Flux européens

Célébration du 60ème anniversaire de la signature des traités de Rome

In [2017] EWHC 25 (Ch) the Frogmore Group,  there are three relevant companies: FREP (Knowle) Limited. FREP (Ellesmere Port) Limited and FREP (Belle Vale) Limited all of which were incorporated in and have their registered office in Jersey. The Companies form part of Frogmore group (of which the ultimate parent is Frogmore Property Company Limited). The Frogmore group specialises in real estate investment and management in the UK and each of the Companies owns a shopping centre located at Ellesmere Port in Cheshire, Belle Vale in Liverpool and Knowle in Bristol respectively. Each of these shopping centres is managed by Frogmore Real Estate Investment Managers Limited (“FREPIM”), a company formed in England and Wales with its registered office and base for operations at London.

The Nationwide seeking enforcement of security, the group sought a declaration that COMI was at Jersey.

Marshall DJ held with reference to the familiar precedents of Eurofood and Interedil, both featuring heavily in my earlier postings on COMI, but also to Northsea Base Investments in which Birss J paid particular attention to the largest shareholders. Of note is that this reference to the largest shareholders does not entail (and indeed is not so constructed in either Northsea Base or Frogmore) that these get the pick of what COMI might entail. Rather, that the dealings with and experience of one place as being the place where the company’s interest are being managed from, is of particular interest for the Interedil emphasis on ascertainability by third parties. Marshall DJ also rekindles the discussion on whether Interedil’s emphasis is on identifying the ‘Head office’ of the companies: a conclusion which one needs to treat with caution for even in Interedil’s tacit support for the head office approach, the emphasis continues to lie with the combination of factors, all leading to transparency and publicity.

The High Court in the end held with reference to the following: (at 39; all wording as  the judgment but with one or two words left out)

(1) Day- to-day conduct of the business and activities of the Companies has been in the hands of an agent appointed in England, namely FREPIM. Under the Advisory Agreement (which was itself governed by English law and had an English exclusive jurisdiction clause) FREPIM was to take on full responsibility for providing a very large range of services to the Companies, including day-to-day management of the Shopping Centres and dealing with their financing, accounting, marketing and formulation of their business strategy. FREPIM  itself acknowledged that it worked on investment strategy and business plans for the Companies; instructed lawyers, surveyors and consultants for them; negotiated the purchase and sale of properties on their behalf; dealt with their borrowing requirements; and attended to the provision of accounting systems and the preparation of management and annual accounts. These actions were not just limited commercial activities but included the types of function that one would expect a head office to discharge.

(2) Day-to-day dealings with third parties are carried out from the offices of FREPIM at London. This is confirmed by the evidence of the activity of FREPIM described above but it is also supported by, for example, the Companies’ VAT returns where their business address is stated to be those offices. In their day-to-day dealings with third parties regarding expenditure these offices are given as the address for invoices.

(3) If one has regard to the point of view of the largest creditor, Nationwide, the Facility Agreement and the Nationwide Debentures are governed by English law and have an English jurisdiction clause. Under the Facility Agreement the Shareholder is the service agent for the Companies. In the case of the Nationwide Debentures, they have express reference to the power to appoint administrators under the 1986 Act. FREPIM took over the day-to-day contact with Nationwide as well as providing Nationwide with various pieces of information (such as quarterly compliance packs and accounts for borrowers) and did so from London. FREPIM also accepted that the management of the relationship between the Companies and Nationwide had been carried out by [the group treasurer] and the Chairman of the Frogmore group, who was also based in London.

(4) I also note that under the terms of the debentures securing the advances made by the Shareholder that the governing law is English, there is an English exclusive jurisdiction clause, that FREPIM is appointed the service agent of the Companies and there is express provision for the appointment of administrators under the 1986 Act.

The case is a good reminder that even intricate SPV structures should not detract from COMI finding on well-established principles. And that COMI determination always depends on a basket of criteria.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.2., Heading 5.6.1.2.4.

