Agrégateur de flux

AC Milan / EUIPO - InterES (ACM 1899 AC MILAN)
Propriété intellectuelle et industrielle
Le Tribunal confirme que le signe représentant l’écusson du club de football AC Milan ne peut faire l’objet d’un enregistrement international en tant que marque désignant l’Union pour des articles de papeterie et de bureau

Google et Alphabet / Commission (Google Shopping)
Concurrence
Le Tribunal rejette pour l’essentiel le recours de Google contre la décision de la Commission constatant que l’entreprise a abusé de sa position dominante en favorisant son propre comparateur de produits par rapport aux comparateurs de produits concurrents

Author: Ting LIAO, Ph.D. candidate, Wuhan University Institute of International Law

A. Technology in the Context of Judicial Reform

According to Max Weber, “the modern judge is a vending machine into which the pleadings are inserted together with the fee, and which then disgorges the judgment together with the reasons mechanically derived from the code.” [1]Max Weber’s conjecture is a metaphor for the vital connotation of intelligence. The key elements of intelligence are people, data and technology. So, how these elements are utilized in the judicial system?

Generally, a significant number of courts are experimenting with the use of internet, artificial intelligence and blockchain for case filling, investigation and evidence obtaining, trials and the initiation of ADR procedures. The so-called smart justice projects are commenced in many countries. China has also made significant progress in this domain. In addition to accelerating the use of the internet technology, the Supreme People’s Court of China has demonstrated its ambition to use AI  and blockchain to solve problems in the judicial proceedings.[2]

B. Smart Court in China: An Overview

In China, the smart justice is a big project contains smart court, smart judicial administration and smart procuratorate. The smart court is the core of the entire smart justice project. “The Opinions of the Supreme People’s Court on Accelerating the Construction of Smart Courts” encourages people’s courts around the country to apply AI to provide smarter litigation and legal literacy services to the public, while reducing the burden of non-judicial matters for court staff as much as possible.

The construction of China’s smart courts involves more than 3,000 courts, more than 10,000 detached tribunals and more than 4,000 collaborative departments, containing tens of thousands of information systems such as information infrastructure, application systems, data resources, network security and operation and maintenance, etc. The entire smart court information system is particularly big and complex.

The smart court is a functional service platform for the informatization of the people’s courts. The platform integrates several cutting-edge technological capabilities, including face recognition identity verification, multi-way audio and video call functions, voice recognition functions and non-tax fee payment functions. These functions are tailor-made capability packages for courts, and they can be used in a variety of scenarios such as identity verification, online documents accessing, remote mediation, remote proceedings, enforcement, court hearing records and internal things. Through the smart platform, any court can easily access to the capabilities, and quickly get successful experiences from any other courts in China.

C. Examples of Good Practice

1. Provide Litigation Information and Services

Peoples’ Courts in nine provinces or municipalities, including Beijing, Shanghai and Guangdong, have officially launched artificial intelligence terminals in their litigation service halls. Through these AI terminals, the public can access information about litigation and judicial procedures, as well as basic information about judges or court staff. The AI terminals can also automatically create judicial documents based on the information provided by the parties. More importantly, the AI can provide the parties risk analysis before filing a lawsuit. For example, artificial intelligence machines in courts in Beijing, Shanghai and Jiangsu can assess the possible outcome of litigation for the parties. The results are based on the AI’s analysis of more than 7,000 Chinese laws and regulations stored in its system, as well as numerous judicial precedents. At the same time, the AI machine can also suggest alternative dispute resolution options. For example, when an arbitration clause is present, the system will suggest arbitration, in divorce cases, if one of the parties unable to appear in people’s court, then the smart system shall advise online mediation.

In addition to parties, as to the service for the court proceeding itself, the new generation of technology[3] is used in the smart proceeding and is deeply integrated with it. These technologies provide effective support for judges’ decision making, and provide accurate portraits of natural persons, legal persons, cases, lawyers and other subjects. They also provide fast, convenient and multi-dimensional search and query services and automatic report services for difficult cases.

2. Transfer of Case Materials

Some People’s Courts in Shenzhen, Shanghai and Jiangsu have set up artificial intelligence service terminals for parties to scan and submit electronic copies of materials to the court. This initiative can speed up the process of evidence submission and classification of evidence. In addition, digital transmission can also speed up the handover of case materials between different courts, especially in appellate cases where the court of first instance must transfer the case materials to the appellate court.

3. Evidence Collection and Preservation

Technically speaking, the blockchain and its extensions can be used to secure electronic data and prevent tampering during the entire cycle of electronic data production, collection, transfer and storage, thus providing an effective means of investigation for relevant organizations. Comparing to traditional investigation methods, blockchain technology is suitable as an important subsidiary way to electronic data collection and preservation. This is because the blockchain’s timestamp can be used to mark the time when the electronic data was created, and the signature from the person’s private key can be used to verify the party’s genuine intent. The traceable characteristics of blockchain can facilitate the collection and identification of electronic data.[4]

In judicial practice, for example, the electronic evidence platform is on the homepage of Court’s litigation services website of Zhengzhou Intermediate People’s. It is possible to obtain evidence and make preservation on judicial blockchain of the court. This platform providing services such as evidence verification, evidence preservation, e-discovery and blockchain-based public disclosure. The evidence, such as electronic contracts, can be uploaded directly via the webpage, and the abstract of electronic data can be recorded in the blockchain in real time. Furthermore, this judicial blockchain has three tiers (pictured below). The first tier is the client side, which helps parties submit evidence, complaints and other services. The second tier is the server side, which provides trusted blockchain services such as real-name certification, timestamping and data storage. The third tier is the judicial side, which uses blockchain technology to form a consortium chain of judicial authentication, notaries and the court itself as nodes to form a comprehensive blockchain network of judicial proceedings.[5] In other words, people’s court shall be regarded as the key node on the chain, which can solve the contradiction between decentralization and the concentration of judicial authority, and this kind of blockchain is therefore more suitable for electronic evidence preservation.

Secondly, for lawyers, the validity of electronic lawyer investigation orders can be verified through judicial blockchain, a technology that significantly enhances the credibility of investigation orders and the convenience of investigations. For example? in Jilin Province, the entire process of application, approval, issuance, utilization and feedback of an investigation order is processed online. Lawyers firstly apply for an investigation order online, and after the judge approves it, the platform shall create an electronic investigation order and automatically uploads it to the judicial blockchain for storage, while sending it to lawyers in the form of electronic service. Lawyers shall hold the electronic investigation order to target entities to collect evidence. Those entities can scan the QR code on the order, and login to the judicial blockchain platform to verify the order. Then they shall provide the corresponding investigation evidence materials in accordance with the content of the investigation order.[6]

In addition, it should be noted that Article 11 of the “Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases by Internet Courts”, which came into force in 2018, explicitly recognizes data carriers on the blockchain as evidence in civil proceedings for the first time, but their validity needs to be verified by the courts.

The issue of blockchain evidence has already caused discussion among judges, particularly regarding the use of blockchain-based evidence in cases. For instance, what criteria should courts adopt to read such data? Approaches in judicial practice vary. Currently, there is no consistent approach in people’s court as to whether blockchain evidence needs to be submitted as original evidence. In certain recent cases, such as (2019) Jing 0491 Min Chu No. 805 Case and (2020) Jing 04 Min Zhong No. 309 Case, the court’s considerations for the determination of blockchain evidence are inconsistent.

