Agrégateur de flux

Written by Pedro Lacasa, Legal Consultant, Universidad Nacional de Asunción

There is no doubt that the use of emerging technologies has impacted the international arbitration arena. This tech revolution was unprecedently accelerated by the 2020 pandemic whilst national States’ borders were closed, and travel activity diminished (if not directly forbidden by some States).

The increase of the application of the Blockchain technology in commercial contracts and the proliferation of smart contracts (even though some think they are in essence merely a piece of software code[1]) have reached the point of being a relevant part of international commerce and suddenly they demand more attention than before (see the overview of these new technologies and its impact in arbitration here http://arbitrationblog.kluwerarbitration.com/2019/01/27/2018-in-review-blockchain-technology-and-arbitration/).

The omnipresence of technology in arbitration and the application of the blockchain technology to dispute resolution mechanisms in the international arena led to the naissance of the ‘blockchain arbitration’.

But just because a method focuses on dispute resolution, is not ipso facto a proper ‘arbitration’.

While the utilization of a trusted chain of information enhanced by technology is encouraged in arbitration proceedings, particularly in international arbitrations, we must underscore the fact that not any dispute resolution mechanism is a proper ‘arbitration’… not even if based on the blockchain.

Blockchain arbitration models do not share some of the essential features of arbitration. The parties cannot choose the arbitrator in charge freely. They cannot easily choose aspects like the language of the procedure, the nationality of the arbitrators, the qualification of the arbitrators, the applicable law, etc. If the parties choose the arbitrators based on their qualifications or nationality, such choices can directly impact the availability of the existing ‘blockchain arbitrators’. A fortiori, the parties cannot choose the applicable law to the arbitration itself or to the merits of the dispute either.

Nominating the arbitrators

In Kleros, one of the most popular blockchain arbitration applications, the candidates for adjudicators first self-select themselves into specific courts (i.e., specific types of disputes) and then, the final selection of the adjudicators is done randomly (meaning a party cannot directly nominate someone in particular as an arbitrator for the underlying dispute). As it specifies in its whitepaper[2] “contracts will specify the options available for jurors to vote”, meaning the contract itself is the first factor that restrain party autonomy. In Kleros anyone can be an adjudicator. The probability of being drawn as an adjudicator for a dispute is proportional to the amount of tokens such user stakes within the platform.

Whilst other platforms such as Aragon[3] use the same drafting (of adjudicators) system, networks such as Jur[4], Mattereum and Sagewise[5] use a system that go a step closer to the International Arbitration legal framework (like the 1958 New York Convention, the UNCITRAL Model Law, etc.) in order to make their awards more enforceable worldwide but still lack the flexibility of a wider private autonomy and the role of the conflicts of laws, both present in classical international commercial arbitration processes.

These blockchain-based dispute resolution adjudicators are referred also as ‘jurors’[6]. ‘Jurors’ are Blockchain users elected to vote in favor of one of the parties to the underlying dispute utilizing the Schelling Point method.

But without even analyzing what the Schelling Point methodology has to do with the art of rendering justice in a definitive and final manner, we must ask the question: if the ‘jurors’ have more features of a jury and not of an arbitrator, why do we call a mechanism that solves disputes through decisions made by jurors and not by arbitrators arbitration?

Moreover, these jurors, like users of the Blockchain, have a direct economic interest in serving as jurors in the dispute at hand[7]. However, to think that an arbitrator decided to assume the task of being a part of an arbitral tribunal in an international arbitration constituted to resolve an international dispute, only because that would mean eventually more money to him, is an obscure idea at best. Such arbitrator was elected because of his or her qualities, experience, background, and reputation. This also occurs in domestic arbitrations. Nonetheless, such private autonomy is not possible in some blockchain arbitrations.

It is one thing to refer to such mechanisms as blockchain-based methods. But it is completely different is to maintain that such mechanisms are indeed ‘arbitrations’ stricto sensu[8], just like suggested by many authors[9] and professional associations such as the Blockchain Arbitration Society

Although the global society must embrace all the tech innovations regarding dispute resolution, the clear definition of what is an ‘arbitration’ and what is not should be a healthy practice.

Conclusion

Overall, the technology evolution within the dispute resolution mechanisms is here to stay. This disruption needs a twofold adaptation: on one hand, the parties on an international contractual commercial relationship must adapt themselves to the new ways of solving disputes. The same goes for Sovereign States, that must update their domestic and international legislation to recognize and somehow regulate such new dispute resolution mechanisms.

On the other hand, these platforms for dispute resolution must adapt to the historical surrounding of the conflict solving industry, calling a dispute resolution mechanism for what it is and avoid euphemisms.

Lastly, the misconception on the dispute resolution mechanisms and international arbitration procedures may provoke a confusion to the detriment of the users of such digital networks.

