Droit international général

In Silverman v Ryanair DAC (Rev1) [2021] EWHC 2955 (QB), claimant was injured whilst going down stairs at an airport terminal in England. The claim is subject to EU private international law. Jurisdiction for the English courts in this personal injury claim is not disputed.

Under A5 Rome I, contracts for carriage of goods are subject to the ordinary lex voluntatis rule, while for carriage of passengers, parties can only choose from a limited selection of leges contractus. The standard approach is for  general terms and conditions to select the law of the carrier’s habitual residence or his place of central administration, which is entirely kosher under Rome I. Unless the booking qualifies as package travel, it essentially means that passengers are generally less protected than ordinary consumers under A6 Rome I.

In the case of Ryanair, the default choice inevitably leads to Irish law, except in this case (because Irish law would lead to higher damages), the airline unusually seeks to divert from its default choice of law.  The airline’s relevant clause, reads

8.2.4: Governing Law: “Except as otherwise provided by the Convention or applicable law, your contract of carriage with us, these Terms and Conditions of Carriage and our Regulations shall be governed by and interpreted in accordance with the laws of Ireland and any dispute arising out of or in connection with this contract shall be subject to the jurisdiction of the Irish Courts.”

The Montreal Convention for the Unification of Certain Rules for International Carriage by Air 1999 is unaffected by Rome I as a result of the Regulation’s A25, which gives clear priority to multilateral Conventions at least if the Convention concerned also includes non-EU Member States. The Convention also operates to make the choice of court provision invalid, as discussed ia in CJEU  C-213/18 Adriano Guaitoli et al v Easyjet.

Claimant however argues that assessment of quantum of damages is not regulated by Montreal and therefore remains subject to the lex voluntatis. This is where the second line of Ryanair’s defence comes in, namely an attempt to qualify the claim as one in tort, subject to Rome II’s lex loci damni rule, rather than Rome I’s lex voluntatis.

In essence therefore the question is a matter of Treaty interpretation viz the Montreal Convention (what does it mean to regulate in its provisions on liability and damages), subsequently secondary EU law interpretation viz Rome I and II (qualification: is it a claim in contract or tort, and once that held, does the lex casuae indicated by the relevant Regulation, cover quantum of damages).

Master McCloud turns to international comparison not by way of binding authority but pro inspiratio seeing as the case concerns an international Convention [52]. Scalia J’s ‘Pass-through’ approach to the lex fori’s choice-of-law rules in Zicherman (1996) is the approach also followed in this judgment. The judge uses the formulation by Bader Ginsburg J in El Al Israel: that Warsaw drafters intended to resolve whether there is liability, but to leave to domestic law (the local law identified by the forum under its choice-of-law rules or approaches) determination of the compensatory damages available to the suitor.”

Comparative case-law analysis makes sense. However one would have thought a starting point should have been analysis of the Convention and its travaux itself. Master McCloud does get to that when considering the rather awkward , counsel-inspired idea that there needs to be a discussion of the law that applies to the interpretation of the Convention. Determining the ‘Applicable law to matters of interpretation of the Convention’ might perhaps make sense in a dualist jurisdiction like the UK?

At [59] the judge holds the lex causae for interpretation of the Convention is the lex fori, English law therefore. At [61] he calls this

Convention law as understood by this court, ie the lex fori in that rather special international sense.’

Here I am lost.

The judge then employs the ‘natural language’ approach to determine what parts of the Montreal liability scheme parties can and cannot contractually be negotiated away.

Only the liability issues that have ‘passed through’ to the lex fori are then considered with a view to determining the qualification exercise: is the claim one in contract or one on tort. The judge raises the possibility that the claimant could have construed the claim as being a ‘Convention claim incorporated in the contract’ [64] however he holds that claim is not brought on that footing:

‘the Claim and Particulars are clear: they plead a claim for damages for breach of the Convention, they do not plead a claim in the law of contract’ [64].

That, I would submit, is wrong. The claim is subject to European conflict of laws rules. These require the judge to qualify the claim subject to the autonomous interpretation of ‘contract’ and ‘non-contractual obligation’ as most recently discussed by the CJEU in Wikingerhof. While I am the first to acknowledge claim formulation is a powerful tool to manage qualification (indeed Wikingerhof confirms as much), I do not think deference to claimant may be as large as suggested here.

The judge proceeds with the non-contractual nature (causing injury to the claimant through negligence [65]), points out that the Convention covers both contractual and non-contractual claims [66] and seeks support in his analysis on tort and contract in Prof. Thomas Kadner Graziano’s 2016 paper in the Yearbook of Private International Law. With respect, I do not think Thomas’ paper supports the conclusions in this case.

At [72][73] the judge then rather summarily and using A4(3) Rome II displaces the lex loci damni for the ‘passed through’ claim, in favour of Irish law, the lex contractus to the contract of carriage. Once the Rome II path chosen (of which, per above, I am not convinced), I do not think the lex loci damni may be pushed aside quite as concisely as this.

The relationship between international Conventions and European conflicts rules is not always straightforward. Yet here I think it has been presented a touch too convolutedly.

Geert.

Silverman v #Ryanair (Rev1) [2021] EWHC 2955 (QB)
Aviation law, whether airline can disapply its own choice of law & how #Montreal Convention interacts with the choice of law rules of the Forum, here: Rome I and II (and A4(3) escape clause for the latter https://t.co/EWJ7njH5ED

— Geert Van Calster (@GAVClaw) November 12, 2021

In October 2021, the Spanish Supreme Court had the opportunity to show its willingness to follow the Court of Justice and to give an example of a good practice in a matter related to the application of Article 7(2) of the Brussels I bis Regulation.

The order (auto) of 7 October 2021, was delivered by the Plenary of the Civil Chamber, with M. Ignacio Sancho Gargallo as reporting judge, against the background of an action for damages suffered as a result of an infringement of competition law.

In the case at hand, the Spanish company Garutrans Gasteiz S.L. filed a claim against Paccar Inc. and its subsidiary DAF Trucks NV, domiciled, according to the lawsuit, in San Fernando de Henares (Spain). The case was assigned to the Commercial Court No. 3 of Madrid, which declared the application admissible. After the attempts to serve the process at the address indicated in the claim failed, the plaintiff indicated two new addresses, one in the United States and another in the Netherlands.

The Madrid court, by order of 18 January 2021, declared ex officio its lack of territorial jurisdiction and pointed to the commercial courts of Vitoria as competent, arguing the defendants have their registered office outside of Spain and the DAF trucks were acquired in Vitoria, where the plaintiff is domiciled.

By order of 12 April 2021, however, the Commercial Court No. 1 of Vitoria declared itself incompetent as well on the basis that three of the four trucks had been acquired in Navarra. The situation was therefore one of a negative conflict of jurisdiction.

The Supreme Court ruled that the Madrid court’s declaration of incompetence was premature, since according to Article 28, para. 1, of the Brussels I bis Regulation it should have summoned the defendants (NoA: the Regulation imposes such duty only in relation to defendants domiciled in a Member State other than the one where the judge seats; nothing is said about other defendants), so as to give them the possibility of appearing and accepting jurisdiction in accordance with Article 26 of the Regulation, or rejecting it through the procedural tool to the purpose. Only after, and only provided the defendant(s) does not appear, the court seised is entitled to analyse its jurisdiction and to declare ex officio it has none.

What is interesting about the order of the Supreme Court, however, is not the final conclusion, but the Court’s statements showing its awareness and disposition to follow the Court of Justice’s decision C 30/20, Volvo, in order to identify the place of the damage in the framework of Article 7(2) of the Brussels I bis Regulation.

The Volvo ruling corresponds to a request from a Madrid Court. There, the Court of Justice explicitly asserts that Article 7(2) of the Regulation determines both international and territorial jurisdiction. Moreover, the Court recalls that the centralisation of jurisdiction before a single specialised court may be justified in the interests of the sound administration of justice: as AG Richard de la Tour had suggested in his opinion, the technical complexity of the rules applicable to actions for damages for infringements of competition law provisions may militate in favour of such a centralisation of jurisdiction. In its absence, the courts of the place where the goods were acquired are territorially competent. This notwithstanding, should the buyer not have purchased the goods affected by the collusive arrangements in question within the jurisdiction of a single court, territorial jurisdiction is conferred on the courts of the place where the undertaking harmed has its registered office.

As already said, the Spanish Supreme Court did not need to apply the above-mentioned solutions to the case at hand, but profited from the occasion to endorse them and to explicitly revoke its previous understanding of Article 7(2) of the Brussels I bis Regulation.

 

Written by Lena-Maria Möller,
Max Planck Institute for Comparative and International Private Law
Visiting Scholar, New York University Abu Dhabi

 

On 7 November 2021, Abu Dhabi, the largest of seven emirates that form the United Arab Emirates, announced the passing of a new personal status law for non-Muslim foreigners. The law carries forward a series of recent legal reforms that aim at providing greater legal certainty for the country’s large expatriate population. The law’s novelty lies in the fact that it combines aspects of substantive and international family law. It is significant also because it introduces civil marriage – albeit only for non-Muslim foreigners – into the country’s domestic family law regime. While generally welcomed as possibly easing judicial procedure and court proceedings, the new legislation also raises several questions, especially as regards the law’s application alongside the Emirati conflict-of-laws rules.

 

Multinationalism and its challenges for family law

Since the country’s foundation exactly 50 years ago, the United Arab Emirates have been characterized by large-scale labor migration of both low- and high-skilled workers and, as a result, by its highly diverse, multinational population. In a country of around 10 million inhabitants, only a little over one million are national citizens. This demographic makeup has been a challenge for both national and international family law as around 70% of cases filed with the domestic family courts have an international element. Prior to recent legal reforms, foreigners would either settle their personal status matters in their home country, or they would approach the local personal status courts where, in theory, they could choose between having the Islamically inspired Federal Personal Status Codes of 2005 or the laws of their home country applied. In legal practice, however, most personal status cases were settled according to domestic law. Among the main reasons was reluctance on the part of some family court judges to apply a set of rules they were not familiar with as well as the parties’ concerns that the application of their own national law would lead to their case being more costly and time-consuming. This was because Emirati courts have demonstrated a strong tendency to consider the foreign law as a fact which will have to be proven by the parties.

