Droit international général

Call for papers: II Jean Monnet Network – BRIDGE Seminar on “Migration and Citizenship in the European Union and Latin America”

Conflictoflaws - lun, 08/09/2021 - 23:07

The Jean Monnet Network – BRIDGE project, cofunded by EU Erasmus+ Programme, and the Latin American Center of European Studies invite the academic community to submit scientific papers to the Workshop event of the II Jean Monnet Network Seminar on “Migration and Citizenship in the European Union and Latin America”, which will be held virtually on the 9 November 2021, hosted by the Federal University of Santa Catarina (Brazil).

The selected articles will be invited to publish in the Latin American Journal of European Studies or in the Collection of the Workshop.  The top two articles will also receive an award of EUR 250 each.

Those who are interested must submit the article by 15 October 2021 to the email: network@eurolatinstudies.com.

Call for papers – English

Call for papers – Spanish

Call for Paper – Portuguese

More information here.

First issue of 2021’s Latin American Journal of European Studies

Conflictoflaws - lun, 08/09/2021 - 23:04

The first issue of the Latin American Journal of European Studies (ISSN 2763-8685) has just been published. It is an open access publication of the Latin American Center of European Studies, created by the BRIDGE Project of Jean Monnet Network with funding from the Erasmus + Program of the European Commission.

The main purpose of the Journal is to publish research related to the European Union Law and Policies and International Relations of the European Union with third countries and Latin America to create new knowledge, build bridges of dialogue, as well exchange good practices between these regions.

The second issue of the Journal is open to submission until November 1st, 2021 and contains a thematic dossier on Migration and Citizenship in the EU and Latin America.

The 2021-1 edition includes the following articles:

 

Dossier: EU-Latin America trade and investment relations

Las relaciones Eurolatinoamericanas en el marco de la nueva política comercial de la Unión Europea, p. 14-37

Carlos Francisco Molina del Pozo

 

Environmental conditionality in Eu-Latin America trade relations, p. 38-63

Giulia D’Agnone

 

El derecho de los tratados en el arbitraje de inversión intra-Unión Europea, p. 64-108

Rafael Tamayo-Álvarez

 

Sistema de solución de controversias en materia de inversiones en los tratados negociados por la Unión Europea con México y el Mercosur (2019/2020): Un estúdio comparativo, p. 109-138

Gabriela Teresita Mastaglia

 

Uma década de política europeia de investimento estrangeiro: balanço e perspectivas futuras, p. 139-156

Maria João Palma

 

Unión Europea-América Latina y el Caribe: comercio e inversión y el acuerdo de asociación Unión Europea-Mercosur en su pilar comercial y sus potenciales efectos em el sector agroindustrial, p. 157-199

Silvia Simonit

 

La integración Centroamericana y el acuerdo de asociación entre esa región y la Unión Europea, p. 200-230

Nancy Eunice Alas Moreno

 

A cooperação jurídica dentro da União Europeia e do Mercosul: a agilização do processo civil internacional no âmbito da regionalização, p. 231-253

Marcel Zernikow

 

A abertura ao comércio internacional da contratação pública no Brasil: entre o Acordo sobre Compras Governamentais (GPA) e o acordo EU/Mercosul, p. 254-296

Nuno Cunha Rodrigues

 

Articles

Data protection implications through an inner-connected world: European Union’s contributions towards the brazilian legislative scenario, p. 297-318

Beatriz Graziano Chow; Clarisse Laupman Ferraz Lima

 

A União Europeia e a questão Turco-Cipriota: aspectos normativos, geopolíticos e migratórios, p. 319-354

Clarice Rangel Schreiner; Eveline Vieira Brigido; Roberto Rodolfo Georg Uebel

 

Interview

Por uma aliança estratégica Mercosul e União Europeia: O papel da Europa para o fortalecimento da Sustentabilidade – Entrevista com Ignacio Ybañez, Embaixador da União Europeia no Brasil

Jamile Bergamaschine Mata Diz

 

The full edition is available here.

 

 

Ex Officio Application of EU Choice of Law Rules: Should the Interests of the Parties Matter?

EAPIL blog - lun, 08/09/2021 - 08:00

As reported by Fabienne Jault-Seseke on this blog, the French supreme court for civil and criminal matters (Cour de cassation) ruled in a judgment of 26 May 2021 that “the principles of primacy and effectiveness of European Union law” require that French courts apply ex officio certain choice of law rules contained in EU Regulations.

This is a significant evolution from the doctrine that the court had adopted 20 years ago. This doctrine was the result of decades of academic debates and changes in the case law of the court. Interestingly enough, at the end of the 1980s, the court had ruled that choice of law rules contained in international conventions (essentially the conventions negotiated under the aegis of the Hague Conference of Private International Law) deserved a different status and should be applied ex officio, but the court dropped this exception a few years later.

Background: The Peculiar Consequence of Applying Choice of Law Rules

As most civil law jurisdictions, France recognises the principle jura novit curia. Article 12 of the French Code of Civil Procedure provides that courts must decides disputes in accordance with the legal rules which are applicable and that they should do so ex officio if necessary.

The extension of these principles to choice of law rules was always debated, however. One likely explanation is that the operation of choice of law rules may result in the designation of foreign law. The content of foreign law needs then to be determined, and this process typically involves private experts who must be remunerated (remarkably, French courts virtually never appoint judicial experts for that purpose, although they routinely do so for establishing complex facts). It is understandable, therefore, that the parties would not always want to engage the resources for establishing the content of foreign law, in particular for cases with limited financial stakes, or involving impecunious parties. The obligation to apply systematically choice of law rules may thus have appeared as generating severe practical difficulties, and it took the Cour de cassation decades to craft a doctrine which would weigh the competing interests in a satisfactory manner.

Why Impose Ex Officio Application when the Parties Could Settle?

The current doctrine of the court was adopted in two judgments of 26 May 1999. The obligation of French courts to apply ex officio choice of law rules has since then been based on a major distinction. In matters where the parties may not dispose of their rights (e.g. parenthood, as in the first 1999 judgment), French courts ought to apply choice of law rules ex officio. In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods, as in the second 1999 judgment), French courts have no obligation to apply choice of law rules if none of the parties raised their application or the application of foreign law. The system is mixed: some choice of law rules must be applied ex officio, others need not.

The distinction is between rights that the parties may dispose of, and rights that parties may not dispose of. The origin of the distinction is to be found in the writings of the most influential scholar in French private international law in the last decades, Pierre Mayer. Mayer argued that, while in principle foreign law should be considered as law and thus applied ex officio, an exception should be made for those rights which the parties could modify, and indeed waive. This is because they could decide to settle their dispute at any time, under any terms. Thus, a pragmatic solution should be to allow them to argue their case under the (French) law of the forum if they so wish. Just as they could have ignored the content of the applicable law to reach a settlement, they should be allowed to implicitly designate another law.

The Scope of the New Obligation to Apply EU Choice of Law Rules Ex Officio

The new rule laid down by the court in the judgment of 26 May 2021 establishes a distinction between two categories of EU choice of law rules. The Cour de cassation rules that the obligation to apply them ex officio is limited to mandatory choice of law rules, and that mandatory choice of law rules are rules that cannot be derogated from. This is a clear reference to party autonomy, that many EU regulations of private international law recognise. The meaning of the ruling is thus that the obligation is limited to the application of choice of law rules for which the European lawmaker did not grant freedom of choice to the parties.

The particular case was concerned with a tort action for unfair competition. The applicable choice of law rule is contained in Article 6 of the Rome II Regulation, and it expressly excludes the power of the parties to choose the applicable law (Art. 6(4)). The rule in Article 6 is thus to be considered as an EU mandatory choice of law rule, and French courts must now apply it ex officio.

In contrast, the general choice of law rule in Article 4 of the Rome II Regulation (application of the law of the place of damage in tort actions) is a default choice of law rule. It only applies in the absence of a choice of the applicable law made by the parties pursuant to Article 14 of the Rome II Regulation. Likewise, in contractual matters, the parties may choose the law governing their contract in most cases (under Article 3), which means than most choice of law rules contained in the Rome I Regulation are defaults.

Although the Court does not say so, it seems clear that the distinction that it has introduced is inspired from its 20 year old doctrine distinguishing between rights that the parties may dispose of, and rights that parties may not dispose of. But it is not absolutely identical. In this case, the action was concerned with an act of unfair competition which affected exclusively the interests of a single competitor (Rome II Regulation, Art. 6(2)). It was governed by general fault based tort liability. The interests involved were purely private, and it is likely that the parties could freely settle the action. Under the old doctrine, it seems that a French court would not have had the obligation to apply the choice of law rule ex officio. Under the new doctrine, it should have, because the parties may not freely choose the applicable law (although they may still freely settle).

Primacy and Effectiveness of EU Law?

Would it be a problem for the effectiveness of EU law if the parties were allowed to argue a case of unfair competition under the law of the forum instead of the law designated by the applicable EU choice of law rule? The Brussels Ibis Regulation grants jurisdiction to a number of courts in the EU, and other courts might apply all choice of law rules ex officio. In most Member States, however, the idea that courts, after ruling that foreign law applies, might then go on and establish the content of foreign law without the cooperation of the parties is, at best, unrealistic. And in most Member States, if foreign law cannot be established, courts will apply the law of the forum. You can lead a horse to water, but you can’t make him drink.