4. Case Management

People’s Courts in Shanghai and Shenzhen are piloting an artificial intelligence-assisted case management system that can analyze and automatically collate similar judicial precedents for judges to refer to. The system is also able to analyze errors in judgments drafted by judges by comparing the evidence in current cases with that in precedent cases. This will help maintain uniformity in judicial decisions. Currently, the system for criminal cases has been put into use, while the system for civil and administrative cases is still being tested in pilot stage.

5. Online Proceedings

Chinese courts had already adopted online proceedings in individual cases before 2018. The Supreme People’s Court had released the Provisions of the Supreme People’s Court on Certain Issues Concerning the Hearing of Cases in Internet Courts. From 1 January 2020 to 31 May 2021, 12.197 million cases were filed online by courts nationwide, with online filing accounting for 28.3% of all cases filed; 6.513 million total online mediation, 6.142,900 successful mediation cases before litigation; 1.288 million online court proceedings 33.833 million electronic service of documents.[7]

Recently, the Supreme Court, some provincial courts and municipal courts have also issued rules on “online proceedings”. The Supreme People’s Court has issued the Online Litigation Regulations for the People’s Court 2021 which stipulates online litigation should follow the five principles, namely fairness and efficiency, legitimate and voluntary principle, protection of rights, principle of safety and reliability. This regulation emphasizes the principles of application of technology, strictly adhere to technology neutrality, to ensure that technology is reliable. [8]Furthermore, in 2021 the Supreme People’s Court has issued the Several Regulations on Providing Online Filing Services for Cross-border Litigants, relying on the provision of online filing for cross-border litigants through the China mobile micro court. Based on Tencent’s cloud technology, the Micro Court can also be linked to the most used communication tool in China, namely WeChat. Using the micro courts mini programs allows for a dozen functions such as public services, litigation, enforcement and personal case management.[9]

6. Framework of the Litigation Services Network

The litigation service network is an important carrier for the court to conduct business and litigation services on the Internet, providing convenient and efficient online litigation services for parties and litigation agents, greatly facilitating the public’s litigation, while strengthening the supervision and management of the court’s litigation services, enhancing the quality of litigation services and improving the standardization of litigation services. The picture shows the functioning and operation mechanism of a litigation services network.[10]

[1] See Max Weber, On Law in Economy and Society (Edward Shils and Max Rheinstein trans., Harvard University Press 1954).

[2] For example, in 2019, the Supreme People’s Court of China approved several documents such as “The Report on the Promotion of China Mobile Micro Courts”, “The Report on the Construction of the Smart Court Laboratory”, and “The General Idea of Comprehensively Promoting the Construction of Judicial Artificial Intelligence”.

[3] Including big data, cloud computing, knowledge mapping, text mining, optical character recognition (OCR), natural language processing (NLP) etc.

[4] See Trusted Blockchain Initiatives, White Paper on Blockchain Preservation of Judicial Evidence (2019).

[5] See Zhengzhou Court Judicial Service Website < http://www.zzfyssfw.gov.cn/zjy/> accessed 09 Nov. 2021; A consortium chain is a blockchain system that is open to a specific set of organizations, and this licensing mechanism then brings a potential hub to the blockchain, and The node access system in a consortium chain means that it already grants a certain level of trust to the nodes.. see also Internet court of Hangzhou < https://blockchain.netcourt.gov.cn/first>accessed 09 Nov. 2021.

[6] See e.g., a pilot project of the Supreme People’s Court of China, the Jilin Intermediate People’s Court proposed the Trusted Operation Application Scene: Full Process Assurance for Litigation Services (Electronic Lawyer Investigation Order); see also People’s Court Daily, Piloting the “judicial chain” and multipions practice of Jilin’s smart court construction< http://legal.people.com.cn/n1/2020/1124/c42510-31942250.html>accessed 08 Nov. 2021.

[7] See Chinanews < https://www.chinanews.com/gn/2021/06-17/9501170.shtml>accessed 08 Nov. 2021.

[8] SPC of PRC, Report about Online Litigation Regulation for the People’s Court< http://www.court.gov.cn/zixun-xiangqing-317061.html>accessed 08 Nov. 2021.

[9] See e.g., Xinhuanet < http://www.xinhuanet.com/legal/2020-05/07/c_1125953941.htm>accessed 08 Nov. 2021.

[10] Xu Jianfeng et.al., Introduction to Smart Court System Engineering (People’s Court Press 2021).

It is common practice for children to be registered in the country where they are born or where they hold nationality. But what if these countries fail to do so? A judgment of 18 October 2021 rendered by a judge of first instance in Montilla (Spain) gives an answer, which was reported in the blog run by José Carlos Fernández Rozas and on the webpage of the Consejo General del Poder Judicial. The judgment can still be appealed.

Facts

A child was born in March 2020 in Oran (Algeria) to a national of Cameron; the father is unknown. The Algerian authorities failed to register the child. One year later, mother and child entered Spanish territory, where they have been living since in a refugee centre in Montilla.

Holding

The judge decided that the child should be registered in the Spanish civil register, despite the absence of a previous registration in the country of its birth or nationality.

Rationale

The Spanish judge stressed that competence for registering the child’s birth lay first and foremost with Algeria, the place of its birth, and with Cameron, the country of its nationality. Since these countries failed to exercise their competence, the judge found that Spain had both the right and the duty to register the child. The legal basis for doing so would be Article 9(2) of the Spanish Act on the Civil Register (Ley 20/2011, de 21 de julio, del Registro Civil), which provides that events and acts that have taken place outside Spain shall be registered in the Spanish register when required by Spanish law.

High-Level Human Rights Principles

Most interesting is where the judge found the requirement to register the event of the child’s birth. In this regard, he referred to the highest-ranking legal sources available. In particular, he cited the Universal Declaration of Human Rights, and the various rights it grants to the individual. The judge used these sources to formulate some very far-reaching and important legal propositions. He emphasised that the registration of a person’s identity is “one of the most essential manifestations of the recognition of the individual as such”. It would be “the only form by which society and the law accept its existence”, and it would “facilitate the exercise of all of the rights that the law bestows from the time of birth”. Without an entry in the civil register, there would be no liberty to respect, and no right to recognise.

More Technical Considerations, in particular the UN Convention on the Rights of the Child

On a more technical level, the judge referred to Article 6 of the Universal Declaration of Human Rights, which says that “Everyone has the right to recognition everywhere as a person before the law”. He also referred to the UN Convention on the Rights of the Child, which had been signed and ratified by Spain, Article 7(1) of which sets out that “[t]he child shall be registered immediately after birth …”.

The judge considered Article 7(1) of the Convention to be of direct and immediate effect because of its clear, precise and unconditional formulation. This was despite Article 7(2) of the Convention, under which the states party to the Convention shall implement the obligation to register, “in particular where the child would otherwise be stateless”. The judge argued that Article 7(2) was mainly focused on avoiding situations of statelessness, and that the registration was a condition prior to the granting of nationality because only persons recognised as having legal personality could be considered as nationals. In other words, the child had to be registered somewhere before nationality could be granted. Article 7(1) of the Convention would thus contain a binding obligation for Spanish tribunals to this effect.

Constitutional Law

The judge cited various other provisions, especially of the Spanish Constitution. Inter alia, Article 39(4) of the Constitution provides that “Children shall enjoy the protection provided for in the international agreements which safeguard their rights”.  He also referred to Article 96(1) of the Constitution, according to which validly concluded international treaties, once officially published in Spain, shall form part of the internal legal order.

