Flux européens

I have frequently reported in the use of English restructuring and law, including Plans and Schemes of Arrangement, and the forum and applicable law shopping strategies for same. Readers will find the tag ‘restructuring’ or ‘scheme of arrangement’ useful.

My post on Apcoa  summarises many of the issues and cross-refers to many other postings. The same post in a later update reports on Codere, which has become standard reference, and to AGPS Bondco Plc, Re, where the Court’s jurisdiction was unsuccessfully challenged on the basis that the Issuer Substitution was ineffective or invalid as a matter of German law.

That latter judgment has now been successfully appealed in Strategic Value Capital Solutions Master Fund LP & Ors v AGPS BondCo PLC (Re AGPS BondCo PLC) [2024] EWCA Civ 24. The Court of Appeal held that the first instance judge had unjustifiably departed from the paru passi distribution of assets principle in sanctioning the cross-class cram down.

Of note for the blog however is Lord Justice Snowden’s obiter reference to the jurisdiction [29] ff as follows:

1. 1. 1. After the failure of the consent solicitation, the Group announced its intention to implement the proposed restructuring by an alternative route. This was to propose a restructuring plan under Part 26A and to ask the English court to exercise its cram down power to overcome the objections of the Appellants. To that end, the Plan Company was incorporated in England and Wales as a subsidiary of the Parent Company on 23 December 2022.

1. 1. 1. On 10 January 2023, the Appellants put forward an alternative restructuring proposal to the Group. That elicited no immediate response, but on 19 January 2023 the SteerCo informed the Company that the Appellants’ proposal was not acceptable.

1. 1. 1. On 11 January 2023 the Plan Company was substituted for the Parent Company as the issuer of the Notes, ostensibly pursuant to the substitution procedure under the Notes (the “Issuer Substitution”). In connection with that substitution, the Parent Company guaranteed the Plan Company’s obligations under the Notes, and the Parent Company issued back-to-back loan notes to the Plan Company on the same terms as the Notes.

1. 1. 1. It is self-evident, and the Plan Company accepted before the Judge, that the Issuer Substitution was carried out for the sole purpose of introducing an English company into the Group structure in order to persuade the English court to exercise its jurisdiction under Part 26A. Absent the Issuer Substitution, a proposal for the compromise of foreign law debts owed by a foreign company with no relevant connection with England would not have been entertained by the English court.

1. 1. 1. The technique of inserting a newly incorporated English company as a substitute obligor or co-obligor of debt owed by a foreign company in order to engage the jurisdiction of the English court under Part 26 or Part 26A has been used in a number of schemes and plans that have been sanctioned at first instance over the last few years: see e.g. Codere Finance (UK) Limited [2015] EWHC 3778 (Ch) and Gategroup Guarantee Limited [2021] EWHC 775 (Ch) at [12]-[23]. Mr. Bayfield KC told the Judge that it was “an established technique”. It has, however, not been the subject of consideration at an appellate level.

1. 1. 1. The Appellants did not oppose the Plan before the Judge on the basis that the Issuer Substitution was an artificial device that could not justify the exercise of discretion to sanction the Plan. The point did not, therefore, arise for consideration on this appeal. For the avoidance of doubt, and without expressing a view one way or the other, I would wish to make it clear that the fact that this judgment does not deal with this issue should not be taken as an endorsement of the technique for future cases.

1. 1. 1. The Appellants did, however, challenge the legality of the Issuer Substitution as a matter of German law, both before the Judge, and by proceedings in Germany itself. The Judge heard expert evidence and was satisfied that it complied with German law. The Appellants also indicated that irrespective of our decision on this point, they reserved the right to continue their challenge to the Issuer Substitution in Germany.

(emphasis added)

The point is clearly made obiter, seeing as the issue was not appealed (although it is being litigated in Germany, which evidently will raise interesting further issues); and of course it is possible that Snowden LJ simply mentions the issue for it was litigated at first instance. Yet often if that is the case, the Court of Appeal simply keeps schtum about it. Therefore just possibly it may be hinting that the often applied arguendo approach to jurisdiction for Schemes and Plans (“arguments put forward are not barmy and they are not really opposed by any party therefore we accept jurisdiction”) may not work at least across the board in restructuring cases.

