Flux européens

Lietuvos Respublikos generalinė prokuratūra
Rapprochement des législations
La directive « vie privée et communications électroniques » s’oppose à ce que des données recueillies pour lutter contre la criminalité grave soient utilisées dans le cadre d'enquêtes administratives relatives à la corruption dans le secteur public

The Court of Justice delivered on 13 July 2023 its judgement in case C‑87/22 (TT v AK), which is about the interpretation of Article 15 Brussels II bis:

“1. Article 15 of Council Regulation (EC) No 2201/2003 […] must be interpreted as meaning that the court of a Member State, which has jurisdiction to rule on the substance of a case on the matter of parental responsibility under Article 10 of that regulation, may exceptionally request the transfer of that case, provided for by Article 15(1)(b) of the regulation, to a court of the Member State to which the child has been wrongfully removed by one of his or her parents.

2. Article 15(1) of Regulation No 2201/2003 must be interpreted as meaning that the only conditions to which the possibility for the court of a Member State with jurisdiction as to the substance of a case in matters of parental responsibility to request that that case be transferred to a court of another Member State is subject are those expressly set out in that provision. When examining those conditions in respect of, first, the existence in the latter Member State of a court better placed to hear the case and, second, the best interests of the child, the court of the first Member State must take into consideration the existence of proceedings for the return of that child which have been instituted pursuant to the first paragraph and point (f) of the third paragraph of Article 8 of the [1980 Hague] Convention on the Civil Aspects of International Child Abduction […] and in which a final decision has not yet been delivered in the Member State to which that child was wrongfully removed by one of his or her parents”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=275389&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4466841

CEPD / Parlement et Conseil
Droit institutionnel
Le recours du Contrôleur européen de la protection des données (CEPD) contre le règlement Europol modifié est irrecevable

WS e.a. / Frontex
Droit institutionnel
Operations de retour : le recours en indemnité de plusieurs réfugiés syriens contre Frontex après leur refoulement de la Grèce vers la Turquie est rejeté

Pumpyanskiy / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal rejette les recours de M. Dmitry Alexandrovich Pumpyanskiy et de Mme Galina Evgenyevna Pumpyanskaya contre les mesures restrictives adoptées par le Conseil

Udlændinge- og Integrationsministeriet (Perte de la nationalité danoise)
Citoyenneté européenne
Le Danemark peut faire dépendre le maintien de la nationalité danoise de l’existence d’un lien de rattachement effectif avec ce pays

Parlement / Commission (Exemption de visa pour les ressortissants des États-Unis)
Espace de liberté, sécurité et justice
La Commission n’était pas tenue de suspendre l’exemption de l’obligation de visa pour les ressortissants des États-Unis en raison d’un manque de réciprocité en la matière

In Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886 core issue is the scope and application of the foreign act of state rule and of the limitations and exceptions to which it is subject. The foreign act of state rule in its narrow sense essentially holds that courts should not question the validity of acts taken by a foreign government within that government’s territory – see Reliance. [2] the facts:

The first appellant, Crane Bank Limited (“CBL”), was formerly a major commercial bank in Uganda. The second to seventh appellants are shareholders in CBL. In these proceedings the appellants assert that from about Spring 2016 senior Ugandan government officials and officials of the Bank of Uganda (“the BoU”) engaged in a corrupt scheme to take control of CBL, making improper use of statutory and regulatory powers to do so, and then to sell its assets for the benefit of the parties to the scheme. The appellants allege that the first respondent (“DFCU Bank”), another Ugandan commercial bank, joined the corrupt scheme as purchaser of CBL’s assets from the BoU (acting as receiver of CBL), that purchase being at a gross undervalue. DFCU Bank’s holding company (the second respondent) and certain current and former executives and directors of DFCU Bank (the third to fifth respondents) are also alleged to have joined the scheme

[5] appellants contend that the first instance Judge should have found that there was at least a serious issue to be tried (for the purpose of founding jurisdiction) that:

i) the sale by the BoU (as receiver) to DFCU Bank was commercial rather than sovereign in character, therefore falling outside the foreign act of state rule (“the Commercial Activity Exception”); and/or

ii) all of the executive acts in question engaged the English public policy of combatting and not giving legal protection to bribery and corruption, therefore falling outside the foreign act of state rule (“the Public Policy Exception”); and/or

iii) investigating the acts of bribery and corruption alleged against DFCU Bank in paragraph 69(m) of the Amended Particulars of Claim (“the APoC”) did not require the Court to inquire into or adjudicate on the legality of executive acts of the Ugandan state, and so would not infringe the foreign act of state rule (“the Kirkpatrick Exception”); and/or

iv) the application of the foreign act of state rule in this case would be incompatible with Article 6 of the European Convention on Human Rights and therefore contrary to s.6 of the Human Rights Act 1998 (“the Article 6 issue”).