I reported earlier on the November 2015 draft ‘Judgments project’ of the Hague Conference on private international law, otherwise known as the draft convention on the recognition and enforcement of judgments relating to civil and commercial matters. The working group now has a February 2017 draft out. (The project nota bene has even increased in relevance given Brexit).

I could have titled this post ‘spot the differences’ for of course there are changes in formulation between current and previous version. However my main point of concern remains: the absence of Wally: some type of institutional redress which will assist courts in the interpretation of the Convention. Article 23 now calls for uniform interpretation, and there will, one assumes, be a report accompanying its adoption. (Judging by the size of commentaries on the EU mirror, Brussels I Recast, this could turn out to be a very sizeable report indeed). However without a court system ensuring uniformity of application, the Convention in my view will risk being a dead duck in the water.

Geert. (Not by nature pessimistic. But probably realistic).

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2.

After  Shell/Okpabi, the High Court has now for the second time in 2017 rejected jurisdiction to be established against the foreign subsidiary (here: in Kenya) using the mother company as an anchor. In [2017] EWHC 371 (QB) AAA et al v Unilever and Unilever Tea Kenya ltd, Unilever is the ultimate holding company and registered in the UK. Its subsidiary is a company registered in Kenya. It operates a tea plantation there. Plaintiffs were employed, or lived there, and were the victims of ethnic violence carried out by armed criminals on the Plantation after the Presidential election in Kenya in 2007. They claim that the risk of such violence was foreseeable by both defendants, that these owed a duty of care to protect them from the risks of such violence, and that they had breached that duty.

Laing J unusually first of (at 63 ff) all declines to reject the case on ‘case management’ grounds. Unlike many of her colleagues she is more inclined to see such stay as ignoring ‘through the back door’ Owusu‘s rejection of forum non conveniens.  I believe she is right. Instead the High Court threw out the case on the basis that the claims, prima facie (on deciding jurisdiction, the Court does not review the substantial merits of the case; a thin line to cross) had no merit. Three issues had to be decided:

i) By reference to what law should the claim be decided? This was agreed as being Kenyan law.

ii) Are the criteria in Caparo v Dickman [1990] 2 AC 605 satisfied? (A leading English law case on the test for the duty of care). The relevance of English law on this issues comes about as a result of Kenyan law following the same Caparo test: as I have noted elsewhere, it is not without discussion that lex fori should apply to this test of attributability. Laing J held that the Caparo criteria were not fulfilled. The events were not as such foreseeable (in particular: a general breakdown in law and order). Importantly, with respect to the holding company and as helpfully summarised by Herbert Smith:

• the pleaded duty effectively required the holding to ensure that the claimants did not suffer the damage that they suffered, and not merely to take reasonable steps to ensure their safety;
• the pleaded duty also effectively imposed liability on that holding for the criminal acts of third parties, and required it to act as a “surrogate police force to maintain law and order”; and
• such a duty would be wider than the duty imposed on the daughter, as the actual occupier of the Plantation, under the Kenyan Occupiers’ Liability Act

At 103, Laing J discussed and dismissed plaintiff’s attempts at distinguishing Okpabi. In her view, like in Shell /Okpabi, the mother’s control is formal control exercised at a high level of abstraction, and over the content and auditing of general policies and procedures. Not  the sort of control and superior knowledge which would meet the Chandler test.

iii) Are the claims barred by limitation? This became somewhat irrelevant but the High Court ruled they were not. (This, under the common law of conflicts, was a matter of lex causae: Kenyan law, and requiring Kenyan expert input. Not English law, as the lex fori).

The case, like Okpabi, is subject to appeal however it is clear that the English courts are not willing to pick up the baton of court of prefered resort for CSR type cases against mother companies.

Geert.