An obiter hint of note.

Geert.

EU Private International Law, 4th ed. 2024, 5.35 ff.

Interesting, successful appeal against sanction of cross-class cram down
Held unjustified departure from pari passu distribution
Re jurisdiction [34] obiter Snowden LJ neither confirming nor rejecting technique of issuer substitution by EN corporation to justify E&W jurisdiction

— Geert Van Calster (@GAVClaw) January 24, 2024

Noah Clothing / EUIPO - Noah (NOAH)
Propriété intellectuelle et industrielle
Le Tribunal confirme que le signe figuratif NOAH peut continuer d’être enregistré comme marque de l’Union européenne pour les « polos » et les « chandails »

The Court of Justice delivered yesterday its judgment in case C‑531/22 (Getin Noble Bank S.A.), where it has, once more, defended the right of the national judge to, ex officio, examine the potential unfairness of a clause in a contract concluded by a consumer (Directive 93/13).

The decision is available in all EU languages, albeit not in English. Here is the French version:

“1) L’article 6, paragraphe 1, et l’article 7, paragraphe 1, de la directive 93/13/CEE du Conseil, du 5 avril 1993, concernant les clauses abusives dans les contrats conclus avec les consommateurs, doivent être interprétés en ce sens que : ils s’opposent à une réglementation nationale prévoyant qu’une juridiction nationale ne peut procéder d’office à un examen du caractère éventuellement abusif des clauses figurant dans un contrat et en tirer les conséquences, lorsqu’elle contrôle une procédure d’exécution forcée fondée sur une décision prononçant une injonction de payer définitive revêtue de l’autorité de la chose jugée :

– si cette réglementation ne prévoit pas un tel examen au stade de la délivrance de l’injonction de payer ou

– lorsqu’un tel examen est prévu uniquement au stade de l’opposition formée contre l’injonction de payer concernée, s’il existe un risque non négligeable que le consommateur concerné ne forme pas l’opposition requise soit en raison du délai particulièrement court prévu à cette fin, soit eu égard aux frais qu’une action en justice entraînerait par rapport au montant de la dette contestée, soit parce que la réglementation nationale ne prévoit pas l’obligation que soient communiquées à ce consommateur toutes les informations nécessaires pour lui permettre de déterminer l’étendue de ses droits.

2) L’article 3, paragraphe 1, l’article 6, paragraphe 1, l’article 7, paragraphe 1, et l’article 8 de la directive 93/13 doivent être interprétés en ce sens que : ils ne s’opposent pas à une jurisprudence nationale selon laquelle l’inscription d’une clause d’un contrat au registre national des clauses illicites a pour effet que cette clause soit considérée comme étant abusive dans toute procédure impliquant un consommateur, y compris à l’égard d’un autre professionnel que celui à l’encontre duquel la procédure d’inscription de ladite clause à ce registre national avait été engagée et lorsque la même clause ne présente pas un libellé identique à celui enregistré, mais revêt la même portée et produit les mêmes effets sur le consommateur concerné ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=281795&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=4026751

Commission / Intel Corporation
Concurrence
L’avocate générale Medina propose à la Cour de confirmer que la Commission a appliqué de manière erronée le test AEC en ce qui concerne HP et Lenovo

Caixabank e.a. (Contrôle de transparence dans l’action collective)
Rapprochement des législations
Selon l’avocate générale Medina, la transparence des clauses « plancher » dans les contrats de prêt hypothécaire peut faire l’objet d’un contrôle dans le cadre d’une action collective

RTL Nederland et RTL Nieuws
Catastrophe du vol MH17 : la confidentialité de certaines informations concernant la sécurité aérienne est justifiée et proportionnée

Comune di Copertino
Libre circulation des personnes
Un travailleur qui n’a pas pu prendre tous ses jours de congé annuel payé avant de démissionner a droit à une indemnité financière

I am much annoyed one has to refer to cases like these yet again as X v Y (see also here, also on Article 22 Rome II). I understand the need for anonymisation in this particular case, ECLI:NL:PHR:2023:1114, which concerns the liability of a Dutch mother, guardian of a (young) adult son with mild autism and ADHD and a number of mental health challenges, who stabbed and otherwise attacked a Russian (immaterial to the attack) boy living in Germany but holidaying with his family in Crete. Yet some kind of acronym might be helpful.