While domestic and international family law have traditionally been a matter of federal legislation, a few years ago, the emirate of Abu Dhabi already launched a first local initiative to offer alternative jurisdiction to its (non-Muslim) expatriate community. In late summer 2017, the emirate announced that it would allow Christian expatriates to divorce through their church. Instead of filing a divorce petition with the domestic family courts, foreigners residing in Abu Dhabi henceforth had the option of seeking mediation in their own place of worship. The proposal envisioned that once the couple, through such church-run mediation, had reached a divorce agreement settling questions regarding assets and the custody of children, these documents only needed to be authorized by the national courts to become enforceable. Initially, the amendment had been agreed upon only between the emirate of Abu Dhabi and local Christian leaders, but the inclusion of Hindu and Sikh religious communities was equally envisioned. The initiative to introduce church-run mediation and dispute resolution for Christian expatriates, however, proved impractical. For example, it remained unclear what legal status such religious out-of-court agreements would have in the home countries of foreigners residing in the United Arab Emirates. This was the case especially for all those expatriates whose home countries had abolished religious family adjudication or required a court’s substantive involvement in the dissolution of a marriage. The proposed alternative jurisdiction thus failed to meet the needs of many non-Muslim expatriates and instead another legislative amendment was introduced at the federal level in 2020.

In September 2020, a federal decree-law amended the country’s international family law by introducing recourse to the lex loci celebrationis. Instead of applying the law of a husband’s nationality, as was the case before, on the federal level, questions of marriage and divorce are now governed by the law of the country in which the marriage was concluded. While, at first glance, this conflict-of-law rule signaled a departure from nationality as the main connecting factor, the amendment was in fact framed in terms of expatriates being given the option of having “their own” laws, and those to which they have a stronger connection, applied. The new decree-law therefore also reiterated that nationality would determine the law applicable to a deceased person’s estate. The principle aim of the amendment was to offer expatriates access to a legal regime that they felt closely connected with and that met their regulatory demands best.

 

New national legislation for international cases

With Abu Dhabi’s new personal status law for non-Muslim foreigners, the transition from religious affiliation to foreign nationality as the main connecting factor (and thereby identity marker in the eyes of the legislator) has been partially reversed. Admittedly, the law, which contains a mere twenty articles (as opposed to the 357 articles-long Federal Personal Status Code), offers an accessible and easy-to-understand basis for adjudicating the most common personal status cases, including concluding and dissolving a marriage before the soon-to-be-established bilingual (Arabic and English) family courts for non-Muslim foreigners. As proclaimed in Article 2, the law is based on international best practices and aims to provide foreigners with a law that they find familiar in terms of “culture”, “customs”, and language. The same article also highlights that among the principle aims of the law is to safeguard the best interests of the child particularly upon divorce of the parents. Article 3 allows foreigners to opt out of the new law and instead request the application of the law of their home country. It must be assumed that in such cases it still falls upon the parties to present the detailed content of the foreign law and provide the court with its official translation.

Eleven articles of the new law are dedicated to substantive questions of personal status and stipulate, inter alia, that spouses to a civil marriage must at least be eighteen years of age (which corresponds to the rules in the Federal Personal Status Code) and must both explicitly declare their consent to marriage (i.e., the woman must not be represented by a marriage guardian as the country’s Islamically inspired family law envisions instead) (Article 4). Both spouses have access to unilateral, judicial divorce without having to demonstrate reasons for divorce, and the court will not establish a party responsible for the breakdown of the marriage (Article 6-7). The law envisions post-divorce maintenance only for the wife and does not contain any provisions entitling the divorced husband to alimony (Article 8). This rule stands in contrast to a general provision in the new law, Article 16, which reiterates the equality of men and women in the application of the law. The default post-divorce custody arrangement is joint custody with the competent court having discretion to decide to the contrary (Article 9-10). Filiation of a child is established either through marriage or acknowledgment (Article 14). Finally, the new law also covers questions of testate and intestate succession, provides for the deposition of a foreigner’s will in a special register (Article 13), and defines proportional rights for inheritance in case a non-Muslim foreigner dies intestate. In this case, the default rule is that the estate is divided in half between the deceased’s spouse and their children (without any distinction between sons and daughters) or the deceased’s parents and siblings (Article 11).

As already noted, the law is rather straightforward and lays down the most basic rules for different matters of personal status. Any questions not covered in the law will be regulated according to local and federal laws and legislation (Article 18), presumably including the Federal Personal Status Code, and the law states that additional executive regulations will be passed to regulate the application of the law in detail (Article 19).

 

Open questions

A substantive family law that is only applicable to foreigners is by any means a novel approach in family law internationally. Had the new law been aimed at governing matters of personal status for all non-Muslims (foreigners and national citizens) in the country, it would be consistent with the firmly established approach in the region of dividing the applicable family and inheritance law along religious lines. In its current form, however, the law conflates religious affiliation and citizenship as connecting factors in international and domestic family law. This poses a problem for all Muslim foreigners in the United Arab Emirates, especially those hailing from countries without religiously inspired family law. Should they not wish to be subject to the country’s Federal Personal Status Code, they must still demand the application of the laws of their home country and will have to go through the time-consuming and costly process of proving the content of these laws to the competent court. Their fellow countrymen and -women are spared such efforts owing merely to their different religious affiliation.

One may also wonder about the chances of judgments based on the new law being recognized in the parties’ home countries. It will be difficult for foreign courts to comprehend why the Emirati conflict-of-laws rules lead to the application of foreign law when instead the same case has been decided by a domestic set of rules designed specifically for foreigners. To add clarity, it would be useful to reference the new personal status law in the relevant rules on international family law. In addition, the wording of Article 3, which allows for foreigners to demand “the application of the law of their home country”, should ideally refer to the applicable conflict-of-laws rules in the country’s Civil Code – as does the corresponding rule in the Federal Personal Status Code. Otherwise, in some personal status matters, divorce for example, a total of three applicable laws are now competing with one another: the new domestic law for non-Muslim foreigners, the law of their home country, and the lex loci celebrationis that was introduced through the abovementioned conflict-of-laws reform of 2020.

 

Note: The Personal Status Law for Non-Muslim Foreigners in the Emirate of Abu Dhabi has not yet been published in the local gazette. The analysis above is based on a first unofficial version of the law that was obtained in advance.

The University of Toulouse (France) will host a conference on Notary’s Role in Private International Law (L’office du notaire en droit international privé) organised by Estelle Gallant, on 25-26 November 2021.

The conference will include sessions on the role of notary as competent authority in the field of private international law, the reception and circulation of public documents, the drawing up of deeds by notaries as well as roundtables on divorce by mutual consent, property regime of couples and international successions.

Speakers will include numerous PIL specialists:

• Scholars : Hugues Kenkack (Toulouse), Fabienne Jault-Seseke (Paris-Saclay), Patrick Wautelet (Liège), Pierre Callé (Paris-Saclay), Christine Bidaud (Lyon 3), Hugues Fulchiron (Lyon 3), Eric Fongaro (Bordeaux), Michel Farge (Grenoble-Alpes), Hélène Péroz (Nantes), Nathalie Joubert (Bourgogne-Dijon), Sara Godechot-Patris (Paris-Est Créteil), Sandrine Clavel (Paris-Saclay), Marc Nicod (Toulouse), Lukas Rass-Masson (Toulouse), Estelle Gallant (Toulouse) & Cyril Nourissat (Lyon 3)
• Notaries: Caroline Deneuville (Paris), Richard Crône (Paris) and François Tremosa (Toulouse) & Jean-Christophe Rega (Mission Europe du CSN),
• Legal practionners working with notaries : Mariel Revillard, Marion Nadaud (Bordeaux) & Sophie Chalas-Kudelko (Lyon)

The full programme is available here. Online registration is open here.

Author: Ting LIAO, Ph.D. candidate, Wuhan University Institute of International Law

A. Technology in the Context of Judicial Reform

According to Max Weber, “the modern judge is a vending machine into which the pleadings are inserted together with the fee, and which then disgorges the judgment together with the reasons mechanically derived from the code.” [1]Max Weber’s conjecture is a metaphor for the vital connotation of intelligence. The key elements of intelligence are people, data and technology. So, how these elements are utilized in the judicial system?

Generally, a significant number of courts are experimenting with the use of internet, artificial intelligence and blockchain for case filling, investigation and evidence obtaining, trials and the initiation of ADR procedures. The so-called smart justice projects are commenced in many countries. China has also made significant progress in this domain. In addition to accelerating the use of the internet technology, the Supreme People’s Court of China has demonstrated its ambition to use AI  and blockchain to solve problems in the judicial proceedings.[2]

B. Smart Court in China: An Overview

In China, the smart justice is a big project contains smart court, smart judicial administration and smart procuratorate. The smart court is the core of the entire smart justice project. “The Opinions of the Supreme People’s Court on Accelerating the Construction of Smart Courts” encourages people’s courts around the country to apply AI to provide smarter litigation and legal literacy services to the public, while reducing the burden of non-judicial matters for court staff as much as possible.

The construction of China’s smart courts involves more than 3,000 courts, more than 10,000 detached tribunals and more than 4,000 collaborative departments, containing tens of thousands of information systems such as information infrastructure, application systems, data resources, network security and operation and maintenance, etc. The entire smart court information system is particularly big and complex.

The smart court is a functional service platform for the informatization of the people’s courts. The platform integrates several cutting-edge technological capabilities, including face recognition identity verification, multi-way audio and video call functions, voice recognition functions and non-tax fee payment functions. These functions are tailor-made capability packages for courts, and they can be used in a variety of scenarios such as identity verification, online documents accessing, remote mediation, remote proceedings, enforcement, court hearing records and internal things. Through the smart platform, any court can easily access to the capabilities, and quickly get successful experiences from any other courts in China.

C. Examples of Good Practice

1. Provide Litigation Information and Services

Peoples’ Courts in nine provinces or municipalities, including Beijing, Shanghai and Guangdong, have officially launched artificial intelligence terminals in their litigation service halls. Through these AI terminals, the public can access information about litigation and judicial procedures, as well as basic information about judges or court staff. The AI terminals can also automatically create judicial documents based on the information provided by the parties. More importantly, the AI can provide the parties risk analysis before filing a lawsuit. For example, artificial intelligence machines in courts in Beijing, Shanghai and Jiangsu can assess the possible outcome of litigation for the parties. The results are based on the AI’s analysis of more than 7,000 Chinese laws and regulations stored in its system, as well as numerous judicial precedents. At the same time, the AI machine can also suggest alternative dispute resolution options. For example, when an arbitration clause is present, the system will suggest arbitration, in divorce cases, if one of the parties unable to appear in people’s court, then the smart system shall advise online mediation.

In addition to parties, as to the service for the court proceeding itself, the new generation of technology[3] is used in the smart proceeding and is deeply integrated with it. These technologies provide effective support for judges’ decision making, and provide accurate portraits of natural persons, legal persons, cases, lawyers and other subjects. They also provide fast, convenient and multi-dimensional search and query services and automatic report services for difficult cases.

2. Transfer of Case Materials

Some People’s Courts in Shenzhen, Shanghai and Jiangsu have set up artificial intelligence service terminals for parties to scan and submit electronic copies of materials to the court. This initiative can speed up the process of evidence submission and classification of evidence. In addition, digital transmission can also speed up the handover of case materials between different courts, especially in appellate cases where the court of first instance must transfer the case materials to the appellate court.

