Agrégateur de flux

On 20 October 2021, the Supreme Court of the United Kingdom delivered its judgment in FS Cairo (Nile Plaza) LLC (Appellant) v Brownlie (as Dependant and Executrix of Professor Sir Ian Brownlie CBE QC) (Respondent).

The most important issue before the court was whether English court should be able to retain jurisdiction in tort cases on the ground that an indirect damage was suffered in the United Kingdom. The applicable provision (CPR Practice Direction 6B) refers to “damage” suffered in England, and the court held that as it does not distinguish between direct and indirect damage, it should be considered as including both.

Interestingly, the argument was made that the English rule was drafted on the model of EU law, which limits jurisdiction to the court of the place of direct damage. It is rejected as an overgeneralisation.

So much for those who thought that EU law would continue to influence the development of English private international law.

Bye bye Brussels, bye bye Marinari.

Background

On 3 January 2010, Lady Brownlie’s husband was killed in a car accident in Egypt during an excursion booked through the Four Seasons Hotel Cairo, a hotel operated by FS Cairo. Lady Brownlie was injured in the same accident. The driver was convicted of involuntary manslaughter. In December 2012, Lady Brownlie brought claims in tort and contract in the High Court against Four Seasons Holdings Incorporated, a Canadian company, for damages for injury and losses suffered as a result of the accident.

In 2018 the Supreme Court held that the evidence showed that Four Seasons Holdings Incorporated was a non-trading holding company which neither owned nor operated the Hotel and that therefore the courts of England and Wales had no jurisdiction to try the claims against it. The Supreme Court remitted ancillary matters to the High Court and ordered that the Claimant had permission to apply to correct the name of the Defendant, to substitute or to add a party to the proceedings.

Lady Brownlie applied to the High Court to amend her claim so that it could be brought against FS Cairo instead. Permission to amend her claim was granted but, because FS Cairo is an Egyptian company, Lady Brownlie also requires permission to serve her claim out of the jurisdiction.

In order to serve her claim outside the jurisdiction, English law requires Lady Brownlie to show, in respect of each claim in contract and tort, that: (1) it falls within a ‘jurisdictional gateway’ under CPR Practice Direction 6B; (2) it is a claim that has a reasonable prospect of success; and (3) England and Wales is the proper place in which to bring the claim. The High Court and a majority of the Court of Appeal (Arnold LJ dissenting) decided that Lady Brownlie had met all three elements of this test in respect of her claims in tort and contract. Lady Brownlie was therefore granted permission to serve her claims on FS Cairo. FS Cairo appeals to the Supreme Court only against the decisions concerning the first two elements of the test.

Judgment The tort gateway issue

Before permission may be given for service of a claim form outside the jurisdiction, the claimant must establish that: (1) the claim falls within one of the gateways set out in paragraph 3.1 of Practice Direction (“PD“) 6B to the CPR; (2) the claim has a reasonable prospect of success; and (3) England and Wales is the appropriate forum in which to bring the claim [25]. Those conditions are the domestic rules regarding service out of the jurisdiction; they may be contrasted with the EU system [28-29].

Lady Brownlie submits that her tortious claims meet the criterion for the gateway in paragraph 3.1(9)(a) of PD 6B, namely that “damage was sustained… within the jurisdiction” [30]. The appellant submits that paragraph 3.1(9)(a) only founds jurisdiction where the initial or direct damage was sustained in England and Wales. Lady Brownlie instead maintains that the requirements of the gateway are satisfied if significant damage is sustained in the jurisdiction [33-34].

The Supreme Court considers that the word “damage” in paragraph 3.1(9)(a) refers to actionable harm, direct or indirect, caused by the wrongful act alleged [81]. Its meaning should not be limited to the damage necessary to complete a cause of action in tort because such an approach is unduly restrictive [49-51]. The notion that paragraph 3.1(9)(a) should be interpreted in light of the distinction between direct and indirect damage which has developed in EU law is also misplaced [81]. It is an over generalisation to state that the gateway was drafted in order to assimilate the domestic rules with the EU system. In any event, there are fundamental differences between the two systems [52-56]. The additional requirement that England is the appropriate forum in which to bring a claim prevents the acceptance of jurisdiction in situations where there is no substantial connection between the wrongdoing and England [77-79]. Lady Brownlie’s tortious claims relate to actionable harm which was sustained in England; they therefore pass through the relevant gateway [83].

