Droit international général

Ghent University (Belgium) and its Center for the Future of Dispute Resolution organise an online conference titled Transnational Dispute Resolution in an Increasingly Digitalized World, to be held on 24 March 2022.

A call for abstracts is open through 1 December 2021.

The concept is as follows:

The increased digitalization in the field dispute resolution, which received a boost from the Covid-19 pandemic, raises a number of important questions in terms of privacy, cybersecurity, data protection and artificial intelligence, going from rather practical concerns (how to protect the information exchanged, how to organize the taking of evidence, how to comply with the various obligations, etc.) to more fundamental inquiries (does it scare litigants off, does it foster or rather compromise efficiency, etc.).

The goal of the conference is to bring together academics, practitioners and policy makers with expertise in the field of dispute resolution (arbitration, transnational litigation, mediation, other ADR mechanisms) and technology law. That is why we are particularly (but not exclusively) interested in contributions that focus on :

• Obligations of the actors of justice
• Challenges and opportunities of (partial) online proceedings
• Evidentiary issues related to cybersecurity and data protection
• The (ab)use of these instruments as a dispute resolution strategy

and discuss these forward-looking dispute resolution topics in light of the various privacy, data protection, cybersecurity and AI regulations.

See here for more information.

Aldricus – Pernahkah Anda mendengar tentang scoliosis? Sebelum membahas tentang penanganan scoliosis terbaik, ada bagusnya jika Anda mengenal lebih dulu apa itu scoliosis. Scoliosis merupakan salah satu gangguan pada tulang belakang. Rangka tubuh atau tulang belakang mengalami kelengkungan.

Hal tersebut kerap dikenal dengan scoliosis. Gangguan ini bisa menyerang anak-anak maupun orang dewasa. Kondisi scoliosis parah biasanya memiliki kurva kelengkungan hingga 40 derajat. Ada banyak sekali sebenarnya penanganan yang bisa dilakukan untuk scoliosis.

Penanganan Scoliosis

Seperti yang sekilas dijelaskan di atas, ada beberapa macam cara untuk menangani scoliosis. Berbagai macam cara ini bisa diaplikasikan sesuai dengan tingkat scoliosis yang dialami. Berikut di bawah ini beberapa cara penanganannya:

1. Observasi

 Hal pertama yang harus dilakukan adalah observasi atau proses melihat dan menunggu. Biasanya hal ini dilakukan untuk anak-anak yang terserang scoliosis. Tahap ini dilakukan untuk melihat apakah scoliosis bertumbuh dengan sangat cepat dan parah.

Pada proses ini, harus dilihat bagaimana lengkungan dan perkembangan yang terjadi pada scoliosis. Jika dirasa lengkungannya parah, maka harus ditindak lanjuti dengan cara tepat.

2. Terapi/Latihan Fisik

 Proses penanganan selanjutnya adalah melakukan terapi atau latihan fisik. Tahap ini dilakukan apabila scoliosis yang terjadi, lengkungannya belum parah arau masih bisa diperbaiki tanpa operasi. Tahapan ini biasanya ditangani oleh dokter yang ahli di bidang terapi scoliosis.

Pada tahap ini, Anda akan dikenalkan dengan berbagai pendekatan terapi agar posisi tulang belakang bisa kembali normal. Biasanya hal ini menggunakan alat khusus.

3. Bracing

 Salah satu cara penanganan scoliosis yang cukup populer adalah bracing. Bracing sendiri adalah alat khusus yang dipasang pada bagian tulang belakang.

Bracing ini juga ada beragam, ada yang lunak, dinamis, kaku, hingga yang korektif. Untuk penggunaan bracing ini, Anda bisa langsung konsultasikan pada dokter terpercaya yang ahli dalam bidang ini.

4. Pembedahan

 Scoliosis memang bisa disembuhkan tanpa operasi bedah. Namun hal ini juga tergantung pada kondisi keparahan scoliosis. Jika scoliosis yang dialami sudah sangat parah hingga menimbulkan ketidak seimbangan tulang, maka operasi bedah perlu dilakukan.

Pada beberapa kasus, scoliosis yang menyerang anak-anak, tumbuh lebih cepat. Sehingga akan sangat bahaya jika hanya dibiarkan. Operasi bedah bisa menjadi salah satu alternatif terbaik.

5. Pengobatan Komplementer

 Pada dasarnya, tidak ada berbagai jenis obat yang bisa dikonsumsi untuk menyembuhkan scoliosis. Namun pengobatan komplementer ini hanya berlaku sebagai pelengkap dari terapi penyembuhan. Penggunaannya juga tidak bisa dilakukan secara terus menerus, alias ada batasan.

5 cara penanganan scoliosis di atas bisa jadi acuan untuk Anda yang sedang menderita atau memiliki keluarga yang menderita scoliosis. Mulai dari cara yang ringan hingga cara berat seperti pembedahan, semua bergantung pada tingkat keparahan scoliosis itu sendiri. Pastikan Anda memilih cara yang tepat.

The post Scoliosis dan Penanganannya appeared first on Aldri Blog.

As I noted when I signalled the reference, the French Supreme Court in C-251/20 GtFlix has not referred the question whether Bolagsupplysningen is good authority for acts of unfair competition between competitors. Rather, it queries whether Bolagsupplysningen means that a claimant who requests both rectification /retraction and damages, has to necessarily turn to courts with full jurisdiction or whether they can continue to turn for the damages part, to all courts with locus damni jurisdiction.

Hogan AG in his Opinion a few weeks ago right up to (94) revisits the wisdom of applying Shevill’s Handlungsort/Erfolgort distinction and the possibility of using GtFlix to overturn. I agree that this is not the case to do it. (On the CJEU and overturning its authority, see excellently the departing Bobek AG in C‑205/20).

At 95 he then essentially requalifies and answers the question which the SC had not referred. The action at the French courts is one in dénigrement, which is a form of malicious falsehood which, the AG suggests, does not call into question the Bolagsupplysningen line of cases but rather Tibor Trans and the cases before it.

An action relating to an infringement of unfair competition law may be brought before the courts of any Member State where that act caused or may cause damage within the jurisdiction of the court seised. Where the market affected by the anticompetitive conduct is in the Member State on whose territory the alleged damage is purported to have occurred, that Member State must be regarded as the place where the damage occurred for the purposes of applying Article 7(2) (99).  A final reference at (102) ff is to the applicable law level under (Article 6) Rome II. 

Should the CJEU follow, one of the left-over questions following Bolagsupplysningen will not be answered, yet another issue on falsehoods spread between competitors, will.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

The most recent issue of the Uniform Law Review contains a number of articles that are interesting from a PIL perspective.

The first, authored by Michiel Poesen, has the provocative title Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention (abstract here). It is basically a critique of the rigid application of Art 7 Brussels I bis Regulation by the CJEU. The author claims that the Hague Judgments Convention would not follow this approach but rather require a more flexible assessment of jurisdiction through its jurisdictional filters. He points in this context to Art 5(1)(g) Hague Judgments Convention, which makes indirect jurisdiction for contractual claims dependent on the caveat that “activities of the defendant in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”. This formula is indeed clearly inspired by the minimum contacts test under U.S. constitutional law. Still, in Art 5(1)(g) it is combined with a performance-of-the-obligation test, which is strongly reminiscent of Art 7(1) Brussels I bis. Rather than “murdering” special jurisdiction, the Hague Convention thus provides for a compromise of the EU and U.S. approaches, with the former defining the core and the latter the outer limit of contractual jurisdiction.

The second article, written by Garth J Bouwers, is titled Tacit choice of law in international commercial contracts: an analysis of Asian jurisdictions and the Asian Principles of Private International Law (abstract here). He points to an interesting Chinese practice direction which assumes a tacit choice of the lex fori where none of the parties has pleaded foreign law. This reminds of the approach under French law (for recent case-law and analysis see here and here). In the analysis of the other jurisdictions examined (Hong Kong, Japan, South Korea, Singapore), this possibility is not mentioned. It seems that the latter rather rely on an ex officio application of foreign law. The author thankfully describes their methods in detail.

Third, Johanna Hoekstra examines the Political barriers to the ratification of international commercial law conventions (free access to full article here). She takes the Swiss proposal to reform the CISG as an example of the obstacles that legal uniformisation may encounter. To this end, she relies on insights from political science, which she applies to the specific context of legal harmonisation. Her conclusion that “international private law can have low political priority” is sad but probably true. Equally important is her observation that lobbying and interest groups may change this setting.

