Droit international général

Thank you Nathalie Smuha for first signalling the €600,000.00 fine which the Belgian Data Protection Authority (DPA) issued on Tuesday against Google Belgium, together with a delisting order of uncertain reach (see below) and an order to amend the public’s complaint forms. The decision will eventually be back up here I am assume (at vanished yesterday) however I have copy here.

Nauta Dutilh have very good summary and analysis up already, and I am happy to refer. Let me add a few things of additional note:

• The one-stop shop principle of the GDPR must now be under severe strain. CNIL v Google already put it to the test and this Belgian decision further questions its operationalisation – without even without for the CJEU to answer the questions of the Brussels Court of Appeal in the Facebook case. At 31, the DPA refers to a letter which Google LLC had sent on 23 June 2020 (a few days therefore after the French decision) to the Irish DPA saying that it would no longer object to national DPAs exercising jurisdiction in right to be forgotten cases. Of note is that in ordinary litigation, deep-pocket claimants seeking mozaik jurisdiction seldom do that because it serves the general interest.
• Having said that, the Belgian DPA still had to establish jurisdiction against Google Belgium. Here, CJEU Google v Spain, Google v CNIL, and Wirtschaftsakademie led the DPA to take a ‘realistic’ /business plan approach (such as Jääskinen AG in Google Spain) rather than a legally pure approach: at 80 following extensive reference to CJEU authority, and to the effet utile of the GDPR, the DPA holds that it matters little whether the actual processing of the date takes places outside of the EU, by Google employees ex-EU, and that Google Belgium’s activities are supportive only. A Belgian resident’s right to be forgotten has been infringed; a Google entity is available there: that would seem to suffice.
• That left the issue of the territorial reach of the delisting request. The DPA arguably cuts a few corners on the Google Belgium issue; here, it is simply most vague: at 81 ff it refers to the jurisdictional decision in e-Date Advertising, that for infringement of privacy within Brussels Ia, the courts of the person’s centre of interests are best placed to hear the case in its entirety, holding this should be applied mutatis mutandis in GDPR cases and removal orders. It then holds at 85 that neither Google v CNIL nor Belgian law give it specific power to impose a worldwide delisting order, yet at 91 that an EU-wide delisting order would seem an effective means of redress, to end up in its final order (p.48-49) not identifying a territorial scope for delisting.

I am confused. I suspect I am not the only one.

Geert.

(Handbook of) EU private international law, 2nd ed.2016, chapter 2, Heading 2.2.8.2.5.

On 14 July 2020, Austria ratified the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which will enter into force for Austria on 12 September 2020.

Source: here

The Court of Justice delivered today its judgment in case C‑249/19 (JE v KF), which is about Rome III.

Context: “11 JE and KF, who are Romanian nationals, married in Iași (Romania) on 2 September 2001.

12 On 13 October 2016, JE applied for a divorce to the Judecătoria Iași (Court of First Instance, Iași, Romania).

13 By judgment of 31 May 2017, that court declined jurisdiction to hear that application in favour of the Judecătoria Sectorului 5 București (Court of First Instance of the Fifth District of Bucharest, Romania).

14 By a judgment of 20 February 2018, that court, on the basis of the nationality of both spouses referred to in Article 3(1)(b) of Regulation No 2201/2003, established that the Romanian courts had general jurisdiction to hear the application for divorce made by JE. Furthermore, on the basis of Article 8(a) of Regulation No 1259/2010, it designated Italian law as the law applicable to the dispute of which it was seised, on the ground that, on the date on which the application for divorce was filed, the habitual residence of the spouses was in Italy.

15 In that regard, that court held that, under Italian law, an application for divorce made in circumstances such as those of the main proceedings could be filed only if a legal separation of the spouses had previously been established or declared by a court and if at least three years had elapsed between the date of that separation and the date on which the application for divorce was filed with the court.

16  Given that the existence of a court decision establishing or pronouncing such a separation had not been proven and that Romanian law does not provide for legal separation proceedings, that court held that those proceedings had to be conducted before the Italian courts and that, consequently, any application to that effect made to the Romanian courts was inadmissible.

17 JE lodged an appeal against that judgment before the referring court, claiming, inter alia, that the court at first instance should have applied Article 2600(2) of the Civil Code, which constitutes the transposition into Romanian law of Article 10 of Regulation No 1259/2010.

18 In that regard, JE is of the opinion that, since Italian law is restrictive as regards the conditions required for divorce, Romanian law should apply to the application for divorce.

19 In JE’s view, that solution also flows from the fact that the application of Italian law is manifestly incompatible with the public policy of the forum and that, consequently, that application must, in accordance with Article 12 of that regulation, be disapplied”.

Question refered to the Court of Justice: “‘Is the expression “the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce”[, in Article 10 of Regulation No 1259/2010,] to be interpreted (a) in a strict, literal manner, that it is to say only in respect of a situation where the foreign law applicable makes no provision for any form of divorce, or (b) more broadly, as also including a situation where the foreign law applicable permits divorce, but does so in extremely limited circumstances, involving an obligatory legal separation procedure prior to divorce, in respect of which the law of the forum contains no equivalent procedural provisions?’”.

Decision of the Court of Justice: “Article 10 of Council Regulation (EU) No 1259/2010 […] must be interpreted as meaning that the expression ‘where the law applicable by virtue of Article 5 or Article 8 makes no provision for divorce’ applies only where the foreign law applicable makes no provision for divorce in any form”.

Source: here

The Court of Justice delivered today its judgment in case C‑253/19 (MH, NI v OJ, Novo Banco SA), which is about the Insolvency bis Regulation:

“The first and fourth subparagraphs of Article 3(1) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence”.

Source: here

The Court of Justice delivered today its judgment in case C‑80/19 (E. E. with the presence of: Kauno miesto 4-ojo notaro biuro notarė Virginija Jarienė, K.-D. E.), which is about the Succession Regulation. 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):

« 1) Le règlement (UE) no 650/2012 […] doit être interprété en ce sens que relève de la notion de « succession ayant une incidence transfrontière » une situation dans laquelle le défunt, ressortissant d’un État membre, résidait dans un autre État membre à la date de son décès, mais n’avait pas rompu ses liens avec le premier de ces États membres, dans lequel se trouvent les biens composant sa succession, tandis que ses successibles ont leur résidence dans ces deux États membres. La dernière résidence habituelle du défunt, au sens de ce règlement, doit être fixée par l’autorité saisie de la succession dans un seul desdits États membres.

2) L’article 3, paragraphe 2, du règlement no 650/2012 doit être interprété en ce sens que, sous réserve d’une vérification par la juridiction de renvoi, les notaires lituaniens n’exercent pas des fonctions juridictionnelles lors de la délivrance d’un certificat national d’hérédité. Toutefois, il appartient à la juridiction de renvoi de déterminer si ces notaires agissent par délégation ou sous le contrôle d’une autorité judiciaire et, en conséquence, peuvent être qualifiés de « juridictions », au sens de cette disposition.

