Feed aggregator

Sucesiones internacionales. Comentarios al Reglamento (UE) 650/2012, a cura di José Luis Iglesias Buigues e Guillermo Palao Moreno, Tirant lo Blanch, 2015, ISBN 9788490867891, pp. 276, € 89.

[Dal sito dell’editore] El 4 de julio de 2012 se aprobó el Reglamento N° 650/2012 del Parlamento Europeo y del Consejo, relativo a la competencia, la ley aplicable, el reconocimiento y la ejecución de las resoluciones, a la aceptación y la ejecución de los documentos públicos en materia de sucesiones mortis causa y a la creación de un certificado sucesorio europeo. La aplicación plena de este instrumento legislativo adoptado en el ámbito del Espacio de Libertad, Seguridad y Justicia se producirá el 17 de agosto de 2015, momento a partir del cual nuestro modelo de Derecho internacional privado de sucesiones pasará a regirse por esta nueva norma, cuyo análisis pormenorizado, disposición a disposición, constituye el objeto de esta obra. El estudio que presentamos no es un trabajo exclusivamente académico, sino que se ha buscado ofrecer al profesional del Derecho un comentario de cada una de sus disposiciones en cuanto Derecho positivo, presidido por su confrontación con el Derecho español, con el fin de fundamentar la interpretación y aplicación en la práctica del Reglamento en España.

Maggiori informazioni, compreso l’indice del volume, sono disponibili qui.

Dans la suite du programme européen en matière de sécurité, visant à renforcer la coopération entre les autorités nationales en matière de lutte contre le terrorisme et autres formes graves de criminalité transnationale, la Commission a proposé, le 19 janvier 2016, de faciliter l’échange des casiers judiciaires des ressortissants des pays n’appartenant pas à l’Union.

en lire plus

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

H.-P. Mansel/K. Thorn/R. Wagner, European conflict of laws 2015: Reappraisal
The article provides an overview of developments in Brussels in the field of judicial cooperation in civil and commercial matters from December 2014 until November 2015. It summarizes current projects and new instruments that are presently making their way through the EU legislative process. It also refers to the laws enacted at the national level in Germany as a result of new European instruments. Furthermore the authors look at areas of law where the EU has made use of its external competence. They discuss both important decisions and pending cases before the ECJ as well as important decisions from German courts pertaining to the subject matter of the article. In addition the article also looks at current projects and the latest developments at the Hague Conference of Private International Law.

K. Kroll-Ludwigs, Conflict between the Hague Protocol on the law applicable to maintenance obligations (2007) and the Hague Maintenance Convention (1973): lex posterior derogat legi priori?
On 18.6.2011, the European Union set into force the Hague Protocol on the law applicable to maintenance obligations of 23 November 2007 and established common rules for the entire European Union aiming to determine unanimously the applicable law where debtor and creditor are in different countries. The Protocol replaced the Hague Convention of 2 October 1973 on the Law applicable to maintenance obligations. Due to its universal application, its rules apply even if the applicable law is the law of a non-Contracting State. However, note that non-EU-States, as Turkey, Switzerland, Japan and Albania are not bound by the Protocol. As well as Germany they are Contracting States of the Hague Maintenance Convention. From the German perspective, in relation to these States the question raises whether the rules of the Hague Maintenance Convention still apply. Taking into account that the Protocol – unlike the Hague Maintenance Convention – enables the parties to choose the applicable law, determining the relevant legal instrument is of great practical importance.

F.M. Wilke, The subsequent completion of German judgments to be enforced abroad
Under certain conditions, a German court can pass a judgment without a statement of facts and even without reasons. This can lead to problems abroad if the decision is to be recognized and enforced there. This is why the implementing statute concerning recognition and enforcement (AVAG) contains provisions that cover the subsequent completion of such decisions in light of certain international conventions and, so far, the Brussels regime. After the reform of the German Code of Civil Procedure (ZPO) in light of the Brussels I Recast, however, the scope of application of the AVAG does not extend to the Brussels I Regulation anymore. At first sight, this may seem plausible because of the abolition of exequatur. Yet it might be necessary for a court of an EU member state to examine the facts of a case and/or the reasons behind a decision in order to determine if its recognition/enforcement should be refused (Articles 45, 46 Brussels I Recast). This short article analyses for which cases the legal basis for subsequent completion seems to have vanished and how to deal with them. Essentially, the solutions de lege lata are to bypass the scope of application of the AVAG or to proceed by analogy. In a potential future reform, the respective AVAG provisions simply should be integrated into the ZPO.