At any rate, the interest of this tragic case for the blog lies in Advocate General Vlas discussing Rome II particularly the evidence and procedure carve-out as qualified by Article 22 Rome II’s inclusion of the burden of proof in the lex causae:

Article 22 Rome II

Burden of proof

1.   The law governing a non-contractual obligation under this Regulation shall apply to the extent that, in matters of non-contractual obligations, it contains rules which raise presumptions of law or determine the burden of proof.

2.   Acts intended to have legal effect may be proved by any mode of proof recognised by the law of the forum or by any of the laws referred to in Article 21 under which that act is formally valid, provided that such mode of proof can be administered by the forum.

Parties agree Greek law is the lex causae. Dutch law applies procedurally as the lex fori, with the A22 Rome II caveat. (3.25) the AG cites the relevant burden of proof issue in the Greek Civil Code: Article 923:

 “Whoever has the supervision of a person under age or of a person placed under judicial assistance is liable for the damage that such persons unlawfully cause to a third party, unless he proves that he has exercised properly the duty of supervision or that the damage could not have been avoided. (…)”. (…)’

(3.26) the AG summarises the implications of A22 as follows (translated by me, and omitting his references (ia to prof Peters, Magnus/Mankowski/Queirolo, Kramer, and Bart-Jan van het Kaar) 

In brief, it follows from A22(1) Rome II that the lex causae applies to the burden of proof. A22 concerns substantive issues of the law of evidence, such as the distribution of the burden of proof. It does not concern issues relating to the formal elements of the burden of proof, such as admissibility and the appreciation of evidence. These issues are subject (see A10:3 Dutch Civil Code) to Dutch law as the lex fori.

A relevant consideration, one will have to wait and see whether the Supreme Court itself will engage with the A22 issue, which is only a small part of the appeal.

Geert.

EU Private International Law, 4th ed 2024, 4.79 ff.

X v Y (parental responsibility). Vlas AG (of the Supreme Court of The Netherlands) ia on the evidence and procedure carve-out and Article 22 Rome II.https://t.co/OGt1m04LPx

— Geert Van Calster (@GAVClaw) January 17, 2024

Kaili / Parlement et Parquet européen
Droit institutionnel
Levée de l’immunité parlementaire : le recours de Mme Eva Kaili contre la demande de la cheffe du Parquet européen et la décision de la présidente du Parlement est rejeté

Österreichische Datenschutzbehörde
Principes du droit communautaire
Une commission d’enquête parlementaire doit en principe respecter le règlement général sur la protection des données

Intervyuirasht organ na DAB pri MS (Femmes victimes de violences domestiques)
Espace de liberté, sécurité et justice
Violences faites aux femmes : la Cour précise les conditions pour bénéficier de la protection internationale

Zamestnik-predsedatel na Darzhavna agentsia za bezhantsite
Espace de liberté, sécurité et justice
Advocate General Emiliou: Palestinian applicants for refugee status can claim that UNRWA’s protection has ‘ceased’ in the light of the general living conditions prevailing in the Gaza Strip

Airbnb Ireland
Avocat général Szpunar : un État membre ne peut imposer des obligations générales et abstraites à un prestataire de services en ligne actif sur son territoire mais établi dans un autre État membre
Advocate General Szpunar: a Member State cannot impose general and abstract obligations on an online service provider operating on its territory but established in another Member State

Google et Alphabet / Commission (Google Shopping)
Concurrence
L’avocate générale Kokott propose à la Cour de confirmer l’amende de 2,4 milliards d’euros infligée à Google pour avoir favorisé son propre comparateur de produits