There are also three articles written in French, one on the liability of an arbitrator for the damages caused by preliminary measures (abstract here), and two on legal harmonisation in West Africa under the auspices of OHADA (here and here).

A further article by the author of the present post is entitled National Blockchain Laws as a Threat to Capital Markets Integration (full free access here). It compares recent private law reforms concerning digital assets in France, Liechtenstein, the UK, the US (U.C.C.) and the (deviating) law of Wyoming. The comparison also encompasses the conflict-of-laws rules for the blockchain in these systems.

Of special interest is a presentation of the new Uruguay Act on PIL (Ley general de derecho internacional privado) (abstract here). The Act allows the choice of non-state law to the extent that it is generally recognised on the international level, neutral and balanced, and emanates from an international organisation to which Uruguay is a member (Article 45). Also of interest is the special place the Act gives to international commercial law (Article 13), which is reminiscent, but not identical to, old musings about the existence of a “lex mercatoria“.

Finally, this rich treasure of PIL insights also informs about new developments in the law of secured transactions in China (abstract here) and UNCITRAL’s 53d Commission session (abstract here).

The Private Side of Transforming our World
UN Sustainable Development Goals 2030and the Role of Private International Law

September 9-11, 2021, Hamburg, Germany,
Max Planck Institute for Comparative and Private International Law

By Madeleine Petersen Weiner and Mai-Lan Tran

The Max Planck Institute for Comparative and Private International Law hosted a hybrid conference on the Institute’s premises, and digitally via Zoom, under the above title from September 9-11, 2021, on the occasion of the publication of the nearly 600-page anthology “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law”.

The Sustainable Development Goals (“SDGs”) include 17 goals for sustainable development. Formulated by the United Nations in 2015, they form the core of the 2030 Agenda and aim to enable people worldwide to live in dignity while respecting the earth’s ecological limit. Fighting poverty and other global ills, improving health and education, reducing inequality and boosting economic growth while combating climate change are the themes of this agenda, also referred to as a “contract for the future of the world”. In Public Law, including International Law, SGDs have already established themselves as a subject of research. This has not been the case for Private Law so far. The project “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law” addresses this research gap identified by the editors and organizers of the conference, Ralf Michaels, Director of the Max Planck Institute for Comparative and International Private Law (D), Verónica Ruiz Abou-Nigm, Senior Lecturer at Edinburgh Law School , University of Edinburgh (UK) and Hans van Loon, former Secretary General of the Hague Conference on Private International Law (NL). The project‘s aim was to raise awareness that Private International Law („PIL“), with its institutions and methods, can also make a significant contribution to achieving these goals.

The conference was structured around the individual SDGs and was divided into six overarching thematic blocks. Renowned and emerging scholars from around the world presented excerpts from their research for the anthology on the relationship between PIL and each of the SDGs. Following the contributions of the individual speakers, discussants for each thematic block pointed out connecting lines and questions within the respective clusters and stimulated the discussion on the podium with initial questions and sometimes provocative theses. Afterwards, the floor was opened to questions from the audience. Next to the organizers, Maria Mercedes Albornoz, Centro de Investigación y Docencia Económicas (MEX), Duncan French, University of Lincoln (UK), and Marta Pertegás, Maastricht University (NL), took on the role of discussants.

The mix of speakers as well as the audience were very international, also thanks to the hybrid format. The English-language conference was translated simultaneously into Spanish for the audience dialed in via Zoom.

After a warm welcome by the organizers, the conference kicked off with the “Basic Socio-Economic-Rights” cluster. The first speaker, Benyam Dawit Mezmur, University of the Western Cape (ZAF), focused on SDG 1 “No Poverty”. He stated that this was a very ambitious goal and that the COVID-19 pandemic had actually increased poverty in the world. He went on to point out that it was the poverty of refugee children that needed to be addressed. PIL could contribute to this by simplifying the recognition of status.

Jeannette Tramhel, Organization of American States (USA), then commented on SDG 2 “No Hunger”. She talked about an “elephant in the room” in the goal of eliminating world hunger by 2030, referring to the discussion of whether the industrial agri-food system (“Big Ag“) was the solution to the puzzle, or rather its cause. This “elephant” then ran not only proverbially but also figuratively through her presentation. She then addressed harmonized regimes such as the Hague Conference on Private International Law 2005 Choice of Court Convention, which she believes provide an effective contribution to the goal. Avoiding parallel proceedings, she said, would also be beneficial for internationally operating companies in the agricultural and food sectors.

This first set of topics was concluded by the presentation of Anabela Susana de Sousa Gonçalves, University of Minho (PRT), on SDG 3 “Good health and well-being”. She first talked about telemedicine and e-health platforms with cross-border functions. With these resources, universal health coverage and healthcare as such – even in the poorest countries of the world – could be supported by PIL.

After a joint lunch break, the participants turned their attention to the second set of topics, “Energy, Work and Infrastructure.” Nikitas E. Hatzimihail, University of Cyprus (CYP), kicked off the session. He spoke on SDG 7 “Affordable and clean energy”. He advocated using the regulatory function of PIL to help achieve some harmonization of regulatory standards at the global level and thereby contribute to the efficient achievement of regulatory goals.

Ulla Liukkunen, University of Helsinki (FIN), then outlined the main findings from her chapter on SDG 8 “Decent Work and Economic Growth”. In her presentation, she spoke in favor of broadening the perspective on existing regulatory approaches in PIL. Workers’ rights should be placed at the center, and laws as well as legal practices should also be evaluated from this point of view.

In the third and last presentation on the topic, Vivienne Bath, University of Sydney (AUS), dealt with SDG 9 “Industry, Innovation and Infrastructure”. She elaborated on PIL’s fundamental role in infrastructure projects, starting with contractual issues and ending with dispute resolution. Summing up, she argued for an approach that was more concerned with sustainability than with enforcing the commercially based doctrines of choice of law autonomy and the importance of binding parties to their choice of forum.

A short coffee break refreshed the speakers and the audience for the final set of topics of the day, “Education, Gender and Socio-Economic Inequality.” Here, first Klaus D. Beiter, North-West University, Potchefstroom (ZAF), gave an insight into his findings on SDG 4 “Quality Education”. At the outset, he emphasized his difficulties in even recognizing a link to PIL, since education is a central task of the state. However, according to Beiter, the link becomes clear when one observes the progressive privatization of the education sector. He identified as a problem that shortcomings in the education sector on the part of the state in the Global South were being systematically exploited by companies in the global North. PIL thus must be further developed in order to offer more protection to the “weaker” actors in the education sector.

Gülüm Bayraktaro?lu-Özçelik, Bilkent University, Ankara (TUR), followed by highlighting the role of PIL in achieving SGD 5 “Gender Equality”. She showed that gender equality issues can play a role in all traditional areas of PIL (such as applicable law or jurisdiction) as well as specifically in the recognition of marriages. On the one hand, a one-size-fits-all approach would not do justice to all areas. On the other hand, the opportunities of cross-cutting soft law instruments, such as the guiding principles for the realization of gender equality, also in cross-border matters, should not be negated but further explored.

Lastly, Thalia Kruger, University of Antwerp (BEL), spoke on SDG 10 “Reduced inequalities”. Inequality exists on many levels and plays a role in many different places in PIL. In her presentation, she focused on tort law. Inequality could be countered by adequate compensation of the injured parties by the damaging parties. She also expressed her disappointment at the failed attempt to create a new conflict of laws provision in the Rome II Regulation for human rights violations. A draft by the European Parliament’s Legal Affairs Committee had envisaged giving injured parties the right to choose between four possible applicable legal systems. Criticism was voiced that the right of choice would create too much legal uncertainty for companies. Kruger countered that companies would simply have to comply with all and thus the highest standard of the four possible applicable laws.

The first day culminated in the live book launch of the anthology at Intersentia. In order to make it available to as many people as possible worldwide, it was made freely accessible online (open access) at www.intersentiaonline.com – the current preliminary version soon to be replaced by the final text.  A PDF version of the book will also be available for free download on the website, as will print versions of the book.

