Agrégateur de flux

In G I Globinvestment Ltd & Ors v VP Fund Solutions (Luxembourg) SA & Ors [2022] EWHC 1872 (Comm) wealthy Italian investors seek to recover losses which they suffered when investments they had made plummeted in value at the outset of the COVID pandemic. Defendants are in various jurisdictions. Most have accepted jurisdiction, two of them, one based in Luxembourg, the other in Liechtenstein, challenge jurisdiction.

The claim against the Liechtenstein defendant is subject to common law rules, the country not being a party to Lugano. I will leave that further undiscussed here, suffice to say the challenge was unsuccessful.

The claim against the Luxembourg based defendant was issued before Brexit implementation date and subject to Brussels Ia. It claims there is an A25 exclusive choice of court clause in the investment fund’s general subscription terms, and Vineall DJ discusses it with reference to the general A25 outline in PIFSS v Piqtet.

Parties are agreed [64] – wrongly, nota bene, that on formal validity, the question is whether there has been an actual consensus between the parties, clearly and precisely demonstrated, and on material validity, the question is whether the dispute between the parties arose or originated from the particular legal relationship in connection with which the clause was concluded. That is the kind of agreement which would see my students fail a Brussels Ia question.

[65] a further major error is made with the parties seemingly agreeing that ‘whether the claim falls within the scope of the [clause], that question is to be answered according to Luxembourg law’.

The conclusions are [88] that there is no [forum clause] in the in the Subscription Agreement, although there is choice of law clause; 88.2. There is no EJC in the Offering Document; The Offering Document wrongly asserts that there is a jurisdiction clause in the Subscription Agreement; That is insufficient to establish a clearly and precisely demonstrated consensus; no consensus as to jurisdiction is demonstrated: the result of the conflicting documents is a muddle; therefore there is no exclusive jurisdiction clause on which VP Lux can rely.

I have not got the kind of access to the file to say the outcome is factually wrong – the route to it certainly is and simply wrong in law.

The judge also [89] concludes that whether one of the claimants is a consumer who can sue in England and Wales need not be decided:  ‘That issue does not seem to me to be entirely straightforward and since it is not necessary to resolve it in the light of my conclusions about [choice of court] I prefer not to decide it’: why not?: VP Lux contest jurisdiction and it is the judge’s task under Brussels Ia to assess the existence of jurisdiction on any of the Brussels Ia grounds.

Had the judgment been issued in exam season it would have been obvious material for ‘spot the Brussels Ia errors’.

Geert.

 

Unsuccessful jurisdiction challenge which was based ia on Brussels Ia consumer, choice of court sections

G I Globinvestment Ltd & Ors v VP Fund Solutions (Luxembourg) SA & Ors [2022] EWHC 1872https://t.co/UfyToABXz6

— Geert Van Calster (@GAVClaw) July 21, 2022

Conventions & Instruments

On 1 July 2022, the HCCH 2007 Child Support Convention and the HCCH 2007 Maintenance Obligations Protocol entered into force for Ecuador. At present, 44 States and the European Union are bound by the Convention, while 30 States and the European Union are bound by the Protocol. More information is available here.

On 8 July 2022, Pakistan deposited its instrument of accession to the HCCH 1961 Apostille Convention. The Convention, which currently has 124 Contracting Parties, will enter into force for Pakistan on 9 March 2023. More information is available here.

On 13 July 2022, Senegal deposited its instrument of accession to the HCCH 1961 Apostille Convention. The Convention, which currently has 124 Contracting Parties, will enter into force for Senegal on 23 March 2023. More information is available here.

 

Meetings & Events

From 4 to 8 July 2022, the Fifth Meeting of the Special Commission on the Practical Operation of the 1993 Adoption Convention was held online, attended by nearly 400 participants representing HCCH Members, Contracting Parties and Observers. The meeting resulted in the adoption of over 50 Conclusions and Recommendations, providing guidance to (prospective) Contracting Parties on a wide range of issues relating to the practical operation of the 1993 Adoption Convention, including the prevention of illicit practices, post-adoption matters, intrafamily adoptions and alternatives to full adoption, technical assistance and the use of technology. More information is available here.

On 27 July 2022, the HCCH and the Asian Business Law Institute co-hosted the webinar “Cross-border Commercial Dispute Resolution – HCCH 2005 Choice of Court and 2019 Judgments Conventions”. More information is available here.

 

Upcoming Events

The inaugural CODIFI Conference will be held online from 12 to 16 September 2022. CODIFI will examine issues of private international law in the Commercial, Digital, and Financial (CODIFI) sectors, highlighting developments in the digital economy and fintech industries as well as clarifying the roles of core HCCH instruments: the 1985 Trusts Convention, the 2006 Securities Convention, and the 2015 Choice of Law Principles. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The Final Conference of the EFFORTS Project

• Date: Friday, 30 September 2022
• Venue: Università degli Studi di Milano – Sala Napoleonica, Via Sant’Antonio, 12 (Milan, Italy) (remote participation is also available)

The Conference is the final event of the EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) Project, funded by the European Union and conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.

The Conference will provide an international forum where academics, policymakers, and practitioners discuss the Project’s key findings and exchange their views on the national implementation of – and the path forward for – the EFFORTS Regulations (i.e., the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order).