3) L’article 3, paragraphe 1, sous g) du règlement no 650/2012 doit être interprété en ce sens que, dans le cas où la juridiction de renvoi considérerait que les notaires lituaniens peuvent être qualifiés de « juridictions », au sens de ce règlement, le certificat d’hérédité qu’ils délivrent, peut être considéré comme étant une « décision », au sens de cette disposition, de telle sorte que, aux fins de le délivrer, ces notaires peuvent appliquer les règles de compétence prévues au chapitre II dudit règlement.

4) Les articles 4 et 59 du règlement no 650/2012 doivent être interprétés en ce sens qu’un notaire d’un État membre, qui n’est pas qualifié de « juridiction », au sens de ce règlement, peut, sans appliquer les règles générales de compétence prévues par ledit règlement, délivrer les certificats nationaux d’hérédité. Si la juridiction de renvoi considère que ces certificats remplissent les conditions prévues à l’article 3, paragraphe 1, sous i), du même règlement, et peuvent, dès lors, être considérés comme étant des « actes authentiques », au sens de cette disposition, ceux-ci produisent, dans les autres États membres, les effets que l’article 59, paragraphe 1, et l’article 60, paragraphe 1, du règlement no 650/2012 attribuent aux actes authentiques.

5) Les articles 4, 5, 7 et 22 ainsi que l’article 83, paragraphes 2 et 4, du règlement no 650/2012 doivent être interprétés en ce sens que la volonté du de cujus ainsi que l’accord entre ses successibles peuvent conduire à la détermination d’une juridiction compétente en matière de successions et à l’application d’une loi successorale d’un État membre autre que celles qui résulteraient de l’application des critères dégagés par ce règlement ».

Source : here

The Court of Justice delivered today its judgment in case C‑73/19 (Belgium v Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV), which is about Brussels I bis. 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):

Context : « Le 2 décembre 2016, les autorités belges ont assigné en justice devant le président du rechtbank van koophandel Antwerpen-afdeling Antwerpen (tribunal de commerce, division d’Anvers, Anvers, Belgique), en formation de référé, Movic, Events Belgium et Leisure Tickets & Activities International, en demandant à titre principal, d’une part, de faire constater que ces sociétés pratiquaient la revente, en Belgique, au moyen de sites Internet gérés par elles, des titres d’accès à des événements pour un prix supérieur à celui initial, activité constitutive des infractions aux dispositions de la loi du 30 juillet 2013 et du CDE, et, d’autre part, d’ordonner la cessation de ces pratiques commerciales.

18 À titre accessoire, les autorités belges ont demandé d’ordonner des mesures de publicité de la décision prononcée aux frais desdites sociétés, d’imposer une astreinte de 10 000 euros par infraction constatée à partir de la signification de cette décision et de dire pour droit que les infractions futures pourront être constatées par simple procès–verbal dressé par un fonctionnaire assermenté de la direction générale de l’inspection économique, conformément au CDE.

19 Les trois sociétés en cause ont soulevé une exception d’incompétence internationale des juridictions belges, en soutenant que les autorités belges avaient agi dans l’exercice de la puissance publique, de sorte que leurs actions ne relevaient pas du champ d’application du règlement no 1215/2012 »

Decision : “L’article 1er, paragraphe 1, du règlement (UE) no 1215/2012 […] doit être interprété en ce sens que relève de la notion de « matière civile et commerciale », figurant à cette disposition, une action opposant les autorités d’un État membre à des professionnels établis dans un autre État membre dans le cadre de laquelle ces autorités demandent, à titre principal, à ce que soit constatée l’existence d’infractions constituant des pratiques commerciales déloyales prétendument illégales et ordonnée la cessation de celles-ci, ainsi que, à titre accessoire, à ce que soient ordonnées des mesures de publicité et à ce que soit imposée une astreinte ».

Source : here

The Court of Justice delivered today its judgment in case  C‑658/18 (UX v Governo della Repubblica italiana), which is about the status of Judges of the Peace and a judicial victory for the latter with rather wide financial consequences for Italy and beyond. 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):

“1) L’article 267 TFUE doit être interprété en ce sens que le Giudice di pace (juge de paix, Italie) relève de la notion de « juridiction d’un des États membres », au sens de cet article.

2) L’article 7, paragraphe 1, de la directive 2003/88/CE […] concernant certains aspects de l’aménagement du temps de travail, et l’article 31, paragraphe 2, de la charte des droits fondamentaux de l’Union européenne doivent être interprétés en ce sens qu’un juge de paix qui, dans le cadre de ses fonctions, effectue des prestations réelles et effectives, qui ne sont ni purement marginales ni accessoires, et pour lesquelles il perçoit des indemnités présentant un caractère rémunératoire, peut relever de la notion de « travailleur », au sens de ces dispositions, ce qu’il appartient à la juridiction de renvoi de vérifier.

La clause 2, point 1, de l’accord-cadre sur le travail à durée déterminée conclu le 18 mars 1999, qui figure à l’annexe de la directive 1999/70/CE du Conseil, du 28 juin 1999, concernant l’accord-cadre CES, UNICE et CEEP sur le travail à durée déterminée, doit être interprétée en ce sens que la notion de « travailleur à durée déterminée », figurant à cette disposition, peut englober un juge de paix, nommé pour une période limitée, qui, dans le cadre de ses fonctions, effectue des prestations réelles et effectives, qui ne sont ni purement marginales ni accessoires, et pour lesquelles il perçoit des indemnités présentant un caractère rémunératoire, ce qu’il appartient au juge de renvoi de vérifier.

La clause 4, point 1, de l’accord-cadre sur le travail à durée déterminée conclu le 18 mars 1999, qui figure à l’annexe de la directive 1999/70, doit être interprétée en ce sens qu’elle s’oppose à une réglementation nationale qui ne prévoit pas le droit pour un juge de paix à bénéficier d’un congé annuel payé de 30 jours, tel que celui prévu pour les magistrats ordinaires, dans l’hypothèse où ce juge de paix relèverait de la notion de « travailleur à durée déterminée », au sens de la clause 2, point 1, de cet accord-cadre, et où il se trouverait dans une situation comparable à celle d’un magistrat ordinaire, à moins qu’une telle différence de traitement ne soit justifiée par les différences de qualifications requises et la nature des tâches dont lesdits magistrats doivent assumer la responsabilité, ce qu’il incombe à la juridiction de renvoi de vérifier »

Source : here

As announced earlier, Erasmus School of Law is recruiting five researchers for a project on Affordable Access to Civil Justice in Europe, financed by the Dutch Research Council. The deadline for application has been extended till 27 July 2020. See our previous post.

The EU Regulations on the Property Regimes of International Couples – A Commentary has been published by Edward Elgar in its “Elgar Commentaries in Private International Law” series.

The publisher’s abstract reads: This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.

Edited by Ilaria Viarengo and Pietro Franzina, this commentary features contributions by Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.

Further info here

The author of this post is Giulio Monga, a PhD student at the Catholic University of the Sacred Heart, Milan. The editors of the EAPIL blog encourage scholars and practitioners to share their views on the Court’s judgment and its implications. Those interested in submitting guest posts are invited to get in touch with the blog editors at blog@eapil.org. 

