Feed aggregator

In Kokott AG’s words, ‘following the West Tankers case…in the present case the Court is once again confronted with a specific procedural feature of the Anglo-American legal system.’

Article 34 of the Brussels I Regulation (Article 35 in the recast) enables a court, by way of derogation from the principles and objectives of the Regulation, to refuse to recognize a judgment given by a court of another Member State. The whole starting point of the Regulation and its antecedents was to avoid much recourse to refusal of recognition. Free movement of judgments lies at the very core of the foundations of European private international law.

Little wonder then that the Regulation leaves limited freedom for Member States authorities (including courts) who are asked to recognise and enforce another State’s judgment. As I noted at the time, in Trade Agency the CJEU insisted that refusal of recognition on the basis of ordre public is only possible after review of the individual merits of the case. Courts in other EU Member States may not decide that the English system as such as contrary to public policy in the state of enforcement. Relevant case-law was most recently summarised by (the same) Kokott AG in fly LAL and also in Diageo.

The exequatur procedure of the Brussels I Regulation has been amended in the Brussels I Recast. However it is exactly on issues of the rights of the defence that exequatur can never be entirely automatic, even among EU Member States.

In Case C-559/14 Meroni, at issue are Mareva injunctions: (sometimes) worldwide freezing orders issued by English courts (among others), designed to prevent a creditor being deprived of access to the debtor’s assets as a result of a prior disposal of those assets. However, as is often the case, the reputation of Mareva injunctions far exceeds their actual bite. There is no one size fits all such injunction and a number of tools are at the disposal of both the debtor affected, and third parties, to have the order varied or indeed lifted. The rights of third parties in particular are quite relevant in the current review with the CJEU. Part of the injunction are often the debtor’s participations in companies: for the recalcitrant debtor may find all sorts of useful ways to spirit value away from his companies and into vaults safe from prying English or European eyes – especially if the debtor is sole or majority shareholder.

In the case at issue, Mr A.L. is prohibited, inter alia, from disposing of assets which can be attributed directly or indirectly to his property. The injunction extends to  interests in the Latvian company VB. Mr A.L. has a direct interest in that company with only one share. According to the referring court, however, he is also the ‘beneficial owner’ of shares in at least one other company (‘Y’), which itself has substantial interests in VB. Mr Meroni is part of the management of Y. Following a seizure ordered by the relevant Latvian office, he also acts as the bailee for the interests in Y. for which Mr A.L. is the beneficial owner. Mr Meroni claims that the freezing injunction prevents the shareholder Y. from exercising its voting rights in respect of VB. This affects constitutionally protected property rights, especially since the company was not heard in the English proceedings. This, it is argued, is contrary to the principle of the right to a fair trial.

The AG Opined differently. At 44, she argues that it is not clear to what extent that injunction might be contrary to basic principles of Latvian substantive law or procedural law, especially since, as the referring court acknowledges, the Latvian legal order does permit judgments as provisional measures without a prior hearing of the party against whom enforcement is sought. Consequently measures such as Mareva orders cannot be said to be fundamentally against the Latvian ordre public. At 45: ‘ Aside from this, the English freezing injunction at issue does not provide for any irreversibly drastic measures for its enforcement overseas, in particular in so far as third persons who were not parties to the proceedings in England are concerned. Rather, the freezing injunction claims legal effects on third persons resident in other countries — and thus the companies controlled by Mr A.L. — only subject to strict requirements: first, it is to have legal effects on a without notice basis only where this is permitted by the foreign law; second, anyone served with the freezing injunction may apply to the court to vary or discharge it; and, third, compliance with contractual obligations in other countries is still to be possible notwithstanding the freezing injunction.‘ (footnotes omitted)

There is no evident breach of basic principles of the legal order of the State in which enforcement is sought – breach of ordre public must therefore be rejected.

Now, earlier in the judgment, the AG also considers albeit more or less obiter (the CJEU is certain not to entertain it) what may in fact be the more important (for it tends to be less sub judice at the CJEU) part of her Opinion: whether the Mareva orders actually constitute a ‘judgment’ for the purposes of the Regulation. Ms Kokott suggests that the Denilauler criteria (easily fulfilled in the case at issue: see para 31) ought to be relaxed under the Regulation, as opposed to the stricter approach under the 1968 Convention. That is because following judgment in ASML, notwithstanding defects in service, if the person concerned fails to commence proceedings in the State of origin of the judgment to challenge the judgment issued upon default, when it was possible for him to do so, recognition may not be refused. The AG suggests to extend the ASML rule to provisional measures.

Geert.

On 2 March 2016 the European Commission adopted  a proposal for a Council decision authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships (COM(2016) 108 final).

This stance comes close after the failure, in December 2015, to reach a political agreement among all Member States on the proposals relating to matrimonial property regimes and registered partnerships adopted in 2011.

Over the last few weeks, seventeen Member States – namely Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden – addressed a request to the Commission to propose a decision authorising the establishment of enhanced cooperation between themselves in this field.

As a response, the Commission adopted the aforementioned proposal for a Council decision authorising enhanced cooperation, as well as a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2016) 106 final) and a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (COM(2016) 107 final).

