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This post has kindly been provided by Dr. Susanne Gössl, LL.M.

“This post is meant to remind that the deadline for applications for the Young PIL Scholars’ Conference in Bonn, Germany, in April 2017 is approaching.

We accept applications of junior researchers to present a paper until 30 June 2016. The topic is “Politics and Private International Law (?)”. We envisage presentations of half an hour each in German language with subsequent discussion on the respective subject. The presented papers will be published in a conference transcript by Mohr Siebeck.

Please send an exposé of maximum 1,000 words to nachwuchs-ipr(at)institut-familienrecht.de. The exposé shall be in German language and composed anonymously that is without any reference to the authorship. The author including his/her position or other affiliation shall be identifiable from a separate file.

Additional information can be found at https://www.jura.uni-bonn.de/en/institut-fuer-deutsches-europaeisches-und-internationales-familienrecht/pil-conference/call-for-papers/

If you have any further questions, please contact Dr. Susanne Gössl, LL.M. (sgoessl(at)uni-bonn.de).”

On 24 June 2016, the University of Lincoln will host the conference titled Private and Public International Law: Strengthening Connections”.

As the final event of a two-year research project led by academics in Edinburgh and Lincoln, the conference aims at exploring the connections existing between Private and Public International Law across a wide range of interdisciplinary topics.

Subjects covered include jurisdiction, State immunity, corporate social responsibility, arbitration, and trade in medical services.

The full program of the conference is available here.

Further information can be found here.

In C-222/15 Hőszig Advocate General Szpunar opined using the sensible route, on the application of Article 23 of Regulation 44/2001 . His excursus though on Article 25 of the Brussels I Recast and the new lex fori prorogati rule is the part of his judgment which I read with most interest.

First things first: can choice of court made in underlying documentation in the context of a tender, for which Hőszig entered a winning bid, be considered valid under Article 23 of the Brussels I Regulation (now: Article 25 Brussels I Recast). Pursuant to Clause 23.1 of these ‘general conditions of purchase’, headed ‘applicable law and settlement of disputes’, ‘[t]he Order shall be governed by and interpreted in accordance with French law. The application of the United Nations Convention on the International Sale of Goods dated April 11, 1980 is excluded. Any dispute arising out of or in connection with the validity, construction, performance or termination of the Order, which the parties are unable to settle amicably shall be finally and exclusively settled by the courts of Paris, including in the case of a summary procedure, injunctions or conservatory measure.’

Hőszig tried to sue instead in what it considered to be the place of performance of the contract, per Article 5(1) (now 7(1) in the Recast). Its torpedo of the choice of court included in the general conditions of purchase, was based on recourse to Article 10(2) Rome I, which holds that the putative law of the contract does not apply to consider a party’s consent if it would not be reasonable to do so. In such case the law of the habitual residence of said party applies. Here this would lead to Hungarian law rather than French law and Hungarian law, it is argued, would not accept such incorporation of general terms and conditions. Szpunar AG however simply refers to the fact that choice of court agreements are excluded from the Rome I Regulation. Recourse to Article 10(2) is barred by that exclusion.

What needs to be considered under Article 23 Brussels I is whether parties have reached consensus, ‘clearly and precisely demonstrated’, the AG suggests. This wording is typically associated with choice of law under Rome I however I would support its use in the context of the Brussels I (and Recast) Regulation, too, for that is what the Court’s case-law on the Article amounts to. Applying Case 24/76 Colzani mutatis mutandis, and taking into account that express reference to the general terms and conditions in documents exchanged between the parties prior to the tender being awarded, the AG concludes that agreement had been reached.

Now, is the expression ‘courts of Paris’ sufficiently precise? Szpunar AG suggests it is and I would concur, albeit that the last word on  that is probably not yet said. The Advocate General refers to Capotorti AG in Case 23/78 Meeth, who had advised that a clause worded such as here, refers by implication to the system of rules of territorial jurisdiction (typically on the basis of a combination of value and subject-matter) to determine precisely at which court proceedings must be instituted. The Court itself did not at all elaborate in the eventual judgment. Szpunar AG suggests it must have taken Capororti’s suggestion for granted. Therefore (at 44 of the Opinion) it is French procedural law which governs the question of precisely which Paris court is competent.