On 16 July 2020 the Court of Justice of the European Union (CJEU) delivered its judgment on the Schrems II case (a press release is available here). The ruling is part of the judicial saga between Facebook and the Austrian data protection advocate Max Schrems relating to transfers of personal data from the EU to the US. It follows the judgment of 2015 whereby the CJEU invalidated the so-called ‘Safe Harbour’, later replaced by the ‘EU-US Privacy Shield’, the adequacy of which had been established by the European Commission by a Decision of 2016.

Max Schrems lodged a complaint against Facebook Ireland Ltd. before the Irish Supervisory Authority (the Data Protection Commissioner, DPC) over the transfer of personal data relating to him by Facebook Ireland to Facebook Inc., the latter’s parent company established in the US.

In particular, Mr Schrems claimed that the inclusion of the controller-to-processor Standard Contractual Clauses (SCC) approved by the EU Commission through Decision 2010/87 in a data transfer processing agreement between Facebook Ireland, acting as a controller with the meaning of Article 4(7) of the General Data Protection Regulation (GDPR), and Facebook Inc., acting as a processor with the meaning of Article 4(8) GDPR, did not justify the transfer of the personal data relating to him to the US. Under US law, Schrems argued, Facebook Inc. is required to make the personal data of its users available to US authorities, such as the NSA and the Federal Bureau of Investigation (FBI), in the context of surveillance programmes that preclude the exercise of the rights enshrined in Articles 7, 8 and 47 of the Charter of Fundamental Rights of the European Union (the Charter). On that basis, Mr Schrems asked that DPC suspend the transfer of data.

The DPC, as well as the referring Irish High Court, noted that it was impossible to adjudicate Mr Schrems’ complaint unless the CJEU examined the validity of the Decision 2010/87. Furthermore, the referring High Court also asked CJEU to rule on the validity of the Decision 2016/1250 establishing the ‘EU-US Privacy Shield’.

Pursuant to Articles 25-26 of the repealed Directive 95/46/EC and to Articles 44-50 of the GDPR,  transfer of personal data to a third country may, in principle, take place only if the third country in question ensures an adequate level of data protection.

According to Article 45 GDPR, the Commission may find that a third country ensures, by reason of its domestic law or its international commitments, such an adequate level of protection. With regard to the US, the EU Commission, by Decision 2000/520/EC, firstly established that adequate protection was ensured by companies joining the so-called ‘Safe Harbour’ mechanism, which was invalidated under the first Schrems ruling. Later, with the new adequacy Decision 2016/1250 the EU-US Privacy Shield has been established.

In the absence of an adequacy decision, transfers of personal data to third countries may take place only if the personal data exporter established in the EU has provided appropriate safeguards provided by for Article 46, which may arise, among others, from standard contractual clauses adopted by the EU Commission. Standard Contractual Clauses, depending on the circumstances, might be controller-to-processor SCC such as those used by Facebook Ireland or controller-to-controller SCC approved by EU Commission through Decisions 2001/497/EC and 2004/915/EC.

In addition to the adoption appropriate safeguards, Article 46 GDPR also requires that enforceable data subject rights and effective legal remedies for data subjects are available.

The Court began with considering that the GDPR applies to the transfer of personal data for commercial purposes by an economic operator established in a Member State to another economic operator established in a third country, even if, at the time of that transfer or thereafter, that data may be processed by the authorities of the third country in question for the purposes of public security, defence and State security. The Court added that this type of data processing by the authorities of a third country cannot preclude such a transfer from the scope of the GDPR.

As in Schrems I, the CJEU stated that, according to the relevant rules of GDPR, data subjects whose personal data are transferred to a third country pursuant to Standard Contractual Clauses must be afforded a level of protection essentially equivalent to that guaranteed within the EU by the GDPR, read in the light of the Charter. The Court specified that

[t]he assessment of the level of protection afforded in the context of such a transfer must, in particular, take into consideration both the contractual clauses agreed between the controller or processor established in the European Union and the recipient of the transfer established in the third country concerned and, as regards any access by the public authorities of that third country to the personal data transferred, the relevant aspects of the legal system of that third country. (para. 105)

In light of the foregoing, the CJEU Court considered that the validity of Decision 2010/78 is not called into question by the mere fact that the SCC therein approved do not bind the authorities of the third country to which data may be transferred. In fact,

[t]hat validity depends, however, on whether, in accordance with the requirement of Article 46(1) and Article 46(2)(c) of the GDPR, interpreted in the light of Articles 7, 8 and 47 of the Charter, such a standard clauses decision incorporates effective mechanisms that make it possible, in practice, to ensure compliance with the level of protection required by EU law and that transfers of personal data pursuant to the clauses of such a decision are suspended or prohibited in the event of the breach of such clauses or it being impossible to honour them. (para. 137)

The CJEU found that Decision 2010/87 establishes such mechanisms. Namely, the CJEU pointed out that the decision imposes an obligation on a data exporter and the recipient of the data to verify, prior to any transfer, whether that level of protection is respected in the third country concerned and that the decision requires the recipient to inform the data exporter of any inability to comply with the standard data protection clauses, the latter being, in turn, obliged to suspend the transfer of data and/or to terminate the contract with the former. The Court concluded that nothing affected the validity of Decision 2010/87.

Lastly, the CJEU examines the validity of Decision 2016/1250 establishing the EU-US Privacy Shield.

In that regard, the CJEU notes that that Decision enshrines the position, as did Decision 2000/520, that the requirements of US national security, public interest and law enforcement have primacy, thus condoning interference with the fundamental rights of persons whose data are transferred under the Privacy Shield framework.

In the view of the Court,

[t]he limitations on the protection of personal data arising from the domestic law of the United States on the access and use by US public authorities of such data transferred from the European Union to the United States, which the Commission assessed in the Privacy Shield Decision, are not circumscribed in a way that satisfies requirements that are essentially equivalent to those required, under EU law, by the second sentence of Article 52(1) of the Charter. (para. 185)

The Court pointed out that, in respect of certain surveillance programmes, those provisions do not indicate any limitations on the power they confer to implement those programmes, or the existence of guarantees for potentially targeted non-US persons. The Court adds that, although those provisions lay down requirements with which the US authorities must comply when implementing the surveillance programmes in question, the provisions do not grant data subjects actionable rights before the courts against the US authorities.

As regards the requirement of judicial protection, the CJEU focused its reasoning on the Ombudsperson mechanism provided for by the EU-US Privacy Shield Decision, which the EU Commission found as capable to ensure data subjects with level of protection essentially equivalent to that guaranteed by Article 47 of the Charter.

The CJEU stressed that data subjects must be given an opportunity to seise an independent and impartial court in order to have access to their personal data, or to obtain the rectification or erasure of such data.