Assessment

The judgment requires the registration of children by local authorities where a child has been born abroad but not registered there. This is a significant principle that should also be followed by other nations. As a legal basis, they could use either the UN Convention on the Rights of the Child or, if they have not signed it, the Universal Declaration of Human Rights, which applies as customary international law.

Nevertheless, the judgment should not be overinterpreted. Even where a child has not been registered, it is entitled the plenitude of human rights, which exist from birth and are not preconditioned on registration. However, without being officially registered, the child (and also its mother) will encounter many difficulties in practical life. This is why registration is so important that it may be considered even as a human right that can be invoked everywhere.

— Special thanks to José Carlos Fernandez Rozas for his contribution to this post.

Le Comité européen de la protection des données (CEPD) précise les conditions dans lesquelles des restrictions peuvent être apportées aux droits des personnes concernées et aux obligations des responsables du traitement au titre de l’article 23 du RGPD.

en lire plus

Aldricus – Kondisi tubuh wanita yang tengah hamil dan tidak memang berbeda, bukan hanya dari segi fisik tapi juga psikis. Ibu hamil lebih rentan mengalami gangguan kesehatan, terutama mengalami anemia. Ada beberapa penyebab anemia ibu hamil yang jika diketahui sejak dini dapat membantu Anda menghindarinya.

Penyebab Bumil Alami Anemia

Anemia pada ibu hamil memang bukan hal langka dan banyak yang mengalaminya. Akan tetapi, masalah ini tidak dapat disepelekan karena dapat berakibat fatal pada kehamilan, seperti bayi lahir prematur atau mengalami cacat fisik. Berikut adalah beberapa penyebab anemia pada wanita hamil:

1. Kekurangan Zat Besi

Zat besi dibutuhkan untuk memproduksi sel darah merah dan sel darah merah sangat dibutuhkan untuk mengalirkan oksigen dan nutrisi ke seluruh tubuh. Jika dibiarkan akan mempengaruhi tumbuh kembang janin dan membuat plasenta tidak lagi optimal. Biasanya anemia ini disebabkan kurangnya ibu mengonsumsi makanan mengandung zat besi, baik selama maupun sebelum masa kehamilan.

2. Kekurangan Asam Folat atau Vitamin B9

Penyebab anemia ibu hamil berikutnya adalah kekurangan asam folat yang dapat mengakibatkan malabsorpsi. Dalam kondisi ini tubuh ibu hamil akan mengalami kesulitan menyerap asam folat sehingga dapat mengganggu perkembangan sel otak janin dan mempengaruhi perkembangan pada bagian tubuh janin.

3. Kekurangan Asupan Vit. B12

Selain vitamin B9, vitamin B12 juga merupakan jenis nutrisi yang diperlukan bagi tubuh. Kondisi ini akan berbahaya karena tubuh tidak mampu mencukupi kebutuhan sel darah merah dan dapat berakibat pada pertumbuhan janin.

Ketika tubuh tidak mampu melakukan penyerapan vitamin B12 dengan baik, maka akan membuat pembentukan sel darah merah berkurang. Jadi, harus ditangani dengan pemberian suplemen mengandung vit.12. Kebiasaan mengonsumsi alkohol saat hamil juga dapat membuat bumil bisa memicu kekurangan vit B12 ini.

Oleh sebab itu, penyebab anemia ibu hamil harus diketahui sehingga dapat diberikan pengobatan yang tepat untuk mengatasi masalah tersebut. Bisa dengan mengatur asupan makanan yang kaya zat besi dan vitamin B9 dan B12 atau menambahkan asupan suplemen.

The post 4 Penyebab Ibu Hamil Mengalami Anemia dan Cara Penangannya appeared first on Aldri Blog.

In a judgment of 9 November 2020, the Greek Supreme Court discussed a highly interesting issue, which is not often dealt with in practice. The question is whether foreign law (English law, in the circumstances) may apply to procedural acts due to take place in the forum (Greece), affecting directly the limitation of the action. Specifically, the issue had arisen of the consequences of the waiver of the lawsuit by the claimant/appellant, and the repercussions of its examination pursuant to either Greek or English law.

Facts and Judgment

An insurance company, seated in the UK, provided insurance in connection with the contract for the sale of fuel concluded among the insured one and a ship carrier having seat in Greece. Due to an accident at sea, the insurance company reimbursed the insured one and, by endorsement, was handed over the bills of lading, which included a choice of English law. The insurance company, then, initiated proceedings against the carrier (which was also at the same time the shipowner) in Greece. Service of process took place on 7 July 2008, but on 16 February 2010 the claimant proceeded to the discontinuance of the action pursuant to Article 294 Greek Code of Civil Procedure. Ten days later, the insurance company filed a new action against the defendant, adding this time as defendant another company – notably the new shipowner – to which the ship was in the meantime sold and which incorporated the first one in its capacity of shipowner, succeeding in the related rights and obligations.

In the ensuing hearing before the Piraeus Court of first instance, both defendants pleaded that the action was time-barred, relying upon Article III(6) of the Hague-Visby Rules, which reads as follows:

Subject to paragraph 6bis the carrier and the ship shall in any event be discharged from all liability whatsoever in respect of the goods, unless suit is brought within one year of their delivery or of the date when they should have been delivered. This period, may however, be extended if the parties so agree after the cause of action has arisen.

The claimant countered that the first claim was filed within one year of the supposed delivery (which failed because of the accident). The discontinuance was made with the intention to correct some parts of the claim. The claimant supported that Greek law should apply. This would lead to the application of Article 263(2) Greek Civil Code, which allows the claimant to file a new claim within six months following the waiver of action. Should this happen, the interruption of limitation goes back to the filing of the initial action. Hence, in accordance with Greek law, this procedural act may not be interpreted as a complete and solemn waiver of the action.

On the contrary, the defendant, the first one, insisted, through all stages of the proceedings, that the choice agreed in favor of English law encompasses the interruption of limitation issue too (the outcome of the case with respect to the second defendant is not related to the matter discussed here).

The Supreme Court ruled in favor of the defendant/appellee. It underlined that the Hague-Visby Rules stipulate the one-year limitation; however, they do not address other issues connected to it, such as interruption and suspension. Consequently, the above matters should be examined by the proper law of the contract, i.e., English law, as evidenced in the bills of lading. Therefore, Greek law, and most importantly, Article 263 Greek Civil Code, may not be applied in the case at hand.

Following the above, the Supreme Court referred extensively to pertinent provisions of the Civil Procedure Rules (CPR) i.e. Parts 17.4 (Amendments to statements of case after the end of a relevant limitation period), 19.5 (Special provisions about adding or substituting parties after the end of a relevant limitation period), 38.2 (Right to discontinue claim), and 38.7 (Discontinuance and subsequent proceedings). It concluded that, pursuant to English law, the discontinuance of the claim can bring all or part of the proceedings instigated to an end by serving a formal notice of discontinuance. In other words, there is no such thing as a revival of the proceedings by means of a new claim filed within a specific period of time, similar to what is provided for by Article 263 Greek Civil Code.

The judgment was mostly based on the legal information related to the CPR, delivered by the Hellenic Institute of Comparative Law, which was requested to be furnished before the first instance court. In addition, the judgment gave very convincing answers to the appellant’s assertions, unknowingly following the same path taken by courts in other jurisdictions (see below, the second next paragraph).

Applicable Rules

It is necessary to underline the legal framework surrounding the case. The Supreme Court correctly applied Article 3(1) of the 1980 Rome Convention on the law applicable to contractual obligations. However, no further reference to other provisions of the convention is to be found in the text. Articles 1(2)h and 10(1)d were also pertinent to the case.

