Agrégateur de flux

Cavanagh J (unusually assisted by Brown J, who has extensive experience in cost orders) last week in Thomas & Ors v PGI Group Ltd [2021] EWHC 2776 (QB) refused to grant a ‘Capped Cost Order’ or CCO (these also exist for judicial review proceedings and in arbitration). This application for a CCO was reportedly the first made under CPR 3.19.

In the case, brought before Brexit date under Article 4 Brussels Ia, a group of Malawi claimants are suing tea company Lujeri’s English parent company PGI alleging complicity in exploitation and abuse, including sexual abuse.  Claimants allege the Defendant owed a duty of care to them on the basis that it promulgated relevant policies, standards and guidelines, that it exercised supervision and control over Lujeri, and/or that it held itself out as exercising such supervision and control. The Claimants further allege that the Defendant breached that duty of care and that they suffered loss and damage as a result.

English proceedings against Lujeri were dropped following claimants’ admission that they were unlikely to meet a jurisdiction challenge against same on the basis of Malawi being the natural forum for that claim [14]. The defendant does not resist A4 jurisdiction, acknowledges the UK is the natural forum for the claims against it, that there is no abuse of process (neither in my view have any place in A4 jurisdiction) and that the case is at least arguable.

Had the CCO been granted, it would have the effect of limiting the future costs recoverable by the Claimants, should they ultimately be successful, to £150,000 (or thereabouts). It would not impact the recoverable costs of the defendants if they are successful, although [25] they are unlikely to be able to recover any. As the judge notes [13] even if the core claim is successful, compensation will be far below parties’ legal costs in the case. The non-financial, ‘vindication’ [13] objectives are more important.

Despite defendants’ acknowledgment that a jurisdiction challenge is effectively impossible under A4 (A33-34 do not seem engaged), their arguments for a CCO [28 ff] are forum non via the backdoor:

Whilst not disputing that the Claimants are entitled to bring these proceedings against the Defendant in England, the Defendant submits that it is still open to the Claimants to bring proceedings in Malawi against Lujeri, their former, or, in some cases, their current, employer, and, indeed, against the Defendant. The Defendant submits that it would be more appropriate for the Claimants to bring their claims against Lujeri, in Malawi, especially as such claims would be advanced on the simple and straightforward basis of vicarious liability, rather than on the basis of a more complicated claim against the UK-domiciled parent company.

At 43 claimants make the obvious point that this is a ‘(lightly) disguised attempt to strike out these proceedings on the basis that they are an abuse of process, or that England is a forum non conveniens’.

At 72 the judge holds that claimants are right that it would not be appropriate, having regard to the CPR required principle of proportionality [‘the overriding objective [of the CCO, GAVC] of enabling the court to deal with cases justly and at proportionate cost’] to cap the costs at a figure that is less than the minimum costs that are required for them to litigate their claims effectively in the High Court. Costs in other words cannot be disproportionately incurred if they are below the amount that is required by the party to litigate its claims effectively, unless [74] parties’ costs are out of proportion to the potential benefits to the Claimant of the litigation’ – quod non in casu: [79]: ‘The sums that are likely to be recoverable, though small by English standards, are very significant for poor Malawian plantation workers, and they may indeed be life-changing. I accept the Claimants’ submission that in any event, the Claimants’ objectives in bringing these proceedings are not entirely, or even principally, about money.’

At 82-83 the resurrected forum non arguments feature again,  with the judge holding

In any event, in the present case, one of the parties, the Defendant, is domiciled in England. It is a matter of public importance in this country whether a company that is domiciled here is in breach of a duty of care to workers on plantations in Malawi, owned by a subsidiary company. CPR 44.3(5)(e) states that the extent to which a claim is in the public interest is a matter to be taken into account when considering proportionality.

That is an important consideration for future CCOs, outside the Brussels Ia context and indeed an argument that would feed into an A33-34 analysis, too.

At 91 ff the judge reinforces his findings on the basis of access to justice:

‘I think that it is highly significant, in this regard, that the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims…

this is not a case in which a wealthy Claimant is deliberately pursuing a low-value claim, at great expense, in order to harass the Defendant, or to cause as much unnecessary cost to the Defendant as possible. Rather, this is a case in which extremely poor Claimants are pursuing a relatively low-value claim for a number of legitimate reasons, only one of which is the prospect of damages.