The CJEU observed in particular that the Privacy Shield Ombudsperson,

[a]lthough described as ‘independent from the Intelligence Community’, was presented as ‘[reporting] directly to the Secretary of State who will ensure that the Ombudsperson carries out its function objectively and free from improper influence that is liable to have an effect on the response to be provided’. (para. 195)

Furthermore, the CJEU noted that nothing in Decision 2016/1250 indicates that the dismissal or revocation of the appointment of the Ombudsperson is accompanied by any particular guarantees, which is such as to undermine the Ombudsman’s independence from the executive.

Similarly, the Court, noted that

[a]lthough recital 120 of the Privacy Shield Decision refers to a commitment from the US Government that the relevant component of the intelligence services is required to correct any violation of the applicable rules detected by the Privacy Shield Ombudsperson, there is nothing in that decision to indicate that that ombudsperson has the power to adopt decisions that are binding on those intelligence services and does not mention any legal safeguards that would accompany that political commitment on which data subjects could rely.

The CJEU found that

[t]he Ombudsperson mechanism to which the Privacy Shield Decision refers does not provide any cause of action before a body which offers the persons whose data is transferred to the United States guarantees essentially equivalent to those required by Article 47 of the Charter.

In light of the foregoing, the CJEU invalidated Decision 2016/1250 on EU-US Privacy Shield.

The ruling is expected to have a very significant impact on the transfer of personal data from the EU to third countries.

Concerning the immediate effects of the judgment, the Court made the following remarks:

As to whether it is appropriate to maintain the effects of that decision for the purposes of avoiding the creation of a legal vacuum … the Court notes that, in any event, in view of Article 49 of the GDPR, the annulment of an adequacy decision such as the Privacy Shield Decision is not liable to create such a legal vacuum. That article details the conditions under which transfers of personal data to third countries may take place in the absence of an adequacy decision under Article 45(3) of the GDPR or appropriate safeguards under Article 46 of the GDPR (para. 202).

I reviewed Szpunar AG’s Opinion in C-73/19 Belgische Staat v Movic BV et al here. The CJEU held this morning. At the time of posting an English version of the judgment was not yet available. The case at issue concerns enforcement of Belgium’s unfair trading act by the public authorities of the Member State. Movic BV of The Netherlands and the others defendants practices ticket touting: resale of tickets for leisure events.

The court is more succinct than the AG in its analysis yet refers repeatedly to points made by Szpunar AG without itself therefore having to refer to so extensive an analysis.

The fact that a power was introduced by a law is not, in itself, decisive in order to conclude that the State acted in the exercise of State authority (at 52). Neither does the pursuit of the general interest automatically involve the exercise of public powers (at 53). With respect to the authorities’ powers of investigation, it would seem that the Court like the AG reads (at 57) C‑49/12 Sunico as meaning that to exclude proceedings from the scope of ‘civil and commercial matters’, it must be determined, in concreto, whether the public authority uses evidence which it has in its possession as a result of its public powers of investigation, hence putting it in a different position as a person governed by private law in analogous proceedings. Collecting evidence in the same way as a private person or a consumer association could, does not fall within that category (at 58).

Neither the request for penalty payments nor an application for an injunction makes the proceedings drop out off Brussels Ia: both instruments are available to private parties, too. That is not however the case for the observation of continued infringement by mere civil servant oath as opposed to bailiff certification. This, the Court holds like the AG, does amount to exercise of public authority (at 62) however (at 63) that element alone escapes BIA, it does not so taint the other part of the proceedings.

As I noted in my review of first Advocate General Szpunar’s Opinion, the need for highly factual considerations sits uneasily with the Regulation’s expressed DNA of predictability. However this squares with the CJEU case-law on ‘civil and commercial’. 

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2.

Back in February we reported on the Opinion presented by Advocate General Tanchev in case C-249/19, JE. Today the Court of Justice rendered its Judgment in which it confirms the interpretation provided in the Opinion.

As a reminder, the question referred to the Court of Justice originated in the proceedings pending before the Romanian courts dealing with a petition for divorce. The parties to these proceedings are Romanian nationals, habitually resident in Italy.

In these circumstances, under Article 8(a) of the Rome III Regulation, it is a priori Italian law that governs the grounds of divorce. According to Italian law, the dissolution of marriage can be pronounced only where there had been a legal separation of the spouses and at least three years have passed between this separation and the time at which the court have been seized by the applicant.

Seized of a petition for divorce, the first instance court considered that since no provision is made for legal separation proceedings under Romanian law, such proceedings must be conducted before the Italian courts and therefore any application to that effect made before the Romanian courts is inadmissible.

Yet, seized of an appeal lodged by the applicant, the second instance court focused on Article 10 of the Regulation that states, inter alia, ‘[w]here the law applicable […]  makes no provision for divorce […], the law of the forum shall apply’. That court referred a request for a preliminary ruling to the Court asking, in essence, whether Italian law could be disapplied under Article 10.

In his Opinion presented this February, AG Tanchev held that Article 10 of the Rome III Regulation calls for a strict interpretation. The expression ‘where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ relates only to situations in which the applicable foreign law does not recognize the institution of divorce. Italian law should therefore be applied by the Romanian courts. Despite the lack of procedural rules in relation to legal separation, these courts have to verify whether the requirement relating to separation was met.

The Judgment is in line with the Opinion: it confirms that a foreign law can be disapplied on the basis of Article 10 only when that law does not provide for any form of divorce.

As discussed in the initial post, at points 64 to 66, the Opinion seems to qualify the requirement provided for in the Italian law as a ‘procedural condition’. That qualification does not appear explicitly in the Judgment. At paragraph 43, the Judgment convincingly confines itself to stating that the substantive requirement at issue consists on a three years’ separation of the spouses and that the lack of procedural rules in relation to legal separation cannot prevent the Romanian court from verifying whether that requirement is met.

Against this background, at paragraph 40, the Judgment makes a point in the context of effectiveness of the Rome III Regulation. If the application of the requirement provided for in Italian law leads to the situation where the petitions for divorce are being rejected without their examination, the practical effectiveness of the uniform conflict of laws rules on divorce is undermined. I deem the references to the effectiveness/effet utile to be highly interesting. See paragraph 20 of the Judgment in Bier for one of the earliest occurrences of such reference. The Judgment in JE is yet another example: it presents a noteworthy take on the interaction between effet utile and conflict of laws rules. It will be interesting to see whether and how that specific line of argument will be developed in the future.

Bundeszentralamt Fur Steuern (Being the Federal Central Tax Office of the Federal Republic of Germany) & Ors v Heis & Ors [2019] EWHC 705 (Ch) was held in March 2019 bit only came unto BAILII recently and had not caught my attention before.

The primary question raised is whether appeals by the applicants, the German Federal Tax Office (“the GTA”) and by Deutsche Bank AG (“DB”) against the rejection by the Joint Special Administrators (“the Administrators”) of MF Global UK Limited (“MFGUK”) of their respective proofs of debt, to allow the underlying claim which forms the subject of the proof to be resolved by the specialist German tax or fiscal courts, which both the applicants (for different reasons) contend are the natural forum for the determination of the claims and the forum in which they can be resolved most efficiently.

The underlying issue concerns German withholding tax.