 

[1] See Charlie Morgan ‘Will the Commercialisation of Blockchain Technologies Change the Face of Arbitration?’ [Kluwer Arbitration Blog, March 5, 2018] available at http://arbitrationblog.kluwerarbitration.com/2018/03/05/topic-to-be-confirmed/.

[2] Kleros white paper [September 2019] available at https://kleros.io/whitepaper.pdf.

[3] See “Juror staking” and “ Juror drafting” https://github.com/aragon/whitepaper.

[4] See “Open Justice Platform” in Jur’s whitepaper V 3.0.0  [March 2021], available at https://jur.io/wp-content/uploads/2021/03/jur-white-paper-v.3.0.0.pdf.

[5] See Darcy W.E. Allen, Aaron M. Lane & Marta Poblet, ‘The Governance of Blockchain Dispute Resolution’ [Harvard Negotiation Law Review, vol. 25, issue 1, Fall 2019] 75-102.

[6] Maxime Chevalier, ‘From Smart Contract Litigation to Blockchain Arbitration, a New Decentralized Approach Leading Towards the Blockchain Arbitral Order’ [Journal of International Dispute Settlement, vol. 12, issue 4, December 2021] 558 – 584 https://academic.oup.com/jids/article-abstract/12/4/558/6414874?redirectedFrom=PDF.

[7] Kleros white paper [September 2019] available at https://kleros.io/whitepaper.pdf.

[8] See for example Sharath Mulia & Romi Kumari, ‘Blockchain Arbitration: The Future of Dispute Resolution’ [Fox Mandal, November 2021] available at https://www.foxmandal.in/blockchain-arbitration-the-future-of-dispute-resolution/.

[9] For example, see Ritika Bansal, ‘Enforceability of Awards from Blockchain Arbitrations in India [August 2019] available at: http://arbitrationblog.kluwerarbitration.com/2019/08/21/enforceability-of-awards-from-blockchain-arbitrations-in-india/.

A post I started writing on 14 December 2021 so it’s about time I’ld finish it. In  Guistra v Twitter 2021 BCCA 466 (the case echoes Haaretz in Ontario) the Supreme Court of British Columbia with  Grauer J delivering the unanimous opinion, upheld jurisdiction for the BC courts on the basis of the claim pointing to a tort having been committed in BC, BC therefore being locus delicti commissi. The Court held that damage in the jurisdiction, locus damni, needs then not separately be argued.

Mr. Giustra, a British Columbia resident, alleges that Twitter published tweets that defamed him in British Columbia, as well as elsewhere.  Twitter asserts nota bene that, in law, it cannot properly be considered a “publisher” of tweets that were authored and posted on its platform by its users. That issue is deferred for the merits of the claim: at the jurisdiction level, the pleading is what is important: compare with the situation under Brussels Ia.

A forum non conveniens challenge in favour of the courts at California was rejected, where reference was made ia to Google v Equustek. There is an elephant in the room here, so identified, namely that a claim in California is doomed to fail on free speech grounds, and that an eventual Canadian judgment is doomed to be unenforceable at least in the US.

A good judgment for comparative purposes.

Geert.

Forum delicti commissi, no need to establish forum damni, damage to reputation in the jurisdiction. Rejection of forum non conveniens jurisdiction challenge also upheld.
Via @Greg_Callus https://t.co/OrRV0fsrFi

— Geert Van Calster (@GAVClaw) December 14, 2021

The Court of Justice delivered yesterday (19 May 2022) its judgment in case C‑33/21 (Istituto nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL), Istituto nazionale della previdenza sociale (INPS) v Ryanair DAC):

“Article 14(2)(a)(i) of Regulation (EEC) No 1408/71 [on social security] must be interpreted as meaning that the social security legislation applicable to the flight and cabin crew of an airline, established in a Member State, which crew is not covered by E101 certificates and which work for 45 minutes per day in premises intended to be used by staff, known as the ‘crew room’, which that airline has in the territory of another Member State in which that flight and cabin crew reside and, which for the remaining working time, are on board that airline’s aircraft is the legislation of the latter Member State”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=259607&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=1267764

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 18th annual conference, taking place from 5-6 October 2022 in Dubrovnik (Croatia). Expressions of interest are invited for the delivery of research papers within the overall theme of the academic conference: “Insolvency Law in Times of Crisis”

The conference is intended to focus on, inter alia, the following overall topics:

• The longer-term impact of the COVID-19 pandemic on insolvency and restructuring laws in the EU and elsewhere;
• The impact of geopolitical crises and macro-economic uncertainties on insolvency and restructuring laws in the EU and elsewhere;
• Reflections on the implementation of the Preventive Restructuring Directive 2019/1023 Directive;
• Cross-border issues relating to the new restructuring frameworks, and
• Reflections on the EU initiative for further harmonization of insolvency laws.

