Agrégateur de flux

On 24 April 2024, the European Parliament adopted a legislative resolution on the proposal for a directive on corporate sustainability due diligence, in light of the positive outcome of the negotiations with the Council (see this post on the deal struck in March 2024 at Council level). The adoption of the resolution marks the end […]

Nobumichi TERAMURA (Assistant Professor, Universiti Brunei Darussalam; Affiliate, Centre for Asian and Pacific Law in the University of Sydney), Luke Nottage (Professor of Comparative and Transnational Business Law, Sydney Law School) and Bruno Jetin (Associate Professor of Economics, Universiti Brunei Darussalam) published an edited volume entitled “Corruption and Illegality in Asian Investment Arbitration” from Springer on 20 April 2024. The book is an open access title, so it is freely available to any states and organisations, including less well-resourced institutions in transitioning economies. Corrupt behaviour by foreign investors, like bribery to local government officials, faces wide condemnation in any society. Nevertheless, there remains a paucity of research appraising the consequences of corruption and illegality affecting international investment in Asia, especially investment arbitration involving East and South Asian jurisdictions. This book intends to fill the gap from an interdisciplinary (legal-economic) perspective.

 

The volume’s description reads as follows:

This open access book explores Asian approaches towards investment arbitration—a transnational procedure to resolve disputes between a foreign investor and a host state—setting it in the wider political economy and within domestic law contexts. It considers the extent to which significant states in Asia are, or could become, “rule makers” rather than “rule takers” regarding corruption and serious illegality in investor-state arbitration. Corruption and illegality in international investment are widely condemned in any society, but there remains a lack of consensus on the consequences, especially in investment arbitration. A core issue addressed is whether a foreign investor violating a host state’s law should be awarded protection of its investment, as per its contract with the host state and/or the applicable investment or trade agreement between the home state and the host state. Some suggest such protection would be unnecessary as the investor committed a crime in the host state, while others attempt to establish an equilibrium between the investor and the host state. Others claim to protect investment, invoking the sanctity of promises made. The book starts with a deep dive into economic and legal issues in corruption and investment arbitration and then explores the situation and issues in major countries in the region in detail. It is a useful reference point for lawyers, economists, investors, and government officials who are seeking comprehensive and up-to-date information on anti-bribery rules in Asian investment treaties. It is of particular interest to students and researchers in economics, finance, and law, who are undertaking new research relating to the multifaceted impacts of corruption.

 

The book’s table of contents is as follows:

Chapter 1 – “Bribery and Other Serious Investor Misconduct in Asian International Arbitration” by Nobumichi Teramura, Luke Nottage and Bruno Jetin;

Chapter 2 – “Does Corruption Hinder Foreign Direct Investment and Growth in Asia and Beyond? The Grabbing Versus the Helping Hand Revisited” by Ahmed M Khalid (Professor of Economics, Universiti Brunei Darussalam);

Chapter 3 – “The Effect of Corruption on Foreign Direct Investment at the Regional Level: A Positive or Negative Relationship?” By Bruno Jetin, Jamel Saadaoui (Senior Lecturer of Economics, The University of Strasbourg), Haingo Ratiarison (The University of Strasbourg);

Chapter 4 – “Anti-Corruption Laws and Investment Treaty Arbitration: An Asian Perspective” by Anselmo Reyes (International Judge, Singapore International Commercial Court) and Till Haechler (Associate, Lenz & Staehelin);

Chapter 5 – “Multi-Tiered International Anti-Corruption Cooperation in Asia: A Review of Treaties and Prospects” by Yueming Yan (Assistant Professor, Chinese University of Hong Kong) and Tianyu Liu (ADR Case Manager, Hong Kong International Arbitration Centre);

Chapter 6 – “Corruption in International Investment Arbitration” by Michael Hwang SC (Arbitrator, Michael Hwang Chambers) and Aloysius Chang (Michael Hwang Chambers);