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

This post has been written by Nicolò Nisi, Research Assistant at Martin Luther University Halle-Wittenberg

On 10 March 2017, the German Bundestag finally voted the bill to facilitate the handling of domestic group insolvencies (Gesetzes zur Erleichterung der Bewältigung von Konzerninsolvenzen), which was initially presented in early 2013.

It is a much-awaited development, which follows the introduction in the new EU Insolvency Regulation (Regulation (EU) 2015/848) of specific provisions addressing the insolvency of EU groups of companies, i.e., groups where the parent company and the subsidiaries have their centre of main interests in at least two Member States.

Under current German law, each legal entity is subject to its own insolvency proceeding and the decision to open the proceedings is determined separately and independently for each entity (‘one company, one insolvency, one proceeding’). It means that different insolvency courts open separate proceedings for each insolvent group member, with the appointment – in many cases – of several insolvency practitioners. This approach has its benefits in terms of legal certainty, but it overlooks the wider picture of the group. It is, in fact, not suitable for the group restructuring or the sale of the group business as a going concern.

Although the principle that separate proceedings are to be opened in respect of different group members remains unchanged, the new provisions introduce four main innovations to the German Insolvency Code (Insolvenzordnung).

To begin with, they establish the possibility for a group company – not necessarily the (ultimate) parent – to apply for the opening of insolvency proceedings over the other insolvent group entities (so-called procedural consolidation), provided that such concentration of jurisdiction is justified by the common interests of the group’s creditors and the requesting company is not manifestly of minor importance for the group as a whole (§ 3a).

A ‘group venue’ is then established for all the group companies. In the case of more applications, a priority rule applies or, when not possible, the application made by the company with the highest number of employees in the previous financial year prevails. If a request to open insolvency proceeding against a group member is submitted afterward to a different court, the latter may transfer the proceeding to the group court (§ 3d).

Secondly, when insolvency proceedings in respect of various group members are opened in different courts, it is possible to appoint the same person as insolvency practitioner for all group companies concerned, insofar it is in the creditors’ interests and possible conflicts of interest may be covered by the appointment of a special practitioner (§ 56b). This should avoid the occurrence of frictions, inefficiencies and information asymmetries, which could endanger an optimal result.

Thirdly, the insolvency practitioners appointed in the proceedings opened in relation to different members of the same group are obliged to cooperate and share all relevant information, insofar as the interests of the creditors of the respective group company would not be prejudiced (§ 269a). Similar duties are also provided concerning insolvency courts (§ 269b) and creditors’ committees (§ 269c). Under the last provision, however, cooperation shall only take place by request of one of the creditors’ committees and through the appointment of a group creditors’ committee, which should assist the insolvency practitioners and the creditors’ committee within the individual proceedings.

Finally, each group company in whose respect an insolvency proceeding has been requested or already opened – alternatively the (preliminary) creditors’ committee of a group company – may request before the court of the group venue the opening of a ‘coordination proceeding’, which should further facilitate the coordinated liquidation or restructuring of insolvent groups (§ 269d). The coordination court shall then appoint an independent coordinator (§ 269e), who oversees the execution of the proceeding in the interest of creditors, in particular by submitting a coordination plan (§ 269f).

Such plan should describe in detail all the relevant measures to be implemented within the individual insolvency proceedings, including the proposals concerning (i) the restoration of economic performances of the group members; (ii) the settlement of intra-group disputes; and (iii) the contractual arrangements among insolvency practitioners (§ 269h).

It is worth stressing that the group coordination proceeding does not have a binding effect on the individual proceedings, in that the insolvency practitioners may decide not to follow the recommendations of the coordinator, only subject to the duty to explain to the creditors the reasons for doing so (‘comply or explain’) (§ 269i). However, if the creditors are not persuaded and vote in favour of the arrangements contained in the group plan, but the practitioner does not adapt accordingly the insolvency plan at the level of individual proceeding, he may risk to be held liable for damages.