Lord Leggatt dissents on this issue. He favours a narrower interpretation of paragraph 3.1(9)(a) [208]. He considers that Lady Brownlie’s tortious claims do not pass through the relevant gateway because Egypt is the place where all of the damage in this claim was sustained [209].

The Foreign Law Issue

It is common ground that Lady Brownlie’s claims are governed by Egyptian law [98]. One of the requirements for obtaining permission for service out of the jurisdiction is that the claim as pleaded has a reasonable prospect of success [99-100]. The appellant argues that Lady Brownlie has failed to show that certain of her claims have a reasonable prospect of success because she has not adduced sufficient evidence of Egyptian law. Lady Brownlie submits that it is sufficient to rely on the rule that in the absence of satisfactory evidence of foreign law the court will apply English law [102-103, 105-106].

The Supreme Court distinguishes between two conceptually distinct rules: the ‘default rule’ on the one hand and the ‘presumption of similarity’ on the other. The default rule is not concerned with establishing the content of foreign law but treats English law as applicable in its own right when foreign law is not pleaded [112]. The justification underlying the default rule is that, if a party decides not to rely on a particular rule of law, it is not for the court to apply it of its own motion [113-116]. However, if a party pleads that foreign law is applicable they must then show that they have a good claim or defence under that law [116-117]. The presumption of similarity is a rule of evidence concerned with what the content of foreign law should be taken to be [112]. It is engaged only where it is reasonable to expect that the applicable foreign law is likely to be materially similar to English law on the matter in issue [126]. The presumption of similarity is thus only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence [149]. Because the application of the presumption of similarity is fact-specific, it is impossible to state any hard and fast rules as to when it may properly be employed (although some general observations may nonetheless be made) [122-125, 143-148].

Lady Brownlie’s claims are pleaded under Egyptian law. There is thus no scope for applying English law by default [118]. However, the judge was entitled to rely on the presumption that Egyptian law is materially similar to English law in concluding that Lady Brownlie’s claims are reasonably arguable for the purposes of establishing jurisdiction [157-160].

Polskie Linie Lotnicze "LOT" / Commission
Concurrence
Le Tribunal rejette les recours de la compagnie aérienne Polskie Linie Lotnicze « LOT » à l’encontre des décisions de la Commission autorisant les concentrations portant sur l’acquisition respectivement par easyJet et par Lufthansa de certains actifs du groupe Air Berlin

The UNCITRAL LAC Day 2021 will take place online on Thursday 21 October 2021 at 10:00 Argentinian time and 15:00 CEST time (in Spanish). This event has been organised by UNCITRAL, the Organization of American States (OAS – OEA), Secretaría de Integración Económica Centroamericana / Secretariat for Central American Economic Integration (SIECA) and ASADIP.

The focus of the conference will be international commercial mediation and expedited arbitration. In particular, it will be discussed the work carried out by UNCITRAL’s Working Group II: Dispute Settlement.

This post was contributed by Hans van Loon, a member of GEDIP and of the Institut de Droit International and a former Secretary General of the Hague Conference on Private International Law. 

The European Group for Private International Law 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. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”.  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 (see II Background to the Proposal, 3), as well as recent case law in the UK and the Netherlands (See II Background to the Proposal 2).

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 (The Annex to the Proposal contains suggestions concerning the form and the substantive scope of the future EU instrument).

By Jack Wass (Stout Street Chambers, New Zealand)

The enforcement of judgments from Chinese courts continues to generate controversy in common law countries. In Hebei Huaneng Industrial Development Co Ltd v Shi, the New Zealand courts have been faced with the argument that because Chinese courts are not independent of the political arms of government, they do not qualify as “courts” and their judgments are not entitled to recognition.

In 2020, the High Court rejected this argument in a jurisdictional context: see our report here and the issue has also arisen in the United States. The issue arose again, in the same case, on an application for summary judgment by the plaintiff judgment creditor. Here the argument received more traction from a different judge of the same court.

The judges at both stages recognised that there were two ways to look at allegations that courts lacked impartiality and independence: the first is to assess whether the courts, as a general matter, possess the characteristics of judicial bodies whose decisions are entitled to recognition; the second is to assess whether the absence of independence resulted in a breach of natural justice in the circumstances of the actual case.

Both approaches present the court with a potentially invidious inquiry, but the clear message from the judges in both decisions is that a defendant has a better chance of showing that justice was not done in an individual case than convincing the court to condemn an entire judicial system. With the application for summary judgment rejected, the case will now go to trial; this will not be the last word on the enforcement of Chinese judgments in New Zealand.