The second day of the conference began with a presentation by Eduardo Álvarez-Armas, Brunel University of London (UK) and Université catholique de Louvain (BEL), on SDG 13 “Action on Climate Change”. Using the example of the recent lawsuit of the environmental organization Milieudefensie and other environmental associations against Royal Dutch Shell before the District Court of The Hague, which was successful in the first instance, and the lawsuit of the Peruvian farmer Lliuya against RWE AG, which has been pending in the second instance at the Higher Regional Court of Hamm since 2017, Álvarez-Armas attested to the ability of PIL in the form of Private International Law Climate Change Litigation to contribute to the realization of SDG 13.

Tajudeen Sanni, Nelson Mandela University (ZAF), also attested to the discipline’s potential in the context of transnational claims by local communities dependent on the sea and its resources, in light of SDG 14, “Life Below Water”. He advocated further development of PIL principles in light of the SDGs; the choice of applicable law should be made on the basis of which of the possible ones called upon to apply (better) promotes sustainable development.

To conclude this fourth Cluster, “Climate and Planet,” Drossos Stamboulakis, University of the Sunshine Coast (AUS), presented his insights on SDG 15, “Life on Land”. In his view, the necessary redesign of PIL to make it fruitful for sustainable development should avoid stripping PIL of its legitimacy based on technical and dogmatic answers.

Finally, the organizers were able to secure Anita Ramasastry, University of Washington, Member of the U.N. Working Group on Business and Human Rights, as keynote speaker. She was able to identify overarching leitmotifs in the debate and at the same time set her own impulses. PIL could provide guidelines for promoting responsible corporate conduct. However, transnational corporations have so far been understood by the discipline predominantly as a problem but not as (positive) actors. Against this backdrop, her recommendation was to delve deeper into what kind of positive roles business could play in the future.

The remainder of the morning was devoted to the somewhat broader topic „Living Conditions”. Klaas Hendrik Eller, University of Amsterdam (NL), kicked it off with SDG 11 “Sustainable Cities and Communities”. He was guided by the question of how PIL’s rich experience in identifying, delineating, and addressing conflicts could help create an appropriate forum for spatial justice issues in a global city.

Geneviève Saumier, McGill University (CAN), then addressed SDG 12 “Sustainable consumption and production”. In her view, PIL has so far fallen short of its potential. Provisions that ensure access to justice, especially in the case of lawsuits against transnational corporations, as well as choice-of-law rules that provide ex ante incentives for producers to comply with higher standards of potentially applicable laws could change this.

The third presentation of this set of topics was given by Richard Frimpong Oppong, California Western School of Law, San Diego (USA), considering SDG 6 “Clean Water and Sanitation”. He did not deny PIL’s supporting role in the management of water and sanitation resources. Ultimately, however, the problems associated with achieving SDG 6 were too complex and multifaceted to be solved by the traditional methods of PIL and adversarial litigation (alone).

After the lunch break, Sabine Corneloup, University Paris II Panthéon-Assas (FRA), and Jinske Verhellen, Ghent University (BEL), commented on SDG 16 “Peace, Justice and Strong Institutions” in the last Cluster “Rights, Law and Cooperation”. They put their focus on target 16.9 – legal identity in the context of migration. They showed that restrictive migration policies of the Global North counteract one of the fundamental goals of PIL, cross-border continuity. Only when issues of legal identity are separated from migration policy decisions does PIL have the potential to ensure that identity across borders has real value and enable migrants to exercise their rights.

For Fabricio B. Pasquot Polido, Federal University of Minas Gerais (BRA), who was scheduled to be the last speaker of the afternoon on SDG 17 “Partnerships to Achieve the Goals”, but was unfortunately unable to attend at short notice, Hans van Loon stepped in. In light of SDG 17, he shared his practical experience regarding cross-border cooperation between administrations and courts as former Secretary General of the Hague Conference on Private International Law. He reported on the remarkable developments in the organization’s relations with Latin America, and incrementally with the Asia-Pacific region. Looking to the future, he looked at efforts to build appropriate partnerships to Africa as well, and a possible Hague Conference convention on private international law aspects of   environmental and climate change issues.

With heartfelt thanks to all participants, the organizers finally closed the public part of this extremely diverse and inspiring conference, which sees itself rather as the beginning than the end of the joint project under the hashtag #SDG2030_PIL.

On the morning of the last day of the conference, the organizers and speakers met internally to pick up on the impulses of the two previous days, to continue the threads of discussion from bilateral talks in a large group and to develop the future of the project.

The conference set itself ambitious goals in terms of both organization and content. The hybrid format, up till now untested, was a complete success and, as Ralf Michaels already pointed out in his introductory remarks to the conference, excellently reflected the nature of PIL; it united international and local levels.

In terms of content, the conference was in no way inferior to this (technical) success. On the contrary, it not only convinced speakers and discussants, who had shared their initial reservations about the PIL’s power of impact for sustainable development in the sense of the SDGs, but also convinced the audience to acknowledge the private side of the transformation of our world through the diversity and substantive precision of the contributions. It was a great pleasure and honor for the two authors of this summary to witness the contagious commitment of the project’s participants to the discipline’s assumption of responsibility for the realization of the SDGs in beautiful, late-summer Hamburg.

 

Madeleine Petersen Weiner and Mai-Lan Tran are doctoral candidates at the Chair of Prof. Dr. Marc-Philippe Weller at the Institute for Private International Law and International Business Law at Heidelberg University. Madeleine Petersen Weiner also works as a Research Assistant at this institute.

Vacating the interim injunction that was granted earlier this year to prevent CG Corp. Global – a Nepal-based company, registered in India from manufacturing and selling its instant noodles under the name of Wai Wai X-Press Noodles Majedar Masala in a passing-off action by ITC Ltd, the Karnataka High Court formulated detailed guidelines to ascertain the circumstances in which there will be a passing-off of a trademark and an infringement of copyright under Indian law.[1] The Karnataka High Court was exercising its appellate jurisdiction under Section 13(1A) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 (CCA) that authorizes the creation of commercial courts in India. These courts are equally competent to adjudicate domestic and international disputes on matters that fall within the purview of the Act. The scope of the legislation is vast and includes, inter alia, disputes concerning intellectual property rights such as trademarks, copyright, patents, designs or geographical indications – which will be considered of a commercial nature if the value of the subject matter is more than INR 3,00,000. The Act confers jurisdiction over the Commercial Division of the High Courts – as a court of the first instance – whenever the dispute arises within the local limits of Delhi, Bombay, Calcutta, Madras or Himachal Pradesh. In all other States of India, the commercial courts created at the district level will be competent to adjudicate such matters. The legislation has been promulgated to promote trade and commerce in India by fast-tracking the settlement of such disputes. In matters of intellectual property such as these, the Act confers the Commercial Court or the Commercial Division of the High Court in some states with the exclusive jurisdiction to adjudicate such matters, which were initially within the domain of the District Courts.

The Commercial Appellate Division of the Karnataka High Court was faced with the predicament of whether the defendant, CG Corp, had damaged ITC’s goodwill and reputation by incorporating a similar colour scheme of red and orange in packaging its Wai Wai X-Press Noodles Majedar Masala. As a result, ITC claimed that the defendant’s product was deceptively similar to its Sunfeast Yipee! Magic Masala Noodles and, thus, CG Corp’s act constituted passing-off and an infringement of ITC’s copyright under Indian law.

Rejecting ITC’s contentions, the court formulated a two-pronged formula to ascertain the circumstances in which a defendant could be considered to have passed off a product as that of the claimant – to have violated the latter’s registered trademark. In doing so, the court placed emphasis on the position under English law as emphasized in Payton v Snelling,[2] Lampard; Reckitt & Colman v Borden;[3] and Pasquali Cigarette Co Ltd v Diaconicolas & Capsopolus.[4]

The first and foremost factor, as the court stressed, would be to identify the features in the plaintiff’s product that are distinctive to him or her. As the court elaborated, distinctiveness in this context refers to distinctiveness in law as opposed to distinctiveness in fact. Distinctiveness in fact, as the court clarified, are the features of the mark that are distinctive according to the claimant’s perspective. Instead, the claimant must clearly demonstrate whether the hypothetic person or the class of persons constructed and identified by the court are likely to be deceived by the similarities in the product. The identification of the hypothetical persons would essentially depend on a variety of factors and, in particular, the nature of the goods sold, the circumstances of the sale and the class of persons to whom the product is targeted. Drawing an analogy with surgical and pharmaceutical products, the court elaborated that in a product such as this, the hypothetical person would be an ordinary purchaser and one of average intelligence – who being neither too careful nor too careless and knowing more or less the peculiar characteristics of the product, accepts what he or she is given after examining the general appearance of the article. It is unlikely, as the court further substantiated, for the ordinary consumer to mentally capture every minute detail of the packaging of the product – including the colour scheme.