The IEAF board also invites submissions on other topics that fall with in the scope of the overall theme of the conference.

 

Conference methodology

In line with the practice established in our past academic conferences, the intention for the autumn conference is to have research papers that challenge existing approaches, stimulate debate and ask, and attempt to answer, comparative and interdisciplinary questions about the above-mentioned topics. Accordingly, proposals are invited that do more than just outline a topic of interest in respect of any given jurisdiction, but seek to understand, analyse and critique the fundamentals of insolvency and restructuring systems in ways that are relevant across jurisdictions and across fields of academic inquiry. All contributions must be in English.

 

Presenting at the IEAF conference

Expressions of interest in delivering papers within the conference theme should be sent by email on or before 15 June 2022 to the INSOL Europe Academic Forum’s Secretary. Authors of papers selected for presentation will benefit from a waiver of the participation fee for the academic conference, however, they will be responsible for their own travel and accommodation costs. A limited number of travel grants will be available to junior scholars invited to present.

For further information, see: www.insol-europe.org/academic-forum-events

Our esteemed co-editor Mukarrum Ahmed has recently published a book titled Brexit and the Future of Private International Law in English Courts with Oxford University Press. He has kindly provided us with the following summary:

This book is the first full length study of the private international law implications of Brexit in a single consolidated resource. It provides an analytical and authoritative commentary on the impact of Brexit upon jurisdiction, foreign judgments, and the applicable law in civil and commercial matters. By discussing the principal post-Brexit changes in England, this book faces towards the future of private international law in English courts. It utilises a once-in-a-generation opportunity to analyse, understand, and reframe some fundamental assumptions about private international law with a view to suggesting adjustments and law reform.

Ahmed argues that a conscious unlearning of the central precepts of EU private international law would be detrimental to the future of English private international law. The multilateral issues that lie ahead for the discipline rely on the legal epistemology of EU private international law, which also serves as a useful reference point when comparing aspects of English private international law. Unshackled from the EU’s external competence constraints, the UK will have the opportunity to play a more prominent role in the development of the Hague Conference’s global instruments. A methodologically pluralist approach to English private international law may be the best route to sustain its global leadership in this field, as well as simultaneously assimilating the best private international law developments from the Commonwealth, Europe, and beyond.

In the context of the Vici project ‘Affordable Access to Justice’ at Erasmus School of Law (financed by the Dutch Research Council – NWO), the Project team organises a series of seminars dedicated to the Trends and Challenges in Costs and Funding of Civil Justice.

The Project’s Fifth Seminar is scheduled, in an online format, for Wednesday, 25 May 2022 (15:00-17:00 CEST) on the topic “Funding and Costs of ADR in the Civil Justice System”.

Speakers: Sue Prince (University of Exeter, UK), Nicolas Kyriakides (University of Nicosia, Cyprus), Dorcas Quek Anderson (Singapore Management University, Singapore); Moderator: Masood Ahmed (University of Leicester, UK).

For the complete program and online registration, please see here.

The Project’s Sixth Seminar, which concludes the series, will take place on Wednesday, 22 June 2022 (14:00-18:00 CEST) in a hybrid format (online and in-person attendance possible) on the topic “Future Regulation of Third-Party Litigation Funding”.

Session I – Current Status and the Need for Further Regulation?: Keynote address by Geert Van Calster (KU Leuven, Belgium); Roundtable with the participation of Paulien van der Grinten (Senior Legislative Lawyer, Ministry of Justice and Security, the Netherlands), Johan Skog (Partner, Kapatens, Sweden), David Greene (Partner, Edwin Coe, England); Moderator: Xandra Kramer (Erasmus University Rotterdam/Utrecht University, the Netherlands).

Session II – Modes and Levels of Regulation: Discussion panel with the participation of Kai Zenner (European Parliament, Head of Office (MEP Axel Voss)), Tets Ishikawa (Managing Director, LionFish Litigation Finance Ltd, England), Victoria Sahani (Arizona State University, USA), Albert Henke (Università degli Studi di Milano, Italy); Moderator: Eva Storskrubb (Uppsala University, Sweden) (member of the VICI project at Erasmus University Rotterdam).

The Sixth Seminar is set up in a hybrid format. The complete program and a more detailed description of the two sessions may be found here. You can register and participate either in person or online.

With thanks to Eduardo Silva de Freitas for the tip-off.

On 14 and 15 May 2022 the EAPIL Young Research Network has successfully held a conference on Jurisdiction Over Non-EU Defendants – Should the Brussels Ia Regulation be Extended? in Dubrovnik, Croatia.