The Conference will tackle, in particular:

• Current challenges in the EU rules on cross-border enforcement of claims
• The interaction between the EFFORTS Regulations and national enforcement procedures
• Future perspectives for the re-drafting of EU rules on cross-border enforcement of claims

The working language is English; simultaneous translation in Italian will be available.

Registration is compulsory. More information is available here.

 

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

Professor Maarit Jänterä-Jareborg has retired after having been professor in private international law at Uppsala University in Sweden for 23 years. To pay her tribute, the anthology Festskrift till Maarit Jänterä-Jareborg (“Essays in Honour of Maarit Jänterä-Jareborg”) has been edited by Margareta Brattström, Marie Linton, Mosa Sayed and Anna Singer.

The anthology contains 22 contributions as well as a bibliography of Jänterä-Jareborg’s extensive writings over the last four decades. Of the essays in the anthology, eleven are written in English, six in Swedish, four in Norwegian and one in French.

Most of the essays deal with private international law issues. Michael Bogdan and Giuditta Cordero-Moss have both written contributions on different aspects of recognition of foreign marriages. Christina Gonzáles Beilfluss and Nigel Lowe have written essays dealing with the new Brussels II Regulation (2019/1111). In addition to the four mentioned contributions, the book contains several more essays dealing with private international law issues.

A sample read including the full table of contents and the Swedish preface written by the editors can be accessed and read here.

RT France / Conseil
Relations extérieures PESC
Le Tribunal, en grande chambre, rejette la demande de RT France d’annuler les actes du Conseil, adoptés à la suite du déclenchement de la guerre en Ukraine, lui interdisant temporairement de diffuser des contenus

The first issue of 2022 of Giustizia Consensuale (published by Editoriale Scientifica) has just been released, and it features:

Andrea Simoncini (Professor at the University of Florence) and Elia Cremona (PhD, University of Siena), Mediazione e Costituzione (Mediation and Constitution; in Italian)

This paper deals with the issue of the constitutional basis of mediation. After describing the currently dominant view which sees mediation as merely a ‘means’ to an end, such as reducing the judicial backlog, and as a complementary tool to in-court proceedings, the authors argue that mediation could be considered as a constitutional ‘end’ in itself. Thus, by promoting the attainment of a more cohesive society, mediation is seen as a way to fulfil the social solidarity obligations as enshrined in the Italian Constitution.

Claudio Cecchella (Professor at the University of Pisa), La negoziazione assistita nelle controversie sulla crisi delle relazioni familiari dopo la riforma con legge n. 206 del 2021 (Lawyer-Assisted Negotiation Procedure in Family Disputes Subsequent to Law No 206 of 2021; in Italian)

This paper analyses the provisions of Law No 206 of 2021 concerning the negotiation process assisted by attorneys in family disputes. The author firstly examines the provisions which entered into force on 22 June 2022, such as the extension of the scope of application of this negotiation process. Secondly, he explores the provisions that will enter into force at a later date, such as the possibility of agreeing to a lump-sum maintenance payment, the provision of legal aid and the right to take evidence during negotiations. While praising this reform, the author strongly criticizes it for not having provided for the minor’s right to be represented and heard during the negotiation process.

Juan F. Herrero (Professor at the University of Zaragoza), Accordarsi o soccombere (Reaching an Agreement or Losing the Case; in Italian)

Settlement rates are still relatively low compared to the percentage of cases that go to trial. Against this backdrop, the Spanish legislator has committed to reversing the trend. After some early efforts that were in vain, the legislator resorted to two instruments: the mandatory mediation attempt as a prerequisite to instituting judicial proceedings (as an alternative to mediation, parties may opt for other extrajudicial dispute resolution methods), and a new scheme for the allocation of judicial costs. The paper investigates correlations between judicial decisions on cost allocation and mandatory or voluntary extrajudicial settlement attempts. Furthermore, it examines the impact of the aforementioned attempts on the determination of judicial costs, with a special focus on relevant case law. Oftentimes, the risk or likelihood of obtaining an unfavourable – or only partially favourable – decision on the allocation of costs prompts the parties to reach an out-of-court settlement. In fact, if it is not the case, the winning party to litigation stands to lose more than they would gain financially.

Stefania Brun (Professor at the University of Trento), ‘Proceduralizzazione’ dei poteri datoriali e mediazione sindacale. Il laboratorio trentennale in materia di licenziamenti collettivi (Trade Union Mediation in Collective Dismissal. A Study of its Application over Three Decades; in Italian)

This article reviews the three-decade history and present-day application of Law No 223 of 1991 on collective dismissal. While providing an overall positive evaluation of this law, the article seeks to examine the role of the judicial and legislative branches in promoting best practices in its application. In this regard, it emphasizes the role of trade union mediation in the phase preceding collective dismissal as an effective means for reducing judicial scrutiny and ensuring greater legal certainty.

Antonio Cassatella (Professor at the University of Trento), Il procedimento amministrativo come strumento di giustizia consensuale. Potenzialità e limiti (Administrative Procedure as a Means to Reach Consensual Justice. Strengths and Limitations; in Italian)

This paper focuses on settlements reached by an individual and the public administration in the course of an administrative procedure as governed by Law No 241 of 1990. According to the author, these types of settlement are only possible if the administrative procedure is not seen as a unilateral exercise of the public administration’s power, but rather as a way of settling disputes between the administration and citizens. The author argues that the administrative procedure can be considered an alternative dispute resolution mechanism from a theoretical point of view. However, Article 11 of the aforementioned law cannot be considered an effective legal basis for settlement between an individual and the public administration due to its intrinsic limitations. Therefore, the author proposes that the Italian legislator reforms Law No 241 of 1990 taking the German and French legislations as a model.