This is an important finding, both under A4 Brussels Ia and beyond it, under residual English conflicts rules.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

1/2 Thomas & Ors v PGI [2021] EWHC 2776 (QB)
Important judgment for #bizhumanrights #csr litigation
Failed application for Capped Cost Order CCO
Judge holds ia that it would not be in the interest of justice to award corporate defendant CCO which would effectively halt… pic.twitter.com/ZAbXSJ6ea3

— Geert Van Calster (@GAVClaw) October 25, 2021

En cas de déplacement illicite d’un enfant, le juge saisi d’une demande de retour immédiat en application de la Convention du 25 octobre 1980 et du règlement Bruxelles II bis n’est pas tenu de consulter l’autorité centrale étrangère sur le caractère approprié d’éventuelles mesures de protection.

en lire plus

Under the auspices of the project “Time to Become Digital in Law” (DIGInLaw), funded by the Erasmus+ Partnerships for Digital Education Readiness, the University of Aberdeen organizes a PhD Book Club titled European Private International Law in a Digital World, in collaboration with the Universities of Osijek, Zagreb, and Milan.

The PhD Book Club will be held online on 8 December 2021. The goal of the book club is to raise awareness and expand knowledge through a discussion on contemporary private international law issues that stem from digitalization.

Participants can choose among the following discussion panels:

• Topic 1 – Jurisdiction in Digital World: Focus on the Extraterritorial Effects of the General Data Protection Regulation and the EU Commission’s Proposal AI Act: 10.00 – 11.30 UK time
• Topic 2 – Cross-Border Family Law in Digital World: Judicial & Administrative Co-operation and the Use of High-Risk AI Tools in Cross-Border Family Litigation: 12.30 – 14.00 UK time

The reading list will be distributed in advance to allow participants to prepare for discussion, which will be moderated by law professors and lecturers from the above-mentioned universities. All PhD researchers are eligible to apply. Please follow the registration link available on the event webpage here.

The Time is Ripe? Proposed Regulation of Third Party Litigation Funding in the European Union

Written by Adrian Cordina, PhD researcher at Erasmus School of Law, project member of the Vici project ‘Affordable Access to Justice’ which deals with costs and funding of civil litigation, financed by the Dutch Research Council (NWO).

The question of how to fund litigation is an essential precondition for civil justice systems. While in some countries like Australia third party litigation funding (TPLF) has been developing for decades, in Europe too TPLF is now on the rise, particularly in international arbitration and collective actions. This has also caught the attention of the European legislator.

On the 17th of June 2021 the European Parliament Committee on Legal Affairs published a Draft Report with recommendations to the Commission on Responsible Private Funding of Litigation (TPLF). This follows the February 2021 European Parliament Research Service Study on the same matter. TPLF is the funding of litigation by an external third party in return for a share of the proceeds in case of success and is a growing commercial practice. The Draft highlights that TPLF in the EU is however currently operating in a ‘regulatory vacuum’, as it is not only present in consumer collective redress cases, in which case specific funding rules have already been enacted through the Directive (EU) 2020/1929 on representative actions for the protection of the collective interests of consumers [Representative Actions Directive  (RAD)].

While recognising the role TPLF plays in facilitating access to justice where otherwise not available due to the costs and risks of litigation, the Draft attempts to provide proposals on how to tackle the risks and concerns TPLF gives rise to. It focuses especially on the conflicts of interest between the litigation funders and the claimants, more specifically on the economic interest of the funder, which could drive the funder to demand excessive shares of the proceeds and to control the litigation process.

Similarly to the RAD, the Draft contains recommendations that it should be ensured that decisions in the relevant legal proceedings, including decisions on settlement, are not influenced in any way by the litigation funders and that courts or administrative authorities be empowered to require disclosure of information on third-party litigation funding.

Amongst the main recommendations which go beyond the funding rules in the RAD is that of establishing a system of supervisory authorities in each Member State which permits TPLF. These would grant authorisations and require that litigation funders comply with minimum criteria of governance, transparency, capital adequacy and observance of a fiduciary duty to claimants. Article 5 also proposes that third-party funding agreements need to comply with the laws of the Member State of the litigation proceedings or of the claimant, which could create problems if claimants and/or intended beneficiaries are from different Member States, from outside the EU or if one Member State prohibits TPLF in cross-border litigation.

It also contains recommendations on funding agreements being worded transparently, clearly and in simple language, on capping the return rate to the litigation funder at 40%, and on, subject to exceptions, preventing litigation funders from withdrawing funding midway through proceedings.

The debate on TPLF in Europe has only in recent years started to take the limelight in civil justice academia (see e.g. Kramer & Tillema 2020; Tzankova & Kramer 2021). That this topic is garnering attention is also evidenced by the September 2021 survey commissioned by the U.S. Chamber Institute for Legal Reform on Consumer Attitudes on TPLF and its regulation in the EU. While the complex matter of TPLF is in need of further research and reflection, considering developments in legal practice perhaps now indeed the time is also ripe for regulatory discussions.

 

GD Goenka University, Gurugram is part of the GD Goenka Group. GD Goenka University was established in 2013 under the Haryana Private Universities (Amendment) Act, 2013. The GD Goenka University School of Law offers Law Degree Programs at Undergraduate, Post Graduate and Doctoral levels and strives to open new vistas in the arena of law through clinical legal studies and research. With an objective to raise the standards of clinical legal education in India, the GD Goenka University, School of Law regularly hosts Moot Court Competitions and encourages law students from various Law Schools and Universities from across India and world to learn the art and skills of advocacy.