The adoption of the decision authorising enhanced cooperation requires a qualified majority of Member States within the Council and the consent of the European Parliament. The adoption of the two regulations implementing the enhanced cooperation requires unanimity by the participating Member States and the consultation of the European Parliament.

The non-participating Member States will continue to apply their national private international law rules to cross-border situations dealing with matrimonial property regimes and the property consequences of registered partnerships, and will remain free to join the enhanced cooperation at any time.

This post has been written by Ilaria Aquironi.

On 2 March 2016 the European Commission adopted  a proposal for a Council decision authorising enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions on the property regimes of international couples, covering both matters of matrimonial property regimes and the property consequences of registered partnerships (COM(2016) 108 final).

This stance comes close after the failure, in December 2015, to reach a political agreement among all Member States on the proposals relating to matrimonial property regimes and registered partnerships adopted in 2011.

Over the last few weeks, seventeen Member States – namely Belgium, Bulgaria, the Czech Republic, Germany, Greece, Spain, France, Croatia, Italy, Luxembourg, Malta, the Netherlands, Austria, Portugal, Slovenia, Finland and Sweden – addressed a request to the Commission to propose a decision authorising the establishment of enhanced cooperation between themselves in this field.

As a response, the Commission adopted the aforementioned proposal for a Council decision authorising enhanced cooperation, as well as a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2016) 106 final) and a proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships (COM(2016) 107 final).

The adoption of the decision authorising enhanced cooperation requires a qualified majority of Member States within the Council and the consent of the European Parliament. The adoption of the two regulations implementing the enhanced cooperation requires unanimity by the participating Member States and the consultation of the European Parliament.

The non-participating Member States will continue to apply their national private international law rules to cross-border situations dealing with matrimonial property regimes and the property consequences of registered partnerships, and will remain free to join the enhanced cooperation at any time.

It is a tradition of the University of Maribor to organise conferences “Corporate Entities at the Market“. This year the conference will include issues related to cross-border debt collection. The conference is supported and partly financed by the European Commission, in the framework of EU Project BIARE. The programme of the conference is divided into five sessions:

1st Session: Corporate Law – Current Issues Related to ZGD-1 and Amendments
2nd Session: Commercial Legal Transactions
3rd Session: Cross-border Disputes in Civil and Commercial Matters (International session, English-Slovene interpretation) – 1. part
4th Session: Cross-border Disputes in Civil and Commercial Matters (International session, English-Slovene interpretation) – 2. part
Poster Session: National System of Enforcement from Perspective of Bruxelles Ia (Slovenia, Croatia, Austria, Germany, Italy, Czech Republic, Portugal, Netherlands, France, Lithuania, Estonia, Belgium, Sweden, UK, Greece).

The conference will take place on 19–21 May 2016 in Portoroz, Slovenia. The registration form can be accessed here.

Cour d'appel de Lyon, chambre de l'instruction, 23 février 2016

Espagne / Commission
Agriculture
La Cour confirme que le marquage des agrumes indiquant les agents conservateurs et autres substances chimiques utilisés en traitement post-récolte est obligatoire

Daimler
Rapprochement des législations
Les anciens réparateurs agréés de Daimler ne sont pas responsables des annonces qui, malgré leurs efforts pour en obtenir la suppression, continuent d’associer leur nom avec la marque « Mercedes-Benz » sur Internet

On 17 March 2016 the Luxembourg Chamber of Commerce will host a conference titled The Luxembourg banker and private international law, organised by the Luxembourg Association of Banking Law Lawyers.

Speakers include Marie-Elodie Ancel (Univ. Paris-Est Créteil), Gilles Cuniberti (Univ. Luxembourg), Michèle Grégoire (Univ. Brussels), Patrick Kinsch (Univ. Luxembourg) and Grégory Minne (Univ. Luxembourg).

The program of the conference is available here.

L’absence, dans la décision prise par le juge d’instruction, de motifs justifiant la perquisition et décrivant l’objet de celle-ci, prive le bâtonnier de l’information qui lui est réservée et interdit tout contrôle réel et effectif de cette mesure par le juge des libertés et de la détention éventuellement saisi. Elle porte nécessairement atteinte aux intérêts de l’avocat concerné.

En carrousel matière:  Oui Matières OASIS:  Perquisition, saisie, visite domiciliaire Ministère public

en lire plus

Pourvoi c/ Cour d'appel de Lyon, chambre sociale A, 29 septembre 2015

Statut collectif du travail

As I have reported before, English practice is to continue using anti-suit injunctions outside of the Brussels I Regulation, in particular to support arbitration. Recent application was made in Crescendo Maritime, restraining litigation in China. Teare J confirmed among others (per Toepfer v Cargill) that forum non conveniens (Chine was the natural forum for litigation in ordinary) has little relevance in the context of arbitration clauses.

Kennedys have background to the case (essentially, backdating of a shipbuilding contract to avoid newly introduced international rules on tank coatings). The considered use of anti-suit once again underlines the importance of tools of civil procedure to support global arbitration practices.

Geert.