The Foreign Act of State rule is expressed [13] as that courts “will not adjudicate or sit in judgment on the lawfulness or validity under its own law of an executive act of a foreign state, performed within the territory of that state”. It is different from foreign sovereign immunity:“Whereas immunity bars an otherwise good legal claim against a specific person, the foreign act of state rule provides that a claim which falls within it is not a good claim at all as a matter of English law, no matter the identity of the defendant” ([69]).

For his definition, Lord Justice Philipps refers to the Supreme Court in “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela [2023] AC 156. Futher reference is made [14] to Yukos Capital for the exceptions:

Yukos Capital (No. 2) [2014] QB 458 at [68]-[115]. For the purposes of the appeal, the following are relevant:

(i) the Public Policy Exception:

“”[T]he doctrine will not apply to foreign acts of state which are in breach of clearly established rules of international law, or are contrary to English principles of public policy, as well as where there is a grave infringement of human rights”. (Oppenheimer v Cattermole [1976] AC 249, 277–278, per Lord Cross; Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883; Yukos Capital (No 2), paras 69-72.)”

(ii) the Commercial Activity Exception:

“The doctrine does not apply where the conduct of the foreign state is of a commercial as opposed to a sovereign character. (Empresa Exportadora de Azucar v Industria Azucarera Nacional SA (The Playa Larga) [1983] 2 Lloyd’s Rep 171; Korea National Insurance Corpn v Allianz Global Corporate & Specialty AG [2008] EWCA Civ 1355; [2008] 2 CLC 837; Yukos Capital (No 2), paras 92-94.)”

(iii) the Kirkpatrick Exception:

“The doctrine does not apply where the only issue is whether certain acts have occurred, as opposed to where the court is asked to inquire into them for the purpose of adjudicating on their legal effectiveness. (Kirkpatrick (1990) 493 US 400; Yukos Capital (No 2), paras 95-104.)”

The appeal was not allowed on the latter exception but it was on the other two, with Phillips LJ giving complete yet concise analysis of such good quality that there is little point in trying to summarise it here: please refer to the judgment.

I will say a little more about the A6 ECHR argument. The discussion here echoes the discussion in SKAT on Dicey Rule 3 and substantive v jurisdictional rules, and Belhaj v Straw [2017] UKSC 3: where Phillips LJ refers to distinction between domestic laws which excluded liability (which do not engage Article 6) and procedural bars (which do). [71] it is held that the result of foreign act of State is that  domestic law provides a complete defence to what would otherwise be an actionable (therefore A6 ECHR kosher) claim and [72] that, if a proportionality test were to be introduced in foreign act of State (so as to meet alleged A6 ECHR standards), “it would have a major impact on the rule and its applications”. That latter statement I would suggest does not cut much ice in light of a potential ECHR incompatibility.

There is undoubtedly more to be said however seeing as the appeal was largely successful, no more is to be expected from appellants at least on these issues.

Geert.

! scope & application of foreign act of state rule and of the limitations and exceptions to which it is subject.
Ia whether there is impact from A6 ECHR rights

Crane Bank Ltd & Ors v DFCU Bank Ltd & Ors [2023] EWCA Civ 886https://t.co/26BU9W9fOs

— Geert Van Calster (@GAVClaw) July 27, 2023

As Peter Bert reports here, the German Federal Supreme Court or Bundesgerichtshof has held in Case v-ZR-112.22 X v Trustees of Max Stern estate, a case related to ‘Lost art’, that Article 26 Brussels Ia applies to claims against a non-EU domiciled defendant. The trustees had  objected to jurisdiction in first instance but had not formally repeated that upon appeal.