Commission / République tchèque (Éligibilité et adhésion à un parti politique)
Citoyenneté européenne
Avocat général Richard de la Tour : en refusant le droit de devenir membre d’un parti politique aux citoyens de l’Union, qui ne sont pas ressortissants de la Pologne ni de la République tchèque mais qui y résident, ces États membres ont enfreint le droit de l’Union en matière électorale

Wizz Air Hungary / Commission
Aide d'État
La Cour rejette le pourvoi de Wizz Air au sujet de l’aide au sauvetage accordée par la Roumanie à TAROM

Dyson e.a. / Commission
Droit institutionnel
Étiquetage énergétique des aspirateurs : la Cour rejette définitivement le recours en indemnité de Dyson

This is possibly the longest title of any of my posts and rightly so for the issues in current judment are extensive. Bourlakova & Ors v Bourlakov & Ors (Rev1) [2023] EWHC 2233 (Ch) is a follow-up to Bourlakova v Bourlakov [2022] EWHC 1269 (Ch) which I discuss here; in the meantime Mr Bourlakov has passed away, leaving the other defendants.

Claimants ask for permission to amend their PoC (Particulars of Claim) including the proposed joinder of an additional claimant. Some of the Defendants have themselves made three related applications, namely (a) to adjourn the hearing of the Claimants’ amendment applications (b) for permission to rely on further evidence and (c) for a stay under A33 or 34 Brussels Ia of such amended claims for which the Claimants may be given permission.

The case first of all raises an interesting discussion on applicable limitation periods (attached to Panama law as the lex causae under Rome II) as compared to carved-out procedural issues under Rome II (and English residual conflicts law), subject to English law as lex fori. It then discusses a number of jurisdictional issues.

First, on the limitation periods, discussed by Smith J [56] ff against the background of the Panamian Penal Code (‘PC’). Of note is that defendants only have to raise a reasonably arguable limitation defence in relation to these new damages claims (hence the discussion need not contain the Alfa and Omega of the issues) and it is worthwhile to see the competing arguments in full [64] ff (footnotes omitted):

Panamanian law admits of a civil claim in damages for those guilty of a criminal offence. The specific offences relied upon by the Claimants are those identified in Articles 220, 243 and/ or 253 PC. Although the route by which this is achieved is contentious, it is common ground that Panamanian law governs the question of any available limitation defence to claims brought under these articles. It is also common ground that the damages claims could be brought in Panama in different ways, namely

(i) within criminal proceedings;

(ii) before the civil courts without awaiting the outcome of any criminal trial; or

(iii) before the civil courts after the criminal court has issued its final liability ruling.

[Defendants] say that if, as here, a claim for civil damages arising from alleged criminal acts under Articles 128 and 129 PC is filed without a criminal conviction having first been obtained or in the absence of criminal proceedings, this would have to be submitted as an extra-contractual or tortious claim under Article 1644 of the Civil Code (CC) which provides that:-

“Whoever by act or omission causes damage to another, through fault or negligence, is bound to repair the damage caused. If the act or omission is attributable to two or more persons, each of them shall be jointly and severally liable for the damage caused.“

[Defendants] also say that the relevant limitation period for such a claim is one year by operation of Article 1706 CC which provides:-

“The civil action to claim indemnification for slander or insult or to demand civil responsibility for the obligations resulting from guilt or negligence to which Article 1644 refers, shall prescribe in the term of one (1) year, counted from the moment in which the victim knew.

If criminal or administrative action is timely initiated for the facts foreseen in the previous paragraph, the prescription of the civil action shall be counted from the moment when the criminal judgment or the administrative resolution became firm, as the case may be.

For the recognition of the civil claim, in no case is the intervention of the criminal jurisdiction essential.”

The Claimants disagree with this analysis. They say that a claim for civil damages for an alleged criminal act may be brought directly under Articles 128 and 129 PC (without regard to Article 1644 CC) by operation of Article 977 CC which provides that :-

“Civil obligations arising from crimes or offences shall be governed by the provisions of the Penal Code.”

The Claimants say that the applicable limitation period for a claim under Articles 128 and 129 PC is seven years by operation of Article 1701 CC which provides that:-

“Actions in personam for which there is no special limitation period shall prescribe in seven years.”