3. Evidence Collection and Preservation

Technically speaking, the blockchain and its extensions can be used to secure electronic data and prevent tampering during the entire cycle of electronic data production, collection, transfer and storage, thus providing an effective means of investigation for relevant organizations. Comparing to traditional investigation methods, blockchain technology is suitable as an important subsidiary way to electronic data collection and preservation. This is because the blockchain’s timestamp can be used to mark the time when the electronic data was created, and the signature from the person’s private key can be used to verify the party’s genuine intent. The traceable characteristics of blockchain can facilitate the collection and identification of electronic data.[4]

In judicial practice, for example, the electronic evidence platform is on the homepage of Court’s litigation services website of Zhengzhou Intermediate People’s. It is possible to obtain evidence and make preservation on judicial blockchain of the court. This platform providing services such as evidence verification, evidence preservation, e-discovery and blockchain-based public disclosure. The evidence, such as electronic contracts, can be uploaded directly via the webpage, and the abstract of electronic data can be recorded in the blockchain in real time. Furthermore, this judicial blockchain has three tiers (pictured below). The first tier is the client side, which helps parties submit evidence, complaints and other services. The second tier is the server side, which provides trusted blockchain services such as real-name certification, timestamping and data storage. The third tier is the judicial side, which uses blockchain technology to form a consortium chain of judicial authentication, notaries and the court itself as nodes to form a comprehensive blockchain network of judicial proceedings.[5] In other words, people’s court shall be regarded as the key node on the chain, which can solve the contradiction between decentralization and the concentration of judicial authority, and this kind of blockchain is therefore more suitable for electronic evidence preservation.

Secondly, for lawyers, the validity of electronic lawyer investigation orders can be verified through judicial blockchain, a technology that significantly enhances the credibility of investigation orders and the convenience of investigations. For example? in Jilin Province, the entire process of application, approval, issuance, utilization and feedback of an investigation order is processed online. Lawyers firstly apply for an investigation order online, and after the judge approves it, the platform shall create an electronic investigation order and automatically uploads it to the judicial blockchain for storage, while sending it to lawyers in the form of electronic service. Lawyers shall hold the electronic investigation order to target entities to collect evidence. Those entities can scan the QR code on the order, and login to the judicial blockchain platform to verify the order. Then they shall provide the corresponding investigation evidence materials in accordance with the content of the investigation order.[6]

In addition, it should be noted that Article 11 of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases by Internet Courts”, which came into force in 2018, explicitly recognizes data carriers on the blockchain as evidence in civil proceedings for the first time, but their validity needs to be verified by the courts.

The issue of blockchain evidence has already caused discussion among judges, particularly regarding the use of blockchain-based evidence in cases. For instance, what criteria should courts adopt to read such data? Approaches in judicial practice vary. Currently, there is no consistent approach in people’s court as to whether blockchain evidence needs to be submitted as original evidence. In certain recent cases, such as (2019) Jing 0491 Min Chu No. 805 Case and (2020) Jing 04 Min Zhong No. 309 Case, the court’s considerations for the determination of blockchain evidence are inconsistent.

4. Case Management

People’s Courts in Shanghai and Shenzhen are piloting an artificial intelligence-assisted case management system that can analyze and automatically collate similar judicial precedents for judges to refer to. The system is also able to analyze errors in judgments drafted by judges by comparing the evidence in current cases with that in precedent cases. This will help maintain uniformity in judicial decisions. Currently, the system for criminal cases has been put into use, while the system for civil and administrative cases is still being tested in pilot stage.

5. Online Proceedings

Chinese courts had already adopted online proceedings in individual cases before 2018. The Supreme People’s Court had released the Provisions of the Supreme People’s Court on Certain Issues Concerning the Hearing of Cases in Internet Courts. From 1 January 2020 to 31 May 2021, 12.197 million cases were filed online by courts nationwide, with online filing accounting for 28.3% of all cases filed; 6.513 million total online mediation, 6.142,900 successful mediation cases before litigation; 1.288 million online court proceedings 33.833 million electronic service of documents.[7]

Recently, the Supreme Court, some provincial courts and municipal courts have also issued rules on “online proceedings”. The Supreme People’s Court has issued the Online Litigation Regulations for the People’s Court 2021 which stipulates online litigation should follow the five principles, namely fairness and efficiency, legitimate and voluntary principle, protection of rights, principle of safety and reliability. This regulation emphasizes the principles of application of technology, strictly adhere to technology neutrality, to ensure that technology is reliable. [8]Furthermore, in 2021 the Supreme People’s Court has issued the Several Regulations on Providing Online Filing Services for Cross-border Litigants, relying on the provision of online filing for cross-border litigants through the China mobile micro court. Based on Tencent’s cloud technology, the Micro Court can also be linked to the most used communication tool in China, namely WeChat. Using the micro courts mini programs allows for a dozen functions such as public services, litigation, enforcement and personal case management.[9]

6. Framework of the Litigation Services Network

The litigation service network is an important carrier for the court to conduct business and litigation services on the Internet, providing convenient and efficient online litigation services for parties and litigation agents, greatly facilitating the public’s litigation, while strengthening the supervision and management of the court’s litigation services, enhancing the quality of litigation services and improving the standardization of litigation services. The picture shows the functioning and operation mechanism of a litigation services network.[10]

[1] See Max Weber, On Law in Economy and Society (Edward Shils and Max Rheinstein trans., Harvard University Press 1954).

[2] For example, in 2019, the Supreme People’s Court of China approved several documents such as “The Report on the Promotion of China Mobile Micro Courts”, “The Report on the Construction of the Smart Court Laboratory”, and “The General Idea of Comprehensively Promoting the Construction of Judicial Artificial Intelligence”.

[3] Including big data, cloud computing, knowledge mapping, text mining, optical character recognition (OCR), natural language processing (NLP) etc.

[4] See Trusted Blockchain Initiatives, White Paper on Blockchain Preservation of Judicial Evidence (2019).

[5] See Zhengzhou Court Judicial Service Website < http://www.zzfyssfw.gov.cn/zjy/> accessed 09 Nov. 2021; A consortium chain is a blockchain system that is open to a specific set of organizations, and this licensing mechanism then brings a potential hub to the blockchain, and The node access system in a consortium chain means that it already grants a certain level of trust to the nodes.. see also Internet court of Hangzhou < https://blockchain.netcourt.gov.cn/first>accessed 09 Nov. 2021.

[6] See e.g., a pilot project of the Supreme People’s Court of China, the Jilin Intermediate People’s Court proposed the Trusted Operation Application Scene: Full Process Assurance for Litigation Services (Electronic Lawyer Investigation Order); see also People’s Court Daily, Piloting the “judicial chain” and multipions practice of Jilin’s smart court construction< http://legal.people.com.cn/n1/2020/1124/c42510-31942250.html>accessed 08 Nov. 2021.

[7] See Chinanews < https://www.chinanews.com/gn/2021/06-17/9501170.shtml>accessed 08 Nov. 2021.

[8] SPC of PRC, Report about Online Litigation Regulation for the People’s Court< http://www.court.gov.cn/zixun-xiangqing-317061.html>accessed 08 Nov. 2021.

[9] See e.g., Xinhuanet < http://www.xinhuanet.com/legal/2020-05/07/c_1125953941.htm>accessed 08 Nov. 2021.

[10] Xu Jianfeng et.al., Introduction to Smart Court System Engineering (People’s Court Press 2021).

It is common practice for children to be registered in the country where they are born or where they hold nationality. But what if these countries fail to do so? A judgment of 18 October 2021 rendered by a judge of first instance in Montilla (Spain) gives an answer, which was reported in the blog run by José Carlos Fernández Rozas and on the webpage of the Consejo General del Poder Judicial. The judgment can still be appealed.

Facts

A child was born in March 2020 in Oran (Algeria) to a national of Cameron; the father is unknown. The Algerian authorities failed to register the child. One year later, mother and child entered Spanish territory, where they have been living since in a refugee centre in Montilla.

Holding

The judge decided that the child should be registered in the Spanish civil register, despite the absence of a previous registration in the country of its birth or nationality.

Rationale

The Spanish judge stressed that competence for registering the child’s birth lay first and foremost with Algeria, the place of its birth, and with Cameron, the country of its nationality. Since these countries failed to exercise their competence, the judge found that Spain had both the right and the duty to register the child. The legal basis for doing so would be Article 9(2) of the Spanish Act on the Civil Register (Ley 20/2011, de 21 de julio, del Registro Civil), which provides that events and acts that have taken place outside Spain shall be registered in the Spanish register when required by Spanish law.

High-Level Human Rights Principles

Most interesting is where the judge found the requirement to register the event of the child’s birth. In this regard, he referred to the highest-ranking legal sources available. In particular, he cited the Universal Declaration of Human Rights, and the various rights it grants to the individual. The judge used these sources to formulate some very far-reaching and important legal propositions. He emphasised that the registration of a person’s identity is “one of the most essential manifestations of the recognition of the individual as such”. It would be “the only form by which society and the law accept its existence”, and it would “facilitate the exercise of all of the rights that the law bestows from the time of birth”. Without an entry in the civil register, there would be no liberty to respect, and no right to recognise.

More Technical Considerations, in particular the UN Convention on the Rights of the Child

On a more technical level, the judge referred to Article 6 of the Universal Declaration of Human Rights, which says that “Everyone has the right to recognition everywhere as a person before the law”. He also referred to the UN Convention on the Rights of the Child, which had been signed and ratified by Spain, Article 7(1) of which sets out that “[t]he child shall be registered immediately after birth …”.

The judge considered Article 7(1) of the Convention to be of direct and immediate effect because of its clear, precise and unconditional formulation. This was despite Article 7(2) of the Convention, under which the states party to the Convention shall implement the obligation to register, “in particular where the child would otherwise be stateless”. The judge argued that Article 7(2) was mainly focused on avoiding situations of statelessness, and that the registration was a condition prior to the granting of nationality because only persons recognised as having legal personality could be considered as nationals. In other words, the child had to be registered somewhere before nationality could be granted. Article 7(1) of the Convention would thus contain a binding obligation for Spanish tribunals to this effect.

Constitutional Law

The judge cited various other provisions, especially of the Spanish Constitution. Inter alia, Article 39(4) of the Constitution provides that “Children shall enjoy the protection provided for in the international agreements which safeguard their rights”.  He also referred to Article 96(1) of the Constitution, according to which validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order.

Assessment

The judgment requires the registration of children by local authorities where a child has been born abroad but not registered there. This is a significant principle that should also be followed by other nations. As a legal basis, they could use either the UN Convention on the Rights of the Child or, if they have not signed it, the Universal Declaration of Human Rights, which applies as customary international law.