Chapter 7 – “Rebalancing Asymmetries Between Host States and Investors in Asian Investor–State Dispute Settlement: An Exception for Systemic Corruption” by Martin Jarrett (Senior Research Fellow, Max Planck Institute for Comparative Public Law and International Law);

Chapter 8 – “Foreign Investment, Investment Treaties and Corruption in China and Hong Kong” by Vivienne Bath (Professor of Chinese Law, Sydney Law School) and Tianqi Gu (Sydney Law School);

Chapter 9 – “Corruption and Investment Treaty Arbitration in India” by Prabhash Ranjan (Professor and Vice Dean, Jindal Global Law School);

Chapter 10 – “Corruption and Illegality in Asian Investment Disputes: Indonesia” by Simon Butt (Professor of Indonesian Law, Sydney Law School), Antony Crockett (Partner, Herbert Smith Freehills Hong Kong) and Tim Lindsey (Malcolm Smith Chair of Asian Law and Redmond Barry Distinguished Professor, Melbourne Law School);

Chapter 11 – “Foreign Investment, Treaties, Arbitration and Corruption: Comparing Japan” by Luke Nottage and Nobumichi Teramura;

Chapter 12 – “Corruption and Investment Arbitration in the Lao People’s Democratic Republic: Corruptio Incognito” by Romesh Weeramantry (Special Counsel, Clifford Chance Perth) and Uma Sharma (Associate, Jones Day Singapore);

Chapter 13 – “Corruption and Illegality in Asian Investment Arbitration: The Philippines” by Thomas Elliot A Mondez (Faculty Member, De La Salle University, Philippines) and Jocelyn P Cruz (Associate Professor, De La Salle University, Philippines);

Chapter 14 – “Investment Arbitration, Corruption and Illegality: South Korea” by Joongi Kim (Professor Yonsei Law School);

Chapter 15 – “Foreign Investment, Corruption, Investment Treaties and Arbitration in Thailand” by Sirilaksana Khoman (Professor, Thammasat University, Thailand), Luke Nottage and Sakda Thanitcul (Professor, Chulalongkorn University); and

Chapter 16 – “Towards a More Harmonised Asian Approach to Corruption and Illegality in Investment Arbitration” by Nobumichi Teramura, Luke Nottage and Bruno Jetin.

On 14 and 15 February 2025, the 5th Conference for Young Researchers in PIL will take place at Heidelberg University. It will be dedicated to the topic of ‘Digital transformation and Private International Law. Local connections in boundless spaces’ and feature a keynote speech by Christiane Wendehorst (University of Vienna).

After statute theory, Savignyan PIL and Europeanisation, digitalisation has the potential to initiate a fourth evolutionary stage in the history of conflict of laws, which is characterised by decentralisation and delocalisation. We may therefore be on the threshold of a PIL 4.0. We would like to discuss how the conflict-of-laws problems arising from the boundless spaces of digitalisation can be solved in European and
autonomous German, Austrian and Swiss private international law. At the same time, we would like to look at the possibilities for legal changes at national, European and international level. In particular, we welcome contributions on comparative aspects of conflict of laws and international procedural law.

More information, including on possible topics and formal requirements can be found in the German and English Call for Papers.
All submissions need to be sent to nachwuchstagung@ipr.uni-heidelberg.de by 23 September 2024.

Further information can also be found on the conference website.

The IBA Litigation Committee is pleased to present this new guide to cross-border enforcement of judgments against states.

Authors from almost fifty jurisdictions have taken part in this project. For each jurisdiction, our aim is to outline the key requirements for enforcing a foreign judgment against a state entity. The guide covers the basic criteria for enforcement of a foreign judgment, the application of sovereign immunity, and due process standards and exceptions (service, representation, etc). It also considers how these principles apply where states are involved in armed conflict, which is sadly relevant to a number of litigants around the world currently seeking to recover for wartime damages against aggressor states.

More information can be found here.