So the crucial question is that of the establishment of the content of foreign law. At the present time, the courts of most Member States do not have the possibility to ascertain the content of foreign law without the assistance of the parties. For this to change, considerable resources would need to be invested, to establish either centre(s) of comparative law which could provide expert opinions, or a network of courts which would be required to cooperate for that purpose. As long as these resources are not invested, the issue of the ex officio application of choice of law rules cannot be addressed without taking into account the interests of the parties.

Crossposted at EULawLive.

CJEU on Article 2 Brussels I bis and transfer decision under Regulation 604/2013

European Civil Justice - dim, 08/08/2021 - 01:53

The Court delivered earlier this week (2 August 2021) its decision in case C‑262/21 PPU (A v B), which is about the impact of a transfer decision under Regulation no 604/2013 on the terms “wrongful removal or retention” under Article 2 Brussels II bis (adoption of the transfer decision followed by its annulment without the tranferred persons being authorised to return). The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 2, point 11, du règlement (CE) no 2201/2003 […] doit être interprété en ce sens que ne peut constituer un déplacement illicite ou un non-retour illicite, au sens de cette disposition, la situation dans laquelle l’un des parents, sans l’accord de l’autre parent, est conduit à emmener son enfant de son État de résidence habituelle vers un autre État membre en exécution d’une décision de transfert prise par le premier État membre, sur le fondement du règlement (UE) no 604/2013 du Parlement européen et du Conseil, du 26 juin 2013, établissant les critères et mécanismes de détermination de l’État membre responsable de l’examen d’une demande de protection internationale introduite dans l’un des États membres par un ressortissant de pays tiers ou un apatride, puis à demeurer dans le second État membre après que cette décision de transfert a été annulée sans pour autant que les autorités du premier État membre aient décidé de reprendre en charge les personnes transférées ou d’autoriser celles-ci au séjour ».

Source : https://curia.europa.eu/juris/document/document.jsf;jsessionid=F6B1AEDDB2F275B0B192DEE518C60676?text=&docid=244847&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=4913022

Event on 12 August 2021: Gary Born on the Hague Choice of Court Convention: Rethinking it

Conflictoflaws - sam, 08/07/2021 - 11:06

This event is organised by CANACO and the Chamber of Commerce of Mexico. Registration is free of charge. To register send a message to the following email address: arbitrajecanaco@arbitrajecanaco.com.mx.

Gary Born’s approach has been controversial. See our previous post here. The EAPIL blog has also been very active on this topic, see the recent post: The 2005 Hague Convention on Choice-of-Court Agreements: A Further Reply to Gary Born. Thus this event promises to be extremely interesting and will allow the further exchange of views.

Rescheduled: “The HCCH 2019 Judgments Convention: Prospects for Judicial Cooperation in Civil Matters between the EU and Third Countries” – Conference on 9 and 10 September 2022, University of Bonn, Germany

Conflictoflaws - jeu, 08/05/2021 - 13:51

Dear Friends and Colleagues,

 

even though the pandemic situation seems to decrease in our part of the world, the University of Bonn remains very careful and will still not allow on-site events of a larger scale for the next months. We have therefore once again made the decision to reschedule the Conference (originally planned for the 25/26 September 2020, and already postponed to 13/14 September 2021) on Friday and Saturday, 9 and 10 September 2022. However, as there are reasonable expectations for the HCCH 2019 Judgments Convention to enter into force around that time, we are confident – especially with a view to the latest recommendations of the European Commission – that we will experience an even more focused and rewarding discussion on the topic.

Please, find below the preliminary programme of the Conference.

 

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 9 and 10 September 2022, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL), and the European Commission (DG Trade, DG Justice).

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

 

Dates:

Friday, 9 September 2022, and Saturday, 10 September 2022.

 

Venue:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

 

Registration: sekretariat.weller@jura.uni-bonn.de

 

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:   INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 9 September 2022

 

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part I: Cornerstones

Chair of Part 1: Prof Dr Matthias Weller

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

  1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam, Netherlands

  1. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

Discussion

 

3.30 p.m.     Coffee Break

 

4.00 p.m.      Part II: Cornerstones (Cont.)

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

  1. Jurisdictional filters

Prof Dr Pietro Franzina, Università Cattolica del Sacro Cuore Milano, Italy

  1. Grounds for refusal

Prof. Dr. Marcos Dotta, Universidad de la República, Uruguay; Sub Director de Asuntos de Derecho Internacional del Ministerio de Relaciones Exteriores de Uruguay

Discussion

  1. Trust management: Establishment of relations between Contracting States

João Ribeiro-Bidaoui, First Secretary of the HCCH, Netherlands

  1. “The Hague System”: Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling, United Kingdom

  1. “The Hague System” and “the Brussels System”: Relations to the Brussels and Lugano Regime

Prof Marie-Élodie Ancel, Université Paris-Est Créteil, France

Discussion

 

7.30 p.m.               Conference Dinner

 

 

Saturday, 10 September 2022

9.00 a.m.     Part III: Prospects for the World

Chairs of Part 3: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

  1. European Union (EU)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

  1. South European Neighbouring and EU Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

  1. Africa (Commonwealth / common law)

Dr. Abubakri Yekini, Lagos State University, Nigeria
Dr. Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

  1. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

Discussion

 

11:00 a.m.    Coffee Break

 

11:30 a.m.    Part IV: Prospects for the World (Cont.)

Chair of Part 4: Prof Dr Nina Dethloff

  1. ASEAN

Adeline Chong, Associate Professor of Law, Singapore Management University, Singapore

  1. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle, United Kingdom

Discussion

 

12:30 p.m.   Part V: Outlook

Chair of Part 5: Prof Dr Matthias Weller

  1. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

  1. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

Discussion

 

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

RECOGNITION AND ENFORCEMENT OF JUDGMENTS AWARDING DAMAGES FOR BREACH OF A CHOICE-OF- COURT AGREEMENT: A QUASI ANTI-SUIT INJUNCTION? – The Supreme Court of Greece refers question...

Conflictoflaws - jeu, 08/05/2021 - 11:57

This post was contributed by Eirini Tsikrika, Master 2 Paris 1 Panthéon-Sorbonne, Ph.D candidate at the National and Kapodistrian University of Athens 

 

On the 25th of June the Supreme Court of Greece has rendered a provisional judgment to request preliminary ruling of the CJEU on the question of compatibility of the right to damages for breach of a choice-of-court agreement with the European ordre public. The judgment forms part of the group of decisions related to the Alexandros T case [Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG ([2014] EWCA Civ 1010)]. The case has also been reported by Apostolos Anthimos, who had already stressed out the importance of an EU level solution, see his blog posts concerning Decisions Nr. 371/2019 and Nr. 89/2020 of the Piraeus Court of Appeal respectively. Also, the procedural history of the case in England is meticulously exposed in the post of Dr. Martin Ilmer.

 

The facts of the case

The dispute arose out of a marine insurance contract, which contained a choice-of-court agreement designating the courts of London as competent. After the shipwreck of the ship, the ship owners brought proceedings against the insurers before the High Court of Justice, which were finally ended with the parties reaching an out-of-court settlement. The settlement agreement itself contained also a prorogation clause in favor of the English courts.

At a later stage, the ship owners brought action before the courts of Piraeus, alleging damages suffered due to the conduct of the other party in the English proceedings. This conduct consisted of the systematic discrediting of the seaworthiness of the ship by using false evidence.

As a response, the insurers contested the jurisdiction of the Greek courts, by invoking the prorogation clauses contained in both the insurance contract and the settlement agreement. Furthermore and while proceedings before the court of Piraeus were still pending, the insurers filed a damages claim before the High Court of Justice for breach of the choice-of-court agreements, seeking recovery for the legal costs and expenses incurred in the Greek proceedings.

Their action was fully accepted by virtue of the [2014] EWHC 3028 (Comm) decision of the High Court of Justice, as the latter acknowledged the existence of a valid, exclusive choice-of-court agreement in favor of the English jurisdiction. Subsequently, the courts of Piraeus declined jurisdiction and dismissed the claim of the ship owners on the grounds of the res judicata effect of the English judgment, while refusing the existence of grounds for non recognition of the English judgment in Greece (Dec. Nr. 899/2016, 28.3.2016, Piraeus Court of First Instance).

 

The decision of the Court of Appeal

The ship owners formed an appeal against the decision of the Court of First Instance, alleging that the latter was wrong to recognize a decision granting compensation for breach of a choice-of-court agreement, on the grounds of violation of the principle of mutual trust and of the European ordre public.  Therefore, the decision of the Court of Appeal (Dec. Nr. 465/2020, 07.03.2019, Piraeus Court of Appeal) was focused on two points:

  1. The affinity of a decision recognizing the right to damages for breach of a choice-of-court agreement with the anti-suit injunctions.
  2. The violation of the procedural ordre public as ground for non recognition and enforcement of such decisions, under the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001 (Brussels I Regulation).