 

Observatory on Legislation and Regulations

Lorenzo Bianchi (PhD, University of Parma), La conciliazione giudiziale tributaria. Criticità applicative e prospettive di riforma (Judicial Conciliation in Tax Disputes. Inherent Limits and Reform Proposals; in Italian)

This paper analyzes the mechanism of judicial conciliation in tax disputes and its relationship with out-of-court dispute resolution tools. The author examines the historical evolution of judicial conciliation and its current regulation. While exploring the main characteristics of tax disputes, particular attention is given to the inherent limits on reaching an agreement between the parties to litigation and the judicial power to promote settlement. In conclusion, the analysis focuses on the recent Italian reform proposals of the judicial proceedings regarding tax disputes and conciliation mechanisms as incentivized by the Next Generation EU plan.

 

Observatory on Practices

Dilyara Nigmatullina (Postdoctoral Researcher at the University of Antwerp) and Ruohan Zhu (Project manager at the Shanghai Arbitration Commission), A Study on the Use of Mediation in Combination with Arbitration. The Experience of East Asia with Focus on Mainland China

The article analyses the results of an empirical study about the current use of mediation in combination with arbitration (combinations) in international commercial dispute resolution. This study follows up the original study conducted by one of the article’s authors in 2014-2015, the results of which suggested the existence of a link between the practitioners’ legal culture and their use of a combination where the same neutral acts as a mediator and an arbitrator. The follow-up study further tests the hypothesis about the existence of the mentioned link by involving practitioners based in the East Asia region, predominantly in mainland China, while those taking part in the original questionnaire practiced in Continental Europe and common law jurisdictions in the Asia Pacific region. The article discusses the results of the follow-up study in the context of the findings of the original study before concluding that these results provide further support to the hypothesis that the use of a combination where the same neutral acts as a mediator and an arbitrator varies throughout the world and can be linked to the practitioners’ legal culture.

Francesca Valastro (Case Manger, Milan Chamber of Arbitration), La mediazione in videoconferenza. Dalla situazione emergenziale agli orizzonti futuri. Dati e note a margine di un’indagine empirica (Online Mediation: From Necessity to the Norm. An Empirical Study; in Italian)

The outbreak of the Covid-19 pandemic in March 2020 affected the way mediations in civil and commercial matters were conducted, transforming online mediation into an absolute necessity. Two years on, the world has changed and in this post-Covid time, it would be advisable to assess how the pandemic has affected the practice of mediation. Will mediation return to be conducted face to face or will online mediation be the future? This article presents the results of the empirical research collected through interviews with fifty attorneys assisting clients in mediation and fifty professional mediators of the Mediation Service at Milan Chamber of Arbitration. Based on the analysis of their responses, the author argues that online mediation will have a pivotal role in the post pandemic world. However, further research and analysis is still necessary to develop best practices and guidelines for effectively managing mediation remotely.

In addition to the foregoing, this issue features the following book review by Giuseppe Buffone (Judge, Justice and Home Affairs Counsellor, Permanent Representation of Italy to the European Union, Brussels): Maria MARTELLO, Una giustizia alta e altra. La mediazione nella nostra vita e nei tribunali (Mediation in Our Courts and in Our Daily Lives. An Empowering Alternative), Roma, Paoline Editoriale Libri, 2022, 1-160.

 

 

In Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See [2022] EWCA Civ 1051, the Court of Appeal has overturned the High Court’s judgment ordering a stay in a case involving alleged property fraud. I reviewed the first instance judgment here. The judge held the E&W courts did have jurisdiction over the claims but stayed them

because he took the view that the respondent had adopted a neutral position as to whether the appellants were under any liability and because the real dispute was not between the parties to this action but between the appellants and the prosecuting authorities responsible for the conduct of criminal proceedings against the fourth appellant in the Vatican City State.

(Males LJ [1]).

Many of the High Court judgment’s’ findings were not on appeal (such as the erroneous dropping of renvoi in the A25 BIa choice of court analysis).

The Court of Appeal spends a while summarising the earlier judgment, to arrive [54] at the crucial juncture between the Brussels Ia Regulation and case-management stays, with reference to its very recent decisions in Municipio and Nokia and to Article 6 ECHR right of access to courts [59]. Para 59 is crucial and I repeat it here in full

There is, as it seems to me, no reason to doubt that it is only in rare and compelling cases that it will be in the interests of justice to grant a stay on case management grounds in order to await the outcome of proceedings abroad. After all, the usual function of a court is to decide cases and not to decline to do so, and access to justice is a fundamental principle under both the common law and Article 6 ECHR. The court will therefore need a powerful reason to depart from its usual course and such cases will by their nature be exceptional. In my judgment all of the guidance in the cases which I have cited is valuable and instructive, but the single test remains whether in the particular circumstances it is in the interests of justice for a case management stay to be granted. There is not a separate test in “parallel proceedings” cases. Rather, considerations such as the existence of an exclusive English jurisdiction clause and the danger of circumventing a statutory scheme for the allocation of jurisdiction (such as the Judgments Regulation) will be weighty and often decisive factors pointing to where the interests of justice lie.