In November 2020, School of law, GD Goenka University successfully organized an arbitration moot court competition “GD Goenka – CIArb (India) International Virtual Commercial Arbitration Competition 2020” in association with CIArb (India) Chapter. The University is now organising the Fifth edition of  “GD Goenka – CIArb (India) International Virtual Commercial Arbitration Competition 2021″ in association with CIArb (India) Chapter on 20th-21st November. The event is expected to have participation from various Law Schools and Universities from across India & abroad.

The Registration for the Competition is open. The registration fee is USD 11 /- only.

You would also be pleased to know the Prizes for winners in various categories-

Winners- Rs 70,000/- (USD 935/-)

Runners Up- Rs 40,000/- (USD 534/-)

Best Speaker Male & Female- Rs 10,000/- each. (USD 133/- each)

Best Memorial- Rs 10,000/- (USD 133/-)

The link to the registration form, posters and brochure is found below.

Registration Form- https://forms.gle/ZwJpZKmsPNDJiwMN6

With Warm Regards,

Prof. (Dr.) Tabrez Ahmad,

Vice Chancellor GD Goenka University &

Dean School of Law

The INSOL Europe Academic Forum (IEAF) is inviting submission for its 17th annual conference, taking place from 2-3 March 2022 in Dublin (Ireland). Expressions of interest are invited for the delivery of research papers within the overall academic conference’s theme: “The Emerging New Landscape of European Restructuring and Insolvency”

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

• Reflections on the 2019/1023 Directive as such, and on further harmonization of insolvency laws in the EU;
• Reports on national implementations of the 2019/1023 Directive in the EU Member States, including related changes to insolvency and company laws;
• Cross-border issues relating to the new restructuring frameworks;
• The longer-term impacts of the COVID-19 pandemic on insolvency and restructuring laws in the EU and elsewhere;
• Digital assets and data in the context of insolvency proceedings and the new restructuring frameworks.

Conference methodology

In line with practice established in our past academic conferences, the intention for this year’s 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 6 December 2021 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

Tulane University School of Law and The American College of Trust and Estate Counsel’s Legal Education Committee are organizing the 9th academic symposium financially supported by The ACTEC Foundation. The symposium, Conflict of Laws in Trusts and Estates will be held at the Tulane University School of Law on Friday, October 21, 2022. The keynote address will be given by Professor Jeffrey Schoenblum of Vanderbilt University Law School.

Among the objectives of this symposium are the following:

• To bring together prominent and up-and-coming scholars for the discussion of important issues in conflict of laws;
• To spur leading-edge research on conflict of laws in trusts and estates;
• To encourage professors of trusts and estates to incorporate and consider issues of conflict of laws in their scholarship and teaching;
• To promote collaborations and exchanges between conflict-of-laws scholars and scholars of trusts and estates.

Papers presented at the symposium will consist of papers selected from this Call for Papers and papers from invited speakers. The papers will be published in the Tulane Law Review.

If you would like to be considered to present a paper, please submit an abstract of your paper to Ron Scalise by email (rscalise@tulane.edu) by November 1, 2021. Those chosen to participate  in the symposium will be notified no later than December 1, 2021. Symposium speakers will be required to submit a draft of their papers by August 15, 2022, so that the panel commentators will have sufficient time to prepare their commentary.

Symposium speakers will be reimbursed for their travel expenses (economy airfare, the cost of ground transportation, and up to two nights’ hotel stay). Speakers will be invited to dinner on the evenings of Thursday, October 20, 2022, and (for speakers staying Friday evening) Friday, October 21, 2022.

Breakfast and lunch will be provided to speakers and attendees on Friday, October 21, 2022, courtesy of The ACTEC Foundation.

Questions about the symposium or this call for papers should be directed to Ron Scalise at the email address above.

This symposium was made possible through the financial support of The ACTEC Foundation, https://actecfoundation.org.

 

 

Under the auspices of the project “Time to Become Digital in Law” (DIGInLaw), funded by the Erasmus+ Partnerships for Digital Education Readiness, the University of Aberdeen organizes in collaboration with the Universities of Osijek, Zagreb, and Milan, a PhD Book Club – European Private International Law in a Digital World.

The PhD Book Club will be held online on 8 December 2021. The goal of the book club is to raise awareness and expand knowledge through a discussion on contemporary private international law issues that stem from digitalization.