This leaves open the question, though (which I understand is not sub judice here) whether parties can employ choice of court to trump national rules of civil procedure. What if they agree that the courts of say province X in Member State A are preferable to settle the issue, e.g. because of perceived know-how, even if national civil procedure would ordinarily assign the case to province Y? Not an issue which to my knowledge has been settled by EU case-law.

By way of sign-off, the Advocate General then reviews whether the new text, Regulation 1215/2012, has in any way altered or added to the discussion on choice of court agreements. Readers will be aware (via this blog or the Handbook or otherwise) that the new Regulation refers to the lex fori prorogati to determine the validity of the choice of court agreement:  ‘[i]f the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State’ (emphasis added by Szpunar AG).

Under Brussels I, various options were defended. Szpunar AG refers to Slynn AG having defended lex fori prorogati in Case 150/80 Elefanten Schuh,  and Szpunar AH himself suggest (at 47 in fine) lex fori additi under the Brussels I Regulation (44/2001).

The AG is most certainly correct in my view that the lex fori prorogati is not meant to cover all aspects of the validity of the agreement. In my Handbook I distinguish between the expression of consent (harmonised by Article 25), and the formation of consent (not touched upon by Brussels I and now subject to the lex fori prorogati). He then suggests that the insertion of lex fori prorogati was meant to align the Brussels I (Recast) with the 2005 Hague Convention on Choice of Court Agreements, to which the EU have now acceded. I do not recall any such reference in the travaux preparatoires of Regulation 1215/2012 – however it has been a while since I consulted them extensively and the AG presumably has.

The Court of course will be much more succinct than its AG.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9Heading 2.2.9.4. Chapter 3, Heading 3.2.2 .

 

 

Les juridictions slovènes qui ont rejeté l’appel formé par un avocat pour sa cliente en raison de sa tardiveté, alors que le fax du tribunal sur lequel la déclaration d’appel avait été adressée dans le délai était défectueux, ont violé les dispositions de la Convention relatives au droit à un procès équitable.

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Non renvoyée devant le Conseil constitutionnel

Entreprise en difficulté (loi du 26 juillet 2005)

Pourvoi c/ Cour d'appel de Paris, pôle 5, chambre 11, 6 novembre 2015

Cour d'appel de Versailles, Chambre de l'instruction, 10e chambre, section A, 24 mai 2016

Achbita
Principes du droit communautaire
Selon l’avocat général Kokott, l’interdiction de porter un foulard en entreprise peut être licite

Achbita
Principes du droit communautaire
Selon l’avocat général Kokott, l’interdiction de porter un foulard en entreprise peut être licite

On 25 May 2016, the European Commission presented its long-awaited proposal for a regulation on addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market (COM[2016] 289 final).

In the Commission’s words, “[t]he general objective of this proposal is to give customers better access to goods and services in the Single Market by preventing direct and indirect discrimination by traders artificially segmenting the market based on customers’ residence. Customers experience such differences in treatment when purchasing online, but also when travelling to other Member States to buy goods or services. Despite the implementation of the non-discrimination principle in Article 20(2) of Directive 2006/123/EC 3 (“Services Directive”), customers still face refusals to sell and different conditions, when buying goods or services across borders. This is mainly due to uncertainty over what constitutes objective criteria that justify differences in the way traders treat customers. In order to remedy this problem, traders and customers should have more clarity about the situations in which differences in treatment based on residence are not justifiable. This proposal prohibits the blocking of access to websites and other online interfaces and the rerouting of customers from one country version to another. It furthermore prohibits discrimination against customers in four specific cases of the sale of goods and services and does not allow the circumventing of such a ban on discrimination in passive sales agreements. Both consumers and businesses as end users of goods or services are affected by such practices and should therefore benefit from the rules set out in this proposal. Transactions where goods or services are purchased by a business for resale should, however, be excluded in order to allow traders to set up their distribution systems in compliance with European competition law.”