As far as it concerns the first point, the Court of Appeal refused to draw a parallel between the right to damages for breach of a choice-of-court agreement and the anti-suit injunctions, which have been explicitly banned from the system of the Brussels I Regulation by virtue of the CJEU’s Turner v. Grovit and West Tankers v. Allianz decisions (although West Tankers concerned an arbitration agreement, dealing primarily with the question of the Regulation’s scope of application). According to the Greek courts, such decisions do not aim at the international jurisdiction of a foreign court but they refer exclusively to the non-execution of the prorogation agreement-as it would be with the failure to comply with any other contractual obligations- and consequently to the existence or non-existence of contractual liability lying with the violating party. (For a different view on the question of compatibility with the principle of mutual trust, see the analysis included in the doctoral thesis of Dr. Mukarrum Ahmed).

Proceeding with the second point, the court stresses that each decision admitting violation of a choice-of-court agreement and consequently international jurisdiction of the forum prorogatum cannot but correlatively refuse international jurisdiction of the forum yet seized. Hence, that is perfectly tolerated by the European ordre public, since it doesn’t constitute an illegitimate interference in the adjudicatory jurisdiction of a foreign court but results from the mere application of the rules of the Brussels I Regulation. And the Court went on, to point out that even a false application of the rules of the Regulation could not justify the non recognition of the decision of a Member State, since a violation of the rules on international jurisdiction does not establish a violation of the procedural public order. It is clear-the court continues- that the misinterpretation or false application of the rules on international jurisdiction is overridden by the objective of the free circulation of judgments within the European judicial area.

Based on these assertions, the Court of Appeal declared lack of       jurisdiction of the Greek courts to rule on the merits of the case, confirming the decision of the Court of First Instance.

The exequatur procedure and the preliminary reference to the CJEU

In the meantime, a parallel exequatur procedure has been initiated at the insurers’ initiative, who sought to execute the English judgment in Greece. The relevant exequatur request was fully accepted, while the application for refusal of enforcement filed by the ship owners, was rejected. Finally, the ship owners seized the Supreme Court pursuant to Article 44 and Annex IV of the Regulation, so that the question shall be resolved by means of a final and irrevocable decision. The Supreme Court, requesting a preliminary ruling, addressed to the CJEU -almost verbatim- the following questions (Dec. Nr. 820/2021, 25.6.2021, Supreme Court of Greece):

  1. In addition to the conventional anti-suit injunctions, are there any other decisions or orders which, even implicitly, impede the applicant’s right to judicial protection by the courts of a Member State and therefore fall under the scope of the Articles 34 (1) and 45 (1) of the Brussels I Regulation? And more specifically, can a decision granting compensation for breach of a choice-of-court agreement, be considered as being against the European public order?

 

  1. In case of a negative answer to the first question, do such decisions still fall under the scope of the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001, once they are considered as being against the national public policy of Greece, so that the objective of the free movement of civil judgments within the European Union c?uld be overridden in that case?

It needs to be noted that the English, Spanish courts and recently the German BGH have already acknowledged the right to damages for breach of a jurisdiction clause. Yet the CJEU had not the chance to take position on such question, since the forum derogatum was in the previous cases a non EU member-state, where the principle of mutual trust does not apply. It remains to be seen whether the solution adopted by the national courts, will be expanded to the European judicial area. A highly anticipated decision with secondary implications also on the key issue of the nature of a choice-of-court agreement.

“Waiver of State Immunity over Central Bank Accounts! Say No More!”, French Supreme Court Rules

EAPIL blog - jeu, 08/05/2021 - 08:00

This post was contributed by Dr. Sally El Sawah, Avocat aux Barreaux de Paris et du Caire, Registered Foreign Lawyer (England & Wales), Co-Founder & Head of Arbitration and Litigation at JUNCTION (Paris).

In a judgment of 12 May 2021 (no. 19-13.853), the French supreme court for civil and criminal matters (Cour de cassation) ruled that central bank accounts are un-attachable assets according to Article L-153-1 of the Monetary and Financial Code (“CMF”). Therefore, any debate about the waiver by the State of its immunity from execution was irrelevant. Although the entire grounds of appeal before the Cour de cassation were based on the State immunity from execution, its scope and limits and the consequences of its waiver, the Court of cassation has decided to shift the debate to the question of un-attachability (“insaisissabililté”) of central bank accounts. Un-attachability echoes the inviolability for diplomatic property. Even though they produce similar effects, un-attachability, inviolability and immunity are three separate legal concepts such that a waiver of the latter is ineffective to the former two.

Background

It is possible today to talk about the Commisimpex saga, that would join the landmark precedents Noga, NML Capital and Yukos in the realm of State Immunity from execution.

This case is one of the many failed attempts of post-judgment measures of constraint exercised by the Congolese company Commissions Import Export SA (Commisimpex) in execution of two final and enforceable arbitral awards rendered against the Democratic Republic of Congo (“the DRC”) on December 3, 2000, and January 21, 2013. The fact that the contractual documents contained a clause providing for the waiver by the DRC of its immunity from execution was not of great assistance to Commisimpex when it tried to attach the DRC’s and/or its emanations’ assets for over a decade now. These attachments involved a pallet of assets ranging from mere shares in a société civile immobilière (non-trading real-estate company) to bank accounts of the DRC’s consular and diplomatic representations in France.

Here, they involved the Democratic Republic of Congo’s account with the Bank of Central African States (“BEAC”) held in France. This case was another opportunity for the Court of cassation to interpret (and perhaps revisit its reading of) Article L.153-1 of the Monetary and Financial Code (“Article L-153-1CMF) in light of Articles 18 and 19(a) and (b), and 21.1(c) and 21.2 of the United Nations Convention on Jurisdictional Immunities of States and their Property (“UNCSI”, although not yet entered into force, but from the perspective that it is a codification of customary international law), and Article 6§1 of the ECHR and Article 1 of its First Protocol.

Article L-153-1 was adopted in 2005 to limit the possibility of attachment over central bank accounts held in France on behalf of a State, regardless of the identity of the account holder. In other words, even if the account is held in the name of the central bank itself, and not that of the State, this did not constitute a reason to allow the attachments over these accounts. Any attempt to distinguish between the accounts held on behalf of the State based on the purpose for which they were used was also doomed to fail. Whether or not the accounts held on behalf of the State were in use or destined to be used for a commercial purpose was irrelevant. In any event, it was de facto impossible to prove such use for many reasons, amongst which was the principle of banking secrecy. In addition to these restrictions, another one was added by this article; it required the creditor holding a final enforceable title to obtain leave from the execution judge prior to making the attachment (although such requirement does not exist for the other creditors who hold a final and enforceable title against non-sovereigns). In practice, it has become impossible to seize central bank accounts in France, regardless of their holder or the purpose of their use.

Analysis

As expressly mentioned in the travaux préparatoires, the purpose behind Article L153-1 was to increase the competitiveness of Paris as an attractive financial hub of foreign central bank reserves. Such purpose was sufficient for the Court of cassation to declare the conformity of Article L153-1 with the French Constitution (Cass. civ. 2, July 11, 2013, no. 1340.036). The conformity of this article with the ECHR was also confirmed by the French Court of cassation (Cass. civ. 2, January 11, 2018, no. 16-10.661). In that decision, the Court of cassation affirmed that the restriction to article 6§1 was reasonable and proportionate insofar as it pursued the legitimate purpose of complying with customary international law rules. It was proportionate since even though the burden of proof that the accounts held by the Central Bank for its own account was used for other than governmental non-commercial purposes difficult, it was not impossible.

In the judgment commented here, the appellant raised similar arguments. On the one hand, Commisimpex tried to convince the Court of cassation that there was waiver of state immunity from execution. On the other hand, the alternative measures of recourse providing for a possible recourse by the Creditor before administrative courts to engage the responsibility of the French State for violation of the principle of equality before public charges when it granted immunity from execution to the foreign State were not applicable in the case at hand. Indeed, Commisimpex was not a taxpayer in France, and thus could not avail itself of the possibility of recourse before French administrative courts (definitely, the appellant was alluding to the Court of cassation’s decision of May 25, 2016, no. 15-18.646).

Following its traditional stern and concise way of making solemn declarations of principle, the Court of cassation stated that the purpose behind Article L.153-1 was to protect the functioning of institutions which contribute to the definition and implementation of the State monetary policy and to prevent the blockade of foreign exchange reserves deposited in France. This purpose was legitimate. Accordingly, the subsequent restriction to the right of property and the right of access to court and to an effective execution of final judicial decisions which resulted from the un-attachability of these accounts was legitimate. It was also proportionate insofar as it was limited to the central bank assets deposited in France and did not encompass all the other property of the State. Therefore, there was no violation of Article 6§1 of the ECHR, nor of the right to property under Article 1§1 of the Additional Protocol to the ECHR.