Nevertheless, the judgment should not be overinterpreted. Even where a child has not been registered, it is entitled the plenitude of human rights, which exist from birth and are not preconditioned on registration. However, without being officially registered, the child (and also its mother) will encounter many difficulties in practical life. This is why registration is so important that it may be considered even as a human right that can be invoked everywhere.

— Special thanks to José Carlos Fernandez Rozas for his contribution to this post.

Aldricus – Kondisi tubuh wanita yang tengah hamil dan tidak memang berbeda, bukan hanya dari segi fisik tapi juga psikis. Ibu hamil lebih rentan mengalami gangguan kesehatan, terutama mengalami anemia. Ada beberapa penyebab anemia ibu hamil yang jika diketahui sejak dini dapat membantu Anda menghindarinya.

Penyebab Bumil Alami Anemia

Anemia pada ibu hamil memang bukan hal langka dan banyak yang mengalaminya. Akan tetapi, masalah ini tidak dapat disepelekan karena dapat berakibat fatal pada kehamilan, seperti bayi lahir prematur atau mengalami cacat fisik. Berikut adalah beberapa penyebab anemia pada wanita hamil:

1. Kekurangan Zat Besi

Zat besi dibutuhkan untuk memproduksi sel darah merah dan sel darah merah sangat dibutuhkan untuk mengalirkan oksigen dan nutrisi ke seluruh tubuh. Jika dibiarkan akan mempengaruhi tumbuh kembang janin dan membuat plasenta tidak lagi optimal. Biasanya anemia ini disebabkan kurangnya ibu mengonsumsi makanan mengandung zat besi, baik selama maupun sebelum masa kehamilan.

2. Kekurangan Asam Folat atau Vitamin B9

Penyebab anemia ibu hamil berikutnya adalah kekurangan asam folat yang dapat mengakibatkan malabsorpsi. Dalam kondisi ini tubuh ibu hamil akan mengalami kesulitan menyerap asam folat sehingga dapat mengganggu perkembangan sel otak janin dan mempengaruhi perkembangan pada bagian tubuh janin.

3. Kekurangan Asupan Vit. B12

Selain vitamin B9, vitamin B12 juga merupakan jenis nutrisi yang diperlukan bagi tubuh. Kondisi ini akan berbahaya karena tubuh tidak mampu mencukupi kebutuhan sel darah merah dan dapat berakibat pada pertumbuhan janin.

Ketika tubuh tidak mampu melakukan penyerapan vitamin B12 dengan baik, maka akan membuat pembentukan sel darah merah berkurang. Jadi, harus ditangani dengan pemberian suplemen mengandung vit.12. Kebiasaan mengonsumsi alkohol saat hamil juga dapat membuat bumil bisa memicu kekurangan vit B12 ini.

Oleh sebab itu, penyebab anemia ibu hamil harus diketahui sehingga dapat diberikan pengobatan yang tepat untuk mengatasi masalah tersebut. Bisa dengan mengatur asupan makanan yang kaya zat besi dan vitamin B9 dan B12 atau menambahkan asupan suplemen.

The post 4 Penyebab Ibu Hamil Mengalami Anemia dan Cara Penangannya appeared first on Aldri Blog.

In a judgment of 9 November 2020, the Greek Supreme Court discussed a highly interesting issue, which is not often dealt with in practice. The question is whether foreign law (English law, in the circumstances) may apply to procedural acts due to take place in the forum (Greece), affecting directly the limitation of the action. Specifically, the issue had arisen of the consequences of the waiver of the lawsuit by the claimant/appellant, and the repercussions of its examination pursuant to either Greek or English law.

Facts and Judgment

An insurance company, seated in the UK, provided insurance in connection with the contract for the sale of fuel concluded among the insured one and a ship carrier having seat in Greece. Due to an accident at sea, the insurance company reimbursed the insured one and, by endorsement, was handed over the bills of lading, which included a choice of English law. The insurance company, then, initiated proceedings against the carrier (which was also at the same time the shipowner) in Greece. Service of process took place on 7 July 2008, but on 16 February 2010 the claimant proceeded to the discontinuance of the action pursuant to Article 294 Greek Code of Civil Procedure. Ten days later, the insurance company filed a new action against the defendant, adding this time as defendant another company – notably the new shipowner – to which the ship was in the meantime sold and which incorporated the first one in its capacity of shipowner, succeeding in the related rights and obligations.

In the ensuing hearing before the Piraeus Court of first instance, both defendants pleaded that the action was time-barred, relying upon Article III(6) of the Hague-Visby Rules, which reads as follows:

Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period, may however, be extended if the parties so agree after the cause of action has arisen.

The claimant countered that the first claim was filed within one year of the supposed delivery (which failed because of the accident). The discontinuance was made with the intention to correct some parts of the claim. The claimant supported that Greek law should apply. This would lead to the application of Article 263(2) Greek Civil Code, which allows the claimant to file a new claim within six months following the waiver of action. Should this happen, the interruption of limitation goes back to the filing of the initial action. Hence, in accordance with Greek law, this procedural act may not be interpreted as a complete and solemn waiver of the action.

On the contrary, the defendant, the first one, insisted, through all stages of the proceedings, that the choice agreed in favor of English law encompasses the interruption of limitation issue too (the outcome of the case with respect to the second defendant is not related to the matter discussed here).

The Supreme Court ruled in favor of the defendant/appellee. It underlined that the Hague-Visby Rules stipulate the one-year limitation; however, they do not address other issues connected to it, such as interruption and suspension. Consequently, the above matters should be examined by the proper law of the contract, i.e., English law, as evidenced in the bills of lading. Therefore, Greek law, and most importantly, Article 263 Greek Civil Code, may not be applied in the case at hand.

Following the above, the Supreme Court referred extensively to pertinent provisions of the Civil Procedure Rules (CPR) i.e. Parts 17.4 (Amendments to statements of case after the end of a relevant limitation period), 19.5 (Special provisions about adding or substituting parties after the end of a relevant limitation period), 38.2 (Right to discontinue claim), and 38.7 (Discontinuance and subsequent proceedings). It concluded that, pursuant to English law, the discontinuance of the claim can bring all or part of the proceedings instigated to an end by serving a formal notice of discontinuance. In other words, there is no such thing as a revival of the proceedings by means of a new claim filed within a specific period of time, similar to what is provided for by Article 263 Greek Civil Code.

The judgment was mostly based on the legal information related to the CPR, delivered by the Hellenic Institute of Comparative Law, which was requested to be furnished before the first instance court. In addition, the judgment gave very convincing answers to the appellant’s assertions, unknowingly following the same path taken by courts in other jurisdictions (see below, the second next paragraph).

Applicable Rules

It is necessary to underline the legal framework surrounding the case. The Supreme Court correctly applied Article 3(1) of the 1980 Rome Convention on the law applicable to contractual obligations. However, no further reference to other provisions of the convention is to be found in the text. Articles 1(2)h and 10(1)d were also pertinent to the case.

Article 1(2)h: The rules of this Convention “shall not apply to: […] (h) evidence and procedure, without prejudice to Article 14”.

Article 10(1):  “The law applicable to a contract by virtue of Articles 3 to 6 and 12 of this Convention shall govern in particular: […] (d) the various ways of extinguishing obligations, and prescription and limitation of actions.”

Additionally, reference could be made to Article 21 (Relationship with other conventions), where it is clearly stated that the Rome Convention “shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party”, for sufficiently justifying the application of Article 3 Hague-Visby Rules.

In light of the above, the answer to the question depends on the interpretation given under the aforementioned provisions of the Rome Convention. Put differently, the crucial issues are, whether the interruption of limitation is covered by the wording of Article 10(1)d, and whether the discontinuance and the subsequent filing of the claim should be considered as procedural matters, therefore not covered by the Rome Convention pursuant to Article 1(2)h.

The situation is similar under the Rome I Regulation on the law applicable to contractual obligations, see Articles 12(1)d and 1(3). So far, no preliminary reference has been submitted concerning the questions above. The general trend is to include all aspects of limitation within the scope of the Regulation (interruption, suspension, commencement), even if they are carried out by procedural means. The procedural nature attributed to limitation by virtue of domestic law (here: UK) does not affect the proper application of the Rome I Regulation. In any case, procedural rules related to limitation must be considered as part of the applicable law of the contract (in German: Vertragsstatut).

The Issue in the Prism of the Rome II Regulation

The Rome II Regulation on the law applicable to non-contractual obligations contains similar provisions, namely Articles 1(3) and 15(h). However, there are visible differences in the wording of the latter provision. Article 15(h) is more precise. It stipulates that the law specified under the Regulation provides, among other things, the rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

Two judgments issued by English courts shed light to the issue: Pandya v Intersalonika General Insurance Co SA,  [2020] EWHC 273 (QB) (the text is not yet accessible on open sources), and Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) (26 April 2021).These cases relate to car accidents with cross-border element.

In the first case, a UK citizen was injured by a Greek national on the island of Kos. The claim against the Greek insurance company was filed in England. The action was registered with the court; however, service was not effectuated within 5 years following the accident, which renders the action time-barred pursuant to Greek law. The claimant considered that the application of Greek law for the service of process by an English court is absurd. The court had a different view: it ruled that the procedural nature of service forms here part of the interruption of limitation issue. The resemblance to the ruling of the Greek Supreme Court is evident. A right to appeal was refused.

In the second case, the accident occurred on Scottish soil. The perpetrator was domiciled in Germany, whereas the victim in England. The issue revolved again around belated service of the claim. The attempt of the claimant to deconstruct the judgment of the court in the Pandya v Intersalonika case remained unsuccessful. Nevertheless, the court granted the request of the claimant to proceed out of time, by providing an extension in accordance with Scottish law.

A webinar in English on The resolution of the Institut de Droit International on Human Rights and Private International Law will take place on 12 November 2021, from 16.30 to 18.30 CET, organised by the Interest Group on Private International Law of the Italian Society of International Law (SIDI).

The speakers will be Fausto Pocar and Patrick Kinsch.

Attendance is free. Those wishing to join the webinar are invited to send an e-mail to sidigdipp@gmail.com.

Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm) (05 November 2021) concerns an alleged cartel between several Brazilian companies which produce orange juice, including Sucocítrico Cutrale: 3rd defendant. The other two defendants, Mr Cutrale Sr and Mr Cutrale Jr,  are natural persons Claimants are orange farmers who are all domiciled in Brazil.  The claim relates to alleged antitrust infringements committed in Brazil and said to have restricted competition in markets in Brazil, causing harm to the Claimants there.