Article 1(2)h: The rules of this Convention “shall not apply to: […] (h) evidence and procedure, without prejudice to Article 14”.

Article 10(1):  “The law applicable to a contract by virtue of Articles 3 to 6 and 12 of this Convention shall govern in particular: […] (d) the various ways of extinguishing obligations, and prescription and limitation of actions.”

Additionally, reference could be made to Article 21 (Relationship with other conventions), where it is clearly stated that the Rome Convention “shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party”, for sufficiently justifying the application of Article 3 Hague-Visby Rules.

In light of the above, the answer to the question depends on the interpretation given under the aforementioned provisions of the Rome Convention. Put differently, the crucial issues are, whether the interruption of limitation is covered by the wording of Article 10(1)d, and whether the discontinuance and the subsequent filing of the claim should be considered as procedural matters, therefore not covered by the Rome Convention pursuant to Article 1(2)h.

The situation is similar under the Rome I Regulation on the law applicable to contractual obligations, see Articles 12(1)d and 1(3). So far, no preliminary reference has been submitted concerning the questions above. The general trend is to include all aspects of limitation within the scope of the Regulation (interruption, suspension, commencement), even if they are carried out by procedural means. The procedural nature attributed to limitation by virtue of domestic law (here: UK) does not affect the proper application of the Rome I Regulation. In any case, procedural rules related to limitation must be considered as part of the applicable law of the contract (in German: Vertragsstatut).

The Issue in the Prism of the Rome II Regulation

The Rome II Regulation on the law applicable to non-contractual obligations contains similar provisions, namely Articles 1(3) and 15(h). However, there are visible differences in the wording of the latter provision. Article 15(h) is more precise. It stipulates that the law specified under the Regulation provides, among other things, the rules relating to the commencement, interruption and suspension of a period of prescription or limitation.

Two judgments issued by English courts shed light to the issue: Pandya v Intersalonika General Insurance Co SA,  [2020] EWHC 273 (QB) (the text is not yet accessible on open sources), and Johnson v Berentzen & Anor [2021] EWHC 1042 (QB) (26 April 2021).These cases relate to car accidents with cross-border element.

In the first case, a UK citizen was injured by a Greek national on the island of Kos. The claim against the Greek insurance company was filed in England. The action was registered with the court; however, service was not effectuated within 5 years following the accident, which renders the action time-barred pursuant to Greek law. The claimant considered that the application of Greek law for the service of process by an English court is absurd. The court had a different view: it ruled that the procedural nature of service forms here part of the interruption of limitation issue. The resemblance to the ruling of the Greek Supreme Court is evident. A right to appeal was refused.

In the second case, the accident occurred on Scottish soil. The perpetrator was domiciled in Germany, whereas the victim in England. The issue revolved again around belated service of the claim. The attempt of the claimant to deconstruct the judgment of the court in the Pandya v Intersalonika case remained unsuccessful. Nevertheless, the court granted the request of the claimant to proceed out of time, by providing an extension in accordance with Scottish law.

Bundesrepublik Deutschland (Maintien de l’unité familiale)
Espace de liberté, sécurité et justice IMMI
Le régime d’asile européen commun ne s’oppose, en principe, pas à ce qu’un État membre étende automatiquement, à titre dérivé et aux fins du maintien de l’unité familiale, le statut de réfugié à l’enfant mineur d’un parent auquel a été octroyé ce statut

Governor of Cloverhill Prison e.a.
Espace de liberté, sécurité et justice
Avocate générale Kokott : les dispositions de l’accord de retrait et de l’accord de commerce et de coopération, qui prévoient le maintien du régime du mandat d’arrêt européen à l’égard du Royaume-Uni, sont contraignantes pour l’Irlande

A webinar in English on The resolution of the Institut de Droit International on Human Rights and Private International Law will take place on 12 November 2021, from 16.30 to 18.30 CET, organised by the Interest Group on Private International Law of the Italian Society of International Law (SIDI).

The speakers will be Fausto Pocar and Patrick Kinsch.

Attendance is free. Those wishing to join the webinar are invited to send an e-mail to sidigdipp@gmail.com.

Au regard du droit européen, les plans de prévention du bruit dans l’environnement n’ont pas à être soumis à évaluation environnementale. Il en va différemment des plans d’exposition au bruit des aérodromes.

en lire plus

S’il envisage de refuser un titre de séjour en application de la réserve d’ordre public, figurant à l’article 6 de l’accord franco-algérien du 27 décembre 1968, le préfet doit saisir au préalable la commission du titre de séjour lorsque le demandeur remplit les conditions prévues par les articles L. 312-1 et L. 312-2 du code de l’entrée et du séjour des étrangers et du droit d’asile (CESEDA).

en lire plus

La périodicité bimestrielle adoptée pour cette chronique d’actualité de la jurisprudence de la Cour de Strasbourg amène à constater que la tranche septembre/octobre 2021 se caractérise par l’absence, pour la première fois depuis le début de l’année, d’arrêts rendus en grande chambre. Cette particularité est, à n’en pas douter, purement conjoncturelle. Il en est une seconde qui, elle, promet d’être structurelle : il s’agit de la montée en régime des décisions relatives aux mesures provisoires qui sont tout à fait d’actualité mais ne correspondent peut-être pas exactement à une jurisprudence. Pour ce qui est de l’actualité jurisprudentielle proprement dite, elles est riche d’enseignements se rapportant à des questions aussi graves et aussi diverses que la covid-19 ; les abus sexuels sur mineurs ; les assassinats politiques et le suicide des personnes privées de liberté ; les mesures sécuritaires coercitives ; l’adaptation du droit à la liberté d’expression à la communication numérique ; les limites du droit à l’humour ; l’influence attendue de la CEDH sur le droit des personnes et de la famille ; celle plus originale sur le droit du travail, le droit des contrats, le droit des groupements, le droit de la propriété immobilière, le droit de vote ou le formalisme procédural excessif.

en lire plus

Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm) (05 November 2021) concerns an alleged cartel between several Brazilian companies which produce orange juice, including Sucocítrico Cutrale: 3rd defendant. The other two defendants, Mr Cutrale Sr and Mr Cutrale Jr,  are natural persons Claimants are orange farmers who are all domiciled in Brazil.  The claim relates to alleged antitrust infringements committed in Brazil and said to have restricted competition in markets in Brazil, causing harm to the Claimants there.

Claimants claim to be entitled to maintain proceedings in England and Wales on the bases that:

i)                   although Sucocítrico Cutrale is a Brazilian company, it has its central administration in London and is therefore domiciled in the UK pursuant to A63(1)(b) Brussels Ia;

ii)                 alternatively, the Claimants were entitled to serve Sucocítrico Cutrale, pursuant to CPR 6.3(c)/6.9(2) at a “place within the jurisdiction where [it] carries on its activities; or any place of business of the company within the jurisdiction”.

iii)               Cutrale Snr is domiciled in England; and

iv)               Cutrale Jnr is domiciled in Switzerland and the claims against him are so closely connected with the claims against Sucocítrico Cutrale and Cutrale Snr that it is expedient to hear and determine them together so as to avoid the risk of irreconcilable judgments, pursuant to Article 6 Lugano Convention.