However, the Court of cassation’s declaration that the proportionality test was met since State assets other than central bank accounts could be seized is strikingly theoretical. Indeed, the Loi Sapin II, adopted in 2016, has embraced the same approach as in L-153-1 CMF with a requirement of prior leave and a presumption of the governmental non-commercial nature of State assets listed in that law, which rendered any possible enforcement over State assets illusionary.

It is noteworthy that in this decision, the attachment pursued the Democratic Republic of Congo’s account with the Bank of Central African States, and not those of the Central Bank of Congo (“CBC”). The BEAC operates as the central bank of six African States including the Democratic Republic of Congo and coexists in parallel with the CBC. The broad wording of Article L.153-1 which uses the terms “central bank” and “monetary authority” allows the protection of not only the CBC, but also any other entity which performs central bank functions and acts as a State’s monetary authority, such as the BEAC according to its Charter (Article 1). However, the main difference between these two central banks is that the BEAC in fact enjoys the privileges and immunities of international organisations (Article 6.1 of its Charter). One may wonder in such case whether Article L-153-1 CMF was the right provision to apply, and thus, whether there was room for the application of the so-called “un-attachability”. Indeed, Article 6.6 of the BEAC’s Charter provides that “only the net credit balances of accounts opened in the books of the Central Bank may be subject to seizure, in execution of a final judicial decision”. It is striking that this issue was not addressed by the Court of cassation (perhaps it has not been raised by the appellants before the Court of Appeal in the first place).

Regardless of the particularity of the BEAC and its Charter, what seems more striking though, is the absence of any reference whatsoever to Article 21.2 UNCSI, which provides for a possible attachment of central banks accounts in case of express waiver according to Articles 18.a and 19.a of the UNCSI.  Placing the debate on the ground of un-attachability allowed the Court of cassation to mute any possible argument based on such waiver. Immunity and un-attachability are two different concepts. The waiver by the DRC of its immunity from execution was thus inoperative and could not encompass un-attachable assets. Hence, the Court of cassation did not have to conciliate the un-attachability of Article L.153-1 CMF with the regime of central bank accounts under UNCSI.

Most likely, the real reason behind the Court of cassation’s new approach lies in the bad experience it has encountered when it has tried to be bold back in 2015 in the same Commisimpex Saga (Cass. Civ. 1e, May 13, 2015, no. 13-17.751). One may recall that, back then, the bold yet accurate interpretation adopted by the Court of cassation of Article 21 UNCSI to tackle the issue of waiver of State immunity from execution over diplomatic bank accounts has cost it the “legislative censure” by the Sapin II Act. This legislative reform has de facto rendered any possible execution over foreign States’ assets practically impossible. It is permissible in these circumstances to say that State immunity from execution in France has in fact become (quasi) absolute. Any kind of State property which is not evidently and ostensibly commercial, will be protected by State immunity from execution, and when the conditions for an exception thereto can be met, French courts could avoid the discussion by inventing a new layer of protection that it may call un-attachability …

Of course, it is important to attract foreign exchange reserves to the deposit of the Banque de France, yet, not at the high price of the Rule of law.

The 2005 Hague Convention on Choice-of-Court Agreements: A Further Reply to Gary Born

EAPIL blog - mar, 08/03/2021 - 08:00

After arguing that States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention, Gary Born received a series of serious criticisms by Trevor Hartley, Andreas Bucher and the Hague Conference of Private International Law.

Mr Born has responded to some of these criticisms in two further posts at the Kluwer Arbitration Blog.

At the invitation of the Editors of the EAPIL Blog, Trevor Hartley, Professor emeritus at the London School of Economics, offers the following rejoinder.

I assume we can all agree on two things: first, corrupt and biased judges exist; secondly, corrupt and biased arbitrators exist. Since the parties to an arbitration agreement choose the arbitrators and the parties to a choice-of-court agreement choose the court, this ought not to be a problem. However, for one reason or another, a party to an arbitration agreement may find himself before an arbitrator whom he believes to be corrupt and biased; likewise, a party to a choice-of-court agreement may find himself before a judge whom he believes to be corrupt and biased. If we can agree on all this, the matter comes down to the safeguards against the enforcement of a corrupt award under the New York Convention and the safeguards against the enforcement of a corrupt judgment under the Hague Convention. I want to examine this in order to see how the two instruments compare.ague Convention.

The grounds for refusing to recognize or enforce an award are set out in Article V of the New York Convention. The equivalent grounds under the Hague Convention are in Article 9. We will consider them one by one.

Arbitration Agreement Invalid

Under New York, an award will not be recognized or enforced if the arbitration agreement was invalid: Article V(1)(a). This covers incapacity of the parties and other grounds of invalidity. The capacity of the parties is governed by ‘the law applicable to them’; other grounds of validity are governed by the law to which the parties have subjected the agreement or, failing any indication thereon, the law of the country where the award was made. Under Hague, a judgment under a choice-of-court agreement will also be refused recognition if the agreement is null and void: Article 9(a). The applicable law is stated to be the law of the State of the chosen court; but if the chosen court has already held the agreement to be valid, this is conclusive.

However, under Article 9(b) of Hague, recognition and enforcement may also be refused if a party lacked capacity to conclude the agreement under the law of the requested State (the State asked to recognize the judgment). Thus, New York is slightly stronger in general, in that it gives the parties the right to subject the validity of the agreement to some law other than that of the country where the award is made. However, Hague is slightly stronger as regards capacity, in that it requires capacity to exist under both the law of the chosen court and the law of the country asked to recognize the judgment.

Insufficient Notice

Under New York, another ground for non-recognition is that the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case: Article V(1)(b). Under Hague, there are two grounds for non-recognition. Under Article 9(c)(i), recognition may be refused if the document which instituted the proceedings (or an equivalent document, including the essential elements of the claim) was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence. However, the defendant loses this right if he entered an appearance and presented his case without contesting notification in the court of origin (provided that the law of the State of origin permitted notification to be contested). This has the same effect as the ground under New York, though Hague is more fleshed out. The second ground under Hague is that the document was notified to the defendant in the requested State in a manner that was incompatible with fundamental principles of the requested State concerning service of documents: Article 9(c)(ii). This has no equivalent under New York.

New York is slightly wider in that it also permits non-recognition where the party is ‘otherwise unable to present his case’. There is no exact equivalent to this under Hague, though if his inability to present his case is due to chicanery by the other party, Article 9(d) would come into play. This gives another ground for non-recognition, namely that the judgment was obtained by fraud in connection with a matter of procedure.

Outside the Scope of the Submission

Under New York, recognition of an award can be challenged on the ground that the award deals with a difference outside the scope of the submission to arbitration: New York, Article V(1)(c). At first sight, there appears to be no equivalent to this in Hague. However, the duty to recognize and enforce a judgment applies only to a judgment given by a court of a Contracting State ‘designated in an exclusive choice of court agreement’: Hague, Article 8(1). The term ‘exclusive choice of court agreement’ is defined in Article 3(a) as an agreement that designates a court (or several courts) ‘for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship’ (italics added). If the designated court decided a matter that did not concern the legal relationship specified in the choice-of-court agreement, it could be argued that the court was no longer designated in the choice-of-court agreement. Then the judgment would not be subject to recognition and enforcement under the Convention. If this is right—and it surely must be—the Hague Convention produces the same result.

Composition of the Arbitral Authority

Another ground for non-recognition under New York is that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties (or, failing such agreement, was not in accordance with the law of the country where the arbitration took place): New York, Article V(1)(d). For obvious reasons, there is no equivalent to this under Hague. However, if the court which gave the judgment was not designated in the choice-of-court agreement, the judgment would not, for the reasons explained in the previous paragraph, be subject to recognition and enforcement under the Convention.

Award Not Binding on the Parties

Under New York, recognition and enforcement of an award may be refused if it has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made: Article V(1)(e). This is supported by Article VI, which makes provision for the adjournment of enforcement proceedings where an application is made for the setting aside or suspension of the award. Under Hague, there are two provisions, which together have the same effect. The first is Article 8(3), which provides that a judgment will be recognized only if it has effect in the State of origin and will be enforced only if it is enforceable in the State of origin. If has been set aside or suspended in the State of origin, it will not be recognized or enforced. The second is Article 8(4), which provides that recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review has not expired. (It goes on to say that a refusal does not prevent a subsequent application for recognition or enforcement of the judgment.) Taken together, these provisions give protection that is at least as good as that under New York.

Subject Matter Not Capable of Settlement by Arbitration

Another ground for non-recognition under New York is that the subject matter of the difference is not capable of settlement by arbitration under the law of the country in which enforcement is sought. There is no equivalent to this under Hague since there are few matters within the subject-matter scope of the Convention that are not capable of settlement by a court. However, if the judgment did concern such a matter, public policy could be invoked.

Public Policy

In both New York and Hague, the most important safeguard is the provision which allows recognition and enforcement to be refused on the ground of public policy. The relevant provision in New York is Article V(2)(b) and in Hague it is Article 9(e). The provision in New York simply says that recognition and enforcement may be refused if it would be contrary to the public policy of the country concerned. Hague, however, is a little more detailed. After saying that recognition or enforcement may be refused if it would be manifestly incompatible with the public policy of the requested State, it adds ‘including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’.