[9] the court finds support first of all in CJEU C-412/98 Group Josi Reinsurance in particular para [44] of that judgment: “Admittedly, under Article 18 of the Convention [=A26 BIa, GAVC], the voluntary appearance of the defendant establishes the jurisdiction of a court of a Contracting State before which the plaintiff has brought proceedings, without the place of the defendant’s domicile being relevant.”

Group Josi however concerned the position of the claimant: [33]: ‘whether the rules of jurisdiction laid down by the Convention apply where the defendant has its domicile or seat in a Contracting State, even if the plaintiff is domiciled in a non-member country.” In the discussion that followed, the CJEU emphasised the general absence in the Convention of attention being paid to the claimant’s domicile (let alone nationality), pointing out that instead the Convention focuses on the defendant’s domicile in a Convention State, with then [44] the concession that (now) Article 26 exceptionally does not pay any attention to the defendant’s domicile. That does not imply however that the CJEU dropped any condition for Convention-States domicile in Article 26. The Bundesgerichthof’s “Der Gerichtshof der Europäi-schen Union hat deshalb – wenngleich nicht tragend – schon in Bezug auf Art. 18 Satz 1 EuGVÜ angenommen, dass es auf den Wohnsitz des Beklagten nicht ankomme” lifts para 44 of Group Josi out off its context.

[10] the Bundesgerichtshof acknowledges that A6(1) BIa refers to A25 but not to A26: “1.   If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be determined by the law of that Member State.” It suggests however a close relationship between A25 and A26, referring to CJEU Taser to emphasise A26’s character as impromptu choice of court, and focuses on the party autonomy element of both A25 and 26.

[11] BIa’s DNA of predictability is said to support a wide catchment area for A26, and [12] all of this is said to be acte claire hence not requiring CJEU referral.

Given the clear language of A6(1), I am not convinced.

Geert.

EU Private International Law, 3rd ed. 2021, 2.211. Fourth ed. forthcoming 2024.

Nb judgment is here https://t.co/6bg2FHOHaV pic.twitter.com/0dXjQdrSnL

— Geert Van Calster (@GAVClaw) August 4, 2023

Lin
Espace de liberté, sécurité et justice
Lutte contre la fraude aux intérêts financiers de l’Union européenne : les règles nationales de prescription pénale doivent permettre une prévention et une répression effectives

McCarthy v Jones & Anor [2023] EWCA Civ 589 is an appeal from Jones & Anor v McCarthy [2022] EWHC 2186 (Ch) which I had not reported on the blog probably because I had not seen it (it happens to the best of us).

Jarman J in the first instance judgment summarised the facts [1 ff] as follows:

first claimant Mr Jones and the defendant Mr McCarthy orally agreed (the 2008 agreement) to exchange assets, whereby Mr McCarthy would obtain beneficial ownership of a yacht known as Biggest Buzz (the yacht) and registered in the British Virgin Islands (BVI), in exchange for Mr Jones acquiring a villa near Palma, Mallorca (the villa) and a mooring (the mooring) situated on mainland Spain. The yacht was registered in the name of the second claimant, a company owned and controlled by Mr Jones. The legal title to the villa was in the name of Mr McCarthy. The mooring was in the name of Mr McCarthy’s father. There was at the time, a substantial mortgage on the yacht and another on the villa. It was envisaged by Mr Jones and McCarthy at the time that after the swap the yacht and the villa would be sold to third parties. It is also not in dispute that part of the reason for the swap was to enable Mr Jones to buy a bigger boat.

In the autumn of 2008, Mr McCarthy sold the yacht to a third party for around £1 million, having had the use of it since the 2008 agreement was made. The second claimant had cleared the outstanding mortgage on the yacht. Mr McCarthy retained the proceeds of this sale, as was envisaged by the parties. The villa was not sold until 2016, at a price of €1.1 million. The proceeds of that sale were also retained by Mr McCarthy, which was something not envisaged at the time.

The primary remedy sought by the claimants is damages for breach of the 2008 agreement on the part of Mr McCarthy, to put them in the position they would have been in if Mr McCarthy had complied with his obligations thereunder by selling the villa at the direction of Mr Jones at its market value of €1.58 million or at least the value for which it was sold at €1.1million.