The Defendants’ position is in outline as follows:

Sucocítrico Cutrale

i)                   Sucocítrico Cutrale has its “central administration” in Brazil and is therefore not domiciled in the UK for the purpose of A63(1)(b) BIa.  There is therefore no right to bring proceedings against the company in England under Article 4(1). The court must apply common law principles to determine jurisdiction.

ii)                 Alternatively, the claims against Sucocítrico Cutrale should be stayed under A33 and/or 34 BIa because of ongoing proceedings in Brazil concerning the alleged cartel.

iii)               The Claimants were not entitled to serve Sucocítrico Cutrale at an address within the jurisdiction, and so the company has not been validly served.

iv)               Alternatively, applying common law forum non conveniens principles, Brazil is the proper place for the claims against Sucocítrico Cutrale and the court should not exercise jurisdiction against it.  The claims against Sucocítrico Cutrale should be stayed even if (contrary to the Defendants’ primary case) Cutrale Snr is domiciled in England. Cutrale Snr has confirmed that he would submit to the jurisdiction of the Brazilian court. The risk of inconsistent judgments in England and Brazil therefore carries little weight because it would be caused by the Claimants’ unnecessary pursuit of litigation in England. In such circumstances, the court may stay the claims against the foreign defendant notwithstanding the presence of a UK domiciled anchor defendant (reference is made to Vedanta Resources plc v Lungowe [2020] AC 1045 . I flagged the ‘submission to foreign jurisdiction’ issue in my review of Vedanta).

Cutrale Snr

v)                  Cutrale Snr is not domiciled in the UK. There is therefore no right to bring proceedings against him under A4(1) BIa.

vi)               Further or alternatively, the court should stay the claims against Cutrale Snr pursuant to A34 BIa because of the ongoing proceedings in Brazil.

vii)             Although Cutrale Snr was served in the jurisdiction, applying common law forum non conveniens principles Brazil is the proper place for the claim.  Accordingly, the court should decline jurisdiction.

Cutrale Jnr

viii)           If neither Sucocítrico Cutrale nor Cutrale Snr is English domiciled there is no basis to assume jurisdiction against Cutrale Jnr.

ix)               If Cutrale Snr is English domiciled but the claims against Sucocítrico Cutrale are to proceed in Brazil, the criteria under A6 Lugano are not met because it would be more expedient for the claims against Cutrale Jnr to be heard in Brazil alongside the claims against Sucocítrico Cutrale.

x)                  Further or alternatively, the court should stay the claims pursuant to a reflexive application of A28 Lugano Convention because of the ongoing proceedings in Brazil.

Henshaw J held that the court lacks jurisdiction over Sucocítrico Cutrale however that it does have jurisdiction over Cutrale Snr and Cutrale Jnr and  that there is no proper basis on which to stay the claims against them.

Domicile of Sucocítrico Cutrale (‘SuCu’)

A63 BIa determines corporate domicile as the place where the corporation has its (a) statutory seat; (b) central administration; or (c) principal place of business. Claimants suggest place of central administration as being in London. Anglo American came to my mind as indeed it did to counsel and judge in current case. At 31 ff a concise look into the travaux is offered as are references to CJEU case-law under freedom of establishment (including Uberseering). I would be cautious however with too much emphasis on those cases, which are judged in quite a different context to the one in a jurisdictional assessment.

SuCu are in in essence a family-run business [55]. This is also emphasised in the witness statement of Cutrale Sr himself. SuCu refer extensively to its internal by-laws and the role in same for the ‘Executive Board’ which is made up of professionals. However there is also a, by-laws sanctioned, Family Board (in which Cutrale Sr until recently had a 99% stake). The Executive Board, by defendant’s own admission [55], runs the company on a day to day basis. The Family Board seemingly meets at various places worldwide, and the role of London in the family Board’s direction is not small, given that Cutrale Sr has secretarial assistance for his business interests there, and that his daughter (who also sits on the Family Board) conducts all her business interests there [57].

In Anglo American, the CA held

 ‘the correct interpretation of “central administration” in Article 60(1)(b), when applied to a company, is that it is the place where the company concerned, through its relevant organs according to its own constitutional provisions, takes the decisions that are essential for that company’s operations. That is, to my mind, the same thing as saying it is the place where the company, through its relevant organs, conducts its entrepreneurial management; for that management must involve making decisions that are essential for that company’s operation’

[75] ff the judge does not see London as that place where the entrepreneurial management takes place. This is to some degree a factual appraisal however I I am minded to see quite strong arguments in favour of London. I do not think for instance that BIa’s DNA of predictability for the defendant knowing where it might be sued, carries too much weight here seeing as the complex structure and the diverse effective location of the Family Board’s meetings is of its own making. By failing clearly to implement one centre of entrepreneurial management, visible to outsiders, the defendant in my view brings the risk of positive conflicts of jurisdiction upon itself.  All the more so in my view in cases where, such as here, the accusation is involvement in a cartel, which is unlikely to have happened with the firm controller of the Family Board having been kept in the dark.

Alternative serving under CPR 6.9.(2) [“Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.”] is also dismissed: [104] ff.

[112] ff the judge discusses the domicile of Cutrale Sr which, per A62(1) BIa is to be determined under English law. This [129] ff is held to be England.

Cutrale Jr being undisputably domiciled in Switserland, the question arises whether the claim against him may be anchored upon the claim against his father, per A6(2) Lugano. The judge is reminded of his own judgment in PIS v Al Rajaan. Defendants submit that if the claims against Sucocítrico Cutrale must be pursued in Brazil, it is more expedient for the claims against Cutrale Jnr to be pursued in that jurisdiction, even if the Claimants are entitled to sue Cutrale Snr as of right in England. However [142] the judge agrees with Claimants’ point that somewhat different policy considerations arise when considering the risk of inconsistent judgments within the EU (or between Lugano States), compared to the position vis-à-vis so-called ‘third States’, and that the latter context does not involve the same particular impetus to remove obstacles to the single market and observe the principle of ‘mutual trust’ between the courts of different Member States.

Whilst the claims against Cutrale Jnr are of course connected with those against Sucocitrico, they are also bound to involve important issues in common with the claims against Cutrale Snr which (subject to the issue of an A34 stay, see below) are to be pursued in England  [143].

[144] In conclusion the expediency threshold under A6 Lugano is held to have been reached.

Next, a stay of the proceedings against Cutrale Snr under A34 BIa is rejected [147] ff. Much of the A34 authority, all of which I have discussed on the blog, is flagged. The judge observes the tension between Kolomoisky and EuroEco Fuels (Poland) as to whether the power to stay depends on there being a procedural means by which the two actions could, in fact, be tried together. At [163] the judge thankfully notes the important distinction between A33-34 and A29-30, despite citing A29-30 authority with some emphasis:

I would observe, however, in disagreement with the Defendants, that despite the similarity of language it may well make a difference whether a stay is sought (a) under Article 28 as such or (b) under Article 34 or under Article 28 as applied reflexively vis a vis proceedings in a third country (see § 238 below).  The observation quoted above that there might be a presumption in favour of a stay seems considerably easier to justify in a case where the intra-EU internal market considerations referred to in § 142 above apply than where the overseas proceedings are in a non-Member State.  On the contrary, a presumption of a stay in favour of a third country state of proceedings prima facie brought as a right against a defendant in his place of domicile may well be hard to square with the fundamental principles underlying the Brussels and Lugano regimes.

At [221], too, and in an in my view important and marked departure from Justice Turner in Municipio, Henshaw J here holds that

whilst recital 24 indicates that the court should consider all the circumstances of the case, it does not follow that the court can grant a stay pursuant to Article 34 which is in substance no more than a forum non conveniens stay.  It follows that the factors listed in § 213.iv) above are relevant only insofar as they support the granting of a stay based on the Favero and Costa claims as related claims.