Ioannis Revolidis, Lecturer at the L-Università ta’ Malta (UM), has published an article titled Collective Redress in Environmental Matters – A Private International Law Perspective Through the Lens of the Dieselgate Scandal, which can be downloaded here. The Dieselgate emissions scandal, which surfaced in 2015, implicated several European car manufacturers found to have installed software […]

Application of Singapore’s new rules on service out of jurisdiction: Three Arrows Capital and NW Corp

The Rules of Court 2021 (‘ROC 2021’) entered into force on 1 April 2022. Among other things, ROC 2021 reformed the rules on service out of jurisdiction (previously discussed here). Order 8 rule 1 provides:

‘(1) An originating process or other court document may be served out of Singapore with the Court’s approval if it can be shown that the Court has the jurisdiction or is the appropriate court to hear the action.

…

(3) The Court’s approval is not required if service out of Singapore is allowed under a contract between the parties.

…’

A handful of decisions on the application of Order 8 rule 1 have since been delivered; two are discussed in this post. One of them considers the ‘appropriate court’ ground for service out of jurisdiction provided in Order 8 rule 1(1) and touches on the location of cryptoassets; the other is on Order 8 rule 1(3).

Service out under the ‘appropriate court’ ground

Cheong Jun Yoong v Three Arrows Capital[1] involved service out of jurisdiction pursuant to the ‘appropriate court’ ground in Order 8 rule 1(1). As detailed in the accompanying Supreme Court Practice Directions (‘SCPD’), a claimant making an application under this ground has to establish the usual common law requirements that:

‘(a) there is a good arguable case that there is a sufficient nexus to Singapore;

(b) Singapore is forum conveniens; and

(c) there is a serious issue to be tried on the merits of the claim.’[2]

For step (a), the previous Order 11 gateways have been transcribed as a non-exhaustive list of factors.[3] This objective of this reform was to render it ‘unnecessary for a claimant to scrutinise the long list of permissible cases set out in the existing Rules in the hope of fitting into one or more descriptions.’[4] As Three Arrows illustrates though, old habits die hard and the limits of the ‘non-exhaustive’ nature of the jurisdictional gateways remains to be tested by litigants. The wide-reaching effect of a previous Court of Appeal decision on the interpretation of gateway (n) which covers a claim brought under statutes dealing with serious crimes such as corruption and dug trafficking and ‘any other written law’ is also yet to be grasped by litigants.[5]

In Three Arrows, the first defendant (‘defendant’) was a British Virgin Islands incorporated company (BVI) which was an investment fund trading and dealing in cryptocurrency. It was under liquidation proceedings in the BVI; its two liquidators were the second and third defendants in the Singapore proceedings. The BVI liquidation proceedings were recognised as a ‘foreign main proceeding’ in Singapore pursuant to the UNCITRAL Model Law on Cross-Border Insolvency as enacted under Singapore law.[6] The claimant managed what he alleged was an independent fund called the ‘DC Fund’ which used the infrastructure and platform of the defendant and its related entities. After the defendant decided to relocate its operations to Dubai, the claimant incorporated Singapore companies to take over the operations and assets of the DC Fund. Not all of the assets had been transferred to these new companies at the time the defendant went into liquidation. The claimant’s case was that the DC Fund assets remaining with the defendant were held on trust by the defendant for the claimant and other investors in the DC Fund and were not subject to the BVI liquidation proceedings. The Liquidators in turn sought orders from the BVI court that those assets were owned by the defendant and subject to the BVI Liquidation proceedings.

The claimant relied on three gateways for service out of jurisdiction: gateway (a) where relief is sought against a defendant who is, inter alia, ordinarily resident or carrying on business in Singapore; gateway (i) where the claim is made to assert, declare or determine proprietary rights in or over movable property situated in Singapore; and gateway (p) where the claim is founded on a cause of action arising in Singapore.

On gateway (a), the defendant was originally based in Singapore before shifting operations to Dubai a few months before the commencement of the BVI Liquidation proceedings. The claimant attempted to argue that residence for the purposes of gateway (a) had to be assessed at the time when the company was ‘alive and flourishing’.[7] This was rightly rejected by the court, which observed that satisfaction of the gateway depended on the situation which existed at the time application for service out of jurisdiction was filed or heard. On gateway (p), it was held that there was a good arguable case that the cause of action arose in Singapore because the trusts arose pursuant to the independent fund arrangement between the parties which was negotiated and concluded in Singapore. All material events pursuant to the arrangement took place when the defendant was still based in Singapore and the defendant’s investment manager was a Singapore company.