A Problem

This all seems clear; however, there is a problem. Article 8(2) of Hague provides that the court asked to recognize and enforce the judgment is bound by the findings of fact on which the court of origin based its jurisdiction (unless the judgment was given by default). Does this mean that if the court of origin ruled that its members were not corrupt, the court asked to recognize and enforce the judgment cannot question this? If this were true, it would be a serious defect. However, the answer is given in the Explanatory Report, which was approved by all the States that participated in the Conference which drew up the Convention. The relevant paragraphs are 166–169. The first point made is that the court addressed will not have to accept the legal evaluation of the facts adopted by the court of origin. For example, if the court of origin found that the choice-of-court agreement was concluded by electronic means that satisfied the requirements of the Convention, the court addressed would be bound by the finding that the agreement was concluded by electronic means, but not by the finding that it satisfied the requirements of the Convention.

The second point is that the court asked to recognize and enforce the judgment is only bound by the findings of fact of the court of origin with regard to the grounds of non-recognition specified in Article 9(a) and (b). The rule does not apply to the grounds in the other sub-paragraphs of Article 9, that is sub-paragraphs (c), (d) and (e). This is because these latter provisions do not concern jurisdiction. The Report states in paragraph 167:

The position is different with regard to the grounds of non-recognition laid down in sub-paragraphs c), d) and e) of Article 9. These are not concerned with jurisdiction under the Convention, but with public policy and procedural fairness. Thus, the court addressed must be able to decide for itself, in accordance with these sub-paragraphs, whether the defendant was notified; whether there was fraud; or whether there was a fair trial: a finding by the judge of origin that he did not take a bribe, for example, cannot be binding on the court addressed.

A footnote adds that this also applies to a finding by an appeal court that the first instance judge was not guilty of corruption.

Paragraph 168 of the Report continues:

The same is true with regard to procedural fairness under sub-paragraph e). Assume that the defendant resists recognition and enforcement on the ground that the proceedings were incompatible with the fundamental principles of procedural fairness of the requested State. He claims that he was not able to go to the State of origin to defend the case because he would have been in danger of imprisonment on political grounds. A finding by the court of origin that this was not true cannot be binding on the court addressed. Where matters of procedural fairness are concerned, the court addressed must be able to decide for itself.

In view of this, we can conclude that rule that findings of fact are binding does not seriously compromise the safeguards.

Conclusions

As this short discussion has shown, the safeguards in the two instruments have almost the same effect. One cannot say that one is better than the other. In any event, where the judgment is tainted by corruption or bias, public policy would always ensure that it was not recognized or enforced. Of course, there is the question of proof, but this is just as much a problem in the case of an award as in the case of a judgment.

Paul Herrup & Ron Brand on the Hague Conference Approach to Parallel Proceedings

Conflictoflaws - lun, 08/02/2021 - 15:45

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and of an instrument that would channel parallel proceedings to a “better’ forum.

The authors of this brief article advance the view that a convention regulating jurisdiction is not a good approach, but that an instrument finding a “better” forum in parallel proceedings, constructed on an open-minded and non-dogmatic basis, is needed, desirable, and feasible.

The piece is located here.

HCCH Monthly Update: July 2021

Conflictoflaws - lun, 08/02/2021 - 09:58
Membership

On 1 July 2021, Mongolia deposited its instrument of acceptance of the Statute, becoming the 89th Member of the HCCH. More information is available here.

Conventions & Instruments  

On 3 July 2021, the HCCH 1961 Apostille Convention entered into force for Jamaica. It currently has 120 Contracting Parties. More information is available here.

On 30 July 2021, the HCCH 1970 Evidence Convention entered into force for Georgia. It currently has 64 Contracting Parties. More information is available here.

Meetings & Events

From 5 to 9 July 2021, the Experts’ Group on Parentage/Surrogacy met for the ninth time, via videoconference. The Group discussed the scope of the possible draft Convention on legal parentage and the scope of the possible draft Protocol on legal parentage established as a result of an (international) surrogacy arrangement. More information is available here.

On 27 July 2021, the Permanent Bureau announced that Edition 2021 of HCCH a|Bridged will be dedicated to the HCCH 2005 Choice of Court Convention and held online on 1 December 2021. More information is available here.

On 28 July 2021, the Permanent Bureau launched the Advancing and Promoting the Protection of All Children (Approach) Initiative, in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. As part of this initiative, the Permanent Bureau is organising two competitions: the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition. Submissions are due on 1 October 2021. More information is available here.

Publications & Documentation

On 2 July 2021, the Permanent Bureau announced the publication of translations, in Albanian, Macedonian, and Bosnian-Serbian-Montenegrin languages, of the Explanatory Report on the HCCH 2019 Judgments Convention. These are the first available translations after the official publication of the Explanatory Report in October 2020. They were supported by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), Open Regional Fund for South East Europe – Legal Reform (ORF – Legal Reform). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

August 2021 at the Court of Justice

EAPIL blog - lun, 08/02/2021 - 08:00

The decision corresponding to case C-262/21 PPU A, will be delivered on 2 August 2021. It corresponds to a preliminary reference from the Supreme Court of Finland, with five questions on Regulation 2201/2003 and the 1980 Hague Convention, as well as on the interface between the first one and the Dublin III Regulation. Practicalities surrounding the application of Article 11(4) Brussels II bis regulation are also at stake.

1. Must Article 2(11) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (‘the Brussels II bis Regulation’), relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation (EU) No 604/2013 of the European Parliament and of the Council (‘the Dublin III Regulation’), must be classified as wrongful removal?

2. If the answer to the first question is in the negative, must Article 2(11) of the Brussels II bis Regulation, relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, but in which the child whose return is ordered no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?

3. If, in the light of the answer to the first or the second question, the Brussels II bis Regulation must be interpreted as meaning that there is a wrongful removal or retention of the child, and that he or she should therefore be returned to his or her State of residence, must Article 13(b) of the 1980 Hague Convention be interpreted as precluding the child’s return, either

(i) on the ground that there is grave risk, within the meaning of that provision, that the return of an unaccompanied infant whose mother has personally taken care of him or her would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation; or

(ii) on the ground that the child, in his or her State of residence, would be taken into care and placed in a hostel either alone or with his or her mother, which would indicate that there is a grave risk, within the meaning of that provision, that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation: or

(iii) on the ground that, without a currently valid residence document, the child would be placed in an intolerable situation within the meaning of that provision?

4. If, in the light of the answer to the third question, it is possible to interpret the grounds of refusal in Article 13(b) of the 1980 Hague Convention as meaning that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, must Article 11(4) of the Brussels II bis Regulation, in conjunction with the concept of the child’s best interests, referred to in Article 24 of the Charter of Fundamental Rights of the European Union and in that regulation, be interpreted as meaning that, in a situation in which neither the child nor the mother has a currently valid residence document in the child’s State of residence, and in which therefore have neither the right to enter nor the right to remain in that State, the child’s State of residence must make adequate arrangements to secure that the child and his or her mother can lawfully remain in the Member State in question? If the child’s State of residence has such an obligation, must the principle of mutual trust between Member States be interpreted as meaning that the State which returns the child may, in accordance with that principle, presume that the child’s State of residence will fulfil those obligations, or do the child’s interests make it necessary to obtain from the authorities of the State of residence details of the specific measures that have been or will be taken for the child’s protection, so that the Member State which surrenders the child may assess, in particular, the adequacy of those measures in the light of the child’s interests?

5. If the child’s State of residence does not have the obligation, referred to above in the fourth question, to take adequate measures, is it necessary, in the light of Article 24 of the Charter of Fundamental Rights, to interpret Article 20 of the 1980 Hague Convention, in the situations referred to in the third question, points (i) to (iii), as meaning that that provision precludes the return of the child because the return of the child might be considered to be contrary, within the meaning of that provision, to the fundamental principles relating to the protection of human rights and fundamental freedoms?

AG Pikamäe’s Opinion was published in French and Finnish on July 14. He proposed the Court to answer as follows (translation by the author):

Council Regulation (EC) No 2201/2003 … must be interpreted as meaning that the situation, such as that in the main proceedings, in which a child and its mother have moved and remain in a Member State in execution of a transfer decision taken by the competent authority of the Member State of origin in accordance with Regulation (EU) No 604/2013 … cannot be considered as unlawful removal or retention within the meaning of Article 2 (11) of Regulation No 2201/2003, except if it is established that, under cover of an application for international protection made for the child, the mother has de facto tried circumvent the rules of judicial jurisdiction provided for by Regulation No 2201/2003, which is for the referring court to verify in the light of all the specific circumstances of the case.

The case will be decided by the First Chamber (M. Bonichot, as reporting judge ; M. Bay Larsen, Mme. Toader, M. Safjan, M. Jääskinen).

Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms has entered into force – beware: the time for filing an application has been shortened from 6 to 4 months

Conflictoflaws - dim, 08/01/2021 - 11:01

Today (1 August 2021) the Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms has entered into force. This Protocol will apply in all 47 States Parties. Although it was open for signature/ratification since 2013, the ratification of Italy only occurred until 21 April 2021.