Participants can choose to join one or both of the following discussion panels:

10.00 – 11.30 UK time – Topic 1 – Jurisdiction in Digital World: Focus on the Extraterritorial Effects of the General Data Protection Regulation and the EU Commission’s Proposal AI Act 

12.30 – 14.00 UK time – Topic 2 – Cross-Border Family Law in Digital World: Judicial & Administrative Co-operation and the Use of High-Risk AI Tools in Cross-Border Family Litigation

The reading list will be distributed in advance to allow participants to prepare for discussion, which will be moderated by law professors and lecturers from the above-mentioned universities. All PhD researchers are eligible to apply. Please follow the registration link available on the event webpage here: https://www.abdn.ac.uk/law/events/16837/

 

 

This is an update on my previous blog post here

Capacity to sue and be sued is an important aspect of conflict of laws. It connects very well with the issue of access to justice. For example if a foreign company that does business with a Nigerian company cannot sue in Nigeria it can result in injustice, and lead to loss of confidence in doing transactions with parties located in the Nigerian legal system.

Why is the above topic important? Having undertaken further research, it can be said that Nigerian court decisions are not consistent on the issue of capacity of a foreign company to sue and be sued in Nigeria. The latest reported authoritative source from the Nigerian Supreme Court is that by virtue of Section 54 and 55 of the Companies and Allied Matters Act 2004 Cap C20 (now Section 78 and 79 of the Companies and Allied Matters Act 2020), a foreign company that carries on business in Nigeria without being registered as a Nigerian company carries out an illegal and void transaction, and thus such a contract cannot be enforced in Nigerian courts.[1] In effect, the provision of Section 60(b) of the Companies and Allied Matters Act 2004 Cap C20 (now Section 84(b) of the Companies and Allied Matters Act 2020) cannot avail the foreign company in granting it the capacity to sue in Nigeria to enforce a contract where it carries on business in Nigeria without registering as a foreign company.[2] It is only where the foreign company that is not registered in Nigeria enters into a contract with a Nigerian company, while not doing business in Nigeria, will such a contract be enforceable in Nigeria.[3] The key word is thus doing business in Nigeria in determining whether a foreign company that is not registered in Nigeria can sue or be sued in Nigeria. This decision has now been confirmed by a very recent Court of Appeal decision, though in the instant case it was held that the foreign company had a Nigerian subsidiary and it was not carrying out business in Nigeria (it was a single transaction), so the contract was enforceable in Nigeria.[4]

Yet this current position of Nigerian law is strange and appears to contrast with the law in other common law countries including common law African countries. The recent position of the Nigerian Supreme Court also appears to contrast with previous decisions of Nigerian appellate courts that held that foreign companies could sue and be sued in Nigeria irrespective of whether they are carrying on business in Nigeria.[5]

This aspect of law requires further reflection as it is now an important and controversial aspect of Nigerian law. Dr Abubakri Yekini and I plan to write a full blown article on this interesting subject. Please stay tuned!

[1] Citec Intl Estates Ltd. v. E. Intl Inc. and Associates (2018) 3 NWLR (Pt. 1606) 332, 357 – 364 (Eko JSC)

[2] Ibid.

[3] Ibid.

[4] Mocoh SA & Anor v. Shield Energy Ltd & Anor (2021) LPELR-54559(CA).

[5]INFAZ v COBEC (Nig) Ltd (2018) 12 NWLR Pt. 1632) 127; Bank of Baroda v Iyalabani Company Ltd (2002) 13 NWLR 551. See also Watanmal (Singapore) Pte Ltd v. Liz Olofin and Company Plc (1997) LPELR-6224(CA) 13 (Musdapher JCA as he then was); NU Metro Retail (Nig) Ltd v. Tradex S.R.L & Another (2017) LPELR-42329(CA) 41-2 (Garba JCA as he then was).

This post is by Emilia Beuger (LL.M. Utrecht), JD Candidate at the University of Pittsburgh School of Law.

As noted in an earlier post on this site, the United States Supreme Court granted a petition for a writ of certiorari to the Ninth Circuit’s decision in Cassirer v. Thyssen-Bornemisza Collection Foundation on September 30, 2021. Below is a more detailed discussion of the issues at play in this case.

This case originated in the state of California and was then appealed to the Ninth Circuit before filing a writ of certiorari to the Supreme Court of the United States. The central legal issue concerns the Foreign Sovereign Immunities Act (FSIA), whose application and interpretation has been split across Circuit Courts.

The issue before the Supreme Court is whether a federal court hearing state law claims brought under the FSIA must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law. The state law is California’s choice-of-law test and the federal common law’s choice-of-law test is set forth in the Restatement (Second) Conflict of Laws. The FSIA does not have an express choice of law provision.

Background

The Cassirer family has sought to recover a painting that was stolen from Lilly Cassirer by the Nazis in 1939, and it was subsequently smuggled into the United States and traded privately. This was unbeknownst to Lilly, who brought proceedings in the United States Court of Restitution Appeals under the assumption that the painting had been lost or destroyed. The Thyssen-Bornemisza Collection Foundation (TBC) purchased the painting in 1993. TBC is a public foundation, and it is considered an agency or instrumentality of the Kingdom of Spain. In 2000, Lilly’s grandson Claude Cassirer learned that TBC had possession of the painting and requested both Spain and TBC for the painting’s return. Spain refused. Claude filed suit against Spain and TBC in 2005. Spain was voluntarily dismissed as a party in 2011.