This is where the Rome II procedural carve-out becomes relevant, and I will limit the discussion here to the Rome element: [71]

Before which court in Panama any claim could be asserted is a matter of procedure (whether considered under Rome II or the common law). According to Dicey, Morris & Collins on the Conflict of Laws (16th ed., at [4-074]), this includes the question whether a civil action can be brought in respect of alleged criminal acts before criminal proceedings have been taken. Since the English court is only concerned with the relevant foreign law as it applies to matters of substance, the Claimants are entitled to rely on the limitation period which remains available under Article 116 PC even if criminal proceedings have not begun and may not yet eventuate.

[72 [Defendants] say that there is a world of difference between the English court ignoring as a bar to recovery a procedural requirement for criminal proceedings prior to the commencement of a civil action (a proposition from which they do not demur) and the broader proposition (from which they do) that, where multiple potential routes for bringing civil damages claims are available locally, it matters not which particular procedural route the claimant has, in fact, adopted. The Claimants have brought a claim where there has been no criminal conviction as they were entitled to do so under Panamanian law. Having done so, the limitation period is one year. No question of having or failing to comply with local procedural requirements arises.

[73]

I understand the logic of the Claimants’ position that, being a matter of procedure, it is irrelevant which particular course the Claimants may, in fact, have pursued in this case. However, it seems to me that the distinction between the position indicated in Dicey, where the need for a criminal conviction is a bar to the commencement of a civil action, and the position here, where multiple routes are potentially available, may, in fact, be more meaningful than the Claimants suggest. I am therefore unable to say, without more direct authority on the point at least, that the [defendants’] limitation defence falls short of the reasonably arguable threshold on this account.

yet on the point of the actual damages sought, and other elements of the claim, the defence does fall short and the eventual conclusion is that the limitation defence fails. The judgment is a bit dense to read on the factual elements of the various claims however its overall emphasis on procedure v lex causae is really quite relevant.

The judgement subsequently discusses the jurisdictional issues with given the amendment of the claims, a shift from the alternative Monegask forum before Trower J, to [107]Panama or Florida now the suggested alternative fora to England.

[108] The jurisdictional issues arising on these amendment applications are whether:-

(i) despite the UK’s withdrawal from the EU, the Brussels Recast (including Article 8(1)) applies to the proposed new claims against the Kazakovs and Mr Anufriev;

(ii) in relation to the Claimants’ proposed new claims subject to the common law regime, England, Panama or Florida is clearly and distinctly the appropriate forum;

(iii) the Claimants’ proposed new claims against the ‘anchor defendant’, Leo Holding, are artificial and abusive such that the amendment applications fail for lack of jurisdiction, whether through their inability to invoke Article 8(1) of the Brussels Recast or the relevant jurisdictional gateway at common law;

(iv) Gatiabe is a ‘necessary or proper’ party with respect to the proposed new claims concerning the ownership of that company; and

(v) if the EU jurisdictional regime does apply to the Kazakovs, whether a stay should be granted under Articles 33 and 34 of the Brussels Recast of any new claims the Claimants might be permitted to advance.

(i) Application of Brussels Ia at all following the UK-EU Withdrawal Agreement: “legal proceedings instituted before the end of the transition period”

Article 67.1(a) WA provides that “in respect of legal proceedings instituted before the end of the transition period and in respect of proceedings or actions related to such legal proceedings pursuant to Articles 29, 30 and 31 of [the Brussels Recast]”, the provisions of the Brussels Recast shall continue to apply. Are permitted amendments caught by ‘proceedings instituted’? [116-117] the judge, referring to Simon v Taché, that Article 67 WA preserves the applicability of Brussels Recast to “proceedings” and not to particular claims or, here, unamended claims in proceedings.

(ii) and (iii) Abuse of the anchor defendant mechanism

The judge [128] sees no reason under BIa to conclude that claimants’ claims against Leo Holding are artificial, abusive or do not reflect a genuine intention to sue the ‘anchor defendant’, and repeats that [134] conclusion under the obiter English gateway.