Males LJ therefore, like others before him, does not rule out a case-management stay even for proceedings covered by Brussels Ia yet puts (among others) that Regulation’s statutory purpose, and the need not to allow it to be circumvented, at the centre ground of the decision on a stay.

[60] ff a succinct background is given to the happiness, or not, of English courts entertaining negative declarations. [74] is the Court of Appeal’s core argument for lifting the stay:

I consider that the judge’s conclusion on what he described as the Secretariat’s “central argument” was mistaken. The Secretariat was not neutral. It follows that the basis on which the judge concluded that, at present, the grant of declarations would serve no useful purpose and therefore exercised his discretion to grant a case management stay was fundamentally flawed. Indeed the circumstances in which he envisaged that the declarations might serve a useful purpose and that the stay might be lifted, that is to say if the Secretariat adopted a partisan position in the criminal proceedings in the Vatican, already existed.

The judge had essentially decided that claimants, given the jurisdictional (for reasons of immunity) unavailability of the real defendants, had picked an ‘innocent bystander’ against whom to seek the negative declaration, the Secretariat, yet the Court of Appeal now finds that the Secretariat is not a neutral bystander at all. There is a real ‘dispute between the appellants and the Secretariat as to whether the appellants are under any civil liability to the Secretariat, for example to pay compensation, as a result of entering into the Transaction.’ [75]

[77] it is conceded that the lifting of the stay means there will be related proceedings going on in E&E, and the Vatican. But that is not found to be a reason to stay the English proceedings.

Geert.

 

For review of the first instance judgment see https://t.co/LcAvK1nua8 https://t.co/G1XIlQ2QlV

— Geert Van Calster (@GAVClaw) July 26, 2022

 

 

The new issue of the International & Comparative Law Quarterly (Volume 71, Issue 3) is out. As usually, some of articles concern directly or indirectly questions of private international law. A selection of abstracts is provided below.

The whole issue is available here. Some of the articles are available in open access.

Richard Garnett, Determining the appropriate forum by the applicable law, pp. 589-626

The concepts of jurisdiction and applicable law have been traditionally regarded as separate inquiries in private international law: a court only considers the applicable law once it has decided to adjudicate a matter. While such an approach still generally applies in civil law jurisdictions, in common law countries the concepts are increasingly intertwined. This article examines the relationship between jurisdiction and applicable law in two key areas: applications to stay proceedings on the ground of forum non conveniens and to enforce foreign exclusive jurisdiction agreements. While courts generally apply the principle that jurisdiction and applicable law should coincide where possible, there are circumstances where a court may retain jurisdiction despite a foreign governing law or may ‘trust’ a foreign tribunal to apply the law of the forum. This article seeks to establish a framework by which courts may assess the role of the applicable law in forum determinations.

Ardavan Arzandeh, Brownlie II and the Service-Out Jurisdiction under English Law, pp. 727-741.

FS Cairo (Nile Plaza) LLC v Brownlie (Brownlie II) is arguably the United Kingdom’s highest appellate court’s most significant decision this century on a private international law question. The judgment has ended nearly two decades of debate about the meaning of ‘damage’ sustained in England for the purpose of paragraph 3.1(9)(a) of Practice Direction 6B of the Civil Procedure Rules. In a four-to-one majority ruling, the Supreme Court decided that the provision was to be interpreted widely, such that, in a personal injury claim, any significant harm of any kind suffered by a claimant in England could provide a basis for the service of proceedings on a foreign-based defendant. The article is critical of the majority’s decision, as it is liable to create both immediate and long-term problems in the context of the service-out jurisdiction in England. It also examines the court’s pronouncements on the other question before it concerning proof of foreign law.

Written by Mayela Celis, UNED

On 14 July 2022 the Court of Justice of the European Union (CJEU) ruled on the interrelationship between the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II bis Regulation) and the HCCH 1996 Child Protection Convention. This case concerns proceedings in Sweden and the Russian Federation and deals in particular with the applicability of the perpetuatio fori principle contemplated in Article 8(1) of the Brussels II bis Regulation. The judgment is available here.

Facts

Mother (CC) gave birth to child (M) in Sweden. CC was granted sole custody of the child from birth.

Until October 2019 child resided in Sweden.

From October 2019 child began to attend a boarding school on the territory of the Russian Federation.

Father (VO) brought an application before the District Court of Sweden and several proceedings ensued in Sweden, holding inter alia that Swedish courts have jurisdiction under Article 8(1) of the Brussels II bis Regulation. CC brought an application before the Supreme Court of Sweden asking the court to grant leave to appeal and to refer a question to the CJEU for a preliminary ruling.

Question referred for preliminary ruling

‘Does the court of a Member State retain jurisdiction under Article 8(1) of [Regulation No 2201/2003] if the child concerned by the case changes his or her habitual residence during the proceedings from a Member State to a third country which is a party to the 1996 Hague Convention (see Article 61 of the regulation)?’

Main ruling

Article 8(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, read in conjunction with Article 61(a) of that regulation, must be interpreted as meaning that a court of a Member State that is hearing a dispute relating to parental responsibility does not retain jurisdiction to rule on that dispute under Article 8(1) of that regulation where the habitual residence of the child in question has been lawfully transferred, during the proceedings, to the territory of a third State that is a party to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996 (our emphasis).