Claude passed away in 2010, and his children David and Ava, as well as the United Jewish Federation of San Diego County, were substituted as plaintiffs. Ava’s estate was substituted as a plaintiff after she passed away in 2018.

Issues and Arguments

A series of different proceedings have occurred since the original filing in 2005. The Ninth Circuit found that the Foreign Sovereign Immunities Act applies to the dispute because the painting was stolen by Germany in violation of international law.

The most recent case in the district court in 2015 was a result of the parties’ cross-motions for summary judgment on the choice-of-law and its application. The district court found for TBC. Even though the buyer prior to TBC had not purchased the painting in good faith and did not pass good title to TBC, TBC lacked actual knowledge under Spanish law. Because TBC lacked actual knowledge under Spanish law, TBC was allowed to keep the stolen painting.

Cassirer’s theory on appeal was that the district court should have applied California law, not Spanish law. Under California law, a thief cannot pass title to anyone, even if there was a good faith purchaser (i.e. who TBC claims to be in this case). Therefore, if California law had been applied in this case, the outcome would have been different.

Key to both sides arguments is that the FSIA provides: “foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 1606.

On appeal, the Ninth Circuit agreed with the district court, affirming the application of federal common law to the choice-of-law analysis under the FSIA, but remanded because the Ninth Circuit felt that the district court did not properly apply the Spanish law. Cassirer argues that this contrasts with other Circuit Courts, such as the Second, Fifth, Sixth and D.C. Circuits, who have applied the law of the forum state to the choice-of-law analysis for claims under the FSIA.

In Cassirer’s petition, he cites cases across the Second, Fifth, Sixth, and D.C. Circuits that say the law of the forum state should be applied, not federal common law. The decision to apply federal common law by the Ninth Circuit turned on the wording of past precedents that show that the court may “prefer” to apply it. In contrast, the Second Circuit has interpreted that the FSIA is a “pass-through” for the application of state law to be controlling when there is an issue of choice-of-law. If the goal of the FSIA is to apply the same laws to foreign states and private individuals, then the application must be done with the law that the court would use if the court was dealing with two private parties. Cassirer argues that the application of California’s choice-of-law test would have led to the application of California law because the state law interest of California would be more impaired than if the Spanish law was chosen to be applied in this case.

The Ninth Circuit’s approach, Cassirer argues, would lead to an inconsistency within the liability standards for foreign states and private individuals because the law applied in the state court would be different than the law applied if the suit was brought in federal court. Additionally, Cassirer puts forth public policy arguments. Because there is a split in the Circuit Courts, Cassirer argues that the Supreme Court should hear this case.

While Cassier argues that both tests would have warranted application of California law, TBC argues that both tests would have warranted application of Spanish law.

TBC filed a response to Cassirer’s Petition, arguing that while there may be a split amongst the Circuits, the split is a shallow one. TBC also argues that the outcome(s) will almost always be the same, no matter what choice-of-law test is applied. Public policy arguments are also advanced by TBC that the FSIA’s goal of holding foreign sovereigns accountable and that foreign sovereigns are to be dealt with differently than individuals, specifically at the federal level. Additionally, the jurisdiction of the Ninth Circuit rests on a federal question, not a diversity matter, so the Ninth Circuit should apply the federal common law test.

Briefs will be filed later this year and early next year.

The Supreme Court is slated to hear arguments during its 2021 Term.

This book celebrates the work and scholarship of Professor Giorgio Bernini, Honorary President of ICCA, who held the chair of European Union Law, Arbitration and International Commercial Law at the University of Bologna for almost 30 years. A very successful international lawyer, he was the Italian Minister of Foreign Trade and a Member of the Italian Antitrust Authority. Bernini has built a long career in the study and practice of arbitration with a record of 450 cases. The book is divided into an introduction and two parts, to highlight many of Bernini’s contributions to the Law.

In a special introductory section of the book, entitled ‘portraits of a pioneer’, some authors offer specific references to some of his many activities in the field: from the ICC Institute of World Business Law to the International Council for Commercial Arbitration, from the Italian Arbitration Association to his professional life as an international lawyer. Then, in the first part of the book, essays on Contract Law and International Trade Law have been collected. The second part is dedicated to arbitration in its many dimensions: domestic, international, commercial and investment Law.

