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En subordonnant le bénéfice d’une bourse d’études pour l’enfant d’un frontalier à la condition que ce dernier ait travaillé sur le territoire luxembourgeois pendant une durée ininterrompue de cinq ans au moment de la demande de bourse, le Luxembourg a enfreint le droit de l’Union

Thank you Steve Peers for alerting me to the relevance of the conflict of laws and the Rome I Regulation in particular in the recent Aslam et al v Uber Employment Tribunal decision. The case essentially revolves around whether claimants are employees – it is a pivotal case determining the immediate regulatory context for this part of the ‘sharing economy’. Para 87 is a particularly delightful expression of scepticism towards the sharing economy’s claims (further highlights are here).

Conflict of laws is addressed at para 103 onwards, a completion of the analysis in case of rejection of the tribunal’s view that the UK company in the Uber group employs claimants, and instead one would have to regard Uber BV (of The Netherlands) as employer. I do not think the tribunal expresses itself entirely clearly on Rome I.

If Uber BV is the employer, reclassification of the contract as one of employment (as opposed to one for the provision of services), makes the choice of law for Dutch law partially inoperable (not, as the tribunal notes at para 105 in fine, replaced with the laws on England and Wales). Next the tribunal (paras 106-109) continues to speak of ’employer’ but reviews application of Article 3 (including the application of Article 3(3)’s ‘purely domestic contracts’. If there is a contract of employment, in my view only Article 3(1) and (2) can have any impact on the analysis: the remainder of Article 3 concerns provisions for which Article 8 itself provides exhaustive rules.

From para 110 onwards, the tribunal does more tidily address Article 8 Rome I and holds, after reference to counsel view, that if indeed the Dutch BV is the employer (for it does not suggest that the contract would have to be qualified as one of services), Dutch law would largely apply, except for a limited number of provisions of English law by way of mandatory rules. (Reference to Article 21’s ordre public is justifiably rejected).

I am assuming Uber are appealing. Expect the conflicts analysis to return.

Geert.

(Handbook of) European private international law, Chapter 3, Heading 3.2.5.

 

See here for a fascinating post by Professor Marketa Trimble (UNLV Law).  From the post:

Now that conflict of laws has caught up with Silicon Valley and is forcing internet companies to rethink the problems that occupy this fascinating field of law, conflict-of-laws experts should catch up on the internet: they should better educate themselves about internet technology; they should prepare law students for a practice in which the internet is a common, and not a special or unusual, feature; and they should prevent conflict of laws from becoming a fragment of larger trade negotiations in which multifaceted, intricate, and crucial conflict-of-laws policy considerations can easily be overlooked or ignored.

Etat d'urgence ; Lois et règlements

Etat d'urgence ; Lois et règlements

Transports de marchandises

Dans un arrêt du 30 novembre 2016, la Cour de justice de l’Union européenne (CJUE) annule définitivement la décision de la Commission qualifiant d’aide d’État incompatible avec les règles du marché intérieur l’offre d’avance d’actionnaire octroyée à la société France Télécom (devenue Orange) en 2002.

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Golden Endurance v RMA, [2016] EWHC 2110 (Comm), illustrates the attraction of having a unified approach to submission (to jurisdiction), otherwise known as voluntary appearance. In current case, the judgment that needs to be recognised is ex-EU (Moroccan) hence the Brussels I Recast does not apply: English law does. This is in fact exactly why The Hague is working hard at its ‘Judgments’ Convention – not an easy project in my view. As helpfully summarised by Sam Goodman, the court held that a Moroccan judgment would not be recognised in England because the claimant had not submitted to the jurisdiction of the Moroccan court. Although the claimant had appeared in the Moroccan proceedings, it had done so in order to ask the court to stay the Moroccan proceedings in favour of arbitration and had only engaged with the merits as it was obliged to do so under Moroccan law.

Of note is that Phillips J points out that under the relevant English statutory rules, the question arises as to when defending a case on its merits, at the same time as contesting jurisdiction, submission applies: a scenario for which the Brussels I Recast provides specifically in Article 26. An English court does not for this exercise rely on civil procedure rules in the country of origin of the judgment: this surely makes sense for otherwise it would encourage forum shopping by unscrupulous claimants. Instead, whether one has submitted is ‘a question of mixed law and fact’ (at 46) which in this case was decided in favour of the claimant in the English court, ‘the claimant, having requested the dismissal of the claim in Morocco in favour of arbitration proceedings and having done so continually and as its primary response, did not voluntarily appear in the Moroccan courts’ (at 47).(The remainder of the judgment relates to transport law: the ‘Hague Rules’).

Geert.

(Handbook of) EU private international law, Chapter 2, Heading 2.2.7.