S. Kröll, The law applicable to the subjective reach of the arbitration agreement
Defining the parties to an arbitration agreement, in particular whether nonsignatories are bound by the agreement, is one of the pervasive problems in international arbitration. It generally involves a number of conflict of laws questions some of which have been addressed by the German Supreme Court in its decision of 8 May 2014. A party’s reliance on the „group of companies doctrine“ does not relieve the courts from a detailed analysis of the various relationships involved. In most cases, it is the law governing the arbitration agreement which also determines who are the true parties to the arbitration agreement.

M. Weller, No effect of foreign mandatory provisions on arbitration agreements under German law according to § 1030 ZPO
The material scope of arbitration agreements, in particular with regard to tort claims, is a constant point of controversy before state courts. The note on the judgment by the Upper Regional Court Munich identifies opposing trends in German and European case law. The judgment also decides on the (lack of) influence of foreign mandatory provisions, arbitrability according to foreign law and the foreign ordre public on arbitration agreements, subject to German law.

C. Althammer/J. Wolber, Cross-border enforcement of coercive fine orders in Europe and limitation on enforcement
The European Court of Justice ruled in the case of Realchemie Nederland BV./. Bayer CropScience AG that decisions ordering a coercive fine fall within the scope of the Brussels I Regulation. This ruling made the German Federal Court of Justice decide upon the effects of a limitation on the crossborder enforcement of such an order. The judgment of the German Federal Court of Justice reveals a traditional understanding of the international law of enforcement and provokes the question if this approach is still appropriate for cross-border enforcement in Europe, especially as the recast of the Brussels I Regulation abolished the exequatur proceeding. The article examines the effects of obstacles resulting from national law of enforcement on the conditions of cross-border enforceability under the Brussels I and Ia Regulation. In this way the article leads into an issue that has so far not been discussed to a sufficient extent: the relationship between the cross-border enforceability of judgments and the national laws of enforcement.

P. Mankowski, Inhibitions against arrest of ships abroad inside or outside an insolvency context?
Sometimes seemingly technical cases at first instance open up a plethora of questions touching upon basics and fundamentals of international procedural law. Whether a court can inhibit parties from pursuing enforcement or arresting ships abroad in- or outside an insolvency context is precisely such a case. It touches upon the permissibility of measures against enforcement abroad and upon the universality approach in modern international insolvency law. Furthermore, it is inexplicably linked with the question to which extent (registered) ships are to be treated like real estate.

D. Otto, Internationale Zuständigkeit indischer Gerichte bei Markenverletzungen
In its decision of 15.10.2014, the Delhi High Court had to resolve whether it had competence in the international sense for a lawsuit by a U.S.-based claimant without a presence in India against an Indian-based defendant, who had his business in a different state. Under Indian civil procedure rules, a court has jurisdiction in the international sense against a defendant residing within the jurisdiction of the court. As per such rule, claimant would have to litigate before the Bombay High Court, not the Delhi High Court. The Claimant invoked a new legal provision that gives jurisdiction in disputes involving copy right or trademark violations in India also to a court at the place where the claimant carries on business. Claimant argued that it did “carry on business” within the jurisdiction of the Delhi court because its website could be accessed in Delhi. The court accepted that. This Article questions such decision as previous jurisprudence by Indian courts required that an “essential” part of claimant’s business is carried out in India; access to a website alone was deemed insufficient.

F. Heindler, Austrian Supreme Court on Remuneration of Heir Locators
The Austrian Surpreme Court in Civil Matters (Oberster Gerichtshof) has changed its jurisdiction on claims by commercial heir locators. Under Austrian law, according to the Oberster Gerichtshof, commercial heir locators are still entitled to reimbursement for expenses in negotiorum gestio. However, the amount of remuneration is no longer calculated in relation to the heir’s inheritance right.

Pourvoi c/ Cour d'appel de Montpellier, 5e chambre section A, 4 juin 2015

Pourvoi c/ Cour d'appel de Basse-Terre, 1er chambre civile, 27 février 2015

Pourvoi c/ Cour d'appel de Grenoble, chambre des expropriations, 30 juin 2015

Tribunal de grande instance de Saint Nazaire , 14 janvier 2016

Pourvoi c/ Cour d'appel d'Aix en Provence, Première présidence, 11 décembre 2015

À l’issue d’un recours en manquement introduit par la Commission européenne, la Cour de justice de l’Union européenne juge incompatible avec le droit de l’Union la législation grecque réglementant l’aménagement du temps de travail des médecins.

en lire plus

Is the relationship between two insurers, having covered liability for a towing vehicle cq a trailer, each subrogated in their insured’s rights and obligations, one of them currently exercising a claim against the other in partial recovery of the compensation due to the victim, non-contractual? I reviewed Sharpston AG’s Opinion here. I believe the Court has confirmed her Opinion. However I am not entirely certain for the judgment is awkwardly phrased.