Having regard to the circumstances of the case, the court asserted that the dominating feature in the claimant’s product remains the verbal as opposed to the visual marks because the ‘striking and most distinguishing feature of the defendant’s wrapper was its-brand name Sunfeast Yipee! Therefore, CG’s act cannot constitute passing-off under Indian law unless ITC can demonstrate that the deception was likely to occur even if the expression Sunfeast Yippee! was missing from the CG’s product which, instead, had its own brand name (Wai Wai X-Press Noodles Majedar Masala). The court’s observation was substantiated on a variety of factors – including the claimant’s marketing strategy and central arguments in past litigation. Consequently, the court took note of a previous dispute that was initiated by the claimant against Nestle on a similar ground, where the plaintiff argued that the latter had led the customers to believe that the Maggi’s Magic Masala Noodles (sold by Nestle) and the plaintiff’s Sunfeast Yippee! Magic Masala Noodles were one and the same. In that case, the claimant, ITC, had argued that the expression ‘Magic Masala’ as distinctive to its mark.

Further, the court noted that the claimant had adopted a similar strategy in its advertising campaigns -whether the striking feature remained its brand name – Sunfeast Yippee! as opposed to the colour combination. Referring to the decisions of the English courts in Payton v Snelling, Lampard and Pasquali Cigarette Co. Ltd. v Diaconicolas & Capsopolus, the court stated that regardless of how ‘novel, original or striking’ the colour scheme may be, it was not a feature that was relied upon by the ordinary purchaser to identify the source of the product. As the court further asserted, the chief question invariably remains: what is the function that the get-up of the product actually serves and not how well that get-up has been designed to serve that purpose.

The second factor would be to discern whether the products being manufactured and sold by the defendant are ‘deceptively similar’ to the one’s being manufactured by the claimant. However, whether the goods were in fact deceptively similar would be assessed only after it has been ascertained whether the goods bearing the mark were distinctive in law according to the criterion indicated above. In order to assess whether the defendant’s product was deceptively similar to the plaintiff’s, not merely the features that bear a resemblance with the plaintiff’s product would be considered – but also the measures that were undertaken by the defendant to eliminate the possibility of confusion would be considered.

Therefore, in situations (such as these) where there has been no direct misrepresentation, whether there has been passing-off as a result of deceptive similarity would, in turn, depend on two factors –

1. a) that the name, mark or distinctive feature had acquired a reputation among a class of persons and
2. b) that the mark or feature, being the same or sufficiently similar, had led those persons to believe that the goods are from the same or a connected source.

The comparison of the marks or features discern whether they are the same or sufficiently similar, must be done by looking at all the surrounding circumstances – and whether it is likely to cause confusion in the minds of the hypothetical customer that has been identified based on the principles to ascertain whether the mark/feature is distinctive in law. Consequently, the manner in which the goods or services were supplied would bear a strong influence in ascertaining whether the consumer is likely to be deceived. Here, the role of the mark or the feature and the various ways in which the product is being sold so as to influence the decisions of the consumers in purchasing the product will play a predominant role. In the present case, the court evaluated the significance and the role that the red and orange colour scheme had to play in the various ways in which the product has been sold – but also the way in which the ordinary hypothetical consumer is likely to behave in its ‘noodle-purchasing decisions’. Consequently, the court concluded that the fact that the defendant’s product similarly incorporated the red and orange colour scheme was of little relevance in confusing the hypothetical consumer – regardless of the way in which the product is being purchased. In digital shopping, the search words ‘Red-Orange Noodles’ did not even result in the display of the products of either of the parties – in turn demonstrating how unlikely it was for the consumers to be deceived merely by the similarities in the colour scheme. Likewise, in brick and mortar stores, it was unlikely for the consumer to ask for red and orange packet noodles instead of providing the shopkeeper with the brand name. Even if, in the very improbable situation, the consumer did ask for red and orange packet noodles, it was unlikely for the shopkeeper to directly reach out for the claimant’s product.

Having regard to the aforementioned factors, the court further noted that ITC’s copyright had not been violated, either chiefly because CG Corp has not copied the essential features of the former’s product. Merely showing some similarity in the non-essential features would not suffice and would not constitute a copyright violation under Section 51 of the Copyright Act, 1957.[5]

Despite being of persuasive value to courts outside Karnataka, by being a judgment of the High Court, the judgment is likely to have far-reaching consequences by providing the much-needed clarity under Indian law and, in particular, the provisions of the Trade Marks Act, 1999, which presently does not substantiate the circumstances that constitute ‘passing off’ under Indian law. Instead, the Act merely indicates the right to relief to the aggrieved party in the form of an injunction when its trademark has been passed off by the defendant. The judgment could also shape the decision of the mediation panel in a suit of a similar nature that was recently initiated by Nestle against the same defendant (CG Corp. Global) on the ground that the latter’s Wai Wai Noodles were deceptively similar to the Swiss-based corporation’s Maggi Noodles. As per the provisions of the CCA, the mediation proceedings would have to be concluded within ten days – failing which the matter would be transferred to the Delhi High Court under Section 7 of the CCA for further hearing.

 

 

[1] See, ITC Ltd v CG Goods (India) Private Limited, Commercial Appeal No. 105/2021 (dated 28 September 2021).

[2] 1901 AC 308.

[3] [1990] 1 All E.R. 873.

[4] 1905 TS 472.

[5] Act No. 14 of 1957.

Routledge published a new book by Johanna Hoekstra (lecturer in Law at the University of Essex, UK) on non-state rules entitled Non-State Rules in International Commercial Law. Contracts, Legal Authority and Application.

The blurb reads as follows:

Through further technological development and increased globalization, conducting business abroad has become easier, especially for Small and Medium Enterprises (SME). However, the legal issues associated with international commerce have not lessened in complexity, including the role of non-state rules.

The book provides a comprehensive analysis of non-state rules in international commercial contracts. Non-state rules have legal authority in the national and international sphere, but the key question is how this legal authority can be understood and established. To answer this question this book examines first what non-state rules are and how their legal authority can be measured, it then analyses how non-state rules are applied in different scenarios, including as the applicable law, as a source of law, or to interpret either the law or the contract. Throughout this analysis three other important questions are also answered: when can non-state rules be applied? when are they applied? and how are they applied? The book concludes with a framework and classification that leads to a deeper understanding of the legal authority of non-state rules.

Providing a transnational perspective on this important topic, this book will appeal to anyone researching international commercial law. It will also be a valuable resource for arbitrators and anyone working in international commercial litigation.

The book begins by giving an overview of non-state rules in international commercial contracts before focusing on the nature of non-state rules and how to assess their legal authority in Part 1. Part 2 analysis the application of non-state rules as governing law of a Contract. This part looks into the principle of party autonomy in international commercial contracts, and the interplay between non-state rules and Private International Law, and arbitration. The last part, Part 3, is dedicated to the application of the non-state rules by courts. The analysis covers various aspects ranging from the influence of non-state rules as sources of domestic law and interpretation of the law to lex mercatoria and ascertaining the legal authority of this type of rules.

Aldricus – Hal penting yang perlu kalian ketahui jika ingin melakukan impor barang dari luar negri adalah menentukan pemasok diluar negri atas dasar apa kalian membayar barang dengan harga sejumlah tersebut. Jika kalian melakukan impor barang dari Korea maka kalian bisa memilih jasa kirim barang terpercaya agar kalian tidak kena tipu saat melakukan pembelian barang impor. Oleh karena itu, penting bagi kalian untuk mengetahui prosedur impro barang yang ada di Indonesia sebelum melakukan pemesanan barang dari luar negriagar sesuai dengan yang ada di Indonesia.