Claimants claim to be entitled to maintain proceedings in England and Wales on the bases that:

i)                   although Sucocítrico Cutrale is a Brazilian company, it has its central administration in London and is therefore domiciled in the UK pursuant to A63(1)(b) Brussels Ia;

ii)                 alternatively, the Claimants were entitled to serve Sucocítrico Cutrale, pursuant to CPR 6.3(c)/6.9(2) at a “place within the jurisdiction where [it] carries on its activities; or any place of business of the company within the jurisdiction”.

iii)               Cutrale Snr is domiciled in England; and

iv)               Cutrale Jnr is domiciled in Switzerland and the claims against him are so closely connected with the claims against Sucocítrico Cutrale and Cutrale Snr that it is expedient to hear and determine them together so as to avoid the risk of irreconcilable judgments, pursuant to Article 6 Lugano Convention.

The Defendants’ position is in outline as follows:

Sucocítrico Cutrale

i)                   Sucocítrico Cutrale has its “central administration” in Brazil and is therefore not domiciled in the UK for the purpose of A63(1)(b) BIa.  There is therefore no right to bring proceedings against the company in England under Article 4(1). The court must apply common law principles to determine jurisdiction.

ii)                 Alternatively, the claims against Sucocítrico Cutrale should be stayed under A33 and/or 34 BIa because of ongoing proceedings in Brazil concerning the alleged cartel.

iii)               The Claimants were not entitled to serve Sucocítrico Cutrale at an address within the jurisdiction, and so the company has not been validly served.

iv)               Alternatively, applying common law forum non conveniens principles, Brazil is the proper place for the claims against Sucocítrico Cutrale and the court should not exercise jurisdiction against it.  The claims against Sucocítrico Cutrale should be stayed even if (contrary to the Defendants’ primary case) Cutrale Snr is domiciled in England. Cutrale Snr has confirmed that he would submit to the jurisdiction of the Brazilian court. The risk of inconsistent judgments in England and Brazil therefore carries little weight because it would be caused by the Claimants’ unnecessary pursuit of litigation in England. In such circumstances, the court may stay the claims against the foreign defendant notwithstanding the presence of a UK domiciled anchor defendant (reference is made to Vedanta Resources plc v Lungowe [2020] AC 1045 . I flagged the ‘submission to foreign jurisdiction’ issue in my review of Vedanta).

Cutrale Snr

v)                  Cutrale Snr is not domiciled in the UK. There is therefore no right to bring proceedings against him under A4(1) BIa.

vi)               Further or alternatively, the court should stay the claims against Cutrale Snr pursuant to A34 BIa because of the ongoing proceedings in Brazil.

vii)             Although Cutrale Snr was served in the jurisdiction, applying common law forum non conveniens principles Brazil is the proper place for the claim.  Accordingly, the court should decline jurisdiction.

Cutrale Jnr

viii)           If neither Sucocítrico Cutrale nor Cutrale Snr is English domiciled there is no basis to assume jurisdiction against Cutrale Jnr.

ix)               If Cutrale Snr is English domiciled but the claims against Sucocítrico Cutrale are to proceed in Brazil, the criteria under A6 Lugano are not met because it would be more expedient for the claims against Cutrale Jnr to be heard in Brazil alongside the claims against Sucocítrico Cutrale.

x)                  Further or alternatively, the court should stay the claims pursuant to a reflexive application of A28 Lugano Convention because of the ongoing proceedings in Brazil.

Henshaw J held that the court lacks jurisdiction over Sucocítrico Cutrale however that it does have jurisdiction over Cutrale Snr and Cutrale Jnr and  that there is no proper basis on which to stay the claims against them.

Domicile of Sucocítrico Cutrale (‘SuCu’)

A63 BIa determines corporate domicile as the place where the corporation has its (a) statutory seat; (b) central administration; or (c) principal place of business. Claimants suggest place of central administration as being in London. Anglo American came to my mind as indeed it did to counsel and judge in current case. At 31 ff a concise look into the travaux is offered as are references to CJEU case-law under freedom of establishment (including Uberseering). I would be cautious however with too much emphasis on those cases, which are judged in quite a different context to the one in a jurisdictional assessment.

SuCu are in in essence a family-run business [55]. This is also emphasised in the witness statement of Cutrale Sr himself. SuCu refer extensively to its internal by-laws and the role in same for the ‘Executive Board’ which is made up of professionals. However there is also a, by-laws sanctioned, Family Board (in which Cutrale Sr until recently had a 99% stake). The Executive Board, by defendant’s own admission [55], runs the company on a day to day basis. The Family Board seemingly meets at various places worldwide, and the role of London in the family Board’s direction is not small, given that Cutrale Sr has secretarial assistance for his business interests there, and that his daughter (who also sits on the Family Board) conducts all her business interests there [57].

In Anglo American, the CA held

 ‘the correct interpretation of “central administration” in Article 60(1)(b), when applied to a company, is that it is the place where the company concerned, through its relevant organs according to its own constitutional provisions, takes the decisions that are essential for that company’s operations. That is, to my mind, the same thing as saying it is the place where the company, through its relevant organs, conducts its entrepreneurial management; for that management must involve making decisions that are essential for that company’s operation’

[75] ff the judge does not see London as that place where the entrepreneurial management takes place. This is to some degree a factual appraisal however I I am minded to see quite strong arguments in favour of London. I do not think for instance that BIa’s DNA of predictability for the defendant knowing where it might be sued, carries too much weight here seeing as the complex structure and the diverse effective location of the Family Board’s meetings is of its own making. By failing clearly to implement one centre of entrepreneurial management, visible to outsiders, the defendant in my view brings the risk of positive conflicts of jurisdiction upon itself.  All the more so in my view in cases where, such as here, the accusation is involvement in a cartel, which is unlikely to have happened with the firm controller of the Family Board having been kept in the dark.

Alternative serving under CPR 6.9.(2) [“Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.”] is also dismissed: [104] ff.

[112] ff the judge discusses the domicile of Cutrale Sr which, per A62(1) BIa is to be determined under English law. This [129] ff is held to be England.

Cutrale Jr being undisputably domiciled in Switserland, the question arises whether the claim against him may be anchored upon the claim against his father, per A6(2) Lugano. The judge is reminded of his own judgment in PIS v Al Rajaan. Defendants submit that if the claims against Sucocítrico Cutrale must be pursued in Brazil, it is more expedient for the claims against Cutrale Jnr to be pursued in that jurisdiction, even if the Claimants are entitled to sue Cutrale Snr as of right in England. However [142] the judge agrees with Claimants’ point that somewhat different policy considerations arise when considering the risk of inconsistent judgments within the EU (or between Lugano States), compared to the position vis-à-vis so-called ‘third States’, and that the latter context does not involve the same particular impetus to remove obstacles to the single market and observe the principle of ‘mutual trust’ between the courts of different Member States.

Whilst the claims against Cutrale Jnr are of course connected with those against Sucocitrico, they are also bound to involve important issues in common with the claims against Cutrale Snr which (subject to the issue of an A34 stay, see below) are to be pursued in England  [143].

[144] In conclusion the expediency threshold under A6 Lugano is held to have been reached.

Next, a stay of the proceedings against Cutrale Snr under A34 BIa is rejected [147] ff. Much of the A34 authority, all of which I have discussed on the blog, is flagged. The judge observes the tension between Kolomoisky and EuroEco Fuels (Poland) as to whether the power to stay depends on there being a procedural means by which the two actions could, in fact, be tried together. At [163] the judge thankfully notes the important distinction between A33-34 and A29-30, despite citing A29-30 authority with some emphasis:

I would observe, however, in disagreement with the Defendants, that despite the similarity of language it may well make a difference whether a stay is sought (a) under Article 28 as such or (b) under Article 34 or under Article 28 as applied reflexively vis a vis proceedings in a third country (see § 238 below).  The observation quoted above that there might be a presumption in favour of a stay seems considerably easier to justify in a case where the intra-EU internal market considerations referred to in § 142 above apply than where the overseas proceedings are in a non-Member State.  On the contrary, a presumption of a stay in favour of a third country state of proceedings prima facie brought as a right against a defendant in his place of domicile may well be hard to square with the fundamental principles underlying the Brussels and Lugano regimes.

At [221], too, and in an in my view important and marked departure from Justice Turner in Municipio, Henshaw J here holds that

whilst recital 24 indicates that the court should consider all the circumstances of the case, it does not follow that the court can grant a stay pursuant to Article 34 which is in substance no more than a forum non conveniens stay.  It follows that the factors listed in § 213.iv) above are relevant only insofar as they support the granting of a stay based on the Favero and Costa claims as related claims.

This puts the horse back before the cart.

At [164] ff the ‘rival’ Brasil claims are discussed, [197] of which only two predate the current E&W claim against Cutrale Sr and a conclusion [210] that these are related in a broad sense to the present claims, but that degree of relationship would be insufficient to make it expedient to stay the present claims by reference to them.

[213] ff the various arguments that a stay would be in the ‘interest of justice’ are rejected: these include in particular [216] suggestions of consolidation or joint case management, whilst theoretically possible, are unrealistic in practice (reference is made ia to the fact that none of the current Brazilian claims have been consolidated); [217] neither rival claim is likely to reach a conclusion in the reasonably foreseeable future: on the contrary, both have been mired in procedural disputes for many years.

Similar arguments are made obiter when considering an A33-34 stay against Sucocitrico (in the event the A4 analysis, above, were to be wrong): [241] ff.

At 237, the possibility of a stay of the proceedings against Cutrale Jr, under a reflexive application of A28 Lugano is rejected with mere reference to the reasons listed viz the A34 stay. The judge has to follow the Court of Appeal’s finding in Kolomoisky, that reflexive application of A28 Lugano is possible. Clearly, I submit, it is not and this will be an important point to clarify when and if the UK accede to Lugano.

The judge concludes [249] ff by obiter upholding a forum non stay. His arguments here are interesting among others for they lead to a different result than the A33-34 application – which serves to confirm the very different nature of both mechanisms.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.3.

1/2 Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm)
Brazilian sugar #cartel. Claimants, represented ia by @RHopkins_Law, fail to establish A4 BIa domicile jurisdiction against one defendant but succeed against another.
Claimants succeed on lis pendens challenges: ….

— Geert Van Calster (@GAVClaw) November 8, 2021

I discussed settlement agreements viz Brussels Ia’s protected categories before, in particular in my review of Yukos v Merinson. Choice of court between consumers and employees one the one hand, and the business and employer on the other, is valid inter alia when the parties ‘enter into’ the (choice of court agreement) ‘after the dispute has arisen’. The assumption is that the consumer will have had an opportunity to consult lawyers and that therefore the inequality of arms has disappeared.

A dispute will have ‘arisen’ for the purposes of these Articles only if two conditions are satisfied: (a) the parties must have disagreed upon a specific point; and (b) legal proceedings in relation to that disagreement must be imminent or contemplated.

Many thanks to Henrik Gisløv who sent me copy of the judgment of the City Court and subsequently the High Court in Thomas Higgins v Saxo Bank. Henrik represented Mr Higgins and I have included Henrik’s English translation of the relevant sections of the High Court’s judgment below – I do not read Danish.