Alternatively, the claimants say that they are entitled to an account of profits and a constructive trust over the proceeds of sale of the villa, if this provides a more advantageous remedy to the claimants than that available in contract. Mr McCarthy was paid €150,000 by a Brian Proctor in December 2014 under an agreement between them which related to the villa and the mooring, and then bought it back for €950,000. Mr McCarthy then sold the villa to a third party in November 2016 for €1.1 million, so the wrongful proceeds of sale amount to €1.25 million.

The interest to the blog lies in the applicable law issues for the equitable relief. The first instance judge reported the procedural interest as follows [101]

It is not in dispute that matters of contract concerning the villa are governed by the law of England and Wales. Several weeks before the hearing was due to start, the claimants applied to amend their claims to include equitable remedies in respect of the villa. This gave Mr McCarthy little time to seek a report from an expert in Spanish law as to such remedies, as it was contended on his behalf, somewhat unusually, that despite the position regarding contractual remedies as set out above, any equitable remedies would be governed by Spanish law. This was not accepted by Mr Campbell, but he indicated that if the amendments were allowed, and if it was eventually determined that equitable remedies were governed by Spanish law, the claimants would rely solely on their claims in contract. This concession was referred to in the order made allowing the amendments, and repeated in Mr Campbell’s skeleton argument for the substantive hearing.

In other words claimant wanted to amend their claim so as to include equitable relief, a move which defendant opposed but was happy to forgive only if the judge held that that relief was subject to Spanish law, in contrast with the remainder of the claim which parties agreed was subject to English law as the lex contractus. Claimant OK-ed this route, committing to dropping the claim for equitable relief should the judge indeed find this was subject to Spanish law.

The judge duly [102] ff determined lex causae for equitable relief in the case and despite parties’ agreement that English law is the lex contractus, held it to indeed be Spanish law under the ‘most closely connected’ formula of the Rome Convention (the contract not being subject to the Rome I Regulation).

In so doing, he clearly (but without being specific about it) echoed the antediluvian (or is it?; authority and scholarship seem confused about the issue) distinction between rights, subject to the lex contractus, and remedies, subject to the lex fori – although it is odd to then subject those remedies to Spanish law. Unlike Rome I and Rome II, the Rome Convention does not have an Article specifying the ‘scope of the law applicable’, which includes in Rome I (A12(2) “within the limits of the powers conferred on the court by its procedural law, the consequences of a total or partial breach of obligations, including the assessment of damages in so far as it is governed by rules of law;”: itself of course courting controversy by referring to the limits of the lex fori’s procedural rules (see ia here for some of the discussions) and in Rome II Article 15(c) “the existence, the nature and the assessment of damage or the remedy claimed”, each with the complication of the ‘evidence and procedure’ carve-out from the scope of application of the Regulation.

On appeal, the applicable law issue was not revisited, albeit Lewison LJ [3] notes viz an issue different than the remedies issue

It is common ground that the result of the 2008 agreement was that (looking at the matter through the eyes of the law of England and Wales) Mr Jones became entitled to the beneficial interest in the villa despite Mr McCarthy’s retention of the legal title. Whether the existence of such an interest would be recognised as a matter of Spanish law was not explored either at trial or on this appeal. We were asked (rather unsatisfactorily) to assume that the law of England and Wales applied. What was in issue at the trial was whether Mr Jones had ceased to be entitled to that beneficial interest; or was estopped from denying that he had. The judge found against Mr McCarthy on both issues; and, with the permission of Asplin LJ, Mr McCarthy appeals.

E&W authority does not usually make a fuss when parties are in agreement that a specific law applies to the claim, so why such concession here would be ‘unsatisfactory’ is not entirely clear to me.

I am not finding it easy to get my head round the issues here. Perhaps the hot European summer is getting to me.

Geert.

1/2 Appeal dismissed re beneficial interest in Spanish villa despite retention of legal title
Of interest: Lewison LJ:
Whether…would be recognised as matter of SP law was not explored..We were asked (rather unsatisfactorily) to assume that the law of England and Wales applied

— Geert Van Calster (@GAVClaw) May 25, 2023

X v Coinbase Ireland Ltd ECLI:NL:RBNHO:2023:5305 is of interest to the blog for its imho shaky finding on the law applicable to the claim. The case is a so-called pig butchering scam, a term I had never before heard of. Sites like these will tell you what it means. Essentially, in the case at issue the claimant had acquired cryptocoins on a Coinbase account and was subsequently tricked into transferring those into a ‘wallet’ over which she lost control.

