Flux européens

Forum non conveniens featured not just in Municipio de Mariana at the High Court yesterday but also in Qatar Airways Group QCSC v Middle East News FZ LLC & Ors [2020] EWHC 2975 (QB).

Twenty Essex have good summary of the background and decision. Context is of course the blockade on Qatar, led by Saudi Arabia and the UAE. Qatar Airways Group (QAG) sue on the basis of tort, triggered by a rather chilling clip aired by Al Arabiya which amounted to a veiled threat against the airline.

Saini J at 27 notes what Turner J also noted in Municipio de Mariana and what Briggs LJ looked at in horror in Vedanta, namely the spiralling volume and consequential costs in bringing and defending a jurisdictional challenge. (Although at least for Vedanta and Municipio de Mariana the issues discussed are matters of principle, which may eventually settle once SC (and indeed CJEU) authority is clear).

The judgment recalls some principles of international aviation law under the Chicago Convention (with noted and utterly justifiable reference a 77 ff to an article on the opiniojuris blog by prof Heller) which is important here because (at 61) it is the starting point of QAG’s case that anyone who had taken steps to inform themselves of the legal position would have known that contrary to what (it argues) is the message of the Video, there was no real risk of any internationally legitimate interception, still less legitimate shooting at or down, of a QAG scheduled service in flight along one of the defined air corridors. At 88 Saini J concludes on that issue that there is an arguable case as to meaning and falsity.

On good arguable case, reference is to Kaefer v AMS, Goldman Sachs v Novo Banco, and Brownlie.

At 164 ff the judge discusses the issue of pleading foreign law at the jurisdictional threshold of making a good arguable case. Here, Saini J holds on the basis of the assumption that malicious falsehood is not covered by Rome II, which is the higher threshold for the purposes of establishing jurisdiction. He does suggest that it is likely that in fact malicious falsehood is covered by Rome II and not by the exception for infringement of personality rights (at 166: ‘Malicious falsehood is not a claim for defamation, and what is sought to be protected is not Qatar Airways’ reputation or privacy rights, but its economic interests’).

As for applicable law for conspiracy, that is clearly within the scope of Rome II and poses the difficulty of determining locus damni in a case of purely economic loss. Here, at 169 Saini J suggests preliminarily that parties agreed “damage” for the purposes of Article 4(1) of Rome II to have been suffered in the place where the third parties (that is, potential passengers) failed to enter into contracts with QAG (which they otherwise would have done) as a result of the video. Location of purely economic damage under Rome II as indeed it is under Brussel Ia is however not settled and I doubt it is as simple as locating it in the place of putative (passenger) contract formation.

Of long-term impact is the judge’s finding that for jurisdictional threshold purposes, he is content for claimant to proceed with a worldwide claim for tort on the basis of any foreign law that might be applicable having the same content as English law. 

Of note in the forum non analysis is that not just the obvious alternative of the UAE was not good forum, but neither would the DIFC be. At 374:’the UAE is not an appropriate forum is what I would broadly call “access to justice” considerations in what has clearly become a “hostile environment” for Qataris in the UAE.’ And at 379, re the DIFC: ‘The DIFC courts are a sort of “litigation island” within the UAE, created to attract legal business by their perceived superior neutrality, and higher quality, compared to the local courts. But as such, they have no superiority compared to the English courts, also a neutral forum. The English courts have the other connections to the case, which the DIFC courts do not.’

Geert.

 

 

409 paras of jurisdictional challenge based on serious issue to be tried and forum non conveniens.
Dismissed (with summary judgment re one of the defendants).
Discussion of international aviation law (with reference to article on @opiniojuris). https://t.co/Qz2GpqgLoF

— Geert Van Calster (@GAVClaw) November 9, 2020

I am instructed for claimants in the case hence my post here is a succinct report, not a review and it must not be read as anything else.

Turner J yesterday struck out (not just: stayed) the case against the companies jointly operating the facilities that led to the 2015 Brazilian dam break and consequential human and environmental loss in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). I reported on the case before here.

Eyre J’s earlier Order had identified the threefold jurisdictional challenge: 1. Forum non conveniens for non-EU defendants; 2. Article 34 Brussels IA for the EU-based defendants; 3. Abuse of process, case management for both.

In his judgment Turner J makes abuse of process the core of the case, hinging his subsequent obiter analysis of forum non and of Article 34 on his views viz abuse. At the centre of his abuse analysis is his interpretation of AB v John Wyeth & Brother (No.4), also known as the benzodiazepine litigation, with the points he takes from that judgment (even after the subsequent CPR rules wre issued) summarized at 76.

At 80 ff is a discussion (see e.g. my earlier review of Donaldson DJ in Zavarco) on the use of case-management powers, including abuse, against EU-domiciled defendants post CJEU Owusu (the ‘back-door analogy per Lewison J in Skype technologies SA v Joltid Ltd [2009] EWHC 2783 (Ch) ).

