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La personne faisant l’objet d’un mandat d’arrêt européen, mise en examen et placée sous contrôle judiciaire dans le cadre d’une procédure concomitante en France, peut être provisoirement détenue sans que la durée de cette mesure présentencielle ne soit déraisonnable.

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The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has issued a Preliminary Explanatory Report on the draft Convention on Judgments (Preliminary Document No 7 of October 2017) in both English and French for the attention of the Special Commission meeting of November 2017 on the Recognition and Enforcement of Foreign Judgments.

The Preliminary Explanatory Report was prepared by Professors Francisco J. Garcimartín Alférez, Universidad Autónoma de Madrid, Spain, and Geneviève Saumier, McGill University, Canada.

More information relating to the meeting is available at https://www.hcch.net/en/projects/legislative-projects/judgments/special-commission/.  As is evident from the Information Documents currently listed (some of which are available), the meeting will deal in particular with intellectual property rights and the extent to which they should be included in the scope of the draft Convention.

By way of comparison, it should be noted that intellectual property rights were discussed at length during the meetings of the Hague Convention of 30 June 2005 on Choice of Court Agreements (see Articles 2 n) and o) and 10(3)) and eventually, Article 21). This was, in my view, a good compromise.

Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

Rubrique : à venir

Hart Publishing Ltd. (UK) has just announced the release of Cross-Border Litigation in Europe, edited by Paul Beaumont, Mihail Danov, Katarina Trimmings and Burcu Yüksel (ISBN 9781782256762, £90.00). The following description is drawn from the publisher’s flyer:

“This substantial and original book examines how the EU Private International Law (PIL) framework is functioning and considers its impact on the administration of justice in cross-border cases within the EU. It grew out of a major project (ie EUPILLAR: European Union Private International Law: Legal Application in Reality) financially supported by the EU Civil Justice Programme. The research was led by the Centre for Private International Law at the University of Aberdeen and involved partners from the Universities of Freiburg, Antwerp, Wroclaw, Leeds, Milan and Madrid (Complutense).
The contributors address the specific features of cross-border disputes in the EU by undertaking a comprehensive analysis of the Court of Justice of the EU (CJEU) and national case law on the Brussels I, Rome I and II, Brussels IIa and Maintenance Regulations. Part I discusses the development of the EU PIL framework. Part II contains the national reports from 26 EU Member States. Parts III (civil and commercial) and IV (family law) contain the CJEU case law analysis and several cross-cutting chapters. Part V briefly sets the agenda for an institutional reform which is necessary to improve the effectiveness of the EU PIL regime. This comprehensive research project book will be of interest to researchers, students, legal practitioners, judges and policy-makers who work, or are interested, in the field of private international law.”

For further details, please click here.

Dans une affaire concernant l’Allemagne et l’implication alléguée d’un homme d’affaires dans le crime organisé, la Cour européenne des droits de l’homme (CEDH) estime que le refus de retrait d’un article de presse n’a pas enfreint l’article 8 de la Convention dès lors que les juridictions nationales ont ménagé un juste équilibre entre les intérêts en présence.

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Au théâtre Hébertot, jusqu’au 7 janvier 2018, Charles Tordjman signe une remarquable mise en scène d’une grande finesse de la célébrissime pièce de Reginald Rose, à partir d’une nouvelle adaptation de Francis Lombrail. Grâce à l’excellent jeu des douze acteurs, la tension qui caractérise ce texte est particulièrement palpable.

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Attention scholars of international law: The registration for the 2018 summer courses of The Hague Academy of International Law has opened. Over the years, thousands of students and professionals have come to the Peace Palace in The Hague to acquire a deeper understanding of Public International Law and Private International Law. Have a look at the program here:

https://www.hagueacademy.nl/…/up…/2013/11/PROGRAMME-2018.pdf

And register here:

https://www.hagueacademy.nl/registration-forms/

Les articles 8 et 14 de la Convention européenne des droits de l’homme n’interdisent pas à un État de réserver le « partenariat civil » aux couples homosexuels.

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Cette cassation vient s’ajouter à une liste déjà longue d’arrêts dans lesquels la chambre criminelle censure les décisions des juges du fond qui condamnent une personne morale sans identifier l’organe ou le représentant qui a commis l’infraction pour son compte. 

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Through two decisions (Civ. 1ère, 27 sept. 2017, n° 16-17198 et 16-13151) both issued on September 27th, The French Cour de cassation finally gave an answer to one of the most discussed question of French Succession law: Is la réserve héréditaire part of French international public policy?

The circumstances of both cases are very similar. Two French composers living in California, where they had most of their assets, got married respectively in 1984 and 1990. They put their assets in a trust and designated their wives as beneficiaries. In both cases, the settlers did not designate the children they had from previous relationships as beneficiaries of the trust. After the death of their fathers, the latter turned to French courts in order to obtain part of the inheritance. They argued that the Californian law applicable to the succession should be declared contrary to French international public policy for not including a réserve héréditaire for certain heirs.

According to Article 912 §1 of the French Civil Code, la réserve hérédiataire or the reserved portion « is that part of the assets and rights of the succession whose devolution, free of charge, the law assures to certain heirs, called forced heirs, if they are called to the succession and if they accept it ». In other words, under French succession law, a person cannot freely dispose of all of his or her assets. French law set boundaries by putting aside a reserved portion of the deceased’s property. However, he or she can freely dispose of the disposable portion (quotité disponible) which is defined as « that part of the assets and rights of the succession that is not reserved by law and of which the deceased can freely dispose by liberalities » (Article 912 § 2).

Whereas the Court of Cassation ruled that the reserved portion is mandatory in internal matters, the question of its imperative nature in international cases was yet unclear. Authors disagree. While some consider that the réserve héréditaire cannot be considered as such as part of French ordre public international, others consider that due to the fact that it is an expression of solidarity among family members as well as a guarantee of equality between heirs, it has to be part of French international public policy.