Coinbase is defendant, for the fraudsters clearly are nowhere to be found. The claim in a variety of ways attempts to have Coinbase cover the €170,000 or so damage. Jurisdiction is established per A17 ff Brussels Ia (the consumer title). [4.2.4] its activities are found to have been directed at The Netherlands even without it having a Dutch banking licence: it facilitated use of the Dutch iDEAL payment option; it listed The Netherlands as one of the countries in which crypto coin exchange services were available; it offered a Dutch app and a Dutch website; it had paid for Coinbase to appear in Dutch-instructed search engine queries for coinbase and for a link to its website following up on such queries.

Applicable law is held to be Dutch law, applying Rome I. The court first asks itself whether the claim is covered by Rome I or Rome II. With reference to the need for consistency between Brussels Ia and the Rome Regulations (regular readers of the blog know that I am not convinced; see eg tag ‘consistency’ or ‘reading across’ in the search box of the blog) and to CJEU Reliantco, the court holds it is Rome I that is engaged. This is despite the claim largely being based on unfair trading, a statutorily circumscribed tort in The Netherlands. In that respect the claim echoes CJEU Winkingerhof, yet the Dutch court here opts for contract in Sharpston AG Ergo style: [4.3.4] without the contract between the parties there would not currently have been a claim.

The court’s application of Article 6 Rome I then cuts many corners: it notes Coinbase’s argument that its GTCs identify Irish law as the lex contractus, acknowledges that per Rome I (only) mandatory Dutch law trumps Irish law, yet then [4.3.7] rules out the entire application of the lex voluntatis in the GTCs merely on the basis that applying Irish law would be ‘too onerous’ for the consumer, ‘if only’ because it is much more difficult to find legal advisers in The Netherlands with knowledge of Irish law. All of that is sloppy at best.

The remainder of the judgment then dismisses the claim on the basis of Dutch law.

Geert.

Platform liability, 'Pig Butchering Scam'
Consumer's claim against Irish 'Coinbase' fails (essentially on lack of causal link)
Of interest: shaky Rome I, II finding of Dutch law as lex causaehttps://t.co/MejK4lSVTw

— Geert Van Calster (@GAVClaw) June 13, 2023

Leuven term is finally wrapping up and I am hoping to post more of the promised updates over the course of the next few weeks.

In Stichting Massaschade & Consument [SMC] v Airbnb Ireland UC ECLI:NL:RBDHA:2023:8562, the Hague court of first instance held the Dutch courts do not have jurisdiction in a collective claim under the  Dutch WAMCA (mass torts managed by a collective claim).

SMC on behalf of the class members, claims a refund of the service costs which Airbnb charged to the short-term tenants (the claim is not related to the landlords using the platform).

Airbnb’s GTCs include inter alia

“As a consumer, you may bring any judicial proceedings relating to these Terms before the competent court of your place of residence or the competent court of Airbnb’s place of business in Ireland.”

The court first of all reviews the application of the consumer title in particular Article 18(1):

“A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.”

The court [4.7] is wrong in my opinion to hold that Article 18 only applies when the consumer him /herself brings the claim. Dutch courts most certainly in my view have jurisdiction.

The Court finds support for its argument that A18 only applies when the consumers bring the claim themselves in CJEU Schrems,

Rather, in Schrems the CJEU [48] with reference indeed to Bobek AG’s Opinion in the case, holds “an assignment of claims such as that at issue in the main proceedings cannot provide the basis for a new specific forum for a consumer to whom those claims have been assigned.” Meaning, in my view, the assignee must bring the claim (presuming it does not bring it in the defendant’s domicile, here Ireland) as A18 instructs “in the courts for the place where the consumer is domiciled”. A18(1) as far as the consumer is concerned, assigns not just national but also territorial jurisdiction (see also Mankowski, BIbis, 2nd revised ed., p.516), vide “the courts for the place where the consumer is domiciled” as opposed to, for the business, “the courts of the Member State in which that party is domiciled” (emphasis added)

This of course is inconvenient for SMC which for that reason [4.4] had suggested that all Dutch courts have jurisdiction and that seeing as a considerable part of the claimants are domiciled in The Hague, that is where the claims ought to be consolidated. That does not follow in my view from Article 18 and /or Schrems.