Cara mudah impor barang dari korea

Ada beberapa cara yang bisa kalian lakukan untuk melakukan impor dari Korea. Cara impor ini bisa dilakukan lebih mudah jika kalian mengajak perusahaan penyedia jasa impor yang ada. Selain itu, kalian juga perlu menyiapkan dokumen barang yang masuk ke Indonesia sehingga tidak dicurigai sebagai barang gelap. Setelah memahami prosedur pengiriman maka hal lain yang perlu kalian lakukan adalah dengan menentukan sistem transaksi yang digunakan. Dalam bisnis ekspor impor, setidaknya ada beberapa istilah yang wajib kalian ketahui seperti FOB, CIF, DDP, FAS, dan lain sebagainya.

Setelah itu selesai, impor barang dari Korea bisa kalian lakukan dengan memilih jasa pengiriman yang tepat. Ada banyak sekali jasa impor barang dari Korea dan umumnya ada 3 cara impor barang yang bisa dilakukan yaitu melalui darat, laut, atau udara. Semua ini bisa dilakukan dan akan mempengaruhi estimasi waktu dan biaya yang harus dikeluarkan dan tentu pengiriman barang melalui laut bisa memakan waktu yang lebih lama dibandingkan dengan udara.  Jika kalian bingung saat melakukan pemilihan jasa pengiriman barang, kalian bisa mengunjungi kami di kilo.id yang merupakan salah satu jasa pengiriman barang di Korea yang paling murah tanpa tambahan biaya untuk kurir dan mampu mengirimkan barang lebih cepat aman, dan terjamin tiba tepat waktu.

Sistem perhitungan impor barang dari Korea

Sebenarnya, peritungan barang pengiriman tidaklah berbeda dengan pengiriman barang lokal. Akan tetapi, penteing bagi kalian untuk mengetahui rumus perhitungan volume untuk mengetahui berat volumentrik ekspedisi internasional. Tentu saja rumusnya adalah panjang x lebar x tinggi : 5000. Semisal kalian memiliki berat barang aktual 50 kg, maka berat volumentrik 40 kg, breat aktual 50 kg lah yang dijadikan dasar biaya kirim. Oleh karena itu, kalian perlu memikirkan hal tersebut sehingga bisa mengurangi biaya kirim paket dari Korea.

Ada banyak keunguglan yang bisa kalian dapatkan di Kilo.Id karena mereka mampu impor barang dari Korea dengan cepat. Hal itu bukan hanya janji pengiriman saja karena memang cukup cepat. Tidak sampai disitu karena disini kalian juga akan lebih mudah saat mengirimkan barang dan lebih m urah serta efisien.

The post Tips Mudah Impor Barang Dari Korea appeared first on Aldri Blog.

The CJEU yesterday held in C-581/20 Toto. I discussed the AG’s Opinion earlier. Gilles Cuniberti in his analysis engages critically with the Court’s replies to the interim measures issues, Krzysztof Pacula’s review looks at the other questions asked, too. All in all, the Court’s engagement with the issues is under par. 

The CJEU first of all holds that despite the instrument of public procurement, the case does not involve acta iure imperii (and notes [42] that the current procedure has been brought entirely under ordinary civil procedure rules). This is simply an ordinary spat between contracting parties on the exercise of a straightforward construction contract. With reference to Rina and in particular Supreme Site Services, the Court [45] confirms that lex fori rules on immunity do not as such exclude the qualification of ‘civil and commercial’. As we have already experienced in the final, national judgment in Kuhn, the CJEU’s approach to see immunity, closely linked to public international law, distinct from the private international law notion of ‘civil and commercial’, quickly becomes nugatory in litigation practice. Neither does that approach answer the referring court’s question whether if the matter does fall within Brussels Ia, the ordinarily applicable Bulgarian rule that no such relief may be ordered against public authorities, must be set aside.

On the issue of provisional measures, the AG saw a plausible way forward by  a fairly standard application of the lis pendens rules (A29 ff) and by assessing the definitiveness of the measure and the impact of that assessment on the recognition, or not, of the decision of the court with subject-matter jurisdiction. The CJEU however merely emphasises the lack of formal hierarchy, in Brussels Ia, between the courts with subject-matter jurisdiction and those with jurisdiction for provisional measures. It concludes [60] that the latter are not bound to dismiss jurisdiction merely because a court with subject-matter jurisdiction has been either seized or has held in interim proceedings. It could certainly have found support in the Regulation’s intention to, and provisions designed for, avoid(ing) conflicting decisions.

Geert.

EU Private International law, 3rd ed 2021, 2.512ff, 2.550 ff, 5.584 ff.

On October 6th, 2021, the Court of Justice of the European Union delivered its ruling in Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad v. TOTO SpA – Costruzioni Generali and Vianini Lavori SpA (Case C‑581/20). The decision is currently only available in French and Bulgarian.

Although three questions were referred for a preliminary ruling, the Court asked the Advocate-General to focus only on one of them, which was concerned with parallel interim litigation under the Brussels Ibis Regulation. This post will also focus on this issue (for the answer of the Court to the other questions, see the post of  Krzysztof Pacula over at Conflictoflaws.net).

Background

In 2015, in order to guarantee obligations assumed under a public contract concluded in Poland for the construction of a section of expressway, the undertakings which had been awarded the contract provided to the Polish contracting authority a number of guarantees underwritten by a Bulgarian insurer.

Some years later, the contractors unsuccessfully applied to a Polish court for provisional, including protective, measures prohibiting the contracting authority from making use of those guarantees. The contractors made a similar application to the Bulgarian courts, which dismissed the application at first instance and granted it on appeal.

The Polish contracting authority appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) which referred three questions to the CJEU for a preliminary ruling.

Jurisdiction of the Polish and Bulgarian Courts under the Regulation

The most interesting issue in the case arose out of the fact that the contractors had applied for protective measures in two Member States: Poland, then Bulgaria.

The relevant contract included a jurisdiction clause granting jurisdiction to Polish courts. Polish courts had thus jurisdiction on the merits. As a consequence, they had unlimited jurisdiction to grant any kind of protective measure available under Polish law.

In contrast, Bulgarian courts did not have jurisdiction on the merits. Their jurisdiction to grant provisional, including protective measures, could only be founded in Article 35 of the Brussels I Regulation, and was limited in a number of ways which will be familiar to the readers of this blog. It could be argued that their jurisdiction in this case was justified because the subject matter of the interim measure was the debt of a Bulgarian legal person.

How were then the Polish proceedings and decision to influence the power of Bulgarian courts to grant the interim measures applied for?

Proceedings or Decisions?

To answer this question, an important conceptual distinction was in order.

There are two different rules in the Brussels Ibis Regulation which address parallel litigation.

The first is lis pendens. If the same proceedings are brought in two different courts, the lis pendens doctrine requires that the court seised second decline jurisdiction. The rule, therefore, strips the court seised second from its jurisdiction.

The second is the recognition of foreign decisions. If recognised, foreign decisions are res judicata. They prevent relitigation of the claims. They have no impact on the jurisdiction of the forum. Res judicata makes the claims inadmissible.

So what was this case concerned with? Interim proceedings had been initiated first in Poland, and they had resulted in decisions. From the perspective of Bulgaria, was the issue the jurisdiction of Bulgarian courts, or the admissibility of claims which had been decided by Polish courts?

Unclear Question, Unclear Answer?

The Bulgarian court had formulated its question as follows:

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [Regulation No 1215/12] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

Was the question concerned with the jurisdiction of Bulgarian courts?

Of course, the CJEU reformulated the question, as it always does. It is unclear whether this is always necessary to do so, but in this case, it would have been good to clarify what the case, or at least the judgment of the CJEU, was about.

Unfortunately, the CJEU did not clarify anything.

It reformulated the question by asking whether an Art 35 court was under the obligation to decline jurisdiction if the foreign court had already decided the same dispute.

It held that there is no hierachy between the two jurisdictional grounds for issuing provisional measures, Art. 35 and jurisdiction on the merits.

It thus concluded that an Art 35 court was under no obligation to decline jurisdiction if the foreign court had already decided the same dispute. It ruled:

L’article 35 du règlement no 1215/2012 doit être interprété en ce sens qu’une juridiction d’un État membre saisie d’une demande de mesures provisoires ou conservatoires au titre de cette disposition n’est pas tenue de se déclarer incompétente lorsque la juridiction d’un autre État membre, compétente pour connaître du fond, a déjà statué sur une demande ayant le même objet et la même cause et formée entre les mêmes parties.