Except for the first point on procedural consolidation, which is positively considered by the prevailing literature in the case of an integrated group as a tool to simplify the going-concern sale of the business or the global group-wide restructuring, the new German rules resemble closely the ones recently adopted in the Recast Insolvency Regulation. The latter, in fact, were proposed by the German delegations within the European Parliament and the Council. Also at the European level, a group coordination proceeding has been introduced in order to facilitate the group restructuring, even though the participation of various practitioners is not binding and rests on a voluntary basis (see Articles 61 et seq.).

This solution has been the object of different evaluations, mostly skeptical. Indeed, it seems that the introduction of a coordination proceeding will not make a significant difference in the practice of group insolvencies. Even overlooking the problems arising from non-compliance with the coordinator’s recommendations, one should pay attention to limiting the costs (including the coordinator’s remuneration under § 269g) and the duration of the proceeding, in order to preserve its efficiency and to ensure its success in the interest of creditors, thus avoiding it may result in additional complexity.

The one sorry outcome of [2017] EWHC 374 (Ch) Microsoft (Nokia) v Sony is that by rejecting jurisdiction, the Commercial Court did not have an opportunity to review the application of Rome II’s provisions on applicable law in the case of infringement of competition law.

The following background is by Kirsty Wright, who also alerted me to the case: the claim centred on allegations by Microsoft (who had acquired Nokia of Finland) that the Defendants had caused loss by engaging in anti-competitive conduct relating to the sale of Li-ion Batteries over a period of 12 years. In 2001 Nokia and the Sony Corporation (the mother corporation: with seat outside of the EU) concluded a Product Purchase Agreement for Li-ion Batteries. This agreement contained an English choice of law clause and required any dispute to be resolved by way of arbitration in the International Chamber of Commerce (ICC). Microsoft became the assignee of these rights following its purchase of parts of Nokia in 2013 and therefore could bring claims in contract against Sony Corporation and claims in tort against the other three Defendants. Sony Corporation is a subsidiary of Sony Europe Limited: it is the anchor defendant in this case: none of the corporations other than Sony Europe are domiciled in the EU.

Smith J in a lengthy judgment determined that the agreement between Microsoft and Sony Corporation to arbitrate in the ICC also extended to the parent company Sony Europe. Therefore proceedings against all defendants were stayed in favour of ICC arbitration subject to English law. This required him first of all to hold that under English law, the arbitration agreement (as opposed to, under EU law, for the issue of choice of court: see CDC) extends to non-contractual obligations (infringement of competition law evidently not being part of one’s contractual rights and obligations; see here for a review of the issues; in Dutch I’m afraid: must find time for an EN version) but also that the clause extended to the mother company: hence releasing the jurisdictional anchor.

Microsoft had anticipated such finding by suggesting such finding may be incompatible with EU law: its contention was that the operation of the Brussels I Regulation (Recast) must permit the effective protection of rights derived from competition law, including private law rights of action for infringement, these being rights accorded by EU law, and that an arbitration clause which caused the fragmentation of such rights of action was, for that reason, in breach of EU law (at 76). It made extensive reference to Jaaskinen AG’s call in CDC for the Brussels I Recast to be aligned with Rome II’s ambition to have one single law apply to the ensuing tort. (The jurisdictional regime as noted leads to a need to sue in various jurisdictions).

As I have noted in my review of the CJEU’s judgment, on this point the Court however disagreed with its AG. Indeed while the AG reviews and argues the issue at length (Smith J recalls it in the same length), the Court summarily sticks to its familiar view on the application of (now) Article 7(2) in competition cases; it is the CJEU’s view which the Commercial Court of course upholds.

A great case, extensively argued.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.9.1; Heading 2.2.9; Chapter 4, Heading 4.6.2).

 

 

 

 

Fraus omnia corrumpit (fraud corrupts all; alternatively formulated as ex turpi causa non oritur actio) is not easily applied in conflict of laws. See an earlier post here.  In Sinocore International Co Ltd v RBRG Trading , the Commercial Court granted permission for the enforcement of a foreign arbitral award despite allegations that the transaction in question had been “tainted” by fraud: this is how the case is summarised by Mayer Brown and I am happy broadly to refer to their overview and analysis.