 

 

This book authored by M.E. Ancel, P. Deumier and M. Lazzouzi, and published by Sirey, is the first manual written in French solely devoted to international contracts examined through the lens of judicial litigation and arbitration. It provides a rich and rigorous presentation in light of the legal instruments recently adopted or under discussion in France, as well as at the European and international levels.

After an introduction to  the general principles of the matter, the reader will be able to take cognizance of the regimes of the most frequent contracts in the international order: business contracts (sale of goods and intermediary contracts), contracts relating to specific sectors (insurance, transport), contracts involving a weaker party (labor and consumer contracts) or a public person.

Advanced students, researchers as well as practitioners will find in this volume the tools enabling them to grasp the abundant world of international contracts, to identify the different issues and to master the many sources of the discipline.

The ensemble is backed up by a highly developed set of case law and doctrinal references, updated on August 15, 2016.

Marie-Elodie Ancel is a professor at the University Paris Est Créteil Val de Marne (UPEC), where she heads two programs in International Business Litigation and Arbitration.

Pascale Deumier is a professor at the Jean Moulin University (Lyon 3), where she is a member of the Private Law Team and coordinates the research focus on the Sources of Law.

Malik Laazouzi is a professor at the Jean Moulin University (Lyon 3), where he heads the Master 2 of Private International and Comparative Law.

Aude Fiorini, The Protection of the Best Interests of Migrant Children – Private International Law Perspectives, forthcoming / di prossima pubblicazione in Giacomo Biagioni, Francesca Ippolito (eds), Migrant Children in the XXI Century. Selected Issues of Public and Private International Law, Editoriale Scientifica, available through / disponibile su Social Science Research Network.

Migration news stories have, in recent years, captured the world’s attention almost daily. Migration is not however a new phenomenon. The first wave of globalisation, between 1870 and 1914 saw as much as 10% of the world’s population move permanently to a new country. It is paradoxical therefore that, at the start of the new millennium, migration was still under-researched. The phenomenon may generally be divided into diverse categories: temporary labour migration or highly skilled and business migration; internal or international migration; legal or illegal migration; forced or chosen migration; family reunification migration, return migration… Such typology reflects an approach that largely sees migration as a challenge states and primarily considers it under the angle of international politics and security. Migration can though also be studied from the perspective of the individual migrant. In this whilst it is human rights law which immediately resonates, private international law also has a key role to play. The interface between human rights and private international law as regards issues of migration has not frequently been considered. And this is particularly the case as regards children. Can and do States achieve the protection of the best interests of migrant children in part through the framework of private international law? To answer this question, this article will consider first the relevance of private international law to migrants and migration. It then discusses whether the reliance on private international law rules, methods and approaches, including the increasingly popular connecting factor of habitual residence is adequate as a basis on which to protect the best interests of migrant children.

Dans un communiqué du 22 novembre 2016, la Commission européenne présente une série de nouvelles règles relatives à l’insolvabilité des entreprises via un système de procédures plus efficaces et efficiences à travers l’Union.

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Following a report issued by the Commission in March 2016, the Council of the European Union adopted on 8 December 2016 its Conclusions on the European Judicial Network in civil and commercial matters.

The Council, among other things, calls on Member States to ‘promote the use of the expertise of other legal practitioners by involving relevant professional associations more closely in the Network’s activities’  and to ‘encourage interaction at national level to share knowledge and gather information on the practical application of the EU instruments in civil and commercial matters’, including, where appropriate, by establishing ‘national networks bringing together the national contact points, Network members and other legal practitioners’.

Facendo seguito a una relazione presentata dalla Commissione nel marzo del 2016, il Consiglio ha adottato, l’8 dicembre 2016, le sue Conclusioni sulla Rete giudiziaria europea in materia civile e commerciale.

Il Consiglio, tra le altre cose, sollecita gli Stati membri a “promuovere l’uso delle conoscenze specialistiche di altri operatori della giustizia coinvolgendo più strettamente i pertinenti ordini professionali nelle attività della rete” e a “incoraggiare l’interazione a livello nazionale per condividere conoscenze e raccogliere informazioni sull’applicazione pratica degli strumenti dell’UE in materia civile e commerciale”, considerando, tal fine, “l’eventualità di istituire, ove opportuno, reti nazionali che riuniscano i punti di contatto nazionali, i membri della rete e altri operatori della giustizia”.

A conference on Parental responsibility and children protection in cross border situations, in the light of the 1996 Hague Convention will take place in Florence on 12 December 2016. The programme is available here. 

Lunedì 12 dicembre 2016, si terrà a Firenze un incontro intitolato Responsabilità genitoriale e protezione dei minori in contesto transfrontaliero anche alla luce dell’entrata in vigore della convenzione dell’Aja 1996. Il programma integrale è consultabile a questo indirizzo.

Apologies for late posting. I had tweeted and linked and done all sorts of other things when the judgment came out but as readers tell me, that is not quite the same as a review on this blog.