On 15 October 2021, the two Rapporteurs of the European Parliament, Emil Radev and Nuno Melo (following a Joint committee procedure, i.e. Committee on Legal Affairs and Committee on Civil Liberties, Justice and Home Affairs) released a Report on the Proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system, already mentioned on the blog here and here), amending Regulation (EU) 2018/1726 eu-LISA (see the Regulation Proposal here).

The Explanatory Statement presenting the main reasons for the proposed amendments on the Regulation Proposal reads as follows:

Introduction

E-Justice is one of the cornerstones of the efficient functioning of judicial systems in the Member States and at the European level. It is an essential instrument to facilitate the access to justice and provide legal protection to European citizens and companies in the digital era. It is thus important that appropriate channels are developed to ensure that justice systems can efficiently cooperate in a digital way.

The Commission’s Communication on the digitalisation of justice, A toolbox of opportunities, of 2 December 2020, sets out a new approach to the digitalization of justice based on a comprehensive set of financial and IT legal instruments to be used by various actors in the judicial systems. The Commission also presented the “Proposal for a Regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system)”, the e-CODEX Regulation.

On 29 April 2021 it was announced that the file shall be dealt with jointly by two committees – the Civil Liberties, Justice and Home Affairs Committee (LIBE), and the Legal Affairs Committee (JURI). MEP Emil Radev (JURI) and MEP Nuno Melo (LIBE) were appointed rapporteurs for the referred Regulation. E-CODEX is a golden standard/key technological enabler for modernising, through digitalisation, the communication in the context of cross-border judicial proceedings. Since the start of the project in December 2010, e-CODEX has transformed from an ambitious project to an operational Digital Service Infrastructure (DSI) in the judicial domain. Currently, the focus lies on the transition of the e-CODEX project towards a long-term sustainable and secure solution for the maintenance of e-CODEX.

The Rapporteurs believe that this Regulation, as an instrument which is directly applicable in all Member States and binding in its entirety, will guarantee a uniform application of the rules on e-CODEX across the EU and their entry into force at the same time. They welcome the aim to offer legal certainty by avoiding divergent interpretations in the Member States, thus preventing legal fragmentation. By establishing the e-CODEX system, the adoption of the Regulation will contribute to the uptake of e-CODEX by more Member States for procedures in which the system is already used as well as for future ones. The E-CODEX project aims to improve the cross-border access of citizens and businesses to justice in European Union as well as to improve the interoperability between judicial authorities within the European Union. It is designed as a decentralized system based on a distributed architecture that enables connectivity between national systems.

The rapporteurs believe that the e-CODEX system should be seen as a preferred solution for the establishment of interoperable and secure decentralised communication networks between national IT systems in cross-border judicial cooperation in civil and criminal  matters. The Proposal aims to entrust the further development and maintenance of e-CODEX to the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) as of July 2023.

1. Scope

The scope of this Regulation is the electronic exchange of data in the context of cross-border judicial cooperation in civil and criminal matters (Article 2). The e-CODEX system should be viewed as the preferred solution for an interoperable, secure and decentralised communication network between national IT systems in this field.  The rapporteurs are of the opinion that Annex I, containing a list of instruments providing for judicial procedures subject to eCodex, should be deleted. The scope of the Regulation should instead be established by reference to the judicial cooperation in civil and criminal matters (Article 2). This allows for avoiding any risk of leaving out of the scope judicial procedures for which it is appropriate to foresee the possibility to use e-Codex. Moreover, a simple reference to Article 81 and 82 TFEU would have not been sufficient as instruments predating the Lisbon Treaty would not have been covered. Finally, the Regulation should only deal with the use of e-Codex for procedures in civil and criminal matters. Other uses of e-Codex that may be established by future legislative acts should not be addressed by this Regulation as they would require adaptations that cannot be foreseen at present (Recital 11; Article 2).

2. Definitions

The Commission proposal does not contain clear and concrete provisions regarding the operating conditions of access points. The rapporteurs further developed the terminology of e-Codex to give more clarity to the following expressions: “authorised e-Codex Access point”, “e-Codex correspondents” and “digital procedural standards” (Article 3).