The Commercial Court’s relaxed attitude is another sign of strong support of the English courts for the New York Convention and its narrow application of ordre public.

An interesting case for comparative conflicts /arbitration classes.

Geert.

Engagement solennel devant la Cour de justice de l’Union européenne d’un nouveau membre de la Cour des comptes européenne

Tele2 (Netherlands) e.a.
Rapprochement des législations ETAB SERV PROT TELE
Le consentement d’un abonné téléphonique à la publication de ses données couvre également l’utilisation de celles-ci dans un autre État membre

G4S Secure Solutions
Principes du droit communautaire
Une règle interne d’une entreprise interdisant le port visible de tout signe politique, philosophique ou religieux ne constitue pas une discrimination directe

A e.a.
Espace de liberté, sécurité et justice EXT PESC DFON CHDF
Les activités de forces armées en période de conflit armé, au sens du droit international humanitaire, peuvent constituer des « actes de terrorisme »

Issued on the same day as Zulfikarpašić, Pula Parking Case C-551/15 deals with similar core issues, with a few extras thrown in. Pula Parking, a company owned by the town of Pula (Croatia), carries out, pursuant to a decision of the mayor of that town, the administration, supervision, maintenance and cleaning of the public parking spaces, the collection of parking fees and other related tasks. In September 2010, Mr Tederahn, who is domiciled in Germany, parked his vehicle in a public parking space of the town of Pula. Pula Parking issued Mr Tederahn with a parking ticket. Since Mr Tederahn did not settle the sums due within the period prescribed, Pula Parking lodged, on 27 February 2015, with a notary whose office is in Pula, an application for enforcement on the basis of an ‘authentic document’. A notary issued a writ of execution on 25 March 2015, on the basis of that document.  In his opposition, Mr Tederahn put forward a plea alleging that the notary who issued the writ of execution of 25 March 2015 did not have substantive and territorial jurisdiction on the ground that that notary did not have jurisdiction to issue such a writ on the basis of an ‘authentic document’ from 2010, against a German national or a citizen of any other EU Member State.

Does the Brussels I recast apply at all? And does it relate also to the jurisdiction of notaries in the Republic of Croatia?

On the temporal scope of the Brussels I Recast, the Court repeats its (Brussels Convention) Sanicentral (Case 25/79) finding: the only necessary and sufficient condition for the scheme of the Regulation to be applicable to litigation relating to legal relationships created before its entry into force is that the judicial proceedings should have been instituted subsequently to that date. Accession timing is irrelevant to the case: per C-420/07 Apostolides the Act of Accession of a new Member State is based essentially on the general principle that the provisions of EU law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions.

On the substantial scope of the Brussels I Recast Regulation, for the issue of ‘civil and commercial’ the Court refers to its standing case-law (particularly most recently Aertssen and Sapir). In casu, it would seem (the national court is asked to confirm) that the parking debt claimed by Pula Parking is not coupled with any penalties that may be considered to result from a public authority act of Pula Parking and is not of a punitive nature but constitutes, therefore, mere consideration for a service provided. Brussels I applies.

However, notaries in casu do not act as courts: in a twin approach with Zulfikarpašić, the Court holds that the writ of execution based on an ‘authentic document’, issued by the notary, is served on the debtor only after the writ has been adopted, without the application by which the matter is raised with the notary having been communicated to the debtor. (at 58) Although it is true that debtors have the opportunity to lodge oppositions against writs of execution issued by notaries and it appears that notaries exercise the responsibilities conferred on them in the context of enforcement proceedings based on an ‘authentic document’ subject to review by the courts, to which notaries must refer possible challenges, the fact remains that the examination, by notaries, in Croatia, of an application for a writ of execution on such a basis is not conducted on an inter partes basis.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

Si terrà a Torino, il 17 e il 18 marzo 2017, il secondo tirocinio formativo dedicato al regolamento n. 1215/2012 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (Bruxelles I bis), il quarto evento organizzato nella cornice del progetto European Civil Procedure for Lawyers: Promoting Training to Improve the Effectiveness of Transnational Justice, cofinanziato dalla Commissione europea (si veda questo post).