It is perhaps the court’s analysis of gateway (i) which is of particular interest as it deals with a nascent area of law. Are cryptocurrencies ‘property’ and if so, where are they located?

The court confirmed earlier Singapore decisions that cryptocurrencies are property.[8] It held:

‘Given the fact that a cryptoasset has no physical presence and exists as a record in a network of computers …. It best manifests itself through the exercise of control over it.’[9]

Between a choice of the identifying the situs as the domicile or residence of the person who controls the private key linked to the cryptoasset, the court preferred residence as being the ‘better indicator of where the control is being exercised.’[10] Seemingly drawing from the position in relation to debts, one of the reasons for preferring residence was that this was where the controller can be sued.[11] The court was also concerned that there may be difficulties in identifying domicile.[12] On the facts, the controller was one of the Singapore incorporated companies set up by the claimant and the claimant was in turn the sole shareholder of that company. Both the company and claimant were resident in Singapore and thus gateway (p) was satisfied.

On the other requirements for service out with permission of the court under the ‘appropriate court’ ground, the court was persuaded that there was a serious issue to be tried on the merits and that connecting factors indicated Singapore was forum conveniens. The defendants’ application to set aside the order granting permission to serve out of jurisdiction and to set aside service of process on them thus failed. The Appellate Division of the Singapore High Court has recently refused permission to appeal against the first instance decision.[13]

It bears pointing out that the same issue of ownership of the assets of the DC Funds was before the BVI court in the insolvency proceedings. The first instance court was unmoved by the existence of parallel proceedings in the BVI, as the BVI proceedings were at a very early stage and hence were not a significant factor in the analysis on forum conveniens.[14] However, as mentioned above, the BVI insolvency proceedings had been recognised as a ‘foreign main proceeding’ by the Singapore court. Under Article 21 of the UNCITRAL Model Law on Cross-Border Insolvency, relief granted pursuant to such recognition can include staying actions concerning the ‘debtor’s property’.[15] While the very issue in the Singapore action is whether the assets of the DC Funds are indeed the ‘debtor’s property’,[16] staying the action will clearly be in line with the kinds of relief envisaged under Article 21. Under the Model Law, the issue of forum conveniens should take a back seat as the emphasis is on cross-border cooperation to achieve an optimal result for all parties involved in an international insolvency.

Service out pursuant to a contractual agreement

In NW Corp Pte Ltd v HK Petroleum Enterprises Cooperation Ltd,[17] the contract between the claimant and defendant, who were Singapore and Hong Kong-incorporated companies respectively, contained this clause:

‘This Agreement shall be governed by and construed in accordance with the English law [sic]. Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by Singapore court [sic] without recourse to arbitration and to service of process by registered mail …’

The claimant served process on the defendant in Hong Kong by way of registered post to the defendant’s last known address and purportedly pursuant to Order 8 rule 1(3) ROC 2021. The issue whether the service was validly effected arose when the defendant sought to set aside the default judgment that was subsequently approved by the Singapore High Court Registry. The defendant argued that Order 8 rule 1(3) required that the agreement name not only a method of service but also specify a location out of Singapore where service could take place. The Assistant Registrar (‘AR’) disagreed, holding that this would be too narrow an interpretation of Order 8 rule 1(3). Pointing to the more relaxed modes of service permitted under the ROC 2021[18] in comparison with the predecessor ROC 2014,[19] the AR stated that there was no suggestion in Order 8 rule 1(3) or in the definitions provided elsewhere which suggested that both method and place of service had to be specified in a jurisdiction clause in order for a claimant to avail itself of service out without permission of the court. The AR was of the view that an agreement could come within Order 8 rule 1(3) so long as it provided for service of originating process of the Singapore courts on a foreign defendant.