Walker J decided Peralla v Codere [2016] EWHC 1182 (Comm) at the end of July. His views on Article 25 and exclusivity in the event of asymmetric jurisdiction clauses, are very much dicta. On their neutralising effect under Article 31, he suggested obiter. Let me explain. The jurisdiction clause which Perella alleged to have been breached by Codere comprises a single sentence of a clause of their letter of engagement. That sentence states:

“[Codere] agrees for the benefit of [Perella] that the courts of England wil have non-exclusive jurisdiction to settle any dispute which may arise in connection with this engagement.”

Codere sued in Spain alleging breach of contract. Perella countersues in England. The English proceedings are very much necessitated by one or two awkward consequences of the wording of Article 31 of the Brussels I Recast. This Article was specifically included to neutralise the torpedo which the Court of Justice had armed in its Gasser judgment, C-116/02: following Gasser, lis alibi pendens applies even if there is exclusive choice of court and a court other than the court assigned in that clause, has been seized. The Brussels I Recast neutralises the torpedo but only if there is exclusive court of choice, and if the court designated by that clause has been seized.

The first consideration in the case was whether the clause was exclusive. It was pertinently not. Perella suggested the language indicates that the benefit to be conferred upon Perella is an entitlement to insist that Codere must regard itself as bound by the exclusive jurisdiction of the English courts. Walker J (at 30) rejects this justifiably: it would have been simplicity itself verbatim to indicate exclusivity. As Ken Kaar notes, the inclusion of ‘for the benefit of’ is an old, now redundant boilerplate provision in choice of court: in the original Brussels and Lugano Conventions, ‘If the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.’ This proviso meant there was plenty of discussion in court whether only one party had procured such benefit, lest one state in so many words that it had. The current version of the Brussels I Recast (and the 2001 version before it) and Lugano 2007 have both dropped the provision, and it would be best dropped from the boilerplate clause, too.

Having held that the clause was not exclusive, the Court could have stopped there. Obiter however Walker J offered his view on whether Article 31(2)’s protection extends to asymmetric choice of court clauses – the notion of which I have reported on before. Walker J (at 18) suggests that it does. The party invoking Article 31(2) pointing to an exclusive forum which the counterparty who is suing elsewhere, had committed itself to, need not be itself subject to a symmetric duty only to sue in that court. The point has not been argued before the CJEU yet, but I agree that the High Court’s position is the correct one, with the important caveat of course that such clause needs to be valid in accordance with the lex fori prorogati. This also means that asymmetric clauses where such lex cannot be identified, would have trouble disarming the recalcitrant party’s torpedo.

Well, we are going to miss this type of judgment following Brexit. Better make conflict of laws part of the continuing relations with the UK.

Geert.

 

 

Grundfragen des Europäischen Kollisionsrechts, edited by / a cura di Stefan Arnold, Mohr Siebeck, 2016, pp. 167, ISBN 9783161539794, EUR 54.

Das Europäische Kollisionsrecht dient der europäischen Idee eines Raums der Freiheit, der Sicherheit und des Rechts ohne Binnengrenzen. Diese Aufgabe kann es nur erfüllen, wenn sich die Akteure des Rechts immer wieder von Neuem seinen Grundfragen stellen. Sie betreffen zunächst die politischen, ökonomischen und gesellschaftlichen Hintergründe, die für das Europäische Kollisionsrecht von herausragender Bedeutung sind. Dazu zählen der rechtspolitische Kontext seiner Entwicklung ebenso wie der gesellschaftliche Wandel des Familienbegriffs oder die Frage nach dem Verhältnis von Kollisionsrecht und religiösem Recht. Zu den Grundfragen des Europäischen Kollisionsrechts gehören aber auch die Gründe und Grenzen zentraler Institute der kollisionsrechtlichen Dogmatik. Welche Ordnungsaufgabe kommt etwa der Parteiautonomie, dem ordre public oder dem Renvoi im Europäischen Kollisionsrecht zu? Die hier zusammengeführten Beiträge einer Tagung in der Bayerischen Akademie der Wissenschaften nähern sich diesen Grundfragen an.

With contributions by / Con scritti di: Christoph Althammer, Stefan Arnold, Gerald Mäsch, Mathias Rohe, Michael Stürner, Rolf Wagner, Marc-Philippe Weller.

Dans l’affaire Colonna, la Cour européenne des droits de l’homme (CEDH) déclare irrecevable la requête déposée par l’ancien berger corse, condamné à la réclusion criminelle à perpétuité par la cour d’assises de Paris pour l’assassinat du préfet Erignac.

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Les autorités autrichiennes n’ont pas manqué à leurs obligations positives de protection du droit à la vie à la suite du suicide d’un patient échappé d’un hôpital psychiatrique.

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Majeur protégé - Tutelle - Ouverture - Durée

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