Advocate-General Rantos had done a much better job. In his conclusions, he had distinguished between two hypotheticals: the foreign provisional measure could be recognised, or it could not. He had explained that he had to distinguish, because he could not assess in the present case whether the foreign provisional measure could be recognised.

Conclusion

What is the contribution of the answer of the Court to this question?

I am not sure.

Published by Hart/Bloomsbury as a part of their Asia-Private International Law Series, this provides an authoritative account of the evolution and application of private international law principles in India in civil, commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India’s BRICS partners – Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal.

Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of ‘Sharia’ in the conflict-of-law framework.

The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments.

The book’s international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India’s private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.

 

Dr Stellina Jolly is a Senior Assistant Professor at the Faculty of Legal Studies, South Asian University (SAU), an international organisation established by the regional group of the South Asian nations (SAARC). A Fulbright Scholar with the University of San Francisco and a recipient of the International Visitors Leadership Program (IVLP), she researches on International Environmental Law and Conflict of Laws. Dr Saloni Khanderia is presently a Professor of Law at the Jindal Global Law School, India and an Alexander von Humboldt Fellow (Experienced Researcher) at the Chair for Civil Law, International Private Law and Comparative Law, Ludwig Maximilians Universität, München.

 

Back in September, AG Rantos presented his Opinion in the case TOTO, C-581/20. As reported previously, at the request of the Court, the Opinion confined itself solely to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation.

In its judgment delivered today, the Court addresses all three preliminary questions of the referring court. These questions concern the concept of “civil and commercial matters” in the sense of Article 1(1) of the Brussels I bis Regulation (first preliminary question), subsequent application for provision/protective measures lodged before a court not having jurisdiction as to the substance of the matter (second preliminary question) and EU law- or purely national law- dependent modalities for ordering such measures (third preliminary question).

 

Factual background and context of preliminary questions

The questions referred for a preliminary ruling are raised in the context of a contract concluded between two Italian companies and the Director of a Polish central authority for road management/construction, acting in the name and on the behalf of the Polish State Treasury (in essence, the State itself; hereinafter referred to as “the public authority”). Under the said contract, concluded following a public procurement procedure, the companies are supposed to construct a public road in Poland.

The contract itself provides for some contractual penalties, in particular for its late performance by the companies. Guarantees are provided by a Bulgarian insurance company in order to cover the potential (non-)fulfillment of the obligations assumed by these companies.

Before a Polish court, the companies bring an action against the public authority for a negative declaration that, in substance, aims to oblige the defendant not to make use of the guarantees. The companies also request provisional/protective measures. Their request is rejected.

In parallel with the procedures pending before the Polish court, they apply for analogous measures before a Bulgarian court. The first instance court rejects the application. The second instance court orders the measures and the public authority brings an administrative appeal before the referring court, the Supreme Court of Cassation of Bulgaria.

In its administrative appeal, the public authority contests, in particular, the applicability of the Brussels I bis Regulation in the interim proceedings pending in Bulgaria. It argues that these proceedings do not fall within the scope of the concept of “civil and commercial matters” in the sense of Article 1(1) of the Regulation (first preliminary question). In its request for a preliminary ruling, the referring court also asks the Court to provide guidance as to the interpretation of Article 35 (second and third preliminary questions).

 

Concept of “civil and commercial matters” and its interplay with immunity from jurisdiction

Echoing the inquires of the public authority, by its first question the referring court seeks to establish whether the proceedings pending before the Bulgarian courts fall within the scope of the concept of “civil and commercial matters” and, as a consequence, within the scope of the Brussels I bis Regulation.

The Court answers this question in the affirmative: in particular, the Court reaffirms the finding made in its judgments in Rina, C-641/18 and Supreme Site, C-186/19, according to which a public purpose of certain activities (here, it seems: the conclusion of the contract for a construction of a public road and potentially its performance) does not, in itself, suffice to exclude a case from the scope of application of the Brussels I bis Regulation (paragraphs 39 and 41).

In its answer to the first preliminary question, the Court also clarifies further the interplay between that concept of “civil and commercial matters” and the immunity from jurisdiction.

In fact, under Article 393 of the Bulgarian Code of Civil Procedure (BCCP), the interim measures for securing a pecuniary claim brought against, inter alia, the State and public bodies are not permissible. For the Court, that provision seems to establish an immunity from jurisdiction in favour of some defendants: States and public authorities. However, referring the judgment in Supreme Site, C-186/19 on the immunity from execution (more precisely, its point 62, which refers to point 72 of the Opinion in that case), the Court indicates, in essence, that the immunity from jurisdiction does not automatically exclude an action brought before a national court from the scope of the concept of “civil and commercial matters” (paragraph 44).

(on a side note: conversely, if this is not the case and the Bulgarian provision does not provide for an immunity from jurisdiction, the provision in question may be potentially read as providing for a material immunity, on the level of substantive law; see also the third preliminary question outlined below; other residual interpretation could view the Bulgarian provision as providing for an immunity from jurisdiction departing from what is required under public international law, nothing, however, supports that reading of the provision at hand).

 

Subsequent application for provisional/protective measures

By its second preliminary question, the referring court seeks to establish whether a Bulgarian court not having jurisdiction as to the substance of the matter is precluded from pronouncing provisional/protective measures under Article 35 of the Brussels I bis Regulation in a situation where a Polish court having jurisdiction as to the substance of the matter has already given a ruling on an application for identical provisional/protective measures and rejected the application.

In his Opinion, AG Rantos argued that in a situation described in the preliminary question the court not having jurisdiction as to the substance of the matter should not pronounce the provisional/protective measures and must decline jurisdiction.

By contrast, for the Court, a court of a Member State not having jurisdiction as to the substance of the matter, seized with a subsequent application for provisional/protective measures, is not obliged to declare that it lacks jurisdiction to rule on the application for the measures in question (paragraph 60).

 

Provisional/protective measures as a matter of procedural autonomy ?

By its third preliminary question the referring court seeks to establish whether the application for provisional/protective measures has to be examined in the light of EU law or purely in the light of the national law of the court seized with the application.

Interestingly, also this question is inspired by Article 393 of the BCCP, under which interim measures for securing a pecuniary claim brought against, inter alia, the State and public bodies are not permissible. Thus, applied in the proceedings before the Bulgarian courts, this provision has the potential of barring any application for interim measures against the public authority.

However, the referring court considers that examining the application for provisional/protective measures in the light of EU law would mandate it to benchmark the national provisions on such measures against the principle of effectiveness and, potentially, to disapply Article 393 of the BCCP (paragraph 25).

In other terms, the referring court seems to frame the question as one on the procedural autonomy and its limitations. If this assumption is correct, the provisions of the BCCP would govern the exercise of the right provided for in Article 35 of the Brussels I bis Regulation. Logically, it seems that the assumption is based on a consideration that the role of Article 35 of the Regulation goes beyond providing for an alternative forum before which an application for provisional/protective measures can be made: it provides an alternative “effective” forum or, if one would wish to go even further, it provides a right to request (and obtain) some minimal provisional/protective measures before a court not having jurisdiction as to the substance of the matter.

For the Court, this does not seem to be the case. Under Article 35 of the Regulation a court of a Member State not having jurisdiction as to the substance of the matter may order measures “available under the law of that Member State”. This provision ensures the availability of an alternative forum to the applicant, without guarantying that provisional/protective measures themselves will be also available to him/her (paragraph 64).

Before drawing a final conclusion on the merits of the aforementioned assumptions/consideration: while the issue pertaining to the principle of effectiveness (“principe d’effectivité”) has been directly invoked by the referring court, it is true that in the present case the Court has not been expressly called to pronounce itself on the effectiveness (“effet utile”) of Article 35 or on the right to effective judicial protection guaranteed under Article 47 of the Charter. Thus, at least for some it may be still a question of debate whether “effet utile” of Article 35 confines itself to the pure availability of an alternative forum. Either way, that debate could benefit from taking into account point 20 of the judgment in Bier, C-21/76 and point 49 of the judgment in AMS Neve e.a., where the Court considered that the effectiveness (“effet utile”) of these provision calls for their interpretation under which they do provide the alternative fora, that do not coincide with those available for the claimants under general rules of jurisdiction.

 

The judgment is available here (no English version so far).

 Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 7th CPLJ Webinar on 21 October 2021, 3:00 – 5:30 pm (CEST)

The programme reads as follows:

Chair, Enrique Vallines (Max Planck Institute Luxembourg)

3:00 pm Shahla Ali (University of Hong Kong)

Transcending Generalisations in Comparative Law Research – East Asian Perspectives in a Global Context

3:30 pm Discussion

4:00 pm Intermission

4:15 pm Eduardo Oteiza (National University of La Plata)

Who knew only his Bible knew not his Bible: Thoughts from Latin America

4:45 pm Discussion

5:30 pm Closing of the event

The full programme is available here.

For more information and to register, see here.

(Image credits:  Rijksmuseum, Amsterdam)

 

This post was contributed by Thomas Mastrullo, who is an Associate Professor at the University of Luxembourg.

In a judgment of 3 March 2021, the French Court of Cassation allowed an appeal against the judgment of a court of appeal which had refused to declare the enforceability in France of a foreign decision rendered in insolvency proceedings by simply invoking a previous decision of the foreign court without analysing its content, nor finding that it was irreconcilable with the decision the enforcement of which was sought in France.

Decisions of the Court of Cassation on the enforcement of foreign decisions in insolvency proceedings are not frequent, which makes this decision interesting.

Background

In this case, the insolvency practitioner of insolvency proceedings opened in Germany had requested that a decision of the bankruptcy court of Ansbach – ordering the payment of a certain sum of money to the former manager of the debtor company – be declared enforceable in France. The application for enforceability was accepted by a declaration of the registrar, but rejected by the Court of Appeal. The insolvency practitioner appealed to the Court of Cassation. In particular, he criticised the Court of Appeal for refusing to declare the enforceability by simply referring – without any analysis – to an earlier decision of the Ansbsach District Court.

Irreconcilability of Decisions under the Brussels I Regulation

It is true that the enforcement of a decision can sometimes be excluded because of the existence of an earlier decision. But some conditions must be fulfilled.

For the enforcement of judgments, Regulation (EC) No 1346/2000 on insolvency proceedings refers to Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regl. No 1346/2000, Art. 25. – Regulation No 1346/2000 actually refers to the Brussels Convention, the provisions of which are reproduced identically in Regulation (EC) No 44/2001). And Article 34(4) of Regulation (EC) No 44/2001 provides that a judgment shall not be recognised – and thus shall not be enforceable – only if “it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed”. As a consequence, a national judge cannot refuse to recognise and enforce a judgment merely by noting the existence of an earlier judgment: such a refusal demands that the earlier judgment was given “between the same parties” in a dispute “involving the same cause of action” as the judgment for which recognition is sought, that it is able of being recognised in the Member State concerned and that the two judgments are irreconcilable.

Therefore, by merely referring to the judgment of the Ansbach District Court, the Court of Appeal “deprived its judgment of a legal basis”, i.e. did not examine fully whether the requirements of the applicable provision were fulfilled. As the Court of Cassation states, under Article 25 of Regulation (EC) No 1346/2000 and Article 34(4) of Regulation (EC) No 44/2001, the Court of Appeal could not simply refer to the earlier decision without “analysing” its content or “establishing its irreconcilability” with the decision the enforceability of which was sought in France.

Even if it seems self-evident, this reminder of the national judge’s role in the recognition and enforcement of decisions related to insolvency proceedings is welcome.

In any case, one can wonder if the existence of an earlier irreconcilable judgment from the same Member State as the judgment the recognition and enforceability of which is sought, as in the present case, is effectively able to prevent such recognition. Indeed, in the Salzgitter judgment of 26 September 2013, the Court of Justice ruled that Article 34 (4) of the Brussels I Regulation doesn’t cover irreconcilable judgments given by courts of the same Member State.

The long-awaited Rome II Study commissioned by the European Commission, evaluating the first ten years of the application of the Rome II Regulation on the applicable law to non-contractual obligations, has been published. It is available here. The Study was coordinated by BIICL and Civic and relies on legal analysis, data collection, a consultation of academics and practitioners, and national reports by rapporteurs from the Member States. The extensive study which also includes the national reports, discusses the scope of the Regulation and the functioning of the main rules, including the location of damages under Art. 4 Rome II, which is problematic in particular in cases of prospectus liability and financial market torts. As many of our readers will know, one of the issues that triggered debate when the Rome II Regulation was negotiated was the infringement of privacy and personality rights, including defamation, which topic was eventually excluded from the Regulation. While it has been simmering in the background and caught the attention of the Parliament earlier on, this topic is definitely back on the agenda with the majority opinion being that an EU conflict of laws rule is necessary.

Three topics that the European Commission had singled out as areas of special interest are: (1) the application of Rome II in cases involving Artificial Intelligence; (2) business and human rights infringements and the application of Art. 4 and – for environmental cases – Art 7; and (3) Strategic Lawsuits against Public Participation (SLAPPs). For the latter topic, which is currently also studied by an expert group installed by the European Commission, the inclusion of a rule on privacy and personality rights is also pivotal.

The ball is now in the court of the Commission.

To be continued.

On 4 October 2021, the Judicial Committee of the Privy Council held in Convoy Collateral Ltd (Appellant) v Broad Idea (Respondent) (British Virgin Islands) that the House of Lords’ decision in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210 (“The Siskina”) and the Privy Council decision in Mercedes Benz AG v Leiduck [1996] AC 284 were wrongly decided.

The first few sentences of Lord Leggatt in Convoy say it all:

1. In his dissenting judgment in Mercedes Benz AG v Leiduck [1996] AC 284 at p 314D, Lord Nicholls of Birkenhead said:

“The law took a wrong turning in The Siskina, and the sooner it returns to the proper path the better.”

The Siskina

In The Siskina, the House of Lords held that English courts have no power to grant freezing orders (Mareva injunctions, at the time) unless it is ancillary to a cause of action, in the sense of a claim for final, substantive relief which the court has jurisdiction to grant.

In other words, English courts, and courts of common law jurisdictions following the English common law, would only grant freezing injunctions if they had jurisdiction on the merits.

In contrast, the mere presence of assets within the jurisdiction was not an autonomous ground for granting freezing injunctions. Despite scholarly opinions to the contrary, such as the comments of Lord Collins in a case note in the Law Quarterly Review:

“Common sense would suggest that if proceedings are pending in one country, and the defendant’s assets are situate in another country, the plaintiff ought to be able to obtain protective or interim relief by way of attachment in the latter country. That is indeed the law in most countries …” L. Collins, “The Siskina again: an opportunity missed” (1996) 112 LQR 8

Convoy

Broad Idea is a company incorporated in the BVI. Dr. Cho is a shareholder and director of Broad Idea. In February 2018, Convoy applied to the BVI court for freezing orders against Broad Idea and Dr. Cho in support of anticipated proceedings against Dr Cho in Hong Kong. Convoy also sought permission to serve Dr. Cho out of the jurisdiction. Following a hearing held without notice to Broad Idea and Dr. Cho, the BVI court granted freezing orders restraining them from disposing of or diminishing the value of certain of their respective assets and gave permission to serve Dr. Cho out of the jurisdiction. Convoy commenced proceedings against Dr. Cho (but not Broad Idea) in Hong Kong shortly thereafter. The freezing orders issued against Dr. Cho by the BVI court and the order granting permission to serve Dr Cho out of the jurisdiction were subsequently set aside in April 2019 on the basis that the court did not have jurisdiction to make them. In the meantime, Convoy had made a further application for a freezing order against Broad Idea in support of the Hong Kong proceedings against Dr. Cho.

In July 2019, the judge continued the freezing order against Broad Idea indefinitely on the basis that the principle enunciated in TSB Private Bank International SA v Chabra [1992] 2 All ER 245 applied in the circumstances and that Broad Idea’s assets were at risk of dissipation. Broad Idea’s appeal against the judge’s decision was allowed by the Court of Appeal. Convoy then appealed to the Judicial Committee of the Privy Coucil.

The issues were:

(i) whether the BVI court has jurisdiction and/or power to grant a freezing order where the respondent is a person against whom no cause of action has arisen, and against whom no substantive proceedings are pursued, in the BVI or elsewhere, and if so
(ii) whether any such jurisdiction and/or power extends to the granting of a freezing order in support of proceedings to which that person is not a party.