From a conflicts perspective, the question that is most interesting is how the prevention of geo-blocking and similar techniques will relate to the “directed-activity”-criterion that the European legislature has used both in the Rome I Regulation (Article 6(1)(b)) and in the Brussels I (recast) Regulation (Article 17(1)(c)). In a series of cases starting with the Alpenhof decision of 2011 (ECLI:EU:C:2010:740) the CJEU has developed a formula for determining the direction of a trader‘s activity by focusing on its subjective intention to deliver goods or services to consumers in a certain country, i.e. that it “should be ascertained whether, before the conclusion of any contract with the consumer, it is apparent from those websites and the trader’s overall activity that the trader was envisaging doing business with consumers domiciled in one or more Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with them.” If standard techniques of geo-blocking or the use of different sets of general conditions of access to their goods or services are now banned as discriminatory, how will this affect the test developed by the CJEU; in other word, is it reasonable to infer that a trader has actually been “minded to conclude a contract” and consented to being sued in the state of the consumer’s domicile if the trader has no legal option not to offer goods or services to the customer? The drafters have noticed this obvious problem and inserted a pertinent clause into Article 1 no. 5 of the proposal, which reads:

“This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012.”

In light of the highly controversial experience with similar reservations – it suffices to think of Article 1(4) of the E-Commerce Directive (2000/31/EC) or Recital 10 of the recently withdrawn CESL proposal (COM[2011]635 final) –, I have doubts whether the separation between the two areas of law will work as smoothly as the Commission seems to imagine: if a trader is legally coerced to serve consumers in a certain state, any test aimed at determining his or her “state of mind” to do so necessarily becomes moot – which, on the other hand, may be a good opportunity for the CJEU to rethink its frequently criticized approach. Considering the (non-)treatment of Recitals 24 and 25 of the Rome I Regulation in Emrek (ECLI:EU:C:2013:666), however, I am inclined not too expect much deference from the Court to interpretative guidance provided by the European legislators…

La Commission européenne a publié, le 19 mai 2016, une communication relative à la notion d’aide d’État au sens de l’article 107, § 1er, du Traité sur le fonctionnement de l’Union européenne.

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The title exaggerates. However the CJEU will have an opportunity in C-136/16 SMD v Banco Santander to hold how ‘international’ a case has to be to trigger application of the European private international law Regulations. In both Owusu and Lindner the Court suggested a flexible approach to the ‘international’ character of a case (hence to the Regulations being easily engaged). The case referred is reminiscent of Banco Santander Totta at the High Court. In that case, however, jurisdiction was not contested and analysis focused on the reach of Article 3(3) Rome I (relating to ‘purely domestic contracts’).

I have copy/pasted the questions referred below. No doubt the CJEU will not entertain them all.

Crucial questions, are: is choice of court ex the country enough for the  case to be considered ‘international’; if it is, can forum non conveniens-type considerations lead to the (national) Court seized ignoring choice of court; if it is not, what other international elements need to be present and does choice of law play a role in this assessment.

Exciting. Once private international law engaged, literally the whole world opens up to contracting parties. If it is not, one is stuck with national law.

Geert.

(Handbook of) European Private International Law Chapter 2, Heading 2.2.2.1

 

In a dispute between two national undertakings of a Member State concerning agreements, does the fact that such agreements contain clauses conferring jurisdiction to another Member State constitute a sufficient international element to give rise to the application of Regulation (EC) No 44/2001 1 and Regulation No 1215/2012 to determine international jurisdiction, or must there be other international elements?

May application of the jurisdiction agreement be waived where the choice of the courts of a Member State other than that of the nationality of the parties causes serious inconvenience for one of those parties and the other party has no good reason to justify such choice?