3. Allocation of responsibilities

It is necessary to ensure the long-term sustainability of the e-CODEX system and the efficiency of its governance while ensuring the independence of the national judiciaries; therefore, an appropriate entity for the operational management of the system is to be designated. The proposal provides for the creation of an e-CODEX Advisory Group and a Programme Management Board for e-CODEX (Article 12). Safeguards have been introduced for the independence of the judiciary that shall never be negatively impacted on by the e-CODEX system (recitals 7 and 9; Article 12a new). For a sound and clear operation of the eCodex system, further amendments have been tabled to precisely delineate the roles of the Commission, the Member States and eu-Lisa (Recitals 5, 12, 15, 21; Articles 3(1)b, 3(1)ba new, 6(4)a new, 7, and 16a new).

4. Optimisation of the e-CODEX system

The rapporteurs introduced, for the sake of efficiency of e-Codex, some specifications on the authorized access points and on the designation of correspondents by Member States (Article 3(1)b, Article 3(1)ba new and Article 7).

5. Delegation of powers to COM

Since the scope of the eCodex Regulation should be limited to the judicial cooperation in civil and criminal matters, but given that in the future it could be appropriate to make other procedures subject to the eCodex system, the two Rapporteurs are of the view that a certain flexibility is needed when it comes to the scoping of the Regulation itself. This is why provisions on delegated acts have been introduced. These provisions allow for further expanding the operation of eCodex while fully preserving the prerogatives of the Parliament on the scoping of the Regulation (Article 5(3a) new and 16a new). 

In the Commission Financial Statement, reference is made to the expansion of the eCodex system to other procedures via implementing acts (point 2.2.3). This would be neither desirable nor legally appropriate. However, since the Financial Statement cannot be amended by the co-legislators, the insertion of the provisions empowering the Commission to adopt delegated acts is sufficient to keep parliamentary scrutiny intact.

6. Private entities operating the access points and data protection

Judicial authorities and public prosecutors in many Member States usually have recourse to the services of contractors. Therefore, providing for the involvement of private entities and limiting it to the functioning of the e-Codex system does not set a dangerous precedent. However, safeguards should be in place given the sensitivity of the administration of justice and of the data and information dealt with by judicial authorities. This is the reason why the two Rapporteurs have foreseen that private entities can operate the access points only if authorised by Member Stated and provided that they fully comply, like public authorities possibly charged with that same task, with existing legislation on data protection (Recital 15, 15a new, 17; Article 12a new).

7. e-Justice Core Vocabulary

With a view to strongly and thoroughly encourage judicial cooperation and mutual trust, interoperability should be ensured not only as regards Information and Communication Technology, but also in relation to terminology. Otherwise, even the most efficient system of interconnection would not be sufficient to make judicial authorities, legal practitioners, citizens, businesses and stakeholders properly understand each other. It is in the light of this that the two rapporteurs have chosen to insert the reference to the e-Justice Core Vocabulary in the definition of the “digital procedural standard” (Article 3, paragraph 1, point ga, new).

Conclusion

The two rapporteurs find that the proposal put forward by the Commission goes in the right direction by putting the question of interoperability at the heart of the EU efforts to stimulate and enhance the judicial cooperation across the continent.The proposal itself can be considerably improved to find a delicate and vital balance between interoperability and judicial independence, efficiency and data protection, speed and fundamental rights, technology and the rule of law.

More information here.

Par un arrêt Zambrano c/ France du 7 octobre 2021,  la Cour européenne des droits de l’homme déclare irrecevable une requête contestant le passe sanitaire.

Sur la boutique Dalloz La Convention européenne des droits de l’Homme Voir la boutique Dalloz

en lire plus

Les chasseurs d’alouette des champs vont pouvoir ressortir leurs pantes et leurs matoles dans plusieurs départements du sud-ouest (Gironde, Landes, Lot-et-Garonne…). Quant à ceux des Ardennes, ils pourront à nouveau utiliser des tenderies (filets) et des lacs (collets) pour capturer vanneaux, pluviers dorés, grives et merles noirs. Huit arrêtés publiés au Journal officiel du 15 octobre autorisent en effet le recours à ces techniques traditionnelles de chasse pour la campagne 2021-2022.

en lire plus

I reviewed the AG’s Opinion in C-269/20 Commerzbank here. The CJEU held a few weeks back, rejecting the AG’s main proposal and instead following him on the subsidiary argument. For the consumer section, it suffices the international element surfaces only after the contract has been concluded, provided of course the contract at issue meets with the Pammer Alpenhof criteria: the business concerned need not necessarily actively pursue a commercial activity in the State in which the consumer is now domiciled, yet its organisation of operations and marketing is such as to meet the ‘directed at’ criteria of the consumer section.