Like its AG, the CJEU dismisses a suggestion that Directive 2009/103 (relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability) includes a conflict of laws (applicable law) rule which is lex specialis vis-a-vis the Rome I Regulation. Indeed the Directive’s provisions do not indicate whatsoever that they can be stretched.

Then comes the core of the issue, the nature of the relationship underlying the claim. The AG had suggested this is contractual, using as I noted in my earlier posting, ‘centre of gravity’ (‘the centre of gravity of the obligation to indemnify is in the contractual obligation’); ‘rooted in’ (‘the recourse action by one insurer against the other…is rooted in the contracts of insurance’); and ‘intimately bound up’ (‘[the action] is intimately bound up with the two insurers’ contractual obligation‘). (at 62).

The Court did not repeat any of this terminology. It first suggests that the national court where the case is pending, needs to determine using Article 4 of Rome II (lex locus damni) whether the law so determined ‘provides for apportionment of the obligation to compensate for the damage’. This the AG had not expressly pondered, rather it may be implicit in her use of the conditional ‘where two or more insurers are jointly and severally liable’ ((only) used at 71 of her Opinion). Next, the Court holds, if there is such apportionment, the law applicable to the action for indemnity between the insurers of the tractor cq the trailer, needs to be determined using Article 7 of Rome I (which applies to insurance contracts).

The referring courts were looking I believe for more straightforward advice. Instead I fear the many conditions precedent expressed in the judgment may well leave plenty of room for counsel to further confuse these national courts. This arguably may have a knock-on effect given the repeated insistence by the CJEU that the provisions of Brussels I (Recast) on contract and tort, need to be applied in parallel with those of Rome I and II (not something I necessarily agree with but have come to accept as standing CJEU precedent).

Geert.

Anche quest’anno, la Società Italiana di Diritto Internazionale e di Diritto dell’Unione Europea (SIDI) indice il Premio di Laurea “Daniele Padovani” per la migliore tesi di laurea in materia di diritto internazionale privato e processuale.

L’ammissione al concorso è riservata ai candidati che abbiano conseguito una laurea specialistica o magistrale in giurisprudenza successivamente al 30 maggio 2014, con votazione non inferiore a 105.

Il termine per la presentazione delle domande è fissato al 4 marzo 2016.

Maggiori informazioni sono disponibili a questo indirizzo.

The procedural context of C&F Green Energy v Bakker Magnetic BV is an attempt at making the courts preliminarily decide the isuse of applicable law to the contract between the parties. Gearóid Carey  explains the Irish civil procedure context here. In this posting I just want to flag one or two Rome I/II issues.

Plaintiffs (an Irish company), wind turbine manufacturers, seek declaratory relief and damages arising out of an alleged breach of contract and negligence on the part of the defendant in connection with the supply of magnets to the plaintiffs for use in the turbines. Defendant denies liability and has counterclaimed in respect of unpaid invoices and loss of profit.

The issue sought to be resolved at a preliminary hearing is whether it is Irish or Dutch law which governs the contract and should be applied by the court when the case comes on for full hearing. It was not for the High Court to determine the applicable law issue at this stage but rather to decide whether this crucial issue is to be decided at a preliminary hearing or whether it should be dealt with as one of the issues at the trial. Hedigan J decided it should be the latter. He dismissed i.a. the argument that much time will be saved because the parties will only have to prepare the case on the basis of one applicable law whatever the result of the preliminary issue, as ‘a little overblown’: expert opinion of one or two Dutch lawyers may be sought, however the facts of the case once the applicable law issue is settled, ought not to be overly complicated.

What interests me here is the ease with which, wrongly, the Court (however presumably just paraphrasing counsel at this point) applies the cascade or waterfall of Article 4 Rome I.  Parties’ views on applicable law are summarised in the judgment as follows: (at 5.2-5.3)

‘The defendant argues that the issue is a very discrete question of law relatively easily established. It argues that pursuant to Article 3.1 of the Rome I Regulation, a contract shall be governed by the law chosen by the parties. It argues that the defendant’s general conditions of sale were incorporated into the contract because of their attachment to a series of quotations delivered by email and their inclusion in their order confirmation forms. Thus, Dutch law was chosen by the parties to govern their contract. It argues that if they succeed on this point then little remains to be decided because certain clear time limits will apply and these, they claim, have clearly not been met….