Analysis

This is a very welcome judgment as it allows for the proper application of the 1996 Child Protection Convention to a case involving an EU Member State (Sweden) and a Contracting Party to the 1996 Child Protection Convention (the Russian Federation).

At the outset, it should be emphasised that this case deals with the lawful transfer of habitual residence and not with the unlawful transfer (removal or retention) such as in the case of international child abduction. In the latter case both the Brussels II bis Regulation and the 1996 Child Protection Convention provide for the retention of the jurisdiction in the EU Member State / Contracting State in which the child was habitually resident immediately before the removal or retention.

It is also important to clarify that contrary to the Brussels II bis Regulation, the 1996 Child Protection Convention does not adopt the principle of perpetuatio fori when dealing with general basis of jurisdiction (Article 5 of the Convention; see also para. 40 of the judgment). The 1996 Child Protection Convention reflects the view that the concept of habitual residence is predominantly factual and as such, it can change even during the proceedings.

As to the principle of perpetuatio fori, the CJEU indicates:

“By referring to the time when the court of the Member State is seised, Article 8(1) of Regulation No 2201/2003 is an expression of the principle of perpetuatio fori, according to which that court does not lose jurisdiction even if there is a change in the place of habitual residence of the child concerned during the proceedings” (para. 28, our emphasis).

With regard to the interrelationship between these two instruments, the CJEU says:

“In that regard, it should be noted that Article 61(a) of Regulation No 2201/2003 provides that, as concerns the relation with the 1996 Hague Convention, Regulation No 2201/2003 is to apply ‘where the child concerned has his or her habitual residence on the territory of a Member State’” (para. 32).

“It follows from the wording of that provision that it governs relations between the Member States, which have all ratified or acceded to the 1996 Hague Convention, and third States which are also parties to that convention, in the sense that the general rule of jurisdiction laid down in Article 8(1) of Regulation No 2201/2003 ceases to apply where the habitual residence of a child has been transferred, during the proceedings, from the territory of a Member State to that of a third State which is a party to that convention” (para. 33, our emphasis).

In my view, this judgment interprets correctly Article 52 of the 1996 Child Protection Convention, which was heatedly debated during the negotiations, as well as the relevant provisions of the Brussels II bis Regulation. In particular, the formulation in both Article 61(a) of the Brussels II bis Regulation “where the child concerned has his or her habitual residence on the territory of a Member State” and Article 52(2) of the 1996 Child Protection Convention “[This Convention does not affect the possibility for one or more Contracting States to conclude agreements which contain] in respect of children habitually resident in any of the States Parties to such agreements [provisions on matters governed by this Convention]” has been properly considered  by the CJEU as the habitual residence of the child is the Russian Federation.

To rule otherwise would have reduced significantly the applicability of the 1996 Child Protection Convention and would have run counter Articles 5(2) and 52(3) of the referred Convention (see para. 42 of the judgment).

As this judgment only deals with Contracting Parties to the 1996 Child Protection Convention, it only makes us wonder what would happen in the case of bilateral treaties or in the absence of any applicable treaty (but see para. 29 of the judgment).

For background information regarding the negotiations of Article 52 of the 1996 Child Protection Convention see:

–  Explanatory Report of Paul Lagarde (pp. 601-603)

– Article by Hans van Loon, “Allegro sostenuto con Brio, or: Alegría Borrás’ Twenty-five Years of Dedicated Work at the Hague Conference.” In J. Forner Delaygua, C. González Beilfuss & R. Viñas Farré (Eds.), Entre Bruselas y La Haya: Estudios sobre la unificación internacional y regional del derecho internacional privado: Liber amicorum Alegría Borrás (pp. 575-586). Madrid: Marcial Pons, pp. 582-583.

 

 

Another overdue post following up on earlier Twitter flag. In On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch), a competition law ‘follow-on damages suit, Nugee LJ considered in particular whether in assessing the relatedness of proceedings, the judge can indeed may have to take into account what is likely to be pleaded by way of defence in both actions. He held [52] he can:

the better view is that where an application for a stay is made at a stage when the defence to an action has not yet been pleaded, the Court can have regard to the substance of a defence that it can confidently predict is likely to be pleaded.

However [53] ff on the facts he then held that the most likely outcome of that defence in the Irish proceedings is that these will be dismissed. This I believe is a form of judicial clairvoyance which goes too far, even in the wide remit which Article 30 gives to the judge assessing relatedness and the appropriateness of an Article 30 stay.

Geert.

EU Private International Law, 3rd ed. 2021, 2.521 ff.

Jurisdiction, competition law 'follow-on' damages
Stay on the basis of A30 Brussels Ia 'related actions' refused.
Re taking into account of possible defences in the Irish proceedings.

On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch)https://t.co/SR85hPU1X9

— Geert Van Calster (@GAVClaw) April 19, 2022

Medina AG’s end June Opinion in C-238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebung will delight waste lawyers for the case once again evolves around the definition of ‘waste’ as applied to excavated soil. Statute to be interpreted is the WFD or the Waste Framework Directive 2008/98. CJEU SAPPI is a recent judgment  often referred to by the AG.