The court then rejects A19’s possibility for a more generous choice of court purely because SMC is not a consumer, misapplying Schrems again. Some kind of SMC-favourable choice of court clause under A25 linked to Airbnb’s GTCs is rejected (the judgment seems to suggest it was not even prompted by SMC). SMC had it seemed subsidiarily argued A7(1) jurisdiction, I think (but the judgment is brief on this issue) arguing that the service charge element of the agreement somehow is different from the consumer contract. Here, with reference to CJEU C-19/09 Wood Floor Solutions, the competing arguments of ‘place of performance’ viz A7(1) BIa are Ireland as the place from which the platform is run (Airbnb) and The Netherlands as the place to which that platform is directed, in Dutch (SMC, [4.17]). Here, [4.19], the court goes with Airbnb’s suggestion as the one element that is predictable, while looking at it form the user’s points of view leads to unpredictability seeing as the platform can be used by anyone anywhere in the world. On this I think more can be said.

Overall however as noted, the court in my view misapplied Article 18. Whether that may lead on appeal to consolidation at The Hague, is a different matter.

Geert.

EU private international law, 3rd ed. 2021, 2.222 ff.

Dutch court finds it does not have jurisdiction in 'WAMCA' class action v @Airbnb
Rejects A19, 25, 7(1) BIa jurisdictionhttps://t.co/ZcGaEcjUIj#Airbnb

— Geert Van Calster (@GAVClaw) June 26, 2023

Thursday’s Court of Session’s rejection of the defendant’s forum non conveniens objection to jurisdiction in Hugh Campbell KC v James Finlay (Kenya) Ltd [2023] CSOH 45 means the class action lest appeal can now go ahead . More than 700 workers are suing James Finlay Kenya Ltd (despite its name, a Scotland-incorporated company) under a class action suit. As BHRRC summarise, the former tea pickers claim they suffered serious neck and back injuries due to the poor working conditions on the company’s tea farms in Kericho.

Scotland is the home of forum non conveniens and the case is important with a view to the future direction of the doctrine.

Lord Weir first of all dealt at length and with the help of expert evidence on Kenyan law, with a number of issues under Kenyan law, essentially suggesting exclusive jurisdiction for the Kenyan courts as a result of choice of court in the employment agreements and /or by implication of mandatory Kenyan collective labour law. Eventually he rejects that suggestion and then deals more succinctly [146 ff] with the forum non challenge, which requires defendants show it is clearly and distinctly more appropriate that the group members’ claims be heard in Kenya.

[150] He is unpersuaded on the pleadings and the evidence led that there are significantly complex and disputed issues of Kenyan law (which he holds at the level of general duties is similar to Scots common law) that would require to be resolved in dealing with the group members’ substantive claims.

Other arguments cited pro forum non, are [151]

that the proceedings were likely to raise issues which required an  understanding of Kenyan culture, behaviour and custom.

At an important, though practical level, investigations would require to be undertaken locally.

There was uncertainty over the enforceability of any order made by the Scots court concerning the inspection of property, including judicial accessibility for site inspections.

It was unsatisfactory, from the point of view of assessing credibility and reliability of evidence, that interpreters would be required to translate
evidence, the nuances of which could be lost.

The requirement for translation would inevitably prolong proceedings.

Moreover, there was also no certainty that the evidence of numerous witnesses to fact could be heard remotely.

The attitude of the Kenyan state had to be considered and the correct processes followed. (The evidence of witnesses heard remotely from Kenya could only be granted without objection by the Kenyan state).

[152] Kenya is held clearly to be an appropriate forum. Again, Gleichlauf (Kenyan courts applying their own law, the lex causae) was not considered to be very relevant. Other issues though, were: The group members all live in Kenya. They all sue on the basis of having sustained injury on tea estates in Kenya as a result of the defenders’ breach of duty there. The defenders, although retaining a registered office in Scotland, have no other operations, factories or other discernible business in Scotland. They operate as a branch in Kenya. Senior officers are all based, and live, in Kenya. The circumstances giving rise to the claims, including the processes said to have given rise
to injury, will inevitably require to be investigated in Kenya. Moreover, the defenders have raised practical but nonetheless important issues about the extent to which orders normally pronounced as a matter of routine (eg specifications of documents and property, and the taking of evidence remotely) could be enforced in Kenya.

