings of the ECJ regarding international chains of contracts even though they are in contradiction with French civil law. In contrast, for asymmetric choice of court agreements the court lays down its own conditions of validity without concern for European harmonization. On both topics the current French case-law is subject to critical analysis.

S. Krebber: Jurisprudence for suits of an employee against the third person in tripartite constellations of employment law.

The decision of the chambre sociale of the Cour de cassation deals with jurisdiction under the regime of the Brussels Ibis regulation for suits of an employee against the third person in tripartite constellations. In such tripartite constellations, employment law may be applicable against the third party either because the third party is considered as an employer or because rights and duties also vis-à-vis the third party are vested in the employment relationship between the employer and his employee. Art. 20 et seq. Brussels Ibis regulation are applicable to such suits even though Art. 20 requires an employment contract.

K. Bälz: DIFC Court of Appeal, Urteil vom 25. Februar 2016 in Sachen DNB Bank ASA v (1) Gulf Eyadah Corporation (2) Gulf Navigations Holdings PSJC

A recent decision of the DIFC Court of Appeals opens up the possibility to recognize and enforce German court decisions in civil matters in the UAE by using the courts of the financial free zone DIFC as a conduit jurisdiction. In view thereof, there is now reciprocal enforcement in relation to the Emirate of Dubai within the meaning of sec. 328 of the German Code of Civil Procedure (ZPO).

Tribunal des affaires de sécurité sociale de la Manche, 25 avril 2017

Tribunal des affaires de sécurité sociale de la Sarthe, 26 avril 2017

Recognition of Foreign Administrative Acts, edited by / a cura di J. Rodríguez-Arana Munoz, M. Garcìa Pérez, J.J. Perna Garcìa, C. Aymerich Cano, Springer, 2016, ISBN 9783319189741, pp. 388, EUR 135,19.

This book presents an analysis of the concept of the administrative act and its classification as ‘foreign’, and studies the administrative procedure for adopting administrative acts in a range of countries in and outside Europe. While focusing on the recognition and execution of foreign administrative acts, the book examines the validity, efficacy and enforceability of foreign administrative acts at national level. The book starts with a general analysis of the issue, offering general conclusions about the experiences in different countries. It then analyses the aforementioned themes from the perspective of the domestic law of different European nations and a number of international organisations (European Union, MERCOSUR, and Andean Community). In addition, the book studies the role of the European Union in the progress towards the recognition and execution of foreign administrative acts, where the principle of mutual recognition plays a vital part. Finally, the book analyses the international conventions on the recognition and execution of administrative acts and on the legalisation of public documents.

 

Les propos de nature à porter atteinte à la dignité d’agents publics et au respect dû à leurs fonctions ne rentrent pas dans le champ de l’article 10, § 1, de la Convention européenne des droits de l’homme. 

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Gerard McCormack, Andrew Keay, Sarah Brown, European Insolvency Law – Reform and Harmonization, Edward Elgar, 2017, ISBN: 9781786433305, 512 pp, GBP 95

Critically analysing the substantive law of insolvency in the EU countries as a whole, this book carries out horizontal cross-cutting analysis of the data gathered from a study of national insolvency laws. It selects particular areas for detailed discussion and considers the pros and cons of particular legislative solutions. Using the US and Norway as comparator countries, the expert authors identify areas where disparities in national laws produce problems that have impacts outside national boundaries. They analyse these against key policy goals including: improving economic performance throughout the EU; promoting a more competitive business environment; efficient asset allocation; and building more stable and sustainable human capital in terms of support for entrepreneurs and responses to consumer over-indebtedness. The book also considers possible reform and harmonization measures situated against the wider contextual background of the Capital Markets Union and the Europe 2020 agenda of promoting jobs and growth. Discerning and practical, European Insolvency Law will appeal to academics in both insolvency and finance as well as insolvency practitioners and lawyers. Its reform suggestions will be of interest to EU Member States’ government departments, while also providing a useful reference for consumer associations and debt charities.

La Cour européenne des droits de l’homme a jugé que l’inspection, par les autorités allemandes, du compte bancaire d’un avocat pénaliste ne présentait pas les garanties exigées par la Convention. L’article 8 relatif au droit au respect de la vie privée a été violé.

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Dans un rapport sur les procédures bâillons, la commission Mazeaud formule des préconisations pour renforcer la situation des enseignants-chercheurs contre des actions en diffamation et en dénigrement.

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« Le juge espagnol est seul compétent pour connaître d’un litige relatif à la propriété et au partage, entre des résidents français, d’une indivision portant sur un immeuble situé en Espagne, de sorte que le juge français doit relever d’office son incompétence ».

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A quick note to tickle the interest of the BIT community out there: I have come across a suggestion that recent initiatives on supply chain liability (for the notion see my earlier reblog of Penelope Bergkamp’s piece) may run counter the protection of foreign investment under Bilateral investment treaties. The analysis at issue is directed at Queensland’s chain of responsibility laws. While it is clearly a law firm’s marketing pitch (heyho, we all have to make rain somehow), the issue is real: supply chain liability laws can I suppose under circumstances qualify as regulatory takings just as any other new law.

Or can they?

Geert.

 

The LSE Law and Financial Markets Project will host a workshop on “International Finance, Party
Autonomy and Public Interest” on 18 May 2017. Speakers include Philipp Paech (LSE), Stéphanie Francq (Louvain-la-Neuve), Jan Kleinheisterkamp (LSE)  and Matthias Lehmann (University of Bonn).

Details are available here.

Andriciuc e.a.
Rapprochement des législations PROT
Selon l’avocat général Wahl, la clause d’un contrat de prêt qui prévoit le remboursement de la somme prêtée dans la devise étrangère dans laquelle le prêt a été octroyé ne constitue pas nécessairement une clause abusive

Andriciuc e.a.
Rapprochement des législations PROT
Selon l’avocat général Wahl, la clause d’un contrat de prêt qui prévoit le remboursement de la somme prêtée dans la devise étrangère dans laquelle le prêt a été octroyé ne constitue pas nécessairement une clause abusive

Andriciuc e.a.
Rapprochement des législations
Selon l’avocat général Wahl, la clause d’un contrat de prêt qui prévoit le remboursement de la somme prêtée dans la devise étrangère dans laquelle le prêt a été octroyé ne constitue pas nécessairement une clause abusive