The contributors are amongst the most highly qualified publicists of the various Nations, with the highest academic credentials and proven experience in the field: Yves Derains, Lise Bosman, Maria Beatrice Deli, Antonio Fraticelli, Guido Alpa, Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, Roberto Ceccon, Gabriele Crespi Reghizzi, Abdel Hamid El Ahdab, H. Ercüment Erdem, Marcel Fontaine, Roy Goode, Kaj Hober, Ernst-Ulrich Petersmann, Fausto Pocar, Stefano Azzali, Ronald A. Brand, Sergio M. Carbone, Dominique Carreau, Claudio Consolo, Giorgio De Nova, Donald Francis Donovan, Romain Zamour, Ugo Draetta, José Carlos Fernandez Rozas, Emmanuel Gaillard, Maria Chiara Malaguti, Eleonora Finazzi Agrò, Fabrizio Marrella, Margaret L. Moses, William W. Park, Hassan Rahdi, Christoph Schreuer, Nicola Soldati, Shengchang Wang.

For further information please visit here:

 

 

The latest issue of RabelsZ has just been published online. It contains the following contributions:

 

Jaakko Husa: Merging International Law and Comparative Law – Balancing Between Normative and Non-Normative, Volume 85 (2021) / Issue 4, pp. 745-774 (30), https://doi.org/10.1628/rabelsz-2021-0045

The relationship between comparative law and public international law is paradoxical. These fields are in principle close to each other but remote in practice. The emergence of comparative international law has changed the situation as it invites comparative law scholars to enter into discussion on international law. This article provides a critical analysis on the possibilities for comparative law in the field of international law. It discusses and explains why a non-normative understanding of comparative international law works well together with the pluralist conception of comparative law, and why a normative understanding of comparative international law is incompatible with it. This article explains why comparative law scholars do not welcome the use of comparative law for international law purposes with open arms.

 

Malte Kramme: Mehr als ein Qualifikationsproblem: Zum Verhältnis von Verbrauchervertrags- und Geschäftsfähigkeitsstatut, Volume 85 (2021) / Issue 4, pp. 775-810 (36), https://doi.org/10.1628/rabelsz-2021-0046

More than a Problem of Characterization: The Relationship Between Consumer Contract Law and the Law of Capacity. – The EU regulations in the area of private international law largely exclude legal capacity. The law applicable to questions of capacity is determined by the applicable national conflict-of-law rules. This raises the question of the scope of the law of capacity and how it is to be distinguished from neighbouring fields of law. In particular, drawing this distinction vis-à-vis contract law presents difficulties in cases involving consumers. Both consumer law and the law of capacity place the protection of the weaker party in the foreground. Distinguishing the law of capacity from neighbouring fields of law is therefore more than a mere problem of characterization: it is a matter of not undermining the level of protection sought by the different fields of law in cross-border cases. In this paper, a proposal is made as to how the boundaries of the law of capacity can be determined in relation to contract law, taking into account this intended protection of the weaker party.

 

Jürgen Samtleben, Gonzalo A. Lorenzo Idiarte: Das Allgemeine Gesetz des Internationalen Privatrechts von Uruguay, Volume 85 (2021) / Issue 4, pp. 811-851 (41), https://doi.org/10.1628/rabelsz-2021-0047

The Uruguayan General Law of Private International Law. – Uruguay has always been a center for private international law. The Montevideo Congress, held in 1888 and 1889 at Uruguay’s invitation – before the Hague Conference on Private  International Law – was of instrumental significance for the development of private international law in Latin America. Uruguay has consistently played an active role in preparing the inter-American specialized conferences on private international law and in propagating bilateral PIL treaties. The new private international law legislation underway since the end of the last century does not break with tradition completely, but seeks to develop it further adapting it to present-day demands. Some major features of the reform bear emphasis: a comprehensive regulation of the general rules of private international law, refinements to the contours of international family law, a recasting of international contracts law based on party autonomy,  and detailed rules on the exercise of jurisdiction by national courts in international disputes.

For a German translation of the Uruguayan General Law of Private International Law of 27 November 2020 by Samtleben, see: Volume 85 (2021) / Issue 4, pp. 907-925 (19), https://doi.org/10.1628/rabelsz-2021-0052

 

Issue 4/2021 also includes the following contributions originating in the Symposium “The Code of Capital”, held at the Max Planck Institute for Comparative and International Private Law in Hamburg on 11 May 2021:

• Ralf Michaels: Vorwort zum Symposium, Volume 85 (2021) / Issue 4, pp. 852-853 (2), https://doi.org/10.1628/rabelsz-2021-0048

• Hans-Bernd Schäfer: Nationalreichtum und private Armut durch Zivilrecht? – Eine Besprechung des Buchs »The Code of Capital« von Katharina Pistor, Volume 85 (2021) / Issue 4, pp. 854-875 (22), https://doi.org/10.1628/rabelsz-2021-0049

• Katharina Pistor: Recht und Ökonomie im Spannungsfeld verschiedener Schulen – Eine Replik auf Hans-Bernd Schäfers Buchbesprechung, Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ), Volume 85 (2021) / Issue 4, pp. 876-889 (14), https://doi.org/10.1628/rabelsz-2021-0050

• Ralf Michaels: Der Code des Kapitals und seiner Portabilität – Anmerkungen zu Katharina Pistor, Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ), Volume 85 (2021) / Issue 4, pp. 890-906 (17), https://doi.org/10.1628/rabelsz-2021-0051

 

Pilar Jimenez Blanco (University of Oviedo) has published a monograph on cross border matrimonial property regimes (Regímenes Económicos Matrimoniales Transfronterizos).