At 99 ff Turner J pays a lot of attention to the impact of accepting jurisdiction on the working of the courts in England, discusses some of the practicalities including language issues, and decides at 141 in an extract which has already caught the attention of others, that ‘In particular, the claimants’ tactical decision to progress closely related damages claims in the Brazilian and English jurisdictions simultaneously is an initiative the consequences of which, if unchecked, would foist upon the English courts the largest white elephant in the history of group actions.’

At 146 ff follow the obiter considerations of the remaining grounds, Article 34 Recast, forum non conveniens and case management stay. On Article 34 viz BHP Plc, the issue of ‘relatedness’ is discussed with reference of course to Euroeco and the tension between that case and Privatbank, as I flag ia here, holding at 199 in favour of Privatbank as the leading authority (hence focus on desirability of hearing cases together rather than on practical possibility). On relatedness, Turner J does not follow the approach of either Zavarco or Jalla, both of course first instance decisions.

At 206 Turner J takes the instructions of recital 24 Brussels Ia’s ‘all circumstances of the case’ to mean including circumstances which would ordinarily be part of a forum non consideration, despite Owusu, and at 231 Jalla is distinguished (at least practically; Jalla is not authority for the judge here) and i.a. at 221 Turner J lists his reasons for allowing an Article 34 stay (again: these are obiter views). As already noted, these echo his findings on abuse of process.

The forum non conveniens analysis viz BHP Ltd at 235 ff, applying Spiliada, delivers inter alia on an inherent implication of Lord Briggs’ suggestions in Vedanta: that a commitment of defendants voluntarily to submit to the foreign alternative jurisdiction, hands them the key to unlock forum non. At 241: ‘In this case, both defendants have offered to submit themselves to the jurisdiction of Brazil. Thus the force of any suggestion that there may be a risk of irreconcilable judgements against each defendant is attenuated.’

Conclusions, at 265:

(i) I strike out the claims against both defendants as an abuse of the process of the court;

(ii) If my finding of abuse were correct but my decision to strike out were wrong, then I would stay the claims leaving open the possibility of the claimants, or some of them, seeking to lift the stay in future but without pre-determining the timing of any such application or the circumstances in which such an application would be liable to succeed;

(iii) If my finding of abuse were wrong, then I would, in any event, stay the claim against BHP Plc by the application of Article 34 of the Recast Regulation;

(iv) If my finding of abuse were wrong, then I would, in any event, stay the claims against BHP Ltd on the grounds of forum non conveniens regardless of whether the BHP reliance on Article 34 of the Recast Regulation had been successful or not;

(v) If my findings on the abuse of process point were wrong, then a free-standing decision to impose a stay on case management grounds would probably be unsustainable.

Appeal is of course being considered.

Geert.

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

3rd ed. forthcoming February 2021.

Jurisdiction denied in core #bizhumanrights case on the basis of abuse of process, Article 34 Brussels Ia and /or forum non conveniens.
For background to the case see https://t.co/CzkMFH98yH https://t.co/h9AjvJ6JIR

— Geert Van Calster (@GAVClaw) November 9, 2020

Commission / Italie (Valeurs limites - PM10)
Environnement et consommateurs
L’Italie a enfreint le droit de l’Union sur la qualité de l’air ambiant

Thank you Angus Macinnis for flagging RCD Holdings Ltd & Anor v LT Game International (Australia) Ltd [2020] QSC 318 in which  Davis J upheld choice of court in favour of the courts at Macau and held against a stay. The judgment is a good one for comparative purposes.

Claimants, ePayment Solutions Pty Ltd (EPS) and RCD Holdings Ltd (RCD), in their contract with the defendant, LT Game International (Australia) Ltd (LT) (a BVI domiciled company), agreed that any dispute between them would be litigated in Macau. However, when a dispute did arise they commenced proceedings in Queensland. LT entered a conditional appearance and now applies to strike out the claim, or alternatively, to have it stayed as being commenced in this court contrary to the contract.

Article 10 of the contract carries the title Governing law but actually is a choice of court clause – an oddity one sees more often than one might expect in B2B contracts: ‘Any dispute or issue arising hereunder, including any alleged breach by any party, shall be heard, determined and resolved by an action commenced in Macau. The English language will be used in all documents.”

Comparative insight includes the issue of whether A10 us a non-exclusive (an agreement not to object when proceedings are brought in the court designated) or exclusive (an agreement only to bring proceedings in the court designated) choice of court. Davis J settled for exclusive which would also seem to have been the position of both parties, despite some ambiguity at the start of proceedings.

Lex contractus is disputed, and at 27 Davis J settles for Macanese law, based upon factual construct of the contractual intention of the parties. Clearly that choice of court was made for Macau was an important factor – as it is in Rome I for consideration of so-called ‘implied’ choice of law in the event of choice of court made.