The event, which was organized by Tobias Lutzi (University of Cologne), Ennio Piovesani (University of Torino), and Dora Zgrabljić Rotar (University of Zagreb), with the generous support of the Faculty of Law of the University of Zagreb, the Croatian Ministry of Science and Education, and the European Commission in Croatia, brought together around 30 scholars from all around Europe (and beyond) to discuss the findings from the Young Research Network’s third research project.

As such, the conference started with a presentation of the project’s Comparative Report, which the organizers had compiled on the basis of a total of 17 national reports on the domestic provisions on international jurisdiction in the EU Member States. It was followed by two panels, in which the national reporters discussed specific aspects of their respective national laws. The first panel, which was chaired by Tess Bens (Tilburg University), focused on the influence of the Brussels regime on the national laws of the Member States and included contributions from Stefano Dominelli (University of Genoa), Dafina Sarbinova (Sofia University “St. Kliment Ohridski”), and Benjamin Saumier (University of Paris 1 Panthéon-Sorbonne). The second panel, which was chaired by Vassiliki Marazopoulou (Hellenic Energy Exchange), on the other hand, focused on features of the national laws on international jurisdiction that are peculiar to only certain legal systems and contained contributions from Giedirius Ožiūnas (Mykolas Romeris University), Ioannis Revolidis (University of Malta), and Anna Wysocka-Bar (Jagiellonian University).

These first three panels, which were all focused on the comparative part of the project, provided the basis for a wider discussion of the desirability of extending the Brussels Ia Regulation to defendants not domiciled in the EU, potentially at the expense of the national rules on international jurisdiction. Professors Ronald Brand (University of Pittsburgh), Burkhard Hess (MPI Luxembourg), and Margherita Salvadori (University of Torino) all agreed that there was a lot to be said in favour of such an extension, albeit with different emphases. Johannes Ungerer (University of Oxford) and Marko Jovanović (University of Belgrade) were more cautious in their remarks, which focused on the prespectives of non-EU countries.

The conference concluded with a talk by Ning Zhao (HCCH), who presented the work of the Hague Conference on international jurisdiction and discussed its interplay with a possible extension of the Brussels Ia Regulation.

Over the two days of the conference, there appeared to emerge a strong consensus that although the comparative work of the research project provided an excellent basis for the necessary discussion of whether or not the Brussels Ia Regulation should be extended to non-EU defendants, more work needed to be done on the implications on recognition and enforcement of any reform of the Regulation. Thus, the Dubrovnik conference – the contributions to which will be published together with the comparative and national reports will be published later this year by Hart Publishing – marked not only the end of the current project of the Young Research Network but may have also already foreshadowed its next one.

The European Commission Recommendation (EU) 2022/758 of 27 April 2022 on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’), C/2022/2428, has been published this week at the OJEU (L 138, 17.5.2022, p. 30).

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2022.138.01.0030.01.ENG&toc=OJ%3AL%3A2022%3A138%3ATOC

The Grand Chamber delivered on 17 May 2022 its judgment in case C‑869/19 (L v Unicaja Banco SA, formerly Banco de Caja España de Inversiones, Salamanca y Soria SAU), which is about Directive 93/13/EEC on Unfair terms in consumer contracts and national rules of procedure:

“Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as precluding the application of principles of national judicial procedure, under which a national court, hearing an appeal against a judgment temporally limiting the repayment of sums wrongly paid by the consumer under a term declared to be unfair, cannot raise of its own motion a ground relating to the infringement of that provision and order the repayment of those sums in full, where the failure of the consumer concerned to challenge that temporal limitation cannot be attributed to his or her complete inaction”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=259430&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=922860

The Court of Justice delivered on 12 May 2022 its judgment in case C‑644/20, which is about not the Maintenance Regulation itself but the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations. The judgment is currently available in all EU official languages (save Irish), albeit not 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):

« L’article 3 du protocole de La Haye, du 23 novembre 2007, sur la loi applicable aux obligations alimentaires […] doit être interprété en ce sens que, aux fins de la détermination de la loi applicable à la créance alimentaire d’un enfant mineur déplacé par l’un de ses parents sur le territoire d’un État membre, la circonstance qu’une juridiction de cet État membre a ordonné, dans le cadre d’une procédure distincte, le retour de cet enfant dans l’État où il résidait habituellement avec ses parents immédiatement avant son déplacement, ne suffit pas à empêcher que ledit enfant puisse acquérir une résidence habituelle sur le territoire de cet État membre ».

Source : https://curia.europa.eu/juris/document/document.jsf?docid=259145&text=&dir=&doclang=FR&part=1&occ=first&mode=DOC&pageIndex=0&cid=209782

AG Collins delivered on 5 May 2022 his opinion in case C‑700/20 (The London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of Spain), which is about Brussels I (recognition of a judgment given in another Member State, a judgment irreconcilable with a judgment incorporating an arbitral award given between the same parties in the Member State in which recognition is sought).