The GTA has at all times maintained that its claim should be determined in Germany by the German tax courts, per the UK-Germany double taxation Treaty, based on the OECD model convention (for those in the know: it is Article 28(6) which the GTA has suggested exclusively reserves its GTA Claim to the German Courts). However it felt compelled to submit a proof in MFGUK’s UK administration proceedings in order to preserve its rights.

Under German law, it is within the GTA’s power to give a decision on MFGUK’s objection to relvant Amended Tax Assessment Notices. If and when it did so, it would then be for MFGUK, if it wished to pursue the matter further, to file an appeal against that decision by the GTA with the Fiscal Court of Cologne. The Fiscal Court of Cologne is one of the 18 fiscal courts in Germany which are the courts of first instance for tax matters. That seems a natural course to take however here the GTA is caught in a conundrum: at 18: the GTA has not yet formally rejected MFGUK’s objection. This is because such objection would establish proceedings in Germany, and there is a procedural rule of German law that, in order to prevent parallel proceedings, a German court will automatically defer to the court first seized of a matter. Accordingly, it seems likely that if the GTA were to reject MFGUK’s objection before the Stay Application has been decided by the UK Court, on any appeal by MFGUK, the Fiscal Court of Cologne might as a matter of comity defer to this Court in order to avoid parallel proceedings.

At 57: Brussels Ia is not engaged for the case concerns both the insolvency and the tax exclusion of Articles 1.1 and 1.2.b. At 56 Hildyard J considers the issues under English rules on the power to stay, with a focus on the risk of irreconcilable judgments.

At 84 Hildyard J holds that the GTA read too much into A28(6) and that there is no exclusive jurisdiction, leaving the consideration of whether a stay might be attractive nevertheless (at 89 ff the issue is discussed whether German courts could at all entertain the claim). This leads to an assessment pretty much like a stay under Brussels Ia as ‘related’ (rather than: the same, to which lis alibi pendens applies) cases. Note at 87(6) the emphasis which the GTA places on the actual possibility of consolidating the cases – similar to the arguments used in BIa A33-34 cases such as Privatbank and later cases).

At 115 the impact of this case having public law impacts becomes clear: ‘It seems to me that, despite my hunch that there will also be considerable factual enquiry, and a factual determination of the particular circumstances may determine the result …, the legal issues at stake are not only plainly matters of German law, but controversial and complex issues of statutory construction of systemic importance and substantial public interest in terms of the legitimate interests of the public in the protection of its taxation system from what are alleged to be colourable schemes.’

And at 116, referring ia to VTB Capital v Nutritek, ‘the risk of inconsistent decisions in concurrent proceedings in different jurisdictions, is the more acute when in one of the jurisdictions the issue is a systemic one, or may be decided in a manner which has systemic consequences. Especially in such a context, there is a preference for a case to be heard by the courts of the country whose law applies.’ Reference to VTB is made in particular with resepect to the point that Gleichlauf (the application by a court of its own laws) is to be promoted in particular (at [46] in VTB per Lord Mance: “it is generally preferable, other things being equal, that a case should be tried in a country whose law applies. However, this factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum.’

At 117: ‘even if the factual centre of gravity may be London, the jurisdiction likely to be most affected by the result is Germany: and even if the US approach of ‘interest analysis’ is not determinative in this jurisdiction it does not seem to me to be an impermissible consideration.’

Held, at 121, there is here ‘a sufficiently “rare and compelling” reason for granting the stay sought by the GTA, provided that the German Fiscal Court are an available forum in which to determine the substance of the disputes.’ At 122 Hildyard J seeks assurances ‘insofar as the parties’ best endeavours can secure it, resolution of both the GTA Claim and the Later MFGUK Refund Claim as expeditiously as possible. That seems to me necessary in order to safeguard this jurisdictions’ insolvency processes and for the protection of the interests of the body of creditors as a whole.’

Then follows at 131 ff extensive analysis of the impact of this stay decision on the related case of Deutsche Bank, with at 190 a summary of the issues to be decided. Held at 218: ‘By careful selection of potentially dispositive issues, I consider that there is some prospect of that process enabling a determination without recourse to the intricacies of German tax law which are to be decided in the context of the GTA Claim; whereas an immediate stay guarantees a long delay before this court can determine the matter, based on presently hypothetical claims, after a long wait for non-binding guidance from the German court which may result from other cases to which DB is not a party.’ However at 219 the prospect of a stay after all is held out, should a quick resolution of those issues not be possible.

Most interesting.

Geert.

A fine example of the public /private divide, and forum conveniens in international litigation.
Application for a stay to allow underlying claim to be resolved by DE fiscal courts.
BIa not engaged: tax and insolvency exemption.
Engages OECD rules and double taxation treaty. https://t.co/Z4WA1h4Dtq

— Geert Van Calster (@GAVClaw) June 15, 2020

On 14 July 2020, Austria ratified the 1965 Hague Service Convention. The Convention is set to enter into force for Austria on 12 September 2020. All EU Member States will then be be bound by the Convention. In practice, the latter will apply in  the relationship between the (Members States of the) EU, one the one hand, and some fifty more States worldwide, on the other.

The Austrian ratification comes more than four years after the Council of the European Union issued a decision authorising Austria to sign and ratify, and Malta to accede to, the Convention ‘in the interest of the European Union’.

The Council decision reflects the fact that, as stated in the preamble, the Union ‘has external competence with regard to the Convention in so far as its provisions affect the rules laid down in certain provisions of Union legislation or in so far as the accession of additional Member States to the Convention alters the scope of certain provisions of Union legislation’, such as Article 28(4) of the Brussels I bis Regulation. Still, the Convention ‘does not allow for participation by regional economic integration organisations such as the Union’, meaning that, to make sure that the Convention is in force for all Member States, the Union had no other option but to authorise (and in fact request) the Member States that had not yet done so, to ratify – or accede to, depending on the circumstances – the Convention in the interest of the Union itself.

The Convention is already applicable to Malta as of 17 July 2018.

This Call for Paper is for an edited volume, the working title of which is: Public International Law and Private International Law: Charting a blurry boundary – towards convergence or still divergence?

The editors, Dr Poomintr Sooksripaisarnkit (of the University of Tasmania) and Dharmita Prasad (of Jindal Global Law School), are in negotiation with Springer Nature Pte Ltd for this edited volume.

Both editors would like to invite you to contribute a chapter in this edited volume focusing on addressing intersectionality between public international law and private international law. Further details are provided in the concept note below.