A stay on the basis of Covid19 impracticability (ia because of alleged difficulties for witness testimony) is dismissed, ia (at 34) because it is uncertain whether current travel restrictions will still be in place when the case in Macau might be heard. Davis j does suggest that a renewed application for a stay must not be ruled out in light of Covid19 developments, however will be seen against abuse of process: in other words claimants had best not do so lightly.

Geert.

RCD Holdings & Aor v LT Game [2020] QSC 318

Davis J noting that claimants can re-apply, should #Covid19 unduly frustrate proceedings in Macau https://t.co/00DH1VQf9j

— Geert Van Calster (@GAVClaw) November 3, 2020

The European Parliament released today a study on “40 years of the Hague Convention on child abduction – legal and societal changes in the rights of a child” and another one on “The Child Perspective in the Context of the 1980 Hague Convention”.

They are attached to this post.

40-years-of-the-hague-convention-on-child-abduction-legal-and-societal-changes-in-the-rights-of-a-childDownload the-child-perspective-in-the-context-of-the-1980-hague-conventionDownload

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (3 Novemberr 2020) a decision (RG 19/17529) on the law applicable to insurance with questions involving lois d’application immediate and ordre public.

Summary: “The ICCP-CA, which was seized on referral after a proceeding before the French Cour de cassation, held that the dispute concerning the conditions of the guarantee applicable under an insurance contract concluded between an insurance company and a company both governed by Polish law should be subject to Polish law, pursuant to the general rules of private international law on contractual obligations applicable in this case (§§ 51 to 60). The court dismissed the claim to set aside this law in favor of French law, on the basis of both French mandatory provisions (§ 44 to 48) and French international public policy (§ 61 to 68)”.

The decision is attached to this post.

3-novembre-2020-ccip-ca-rg-1917529Download

Banco San Juan Internacional Inc v Petroleos De Venezuela SA [2020] EWHC 2937 (Comm) is a lengthy judgment which I report here for its discussion of Rome I Article 9’s provisions on overriding mandatory laws /lois de police. The discussion is similar to the consideration of A9 in Lamesa Investments, to which reference is made.

The Claims comprise two substantial claims in debt by claimant BSJI, a bank incorporated in Puerto Rico, against defendant PDVSA, the Venezuelan state-owned oil and gas company.  PDVSA arue inter alia that payment obligations fall to be performed in the US and contends that US sanctions ought to be regarded as part of the order public (sic) of US law. It is said these are a central component of US foreign policy and its political and economic aims as regards Venezuela. It is argued that the terms of the Executive Orders themselves make clear that they are reactions to perceived political and human rights injustices in Venezuela and describe this as “an unusual and extraordinary threat to the national security and foreign policy of the United States“.

However Article 9(3) Rome I comes with a sizeable amount of discretion: ‘Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.’

At 118 Cockerill J decides not to use the discretion for the same reason she had earlier dismissed application of the Ralli Bros principle. That rule was recently discussed in Colt v SGG. (As summarised here by Mrs Justice Cockerill at 77) it ‘provides that an obligation under an English law contract is invalid and unenforceable, or suspended in the case of a payment obligation, insofar as the contract requires performance in a place where it is unlawful under the law of that required place of performance.’ And at 79: ‘The doctrine therefore offers a narrow gateway: the performance of the contract must necessarily involve the performance of an act illegal at the place of performance. Subject to the Foster v Driscoll principle [also discussed in Colt and of no relevance here, GAVC], it is no use if the contract could be performed some other way which is legal; and it is no use if the illegal act has to be performed somewhere else’ and at 84 ‘it is only illegality at the place of performance which is apt to provide an excuse under the Ralli Bros doctrine; it also makes clear that the party relying on the doctrine will in general not be excused if he could have done something to bring about valid performance and failed to do so.’ 

The lex contractus is English law which already has the Ralli Bros rule. At 120 Cockerill J suggest that if the court in question has no equivalent rule of law, Article 9(3) will have a significant impact. But not if the lex contractus is English law.

I have to give this some further thought and I am not sure it would make much difference in practice but could it not be said that A9(3) Rome I exhaustively regulates the use of overriding mandatory law to frustrate a contract? This would mean that where Rome I applies, Ralli Bros and even Foster v Driscoll must not apply and must not be entertained. That is a question of some relevance, even after Brexit albeit with a complication: for to the extent (see discussions elsewhere) the Rome Convention re-applies to the UK post Brexit, that Convention’s Article 7 rule on mandatory rules ordinarly applies – albeit the UK have entered a reservation viz A7(1) on which see also here. That article gives  a lot of freedom for the forum to apply mandatory laws of many more States than the lex loci solutionis [Article 7(1) Rome Convention: ‘ When applying under this Convention the law of a country, effect may be given to the mandatory rules of the law of another country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must be applied whatever the law applicable to the contract. In considering whether to give effect to these mandatory rules, regard shall be had to their nature and purpose and to the consequences of their application or non-application’].