Background: “Slightly under two decades ago, in November 2002, the M/T Prestige (‘the vessel’), a single-hull oil tanker registered in the Bahamas, broke into two sections and sank off the coast of Galicia (Spain). At the time the vessel was carrying 70 000 tonnes of heavy fuel oil and the resulting oil spill caused significant damage to beaches, towns and villages along the northern coastline of Spain and the western coastline of France. […] the sinking of the vessel generated a lengthy dispute between its insurers and the Spanish State pursued by way of two different procedures in two Member States. It resulted in two judgments: one delivered by the Audiencia Provincial de La Coruña (Provincial Court, A Coruña, Spain), the other handed down by the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) (United Kingdom). The Spanish State ultimately sought to have the judgment of the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) recognised by the courts of England & Wales. In the last days of the transitional period after the withdrawal of the United Kingdom from the European Union, the High Court of Justice (England & Wales) made a reference for preliminary ruling seeking an interpretation by the Court of Justice of Article 1(2)(d) and Article 34(1) and (3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”.

[…]

13. At the time the vessel sank, its owners (‘the owners’) had Protection & Indemnity (‘P&I’) insurance with The London Steam-Ship Owners’ Mutual Insurance Association Limited (‘the Club’), (7) pursuant to an insurance contract concluded by a certificate of entry dated 20 February 2002 (‘the insurance contract’). By that contract, the Club agreed to provide P&I cover for the owners in respect of, inter alia, any one occurrence of liability for pollution up to a maximum aggregate amount of 1 billion United States dollars (USD). The insurance contract was subject to the Club’s Rules, that is, the standard terms and conditions of the insurance policy incorporated into the certificate of entry. Rule 3, entitled ‘Right to recover’, provided for a ‘pay to be paid’ clause (8) in the terms following:

‘3.1 If any member shall incur liabilities, costs or expenses for which he is insured he shall be entitled to recovery from the Association out of the funds of this Class, PROVIDED that:

3.1.1 actual payment (out of monies belonging to him absolutely and not by way of loan or otherwise) by the Member of the full amount of such liabilities, costs and expenses shall be a condition precedent to his right of recovery;…’

14. Rule 43 of the Club’s Rules, entitled ‘Jurisdiction and law’, contained an arbitration clause whereby ‘if any difference or dispute shall arise between a Member and the Association’, ‘such difference or dispute’ was to be referred to arbitration in London (United Kingdom) before a sole legal arbitrator subject to English law and the Arbitration Act 1996.

15. In late 2002, criminal proceedings were initiated in Spain against, inter alia, the vessel’s master, chief officer and chief engineer.

16. In or about June 2010, at the conclusion of the investigatory stage of the criminal proceedings, several legal entities, including the Spanish State, brought civil claims against a number of defendants, including the Club as the owners’ liability insurer under the insurance contract pursuant to a right of direct action under Article 117 of the Spanish Criminal Code. The Club did not take part in the Spanish proceedings.

17. On 16 January 2012, the Club initiated arbitration proceedings in London, whereby it sought declarations to the effect that, pursuant to the arbitration clause in the insurance contract, the Spanish State was bound to pursue its claims under Article 117 of the Spanish Criminal Code in London and that the Club was not liable to the Spanish State in respect of such claims as a matter of English law and/or under that contract. The Spanish State did not participate in the arbitration proceedings. (9)

18. By an award delivered on 13 February 2013 (‘the Award’), the arbitral tribunal held that, since the claims in question were of a contractual nature under English conflict of law rules, English law applied to the contract. The Spanish State could not thus benefit from the owners’ contractual rights without complying with both the arbitration clause and the ‘pay to be paid’ clause. Moreover the Spanish State ought to have initiated arbitration proceedings in London to recover payment from the Club. The Award also declared that, in the absence of prior payment of the insured liability by the owners, the Club was not liable to the Spanish State in respect of the claims. In any event, the Club’s liability did not exceed USD 1 billion.

19. In March 2013, the Club applied to the referring court under section 66(1) and (2) of the Arbitration Act 1996 for leave to enforce the Award in the jurisdiction in the same manner as a judgment or order and for a judgment to be entered in the terms of the Award. The Spanish State opposed that application. It sought orders to set aside the Award and/or to declare the Award of no effect, pursuant to sections 67 and/or 72 of the Arbitration Act 1996. Those sections provide that an English arbitral award may be challenged on the grounds, inter alia, that the tribunal lacked substantive jurisdiction and that the relevant dispute could not properly be submitted to arbitration. The Spanish State also argued that the referring court should decline to exercise its discretion to enter judgment.