Tentative Timeline:

• 5 August 2020 – A proposed title of your paper along with a 300-word abstract are to be sent to editors – sooksripaisarnkit@utas.edu.au; dprasad@jgu.edu.in
• 10 August 2020 – Editors will be in touch with selected authors advising each of them of the decision that their proposed paper is accepted for this edited volume.
• 31 August 2020 – Editors will finalise their proposal to Springer Pte Ltd
• 17 July 2021 – First draft of the chapter to be sent to editors
• August 2021 – Editors review all drafts and provide comments / request respective authors to review their chapter
• September 2021 – Editors are to submit manuscript to Springer
• December 2021 / January 2022 – Tentative release of the book

Editors:

Dr Poomintr Sooksripaisarnkit – Lecturer in Maritime Law, Australian Maritime College, University of Tasmania, E-mail: poomintr.sooksripaisarnkit@utas.edu.au

Dharmita Prasad – Lecturer, Jindal Global Law School, E-mail: dprasad@jgu.edu.in

Concept Note

International law has a long history which can be traced back to over thousands of years ago with developments of modern international law took their starting point from the consequence of the Peace of Westphalia in 1648 whereby the concept of nation state emerged. Along with the rise of legal positivism, international law became perceived as the body of law dealing with external aspects of States or, in other words, with relationships between States. Private disputes with foreign elements were gradually taken out of the scope of international law and students of private international law subject have since been taught of it as a domestic private law dealing with cases or disputes involving foreign elements. Public international law and private international law seemingly diverge.

Still, relationships and interactions between public international law and private international law have led to endless debates. Courts in considering what seemingly private international law cases from time to time have to touch on public international law issues. For example, the Court of Final Appeal of the Hong Kong Special Administrative Region in Democratic Republic of Congo and Others v FG Hemisphere Associates LLC [2011] HKCFA 41; (2011) HKCFAR 95 had to deal with the concept of sovereign immunity in a case which was essentially an enforcement of foreign arbitral awards. Likewise, the issue of sovereign immunity is likely to come up again in a class action lawsuit brought against the People’s Republic of China by thousands of American citizens claiming damages following the COVID-19 outbreak. Relevant to the COVID-19 outbreak, different countries have adopted different measures in an attempt to contain the virus, including closing borders, travel bans, compulsory quarantine, etc. Applying some or all of these measures will bring further complication in terms of potential issues or arguments involving possible frustration of international contracts. Within the scope of the United Nations Convention on Contracts for the International Sale of Goods (CISG), this involves the consideration of the scope of the force majeure and hardship provision in Article 79. Indeed, international instruments like the CISG present examples of attempts at avoiding private international law issues via public international law instruments. European experiences in negotiating instruments such as the Brussels Regime or wider international experiences in negotiating instruments under the auspices of international organisations such as the Hague Conference on Private International Law only point to the turning of conflict of law matters into international relations. These are some of the issues which highlight the blurry line between public international law and private international law.

This book seeks to contribute to existing debates by focusing its study on the boundary / intersectionality between pubic international law and private international law. In doing so, it seeks contribution for any work which falls within one of the following themes:

• Historical and Theoretical consideration of the boundary between public international law and private international law
• Harmonisation of private international law by public international law instruments – evaluation of process, problems, and effectiveness
• Practical consideration / Case Study of public international law consideration in private international law cases
• Future trends on relationships and interactions between public international law and private international law: towards convergence or still divergence?

Nearly a year ago I reported on a Greek judgment refusing execution of two English orders issued on the basis of a High Court judgment which granted declaratory relief to the applicants. This came as a result of proceedings initiated in Greece, in breach of the settlement agreements and the exclusive jurisdiction clauses in favor of English courts. A recent judgment rendered by the same court confirmed the incidental recognition of the same High Court judgment, which resulted in the dismissal of the claim filed before Greek courts due to lack of jurisdiction.

Piraeus Court of Appeal Nr. 89/31.01.2020

THE FACTS

The facts of the case are clearly presented in the case Starlight Shipping Co v Allianz Marine & Aviation Versicherungs AG [2014] EWHC 3068 (Comm) (26 September 2014. The UK defendants invoked before the Piraeus first instance court the judgment aforementioned, and requested incidental recognition in Greece. The Piraeus court granted recognition, and dismissed the claim. The plaintiffs appealed, seeking reversal on two grounds: Lack of res iudicata and violation of Article 34 (1) Brussels I Regulation.

THE RULING

The Piraeus CoA founded its ruling on point 39 of the English judgment:

39. So far as the Hellenic settlement agreement is concerned, clause 2 expressly provides that the payment of U.S.$4.8 million is “in full and final settlement of all and any claims they may have under the Policy in relation to the loss of [the vessel] against the Underwriters and/or against any of its servants and/or agents..” As with the CMI and LMI settlement agreements, that wording settles claims under the policy in relation to the loss of the vessel. Accordingly, by application of the reasoning of Longmore LJ in the Court of Appeal, as set out at [32] to [35] above, the claims against Hellenic in Greece are within the settlement and indemnity provisions in the Hellenic settlement agreement and in breach of the exclusive jurisdiction clause in the Hellenic settlement agreement and the arbitration clause in the underlying Policy…

Res iudicata and public policy

The Piraeus court had no difficult task in establishing the finality of the English judgment: It simply referred to the certificate issued by the English court.

The public policy defence was also considered as unfounded, by reference to Article 35 (2 and 3) Brussels I Regulation.

No anti-suit injunction order

It then stressed out that the foreign judgment solidifies the exclusive international jurisdiction of English courts, without ordering the claimants/appellants to refrain from filing an action or moving ahead with the proceedings before Greek courts, by imposing any measures for this purpose. Hence, the court continues, the foreign judgment in question fulfils the criteria under Article 32 Brussels I Regulation, and therefore it is not considered as an anti-suit injunction, because it does not hinder the Greek court to examine their jurisdiction. For the above reasons, the English judgment may be incidentally recognized, which means that the Greek court is bound by its findings on the international jurisdiction issue. Finally, it should be underlined that no reference to the Gothaer  ruling of the CJEU was made by the Piraeus court.

Clarifications

Finally, the Piraeus court explained the reasons which led to a different outcome from that of the judgment issued by the same court a year ago. First of all, the court was not bound by the res iudicata of the 2019 judgment, because the defendants were not the same. Secondly, the 2019 judgment examined an application for the enforcement of the English orders, whereas in the present case the subject matter was the existence or non-existence of the choice of court clause.

For all the above reasons, the appeal was dismissed.

SHORT COMMENT

Following the case law of the CJEU on anti-suit injunctions, and the non-recognition of the orders, which were labelled by the 2019 judgment as ‘quasi’ anti-suit injunctions, the defendants used the seemingly sole remaining tool for avoiding a re-examination of international jurisdiction on the merits by the Greek courts; the outcome proves them right. The question however remains the same: Are declaratory orders stating that English courts have exclusive jurisdiction and that proceedings in other Member States are in breach of an English exclusive jurisdiction agreement in line with the mutual trust principle? In his thesis [pp. 146 et seq.], Mukarrum Ahmed  argues that those orders are at odds with the above principle.

The Greek Supreme will have the final word.

Of course, a preliminary request remains a possibility.

Kamalia Mehtiyeva (Paris I Panthéon-Sorbonne School of Law) has just published a monograph on the Concept of Judicial Cooperation based on her doctoral thesis (La notion de coopération judiciaire, LGDJ, coll. Droit privé, préf. L. Cadiet, vol. 597, 2020).