The reasoning was as follows. First, Order 8 rule 1(3) was a deviation from the orthodox principles that the Singapore court’s jurisdiction was territorial in nature and service on a defendant abroad ordinarily required permission of court. If a foreign defendant agreed that jurisdiction of the court can be founded over them by way of service of originating process, that service necessarily included service out of Singapore. Thus, to come within Order 8 rule1(3), the agreement merely required the foreign defendant to consent to the jurisdiction of the court to be founded over them by way of service of originating process. Secondly, the phrase used in Order 8 rule 1(3) was service ‘out’ of Singapore, rather than service ‘outside’ Singapore. Only the latter phrase, in the AR’s view, connoted that service of process at a location other than Singapore was required.

On the first rationale, the Singapore court’s in personam jurisdiction over a defendant is founded on service of process.[20] This is the case ordinarily, with or without the defendant’s agreement. If the defendant expressly agrees that this can be done, this could be used to counter a subsequent challenge by the defendant to the existence of jurisdiction of the Singapore court, but it is difficult to see how, without more, an agreement to accept service of Singapore process takes the defendant outside the orthodox territorial framework of the Singapore court’s jurisdiction. Surely only the defendant’s agreement to service of Singapore process abroad, rather than merely agreement to service of Singapore process, would provide justification for the deviation from orthodox principles? The AR seemed to be suggesting that it is implicit that a foreign defendant, by agreeing to accept service of Singapore process, also consents to service of process out of Singapore, but the second rationale proffered renders any implicit agreement moot as, on the AR’s view, Order 8 rule 1(3) does not require the defendant to agree to accept service abroad. However, the legal difference between ‘out’ and ‘outside’ is elusive, as ‘service out of jurisdiction’ is uncontroversially understood to refer to service on a defendant who is abroad and thus not within the territorial jurisdiction of the court.

A parallel provision to Order 8 rule 1(3) can be found in the Singapore International Commercial Court Rules 2021 (‘SICC Rules’). Permission of the SICC is likewise not required where the defendant is party to a ‘written jurisdiction agreement’ for the SICC or ‘service out of Singapore is allowed under an agreement between the parties.’[21] Order 8 rule 1(3) is missing the first option. However, it would be unlikely for the parties to have agreed on ‘service out of Singapore’ without first having agreed on a Singapore choice of court agreement. Despite this slight oddity, the intention of the drafters is clearly to liberalise the service out(side) of jurisdiction rules. Whether the intention was to liberalise it as much as was held in NW Corp is, however, debatable.

[1] [2024] SGHC 21.

[2] SCPD 2021 para 63(2).

[3] SCPD 2021 para 63(3).

[4] Civil Justice Commission Report, Chapter 6, p 16 (29 December 2017).

[5] Li Shengwu v Attorney-General [2019] 1 SLR 1081 (CA). The point is explained here.

[6] Insolvency, Restructuring and Dissolution Act 2018 s 252 and Third Schedule.

[7] [2024] SGHC 21 [46].

[8] CLM v CLN [2022] 5 SLR 273; Bybit Fintech Ltd v Ho Kai Xin [2023] 5 SLR 1748.

[9] [2024] SGHC 21 [60]

[10] [2024] SGHC 21 [63].

[11] [2024] SGHC 21 [63].

[12] [2024] SGHC 21 [63].

[13] Three Arrows Capital Ltd v Cheong Jun Yoong [2024] SGHC(A) 10.

[14] [2024] SGHC 21 [82].

[15] Insolvency, Restructuring and Dissolution Act 2018, Third Schedule, Art 21(1)(a).

[16] The respondent was clearly the legal owner; the question was whether the assets belonged beneficially to the applicant.

[17] [2023] SGHCR 22.

[18] ROC 2021 O7 r2(1)(d).

[19] ROC 2014 O10 r3.