This puts the horse back before the cart.

At [164] ff the ‘rival’ Brasil claims are discussed, [197] of which only two predate the current E&W claim against Cutrale Sr and a conclusion [210] that these are related in a broad sense to the present claims, but that degree of relationship would be insufficient to make it expedient to stay the present claims by reference to them.

[213] ff the various arguments that a stay would be in the ‘interest of justice’ are rejected: these include in particular [216] suggestions of consolidation or joint case management, whilst theoretically possible, are unrealistic in practice (reference is made ia to the fact that none of the current Brazilian claims have been consolidated); [217] neither rival claim is likely to reach a conclusion in the reasonably foreseeable future: on the contrary, both have been mired in procedural disputes for many years.

Similar arguments are made obiter when considering an A33-34 stay against Sucocitrico (in the event the A4 analysis, above, were to be wrong): [241] ff.

At 237, the possibility of a stay of the proceedings against Cutrale Jr, under a reflexive application of A28 Lugano is rejected with mere reference to the reasons listed viz the A34 stay. The judge has to follow the Court of Appeal’s finding in Kolomoisky, that reflexive application of A28 Lugano is possible. Clearly, I submit, it is not and this will be an important point to clarify when and if the UK accede to Lugano.

The judge concludes [249] ff by obiter upholding a forum non stay. His arguments here are interesting among others for they lead to a different result than the A33-34 application – which serves to confirm the very different nature of both mechanisms.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.3.

1/2 Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm)
Brazilian sugar #cartel. Claimants, represented ia by @RHopkins_Law, fail to establish A4 BIa domicile jurisdiction against one defendant but succeed against another.
Claimants succeed on lis pendens challenges: ….

— Geert Van Calster (@GAVClaw) November 8, 2021

I discussed settlement agreements viz Brussels Ia’s protected categories before, in particular in my review of Yukos v Merinson. Choice of court between consumers and employees one the one hand, and the business and employer on the other, is valid inter alia when the parties ‘enter into’ the (choice of court agreement) ‘after the dispute has arisen’. The assumption is that the consumer will have had an opportunity to consult lawyers and that therefore the inequality of arms has disappeared.

A dispute will have ‘arisen’ for the purposes of these Articles only if two conditions are satisfied: (a) the parties must have disagreed upon a specific point; and (b) legal proceedings in relation to that disagreement must be imminent or contemplated.

Many thanks to Henrik Gisløv who sent me copy of the judgment of the City Court and subsequently the High Court in Thomas Higgins v Saxo Bank. Henrik represented Mr Higgins and I have included Henrik’s English translation of the relevant sections of the High Court’s judgment below – I do not read Danish.

I understand from Henrik that Saxo Bank claimed an amount for “CFD financing charges” of EUR 230,000 accrued in less than one month. Mr Higgins, domiciled at Ireland, disputed the claim, and a settlement agreement was entered into. Mr Higgins had no legal advise when entering the settlement agreement – whether the actual, as opposed to assumed, benefit of legal advice is required for A10 to apply, is not discussed.

In the opinion of Mr Higgins the bank breached the terms of the settlement agreement, and he raised several complaints with the staff of the bank. These complaints went unanswered and Mr Higgins decided to terminate the settlement agreement: ‘Further to my email of Friday March 3rd, I confirm that the live price feeds have not been restored. Accordingly, our Contract is now void. Unless you wish to negotiate terms that address the contractual failings, the only option open to me is to reactivate my original Complaint and refer it for regulatory adjudication.’ This was in March 2017.

The bank then filed a case in the Danish courts, in January 2019 only. It argued  jurisdiction on the basis that a choice of court clause had been part of the  settlement agreement which Mr Higgins had terminated in March 2017. The City Court found first of all that Mr Higgins was a consumer (CJEU Petruchova comes to mind). Secondly, the City Court found that the dispute related to whether or not the terms of the settlement agreement had been breached or not. Therefore that the dispute that is being litigated had only arisen after that settlement agreement had been made and that the choice of court made in the settlement agreement was not a valid agreement after the dispute had arisen. The Eastern High court upon appeal however overturned the decision. Leave to appeal to the Supreme Court was rejected.

Of note in my view is that for there to be valid choice of court within the meaning of A19 BIa, legal proceedings in relation to that disagreement must be imminent or contemplated. From my admittedly half baked, Google translate assisted understanding of the judgments, this condition is not discussed in the judgments (it is clear, from the quote, in English, at the time of Mr Higgins’ cancellation of the agreement, legal proceedings are contemplated at that moment; yet the settlement with the choice of court agreement was formed much earlier). Rather, the High Court unconvincingly focuses on the synergy between the complaints under the original platform agreement and the nature of the subsequent complaints. This could have done with SC insight.

The judgment puts the spotlight on the nature of settlement agreements in the context of protected categories, and the stronger role consumer and employment law might have to play to ensure both the twin goal of settling disputes before they go to court, whilst at the same time not depriving the protected categories of their Regulation-sanctioned protection.

Geert.

EU private international law, 3rd ed. 2021, Heading 2.2.9.2.7, 2.270 ff.

 

____Henrik Gisløv translation of the High Court judgment in relevant part:___

It is undisputed before the High Court that the settlement agreement entered into between Thomas Martin Higgins and Saxo Bank A / S, is a consumer agreement in the sense of the term has applied the Judgment Regulation. Cases against consumers must, according to the Judgment Regulation Article 18, paragraph 2, as a starting point is brought before the courts in the Member State in which the consumer resides.

The main issue in this case is then whether the condition of the judgment Article 19 (1) to derogate from this starting point is met. According to the provision is it decisive whether the settlement agreement, including the agreement’s provision on venue, may be deemed to have been concluded after the dispute has arisen. If the condition is fulfilled, the venue agreement is binding on Thomas Martin Higgins.

It is assumed as undisputed that the settlement agreement of 11 July 2016 was entered into as a result of a disagreement as to whether Thomas Martin Higgins had obligation to pay the fees of 231,320 euros that Saxo Bank A / S had charged for the period from 1 to 29 April 2016.

It appears from clause 1 of the settlement agreement, that Thomas Martin Higgins should withdraw its complaint about the fees that Saxo Bank A / S should separate Thomas Martin Higgins’ two accounts and credit one account with one amount of 115,660 euros, corresponding to half of the fees charged. The other account then had a balance of -87,565.16 euros, which Thomas Martin Higgins undertook to pay to Saxo Bank A / S in 12 instalments.

Thomas Martin Higgins paid six instalments until February 2017, after which he by letter dated 6 March 2017, terminated the settlement agreement.

The question then is whether the lawsuit relates to the dispute that was tried resolved by the settlement agreement, or whether it relates to subsequent matters.

Thomas Martin Higgins has argued that Saxo Bank A / S on several points has breached the settlement agreement and that it is these breaches of agreement that are the background for the present case. He has during his explanation to the city court alone referred to the one concrete example that he during his continued trading on the bank’s platform continued to lose so-called live prices (real-time prices).

On the other hand, it is undisputed that Thomas Martin Higgins under the settlement agreement concluded continued to trade on the platform provided by Saxo Bank A / S available to him. Saxo Bank A / S has in accordance with the settlement agreement written down its fee claim to half, and the settlement agreement does not contain detailed terms for the continued trading on the platform, including on live prices.