At the very least an exhaustive role for A9 Rome I (and again in future for UK courts, potentially A7 Rome Convention; but see the note on reservation) would require from the judge a different engagement of the issues than under Ralli Bros. Again, whether indeed, and per Cockerill J’s suggestion here (she applies both Ralli Bros and A9)  in the case of England that would make much difference in outcome is uncertain. Update 6 November 10:20 AM: see prof Dickinson’s impromptu contribution to the issue here.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8, Heading 3.2.8.3.

3rd ed. forthcoming February 2021.

On 26 October 2020, Saint Kitts and Nevis acceded to the HCCH Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, which will enter into force for Saint Kitts and Nevis on 1 February 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=765

“The collective defence of consumers’ rights has come a step closer. Following the agreement reached with the European Parliament in June 2020, the Council today adopted its position at first reading on a draft directive on representative actions for the protection of the collective interests of consumers within the EU.

The directive requires member states to put in place a system of representative actions for the protection of consumers’ collective interests against infringements of Union law. It covers actions for both injunctions and redress measures.

It empowers qualified entities designated as such by member states to seek injunctions and/or redress, including compensation or replacement, on behalf of a group of consumers that has been harmed by a trader who has allegedly infringed one of the EU legal acts set out in the annex to the directive. These legal acts cover areas such as financial services, travel and tourism, energy, health, telecommunications and data protection.

The directive distinguishes between qualified entities entitled to bring actions in the member state where they have been designated (domestic representative actions) and those entitled to bring actions in any other member state (cross-border representative actions). For domestic actions a qualified entity will have to fulfil the criteria set out in the law of its member state of designation, whereas for cross-border actions it will have to fulfil the harmonised criteria set out in the directive.

As a safeguard against abusive litigation, the directive provides clear rules on the allocation of judicial costs in a representative action for redress based on the ‘loser pays’ principle. Furthermore, with a view to avoiding conflicts of interest, it imposes on qualified entities a number of transparency requirements, in particular as regards their funding by third parties.

The directive will apply to representative actions brought on or after the date of its application”.

The text of the directive as of 21 October 2020 is attached to this post.

Source: https://www.consilium.europa.eu/en/press/press-releases/2020/11/04/collective-redress-for-consumers-council-adopts-position-at-first-reading/

collective-redress-21-october-2020Download

“The Council today adopted two recast regulations, one on the taking of evidence and a second on the service of documents, to modernise cross-border exchanges between authorities through digitalisation. After reaching a political agreement with the European Parliament in June 2020, the text will now be submitted to the Parliament for its final adoption.

[…] Changes in both regulations include the mandatory use of a decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states.

Regarding the service of documents, under the new rules documents can be served electronically and directly to an addressee with a known address in another member state, when their express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert located in another member state”.

The text of the adopted Evidence and Service Regulations are attached to this post.

evidence-regulation-22-october-2020Download service-regulation-22-october-2020Download

Source: https://www.consilium.europa.eu/en/press/press-releases/2020/11/04/digital-europe-council-adopts-new-rules-to-modernise-judicial-cooperation-in-taking-of-evidence-and-service-of-documents/?utm_source=dsms-auto&utm_medium=email&utm_campaign=Digital+Europe%3a+Council+adopts+new+rules+to+modernise+judicial+cooperation+in+taking+of+evidence+and+service+of+documents

I discussed the first instance judgment in Enka Insaat here and the Court of Appeal’s findings here. The Supreme Court’s judgment, Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38 attempts to settle one of the many issues which choice of law in arbitration provokes, as I first flagged in a post on Sulamerica here: one needs to determine lex arbitri (the law that governs the arbitration agreement; it decides issues such as what issues are arbitrable, and whether the agreement to arbitrate is valid at all); the curial law or the ‘law of the seat’ (the procedural law which will guide the arbitration proceedings; despite the latin curia not commonly referred to as lex curiae); the ‘proper law’, the law that governs the actual contract (lex contractus) of which the agreement to arbitrate is only one part; and the locus arbitri and the lex locus arbitri:  the venue of the arbitration and its laws, which may or may not interact with the proceedings. That 2013 post on Sulamerica contains many further references, including comparative ones. Further case-law may be found by using the search tag ‘Sulamerica’ on the blog.

The Supreme Court held 3-2 in favour of dismissing the appeal, but only on the facts. Lord Burrows dissented in part, Sales dissented. The Supreme Court has now effectively held that unlike the Court of Appeal’s suggestion,  in the absence of express contractual provision there is no “strong presumption” of an implied term for the lex curiae, the law of the seat of the arbitration, to be  the lex arbitri (the law that governs the arbitration agreement), instead pushing the lex contractus (of the agreement of which the arbitration agreement is part) as the lex arbitri.