20. Following a seven-day trial in the course of which factual evidence together with expert evidence of Spanish law was heard, on 22 October 2013 the referring court delivered judgment. It ordered that the Spanish State’s applications be dismissed, granted the Club, pursuant to section 66(1) of the Arbitration Act 1996, leave to enforce the Award and declared that, pursuant to section 66(2) of that act, judgment was to be entered against the Spanish State in the terms of the Award. On the same date it delivered a separate formal judgment which stated that ‘pursuant to section 66(2) of the Arbitration Act 1996, judgment is entered against the [Spanish State] in the terms of the Award’. (10)

21. The Spanish State appealed against the section 66 judgment to the Court of Appeal (England & Wales) (Civil Division) (United Kingdom). By judgment of 1 April 2015, that court dismissed the appeal.

22. On 13 November 2013, the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) gave judgment in the Spanish proceedings. It made no finding as to the civil liability of the owners or of the Club. Various parties appealed against that judgment to the Tribunal Supremo (Supreme Court, Spain). By judgment of 14 January 2016, that court held, inter alia, that the master and the owners were liable in respect of the civil claims and that the Club was directly liable pursuant to Article 117 of the Spanish Criminal Code, subject to the global limit of liability of USD 1 billion. It remitted the matter to the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) to determine the quantum of the respective liabilities of the defendants to the Spanish proceedings. By judgment of 15 November 2017 (rectified on 11 January 2018), that court held that, as a result of the accident, the master, the owners and the Club were liable to over 200 separate parties (including the Spanish State) in sums in excess of EUR 1.6 billion, subject, in the case of the Club, to the global limit of liability of USD 1 billion. Various parties appealed against that judgment before the Tribunal Supremo (Supreme Court), which, by judgment of 19 December 2018 (amended on 21 January 2019), upheld it, subject to a limited number of variations.

23. On 1 March 2019, the Audiencia Provincial de La Coruña (Provincial Court, A Coruña) issued an execution order setting out the amounts that each of the claimants, including the Spanish State, were entitled to enforce against the respective defendants, including the Club (‘the Spanish judgment’).

24. On 25 March 2019, the Spanish State applied to the High Court of Justice (England & Wales) to have the Spanish judgment recognised under Article 33 of Regulation No 44/2001. That court acceded to that application by order of 28 May 2019 (‘the registration order’). (11)

25. On 26 June 2019, the Club lodged an appeal against the registration order under Article 43 of Regulation No 44/2001. It relied on two grounds. First, it argued that, pursuant to Article 34(3) of Regulation No 44/2001, the Spanish judgment was irreconcilable with the section 66 judgment which the Court of Appeal (England & Wales) (Civil Division) had upheld on 1 April 2015. Second, by reference to Article 34(1) of Regulation No 44/2001, it submitted that recognition or enforcement of the Spanish judgment was manifestly contrary to English public policy. The Spanish State contested the Club’s appeal. It asked the referring court to refer six questions for a preliminary ruling on the interpretation of Regulation No 44/2001.

26. In those circumstances, on 22 December 2020, the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court) decided to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of [Regulation No 44/2001]?

(2) Given that a judgment entered in the terms of an award, such as a judgment under section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article l(2)(d) arbitration exception, is such a judgment capable of constituting a relevant “judgment” of the Member State in which recognition is sought for the purposes of Article 34(3) of the regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition or enforcement or [does] Article 34(3) and (4) of the regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?’”

Suggested decision: “A judgment entered in the terms of an arbitral award pursuant to section 66(2) of the Arbitration Act 1996 is capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of Council Regulation (EC) No 44/2001 […], notwithstanding that such a judgment falls outside the scope of that regulation by reason of Article 1(2)(d) thereof”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=258882&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=212120

AG Collins delivered on 5 May 2022 his opinion in case C‑646/20 (Senatsverwaltung für Inneres und Sport, Standesamtsaufsicht v TB, joined parties: Standesamt Mitte von Berlin, RD), which is about Brussels II bis:

“The dissolution of a marriage by a legally ordained procedure whereby spouses each make a personal declaration that they wish to divorce before a civil registrar, who confirms that agreement in their presence not less than 30 days later after having verified that the conditions required by law for the dissolution of the marriage have been met, namely that the spouses do not have minor children or adult children who are incapacitated or severely disabled or economically dependent and the agreement between them does not contain terms concerning the transfer of assets, is a divorce judgment for the purposes of Council Regulation (EC) No 2201/2003 of 27 November 2003”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=258881&text=&dir=&doclang=EN&part=1&occ=first&mode=DOC&pageIndex=0&cid=217509

The Court of Justice delivered on 28 April 2022 its judgment in case C‑44/21 (Phoenix Contact GmbH & Co. KG v HARTING Deutschland GmbH & Co. KG, Harting Electric GmbH & Co. KG), which is about Directive 2004/48/EC on the enforcement of intellectual property:

“Article 9(1) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights must be interpreted as precluding national case-law under which applications for interim relief for patent infringement must, in principle, be dismissed where the validity of the patent in question has not been confirmed, at the very least, by a decision given at first instance in opposition or invalidity proceedings”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=258493&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=218534

AG De La Tour delivered on 28 April 2022 his opinion in C‑604/20 (ROI Land Investments Ltd. v FD), which is about Brussels I bis and Rome I. The opinion is currently available in selected EU official languages only (and therefore not 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)

« À titre principal :

1) L’article 21, paragraphes 1 et 2, du [Brussels I bis] doit être interprété en ce sens qu’une personne physique ou morale, domiciliée ou non sur le territoire d’un État membre, avec laquelle le travailleur a conclu non pas son contrat de travail, mais un accord faisant partie intégrante de ce contrat, en vertu duquel cette personne est responsable de l’exécution des obligations de l’employeur envers ce travailleur, peut être considérée comme un « employeur », si celle-ci a un intérêt direct à la bonne exécution dudit contrat. L’existence d’un tel intérêt direct doit être appréciée par la juridiction de renvoi de manière globale, en prenant en considération l’ensemble des circonstances de l’espèce.

2) L’article 6, paragraphe 1, du règlement no 1215/2012 doit être interprété en ce sens que l’application des règles de compétence du droit national est exclue lorsque les conditions d’application de l’article 21, paragraphe 2, de ce règlement sont réunies.

À titre subsidiaire, dans l’hypothèse où la Cour considérerait que le litige ne relève pas du champ d’application de l’article 21, paragraphe 2, du règlement no 1215/2012 :

3) L’article 17, paragraphe 1, du règlement no 1215/2012 et l’article 6, paragraphe 1, du règlement (CE) no 593/2008 du Parlement européen et du Conseil, du 17 juin 2008, sur la loi applicable aux obligations contractuelles (Rome I) doivent être interprétés en ce sens que la notion d’« activité professionnelle » recouvre une activité salariée dans le cadre d’une relation de travail.

4) L’article 17, paragraphe 1, du règlement no 1215/2012 et l’article 6, paragraphe 1, du règlement no 593/2008 doivent être interprétés en ce sens qu’un accord de garantie, faisant partie intégrante d’un contrat de travail en vertu duquel une personne est responsable de l’exécution des obligations de l’employeur envers le travailleur, relève de la notion d’« activité professionnelle » ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=258504&pageIndex=0&doclang=fr&mode=req&dir=&occ=first&part=1&cid=218534

Spetsializirana prokuratura (Procès d’un accusé en fuite)
Espace de liberté, sécurité et justice
En cas d’impossibilité de localisation d’une personne poursuivie en justice, celle-ci peut être jugée ou condamnée par défaut mais a le droit, par la suite, d’obtenir la réouverture du procès sur le fond de l’affaire en sa présence

INAIL et INPS
Sécurité sociale des travailleurs migrants
Le personnel navigant de Ryanair non couvert par des certificats E101 qui travaille 45 minutes par jour dans le local de cette compagnie aérienne destiné à accueillir l’équipage à l’aéroport de Bergame et qui, pour le temps de travail restant, se trouve à bord des aéronefs de ladite compagnie aérienne est soumis à la législation de sécurité sociale italienne

On 12 May 2022, the Court of Justice handed down the judgement in the WJ case (C-644/20) interpreting the Hague Protocol of 2007 on the law applicable to maintenance. The case revolved around the determination of the habitual residence of a creditor in the context of a child abduction.

Background

AP and WJ are Polish nationals who were residing in the UK, where their two children were born. In 2017 AP went to Poland together with children. Later she has informed WJ that she wanted to remain with children in Poland. WJ did not agree. In 2018 the children, represented by AP, claimed monthly maintenance payments from WJ before the Polish court. WJ appeared before this court without objecting to its jurisdiction. That court ordered him to pay to each of his children a monthly maintenance payment in accordance with Polish law. WJ brought an appeal against the judgment before the regional court. In the meantime, the same court ordered the return of the children to the UK, pursuant to the Hague Child Abduction Convention, was as they have been retained unlawfully in Poland and that their habitual residence immediately before that retention was in the UK. EJ appealed the maintenance order.

Preliminary Question

In accordance with Article 3(1) of the Hague Protocol, maintenance obligations are governed by the law of the State of the habitual residence of the creditor. However, pursuant to Article 3(2) Hague Protocol, in the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence shall apply as from the moment when the change occurs.

The Polish court had doubts as to whether a child might be considered for the purpose of applying Article 3 of the Protocol as being habitually resident in Poland, a country in which the child was wrongfully retained as confirmed by the decision ordering child’s return to the UK. Hence, it decided to consult the Court of Justice of the EU on that matter.