In the past, we have highlighted in this blog the increasing interaction between human rights and private international law and the need to interpret them harmoniously (see for example our previous posts here (HCCH Child Abduction Convention) and here (transnational surrogacy))

Protocol No. 15 has introduced important amendments to the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In particular, it has included the principle of subsidiary and the doctrine of the margin of appreciation in the preamble, which have long and consistently been adopted by the case law of the European Court of Human Rights (ECtHR), and thus this is a welcome amendment.

It will now read as follows (art. 1 of the Protocol):

“Affirming  that  the  High  Contracting  Parties,  in  accordance  with  the  principle  of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation,  subject  to  the supervisory  jurisdiction  of  the  European  Court  of  Human Rights established by this Convention”.

Of great important is the shortening of the time for the filing of an application in accordance with article 35 of the ECHR: from 6 to 4 months. This amendment will enter into force 6 months later (I assume on 1 February 2022). Articles 4 and 8(3) of the Protocol state the following:

Article 4

“In Article 35, paragraph 1 of the Convention, the words “within a period of six months” shall be replaced by the words “within a period of four months”.

Article 8(3)

“Article 4 of this Protocol shall enter into force following the expiration of a period of six months after the date of entry into force of this Protocol. Article 4 of this Protocol shall not apply to applications  in  respect  of  which  the  final  decision  within  the  meaning  of  Article  35, paragraph 1 of the Convention was taken prior to the date of entry into force of Article 4 of this Protocol” (our emphasis).

This is perhaps a reaction to the increasing workload of the Court, which seems to be of serious concern to the States Parties. In particular, the Brighton declaration has noted that “the number of applications made each year to the Court has doubled since 2004. Very large numbers of applications are now pending before all of the Court’s primary judicial formations. Many applicants, including those with a potentially well-founded application, have to wait for years for a response.” Undoubtedly, this may compromise the effectiveness and reliability of the ECtHR. Nevertheless, this reduction of the filing time may also leave out cases that are well founded but during which the parties were late in realising that such recourse / legal challenge was available.

Lastly, I would like to highlight the removal of the right of the parties to object to the relinquishment of jurisdiction to the Grand Chamber in certain circumstances, such as when a case pending before a Chamber raises a serious question affecting the interpretation of the ECHR or its protocols (art. 3 of the Protocol and art. 30 ECHR). In my view, this is an improvement and avoids delays as it allows the Chamber to make that call. It also provides consistency to the case law of the ECtHR. As to its entry into force, article 8(2) of the Protocol sets out the following:

“The amendment introduced by Article 3 of this Protocol shall not apply to any pending case in which one of the parties has objected, prior to the date of entry into force of this Protocol, to a proposal by a Chamber of the Court to relinquish jurisdiction in favour of the Grand Chamber”

 

 

Call for papers – The European Legal Forum

Conflictoflaws - sam, 07/31/2021 - 18:25

Since 2000, the European Legal Forum informs about developments in various areas of the European ius commune. Special emphasis is placed on private international law, European and international civil procedure, family law and successions. The EuLF is directed at an international readership and provides researchers and legal practitioners with in-depth information on current developments in case law and legislation.

The Board of Editors is pleased to invite manuscripts in English on the above topics, but also other areas of international law and European Union law, in the form of articles, case summaries and book reviews.

Papers submitted by 1 October 2021 will be reviewed for publication in the autumn/winter editions 2021/2022.

Papers may be submitted via e-mail. Please feel free to contact us for any queries and additional information: redaktion@unalex.eu

Registration Open! Special Lecture on ‘Private Law Remedy for Breaches of International Law Norms’ by Jindal Society of International Law, OP Jindal Global University, India.

Conflictoflaws - ven, 07/30/2021 - 10:58

Jindal Society of International Law, in pursuance of fostering fruitful conversations on international law, is delighted to present and host the Fall Lecture Series of 2021, titled ‘Exploring the Ecosystem of International Law’. The lecture on ‘Private Law Remedy for Breaches of International Law Norms’ is the first lecture in this twenty-three part lecture series, which is being held from August to November 2021.

About Jindal Society of International Law

The Jindal Society of International Law is a student-led initiative under the aegis of the Centre for the Study of United Nations of Jindal Global Law School, and the guidance of Faculty Coordinator Professor (Dr.) Vesselin Popovski. Founded in 2020, this Society is an initiative to provide a platform to young international law enthusiasts.The purpose of this Society is to increase student interaction with the subject matter of International Law through its various initiatives. Rather than being primarily research-driven, we intend to offer a host of experiences that contribute towards skill-building, thereby increasing the knowledge database available to students. This Society is an attempt to bridge the lacuna by streamlining resources and inculcating an overall interest in the vast expanses of International Law. We aim to provide a space to young international law enthusiasts to nurture their interest in the field.

About the Lecture Series ‘Exploring the Ecosystem of International Law’

Our Fall Lecture Series of 2021, ‘Exploring the Ecosystem of International Law’, builds upon the introduction given on internationalism and international law by the concluded Spring Lecture Series, titled ‘Future of Internationalism and International Law’. The Fall Series endeavours to study the different contours of international law. To assist in this study, the speakers will cover and address their respective areas of expertise, based upon their years of research and practice. Given the vast ecosystem and the engagement of international law in it, the Society aims to study the fragmentation and fertilisation of the various disciplines in this ecosystem.

The lowest common denominator in this Fall Lecture Series is to enhance and provide a deeper understanding of international law through international lawyers. The Society, for its Members, is a well of knowledge and a quorum of thought provoking discussions, which will be resultant of this engagement with experts aimed at exploring the ecosystem of international law.

About the Lecture ‘Private Remedy for Breaches of International Law Norms’

The first lecture of our Fall 2021 Lecture Series, ‘Exploring the Ecosystem of International Law’, is on the topic ‘Private Remedy for Breaches of International Law Norms’. The lecture will be hosted online and is scheduled for 17:00 IST on 6th August 2021. The distinguished speaker for this lecture is Ms. Vasuda Sinha and with this lecture being the inaugural session, the opening remarks shall be given by Professor Dr. Vesselin Popovski.

Join Us for this Interesting Lecture!

In order to be a part of this lecture, attendees are requested to register themselves for the lecture through the following the link: https://www.eventbrite.co.uk/e/164448390563. Kindly register yourself as soon as possible to not miss out on this lecture, given that there are limited number of seats!

The lecture will be held online on Zoom and will also be simultaneously be live-streamed on YouTube. The registration link provides for all the necessary information regarding this.

For any further queries or for additional information regarding the Fall 2021 Lecture Series or other initiatives of Jindal Society of International Law, kindly visit our website.You can also follow and engage with us on LinkedInTwitter and Instagram!

 

Professor Burkhard Hess on “Reforming the Brussels Ibis Regulation: Perspectives and Prospects”

Conflictoflaws - ven, 07/30/2021 - 10:33

A thought-provoking and much welcome contribution was posted by Prof. Dr. Dres. h.c. Burkhard Hess on SSRN, setting the stage for the discussion on the status quo in the application and the prospects of the Brussels IbisRegulation.

The article, titled “Reforming the Brussels Ibis Regulation: Perspectives and Prospects”, may be retrieved here.

The abstract reads as follows:

According to article 79 of Regulation (EU) 1215/2012, the EU Commission shall present a report on the application of the Brussels Ibis Regulation by 11 January 2022. This paper intends to open the discussion about the present state of affairs and the necessary adjustments of the Regulation. Although there is no need to change its basic structure, the relationship of the Brussels Ibis Regulation with other EU instruments (as the General Data Protection Regulation) should be reviewed. There is also a need to address third-State relationships and cross-border collective redress. In addition, the paper addresses several inconsistencies within the present Regulation evidenced by the case law of the CJEU: such as the concept of contract (article 7 no 1), the place of damage (article 7 no 2), the protection of privacy and the concept of consumers (articles 17 – 19). Finally, some implementing procedural rules of the EU Member States should be harmonised, i.e. on the assessment of jurisdiction by national courts, on judicial communication and on procedural time limits. Overall, the upcoming review of the Brussels Ibis Regulation opens up an opportunity to improve further a central and widely accepted instrument of the European law of civil procedure.

International & Comparative Law Quarterly: Issue 3 of 2021

EAPIL blog - ven, 07/30/2021 - 08:00

The new issue of International & Comparative Law Quarterly (Volume 70, Issue 3) is out. Some of articles concern directly or indirectly questions of private international law. Their abstracts are provided below.

The whole issue is available here. Some of articles are available in open access.

A. Poon, Determining the Place of Performance under Article 7(1) of the Brussels I Recast, pp. 635-663

This article calls for a reassessment of the methodology in determining the place of contractual performance under Article 7(1) of the Brussels I Regulation Recast. The first part of the article deals with Article 7(1)(a). It argues that in light of the adoption of autonomous linking factors under Article 7(1)(b), more types of contracts presently not covered within the ambits of Article 7(1)(b) should centralise jurisdiction at the places of performance of their characteristic obligations. The second part of the article considers the way Article 7(1) operates when there are multiple places of performance under the contract. The test devised by the Court of Justice of the European Union in this regard is not only difficult to apply, but the application of the test also often does not guarantee a close connection between the claim and the court taking jurisdiction. This article argues that when a claim is made in respect of a contractual obligation to be performed in more than one Member State, Article 4 should be applied instead of Article 7(1).