[20] Supreme Court of Judicature Act 1969 s16(1)(a). The court also has jurisdiction if the defendant had submitted to the jurisdiction of the court (s16(1)(b)), but submission is normally used to counter a jurisdictional objection by the defendant; in the ordinary course of things, service of process must first take place.

[21] SICC Rules 2021 O5 r6(2).

A further effort in tackling the blog queue. Those with an interest in the application of Rome II to purely economic damage will be interested in Uzdaroji Akcine Bendrove “Palink” et al v CNH Industrial NV et al ECLI:NL:RBAMS:2023:7093 and most probably will have seen my Tweet on the case at the time (January 2024).

The Dutch Supreme Court (the referring court oddly calling claimants “claimanten” in Dutch; my Dutch colleagues will correct me however surely this is a novel Anglicism and one which must be firmly stopped and pronto; what’s wrong with *eisers*?) has been seized with a preliminary reference on the application of Article 6 Rome II.

That Article identifies the applicable law for infringement of competition law and acts restricting free competition and it is a calamitous statutory provision.

Article 6. Unfair competition and acts restricting free competition

1.   The law applicable to a non-contractual obligation arising out of an act of unfair competition shall be the law of the country where competitive relations or the collective interests of consumers are, or are likely to be, affected

2.   Where an act of unfair competition affects exclusively the interests of a specific competitor, Article 4 shall apply

3. | (a) | The law applicable to a non-contractual obligation arising out of a restriction of competition shall be the law of the country where the market is, or is likely to be, affected. | (b) | When the market is, or is likely to be, affected in more than one country, the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised, provided that the market in that Member State is amongst those directly and substantially affected by the restriction of competition out of which the non-contractual obligation on which the claim is based arises; where the claimant sues, in accordance with the applicable rules on jurisdiction, more than one defendant in that court, he or she can only choose to base his or her claim on the law of that court if the restriction of competition on which the claim against each of these defendants relies directly and substantially affects also the market in the Member State of that court.

4.   The law applicable under this Article may not be derogated from by an agreement pursuant to Article 14.

A first question referred relates to the qualification of infringement of competition law, Article 101 TFEU (prohibition of cartels) in particular  as a singular, continuous event or rather a chain of new events: if it is a simple and continuous unlawful conduct it would lead to separate claims for damages at the time the damage is suffered; the alternative is that it results in a single claim for damages per victim, consisting of various damage items.

The conflicts relevance also kicks in ratione temporis viz the singular /continuous qualification: what is the decisive point in time for determining the applicable conflict rule?

Furthermore, the first instance court has referred on A6(3)(a) Rome II. Should the determination of the applicable law be based on the country where the first purchaser of the truck to which the claim relates is established (also in the case of transport services)? Or must this be connected to the place where the truck or transport service was purchased? Or does another criterion apply?

If it is held that competitive conditions have been affected at least throughout the internal market, how can A 6(3) b Rome II be applied (choice of law by claimant for the lex fori: “the person seeking compensation for damage who sues in the court of the domicile of the defendant, may instead choose to base his or her claim on the law of the court seised”)?

With regard to Article 6(3)(b) Rome II, the court asks the Supreme Court whether a choice of law for the lex fori can be made if the following requirements are met: that the market is or is likely to be affected in more than one country; that one of the defendants be brought before the court of his place of residence; that the market in the Member State of that court is directly and significantly affected by the restriction of competition.

Or does the (additional) requirement that the consequences for the victim must have occurred in different countries, including (in this case) the Netherlands, also apply to the application of Article 6(3)(b) of Rome II?

This will be an interesting SC judgment on one of the most dense Rome II Articles. Will the SC at its turn refer to the CJEU?

Geert.

EU Private International Law, 4th ed. 2024, 4.53 ff.