In view of this and the fact that the amount of 41,297.28 euros that Saxo Bank A / S has withdrawn subpoena for, constitutes the difference between the amount paid by Thomas Martin Higgins had to pay after the settlement and the instalments paid of 45,412.41 euros plus the deposit on account 176283INET / DK4011490100705836, the High Court finds that the present dispute does not concern one which arose after the conclusion of the settlement agreement [and is a, GAVC] disagreement on the interpretation of the agreement, but that the dispute had already arisen when settlement agreement including the venue agreement, was entered into.

…0Saxo bank A / S can bring the case before the bank’s venue at the Court in Lyngby, …and the High Court therefore accepts Saxo Bank A / S ‘claim that the judgment of the district court be set aside and that the case be remanded for consideration at the Court in Lyngby, as a result.”

Written by Hans van Loon, a member of GEDIP and former Secretary General of the Hague Conference on Private International Law (HCCH).  This post was previously published by the EAPIL blog.

The European Group for Private International Law (GEDIP) at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019[1]. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”[2].  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz[3], as well as recent case law in the UK and the Netherlands[4]

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration[5]

[1] European Commission promises mandatory due diligence legislation in 2021 – RBC (responsiblebusinessconduct.eu).

[2] https://www.europarl.europa.eu/doceo/document/TA-9-2021-0073_EN.html.

[3] See II Background to the Proposal, 3.

[4] See II Background to the Proposal 2.

[5] The Annex to the Proposal  contains suggestions concerning the form and the substantive scope of the future EU instrument.

A new issue of the online Belgian Revue de droit international prive / Tijdschrift voor internationaal privaatrecht is now available.

The issue features a rich selection of case law. It includes rulings given by the European Court of Human Rights (on family matters and surrogacy), the Court of Justice of the European Union (on succession, the taking of evidence, parental responsibility, employment contracts and torts matters).

Also included are rulings of the Belgian Constitutional Court and Court of Cassation, as well as the Court of Appeal of Antwerp and the Council for Immigration Disputes. The topics covered include matters of citizenship, rectification of birth certificate, service of judicial decisions, choice of jurisdiction clause in the context of the Lugano Convention, marriage, cross-border insolvency, and international protection of minors requesting humanitarian visa.

The section dedicated to doctrinal views contains a scholarly article by Annekatrien Lenaerts analysing a decision of the Belgian Court of Cassation issued on 18 June 2021 dealing with the communication of a court decision following the service of another judicial document on the basis of national procedural law and the European Service Regulation.

The decision has a particular importance according to the author as it is the first decision ruling that the addition of a copy of a judicial decision to the documents to be communicated to the party after service of one or more procedural documents does not amount to a valid service in accordance with the provisions of the Service Regulation, nor does it lead to the running of the appeal period according to Article 1051(1) of the Belgian Judicial Code.

The Court held that a judicial decision is only validly served at national level if it is expressly mentioned in the bailiff’s writ as the subject of the service. Further, it clarifies that a legally valid service at EU level requires that the decision to be mentioned as the document to be served, both in the application for service by the transmitting agency on the receiving agency using the standard form provided for that purpose and in the receiving agency’s notice of service, as well as in the form for the addressee stating that he has the right to refuse to receive this document.

The author concludes that although this solution may seem strict or formalistic at first glance, it is the only appropriate option in view of the protection of the addressee’s rights of defence. Only if a document is actually and expressly brought to the defendant’s attention in a way that allows the party to truly understand its content and purport, can the addressee effectively know his rights with regard to that document and institute a useful legal remedy against it.

Finally, the last part of the review is dedicated to legislative developments in the area of private international law.

The previous issues of the journal may be freely accessed here.

Aldricus – Sejak diluncurkan pertama kali, by U mendapatkan respons yang cukup menarik dari para pengguna. Hal ini cukup wajar karena provider kartu internet ini menyediakan cukup banyak pilihan by U paket ataupun inovasi menarik yang bisa dicoba sesuai keinginan.

Tentu, adanya beragam paket yang ditawarkan akan memudahkan Anda untuk memilih mana paket internet yang sesuai dengan keinginan ataupun budget yang disediakan.

Nah, pada kesempatan ini akan dibahas beberapa rekomendasi paket by U yang menarik untuk Anda coba demi mendapatkan sensasi menggunakan internet yang lebih nyaman. Apa saja? Simak ulasannya!

Pilihan Paket By U yang Menarik

Sebagaimana disinggung di awal, ada cukup banyak paket internet yang disediakan by U dan bisa menjadi pilihan yang tepat. Nah, beberapa paket yang direkomendasikan tersebut diantaranya adalah sebagai berikut:

1. Paket topping YouTube

Sebenarnya, by U menyediakan cukup banyak paket topping. Variasi ini adalah by U paket khusus untuk aplikasi tertentu. Nah, Anda bisa menggunakan paket topping YouTube yang disediakan. Paket ini sangat menarik karena Anda bisa mendapatkan kuota YouTube 100 GB 24 jam non-stop hanya dengan Rp 10.000 saja!

2. Paket On-Net by U

Apabila Anda mencari paket telepon tanpa tersambung internet yang murah, by U menyediakan pilihan yang menarik untuk Anda. Salah satu paket yang disediakan adalah paket On Net.

Dengan menggunakan paket ini, Anda akan mendapatkan kuota telepon hingga 43.200 menit dengan masa aktif 30 hari ke sesama by U dengan harga Rp 1.000 saja. Ini adalah paket telepon paling murah dengan kualitas telepon yang sangat baik.

3. Paket topping Instagram by U

Suka scrolling Instagram hingga lupa waktu dan sering bermasalah karena kuota habis? Nah, Anda bisa menggunakan paket topping Instagram yang disediakan oleh by U. Dengan menggunakan paket ini, tersedia kuota khusus Instagram sebesar 3 GB dengan masa aktif 30 hari hanya dengan RP 5.000 saja!

Beberapa by U paket di atas bisa dijadikan opsi untuk Anda gunakan nanti. Dari paket tersebut, bisa dilihat jika by U memberikan layanan terbaik dengan harga yang terjangkau!

The post Rekomendasi By U Paket Hemat Untuk Dicoba appeared first on Aldri Blog.

Posted at the request of Aastha Asthana, Managing Editor of Trade Law and Development

Trade, Law and Development

Call for Submissions

Special Issue

“Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”

Issue 14.1 | Summer ’22

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, the Journal has published works by noted scholars such as the WTO DDG Yonov F. Agah, Dr. (Prof.) Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Dr. (Prof.) Gabrielle Marceau, Prof. Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for seven consecutive years by Washington and Lee University, School of Law.

 

Pursuant to this philosophy, the Board of Editors of Trade, Law and Development is pleased to announce “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime” as the theme for its next Special Issue (Vol. XIV, No. 1).

 

With the “crown jewel of the WTO” in crisis and the deadlock between developing and developed States in various negotiations at the WTO, Members’ confidence in the multilateral trading system is at an all-time low. This is evidenced by the rising number of FTAs around the globe, and States preferring regionalism over the multilateral framework. In turn, this has also severally impacted the WTO’s ability to provide a forum for negotiations to liberalise trade and establish new rules; to oversee and administer multilateral trade rules; and to resolve trade disputes amongst members. Furthermore, the disruption caused by the COVID-19 pandemic, has exacerbated the stress.  Resultantly, WTO Member States are adopting a more protectionist approach.