There has been plenty of analysis since the 9 October judgment and I shall let readers find that for themselves (Google search ‘proper law arbitration Enka v Chubb’ should do the trick). Ex multi I found Peter Ashford’s analysis very useful, including his use of the term ‘host contract’.

As the discussion here shows, with 2 strong dissenters and open discussions on the determination of implied choice of law, I do not think judgment in Enka v Chubb has truly settled the issue. Per inspiratio Steven Barrett’s quote, this might be one of those authorities one can drive a coach and horses through.

Geert.

The UKSC dismisses the appeal in Enka, #arbitration, choice of law https://t.co/1xFtH8Iv9W
Holds there is no such thing as "strong presumption" of an implied term.
3-2 in favour of dismissing. Burrows dissents in part, Sales dissents.
For CA judgment see https://t.co/jkma6VzDRq

— Geert Van Calster (@GAVClaw) October 9, 2020

AG  Saugmandsgaard Øe delivered yesterday (29 October 2020) his opinion in case C‑804/19 (BU v Markt24 GmbH), which is about Brussels I bis and employment contracts in an interesting scenario where no effective work has been carried out. The opinion is currently available in all EU official languages only (save Irish). It is not available in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« 1) Une action en paiement de la rémunération convenue dans un contrat de travail, intentée par un travailleur domicilié dans un État membre contre un employeur domicilié dans un autre État membre, relève du règlement (UE) no 1215/2012 […] et, plus spécifiquement, de la section 5 de son chapitre II, et ce même lorsqu’aucune prestation de travail n’a été accomplie, dans les faits, par ce travailleur en exécution du contrat litigieux.

2) Le règlement no 1215/2012 s’oppose à l’application de règles de compétence, prévues dans le droit national de la juridiction saisie, qui permettent au travailleur de saisir le tribunal dans le ressort duquel il a son domicile ou sa résidence habituelle pendant la durée de la relation de travail, ou de saisir le tribunal dans le ressort duquel la rémunération est due.

3) Lorsqu’un travailleur et un employeur ont conclu un contrat de travail et que, pour une raison quelconque, aucune prestation de travail n’a été accomplie, dans les faits, par ce travailleur en exécution du contrat, le « lieu où ou à partir duquel le travailleur accomplit habituellement son travail », au sens de l’article 21, paragraphe 1, sous b), i), du règlement no 1215/2012, correspond, en principe, au lieu de travail convenu dans ledit contrat ».

Source : http://curia.europa.eu/juris/document/document.jsf?docid=233041&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=FR&cid=10869171

On 29 October 2020, Costa Rica acceded to the HCCH Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, which will enter into force for Costa Rica on 1 August 2021.

Source: https://www.hcch.net/en/news-archive/details/?varevent=762

The Explanatory Report on the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has been officially published in both English and French. Please find attached to this post the English version.

explanatory-report-hague-judgments-conventionDownload

Source: https://www.hcch.net/en/news-archive/details/?varevent=761

The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (27 October 2020) a decision (RG 20/01368) on commercial agents.  

Summary:

“The ICCP -CA was seized by an appeal against a decision of the Paris Commercial Court, which ruled that a commercial agent was liable of a serious breach, excluding the termination indemnities provided for in Articles L.134-11 et seq. of the French Commercial Code.

The ICCP -CA overturned this decision, ruling that a serious breach makes it impossible to maintain the contractual relationship; and that cannot be qualified as serious a breach of which the principal was aware well before the termination of the contract and which it tolerated without blaming the agent or warning or advising of the risk that this breach might have on the continuation of the agency contract. 

The Court thus held that the breach allegedly committed by the commercial agent in 2007, relating to the allegedly faulty registration of the disputed trademark in China, discovered in 2013, and followed by a retrocession agreement in 2014, cannot be qualified as serious enough to deprive the termination notified on 22 September 2016 of any indemnity .

The Court also held that the grievances subsequently raised by the principal were admissible even if they were not included in the letter of termination as they predated the termination; but in the present case, their existence and seriousness were not established and did not amount to a general lack of loyalty”.

27-octobre-2020-ccip-ca-rg-2001368Download

Veselības ministrija
Sécurité sociale des travailleurs migrants
Le refus, par l’État membre d’affiliation d’un patient, d’accorder une autorisation préalable pour le remboursement des coûts de soins de santé transfrontaliers lorsqu’un traitement hospitalier efficace est disponible dans cet État mais que les croyances religieuses de l’affilié réprouvent le mode de traitement utilisé instaure une différence de traitement indirectement fondée sur la religion

Commission / Italie e.a.
Aide d'État
L’avocat général Tanchev recommande à la Cour de rejeter le pourvoi formé par la Commission contre l’arrêt du Tribunal relatif aux mesures adoptées par un consortium de banques italiennes pour soutenir l’un de ses membres

Bundesrepublik Deutschland (Détermination des taux des péages pour l'utilisation d'autoroutes)
Fiscalité
Les coûts liés à la police de la route ne peuvent pas être pris en compte pour le calcul des péages pour l’utilisation du réseau routier transeuropéen par les poids lourds

Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 concerns an appeal against service out of jurisdiction (the judgment appealed is [2020] EWHC 2072 (Ch)). Celgard allege that the importation and marketing by Senior of battery separator film involves the misuse of Celgard’s trade secrets.