A. Xu, A New Solution Concerning Choice-of-Law for the Assignment of Debts, pp. 665-696. Available in open access.

This article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

SCaserta, P. Cebulak, Resilience Techniques of International Courts in Times of Resistance to International Law, pp. 737-768

International courts are increasingly called upon to adjudicate socially divisive disputes. They are therefore exposed to a heightened risk of backlash that questions their authority and impedes the implementation of their judgments. This article puts forward an analytical framework for mapping the resilience techniques used by international courts to counter this growing resistance. Case studies involve the Court of Justice of the European Union, which has been cautious in its stance regarding democratic backsliding in Hungary and Poland, and the Caribbean Court of Justice, which has engaged in legal diplomacy while adjudicating both on the land rights of indigenous groups and on Lesbian Gay Bisexual Transgender Queer and Intersex (LGBTQI) rights. It is argued that, in order to effectively avoid and mitigate backlash, international courts should deploy resilience techniques that go beyond merely exercising their judicial function. The successful deployment of resilience techniques can allow international courts to become significant actors in global governance during a time of crisis for the international liberal order.

The First Postgraduate Law Conference of the Centre for Private International Law- University of Aberdeen

Conflictoflaws - jeu, 07/29/2021 - 10:50

The Centre for Private International Law (CPIL) of the University of Aberdeen is pleased to host its first postgraduate conference, which is to be held on 17 November 2021. The Postgraduate Law Conference aims at bringing together early career scholars working in the private international law field or at the intersection of European Union law and Private International Law. The purpose is for scholars to present their research before esteemed peers with relevant expertise and receive valuable feedback for further development from academic experts.

 

The Conference will include panels on Private International Law aspects of International Family Law, International Commercial Law and ADR as well as European Union Law and will be complete with the unrivalled expertise of the Members and Associate Members of the CPIL and external scholars. For a full list of the participating scholars and to download the Call for Papers form, please click here. The deadline for the Call for Papers is 31 August 2021.

 

Which ‘Dubai’? Guest post on Goel v Credit Suisse. The DIFC Court of Appeal on choice of court for ‘the Courts of Dubai’.

GAVC - mer, 07/28/2021 - 13:01

This guest  post was written by Ahmed Alzaabi, a legal researcher based at Abu Dhabi. It is great material for comparative conflicts purposes, as it highlights issues like ‘clearly demonstrated’ choice of court, hybrid jurisdiction clauses, and lex contractus for choice of court. Geert.

Introduction

The Dubai International Financial Center Court of Appeal (DIFC CA) delivered an interesting judgment in Goel and others v Credit Suisse (Switzerland) Limited [CA-002-2021} on 26 April 2021, which addresses the DIFC Courts opt-in jurisdiction. It is the most important decision since the opt-in clauses came into force in 2011. The case deals with personal guarantees entered into by Goel and others as Guarantors, and Credit Suisse AG as Lender. A term of the guarantee agreements refers to the jurisdiction of the “Courts of Dubai”.

An ex parte application was filed before the DIFC Court of First Instance (CFI) and was dismissed by H.E. Justice Ali Al Madhani on ground that the words “Courts of Dubai” were not specific, clear and express as required by Article 5(A)(2) of the DIFC Judicial Authority Law[i] (“JAL”) to opt-in into the DIFC jurisdiction.

The application was appealed and determined by Justice Wayne Martin, who ruled that the DIFC CFI has the jurisdiction to hear and decide any substantive claim filed by the Respondent. Justice Wayne Martin issued a world-wide freezing order (WFO) against the Guarantors and the order was appealed on the basis that the jurisdiction term in the Guarantee Agreements refers to the Courts of Dubai, and not to the DIFC Courts, therefore, the DIFC Courts shall have no jurisdiction to decide on this matter. The DIFC CA dismissed the appeal and upheld the ruling of Justice Wayne Martin.

Overview of the dispute:

  • Description of the parties. Credit Suisse AG (was a DIFC Establishment), and Credit Suisse (Switzerland) LIMITED (Respondent) are both subsidiary banks wholly owned by a Credit Suisse Group (a company registered in Switzerland). Goel and others (Appellants) are shareholders and directors of GP FZC (a parent company of GP Group of companies and offices all over the world).
  • Facts. On 13 May 2016, the Appellants entered into Guarantee Agreements with the Credit Suisse AG guarantying the performance of various borrowers of GP Group under a Credit Facility Agreement. Furthermore, on September 2016, Guarantee Transfer Agreements were signed between the Credit Suisse AG and the Appellants providing for the transfer of the rights and obligations of the guarantees to benefit the Respondent. The Appellants undertook to perform their obligations toward the Respondent as if the Respondent has been a party to the original Guarantee Agreements. At the time of signing the Guarantee and Transfer Agreements, the Credit Suisse AG was a “DIFC Establishment” within the definition of DIFC JAL. Neither Appellants nor Respondent were a DIFC Establishment.

The Guarantee Agreements provide in its clause 16 that the governing law is the Law of the Emirate of Dubai and the Applicable Federal Law of the United Arab Emirates. Clause 17 of the Guarantees (enforcement provision) refers to the jurisdiction of the Courts of Dubai, and clause 17.1 entitles the lender, Credit Suisse AG, to initiate legal proceedings before any other competent court. On the other hand, clause 7 of the Guarantee Transfer Agreements[ii] refers to the applicable law and jurisdiction, which states that any contractual or non- contractual obligations of the Transfer Agreements shall be governed by the Laws of the Emirate of Dubai, and the applicable Federal Laws of the United Arab Emirates. In addition, any dispute arising out of the Transfer Agreements which relates to any provisions of the Guarantees (as transferred and amended) shall be subject to the same jurisdictional provisions of the Guarantee Agreements.

  • Proceedings. The Respondent filed an application before the DIFC CFI requesting for a world-wide freezing order (WFO) to restrain the Appellants from dealing or disposing of their assets until the determination of the Respondent’s substantive claim. The CFI dismissed the claim on the ground that it has no jurisdiction, and stated that the order sought would have been granted if the court has the jurisdiction, as the Respondent made all the grounds for making such order. The Respondent appealed that decision, and the CA allowed the appeal and upheld that the judge of CFI should have granted that order on the basis that there is a good arguable case to the extent that the court has the jurisdiction. The CA added that, the CFI judge should have leave it open to the Appellants to challenge the court’s jurisdiction. Following this decision, the WFO was issued on 13 September 2020 and served on the Appellants. The Appellants filed an application to challenge the court’s jurisdiction arguing that the court lacked jurisdiction to issue that decision, and requested to dismiss the proceedings. Justice Martin, the assigned judge to hear the Appellants’ application, dismissed the application and held that DIFC Courts had the jurisdiction to hear and determine the Respondent’s substantive claim and the WFO against the Appellants, and he published his interesting reasoning for that decision on 4 October 2020.
  • CFI Decision. It was common ground for the judge and the parties that the applicable law governing the guarantees are the laws of the Emirate of Dubai and the applicable Federal Law of the United Arab Emirates. Justice Martin referred to Article 6 of the JAL, which provides that “the Court shall apply the DIFC Laws and Regulations, except where the parties have explicitly agreed to another law to govern the dispute, provided that that law doesn’t contradict with the public policy and morals”. Accordingly, he pointed that this article clarifies that the parties may select another governing law than DIFC Laws. However, the choice made by the parties will not place the dispute outside the DIFC Courts jurisdiction.

Justice Martin then focused on whether the Court has the jurisdiction to enter the WFO in support of the Respondent’s substantive claim. He had to determine a question of if the Respondent could establish that the claim against the Appellants passed through one or other of the “gateways” to the jurisdiction of the CFI as stipulated in Article 5 of the JAL. His finding was that the only available “gateway” is Article 5(A)(2) of the JAL, which states the following: “the Court of First Instance may hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions”. He further noted that the Respondent submitted and Appellants denied that clauses 17.1 and 17.2 of the Guarantee Agreements constitute an agreement in writing within the meaning of Article (5)(A)(2) of the JAL.

Justice Martin analysed the UAE Civil Transactions Code as a governing law applied to the contract and cited Articles 258 and 265, which address the intention of the parties to a contract. He also looked at a commentary on the Civil Transactions Code approved by the Ministry of Justice. The result of his analysis is that: “the both UAE legal system and the common law require the Court to confirm the join intention of the parties. The joint intention could be ascertained by interpreting words which the parties have used to record their agreement objectively, as they would be understood by a reasonable business person having the knowledge of the circumstances known to the parties at the time they entered into their contract”.