(iv) a lengthy and largely obiter forum non conveniens discussion ends [212] with both Florida and Panama being rejected  as a more appropriate forum, and (v) [213] the A33-34 stay was not discussed at hearing but, it seems, may be revived at a later stage (which would be highly relevant) and therefore [223] has been deferred.

Quite the judgment.

Geert.

Various EU law jurisdictional issues
Incl application of Brussels A ratione temporis given WA; abuse of anchor defendant mechanism; application of A33-34 'forum non light'
More on the blog soon

Bourlakova & Ors v Bourlakov & Ors [2023] EWHC 2233 (Ch)https://t.co/ixIzSCt20c

— Geert Van Calster (@GAVClaw) September 11, 2023

Vegesentials Ltd & Anor v Shanghai Commercial & Savings Bank Ltd [2024] EWHC 7 (Ch) is a judgment, as Matthew Hoyle also notes, without reference to authority, and it surprisingly succinctly deals with the applicable law issue for misrepresentation under the Rome II Regulation (readers will be aware that Rome II is what used to be called retained EU law and is now ‘assimilated’ law).

Claimants seek damages from the defendant bank for fraudulent misrepresentations set out in a letter signed and stamped by the bank’s former corporate banking relationship manager of the Chung-Li Branch in Taiwan, to the effect that potential investors had free funds to invest £20 million in a new product, ‘FibreWater’ (chicory inulin, with testified health effects; FibreWater does not need to be chilled, and has a longer shelf life, and higher margins, than fruit and vegetable drinks) which the first claimant was developing. The second claimant was incorporated for the purpose of this claim, and was assigned the first claimant’s rights in the product. Claimant also entered into a sponsorship agreement with the tennis player Sir Andy Murray for him to sponsor FibreWater.

It is now conceded by the defendants that those investors, companies incorporated in Hong Kong and Anguilla respectively, had no such funds and that the manager made the fraudulent misrepresentations knowing them to be false and intending that it should be relied upon by the claimant. No funds were forthcoming, and FibreWater did not proceed. The claimant says that had the misrepresentations not been made, it would have continued to engage with alternative investors, and there was a real chance that investment would have been secured so as to allow the product to be successfully produced, marketed and sold and to become profit making.

Fraudulent misrepresentations are conceded, liability is not. The bank raises issues as to the applicable law, whether the claimant in fact relied on the misrepresentation, whether the bank is vicariously liable, as to causation and as to quantum.

Article 4 Rome II reads

“1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur.

2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”

Claimant submits that the damage it claims to have suffered occurred in E&W because the share purchase agreement was governed by the law of England and Wales and provided for the payment of monies into the claimant’s bank account with Barclays in E&W. Any monies paid by the investors would also have been paid into that account. The claimant is incorporated in E&W and conducted most of its business there. Most of the lost profits claimed arise from the supply to UK retailers. Finally the sponsorship agreement with Sir Andy Murray is governed by English law.

Claimant also submits that the default rule is not displaced by A4(3), because the fraud relied on is not “manifestly more closely connected” with Taiwan. The claimant had no pre-existing relationship with the bank.

The bank submits that the fraud was part of a larger scheme and was planned, orchestrated, and implemented in Taiwan, and there are indications of such a larger scheme in the subsequent criminal proceedings against the manager. Jarman J [32] dismisses the relevance of this, pointing out that “it is not clear precisely who was involved in planning the scheme or where they were located at the time. All that is clear is that [the manager’s] involvement was at a time when he was based in Taiwan.” The bank further submits that the core misrepresentative Letter was concerned with a bank account in Taiwan. The judge again dismisses this, saying [32] “However, the ultimate purpose of [the letter] was to confirm the ability of the investors, incorporated elsewhere, to transfer monies in Pounds and Euros for a shareholding in a company incorporated here to develop business in the UK and Europe.”

[33] the conclusion on applicable law is

In my judgment, the claimant’s submissions on this point are to be preferred. Under Article 4(1) the damage relied upon occurred in this jurisdiction. Although some of the facts relied upon arose in Taiwan, as indicated above, it is not the case that the fraud was manifestly more closely connected with Taiwan within the meaning of Article 4(3). Accordingly the applicable law is that of England and Wales.