Porr Bau, the applicant in the main proceedings, is a construction undertaking established in Austria. In July 2015, certain local farmers asked it to supply them, against payment, with excavated soil and to distribute it over their properties. The purpose of the farmers’ request was to level their agricultural land and improve their cultivation areas, thereby increasing yields. Porr Bau applied to the relevant authorities for a statement that the soil was not to be considered waste so as it could avoid a number of taxes. That authority disagreed and also held that the soil, which it considered to be waste, had not yet reached end-of-waste status.

The AG (36) opines that it should not be assumed that all excavated soil by a construction undertaking is by default to be discarded, and that it is difficult to conclude that, under circumstances such as those of the present case, the intention of a construction undertaking is to discard excavated soil that has been carefully selected, subjected to a quality control and supplied as uncontaminated top-quality material in order to attend to a specific request from local operators in need of that material. He also suggests, less convincingly in my view, (38 ff) that such soil may be considered a by-product of the construction sector. 

Should he not be followed on the waste definition issue, the AG suggests and he is right in my view that national law must not deny end-of-waste status until the holder fulfils certain formal requirements with no environmental relevance such as record-keeping and documentation obligations.

Geert.

EU Waste law, 2nd ed 2015, 1.20 ff.

Opinion Medina AG yday in a case involving uncontaminated excavated soil, supplied to farmers for land adaptation and development
National end of waste criteria, by-products as opposed to waste

C‑238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebunghttps://t.co/Akl1PFYCrz

— Geert Van Calster (@GAVClaw) June 22, 2022

 

Earlier this month (13 July 2022), Senegal acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents, which will enter into force for Senegal on 23 March 2023.
Source: https://www.hcch.net/en/news-archive/details/?varevent=868

This one is overdue for review on the blog. In Van Heck v Giambrone & Partners Studio Legale Associato [2022] EWHC 1098 (QB) the High Court confirmed in appeal the refusal of a stay on Article 29 Brussels Ia lis pendens grounds in a case concerning a barrister’s claim for professional fees. The defendant in the English proceedings had initiated an Italian claim, prior to the English claim, in which it denied liability for the fees: a classic mirror claim. The court of first instance in Palermo had denied it had jurisdiction. That judgment went to appeal, where it is pending however the first instance, sole judge in England held that the jurisdictional issue had been conclusively dealt with and was not in appeal. Hence that no ‘lis’ was still pending for Article 29 to apply.

Soole J [75] held that the critical question for determination was whether the proceedings in the court first seised, i.e. the Palermo Claim, had been ‘finally determined in relation to its jurisdiction’. Whether or not that is the case, in the absence of a European harmonised approach to whether the national courts are still seized of the jurisdictional issue, is a matter of national procedural law [80]] which the E&W judge is to assess as a matter of foreign law hence fact, to be proven by the parties. That finding is a factual issue which the judge held upon with the help of relevant expert and  is not within the appeal.

Stay therefore dismissed.

Geert.

Appeal dismissed, confirmation of refusal to stay E&W proceedings on barrister's fee claim in favour of proceedings in Palermo (A29 BIa, lis pendens)

Van Heck v Giambrone & Partners Studio Legale Associato [2022] EWHC 1098 (QB)https://t.co/Ngi3aQX8lZ

— Geert Van Calster (@GAVClaw) May 13, 2022

In their most recent article on A Hague Convention on Parallel Proceedings, 63 HARVARD INTERNATIONAL LAW JOURNAL ONLINE 1 (2022), Ron Brand and Paul Herrup argued that the Hague Conference on Private International Law should not undertake a project to require or prohibit exercise of original jurisdiction in national courts. Rather, the goal of current efforts should be to improve the concentration of parallel litigation in a “better forum,” in order to achieve efficient and complete resolution of disputes in transnational litigation. The Hague Conference is now taking this path. As the Experts Group and Working Group have moved forward on the Parallel Proceedings Convention project, however, there has been difficulty in leaving behind existing approaches that have not led to acceptable solutions. In particular, the work has failed to look far beyond the traditional civil law lis alibi pendens and common law forum non conveniens approaches to parallel litigation, or a focus on questions of jurisdiction.

In their new article, available here, the authors argue that the time is ripe for fresh thinking that reflects Twenty-first century realities in finding a workable approach to parallel litigation. They build on the previous article by discussing a possible architecture and some of the critical features of a parallel proceedings convention geared to moving litigation to the better forum.

In Deane v Barker & Ors [2022] EWHC 1523 (QB) concerns the frequent and upsetting scenario of falls in rented holiday accommodation. Claimant is habitually resident in England, proceedings were issued in December 2019, and subject therefore to Brussels Ia. Any jurisdictional challenge would have been tricky (but not impossible, seeing as 2 of the defendants are based in Spain; one of them one presumes is sued in E&W on the basis of BIa’s insurance title, the other (the Spanish company which manages the property) on the basis of the anchor mechanism or perhaps forum contractus). At any rate, there is no jurisdictional objection.

The owners of the villa, like the claimant, are domiciled in England and they are being sued on the tort of negligence which, per A4(2) Rome II, makes English law in principle the applicable law to most of the claim (there is also an additional contractual claim against the property manager, said to be subject to Spanish law per the cascade of A4 Rome I; and a claim in tort subject to Spanish law per A4(1) ).