I understand from Henrik that Saxo Bank claimed an amount for “CFD financing charges” of EUR 230,000 accrued in less than one month. Mr Higgins, domiciled at Ireland, disputed the claim, and a settlement agreement was entered into. Mr Higgins had no legal advise when entering the settlement agreement – whether the actual, as opposed to assumed, benefit of legal advice is required for A10 to apply, is not discussed.

In the opinion of Mr Higgins the bank breached the terms of the settlement agreement, and he raised several complaints with the staff of the bank. These complaints went unanswered and Mr Higgins decided to terminate the settlement agreement: ‘Further to my email of Friday March 3rd, I confirm that the live price feeds have not been restored. Accordingly, our Contract is now void. Unless you wish to negotiate terms that address the contractual failings, the only option open to me is to reactivate my original Complaint and refer it for regulatory adjudication.’ This was in March 2017.

The bank then filed a case in the Danish courts, in January 2019 only. It argued  jurisdiction on the basis that a choice of court clause had been part of the  settlement agreement which Mr Higgins had terminated in March 2017. The City Court found first of all that Mr Higgins was a consumer (CJEU Petruchova comes to mind). Secondly, the City Court found that the dispute related to whether or not the terms of the settlement agreement had been breached or not. Therefore that the dispute that is being litigated had only arisen after that settlement agreement had been made and that the choice of court made in the settlement agreement was not a valid agreement after the dispute had arisen. The Eastern High court upon appeal however overturned the decision. Leave to appeal to the Supreme Court was rejected.

Of note in my view is that for there to be valid choice of court within the meaning of A19 BIa, legal proceedings in relation to that disagreement must be imminent or contemplated. From my admittedly half baked, Google translate assisted understanding of the judgments, this condition is not discussed in the judgments (it is clear, from the quote, in English, at the time of Mr Higgins’ cancellation of the agreement, legal proceedings are contemplated at that moment; yet the settlement with the choice of court agreement was formed much earlier). Rather, the High Court unconvincingly focuses on the synergy between the complaints under the original platform agreement and the nature of the subsequent complaints. This could have done with SC insight.

The judgment puts the spotlight on the nature of settlement agreements in the context of protected categories, and the stronger role consumer and employment law might have to play to ensure both the twin goal of settling disputes before they go to court, whilst at the same time not depriving the protected categories of their Regulation-sanctioned protection.

Geert.

EU private international law, 3rd ed. 2021, Heading 2.2.9.2.7, 2.270 ff.

 

____Henrik Gisløv translation of the High Court judgment in relevant part:___

It is undisputed before the High Court that the settlement agreement entered into between Thomas Martin Higgins and Saxo Bank A / S, is a consumer agreement in the sense of the term has applied the Judgment Regulation. Cases against consumers must, according to the Judgment Regulation Article 18, paragraph 2, as a starting point is brought before the courts in the Member State in which the consumer resides.

The main issue in this case is then whether the condition of the judgment Article 19 (1) to derogate from this starting point is met. According to the provision is it decisive whether the settlement agreement, including the agreement’s provision on venue, may be deemed to have been concluded after the dispute has arisen. If the condition is fulfilled, the venue agreement is binding on Thomas Martin Higgins.

It is assumed as undisputed that the settlement agreement of 11 July 2016 was entered into as a result of a disagreement as to whether Thomas Martin Higgins had obligation to pay the fees of 231,320 euros that Saxo Bank A / S had charged for the period from 1 to 29 April 2016.

It appears from clause 1 of the settlement agreement, that Thomas Martin Higgins should withdraw its complaint about the fees that Saxo Bank A / S should separate Thomas Martin Higgins’ two accounts and credit one account with one amount of 115,660 euros, corresponding to half of the fees charged. The other account then had a balance of -87,565.16 euros, which Thomas Martin Higgins undertook to pay to Saxo Bank A / S in 12 instalments.

Thomas Martin Higgins paid six instalments until February 2017, after which he by letter dated 6 March 2017, terminated the settlement agreement.

The question then is whether the lawsuit relates to the dispute that was tried resolved by the settlement agreement, or whether it relates to subsequent matters.

Thomas Martin Higgins has argued that Saxo Bank A / S on several points has breached the settlement agreement and that it is these breaches of agreement that are the background for the present case. He has during his explanation to the city court alone referred to the one concrete example that he during his continued trading on the bank’s platform continued to lose so-called live prices (real-time prices).

On the other hand, it is undisputed that Thomas Martin Higgins under the settlement agreement concluded continued to trade on the platform provided by Saxo Bank A / S available to him. Saxo Bank A / S has in accordance with the settlement agreement written down its fee claim to half, and the settlement agreement does not contain detailed terms for the continued trading on the platform, including on live prices.

In view of this and the fact that the amount of 41,297.28 euros that Saxo Bank A / S has withdrawn subpoena for, constitutes the difference between the amount paid by Thomas Martin Higgins had to pay after the settlement and the instalments paid of 45,412.41 euros plus the deposit on account 176283INET / DK4011490100705836, the High Court finds that the present dispute does not concern one which arose after the conclusion of the settlement agreement [and is a, GAVC] disagreement on the interpretation of the agreement, but that the dispute had already arisen when settlement agreement including the venue agreement, was entered into.

…0Saxo bank A / S can bring the case before the bank’s venue at the Court in Lyngby, …and the High Court therefore accepts Saxo Bank A / S ‘claim that the judgment of the district court be set aside and that the case be remanded for consideration at the Court in Lyngby, as a result.”

Written by Hans van Loon, a member of GEDIP and former Secretary General of the Hague Conference on Private International Law (HCCH).  This post was previously published by the EAPIL blog.

The European Group for Private International Law (GEDIP) at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019[1]. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”[2].  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz[3], as well as recent case law in the UK and the Netherlands[4]

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration[5]

[1] European Commission promises mandatory due diligence legislation in 2021 – RBC (responsiblebusinessconduct.eu).

[2] https://www.europarl.europa.eu/doceo/document/TA-9-2021-0073_EN.html.

[3] See II Background to the Proposal, 3.

[4] See II Background to the Proposal 2.

[5] The Annex to the Proposal  contains suggestions concerning the form and the substantive scope of the future EU instrument.

A new issue of the online Belgian Revue de droit international prive / Tijdschrift voor internationaal privaatrecht is now available.

The issue features a rich selection of case law. It includes rulings given by the European Court of Human Rights (on family matters and surrogacy), the Court of Justice of the European Union (on succession, the taking of evidence, parental responsibility, employment contracts and torts matters).

Also included are rulings of the Belgian Constitutional Court and Court of Cassation, as well as the Court of Appeal of Antwerp and the Council for Immigration Disputes. The topics covered include matters of citizenship, rectification of birth certificate, service of judicial decisions, choice of jurisdiction clause in the context of the Lugano Convention, marriage, cross-border insolvency, and international protection of minors requesting humanitarian visa.

The section dedicated to doctrinal views contains a scholarly article by Annekatrien Lenaerts analysing a decision of the Belgian Court of Cassation issued on 18 June 2021 dealing with the communication of a court decision following the service of another judicial document on the basis of national procedural law and the European Service Regulation.

The decision has a particular importance according to the author as it is the first decision ruling that the addition of a copy of a judicial decision to the documents to be communicated to the party after service of one or more procedural documents does not amount to a valid service in accordance with the provisions of the Service Regulation, nor does it lead to the running of the appeal period according to Article 1051(1) of the Belgian Judicial Code.

The Court held that a judicial decision is only validly served at national level if it is expressly mentioned in the bailiff’s writ as the subject of the service. Further, it clarifies that a legally valid service at EU level requires that the decision to be mentioned as the document to be served, both in the application for service by the transmitting agency on the receiving agency using the standard form provided for that purpose and in the receiving agency’s notice of service, as well as in the form for the addressee stating that he has the right to refuse to receive this document.

The author concludes that although this solution may seem strict or formalistic at first glance, it is the only appropriate option in view of the protection of the addressee’s rights of defence. Only if a document is actually and expressly brought to the defendant’s attention in a way that allows the party to truly understand its content and purport, can the addressee effectively know his rights with regard to that document and institute a useful legal remedy against it.

Finally, the last part of the review is dedicated to legislative developments in the area of private international law.

The previous issues of the journal may be freely accessed here.

Aldricus – Sejak diluncurkan pertama kali, by U mendapatkan respons yang cukup menarik dari para pengguna. Hal ini cukup wajar karena provider kartu internet ini menyediakan cukup banyak pilihan by U paket ataupun inovasi menarik yang bisa dicoba sesuai keinginan.

Tentu, adanya beragam paket yang ditawarkan akan memudahkan Anda untuk memilih mana paket internet yang sesuai dengan keinginan ataupun budget yang disediakan.

Nah, pada kesempatan ini akan dibahas beberapa rekomendasi paket by U yang menarik untuk Anda coba demi mendapatkan sensasi menggunakan internet yang lebih nyaman. Apa saja? Simak ulasannya!

Pilihan Paket By U yang Menarik

Sebagaimana disinggung di awal, ada cukup banyak paket internet yang disediakan by U dan bisa menjadi pilihan yang tepat. Nah, beberapa paket yang direkomendasikan tersebut diantaranya adalah sebagai berikut:

1. Paket topping YouTube

Sebenarnya, by U menyediakan cukup banyak paket topping. Variasi ini adalah by U paket khusus untuk aplikasi tertentu. Nah, Anda bisa menggunakan paket topping YouTube yang disediakan. Paket ini sangat menarik karena Anda bisa mendapatkan kuota YouTube 100 GB 24 jam non-stop hanya dengan Rp 10.000 saja!

2. Paket On-Net by U

Apabila Anda mencari paket telepon tanpa tersambung internet yang murah, by U menyediakan pilihan yang menarik untuk Anda. Salah satu paket yang disediakan adalah paket On Net.

Dengan menggunakan paket ini, Anda akan mendapatkan kuota telepon hingga 43.200 menit dengan masa aktif 30 hari ke sesama by U dengan harga Rp 1.000 saja. Ini adalah paket telepon paling murah dengan kualitas telepon yang sangat baik.

3. Paket topping Instagram by U

Suka scrolling Instagram hingga lupa waktu dan sering bermasalah karena kuota habis? Nah, Anda bisa menggunakan paket topping Instagram yang disediakan oleh by U. Dengan menggunakan paket ini, tersedia kuota khusus Instagram sebesar 3 GB dengan masa aktif 30 hari hanya dengan RP 5.000 saja!

Beberapa by U paket di atas bisa dijadikan opsi untuk Anda gunakan nanti. Dari paket tersebut, bisa dilihat jika by U memberikan layanan terbaik dengan harga yang terjangkau!

The post Rekomendasi By U Paket Hemat Untuk Dicoba appeared first on Aldri Blog.