In the event that it is held that other international elements are necessary in addition to the jurisdiction agreement:

Do the swap agreements concluded between [Sociedade Metropolitana de Desenvolvimento, S.A.] (‘SMD’) and Banco Santander Totta have sufficient international elements to give rise to the application of Regulation (EC) No 44/2001 and Regulation (EU) No 1215/2012 in order to determine which courts have international jurisdiction to settle disputes relating to them where:

(a)    Those entities are nationals of a Member State, Portugal, that concluded two swap agreements in Portugal consisting of an ISDA Master Agreement and two confirmations, negotiated by the Autonomous Region of Madeira on behalf of SMD;

(b)    In that negotiation, the Autonomous Region of Madeira, assisted by Banco BPI, S.A., and by a law firm, invited more than one international bank to submit proposals, one of those invited banks being JP Morgan;

(c)    Banco Santander Totta is wholly owned by Banco Santander, with domicile in Spain;

(d)    Banco Santander Totta acted in its capacity as an international bank with subsidiaries in various Member States and under the single brand Santander;

(e)    Banco Santander Totta was considered in the ISDA Master Agreement as a Multibranch Party, able to make and receive payments in any transaction through its subsidiaries in London or Luxemburg;

(f)    Under the terms of the ISDA Master Agreement concluded, the parties may, in certain cases, transfer their rights and obligations to other representative offices or subsidiaries;

(g)    The parties to the swap agreements specified that English law was applicable and concluded jurisdiction agreements that confer exclusive jurisdiction on the English courts;

(h)    The agreements were drafted in English and the terminology and concepts used are Anglo-Saxon;

(i)    The swap agreements were concluded with the objective of covering the risk of variation in the interest rates of two financing agreements, both drafted in English and concluded with foreign entities (one based in the Netherlands and the other in Italy), and in one of the financing agreements it is provided that borrowers’ payments must be made to the HSBC Bank Plc account in London, on dates defined by reference to the London time zone and subject to English law and the English courts;

(j)    Banco Santander Totta acted as an intermediary of the international market, having concluded hedging agreements in the context of the international market?

 

Many thanks to Dr Eva Lein, Herbert Smith Freehills Senior Research Fellow in Private International Law, British Institute of International and Comparative Law, who has shared this information and provided the link below. 

Are there general principles of European conflict of laws? Looking at the myriad of EU regulations in the area, one may well doubt it. And this explains why a new book edited by Stefan Leible is so topical. It addresses themes and concepts that reoccur across different conflicts regulations, but so far have not yet come under detailed scrutiny as to whether they follow a coherent approach. Among them are the usual suspects such as preliminary questions, characterisation, renvoi, party autonomy, the determination of habitual residence and the application of overriding mandatory rules, to name but a few. They are complemented by broader topics such as the role of recognition as a substitute for conflict of laws and economic efficiency in European private international law. The idea of treating those themes in one volume chimes with Leible’s idea of a ‚Rome 0’ Regulation, which he has expounded earlier together with Michael Müller (14 (2012/13) Yearbook of Private International Law 137). The book is a logical follow-up on this proposal. It analyses issue by issue whether there is indeed enough material that deserves to be treated in a ‘General Part’ of European private international law. The authors of the book are well-known experts in the field, such as Peter Mankowski, Heinz-Peter Mansel and Jan von Hein. The only criticism one may level is that they are almost exclusively from Germany. It would be interesting to see how lawyers from other countries react to the – quite Germanic – idea of an ‘Allgemeiner Teil’ for the European conflict of laws.

Find the table of contents here.

Virginia Pardo Iranzo, Competencia, Reconocimiento y Ejecución de Resoluciones Extranjeras en la Unión Europea, Tirant lo Blanch, 2016, pp. 351, ISBN: 9788491193005, Euro 34,90.

[Dal sito dell’editore] Hace apenas un año entró en vigor el Reglamento 1215/2012, sobre competencia, reconocimiento y ejecución de resoluciones extranjeras en la Unión Europea. El mismo, además de fijar los criterios para la determinación de la competencia judicial internacional tiene la virtud de eliminar el exequatur como trámite previo a la ejecución de títulos extranjeros. El presente libro analiza el citado reglamento y lo hace desde una perspectiva práctica, dando respuestas a las dudas interpretativas que su articulado está planteando. Junto con este instrumento, de carácter general, se analizan entre otros la reciente orden europea de retención de cuentas (Reglamento 655/2014) o el problemático Reglamento 4/2009, relativo a la obligación de alimentos, cuyo ámbito de aplicación es específico.

Maggiori informazioni a questo indirizzo.