Si tratta, come i precedenti (organizzati a Lucca e a Torino, per cui vedi qui, qui e qui), di un un tirocinio formativo a partecipazione attiva con presentazione, discussione e risoluzione di casi concreti rientranti nell’ambito di applicazione del regolamento Bruxelles I bis. La prima giornata sarà dedicata ai criteri di giurisdizione e agli accordi di attribuzione della competenza giurisdizionale, mentre nel secondo giorno si parlerà di riconoscimento ed esecuzione delle decisioni. I lavori saranno presieduti da Elena D’Alessandro (Univ. Torino), Silvana Dalla Bontà (Univ. Trento), Paolo Lombardi (Bar of Turin), Ester di Napoli (Bar of Florence), Violetta Zancan and Carlo Negro (both Bar of Turin).

La partecipazione al seminario è gratuita, prevede la distribuzione di materiali didattici e l’attribuzione di 4 crediti formativi per gli avvocati. L’evento è aperto fino ad un massimo di 30 partecipanti.

Per maggiori informazioni scrivere a: info@europeancivilprocedureforlawyers.eu. La locandina dell’evento è disponibile qui.

The Special Commission set up by the Council on General Affairs and Policy of the Hague Conference on Private International Law to prepare a preliminary draft convention on the recognition of judgments in civil and commercial matters (the Judgments Project) met for the second time between 16 and 24 February 2017.

Building on the draft text elaborated in 2016, the Special Commission completed a new draft (the February 2017 draft Convention), which should form the basis for a new round of discussions in November 2017.

The Court held  yesterday in Zulfikarpašić Case C-484/15. I review Bot AG ‘s Opinion here.  At issue is the interpretation of ‘court’ and ‘judgment’ in the European enforcement order Regulation. Mutatis mutandis therefore the case has implications for most other EU private international law instruments, which employ similar terms. In all of these Regulations, the terms ‘court’ and ‘judgment’ are under- or not at all defined. The CJEU in fact refers to considerations under the Brussels I Recast in its judgment yesterday.

For the determination of a ‘court’ the AG had emphasised guarantees as to independence and impartiality; the power to decide on one’s own authority; leading to a finding which was or may be subject to an exchange of arguments and may be challenged before a judicial authority. The AG had suggested that whether these conditions are fulfilled is for the national courts to assess.

The Court itself referred to a number of classic principles for the interpretation of EU private international law: autonomous interpretation; mutual trust; legitimate expectations. It then reformulated but essentially suggests similar criteria as its AG: for a finding to be qualified as a judgment, it must have been delivered in court proceedings offering guarantees of independence and impartiality and of compliance with the principle of audi alteram partem (at 43).In the Croatian procedure at issue, the notary issues an authentic instrument which, if it is challenged as to its content, is moved up the pecking order to court proceedings. The proceedings before the notary not meeting with the Court’s generic criteria, in contrast with the AG the Court itself already holds that the notaries at issue do not act as courts and their decisions are not ‘judgments’.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

Piringer
SERV
Les États membres peuvent réserver aux notaires la faculté d’authentifier les signatures apposées sur les documents nécessaires à la création ou au transfert de droits réels immobiliers

Zulfikarpašić
Espace de liberté, sécurité et justice
Les notaires en Croatie, agissant dans les procédures d’exécution forcée sur le fondement d’un « document faisant foi », ne peuvent être qualifiés de « juridiction » ni au sens du règlement sur le titre exécutoire européen ni aux fins de l’application du règlement sur la reconnaissance et l’exécution des décisions en matière civile et commerciale