It is to be assumed that the Court’s flexible interpretation (with reliance to a large degree on mBank) of the international element to this far-reaching extent, only applies given the protective intent of Lugano’s (and Brussels Ia’s) consumer, potentially employees’ and insurance title.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff.

On 12 October 2021, the European Court of Human Rights (ECtHR) delivered its judgment in J.C. and Others v. Belgium (only available in French, so far).

The case has been widely reported in the general media, as it is concerned with the immunity of the Holy See in a sexual abuse case brought in Belgian courts.

The ECtHR reiterates that it does not consider that the current state of public international law supports the proposition that sovereign immunities would not apply to severe violations of human rights. The Court confirms that it does not see itself as a progressive force in the field of sovereign immunities, but rather as an authority which will follow the development of public international law.

In this context, the claim against the Holy See was unlikely to succeed. There was no allegation that officials of the Vatican had perpetrated acts of sexual abuse themselves. Rather, it was argued that they should be responsible for failing to supervise adequately the Belgian Catholic Church. If the immunity would stand for the direct perpetrator, why would it not for an indirect one?

Background

The applicants were 24 Belgian, French and Dutch nationals. They allege that they were victims of sexual abuse by Catholic priests when they were children.

In July 2011 the applicants filed a class action in a Belgian first instance court, complaining of the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within it. The action was brought against the Holy See as well as an archbishop of the Catholic Church in Belgium and his two predecessors, several bishops and two associations of religious
orders.

Basing their action on general tort law provisons (Articles 1382 and 1384 of the Civil Code), the applicants requested primarily that the defendants be held jointly and severally liable for the damage they claimed to have sustained as a result of the alleged sexual abuse by Catholic priests or members of religious orders. They also claimed that the defendants should be jointly and severally liable to pay compensation of EUR 10,000 to each of them because of the Catholic Church’s policy of silence on the issue of sexual abuse.

In October 2013 the Belgian court declined jurisdiction in respect of the Holy See. In February 2016 a Belgian Court of Appeal upheld the judgment. It found, in particular, that it did not have a sufficient jurisdictional basis to rule on the claimants’ action because of the Holy See’s immunity from legal proceedings. It also stated that Belgium’s recognition of the Holy See as a foreign sovereign with the same rights and obligations as a State was conclusively established. This recognition resulted from a series of commonly agreed elements of customary international law, foremost among which were the conclusion of treaties and diplomatic representation. The Holy See therefore enjoyed diplomatic immunity and all State privileges under international law, including jurisdictional immunity. The Court of Appeal also noted that the dispute did not fall within any of the exceptions to the principle of State immunity from jurisdiction.

In August 2016 a lawyer at the Court of Cassation gave a negative opinion on the chances of success of a possible appeal to the Court of Cassation.

Subsequently, all but four claimants who did not apply were able to obtain compensation through the arbitration centre for sexual abuse claims set up within the Catholic Church. Relying on Article 6 § 1 (right of access to a court), the applicants complained that the application to the Holy See of the principle of State immunity from jurisdiction had prevented them from asserting their civil claims against it.

Judgment

The Court noted that the Court of Appeal had found that the Holy See was recognised internationally as having the common attributes of a foreign sovereign, with the same rights and obligations as a State. The Court of Appeal had noted in particular that the Holy See was a party to some major international treaties, that it had signed agreements with other sovereign entities and that it enjoyed diplomatic relations with some 185 States worldwide. As regards Belgium, more specifically, diplomatic relations with the Holy See dated back to 1832 and it was recognised as a State.

The Court did not find anything unreasonable or arbitrary in the detailed reasoning which led the Court of Appeal to reach that conclusion. It pointed out that it had itself previously characterised agreements between the Holy See and other States as international treaties. Therefore the Holy See could be recognised as having characteristics comparable to those of a State. The Court of Appeal had thus been justified in inferring from those characteristics that it was a sovereign power with the same rights and obligations as a State.

The Court pointed out that it had also accepted that the granting of State immunity in civil proceedings pursued the legitimate aim of observing international law for the sake of comity and good relations between States, by ensuring respect for the sovereignty of another State.