Senior (of China) contend that the judge fell into error in concluding, first, that Celgard (incorporated in Delaware) had established a serious issue to be tried (here part of the jurisdictional threshold) assuming that English law applies to its claims and, secondly, that England is the proper forum to try the claims. As to the latter the core argument is that in limiting its claims to remedies in respect of acts in the UK, Celgard could not establish the requisite degree of connection to England. As for the former, they argue the law applicable to Celgard’s claims is Chinese law, which would count against jurisdiction.

Strategically, Celgard’s case against Senior is not based on breach of the NDA applicable between Celgard and one of its former employees,  Dr Zhang who, when he left Celgard, told its then COO that he was going to work for General Electric in California, which does not compete with Celgard in the field of battery separators. It later transpired that he had in fact joined Senior in China, where he was using the false name “Bin Wang”. This element of the facts triggers the question whether Senior is liable for the acts of another, even if that other is its employee.

The Celgard – Zhang NDA is governed by the law of South Carolina, application of which would also have triggered A4(3)(b) or (c) of the Trade Secrets Directive 2016/943. Celgard do rely on the NDA as supporting its case that the trade secrets were confidential. Rather Celgard claim that Senior’s employee acted in breach of an equitable obligation. This engages Rome II,  specifically Article 6(2) because Celgard’s claims are concerned with an act of unfair competition affecting exclusively the interests of a specific competitor, namely Celgard. In such circumstances, Article 6(2) provides that “Article 4 shall apply”.

Of note is that this is one of those cases that show that Rome II applies to more than just tortious obligations: as Arnold LJ notes at 51, as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort.

Celgard’s case, accepted by Trowe J at the High Court, is that A4(1) leads to English law because the ‘direct damage’ (per Rome II and CJEU Lazard indirect damage needs to be ignored) caused by the wrongdoing it complains of has occurred (and will, if not restrained, continue to occur) in the UK, that being the country into which the infringing goods (namely the shipment to the UK Customer and any future shipments of the same separator) have been (and will be) imported, causing damage to Celgard’s market here.

Senior’s case is that confidential information is intangible property and that damage to intangible property is located at the time and place it became irreversible (support is sought in extracts from Andrew Dickinson’s Rome II volume with OUP). At 58 ff Arnold LJ gives 7 reasons for rejecting the position. I will not repeat them all here. Of note is not just the (most justifiable) heavy leaning on the travaux but also the support sought in secondary EU law different from private international law (such as the Trade Secrets Directive 2016/943) as well as in the consistency between Brussels Ia and the Rome Regulations [on which Szpunar AG has written excellently in Burkhard Hess and Koen Lenaerts (eds.), The 50th Anniversary of the European Law of Civil Procedure]. This is not an easy proposition however given the lack of detail in Rome I and the need for autonomous EU interpretation, understandable.

The Trade Secrets Directive is further discussed at 65 ff for in A4(5) it makes importation of infringing goods an unlawful use of a trade secret “where the person carrying out such activities knew, or ought, under the circumstances, to have known that the trade secret was used unlawfully within the meaning of paragraph 3”. One of the possibilities embraced by paragraph 3 is (a), the person “having acquired the trade secret unlawfully”. Arnold LJ then asks: what law is to be applied to determine whether it was acquired “unlawfully”? Is A4(5) read together with A4(3)(a) an implicit choice of law rule pointing to the law of the place where the trade secret was acquired? Arnold LJ suggests this is not acte clair and may need CJEU clarification however not at this stage for his provisional view (with an eye on the jurisdictional threshold test) is that the Directive is not an implicit choice of law rule and that per Rome II, English law applies.

Plenty applicable law issues to discuss at the merits stage.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.6.2. Third ed. forthcoming February 2021.

 

 

Service out of jurisdiction with core role for applicable law considerations: Article 6 junto 4 Rome II, unfair competition. https://t.co/BUUjFlzY9P

— Geert Van Calster (@GAVClaw) October 9, 2020

This CEPEJ report, published on 22nd October 2020, contains data on the functioning of the judicial systems of 45 European States and 3 Observer States (Morocco, Israel and Kazakhstan). The findings are the following:

“Budget

– In 2018, European States spent on average more than 1 billion Euros for their judicial systems, equal to 72 € per inhabitant (8 € more than in 2016) and 0,33% of GDP. On average, member States allocated 65% of judicial system budget to courts, 24% to prosecution services and 11% to legal aid. Switzerland and Monaco are the countries that spend the most significant amount per inhabitant (220 € and 197 €), while Montenegro and Bosnia and Herzegovina dedicate to judicial system the highest percentage of their GDP (0.88% and 0.72%).