Manni
Rapprochement des législations
La Cour considère qu’il n’existe pas de droit à l’oubli pour les données à caractère personnel figurant dans le registre des sociétés

Samsung SDI e.a. / Commission
Concurrence
La Cour maintient les amendes infligées à Samsung SDI et Samsung SDI (Malaysia) pour leur participation à l’entente des tubes pour téléviseurs et pour écrans d’ordinateur

In C-54/16 Vinyls Italia (in full: Vinyls Italia SpA, in liquidation v Mediterranea di Navigazione SpA) Szpunar AG opined last week (the Opinion is not available in English). At the core of the case is the application of Article 13 of the Insolvency Regulation 2000 (Article 16 in the 2015 version; see my general review here), however the case opens an interesting discussion on the meaning of ‘international’ in ‘private international law’.

For the general context of Article 13 (16 new) I should like to refer to my review of Lutz and Nike. At issue in the case at hand are payments made by Vinyls to Mediterranea for the transport of chemicals of the former by the latter. Both are Italian registered companies. Shipment was presumably carried out in Italy (an extra-Italian element in the actual transport does not feature in the factual analysis re ‘international’, which I refer to below). However the contract made choice of law in favour of English law. Mediterranea makes recourse to Article 13 juncto English law as the lex contractus to ward off an attempt by Vinyls to have the payments return to its books.

First up is the question whether courts should apply Article 13 ex officio: for Mediterranea’s claim was made after the procedural deadline foreseen by Italian law. Szpunar AG in my view justifiably suggest it does not: he refers to the Virgos Schmit report [„Article 13 represents a defence against the application of the law of the State of the opening, which must be pursued by the interested party, who must claim it” – § 136 of that report, para 43 of the AG’s Opinion) and to the CJEU’s finding in C-310/14 Nike at 26. The AG does point to the particulars of the case: Mediterranea seemingly had provided proof supporting its view that the substantial conditions of Article 13 had been met (in particular an expert opinion by an English lawyer) but had not expressis verbis requested its application. Szpunar refers the final say to the Italian court, which needs to judge on the basis of Italian civil procedure however does suggest that it seems fairly inconceivable to have provided proof for the fulfillment of a legal proviso, without meaning to request its application.

The question on the applicability of Rome I at all (which is required if Mediterranea want to make recourse to the provisions of English law as lex contractus per Rome I or the Rome convention) may not make it to the CJEU. As Szpunar AG notes, the underlying contract dates prior to 17 December 2009, which is the cut-off date of the Rome I Regulation. The referring court being a court of first instance, it is not in a position to request preliminary review of Rome I’s predecessor, the 1980 Rome Convention. The AG completes the analysis anyway (the Court itself will not, should it find Rome I not to be applicable) and takes in my view the right, expansionist approach (one which I also defend in my handbook): especially given the presence of Article 3(3)’s proviso for ‘purely domestic’ contracts, it is clear that it suffices for Rome I to be applicable that parties make choice of court in favour of a foreign law. Further in the opinion (137 ff) he also suggests that such application is not tantamount to fraude a la loi (fraus legis) and again I agree: the relevance of fraus has been seriously diminished by the provisions on party autonomy in both Rome I and the Rome Convention.

The use of choice of law per Rome I (or the Convention) in turn serves as a jack to trigger the application of the insolvency Regulation. That too is correct in my view, and with undramatic consequences. Choice of law for the underlying contract only identifies its lex causae (where relevant, with an impact on Article 13 of the Insolvency Regulation). It does does not of course in and of itself determine the lex concursus: the latter is determined by the Insolvency Regulation once /if insolvency occurs. Parties have no means to manipulate this at the time of the formation of the contract.

Exciting, conceptual stuff. Most probably the Court itself will not be in a position to assess it all.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.1; Heading 3.2.8.1; chapter 5; Heading 5.7.1.