The book is an in-depth study of Regulation 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes.

The author has kindly provided the following abstract in English:

Regulation (EU) No 2016/1103 is the reference Regulation in matters of cross-border matrimonial property regimes. This book carries out an exhaustive analysis of the Regulation, overcoming its complexity and technical difficulties.

The book is divided in two parts. The first is related to the applicable law, including the legal matrimonial regime and the matrimonial property agreement and the scope of the applicable law. The second part is related to litigation, including the rules of jurisdiction and the system for the recognition of decisions. The study of the jurisdiction rules is ordered according to the type of litigation and the moment in which it arises, depending on whether the marriage is in force or has been dissolved by divorce or death. The conclusions include an overview of the guiding principles of the Regulation and specific solutions for different problems related to matrimonial property regimes (such as the treatment of prenuptial agreements, effects in respect of third parties, the relationship between the matrimonial property regimes or the civil liability of the spouses).

The study merges the rigorous interpretation of UE rules with practical reality and includes case examples for each problem area. The book is completed with a lot of references on comparative law, which show the different systems for dealing with matters of the matrimonial property regime applied in the Member States. It is, therefore, an essential reference book for judges, notaries, lawyers or any other professional who performs legal advice in matrimonial affairs.

The table of contents can be accessed here.

This post is by Alberto Pomari, LLM Student at the University of Pittsburgh School of Law and JD Student at the University of Verona School of Law.

Although the United States has historically led the way in the field of antitrust law, it is currently taking a backseat to the European Union, which has become the global role model in competition law. The Illumina/Grail merger illustrates this tendency.

In March 2021, the FTC challenged the merger and filed an administrative complaint for a temporary restraining order to keep Illumina and Grail from closing the transaction. Specifically, the FTC avers that Illumina’s acquisition of Grail will “lessen competition in the U.S. MCED test market by raising costs and hindering development efforts of Grail’s rivals.” Effectively, the FTC is leaning on the theory of harm, known as “increased leverage theory,” that aims at protecting competitors in the downstream market from the merged firm’s stronger “bargaining position in affiliate negotiations.” However, this theory was soundly rejected only a few years ago in United States v. AT&T, Inc. where the Court stuck with the traditional lodestar of American antitrust law, i.e. the consumer welfare theory. In a fanciful attempt to overrule the AT&T decision, the increased leverage theory was incorporated in Section 4 of the (already withdrawn) 2020 Vertical Merger Guidelines. Notwithstanding, after only two months, the FTC dropped its temporary restraining order petition as Illumina and Grail had, in the meantime, been prevented from merging under European competition law. Indeed, in view of its cooperation with the FTC, the European Commission announced in April 2021 an investigation into the transaction at stake pursuant to a new interpretation of Article 22 of the E.U. Merger Regulation.

Unlike its American counterpart, European competition law has traditionally served an array of policy goals that, going beyond the mere consumer welfare, include the protection of small- and medium-sized enterprises as well as the preservation of a competitive market structure. Accordingly, mergers like Illumina/Grail usually have a harder time passing the scrutiny of the European institutions. However, what is unprecedented in this case is the European Commission’s willingness to go the extra mile to crack down on an acquisition that involves two American companies, one of which—Grail—does not even have any business activity in the European Union.

In March 2021, the EC issued a new interpretation of the referral mechanism set out by Article 22 of the Merger Regulation. Particularly, National Competition Authorities may now require the European Commission to assess any proposed merger that “may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States,” irrespective of the merging parties’ actual presence in the European market. By adopting this new interpretation, the European Union was able to come to the rescue of the ill-equipped FTC by halting the Illumina/Grail transaction thanks to the (administrative) standstill obligation imposed by Article 7 of the E.U. Merger Regulation.

In conclusion, Illumina and Grail have been the hapless victims of a joint EC-FTC scheme that should send chills down the spine of any American company interested in a vertical merger, mainly for two reasons. First, according to the new interpretation of Article 22 of the E.U. Merger Regulation, many cutting-edge U.S. mergers are likely to be scrutinized by the European Commission under the E.U. stringent theory of harm, even if the companies involved have no current business in the European Market. Second, to challenge these mergers, the FTC will likely engage in unprecedented transatlantic forum shopping to obtain from the European Commission a (administrative) temporary restraining order that should otherwise be sought before an American court. This may be just the beginning of a far-reaching “Europeanization of the U.S. antitrust.”