Most cases concerning fraudulent misrepresentation concern subsequent acting upon the fraud: see eg Abu Dhabi Commercial Bank Pjsc v Shetty & Ors: In the case of a misrepresentation or fraud, the locus damni is held to be the place where that misrepresentation is acted upon; or Avonwick Holdings: not so much for the (poor) A4(1) analysis in that judgment but rather the A4(3) displacement, and to some degree the potential for the lex contractus (of the contract said to have been missed) to play a role.

I feel there is more to be said about both the A4(1) and 4(3) application than succinctly touched upon in the judgment, in cases where the misrepresentation leads to missed opportunities, rather than to regretted action.

Geert.

EU Private International Law, 4th ed, 2024, 2.443.

Ia applicable law in a claim of fraudulent misrepresentation
Article 4 Rome II

Vegesentials Ltd & Anor v Shanghai Commercial & Savings Bank Ltd [2024] EWHC 7 (Ch)https://t.co/VNEe3qGd95

— Geert Van Calster (@GAVClaw) January 8, 2024

On 14 December 2023, AG Emiliou delivered his opinion in case C‑90/22 (‘Gjensidige’ ADB), which is about Brussels I bis, more precisely Articles 71 and 45, and the Convention on the Contract for the International Carriage of Goods by Road (CMR).

The context: A “dispute arose following a theft of cargo during its transportation from the Netherlands to Lithuania. The insurer concerned claimed compensation from the carrier and it did so in Lithuania, relying on a choice-of-court agreement contained in the contract of carriage.

5. However, at that point in time, the carrier had already initiated judicial proceedings in the Netherlands, with the aim of establishing that its liability in this particular context was limited. Before granting that claim, the Netherlands court affirmed its jurisdiction by applying one of the jurisdictional rules contained in the Convention on the Contract for the International Carriage of Goods by Road (‘the CMR’), despite the choice-of-court agreement referred to above, which, from the point of view of that court, could not exclude the other (alternative) grounds of jurisdiction set out in the CMR.

6. Following recognition by the Lithuanian courts of that judgment, [Gjensidige, an insurance company that had insured the consignment and made an insurance payment] filed an appeal in cassation before the Lietuvos Aukščiausiasis Teismas (Supreme Court of Lithuania, Lithuania), the referring court. It argues that recognition of the judgment of the Netherlands court is at odds with Regulation No 1215/2012, as that regulation establishes, in principle, the exclusivity of the jurisdiction resulting from a choice-of-court agreement.

7. In those circumstances, the referring court wonders, first, which rules of jurisdiction apply. It notes that Regulation No 1215/2012 confers primacy of application to rules laid down in a specialised international convention, such as the CMR. Nevertheless, it doubts whether such precedence may permit a choice-of-court agreement to be disregarded, in view of the enhanced protection accorded to those agreements by Regulation No 1215/2012. Second, it seeks clarification on whether this increased protection must result in the recognition of the judgment of the Netherlands court being refused. Although Regulation No 1215/2012 does not expressly allow for such an approach, the referring court enquires whether broader interpretation thereof is called for so as to safeguard, in essence, the intentions of the parties, as documented in the choice-of-court agreement at issue”.

The opinion: “Article 45(1)(a) and (e)(ii) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that the grounds for the refusal of recognition set out therein do not apply to a situation in which the court of origin established its jurisdiction on the basis of one of several rules contained in a specialised convention, within the meaning of Article 71 of Regulation No 1215/2012, which include – but do not classify as exclusive – a choice-of-court agreement, and when the court of origin was not the court designated by the choice-of-court agreement concluded by the parties concerned.

Moreover, Article 45(1)(a) of Regulation No 1215/2012 must be interpreted as meaning that an error, when established, as to the determination of the applicable law cannot, per se, lead to the recognition of a judgment being refused on the ground that it is contrary to the public policy of the State addressed”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=280634&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=10873860