The controversy was aggravated in 2011 when the Conseil Constitutionnel condemned le droit de prélèvement for amounting to a discrimination based on nationality. The droit de prélèvement is another specific French mechanism. It allows French heirs that have been deprived of the reserved portion from the assets located abroad to deduct the equivalent of such reserved portion from the part of the deceased’s assets that are located in France. As a consequence of this decision, the reserved portion remained the only protection for heirs from the risk of disinheritance.

However, in both decisions, the Court found that the mere fact that the foreign law does not provide for a mechanism such as the reserved portion does not amount to a violation of French international public policy. The foreign law could nevertheless be disregarded, but only if its concrete application in a specific case leads to a situation that would be incompatible with French essential principles.

Giving the particulars circumstances of the cases, the Court found that in both cases the application of Californian law was not contrary to French public policy. First, the Court outlined that the deceased had lived in California for over thirty years and that most of their assets were located there. As a consequence, both situations were not strongly connected to the French forum. Then, the Court pointed out that the children living in France were adults and that their economic situation will not suffer from their being deprived of the succession.

These observations lead the Court to consider that, in these situations, the Californian law is not contrary to French international public policy even though it does not provide for a reserved portion. The Court emphasis on the particular circumstances of the case, namely that the situation was mainly located in California and that none of the claimants was in need or economically instable, indicates that these circumstances weighed strongly on the outcome. It does not exclude that, in different circumstances, a foreign law that would not provide for a reserved portion could be dismissed as contrary to public policy.

Prior to the coming into force of the Succession Regulation, the solution appears in accordance with its public policy provision. Stating that courts could only refuse to apply provisions that are manifestly incompatible with the forum’s international public policy, Article 35 allows that foreign laws be disregarded when their application could lead to serious consequences. It does not appear to be the case in the present situations.

The new discussed question is now: In which case the application of a foreign law not including a reserved portion could lead to a situation incompatible with French essential principles?

Readers may have noticed a surge in blog posts during the month of October. Indeed when I scheduled last night’s release I noticed I had effectively posted every working day (and some week-end days, too) in the past month. This is testimony to an exciting amount of developments in the areas on which I report, particularly in conflict of laws.

I cannot promise you’ll be treated to a post every day for November, too. Neither however will I trick you into having to wait too long for reporting on the many interesting cases I have in the queue.

Happy Halloween.

Geert.

On Friday, 15 December 2015, the Opening Ceremony of the Humboldt Consumer Law Clinic’s fifth cycle will take place. The ceremony will focus on current developments in the law of general terms and conditions which, from a legal perspective, create new challenges and pose numerous interesting and controversial questions.

“Fundamentals and latest challenges of the control of general terms and conditions”

Speaker: Prof. Dr. Phillip Hellwege, M.Jur. (Oxford), University of Augsburg and Vice President of the European Society for Comparative Legal History

Panelists:  Jutta Gurkmann, Federation of German Consumer Organisations, and Martin Freitag Association of the German Construction Industry.

The ceremony will start at 4 p.m. and take place at the Festsaal Luisenstraße 56, 10115 Berlin.

If you wish to participate please register here.

In [2017] NIQB 81 Townsend v Google Inc. & Anor the Northern Ireland High Court refused service our of jurisdiction in relation to a request for Google (UK and Inc.) to de-list a number of urls relating to reports on sexual and other criminal offences committed by plaintiff.

Plaintiff seeks an injunction inter alia requiring the defendants and each of them to withdraw and remove personal data relating to the plaintiff, making reference to or tending to reveal sexual offences committed by the plaintiff while a child, from their data processing and indexing systems and to prevent access to such personal data in the future. The Court references ia Vidal-Hall and Google Spain. I will leave readers to digest the ruling largely for themselves for there is a lot in there: consideration of Article 8 ECHR; Directive 95/46; aforementioned precedent; tort law etc.

Of particular note is Stephens J’s finding at 61 that ‘(t)here is a clear public interest in open justice. There is a clear right to freedom of expression. In such circumstances the processing was not unwarranted and that there is no triable issue in relation to any allegation that Google Inc. has not satisfied this condition.’

A judgment to add to the growing pile of internet, jurisdiction and balancing of interests in privacy considerations.

Geert.

Le tribunal correctionnel de Paris a rendu, vendredi 27 octobre 2017, un jugement très attendu dans le cadre de l’affaire dite "des biens mal acquis". 

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In Fernandes v. Wal-Mart Canada  2017 MBCA 96 the Court of Appeal of Manitoba offers great material for comparative conflict of laws. I will leave the Canadian analysis to the experts, in particular Chloe Snider who alerted me to the case. Suffice to say here that the gist of the ruling is that where a corporation carries on business in the territory (here: Wal MArt operating stores), this suffices to establish jurisdiction (here: re an employment issue): no ‘real and substantive connection’ test needs to be separately established. (Cue comparative litigation: compare with ‘domicile’ and extended notions of domicile in EU conflicts law).

The action was eventually still stayed on forum non conveniens grounds in favour of Ontario (extra cue for comparative review here: for this was so held despite the fact that the Ontario limitation period had probably expired).

Geert.

The International Conference “Regulation and Enforcement in the Digital Age” will take place on 16 & 17 November in Nicosia, Cyprus.

The conference sessions are the following:

Copyright law in the digital era

Internet regulation and enforcement

Special issues in online data protection

Data protection and consumer rights

Emerging trends and challenges of e-commerce and consumer law

Cybersecurity and Internet regulation

PhD Students Special Session: Internet regulation: New challenges, new ideas.

For more info, press here