Truck cartel, applicable law
First instance Amsterdam refers to Dutch Supreme Court for clarification of A6 Rome II: applicable law for competition law infringement

UZDAROJI AKCINE BENDROVE "PALINK" et al v CNH INDUSTRIAL N.V., et al https://t.co/ezzYWT1SAC

— Geert Van Calster (@GAVClaw) January 17, 2024

Schrems (Communication de données au grand public)
Principes du droit communautaire
Avocat général Rantos : l’expression publique de son orientation sexuelle par l’utilisateur d’un réseau social rend cette donnée « manifestement publique », sans pour autant autoriser son traitement à des fins de publicité personnalisée

A new handbook titled European Judicial Cooperation in Cross-Border Litigation, edited by Paolo Biavati and Michele Angelo Lupoi, has just been published by Bologna University Press. The blurb reads as follows: There is an increasing amount of European legislation in procedural matters, with which legal practitioners from EU member States (and beyond) must deal on […]

Stadt Duisburg
Citoyenneté européenne
Le droit de l’Union ne s’oppose pas, par principe, à la perte automatique de la nationalité allemande en cas de recouvrement de la nationalité turque

NW (Informations classifiées)
Espace de liberté, sécurité et justice
Citoyenneté de l’Union : le retrait, sur la base d’informations classifiées, du titre de séjour d’un ressortissant d’un pays tiers élevant un enfant citoyen de l’Union doit pouvoir faire l’objet d’un recours effectif

For a workshop on collective actions on ESG toics that will take place in Amsterdam on 21 and 22 November 2024 a call for paper has been posted, deadline 1 July 2024.

As a follow-up from the 4th International Class Action Conference in Amsterdam, 30 June – 1 July 2022, the University of Amsterdam, Tilburg University and Haifa University are jointly organizing a workshop on large scale collective actions on Environmental, Social and Governance topics. The workshop is intended to act as a forum for the sharing of experiences and knowledge. In an increasingly interconnected world, such opportunities for international scholars and practitioners to come together and discuss notes and views on the development of collective redress in their jurisdictions, are more relevant than ever. We choose to organize this as a workshop centered around academic papers in order to both give serious substance to the forum and to convert the exchange of knowledge into lasting contributions in the shape of publications in a special issue journal.

More information is available here: Call for papers for workshop on ESG collective action in Amsterdam – 21 and 22 Nov 2024

A quick note on the first instance court in Amsterdam in B&C v Atlas Flexibles e.a. ECLI:NL:RBAMS:2023:4982. Relevant parties are bound by an SPA (share purchase agreement) with binding arbitration clause (pointing to Germany). B&C are pondering the viability of a pauliana (set-aside). To assist them with the viability decision they would like to depose a Netherlands-domiciled director of one of the corporations involved.

[4.3] the court holds that under the New York Convention (Article 2) the recognition of an arbitration agreement only extends to the subject-matter capable of settlement by arbitration. There is no indication that the arbitral panel could be asked to order deposition of a fact witness in The Netherlands hence it is held that the NY Convention is not engaged.

As for Brussels Ia, [4.4] the court holds that A35 is not engaged, either: fact witnesses depositions, it holds, are not a ‘provisional or protective measure’, merely a preparatory one with a view to pondering future litigation.

Geert.

EU Private International Law, 4th ed. 2024, 2.576 ff.

.

Court Amsterdam: A35 Brussels Ia does not apply to, and New York Convention does not restrict, witness questioning subject to Dutch CPR civil procedure rules, in claim which in substance will be dealt with in an #arbitration proceedinghttps://t.co/O78b77BIXi

— Geert Van Calster (@GAVClaw) August 29, 2023

I have been absolutely swamped in recent months and as a result, the blog has suffered. In coming up for some air, I decided to first tackle some of the oldest drafts in my blog queue. First up is CJEU C-832/21 Beverage City & Lifestyle GmbH et al v Advance Magazine Publishers Inc held let’s say a little while ago (September 2023; did I flag I have been busy?) which in essence clarifies CJEU Nintendo.

The EU Trademark Regulation 2017/1001 has lex specialis conflict of laws provisions viz Brussels Ia. However it does not specify an anchor mechanism and therefore [26] Article 8(1) Brussels Ia  applies in full.