As to the proportionality of the limitation sustained by the applicants in their right of access to a court, the Court found that the Court of Appeal’s approach corresponded to international practice in such matters. It had not noted anything arbitrary or unreasonable in the Court of Appeal’s interpretation of the applicable legal principles, or in the way it had applied them to the facts of the case, taking account of the basis of the applicants’ action.

The Court also noted that the question whether the case could fall within one of the exceptions to the application of the jurisdictional immunity of States had also been discussed before the Court of Appeal. The exception invoked by the applicants applied to proceedings relating to “an action for pecuniary compensation in the event of the death or physical injury of a person, or in the event of damage to or loss of tangible property”. The Court of Appeal had rejected this exception on the grounds, among others, that the misconduct of which the Belgian bishops were accused could not be attributed to the Holy See, as the Pope was not the principal in relation to the bishops; that the misconduct attributed directly to the Holy See had not been committed on Belgian territory but in Rome; and that neither the Pope nor the Holy See had been present on Belgian territory when the misconduct attributed to the leaders of the Church in Belgium had been committed. It was not for the Court to substitute its own assessment for that of the national courts, since their assessment on this point had not been arbitrary or manifestly unreasonable.

The Court also noted that the proceedings brought by the applicants in the Ghent Court of First  Instance had not been directed solely against the Holy See, but also against officials of the Catholic Church in Belgium whom the applicants had identified. However, the applicants’ claim on this ground was unsuccessful owing to the applicants’ failure to comply with procedural rules laid down in the Judicial Code and substantive rules concerning civil liability in summoning the other defendants. The reason why the applicants’ action had been totally unsuccessful had thus been the result of procedural choices that they failed to cure in the course of the proceedings in order to specify and individualise the facts submitted in support of their claims.

Consequently, the Court found that the dismissal of the proceedings by the Belgian courts in declining jurisdiction to hear the tort case brought by the applicants against the Holy See had not departed from the generally recognised principles of international law in matters of State immunity and the restriction on the right of access to a court could not therefore be regarded as disproportionate to the legitimate aims pursued. There had therefore been no violation of Article 6 § 1 of the Convention.

Written by Marco Farina, Italian lawyer, PhD in Civil Procedural Law at the University La Sapienza of Rome – Adjunct Professor of Civil Procedural Law at the University LUISS of Rome

In a judgment rendered on 16 September 2021, the Italian Supreme Court (Corte di Cassazione) reversed a decision from the Court of Appeal of Rome, which had denied recognition and enforcement of a monetary judgment issued by the Royal Court of Guernsey, due to a breach of the fundamental rights of defence allegedly occurred in the proceedings.

The Court of Appeal of Rome reasoned under Article 64 (b), of the Italian Act on Private International Law (Law 31 May 1995 no. 218), which provides, inter alia, that a foreign judgment may be not recognized and enforced if fundamental rights of defence have been breached in the foreign proceedings.

The Court of Appeal found that a relevant breach of the fundamental rights of defence had occurred because, at the outset of the proceedings, a worldwide freezing injunction (associated with a disclosure order) had been issued against the defendant. In the Court of Appeal’s opinion, the injunction and its effects altered the procedural equality of the parties before the foreign court, since it was a “highly coercive measure against the defendant who is not only severely affected in the free disposal of his assets, but is also exposed to the risk of even being deprived of his personal freedom, if he does not cooperate with his counterpart in the identification of his assets to be seized” (English translation).

This relevant alteration of the procedural equality of the parties existed, according to the Court of Appeal, because, whilst the defendant was impacted by this order, the plaintiff was not.

In the end, the Court of Appeal held that the injunction issued against the defendant had “the concrete ability – in the absence of any conduct of the defendant indicating that he intended to harm the claimant’s rights – to limit, restrict, diminish the defendant’s ability to defend itself, both in imposing significant limitations on the free disposal of his assets and in constraining him to collaborate with the claimant before of preparing its own defence. All this, while nothing of the same kind affected the assets or the defensive opportunities of the claimant. The defendant, therefore, found himself in a much weaker defensive position than his counterpart” (English translation).

The Supreme Court found several flaws in this reasoning.

Firstly, the Supreme Court held that if, in principle, it could not be denied that a relevant alteration of the procedural equality might amount to a breach of the fundamental rights of defence, the mere fact that the judgment to be recognized and enforced in Italy had been preceded by a provisional order – in the form of an injunction (associated with a disclosure order) – could not, in any case, lead to such a breach.