Lord Leggatt concluded for the majority:

It is necessary to dispel the residual uncertainty emanating from The Siskina and to make it clear that the constraints on the power, and the exercise of the power, to grant freezing and other interim injunctions which were articulated in that case are not merely undesirable in modern day international commerce but legally unsound. The shades of The Siskina have haunted this area of the law for far too long and they should now finally be laid to rest.

Sir Goeffrey Vos wrote a minority opinion.

A Civil Law Perspective

Many lawyers from the civil law tradition found the Siskina quite remarkable. This is because, in most civil law jurisdictions, the proposition that protective measures could produce any extraterritorial effect has always been highly controversial. So, the idea that any other court than the court of the place where the assets might be situated could have jurisdiction to order, or supervise, their freezing, bordered the unthinkable.

True, protective measures in the civil law tradition are typically provisional attachments, which act in rem, while interim injunctions are equitable remedies which act in personam. But I would argue that this is a quite formalistic distinction. There is no fundamental reason why an in rem remedy could not reach assets situated abroad, and be enforced there.

If that is correct, then the issue is how to define the (extra) territorial reach of freezing injunctions/attachements. Jurisdiction on the merits is certainly a very reasonable one.

But, clearly, the location of the assets does also appear as a very reasonable ground for granting jurisdiction to freeze/attach them, if only for efficiency purposes (speed, in particular).

The federal courts of appeal are split over whether state or federal law governs claims brought under the Foreign Sovereign Immunities Act, which waives sovereign immunity for foreign entities in certain cases. Sometimes, this is an outcome-determinative question.

In the case of Cassirer v. Thyssen-Bornemisza Collection Foundation, the heirs of a Holocaust survivor are seeking to recover a painting by French impressionist Camille Pissarro that was stolen by the Nazis in 1939. The 1897 painting is currently on display in the Thyssen-Bornemisza Museum, a Spanish state museum in Madrid. The U.S. Court of Appeals for the Ninth Circuit ruled against the heirs, saying that federal law called for the application of Spanish law, which allows the holder of stolen property to obtain title through the doctrine of adverse possession. The heirs claim California law, which never allows the holder of stolen property to obtain good title, applies. 

Last week, the U.S. Supreme Court agreed to resolve the question. The pleadings are available on SCOTUSBlog here; more coverage of this interesting issue will follow.

Only one judgment on PIL matters, namely the one in C-581/20, TOTO (first chamber: judges Bonichot, Bay Larsen, Safjan, Jääskinen and Toader, the latter as reporting judge) is scheduled so far for publication in October 2021. It will happen next Wednesday. In addition, two opinions are expected towards the end of the month.

Case C-581/20

The Varhoven kasatsionen sad (Bulgaria) referred the following questions to the Court of Justice:

1) Is Article 1 of [the Brussels I bis Regulation] to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

2) After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [the Brussels I bis Regulation] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

3) If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of [the Brussels I bis Regulation] has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of [the Brussels I bis Regulation] be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

In the case at hand, the State Treasury – Director-General for National Roads, Poland – commissioned the Italian companies Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. to construct the S-5 expressway. Pursuant to clause 20.6 of the contract, the parties agreed on the jurisdiction of the Polish courts. Under the contract, guarantees were provided to ensure the fulfilment of the obligations. Furthermore, another guarantee was issued by an insurance company (ZD ‘Euroins’ AD) to secure payment of a contractual penalty in case of failure to complete the construction works in time.

Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. brought actions in Poland against the State Treasury, seeking a declaration that the defendant is not entitled to demand payment of the contractual penalty agreed in the contract, since the conditions for such payment are not met. The Italian companies requested as well an interim measure obliging the defendant to refrain, in particular, from making use of guarantee provided by ZD ‘Euroins’ AD.

The Polish court considered the applications for an interim measure unfounded. The companies applied then to the Sofia City Court for an interim measure in connection with the actions brought before the District Court of Warsaw. The Sofia City Court rejected that application. The Sofia Court of Appeal reversed the decision and issued an attachment order against the receivable of the Ministry of Finance, Director-General for National Roads and Motorways, Poland, arising from the guarantees above mentioned.

The State Treasury of Poland appealed against the Supreme Court of Cassation (Bulgaria), which is the referring court in the main proceedings.

AG Rantos was asked to provide an opinion on the second question. It was published the 9th of September and can be consulted here – no English translation so far.

Case C-421/20

AG Szpunar’s opinion in C-421/20, Acacia, is due on 28 October. The request comes from the Oberlandesgericht Düsseldorf (Higher Regional Court Düsseldorf, Germany). It focuses on the interpretation (application?) of Article 82(5) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (CDR), whereby “Proceedings in respect of the actions and claims referred to in Article 81(a) and (d) may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened.”

According to Article 81(a) and (d), “The Community design courts shall have exclusive jurisdiction: (a) for infringement actions and – if they are permitted under national law – actions in respect of threatened infringement of Community designs; … (d) for counterclaims for a declaration of invalidity of a Community design raised in connection with actions under (a)”.

The questions referred read as follows

1) In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the CDR apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?

2) If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C 24/16, C 25/16 (Nintendo v BigBen) regarding the determination of the law applicable to subsequent claims under Article 8(2) of [the Rome II Regulation] also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the CDR, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

The case concerns a car manufacturer (the claimant in the main proceedings), who is, inter alia, the registered holder of Community design No 001598277-0002 (‘the Registered Design’). The defendant, an Italian company, manufactures rims for motor vehicles in Italy and sells them throughout the European Union. In Germany, it markets rims under the name ‘WSP Italy’, including the ‘Neptune GT’ model. The claimant considers that the distribution of the rims in Germany by the defendant constitutes an infringement of its Registered Design, whereas the defendant invokes the repair clause in Article 110 of the Council Regulation on Community Designs.

The Landgericht (Regional Court) ordered the defendant – geographically limited to the Federal Republic of Germany – to cease and desist, to provide information, to return documents and to surrender items for the purpose of destruction, and established the defendant’s obligation to pay damages. It based its international jurisdiction on Article 82(5) of the Community Design Regulation, assumed that the defendant had infringed the Registered Design, and applied German law to the subsequent claims asserted (damages, information, rendering of accounts, return of documents and surrender of items for the purpose of destruction) in accordance with Article 8(2) of the Rome II Regulation.

The defendant brought an appeal against that judgment. It continues to rely in particular on Article 110 of the CDR. In addition, it takes the view that under Article 8(2) of the Rome II Regulation Italian law is applicable to the subsequent claims asserted by the claimant

The case has been assigned to the fifth chamber (judges Regan, Lenaerts, Ilešič, Jarukaitis, Lycourgos, the latter as judge-rapporteur).

Case C-498/20

The opinion of AG Campos Sánchez-Bordona on C-498/20, BMA Nederland, is expected on the same day. The questions referred concern jurisdiction in tort matters in relation to a Peeters-Gatzen action, with an association defending collective interests intervening. The sixth chamber (Bay Larsen, Jääskinen and Safjan as reporting judge) will adjudicate.

On Tuesday, Oct 5, 2021, the Hamburg Max Planck Institute will host its 14th  monthly virtual workshop Current Research in Private International Law at 11:00-12:30. Jürgen Basedow (Max Planck Institute for Comparative and International Private Law) will speak, in German, about the topic Aufgabe und Methodenvielfalt des Internationalen Privatrechts im Wandel der Gesellschaft

 

The presentation will be followed by open discussion. All are welcome. More information and sign-up here. If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Against the background of “One Belt, One Road” initiative and the construction of Guangdong-Hong Kong-Macau Great Bay Area, after being elevated to be a national free trade zone a few years ago, Henqin Island located in Zhuhai City of Guangdong Province and neighboring Macau was re-labelled as the deeper integration (cooperation) area between Guangdong and Macau days before. To keep up with this political pace, the Zhuhai Court of International Arbitration (ZCIA) now regularly running its business in Henqing Island was established by the Zhuhai Arbitration Commission with the hope that international business people especially those pursuing Sino-Portuguese speaking countries trade could choose Henqin as the seat for their arbitration. In honor of the National Day of the People’s Republic of China, Oct 1st, ZCIA publicized its updated arbitration rules yesterday. However, this time three versions of different languages were provided simultaneously ie Chinese, Portuguese and English, the last of which was translated by myself. For its latest arbitration rules, please see http://www.zhac.org.cn/?cat=3.