It is worth noting that the creditor in this case, in accordance with domestic rules on civil procedure, is a child represented by one of parents, namely the mother. Similarly, for the purpose of Article 3(1) of the Protocol, the habitual residence of a child was being discussed. The question who is a creditor in case of a minor child is not uniformly understood in all EU Member States (for details see: the recent position paper of the EAPIL Working Group on Maintenance prepared at the request of the HCCH Special Commission on Maintenance, para. 15-17).

Reasoning of the Court of Justice

The Court of Justice made some general remarks on the notion of habitual residence serving as a connecting factor in many EU and HCCH instruments, as well as referring to its previous judgments (for example, in Mölk case, C‑214/17). Then, the Court decided to rely on the explanatory report to the Hague Protocol. Point 37 of this report, which was cited by the Court of Justice of the EU, reads as follows

This connection offers several advantages. The main one is that it allows a determination of the existence and amount of the maintenance obligation with regard to the legal and factual conditions of the social environment in the country where the creditor lives and engages in most of his or her activities. As rightly noted by the Verwilghen Report, “[the creditor] will use his maintenance to enable him to live”. Accordingly, “it is wise to appreciate the concrete problem arising in connection with a concrete society: that in which the petitioner lives and will live”.

Hence, in the view of the Court of Justice, the assessment of the habitual residence of a child must consider factual circumstances. Assuming that a return decision handed down pursuant to HCCH Child Abduction Convention might be an obstacle to the conclusion that a child is habitually resident in a state to which the child was abducted, would be contrary to the aim of Article 3 Hague Protocol, as well as principle of the best interest of a child.

Conclusion

Given the above the Court of Justice has rightly decided that a child may acquire a new habitual residence in the state in which the child was wrongfully retained, even if the court of that state orders the return of the child to the state in which the child habitually resided immediately prior to the wrongful retention.

Kumlin & Anor v Jonsson & Ors [2022] EWHC 1095 (QB) disciplines forum shopping, in this case libel tourism, in a claim that is considered a SLAPP: a Strategic Lawsuit against public participation.

First Claimant is an entrepreneur, businessman and investor in sustainable and ethical business ventures, resident in Monaco, with business interests in the UK including in the Second Claimant, of which he is the founder, Chairman and Chief Executive Officer. He is a Swedish citizen. Second Claimant is a public limited company registered in England and Wales. Claimants’ case is that between 29 September 2020 and 2 November 2020 the Defendants, or some of them, all of whom are Swedish, published or caused to be published on the Website eight articles concerning the Claimants. There was further publication via Facebook, Twitter, etc, where links to the Articles were posted. 

The Articles are in Swedish. Knowles J [30] advances the reasoning, proposed by defendants, that jurisdiction under any of the gateways as a result of A4 BIa, locus damni or locus delicti commissi (A7(2) BIa per CJEU Bier and Shevill), or centre of interests (A7(2) BIa, per CJEU eDate and Bolagsupplysningen) only exist to the degree the case is actually actionable in those cases which, he submits, requires reference to the domestic laws of those Member States (e.g. a minimum ‘publication’ threshold). I believe this is incorrect: jurisdiction and actionability are not the same. While lex fori on threshold issues will have an immediate impact on the practical reality of a claim, it does not stand in the way of principled jurisdiction under BIa, which exists without reference to national laws.

The judge refers to much CJEU and E&W authority, all of it discussed on this blog, most recently the Court of Appeal in Mincione.

Knowles J’s discussion eg [69] ff of the intensity of publication etc required, under residual double actionability rules, in my view is a threshold question and not, as it is presented, a jurisdictional, gateway question, albeit the analysis in this section is mixed with justifiable discussion of direct v indirect damage under the CJEU Marinari rule. The judgment is much more extensive on this point than it could have been in my opinion.

[224] it is concluded that on the centre of interest issue, which is relevant for the natural person claimant only, his centre of interests is Monaco, where he is habitually resident. That is a factual assessment which is unlikely to be material for an appeal.

Geert.

EU private international law, 3rd ed. 2021, 2.439 ff.

#slapp, CJEU Bolagsupplysningen claxon. I have not yet seen the actual judgment. Should be an interesting jurisdictional read. https://t.co/yibMYgKcgz

— Geert Van Calster (@GAVClaw) May 11, 2022

Ryanair / Commission (Condor; aide au sauvetage)
Aide d'État
Le Tribunal de l’Union européenne confirme la compatibilité de l’aide allemande au sauvetage de Condor avec le droit de l’Union

Canon / Commission
Concurrence
Le Tribunal rejette le recours de Canon qui s’est vu infliger une amende de 28 millions d’euros par la Commission pour non-respect des règles en matière de contrôle des concentrations lors de son rachat de Toshiba Medical Systems Corporation