– Countries with a higher GDP per capita invest more per inhabitant in judicial systems, while less wealthy countries allocate more budget as a percentage of GDP, showing a greater budgetary effort for their judicial systems.

– Between 2010 and 2018, the member States and entities have slightly increased the average budget allocated to the judicial system. In 2018, all States and entities have increased the budget allocated to their judicial systems (+8%). The most significant increase (between 2016 and 2018), equal to 13% on average, has been recorded for courts’ budget and it concerns, in particular, investments in new buildings and computerisation.

– Less wealthy countries invest proportionally more on prosecution services (32% on average), while States and entities with higher GDP per capita spend relatively more in legal aid (19% on average).

– The budget allocated to courts seems to be related not only to the wealth of the country, but also to the number of courts. This may seem logical given that 65% of the court budget is spent on salaries.

– In order to rationalise budgetary resources of courts and, at the same time, reinforce specialisation and expertise, an increasing trend to outsource certain services is confirmed.

– Generally speaking, all the countries have implemented a legal aid system in criminal and other than criminal matters (representation by a lawyer before the court or legal advice), in compliance with the requirements of the European Convention on Human Rights and the case-law of the European Court which advocates an appropriate legal aid system to ensure access to justice for everyone.

– Some countries tend to have a low cost per legal aid case and a high number of cases granted legal aid, while others choose to provide a higher amount for a smaller number of cases.

Professionals

– While the number of professional judges remains globally stable, 21 judges per 100 000 inhabitants on average, significant differences are still noticed between States and entities (from 3.1 in UK-England and Wales to 101.8 in Monaco per 100 000 inhabitants). The latter can be partly explained by the diversity of judicial organisations, use of occasional professional judges and/or lay judges. Variations over the years have not led towards harmonisation.

– The number of prosecutors is tending to increase, on average 12 prosecutors per 100 000 inhabitants (in 2018, the number varies from 2.2 in Ireland to 25.1 in Ukraine).

– 31 Member States of 47 declared that public prosecutors are statutorily independent.

– While the number of prosecutors increased, their workload decreased since 2010 from 4.2 to 3.1 cases per 100 inhabitants.

– The trend towards the feminisation of judges and prosecutors is confirmed but the glass ceiling remains a reality: in 2018, at the level of all instances, there was 46% of men and 54% of women judges but 66 % male court presidents as opposed to 34 % of female court presidents; for the prosecutors : 48% of men and 52% of women but 64% of male and 36 % of female head of public prosecution offices. More and more States and entities seem to be focusing on the topic of specific provisions in favour of

– gender parity in the procedures for the recruitment and promotion of judges and prosecutors. Taking measures to promote gender balance in the higher and highest justice functions should be encouraged.

– The ratio between non-judge staff and professional judges is about 4 in 2018, this figure being quite stable through the years, the minimum being 1 in Luxembourg and the maximum 10 in UK – Northern Ireland.16 European States set up Rechtspfleger.

–  Salaries of judges vary widely between States and entities, but also between instances. The changes in salaries in recent years are not uniform and do not lead to harmonisation. The ratio between salaries of judges and national average salary shows significant disparities in Europe: from 0.9/1.6 in Germany (at the beginning /the end of career) to 4.8/31.5 in Ukraine (at the beginning /the end of career).

– Meaningful disparities also persisted in the salaries of prosecutors. The ratio between salaries of prosecutors and national average salary shows significant disparities in Europe: from 0.8 in Ireland and 4.0 in Romania (at the beginning of the career); 1.6 in Germany and 6.4 in Italy (at the end of the career). 

– Prosecutors’ salaries are, on average, lower than those of judges.

– The number of lawyers is also continuing to increase in Europe, with an average of 164 lawyers per 100 000 inhabitants, with important disparities between States (in 2018, from 16 per 100 000 inhabitants in Azerbaijan to 488 per 100 000 inhabitants in Luxembourg). This constant increase between 2010 and 2018 (27%) is mainly due to economic growth.

– Recent developments suggest that the topic of gender balance with regard to lawyers is being taken into account by an increasing number of States and entities. Currently, however, European lawyers are still predominantly male.

Courts

– Between 2010 and 2018 there was a reduction in the number of courts in Europe, both in terms of legal entities (-19% on average for the first instance courts of general jurisdiction) and geographical locations (-10 % on average).

–  For the same period, we can also notice an increase in the specialization of courts (the average share of specialized courts increased from 21% to 26,7% from 2010 to 2018).