[153] Yet eventually the balance tilts in favour of Scotland: the judge holds there is cogent evidence of a material risk that the group members may not obtain justice if they are obliged to litigate their claims in Kenya. Lord Weir conducts that exercise at a very practical level, not as a systemic critique of the Kenyan legal system:

“(i) The group members’ duties involve tea harvesting on the defenders’ tea estates. The evidence, derived from the specimen contract, was that tea harvesters earned about Kshs 11,616/=. Although I was not furnished with a direct sterling equivalent Mr Nderitu’s evidence, which I accept, was that Kshs 15,000 was worth about £100 at current rates (March 2023). …a medical report might cost around Kshs 10,000. That…would suggest that a tea harvester who was looking to source their own medical report for litigation purposes would have to spend an entire month’s salary to meet the cost of doing so.
(ii) Tea harvesters working on the defenders’ tea estates were afforded
accommodation but required to purchase their own food. Their
remuneration can properly be described…. as subsistence pay.
(iii) It is probable that many of the group members cannot read or write. …
(iv) It is unlikely that any non-governmental organisation in Kenya would be in a position to fund litigation of the nature and character of these proceedings in Kenya.

(v) Although a Legal Aid Act came into force in Kenya in 2016 it is not yet fully implemented and the group members are unlikely to be able to secure legal aid and assistance in representation to advance their claims in Kenya.
(vi) Contingency fees are prohibited under Kenyan law and group  members would be potentially liable for adverse awards of costs.
(vii) Although there are provisions within the Kenyan Civil Procedure Rules 2010 which permit a group’s interests to be canvassed through a single pursuer or defender …, there are no provisions equivalent or
comparable to the rules governing group proceedings in Scotland. The group members’ claims do not fall into any of the limited categories of claim which would allow for the pursuit of such proceedings, there being no formal procedural basis to enable that to be done.
(viii) There are few lawyers in Kenya who would have the skills and resources to handle mass litigation of this kind. For those larger farms (sic) which could theoretically do so, there are likely to be a commercial disincentives because of (i) the likelihood that such firms would be looking for payment of fees and disbursements as and when they occurred, and (ii) the commercial undesirability of litigating against substantial commercial entities in Kenya.
(ix) In the foregoing circumstances, it is unlikely that the group members would be able to prosecute their claims, individually or collectively and whether or not represented, to a conclusion and to secure justice.”

This is an important finding and it emphasises the importance of practical achievability of properly bringing a claim (that is an echo of Lord Briggs’ ‘substantial justice’ considerations in the forum non conveniens part of UKSC Vedanta, which is not referred to in current judgment).

Geert.

 

Court of Session rejects exclusive jurisdiction for KEN courts and forum non conveniens defence. judge finds against forum non essentially on grounds of substantive justice

More soon

For background to the jurisdictional tussle see https://t.co/64kZyfDuOK

via @StevePeers https://t.co/ufOy1sUG3v pic.twitter.com/RHVWih2MtH

— Geert Van Calster (@GAVClaw) July 13, 2023

 

Selon le contrôleur européen de la protection des données, le système de vidéoconférence de la Cour est compatible avec les règles applicables en matière de protection des données

The Court’s videoconference system complies with data protection rules, says EDPS

TT (Déplacement illicite de l’enfant)
Espace de liberté, sécurité et justice
Déplacement illicite d’un enfant : bien que compétente pour se prononcer sur le droit de garde, la juridiction de l’État membre dans lequel l’enfant résidait habituellement peut exceptionnellement demander le renvoi du litige à une juridiction de l’État membre dans lequel il a été déplacé

YP e.a. (Levée d’immunité et suspension d’un juge)
Les juridictions nationales sont tenues d’écarter l’application d’un acte ordonnant, en méconnaissance du droit de l’Union, la suspension des fonctions d’un juge

Banco Santander (Référence à un indice officiel)
Rapprochement des législations
Taux d’intérêt variable basé sur des indices de référence pour les prêts hypothécaires (IRPH) en Espagne : les consommateurs doivent être suffisamment informés des modalités de calcul de tels indices

Xella Magyarország
Libre circulation des capitaux
L’objectif d’assurer l’approvisionnement du secteur de la construction en gravier, sable et argile au niveau régional ne peut justifier une restriction à la liberté d’établissement