Issues such as the standard of care and breach of duty viz the main claim will be informed by whether the staircase complied with Spanish law safety standards – CTE: that is the result of A17 Rome II. The issues for this preliminary discussion, are [21]

Issue 1 Whether the works conducted at the villa and/or on the staircase were refurbishment works (such as to trigger the application of the CTE) or merely maintenance works (such as not to trigger the application of the CTE)? Issue 2 Whether the villa (and the staircase within it) was for general or public use (such that the material provisions of the CTE would presumptively apply) or for restricted use (such that the same provisions would not apply)? Issue 3 Whether, if the material provisions of the CTE apply, this would in principle give rise to a breach of duty in English and Spanish law?

Issue 1 and 2 depend on the interpretation of foreign law which, in common law courts, is fact and must be proven. The discussion here seems to have turned on lengthy debate on the exact meaning of definitions. That this should be discussed so intensely does not surprise me (unlike the judge who suggested it was unusual): if a definition is of great relevance to the outcome of the case, why should it not be extensively discussed.  The debate also engages the methods of interpretation by the Spanish courts: this leads [38ff] to expert views and discussion that are  interesting with a view to comparative statutory interpretation, and will be of relevance to those with an interest in languages and law.

Geert.

An interesting case on proving foreign law
Context: definitions in Spanish building codes, applicable per EU law, Rome II

Deane v Barker & Ors [2022] EWHC 1523 (QB) (Richard Hermer QC sitting as HCJ)https://t.co/sk7hotoct8

— Geert Van Calster (@GAVClaw) June 20, 2022

This post was written by Paul Lorenz Eichmüller, Vienna.

After the Austrian Supreme Court had filed a reference for a preliminary ruling to the CJEU (see here) in a matter concerning the definition of “judgments” in the Brussels I bis Regulation’s provisions on recognition and enforcement, the CJEU rendered its decision in its much discussed case of H Limited. Now that the Court of Justice has spoken, the matter was back in the Austrian Supreme Court – which has just rendered its final decision.

A Quick Recap of the CJEU Decision in H Limited

After Jordanian courts had ordered the borrower J (= Jabra Sharbain) to reimburse a loan to H (= HSBC Bank Middle East) Limited, the latter presented the Jordanian judgment to the English High Court, which issued a so-called merger decision. This type of judgment is not just a mere recognition but a new decision on the merits, albeit based on the foreign judgment’s payment order. It therefore contains a separate order against the defendant to pay the owed amount of money.

HSBC then tried to enforce the English decision in Austria under the Brussels I bis Regulation. Sharbain argued that a judgment that is based on a foreign decision should not be enforced according to the rules of Chapter III of the Regulation in another EU member state in order not to circumvent the Member States’ rules on recognition and enforcement of third-country judgments. However, the courts of first and second instance allowed for enforcement, arguing that the English merger decision was issued on the basis of adversarial proceedings where both parties could supposedly defend their side and should therefore qualify as a judgment in the sense of Article 36 et seq Brussels I bis Regulation. When the matter reached the Austrian Supreme Court, it sent a reference for a preliminary ruling to Luxembourg.

In its judgment, the CJEU shared the opinion of the Austrian courts: whether the basis for the judgment is a decision of third country is irrelevant for the purposes of the recognition and enforcement under the Brussels Regime. While the other member states in principle have to recognize such a merger decision, the CJEU specifically pointed to the fact that the ordre public could be used to resist enforcement (CJEU, C-568/20, H Limited para 41–46). It was left up to the deciding national court to reach a final decision on this matter.

The Austrian Supreme Court’s Decision

After the CJEU explicitly left the question of the ordre public open, the Austrian Supreme Court was tasked with determining whether the English merger decision was contrary to Austrian public policy. Sharbain argued that the recognition and enforcement of merger decisions in general would infringe public policy, as there is no possibility for a review on the merits of the third-country decision. This lack of defence opportunities would trigger the public policy exception in Art 45(1)(a) Brussels Ibis Regulation. However, the Austrian Supreme Court dismissed this argument and stated that general considerations could not be regarded when assessing the ordre public. Only the proceedings in question could give rise to a public policy infringement – and in the case at hand, the court of first instance had found that the English High Court had actually given Sharbain the opportunity to oppose the claims from the Jordanian judgment. Thus, public policy could not be invoked and the English merger decision can be enforced in Austria.

Evaluation

Although the CJEU has left the back door of the ordre public open for the member states, it is good to see that, at least in Austria, it will only be used cautiously – not because double exequatur or the way around it with merger decisions is something to aspire to, but rather due to reasons of legal certainty and uniformity. If Member States were to invoke their public policy too loosely, the decision of the CJEU would mean a step backwards rather than forwards in the uniform recognition and enforcement of judgments in the EU. Ordre public is not and should not be a reason for generally denying the recognition and enforcement of certain types of judgments instead of looking at the specific circumstances and the final outcomes of the individual case.

While the Austrian Supreme Court was bound by the findings of the court of first instance regarding the extent to which the specific defendant had an adequate possibility to make his case and thus could not raise this question again, it is doubtful whether this was actually the case: the English High court explicitly stated that “A foreign judgment for a definite sum, which is final and conclusive on the merits, is enforceable by claim, and is unimpeachable (as to the matters adjudicated on) for error of law or fact” (JSC VTB Bank v Skurikhin & Ors [2014] EWHC 271 (Comm) at para 18, referred to in Arab Jordan Investment Bank Plc & Anor v Sharbain [2019] EWHC 860 (Comm) at para 14). There are only four exceptions to this rule, namely: 1) fraud, 2) public policy, 3) natural justice and 4) penalties. Whether that is indeed enough for a proper defence is not quite as clear. Thus, one must still wait for further cases to determine as to what extent a party must be given the opportunity to oppose the third-country judgment.