Today, the Court of Justice has published its judgement in C 393/20, a request for a preliminary ruling from the Sąd Rejonowy dla Krakowa-Śródmieścia w Krakowie (Poland).

The subject matter of the proceedings in the joined cases concerns the claims of two commercial operators, T.B. and D. sp. z o.o., with seat in Poland, against the defendant G.I. A/S, which has its seat in Denmark. In each of the two joined cases, the applicant seeks compensation for the damage resulting from a road accident caused by persons who are insured by the defendant. In both cases the accident occurred in Poland, the vehicles involved in the collision were registered in the territory of Poland, and the drivers of the vehicles are Polish citizens.

T.B. is a businessman; he engages professionally in risk assessment and loss assessment activities. D. sp. z o.o. presents itself as a repair workshop offering vehicle repair services without payment and accepting claim assignment as settlement of repair costs. G.I. A/S contests the jurisdiction of the Polish courts seized in both cases.

The questions referred to the Court were:

(1)         Must Article 13(2), in conjunction with Article 11(1)(b), of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who, in return for services provided to a party directly injured in a road accident in connection with the damage caused, has acquired a claim for compensation, but does not carry out the professional activity of recovering insurance indemnity claims against insurance companies and who brought an action, in the court for the place where he is established, against the third-party liability insurer of the party responsible for that accident, which insurer has its seat in another Member State?

(2)         Must Article 7(2) or Article 12 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters be interpreted as meaning that it may be relied on by a person who acquired, under an assignment agreement, a claim from a party injured in a road accident in order to bring a civil-liability action before a court of the Member State in which the accident occurred against the insurer of the party responsible for that accident, which insurer has its seat in a Member State other than the Member State in which the accident occurred?

In a decision taken by the 8th Chamber (N. Wahl, F. Biltgen, L.S. Rossi as juge rapporteur), without prior opinion of the advocate general in charge, the Court has replied as expected. Regarding the first question, it states that (my translation) Article 13 (2) of Regulation 1215/2012, read in conjunction with Article 11 (1) (b) of that regulation,

“must be interpreted as meaning that it cannot be invoked by a company which, in return for the services it provides to the victim direct from a road traffic accident related to the damage resulting from this accident, has acquired from it the claim for insurance compensation, for the purpose of claiming payment from the insurer of the author of the said accident, without however exercising a professional activity in the field of recovery of such debts.”

On the second query, the answer reads:

“Article 7 (2) of Regulation No 1215/2012 must be interpreted as meaning that it may be invoked by a trader who has acquired, by virtue of an assignment contract, the debt of the victim of a road traffic accident, with the aim of bringing before the courts of the Member State of the place where the harmful event occurred, a tort or quasi-tort action against the insurer of the author of this accident, which has its registered office in the territory of a Member State other than that of the place where the harmful event occurred, provided that the conditions for the application of this provision are met, which is for the referring court to verify.”

On 5 October 2021, Indonesia acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. It will enter into force for Indonesia on 4 June 2022.

Source : https://www.hcch.net/en/news-archive/details/?varevent=825

The Hague Special Commission on the practical operation of the Apostille Convention met from 5 to 8 October 2021. Its Conclusions & Recommendations are available at https://assets.hcch.net/docs/b7b20030-6229-459f-b26b-e9185bf6fffc.pdf

Extract (example) : « the PB is not appropriately placed to establish a digital certificate authority and reiterating the importance of technology neutrality and maintaining flexibility for all Contracting Parties, the SC recognised the good practice of using digital certificates with high standards, that are well-recognised and frequently used, and invited Contracting Parties to inform the PB about the certificate technology used to issue e-Apostilles. […] The SC recalled the fundamental principle that, irrespective of format, an Apostille validly issued by one Contracting Party in accordance with the Convention must be accepted by all other Contracting Parties for which the Convention is in force. In this spirit, it encouraged Contracting Parties to take active steps to ensure the acceptance of incoming e-Apostilles ».

« From 28 to 30 September 2021, the Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met [to discuss] a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the 1993 Adoption Convention ».

The Aide-mémoire of the Group is available https://assets.hcch.net/docs/43cf175b-1c27-4a90-8be7-7a87b8412665.pdf (Annex I)

Source : https://www.hcch.net/en/news-archive/details/?varevent=823

Okrazhna prokuratura - Varna
Espace de liberté, sécurité et justice
La Cour précise certaines dispositions de la directive relative au gel et à la confiscation des instruments et des produits du crime dans l’Union européenne

Par un arrêt du 6 octobre 2021, la CJUE précise les conditions de mise en œuvre du règlement Bruxelles I bis en matière de mesures provisoires et conservatoires, dans l’hypothèse où un juge d’un État membre est saisi au fond et un juge d’un autre État membre est saisi en référé.

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