Posted at the request of Aastha Asthana, Managing Editor of Trade Law and Development

Trade, Law and Development

Call for Submissions

Special Issue

“Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”

Issue 14.1 | Summer ’22

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, the Journal has published works by noted scholars such as the WTO DDG Yonov F. Agah, Dr. (Prof.) Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Dr. (Prof.) Gabrielle Marceau, Prof. Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for seven consecutive years by Washington and Lee University, School of Law.

 

Pursuant to this philosophy, the Board of Editors of Trade, Law and Development is pleased to announce “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime” as the theme for its next Special Issue (Vol. XIV, No. 1).

 

With the “crown jewel of the WTO” in crisis and the deadlock between developing and developed States in various negotiations at the WTO, Members’ confidence in the multilateral trading system is at an all-time low. This is evidenced by the rising number of FTAs around the globe, and States preferring regionalism over the multilateral framework. In turn, this has also severally impacted the WTO’s ability to provide a forum for negotiations to liberalise trade and establish new rules; to oversee and administer multilateral trade rules; and to resolve trade disputes amongst members. Furthermore, the disruption caused by the COVID-19 pandemic, has exacerbated the stress.  Resultantly, WTO Member States are adopting a more protectionist approach.

 

While the WTO’s role in helping economies recover from decreasing trade volumes has increased multi-fold, it remains to be seen how the organization will grapple with each of these challenges individually. Since TL&D’s objective is to provide a forum of exchange of ideas and constructive debate on legal and policy issues, the above-mentioned factors arguably constitute some of the biggest issues for international trade discourse this year. Through this theme, the Journal aims to encourage discussion particularly on how to protect the multilateral rules-based trading system and in turn, prevent the march towards a pre-WTO power-based trading system.

 

While the theme is broad enough to cover a wide range of issues, an indicative list of specific areas is as follows:

• Appellate Body Crisis and the Multi Party Interim Appeal Arrangement (MPIA)
• Transparency and Notification/ Transparency and Consensus-Building within the WTO
• Status of Developing Countries at the WTO
• China and the WTO
• Agriculture and Development vis-à-vis the WTO Agreement on Agriculture
• Environmental Sustainability
• Linking Trade and Non-Trade Issues
• COVID-19 and Reorganization of Global Supply Chains
• Increasing Reliance on the National Security Exception by WTO Members
• Increase in Barriers to Cross-Border Investments/ Protectionism
• USA and the WTO
• Stagnancy in Multilateral Trade Liberalisation
• Mega-Regional Trade Agreements as an Alternative to the WTO

 

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all aspects related to the challenges faced by the international trade regime and its impact on the global trading system.

 

Accordingly, the Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Special Issue of the Journal (Vol. XIV, No. 1) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’, focusing on the theme “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”.

 

Manuscripts received by March 15th, 2022, pertaining to any sub-theme within the purview of challenges faced by international trade will be reviewed for publication in the Summer ’22 issue.

 

Manuscripts may be submitted via e-mail. For further information about the Journal, please click here. For submission guidelines, please click here.

 

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

 

LAST DATE FOR SUBMISSIONS: 15 March, 2022

 

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W. Michael Reisman | M. Sornarajah | FACULTY–IN-CHARGE: Dr. Rosmy Joan | BOARD OF EDITORS: Amogh Pareek | Sahil Verma | Sukanya Viswanathan| Abilash Viswanathan| Aastha Asthana | Malaika Shivalkar | Nishant Sharma | Pranav Karwa | Rashmi John | Swikruti Nayak | Akshita Saxena | Ananya Awasthi | Anushka Mathur | Jahnavi Srivastava | Khushi Agrawal | Maulik Khurana | Nidhi Lakhotia | Ria Chaudhary | Yashvi Hora | Aarzoo Gang | Anoushka | Lipika Singla | Priyanshu Shrivastava | Simran Bherwani | Sneha Naresh | Vipashyana Hilsayan

Written by Stephen G.A. Pitel, Western University

The court’s decision in HMB Holdings Ltd v Antigua and Barbuda, 2021 SCC 44 (available here) is interesting for at least two reasons. First, it adds to the understanding of the meaning of “carrying on business” as a test for being present in a jurisdiction. Second, it casts doubt on the application of statutory registration schemes for foreign judgments to judgments that themselves recognize a foreign judgment (the so-called ricochet).

In this litigation HMB obtained a Privy Council judgment and then sued to enforce it in British Columbia. Antigua did not defend and so HMB obtained a default judgment. HMB then sought to register the British Columbia judgment in Ontario under Ontario’s statutory scheme for the registration of judgments (known as REJA). An important threshold issue was whether the statutory scheme applied to judgments like the British Columbia one (a recognition judgment). In part this is a matter of statutory interpretation but in part it requires thinking through the aim and objectives of the scheme.

Regrettably for academics and others, the litigants conducted the proceedings on the basis that the scheme DID apply to the British Columbia judgment. Within the scheme, Antigua relied on one of the statutory defences to registration. The defence, found in section 3(b), requires that “the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court”. Three of the elements of this defence were easily established by Antigua, leaving only the issue of whether Antigua could be said to have been carrying on business in British Columbia. If not, the decision could not be registered in Ontario.

On the facts, Antigua had very little connection to British Columbia. What it did have was “contracts with four ‘Authorized Representatives’ with businesses, premises and employees in British Columbia for the purposes of its Citizenship by Investment Program  [which] … aims to encourage investments in Antigua’s real estate, businesses and National Development Fund by granting citizenship to investors and their families in exchange for such investments” (para 7). HMB argued this was sufficient to be carrying on business in British Columbia. The courts below had disagreed, as did all five judges of the Supreme Court of Canada (paras 47-49, 52).

Confirming this result on these facts is not overly significant. What is of more interest is the court, in its decision written by Chief Justice Wagner, offering some comments on the relationship between how the meaning of carrying on business in the context of taking jurisdiction relates to the meaning of that same phrase in the context of determining whether to recognize or register a foreign judgment. Below, one judge of the Court of Appeal for Ontario had held the meanings to be quite different in those different contexts, with a much lower threshold for carrying on business in the latter (para 18). The Supreme Court of Canada rejects this view. When considering presence in a jurisdiction by means of carrying on business there, the analysis is the same whether the court is assessing taking jurisdiction on that basis or is determining whether to give effect to a foreign judgment (and so engaging with the defence in section 3(b)) (paras 35, 41). This is welcome clarification and guidance.

One smaller wrinkle remains, not germane to this dispute. At common law the phrase “carrying on business” is used for two distinct aspects of taking jurisdiction: presence, where it grounds jurisdiction (see Chevron), and assumed jurisdiction, where it gives rise to a “presumptive connecting factor” linking the dispute to the forum (see Club Resorts). If you think that distinction seems odd, you are not alone (see para 39). Anyway, does the phrase also have the same meaning in these two contexts? The court expressly leaves that issue for another day, noting only that if there is a difference, the threshold for carrying on business would be lower in the assumed jurisdiction cases than the presence cases (para 40).

Returning to the issue not pursued by the parties: the status of ricochet judgments under registration schemes. The court could have said nothing on this given the position of the parties and the conclusion under section 3(b). However, Chief Justice Wagner and three of his colleagues expressly note that this is an “open question” and leave it for the future (paras 25-26). Saying the question is open is significant because there is obiter dicta in Chevron that these judgments are caught by the schemes (para 25). Indeed, Justice Cote writes separate reasons (despite concurring on all of the section 3(b) analysis) in order to set out her view that a recognition decision is caught by the scheme, and she points specifically to Chevron as having already made that clear (para 54). Her analysis of the issue is welcome, in part because it is a reasonably detailed treatment. Yet the other judges are not persuaded and, as noted, leave the matter open.

I find powerful the argument that the drafters of these statutory schemes did not contemplate that they would cover recognition judgments, and so despite their literal wording they should be read as though they do not. This would avoid subverting the purpose of the schemes (see para 25). On this see the approach of the Court of Appeal for England and Wales in 2020 in Strategic Technologies Pte Ltd, a decision Justice Cote criticizes for being “unduly focused” on what the statutory scheme truly intended to achieve and lacking fidelity to the actual language it uses (paras 67-68). I also find Justice Cote’s distinctions (paras 60-64) between foreign recognition judgments (which she would include) and foreign statutory registrations (which she would not include) unpersuasive on issues such as comity and judicial control.

In any event, unless this issue gets resolved by amendments to the statutory schemes to clarify their scope, this issue will require a conclusive resolution.

I am catching up a little on recent case-law and am focussing it seems on the consumer section (see also yesterday’s post). This Court Amsterdam judgment published on 8 September caught my eye for it discusses choice of court, applicable law for the substantive validity of same, and ‘consumers’ in the context of buying yachts (now that I write that, in my exams I often have consumers buying yachts). Thank you Haco van der Houven van Oordt for signalling the case.

A purchase agreement for a yacht worth €5.4 million was signed in Singapore between buyer, an Australian living in Australia, and a Dutch shipyard. Seller’s GTCs mention

‘Article 17 – Settlement of disputes 1. Each agreement between [claimant] and the other party is subject exclusively to the laws of the Netherlands. 2. Any disputes which arise between the other party and [claimant], including disputes relating to the interpretation of these terms and conditions, will be put exclusively before the competent judicial body in Amsterdam.’

Pre-delivery was scheduled for December 2018 in Italy. Buyer changes his mind a week after signature, saying he will not be able to honour the agreed price. Vendor pursues the contractual penalty clause of 25% of the sale price. 

The judge finds the consent to choice of court to have been validly expressed on the basis of A25 BIa, under the classic Colzani formula. References to the GTCs had been properly made in the written contract. A duly diligent contracting party could and should have read these GTCs. Defendant’s argument that the choice of court clause in the GTCs should have been the subject of specific negotiation, is rejected [4.3.3].

As for the substantive validity of choice of court, the Dutch court (unlike eg the Belgian Supreme Court in Happy Flights) does add renvoi to the mix per recital 20 BIa. Dutch private international law (like the BE rules, nota bene) makes Rome I applicable to contracts even for the subject-matter excluded of its scope of application, among which choice of court agreements. Lex voluntatis therefore rules and the court holds that the choice of law for Dutch law for the contract as a whole, extends to choice of law for the forum clause [4.3.7].

The defendant finally alleges invalidity of the choice of court agreement on the basis of the lex fori prorogati’s rules on ‘potestative’ (unreasonably onerous) clauses. On this point, the defence succeeds: [4.3.9]: the defendant has to be qualified as a consumer under Dutch law, despite his high net value and the object of purchase, and the GTCs per article 6.236 n BW should have included a clause giving the consumer the option to opt for the default court with jurisdiction (which one that would be is not clear to me and the judgment does not specify it).