Justice Martin then referred to three prior decisions of DIFC Courts (Sunteck, Taalem, and IGPL), in which the CA rejected the proposition that the words “Dubai Courts” mean only non-DIFC Courts. He extracted from these three decisions the following propositions:

(a) it is not mandatory for the contract to specifically refer to the jurisdiction of the “DIFC Courts” to consider the gateway to the jurisdiction specified by Article 5(A)(2) of the JAL;

(b) the Court is to determine the question whether the joint intention of the parties meant to select the jurisdiction of DIFC Courts to hear such kind of dispute;

(c) that question could be resolved by referring to the natural and ordinary meaning of the jurisdictional words as the parties would have been mutually understood them having regard to the circumstances, the nature of the agreement and the context in which the words are used;

(d) if the Court concluded that the parties intended to refer to the DIFC jurisdiction when using the words recorded in their contract, those words will satisfy the requirements set by Article 5(A)(2) ““specific, clear and express provisions”;

(e) the words (Dubai Courts) or (Courts of Dubai) in their natural and ordinary meaning refer to all courts established in the Emirates of Dubai, including the DIFC Courts and the non-DIFC Courts;

(f) if one of the parties was a DIFC establishment at the time of signing a jurisdiction agreement, the other party would have taken into consideration and understood that the DIFC Courts, by default, would have the exclusive jurisdiction within Dubai to hear and determine any dispute arising out of that agreement. It would require a clear and express words to come to the result that the parties’ mutual intention is to exclude the jurisdiction of DIFC Courts.

Justice Martin selected the IGPL among the other two decisions, although it was an opt-out and not op-in case, but it shares common facts which are relevant to the question that the judge has to decide. The similarities with IGPL being (a) the relevant agreements were governed by the applicable Laws of UAE; (b) the words used in the jurisdiction agreements were identical (c) one of the party was a DIFC establishment at the time that the jurisdiction agreements were signed. Given those similarities, Justice Martin was bound to apply the reasoning in IGPL to conclude that clause 17.1 of the Guarantee Agreements indicates the mutual intention of the parties at the time that the agreements were signed. He highlighted that Credit Suisse AG was a DIFC Establishment at the time the guarantee agreements were signed. This constitutes a strong indication that the mutual intention of the parties was to include DIFC Courts within the meaning of the words “Courts of Dubai”. There was no indication of mutual intention of the parties to exclude DIFC Courts jurisdiction.

The judge stated the following circumstances which support the proposition that the words ‘Courts of Dubai’ should hold ordinary meaning to include DIFC Courts: “(a) the agreements are all in English language (the DIFC Courts operate in English); (b) Credit Suisse AG is a Foreign Company, incorporated in Switzerland; (c) a number of the borrowers under the Credit Facility Agreement were incorporated in foreign jurisdictions; (d) the Guarantors are all Indian nationals with Indian passports; and (e) clause 17.3 of each Guarantee expressly recognises the prospect of enforcement proceedings in foreign jurisdictions. These circumstances support the proposition that the parties have intended to refer to a court within the Emirate of Dubai which has an international characteristic as well as an onshore court of Dubai.

  • DIFC CA Decision. The Appellants challenged the CFI decision after the permission of appeal has been granted and provided that the CFI does not have jurisdiction to determine the substantive claim against the Appellants including the WTO application. The appeal was unsuccessful. The CA upheld that the jurisdiction clause used in the contract was a solid agreement to opt-in to the DIFC Courts’ jurisdiction in accordance with article 5 (A)(2) of the JAL. The CA added that when the term “the courts of Dubai” is used in an agreement, it has an ordinary meaning that refers to all courts incorporated within the Emirate of Dubai, including DIFC’s and non-DIFC’s Courts. Furthermore, the CA confirmed that the intention of the parties when they signed the agreement with a DIFC Establishment did not change the obligations on the Appellants when the Guarantee Transfer Agreements are signed in favour of a non DIFC Establishment. The CA then looked at the question of whether the clarity of the term “the courts of Dubai” is enough for the purposes of the gateway to jurisdiction within Article 5(A) (2) of the JAL.  The CA added that if as a matter of contractual construction, the parties had intended to agree that the DIFC Courts should have jurisdiction over their disputes, it would be a triumph of form over substance to hold that they failed because they did not use the term “DIFC Courts. On that note, the CA ruled that the parties’ contract was “specific, clear and express” enough to opt-in to the jurisdiction of the DIFC Court.

The CA highlighted in its conclusion that the construction of terms such as “courts of Dubai” will rely upon their context. Moreover, the transactions’ history matter in this case is significant to the constructional conclusion.

  • Conclusion. This case points out that the parties wishing to include or exclude DIFC jurisdiction should use a clear and express language in their contract to minimise jurisdictional disputes risk and avoid any ambiguity.

Royal Carribean v Browitt. On agency, consumer consent and choice of court Down Under.

GAVC - mer, 07/28/2021 - 11:11

Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653 is a great addition to the comparative conflicts binder, particularly from the angle of ‘consent’ in business to consumer contracts. It also engages a classic tripartite relation between the consumer, signing a contract with a travel agent, whose GTCS in turn incorporate the GTCS of the carrier.

The case follows on from the December 2019 volcanic eruption at Whakaari.  (Mrs Browitt), for herself and as representative of the deceased estates of her late husband Paul and late daughter Krystal, and Stephanie (Ms Browitt), a daughter who survived the eruption with horrific injuries, are suing Royal Caribbean Cruises Ltd (RCCL), a Liberian registered company headquartered and operating in Miami, Florida, in the courts at Miami. There are applicable law and procedural advantages (incl discovery and trial (both on culpability and level of damages) by jury).

RCL Cruises Ltd (RCL) and RCCL apply for anti-suit in the FCA arguing that the Browitts were passengers on the Ovation of the Seas pursuant to a contract of carriage between the Browitts and RCL as the disponent owner and operator of the vessel. They seek a declaration that it was a term of the contract, signed at Flight Centre in Victoria, Australia, that any disputes between the parties would be subject to the exclusive jurisdiction of the courts of New South Wales.

The list of issues to be determined is long but I repeat it here anyways for they highlight the complexity of issues following a routine purchase of a cruise:

(1)    Was Flight Centre the agent of Mrs Browitt, RCL or both?

(2)    Were the RCL AU terms, including the exclusive jurisdiction clause, incorporated into the contract of carriage by: (a)    reference in the Flight Centre terms and conditions signed by Mrs Browitt on 14 February 2019? (b)    the text of a Royal Caribbean brochure? (c)    links on the RCL AU website? (d)    links in emails? (e)    links in the electronic guestbook?

(3)    As to the construction of the RCL AU terms: (a)    is RCL entitled to invoke the exclusive jurisdiction clause to restrain the Florida proceedings? (b)    is RCCL entitled to rely on the exclusive jurisdiction clause? (c)    did the purchase of insurance exclude the operation of the terms (cl 1)? (The respondents later dropped reliance on the purchase of insurance as excluding the operation of the exclusive jurisdiction clause, so this issue fell away.) (d)    does the contract of carriage apply to shore excursions (cl 25)? If not, does the exclusive jurisdiction clause nonetheless operate to restrain the Florida proceedings? (e)    does the exclusive jurisdiction clause permit a proceeding to be brought in the Federal Court of Australia sitting in New South Wales, and if not, what consequence follows from the commencement of this proceeding (cl 1, cl 37/38)? (f)    does the exclusive jurisdiction clause cover the Florida proceeding?

(4)    Is RCCL entitled to relief on the basis of the RCL AU terms?

(5)    Is the Florida proceeding vexatious and oppressive such that RCL and RCCL are entitled to an anti-suit injunction?

The judge held that although the Browitts were bound by the RCL AU terms, the Florida proceeding is not in breach of the exclusive jurisdiction agreement in those terms because RCCL is not a party to the agreement and RCCL does not enjoy the benefit of it. Also, there is no basis for the alternative case that the Florida proceeding is in any event vexatious and oppressive such as to justify an order restraining Mrs Browitt and Ms Browitt from pursuing it.

Terms and conditions were available on relevant websites and brochures, shown to and browsed by Mrs Browitt but not for the purposes of terms and conditions. Rather, as one would expect, for details of the journey, vessels etc. Unlike a quote, the eventual invoice included as part of the document three pages of booking terms and conditions. Some of those were highlighted in the copy made available to Mrs Browitt  Mrs Browitt could have read the GTCS but there was no inidcation she had or had been specifically pointed to them. Nothing in either version of the invoice, i.e., that which was printed for and signed by Mrs Browitt and that which was emailed by the agency, identifies which of RCCL and RCL was offering the cruise or operating the vessel.

The judgment, which I would invite readers to consult, eventually boils down to limitations of ‘agency’, privity of contract, and clear determination of contractual clauses. It does not decide for the Browitts on the basis of a particular concern for the weaker party in a classic B2C transaction, rather on the need for parties clearly to think through their spaghetti bowl of overlapping arrangements and GTCs when hoping to rely on them in court.

Geert.

Royal Caribbean Cruises Ltd v Browitt [2021] FCA 653
Consumer contracts, exclusive choice of court, privity (and sloppy drafting)
|Federal Court clears the way for victims of the White Island Volcano to sue in Florida https://t.co/qGjGc4DUaQ

— Geert van Calster (@GAVClaw) July 13, 2021

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