The author has provided the following abstract in English:

The diversity of legal orders and their multiplication have led to a growing need to articulate them. In addressing this need, mechanisms of coordination proper to private international law (rules of conflicts of laws and of jurisdictions, lis pendens), based on passive logic in which one legal order holds back in favor of another, reveal to be insufficient.

Parallel to these mechanisms emerged, in a disorganized manner, a whole heteroclite set of more active methods of interaction, both during judicial proceedings and upon their completion, such as mission rogatory, service of process, extradition, European arrest warrant, seizure of assets, Interpol red notices, enforcement of foreign judgments and arbitral awards. The doctoral thesis gathers these diverse mechanisms under the banner of judicial cooperation, not only in order to seek unity behind the apparent diversity, namely by distinguishing a common procedural foundation as well as similar, or at least consistent powers of judges mutually assisting each other, but also to suggest punctual improvements of certain instruments by analogy with features of other mechanisms.

The thesis first strives to analyze diverse mechanisms of judicial cooperation between judges of European Union member states (e.g. European arrest warrant, recognition and enforcement of civil and criminal judgments, European investigation order, obtaining evidence in the European Judicial Area), as well as outside of the European Union (e.g. letters rogatory, service of process, obtaining evidence, extradition, recognition and enforcement of judgements) and interactions between judges and arbitrators (e.g. assistance of the State judge – “juge d’appui”, recognition and enforcement of arbitral awards). The second part of the doctoral thesis is focused on unveiling the unity of the notion of judicial cooperation by defining its criteria and its essence. Thus, behind the analysis of diverse mechanisms of cooperation between national legal orders with each other and with arbitral legal order, as well as in the European order by virtue of the principle of mutual recognition, and the concrete proposals of improvement of some of them, the book reveals a profound unity of the notion of judicial cooperation.

The unity first appears in the criteria of cooperation in so far as it is defined as procedural act, freely accomplished in one legal order upon the request of another legal order for the needs of judicial proceedings with a cross-border element, pending or terminated in the latter. The thesis explains cross-border element not in a usual, geographical sense, characterized by territorial borders, but in a broader one, marked by the limits of jurisdiction of a legal order (national, European or arbitral legal order). Furthermore, the thesis allows to trace a common basis for all types of mechanisms of judicial cooperation, which is reciprocity of relations between legal orders. In that respect, the thesis shows that such reciprocity is rooted in interactions between legal orders, even if it may be stronger between national legal orders belonging to the European Judicial area, as their relations are characterized by mutual trust. Finally, the unity is found in the purpose of judicial cooperation which manifests differently for requesting and requested legal order. For requesting legal order, the purpose of judicial cooperation is obvious : it is to obtain aid from another legal order where the requesting judge is not allowed to act either because of foreign judicial sovereignty (foreign legal order) or its incompetence (arbitral order). As to the requested judge, the purpose behind its action is less clear. The thesis shows that judicial cooperation is a way for the requested judge to contribute to a better management of cross-border litigation.

The study thus reveals that judicial cooperation transforms the core of judicial powers which are no longer reduced to adjudicating cases falling into the scope of  competence of the legal order to which judges belong but is henceforth enriched to include cooperative function(“office coopératif des juges”). The requested judge’s cooperation allows the requesting judge to surpass a cross-border element in the proceedings and thus contributes to a better administration of justice of the requesting legal order.

More details are available here, including free access to the table of contents and the first few pages of the book.

Practice shows that we’re far away from a perfect world of cooperation between state authorities in the field of cross-border service of process. This post is not about a judgment dealing with the matter (yet). It is what we call a ‘true story’, and serves as a kind of case study, to understand the variety of unprecedented situations with which courts may have to deal with.

A Greek company filed an action against a foreign company, situated in an EU Member State. The claim, its translation, and an application pursuant to Article 4 of the Service Regulation were duly sent by the Transmitting to the Receiving Agency. The latter forwarded the claim to a process server for the purpose of serving the action to its recipient. Following fruitless efforts, the bailiff returned the documents to the court of the state of destination, stating that the respondent was not found in the given address. In particular, so his report, there was no indication that the company had its office there, and no person representing the company or any employee was found in the building. In accordance with domestic law on civil procedure, a hearing took place in camera on the request for service. The court stated that, following official information received, the respondent’s registered seat and postal address was in fact the same with the one stated in the claim form. As a result, and pursuant to Article 50(2) of the Code of Civil Procedure, the documents must be attached to the file, and service shall be deemed as duly made.

On the basis of the above conclusions, the court ordered that a certificate of service in accordance with Article 10 Service Regulation be issued, which should be delivered to the Transmitting Agency, with a true copy of the process server report attached.

The Receiving Agency abided by the order, and issued the above certificate, by making use of the standardized version in Greek. The person in charge filled in the following data: The date and address of service [12.1] in the language of the State of destination, and the method of service [12.2.1.3], i.e. pursuant to Article 50(2) of the Code of Civil Procedure, again in the language of the State of destination. The above person ticked also the box under 12.3, which demonstrates that the recipient was informed in writing that he may refuse to accept the document if it is not translated in a language he understands or the official language of the place of service. Finally, the place, name and capacity under which the above person drafted and signed the document were again written in the language of the state of destination. No court stamp is visible in the certificate.

As I mentioned before, the case is still pending, and the claimant’s lawyer is seriously apprehended whether the documents aforementioned suffice for proving that service has taken place in accordance with the Service Regulation.

There are a number of critical points to be discussed in this case.

1. Is the Greek court entitled to return the certificate, because it was not completed in the languages accepted by the Hellenic Republic (Greek / English / French)? It is true that the receiving Agency made use of the standardized document in its Greek version; however, the crucial data were completed in the language of the State addressed, which is different from the languages declared by Greece).

2. Is the Greek court entitled to challenge the service of process, even if the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory? According to Greek law, if the process server does not find anything or anyone related to the recipient in the given address, service by publication must follow.

3. Is the Greek court entitled to ask at this stage for a particular method of service, because the one chosen by the foreign court is violating the rights of the defendant? Article 7(1) of the Service Regulation does not give a clear answer in this respect.

4. Is the Greek court entitled to ask at this stage for further scrutiny by the Receiving Agency, so that the document is actually served to the defendant or one of its representatives? I fear that this won’t be accepted by the Receiving Agency, simply because service has taken place in accordance with its domestic rules.

5. If the Greek court considers that service was proper, because it was served by a method prescribed by the internal law of the Member State addressed: was it effected in sufficient time to enable the defendant to defend? I anticipate that the Greek court will consider that service was not timely, and therefore order a stay of proceedings.