Seeing as the choice of court agreement is held to be invalid, that the defendant is domiciled in Australia, and in the absence of a relevant bilateral agreement between the two countries, Dutch residual rules are applied to assess alternative grounds for jurisdiction. There is no Dutch forum contractus, given delivery in Italy [4.5.1, with reference ia to CJEU Car Trim] and no other jurisdictional grounds have any traction.

Conclusion: no jurisdiction for the Dutch courts. The case is good material for the lex fori prorogati rule and for the realisation that even outside the context of the consumer title of Brussels Ia (defendant not being domiciled in the EU, that title was not triggered), consumer law plays an important role in choice of court.

Geert.

Court Amsterdam on choice of court, applicable law for the substantive validity of same, 'consumers' (buying yachts) and onerous clauseshttps://t.co/VSjhYqMIGY @akd_law https://t.co/M4IBF38x3v pic.twitter.com/W9tLdstFzF

— Geert Van Calster (@GAVClaw) October 14, 2021

by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

On November 9, 2021, at 4 pm (BR time – GMT -03:00), the Faculty of Law of the Federal University of Santa Catarina will hold a virtual conference, called II Jean Monnet Network Seminar – BRIDGE “Migration and Citizenship in the European Union and Latin America”.

Participants in the event include the Member of the European Parliament, Margarida Marques; the Deputy Head of the European Union Delegation in Brazil, Ana Beatriz Martins; the Regional Policy and Coordination Officer of the International Organization for Migration (IOM – South America), Ezequiel Texidó; the Deputy Representative of the United Nations High Commission for Refugees (UNHCR) in Brazil, Federico Martinez; the Immigration Legal Adviser of Unión Sindical Obrera in Spain, Max Adam Romero; and former employee of Argentina’s Dirección de Migraciones and professor at the Universidad Abierta Interamericana, Emiliano Bursese.

In addition to the Seminar, the event will also feature the presentation of sixteen articles selected through Call for Papers. The two best articles will be awarded the value of EUR 250 each. The Workshop presentations will take place on November 9 from 8:40 am to 12:00 pm (BR time – GMT -03:00), in a virtual mode.

The conference is part of the Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, which is part of the Federal University of Santa Catarina (Brazil); the Faculty of Law of the University of Lisbon; the University of Seville (Spain); the University of Milan (Italy); the National Autonomous University (Mexico); the University of Buenos Aires (Argentina) and the University of Rosario (Colombia).

The seminar will be held in Portuguese and Spanish. Registration is free and must be made through the link https://www.even3.com.br/2seminariobridge

Check out the full schedule at: https://eurolatinstudies.com/laces/announcement/view/85

 

Guest post by Priskila P. Penasthika, Ph.D. Researcher at Erasmus School of Law – Rotterdam and Lecturer in Private International Law at Universitas Indonesia.

Indonesian Accession to the HCCH 1961 Apostille Convention

After almost a decade of discussions, negotiations, and preparations, Indonesia has finally acceded to the HCCH 1961 Apostille Convention. In early January this year, Indonesia enacted Presidential Regulation Number 2 of 2021, signed by President Joko Widodo, as the instrument of accession to the HCCH 1961 Apostille Convention. The HCCH 1961 Apostille Convention is the first HCCH Convention to which Indonesia became a Contracting Party.

In its accession to the HCCH 1961 Apostille Convention, Indonesia made a declaration to exclude documents issued by the Prosecutor Office, the prosecuting body in Indonesia, from the definition of public documents whose requirements of legalisation have been abolished in accordance with Article 1(a) of the HCCH 1961 Apostille Convention.

In accordance with Article 12 of the Convention, Indonesia deposited its instrument of accession to the HCCH 1961 Apostille Convention with the Ministry of Foreign Affairs of the Netherlands on 5 October 2021. The ceremony was a very special occasion because it coincided with the celebration of the 60th anniversary of the Convention. Therefore, the ceremony was part of the Fifth Meeting of the Special Commission on the practical operation of the HCCH 1961 Apostille Convention and witnessed by all Contracting Parties of the Convention.

The Minister of Law and Human Rights of the Republic of Indonesia, Yasonna H. Laoly, joined the ceremony and delivered a speech virtually via videoconference from Jakarta. Minister Laoly voiced the importance of the HCCH 1961 Apostille Convention for Indonesia and underlined Indonesia’s commitment to continue cooperating with the HCCH.

Indonesia’s accession to the HCCH 1961 Apostille Convention brings good news for the many parties concerned. The current process of public document legalisation in Indonesia still follows a traditional method that is highly complex, involves various institutions, and is time-consuming and costly. Because of the accession to the Convention, the complicated and lengthy procedure will be simplified to a single step and will involve only one institution – the designated Competent Authority in Indonesia. Referring to Article 6 of the HCCH 1961 Apostille Convention, in its accession to the Convention, Indonesia designated the Ministry of Law and Human Rights as the Competent Authority. When the HCCH 1961 Apostille Convention enters into force for Indonesia, this Ministry will be responsible for issuing the Apostille certificate to authenticate public documents in Indonesia for use in other Contracting Parties to the Convention.

A Reception Celebrating the 60th Anniversary of the HCCH 1961 Apostille Convention and Indonesian Accession

To celebrate the 60th anniversary of the HCCH 1961 Apostille Convention and Indonesia’s accession to it, an evening reception was held on 5 October 2021 at the residence of the Swiss ambassador to the Kingdom of the Netherlands in The Hague. The reception was organised at the invitation of His Excellency Heinz Walker-Nederkoorn, Swiss Ambassador to the Kingdom of the Netherlands, His Excellency Mayerfas, Indonesian Ambassador to the Kingdom of the Netherlands, and Dr Christophe Bernasconi, Secretary-General of the HCCH. Representatives of some Contracting Parties to the HCCH 1961 Apostille Convention attended the reception; among other attendees were the representatives from recent Contracting Parties such as the Philippines and Singapore, as well as some of the earliest signatories, including Greece, Luxembourg, and Germany.

The host, Ambassador Walker-Nederkoorn, opened the reception with a welcome speech. It was followed by a speech by Ambassador Mayerfas. He echoed the statement of Minister Laoly on the importance of the HCCH 1961 Apostille Convention for Indonesia, especially as a strategy to accomplish the goals of Vision of Indonesia 2045, an ideal that is set to commemorate the centenary of Indonesian independence in 2045. Ambassador Mayerfas also emphasised that Indonesia’s accession to the HCCH 1961 Apostille Convention marked the first important step for future works and cooperation with the HCCH.

Thereafter, Dr Christophe Bernasconi warmly welcomed Indonesia as a Contracting Party to the HCCH 1961 Apostille Convention in his speech at the reception. He also voiced the hope that Indonesia and HCCH continue good cooperation and relations, and invited Indonesia to accede to the other HCCH Conventions considered important by Indonesia.

The Entry into Force of the HCCH 1961 Apostille Convention for Indonesia

Referring to Articles 12 and 15 of the HCCH 1961 Apostille Convention, upon the deposit of the instrument of accession, there is a period of six months for other Contracting Parties to the Convention to raise an objection to the Indonesian accession. The HCCH 1961 Apostille Convention will enter into force for Indonesia on the sixtieth day after the expiration of this six-month period. With great hope that Indonesia’s accession will not meet any objection from the existing Contracting Parties to the Convention, any such objection would affect only the entry into force of the Convention between Indonesia and the objecting Contracting Party.  The HCCH 1961 Apostille Convention will therefore enter into force for Indonesia on 4 June 2022.

A more in-depth analysis (in Indonesian) concerning the present procedure of public document legalisation in Indonesia and the urgency to accede to the HCCH 1961 Apostille Convention can be accessed here. An article reporting the Indonesian accession to the HCCH 1961 Apostille Convention earlier this year can be accessed here.

After Eastern Pacific Chartering Inc v Pola Maritime Ltd, judgment in Dooley & Ors v Castle Trust & Management Services Ltd [2021] EWHC 2682 (Comm) is the second recent case to apply the 1968 Brussels Convention in relations between the UK and Gibraltar. This time it is the consumer section of the Convention which is at the core of the jurisdictional discussion.

Defendant is a company registered in Gibraltar which operates as a professional trustee company. The litigation concerns overseas pension schemes, promoted principally by Montegue Smythe, a Cypriot firm which operated from an English address. The court did not have before it any contractual terms evidencing the relationship between Castle and Montegue Smythe [66].

Common law negligence or breach of regulatory or statutory rules are the claim. Applicable law [15-16] is announced to be a contested issue at trial but not one that featured in the current jurisdictional challenge.

Readers may be aware that prior to the Brussels I Regulation (2001) amendments to the consumer section, requirements to trigger it were quite different. Defendants argue that the consumer section is not engaged for claimants have not shown that the conclusion of the contract was preceded in the consumer’s domicile by a specific invitation addressed to them or by advertising. In support of their case that the requirement of A13.3(b) Brussels Convention was satisfied, claimants plea an extract from Castle’s website which was said to be an act of advertising in the UK.

CJEU Kalfelis, Engler, Gabriel and Pammer (the latter mutatis mutandis and with focus on the CJEU’s view as to its own previous authority under the Convention; for Pammer Alpenhof is a Brussels I case) were the core cases discussed. At [64] Russen J rejects ia Petruchova and Reliantco as relevant authority given their Brussels I(a) context.

The judge emphasises the restrictive interpretation of the consumer section and holds that Castle’s obligations to claimants rested fundamentally upon its trusteeship of the QROPS rather than any separate contract for the provision of financial administration services. There is no plausible evidential basis for saying a contract was concluded for the supply of services outside those which were identified by the Deeds and the Rules which were incorporated by Castle [68].

Any claim against Castle based upon non-performance of services would have to be based upon the Trust Deeds and the Rules incorporated by them. Any such claim would fall within Article 5.6 (equivalent to A7(6) BIa) which would lead to the same court – the Gibraltar court – having jurisdiction as it would under the general rule of A2 Brussels Convention [70].

The judge also held that even on the assumption that a particular claimant read the extract on the website before investing in the QROPS, the fact is that there is no evidence to suggest that the territorial requirement identified in  CJEU Gabriel was satisfied.

The tort gateway under A5(3) Brussels Convention was not much entertained for claimants did not put much weight on it. At [73] the judge located locus delicti commissi in Gibraltar and did not hold on locus damni possibly being in England or the UK (the signing away of the transfer of the funds in the UK potentially qualifying as locus damni. With interesting potential discussion of course of the EU v the E&W approach on same per UKSC Brownlie I and II.

The jurisdictional challenge succeeds.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.1 and 2.2.9.2.2.

Dooley & Ors v Castle Trust & Management Services Ltd [2021] EWHC 2682 (Comm) (13 October 2021)
Another application of Brussels 1968 to a Gibraltar jurisdictional issue
See also https://t.co/EhYxVd532Ohttps://t.co/dYyO187N2I

— Geert Van Calster (@GAVClaw) October 15, 2021