– Small claims were only slightly affected by the above-mentioned developments. Only the average amount of what constitutes a small claim has increased (from 4 029 € in 2016 to 4 836 € in 2018).

Court users

– More and more member States provide specific information to users, both on the judicial system in general and on individual court proceedings.

– States address more and more specific information and arrangements to vulnerable categories of users (the complaints procedures regarding functioning of justice exist in 43 States, implementation of compensation systems (the average amount of compensation is 6 353 € in 2018), user satisfaction surveys, establishment of monitoring mechanisms in respect of violations of the European Convention on Human Rights).

– In order to improve further social responsibility and trust in the judicial system, member States should devote additional resources and staff to improvecommunication with the users of justice.

– The analyses and use of data, gathered through quantitative and qualitative research into the satisfaction of court users, increases the legitimacy of judicial systems and helps court leaders and administrations provide a better and more efficient service of justice.

– The use of information systems to support such activities is crucial. However, it is “interactional justice “- the human touch, the treatment of all involved in judicial proceedings with dignity and respect, that substantially helps to provide just decisions and consequently build trust in justice.

Information and communication technology (ICT)

–  ICT has become a constitutive part of justice service provision. States have focused their efforts on court and case management tools, more then on decision support and communication tools. The general ICT index (court and case management, decision support and communication with courts) varies from 1.52 in Cyprus to 9.79 in Latvia.

– European judicial systems are increasingly moving from paper-based procedures to electronic ones. This is true for the activities carried out within the courts, as well as for the communication exchanges between courts and all parties.

– The economic cost of this innovation should be considered with caution as the ICT budget may vary considerably during the development, deployment and maintenance phases.

– Court systems with comparatively higher resources generally tend to invest a higher percentage of the court budget in ICT.

– ICT are an integral component of the judicial systems, which is reflected both in the regulatory and governance choices implemented by the member States.

– Member States and entities have set up various solutions regarding leadership in ICT governance: most States tend to consider both of them equally relevant, with a slight prevalence of the judicial one.

– As basic technologies are now generally fully deployed in member States and entities, this analysis has focused on court and case management tools, decision support tools and tools for communication between courts, professionals and/or court users, showing very high levels of deployment.

– The high levels achieved in the areas of decision support, e-communication and remote proceedings increase the need to monitor the impact of these tools on principles such as fairness, impartiality and judicial independence.

Justice in the context of the Covid-19 crisis

– ICTs have proven to be valuable and even indispensable tools for the continued work of judicial systems during the COVID-19 crisis in Europe.

– In many cases, their use has required not only changes in legislation but also technical improvements, as has been observed in member States and entities.

– Concerns have been expressed about the use of certain ICT tools in court proceedings, but it is still too early to assess their actual impact on the parties’ rights.

– To address these issues, the CEPEJ has adopted on 10 June 2020 a  Declaration on lessons learnt and challenges faced by the judiciary during and after the Covid-19 Pandemic.

Efficiency

– The clearance rates give a generally positive balance sheet (stable and close to 100%) and conclusions can be more usefully drawn from the disposition time analysis. Criminal justice is the most effective at all three levels of court (disposition time at first instance: 122 days; second instance: 104 days ; third instance: 114 days) and the second instance courts appear as the most efficient in all areas (disposition time in civil and commercial cases: 141 days; administrative cases: 209 days; criminal cases: 104 days). It should be noted that although the results are unquestionably positive, they have deteriorated over time in several States and entities analysed.

– Conversely, it is at first instance and in the field of administrative law that the courts have proven to be the least efficient. Administrative cases tend to record the highest DT (241 days at 1st instance, 209 days at 2nd instance, 228 days at 3rd instance) with, however, considerable disparities between States and entities.

– Cases concerning asylum seekers and the right to entry and stay for aliens continue to have a strong impact on European jurisdictions. Many States and entities reported productivity problems related to these case types. In 2018, States received 291 443 cases concerning asylum seekers or 8 % fewer than in 2016. 183 920 incoming cases pertaining to the right to entry and stay for aliens represent an increase of 84 %. The highest number of incoming cases concerning asylum seekers was recorded in Germany, 149 593 cases. The second highest inflow is in France which received 58 671 asylum seekers cases and 79 807 right of entry and stay for aliens cases. Italy, then, received 48 891 asylum seekers cases and 2 224 right of entry and stay for aliens cases.

– The share of cases older than two years is available for a limited set of States and entities. Within these, the shares of cases older than two years do not vary over time.

– A number of States and entities have undergone or are currently undergoing significant justice sector reforms which have influenced the performance of their systems. The results of these States and entities need to be monitored cautiously and with an understanding of the context”.

Source: https://rm.coe.int/link-to-the-presentation-note-en/16809fdc75

For further information, see https://www.coe.int/en/web/cepej/special-file-publication-of-the-report-european-judicial-systems-cepej-evaluation-report-2020-evaluation-cycle-2018-data-