The plaintiffs argue that it is not Article 3 but Article 4(3) of the Rome I Regulation that should apply. This Article provides that it is the law of the country most closely connected to the contract that shall apply. Although Article 4 provides for the applicable law only in the absence of a choice of law, the plaintiff argues that this Article will fall to be considered if they can establish that the orders for the goods were not, in fact, made subject to the condition importing Dutch law. In this regard, they characterised the emails relied upon by the defendant as merely pre-contract correspondence. They will rely upon the evidence of the parties to demonstrate that Dutch law was never accepted as the law of the contract. They will argue that the choice of law should be determined pursuant to Article 4(3) by an examination of all the numerous connections between the contract and Ireland. This, they argue, will involve a consideration of all the evidence of the negotiations that took place between the parties. In relation to their claim in tort, they argue that the general rule under Rome II Article 4(1)(i) should apply i.e. the law of the country where the damage occurred. They argue that Article 4(3) of Rome II further brings into play evidence as to manifest proximity. Both of these, they argue, will involve evidence of the parties.’

Which of these will prevail will now be settled at trial stage. Defendant will have to show that what it refers to as the pre-contractual quotations of its general conditions of sale, seemingly by e-mails and eventually in the confirmation forms, amounts to a choice of law clearly established, per Article 3(1) Rome I.  There is considerable case-law on the mirror issue of choice of Court under Brussels I, also in an e-mail context (see e.g. here) however  to what degree one can simply apply the same principles to choice of law, is not clearly established in case-law.

An interesting point is that the Court (and counsel with it, one presumes) jumps straight to Article 4(3) Rome I should choice of law per Article 3(1 not be clearly established. Article 4(3) however is the escape clause (referred to by Hedigan J as ‘manifest proximity’), which must only apply in exceptional circumstance. The correct next steps following failure to establish clearly established choice of law, are firstly the assumptions made under Article 4(1)  (Article 4(1) (a) would seem most obvious here); should that fail, Article 4(2)’s characteristic performance test; and failing that, Article 4(4)s ‘proper law of the contract’ consideration. Article 4(3) only corrects Article 4(1) or (2)s more mechanical (‘objective’ as it is also called) choice of law determination. The judgment mixes Article 4(3)’s ultimate and exceptional correction, with the proper law of the contract test.

My concerns here should likewise not be overblown. Actual determination of the applicable law was not the court’s task. However now that the issue goes back to trial, correct application of Rome I must be made.

Geert.

The Oberlandesgericht of Düsseldorf has recently lodged a request for a preliminary ruling concerning the interpretation of Article 97(1) of Regulation No 207/2009 on the Community trade mark (Case C-617/15, Hummel Holding). Specifically, the request concerns the meaning of the term “establishment” as used in the Regulation.

According to Article 97(1), proceedings in respect of the actions and claims referred to in Article 96 — ie infringement actions, actions for declaration of non-infringement etc. — “shall be brought in the courts of the Member State in which the defendant is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment”.

The facts of the case may be summarised as follows. The applicant, a Danish company, sues a German company before a German court, alleging that the latter has infringed its Community trade mark. The defendant complains that German courts lack jurisdiction, relying on the circumstance that the German company is a subsidiary of a Dutch company, which is itself a subsidiary of an American holding company.

In connection with the foregoing, the Oberlandesgericht asks the ECJ to clarify “(u)nder which circumstances is a legally distinct second-tier subsidiary, with its seat in an EU Member State, of an undertaking that itself has no seat in the European Union to be considered as an ‘establishment’ of that undertaking within the meaning of Article 97(1)” of the Regulation.

La Cour de justice de l’Union européenne confirme, dans un arrêt du 23 décembre 2015, l’exigibilité de la TVA sur les billets d’avion non utilisés et non remboursables de la compagnie aérienne Air France-KLM. 

en lire plus

This post has been written by Ilaria Aquironi.

On 15 April 2016 the Law Faculty of the University of Santiago del Compostela will host an international conference on Security Rights and the European Insolvency Regulation: from Conflicts of Laws towards Harmonization. The event is part of the Security Rights and the European Insolvency Regulation Project.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Univ. Autonoma of Madrid), Juana Pulgar Esquerra (Univ. Complutense of Madrid) and Anna Veneziano (Unidroit).

With a view to promote scientific debate on the topic, a call for papers has been issued. The organizers will consider papers addressing, in particular: (a) Security Rights, Set-Off, Transactional Avoidance and Conflict-of-Laws Issues; (b) Security Rights and Insolvency Law in National Legislation, in particular taking into account the New Approach to Business Failure and Insolvency as proposed by the 2014 European Commission Recommendation; (c) Harmonization Trends at an international level.

Submissions should be sent by 11 March 2016 either to Marta Carballo Fidalgo (marta.carballo@usc.es) or to Laura Carballo Piñeiro (laura.carballo@usc.es).

Further information about the project is available here. The call for papers can be downloaded here.

Pourvoi c/ juridiction de proximité de Longjumeau, 1e et 4e classe, 24 novembre 2015

Pourvoi c/ Cour d'appel de Paris, pôle 5, chambre 9, 11 décembre 2014

Cour d'appel d'Aix en Provence, 13e chambre, 8 janvier 2016