 

While the WTO’s role in helping economies recover from decreasing trade volumes has increased multi-fold, it remains to be seen how the organization will grapple with each of these challenges individually. Since TL&D’s objective is to provide a forum of exchange of ideas and constructive debate on legal and policy issues, the above-mentioned factors arguably constitute some of the biggest issues for international trade discourse this year. Through this theme, the Journal aims to encourage discussion particularly on how to protect the multilateral rules-based trading system and in turn, prevent the march towards a pre-WTO power-based trading system.

 

While the theme is broad enough to cover a wide range of issues, an indicative list of specific areas is as follows:

• Appellate Body Crisis and the Multi Party Interim Appeal Arrangement (MPIA)
• Transparency and Notification/ Transparency and Consensus-Building within the WTO
• Status of Developing Countries at the WTO
• China and the WTO
• Agriculture and Development vis-à-vis the WTO Agreement on Agriculture
• Environmental Sustainability
• Linking Trade and Non-Trade Issues
• COVID-19 and Reorganization of Global Supply Chains
• Increasing Reliance on the National Security Exception by WTO Members
• Increase in Barriers to Cross-Border Investments/ Protectionism
• USA and the WTO
• Stagnancy in Multilateral Trade Liberalisation
• Mega-Regional Trade Agreements as an Alternative to the WTO

 

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all aspects related to the challenges faced by the international trade regime and its impact on the global trading system.

 

Accordingly, the Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Special Issue of the Journal (Vol. XIV, No. 1) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’, focusing on the theme “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”.

 

Manuscripts received by March 15th, 2022, pertaining to any sub-theme within the purview of challenges faced by international trade will be reviewed for publication in the Summer ’22 issue.

 

Manuscripts may be submitted via e-mail. For further information about the Journal, please click here. For submission guidelines, please click here.

 

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

 

LAST DATE FOR SUBMISSIONS: 15 March, 2022

 

PATRON: P.P. Saxena | ADVISORS: Raj Bhala | Jagdish Bhagwati | B.S. Chimni | Glenn Wiser | Daniel B. Magraw, Jr. | Vaughan Lowe | Ricardo Ramirez Hernandez | W. Michael Reisman | M. Sornarajah | FACULTY–IN-CHARGE: Dr. Rosmy Joan | BOARD OF EDITORS: Amogh Pareek | Sahil Verma | Sukanya Viswanathan| Abilash Viswanathan| Aastha Asthana | Malaika Shivalkar | Nishant Sharma | Pranav Karwa | Rashmi John | Swikruti Nayak | Akshita Saxena | Ananya Awasthi | Anushka Mathur | Jahnavi Srivastava | Khushi Agrawal | Maulik Khurana | Nidhi Lakhotia | Ria Chaudhary | Yashvi Hora | Aarzoo Gang | Anoushka | Lipika Singla | Priyanshu Shrivastava | Simran Bherwani | Sneha Naresh | Vipashyana Hilsayan

Written by Stephen G.A. Pitel, Western University

The court’s decision in HMB Holdings Ltd v Antigua and Barbuda, 2021 SCC 44 (available here) is interesting for at least two reasons. First, it adds to the understanding of the meaning of “carrying on business” as a test for being present in a jurisdiction. Second, it casts doubt on the application of statutory registration schemes for foreign judgments to judgments that themselves recognize a foreign judgment (the so-called ricochet).

In this litigation HMB obtained a Privy Council judgment and then sued to enforce it in British Columbia. Antigua did not defend and so HMB obtained a default judgment. HMB then sought to register the British Columbia judgment in Ontario under Ontario’s statutory scheme for the registration of judgments (known as REJA). An important threshold issue was whether the statutory scheme applied to judgments like the British Columbia one (a recognition judgment). In part this is a matter of statutory interpretation but in part it requires thinking through the aim and objectives of the scheme.

Regrettably for academics and others, the litigants conducted the proceedings on the basis that the scheme DID apply to the British Columbia judgment. Within the scheme, Antigua relied on one of the statutory defences to registration. The defence, found in section 3(b), requires that “the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court”. Three of the elements of this defence were easily established by Antigua, leaving only the issue of whether Antigua could be said to have been carrying on business in British Columbia. If not, the decision could not be registered in Ontario.

On the facts, Antigua had very little connection to British Columbia. What it did have was “contracts with four ‘Authorized Representatives’ with businesses, premises and employees in British Columbia for the purposes of its Citizenship by Investment Program  [which] … aims to encourage investments in Antigua’s real estate, businesses and National Development Fund by granting citizenship to investors and their families in exchange for such investments” (para 7). HMB argued this was sufficient to be carrying on business in British Columbia. The courts below had disagreed, as did all five judges of the Supreme Court of Canada (paras 47-49, 52).

Confirming this result on these facts is not overly significant. What is of more interest is the court, in its decision written by Chief Justice Wagner, offering some comments on the relationship between how the meaning of carrying on business in the context of taking jurisdiction relates to the meaning of that same phrase in the context of determining whether to recognize or register a foreign judgment. Below, one judge of the Court of Appeal for Ontario had held the meanings to be quite different in those different contexts, with a much lower threshold for carrying on business in the latter (para 18). The Supreme Court of Canada rejects this view. When considering presence in a jurisdiction by means of carrying on business there, the analysis is the same whether the court is assessing taking jurisdiction on that basis or is determining whether to give effect to a foreign judgment (and so engaging with the defence in section 3(b)) (paras 35, 41). This is welcome clarification and guidance.

One smaller wrinkle remains, not germane to this dispute. At common law the phrase “carrying on business” is used for two distinct aspects of taking jurisdiction: presence, where it grounds jurisdiction (see Chevron), and assumed jurisdiction, where it gives rise to a “presumptive connecting factor” linking the dispute to the forum (see Club Resorts). If you think that distinction seems odd, you are not alone (see para 39). Anyway, does the phrase also have the same meaning in these two contexts? The court expressly leaves that issue for another day, noting only that if there is a difference, the threshold for carrying on business would be lower in the assumed jurisdiction cases than the presence cases (para 40).

Returning to the issue not pursued by the parties: the status of ricochet judgments under registration schemes. The court could have said nothing on this given the position of the parties and the conclusion under section 3(b). However, Chief Justice Wagner and three of his colleagues expressly note that this is an “open question” and leave it for the future (paras 25-26). Saying the question is open is significant because there is obiter dicta in Chevron that these judgments are caught by the schemes (para 25). Indeed, Justice Cote writes separate reasons (despite concurring on all of the section 3(b) analysis) in order to set out her view that a recognition decision is caught by the scheme, and she points specifically to Chevron as having already made that clear (para 54). Her analysis of the issue is welcome, in part because it is a reasonably detailed treatment. Yet the other judges are not persuaded and, as noted, leave the matter open.

I find powerful the argument that the drafters of these statutory schemes did not contemplate that they would cover recognition judgments, and so despite their literal wording they should be read as though they do not. This would avoid subverting the purpose of the schemes (see para 25). On this see the approach of the Court of Appeal for England and Wales in 2020 in Strategic Technologies Pte Ltd, a decision Justice Cote criticizes for being “unduly focused” on what the statutory scheme truly intended to achieve and lacking fidelity to the actual language it uses (paras 67-68). I also find Justice Cote’s distinctions (paras 60-64) between foreign recognition judgments (which she would include) and foreign statutory registrations (which she would not include) unpersuasive on issues such as comity and judicial control.

In any event, unless this issue gets resolved by amendments to the statutory schemes to clarify their scope, this issue will require a conclusive resolution.