Finally, an additional and purely domestic problem comes to the surface for the claimant. According to Greek law, and with respect to cases tried in the so called ordinary proceedings, service of process abroad has to be completed within 60 calendar days following filing of the claim. Failure to do so leads to dismissal of the claim as inadmissible. Filing and service has to be repeated. In the case at hand, the claimant passed already through this ordeal, because service of the first claim was not timely completed, i.e. not within the 60-days term. Now comes the second challenge and the claimant’s lawyer is at a loss…

In Colouroz Investment et al [2020] EWHC 1864 (Ch.), Snowden J at 59 ff considers the classic issues (see ia Lecta Paper) on the jurisdictional issue: no cover under the Insolvency Regulation; cover under Brussels Ia (future Brexit alert: ditto under Lugano) left hanging and assumed arguendo. At 62 Snowden J summarises the position excllently:

‘(T)he court has usually adopted the practice of assuming that Chapter II of the Recast Judgments Regulation applies to schemes of arrangement on the basis that the scheme proposal is to be regarded as a “dispute” concerning the variation of the existing relationship between the company and its creditors under which the company “sues” the scheme creditors as “defendants” seeking an order binding them to the scheme.  If, on the basis of that underlying assumption, the court has jurisdiction over the scheme creditors pursuant to Chapter II of the Recast Judgment Regulation, then there is no need for the Court to determine whether that assumption is correct.

At 64: ‘Credit Agreements and the ICA (Intercreditor Agreement, GAVC) were originally governed by New York law and were subject to the exclusive jurisdiction of the New York Court. However, as a result of the amendments made on 2 June 2020 with the consent of the requisite majority of the lenders under the contractual amendment regime, the governing law and jurisdiction provisions have now been changed to English governing law and English exclusive jurisdiction.’ At 65: expert evidence on NY law suggests amendments made on 2 June 2020 are valid and binding as a matter of New York law.

This to my mind continues to be a fuzy proposition under the Rome I Regulation: change of lex contractus by majority must beg the question on the relevant provisions under Rome I. As far as I am are, this hitherto has not been driven home by anyone at a sanction hearing however it is bound to turn up at some point.

At 66 Snowden J, who gives consent for the sanction hearing, announces that one issue that will have to be discussed there is that if the Schemes are sanctioned, the intention is to have the jurisdiction clauses then changed to asymmetric jurisdiction clauses, detailed in 21-23: lenders will be entitled to bring proceedings against the obligors in any jurisdiction although any proceedings brought by the obligors must be brought in England. At 66 in fine: ‘that question is not for decision at this convening hearing, but should be considered at the sanction hearing.’

That’s a discussion I shall look forward to with interest.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

#Restructuring.
Schemes of arrangement. Involves US, UK, contintental EU corporations.
Convening hearing approved.
Contentious issue of future change to assymetric choice of court deferred to the sanction hearing. https://t.co/OU9MqYdVFX

— Geert Van Calster (@GAVClaw) July 13, 2020

Hamida Begum v Maran UK [2020] EWHC 1846 (QB) engages exactly the kinds of issues that I have just posted about, in court rather than in concept. On 30th March 2018 Mr Mohammed Khalil Mollah fell to his death whilst working on the demolition of a defunct oil tanker in the Zuma Enterprise Shipyar in Chittagong (now Chattogram), Bangladesh. On 11th April 2019 the deceased’s widow issued proceedings claiming damages for negligence under the UK Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976; alternatively, under Bangladeshi law. The scope of the proceedings has subsequently been broadened inasmuch as draft Amended Particulars of Claim advance a cause of action in restitution: more precisely, unjust enrichment.

Application in the current case is for strike-out and /or summary judgment (denying liability) hence the legal issues are dealt with at prima facie instead of full throttle level. One or two of the decisions deserve full assessment at trial. Trial will indeed follow for the application was dismissed.

The case engages with the exact issues in exchanges I had at the w-e.

Proceedings have not been brought against the owner of the yard and/or the deceased’s employer. Both are Bangladeshi entities. Maran (UK) Ltd,  defendant, is a company registered in the UK and, it is alleged, was both factually and legally responsible for the vessel ending up in Bangladesh where working conditions were known to be highly dangerous.

Focus of the oral argument has been whether claim discloses viable claims in English law on the basis of tort of negligence (answer: yes) and in unjust enrichment (answer: no).

The issue of liability in tort is discussed on the basis of English law, which is most odd for Rome II might suggest Bangladeshi law as the lex causae and Justice Jay himself says so much, but only at 76 ff when he discusses Rome II viz the issue of limitation.

On the tort of neglicence claimant argues under English law, with direct relevance to the current debate on environmental and human rights due diligence, that a duty of care required the defendant to take all reasonable steps to ensure that its negotiated and agreed end of life sale and the consequent disposal of the Vessel for demolition would not and did not endanger human health, damage the environment and/or breach international regulations for the protection of human health and the environment. The EU Ship Recycling Regulation 1257/2013 was suggested as playing a role, which is dismissed by Justice Jay at 24 for the Regulation was not applicable ratione temporis.

At 30, claimant’s case on negligence is summarised:

First, the vessel had reached the end of its operating life and a decision was taken (perforce) to dispose of it. Secondly, end-of-life vessels are difficult to dispose of safely. Aside from the evident difficulties inherent in dismantling a large metal structure, a process replete with potential danger, an oil tanker such as this contains numerous hazardous substances such as asbestos, mercury and radio-active components. Although these were listed for Basel Convention purposes and for the attention of the buyer, and the deceased was not injured as a result of exposure to any hazardous substance, the only reasonable inference is that waste such as asbestos is not disposed of safely in Chattogram. Thirdly, the defendant had a choice as to whether to entrust the vessel to a buyer who would convey it to a yard which was either safe or unsafe. Fourthly, the defendant had control and full autonomy over the sale. Fifthly, the defendant knew in all the circumstances that the vessel would end up on Chattogram beach. Sixthly, the defendant knew that the modus operandi at that location entailed scant regard for human life.

The gist of the argument under tort therefore is a classic Donoghue v Stevenson type case of liability arising from a known source of danger.

At 42 ff Justice Jay discusses what to my mind is of great relevance in particular under Article 7 Rome II, should it be engaged, giving claimant a choice between lex locus delicti commissi and lex locus damni for environmental damage, in particular, the issue of ‘control’. One may be aware from my earlier writings (for an overview see my chapter in the 2019 OUP Handbook of Comparative environmental law) that the determination of the lex causae for that issue of control has not been properly discussed by either the CJEU or national courts. This being a prima facie review, the issue is not settled definitively of course however Justice Jay ends by holding that there is no reason to dismiss the case on this issue first hand. This will therefore go to trial.

 As noted Rome II is only discussed towards the end, when the issue of limitation surfaces (logically, it would have come first). Claimant does not convince the judge that the case is manifestly more closely connected with England than with Bangladesh under A4(3) Rome II. Then follows the discussion whether this might be ‘environmental damage’ under Article 7 Rome II, which Justice J at 83 ff holds preliminary and prima facie, it is. That might be an overly broad construction of A7 Rome II, I believe, which shows too much reliance on the context of the litigation.

At 85 a further issue for debate is trial is announced, namely whether the one-year statute of limitation under Bangladeshi law, should be extended under Article 26 Rome II’s allowance for ordre public (compare Roberts and CJEU C-149/18 Martins v DEKRA – that case concerning lois de police and statutes of limitation. 

Plenty of issues to be discussed thoroughly at trial.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.