The EAPIL blog won’t stop running during the Summer, but new posts will come out at a slower pace in the coming weeks.

Business as usual will resume at the beginning of September.

Meanwhile, guest posts are always welcome. Those wishing to submit a piece, are invited to get in touch with the managing editor, Pietro Franzina, at blog@eapil.org.

Enjoy the Summer break!

The Mexican Academy of Private International and Comparative Law (AMEDIP) has published issue No 47 of the Revista Mexicana de Derecho Internacional Privado y Comparado (Mexican Journal of Private International and Comparative Law).  It is available here.

Click here to access the Journal page.

Below is the table of contents (including abstracts in English):

DOCTRINA

ACTOS JURÍDICOS RELACIONADOS CON BIENES MUEBLES E INMUEBLES EN EL DERECHO INTERESTATAL MEXICANO

Jorge Alberto SILVA

Abstract: This contribution is part of a larger research work on interstate Law related to property, in relation with article 121 of the [Mexican] Constitution. It reformulates the meaning of each of the sections with the treatment of assets from a merely constitutional approach based on judicial precedents and legal scholarship developed from the 19th century to the present. It ends up providing its own interpretive theses.

LA LEY APLICABLE AL CONTRATO DE INTERMEDIARIO QUE AMPARA ACTOS DE CORRUPCIÓN

James A. GRAHAM

Abstract: There is no particular reason to consider the intermediary or commission agent contract as an exception to the rule of lex contractus. The fight against corruption is in the Public Policy Law (“loi de police”), especially the foreign Public Policy Law. Despite the reluctance of judges and arbitrators to apply them due to lack of criteria, we believe that the Rome I Regulation can be used as a form of “international” criterion for both judicial and arbitral tribunals.

HACIA UNA INTERPRETACIÓN UNIFORME DEL CONCEPTO DE RESIDENCIA HABITUAL EN EL CONTEXTO DE LA SUSTRACCIÓN INTERNACIONAL DE MENORES

María Mayela CELIS AGUILAR (also known as Mayela Celis)

Abstract: This article seeks to analyze the concept of habitual residence, as well as the current trend towards its uniform interpretation in the context of international child abduction. In particular, we will try to show that habitual residence is a predominantly factual concept, and therefore flexible, and that its interpretation has an important impact, especially in times of pandemic.

PERSPECTIVAS COMPARADAS DE COMPETENCIA JUDICIAL INTERNACIONAL EN LA UE Y MÉXICO EN LAS CONTROVERSIAS ENTRE EL HUÉSPED-CONSUMIDOR Y LA PLATAFORMA DIGITAL DE ALOJAMIENTO TURÍSTICO

Silvana CANALES GUTIÉRREZ

Abstract: In a dispute arising from a digital intermediation services contract with an international element between a guest-consumer and a digital platform of tourist accommodations is not easy to establish the international jurisdiction. The response of Private International Law in both the European Union and Mexico depends on several factors that vary according to the specific case, and among them may be mentioned, whether or not the guest meets the requirements to be considered as a consumer, and the State where his domicile is located. With respect to the platform is relevant if it has an establishment in the State of domicile of the consumer or if it targets its activities to that State. If a person meets the requirements of a ”consumer”, that fact creates special rights regarding international jurisdiction for consumers domiciled in both the EU and Mexico, however the breadth of such rights reflects their Private International Law systems, which protect the consumer at different levels, on which the comparative analysis of this brief research is based.

JURISPRUDENCIA

NULIDAD DE LAUDO ARBITRAL. COMO CONSECUENCIA DE SER DECLARADA, NO PROCEDE CONDENAR A LOS ÁRBITROS A LA RESTITUCIÓN DE SUS HONORARIOS.

RESEÑAS POR LEONEL PEREZNIETO CASTRO

URUGUAY: TEXTO Y CONTEXTO. LEY GENERAL DE DERECHO INTERNACIONAL PRIVADO N.º 19.920, Uruguay, FCU, 2021, 280 pp. / Cecilia Fresnedo de Aguirre, Gonzalo A. Lorenzo Idiarte

CHILE: DERECHO INTERNACIONAL PRIVADO, LEYES, TRATADOS Y JURISPRUDENCIA, Chile, Thomson Reuter, 2022, 721 pp. / Eduardo Picand Albónico

La France a présidé le Conseil de l’Union européenne pendant 6 mois.
A cette occasion, la Délégation des Barreaux de France et Lefebvre Dalloz se sont associés pour vous proposer ce podcast visant à sensibiliser sur les travaux et les actions conduites dans le domaine de la justice au plan européen.

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The Permanent Bureau is looking for one intern for the period September to December 2022 or September 2022 to February 2023 to work on the 1993 Adoption Convention and the Parentage / Surrogacy Project. Applications will be accepted until 18:00 hours (CEST), Friday 29 July 2022.

Prospective applicants should complete an online application form and submit the supporting documentation described here.