I discussed Richard de la Tour AG’s Opinion here. As I summarised when I tweeted the judgment, the CJEU has essentially followed the AG’s suggestion of a flexible interpretation of the A8(1) conditions:

with respect to the the A8(1) (compare CJEU The Tatry) condition relating to the existence of the “same situation of law”, this [31] “appears to be satisfied” (final check is for the national court) where the claim concerns the protection of claimant’s exclusive right over EU trade marks, which is based on EU trademark law identical to all EU Member States. [29] Any difference in the legal bases under national law of claims relating to that protection is irrelevant to the assessment of the risk of conflicting decisions.

further, with respect to the condition of “same situation of fact”,  [37]

“the existence of a connection between the claims concerned relates primarily to the relationship between all the acts of infringement committed rather than to the organisational or capital connections between the companies concerned. Similarly, in order to establish the existence of the same situation of fact, particular attention should also be paid to the nature of the contractual relationship between the customer and the supplier.”

[38] Anchor defendant Beverage City & Lifestyle was connected to Beverage City Polska by an agreement for the exclusive distribution of the energy drink ‘Diamant Vogue’ in Germany.

“That exclusive contractual relationship between those two companies may make it more foreseeable that the acts of infringement of which they are accused may be regarded as concerning the same situation of fact, capable of resulting in a single court having jurisdiction to rule on the claims brought against all of the actors who committed those acts.”

The CJEU throughout the judgment emphasises the sound administration of justice objective supporting the joinder mechanism.

Geert.

EU Private International Law, 4th ed. 2023, 2.505 ff, 2.518.

#CJEU this morning in C‑832/21 Beverage City#Trademark infringement, 'anchor' jurisdiction, A8(1) BIa
Confirming the flexible approach advised by Richard de la Tour AG (discussed here https://t.co/ODrh3F4pKB)https://t.co/nOc8C25mF0 pic.twitter.com/2bndwSS95Z

— Geert Van Calster (@GAVClaw) September 7, 2023

Kneipp / EUIPO - Patou (Joyful by nature)
Propriété intellectuelle et industrielle
Marque de l’Union européenne : le Tribunal confirme que la renommée d’une marque s’acquiert et se perd, en général, progressivement

Naass et Sea-Watch / Frontex
Droit institutionnel
Le Tribunal annule partiellement la décision de Frontex refusant une demande d’accès aux documents de la part de Sea-Watch

Sometimes You Lose, Sometimes You Win I have reported about Austrian customers’ attempts to recover their losses from Maltese online casinos and the resulting conflict of jurisdiction previously. Yet sometimes the customer actually wins! And – surprise, surprise – the online casinos refuse to pay out by invoking the prohibition of gambling under the Austrian […]

Le 9 avril 2024, la Cour européenne des droits de l’homme s’est prononcée dans trois affaires qui posaient, pour la première fois, la question de la protection des droits de l’homme dans le cadre des atteintes à l’environnement dues au réchauffement climatique. Les solutions adoptées par les juges de Strasbourg sont originales et permettent de dessiner les contours du raisonnement européen sur l’une des plus préoccupantes questions de notre époque.

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A new book titled Brussels II-ter – Cross-border Marriage Dissolution, Parental Responsibility Disputes and Child Abduction in the EU has been published by Larcer-Intersentia. The authors of the book are Nigel Lowe (Cardiff University), Constanza Honorati (Milano-Bicocca University) and Michael Hellner (Stockholm University). The description of the book at the publisher’s website reads as follows. […]

On Tuesday 23 April the Pax Moot Court Competition will kick off in Ljubljana. The oral rounds between 29 teams from all over Europe and beyond (including Asia and Australia) will start on Wednesday 24th. Teams will be litigating against each other for two days in front of private international law experts from academia and practice. The semi-finals and finals are scheduled for Friday 26th.

Also on Friday 26 April, there will be a hybrid conference on Dispute Resolution in Private International Law, co-organised by the Pax team and the University of Aberdeen’s Centre for Private International Law. This will include of three panels: Commercial Arbitration, Business and Human Rights, and Decolonial Perspectives on private international law. All welcome to join!

Please see the programme and register.