Regarding the functioning of a freezing injunction issued by a common law court, the Supreme Court asserted that (i) the injunction is sought to preserve the defendant’s assets until judgment can be obtained or satisfied, (ii) the injunction may be rendered when the claimant has shown a good arguable case and a risk of dissipation exists, (iii) it operates in personam; therefore, its effectiveness depends on the threat of punishment for contempt of court, and (iv) it is usually associated with other orders, which are aimed at rendering the freezing injunction more effective, thus constraining the affected party to identify its assets and their location (disclosure order) under the threat of being excluded (debarred) from the proceedings (unless order).

Having said that, the Supreme Court went on to state that, in the case at hand, the injunction was associated with a disclosure order but not with an unless order. So, even if the defendant were not to comply with the injunction and the disclosure order, he remained fully entitled to participate in the proceedings defending himself as no exclusion and/or debarring was pronounced against him.

In the light of the above, the Supreme Court had good reason to observe that the Court of Appeal should not have found any breach in the fundamental rights of defence (in terms of the alteration of the procedural equality of the parties) since – as the same Italian Supreme Court held in its previous judgment (judgment no. 11021 rendered on 9 May 2013 in the well-known Gambazzi case, following the decision from CJEU in Case C-394/07, 2 April 2009, Gambazzi) – the right to a fair trial should be considered breached in the event of “manifest and disproportionate infringement of the defendant’s right to be heard” (English translation).

Thus, the Supreme Court noted that, if a judgment rendered against a defendant who – due to his failure to comply with a disclosure order associated with a freezing injunction – had been excluded and/or debarred from the proceedings, must be recognized and enforced in Italy (see again judgment no. 11021 of 9 May 2013 in the Gambazzi case), a fortiori a monetary judgment rendered against the defendant whose participation in the proceedings had not been prevented notwithstanding its failure to comply with the disclosure order associated with the freezing injunction, ought to be recognized and enforced in Italy.

The validity of this line of reasoning must be inferred, according to the Supreme Court, from the injunction (and the disclosure order which was associated with it) being a provisional and protective measure aimed at preserving the claimant’s right to enforce the judgment which might be rendered in its favour at the end of the proceedings on the merits. Therefore, such measures are as much an essential part of the common law procedural system as the attachment and/or preservation orders are in Italy (sequestro conservativo, Article 671 of Italian Code of Civil Procedure).

Hence, asserting that – as the Court of Appeal did – the mere fact that a freezing injunction has been issued and enforced against a defendant (and not against the claimant) amounts to a breach of the right to a fair trial (in terms of the alteration of the procedural equality of the parties), would insinuate that a breach of the fundamental right of defence occurs in Italy every time a claimant succeeds in obtaining a protective measure against the defendant, when the former is not addressed with the same measure.

This is not an alteration of the procedural equality of the parties. On the contrary, this is the essence of litigation between two parties in an adversarial system.

It is natural in contentious civil proceedings that the party against whom a claim is brought may be affected by measures which result in finding itself in a different situation from that of the claimant. This cannot, by definition, give rise to any relevant breach of the fundamental rights of defence in terms of violation of the principle of the so-called ‘equality of arms’. For example, in the ordinary proceedings instituted by the debtor for opposing an enforceable order of payment obtained by the creditor, the debtor finds himself in different position from that of the creditor; a defendant, in ordinary civil proceedings, finds himself in a different situation from that of the claimant who has obtained – before or during the proceedings – an attachment order for the defendant’s assets.

Accordingly, provided that both parties are granted equal chances to obtain and enforce a protective and/or provisional measure, is part of the ordinary functioning of a civil proceeding that a party will succeed in obtaining it and the other will not.

In the case at hand – the Supreme Court noted – both parties were granted equal and fair chances of defence as, (i) the freezing injunction and the disclosure order were given ex parte but the defendant was given the right to apply to the court to vary or reverse the order, and (ii) the claimant had assumed the obligation of complying, under the same threat of the “contempt of court”, with any subsequent order of the Court condemning the claimant for any loss suffered by the defendant.

Moreover, the Supreme Court asserted that nothing to the contrary may be inferred from the fact that the injunction and the disclosure order operate in personam and that the infringement thereof triggered the consequences of a “contempt of court”. The Cassazione did not see any violation of the fundamental rights of defence, all the more because the Italian legal system features cases in which a failure to comply with a judicial order could amount to a criminal offence.

The judgment of the Italian Supreme Court can be read here (in Italian).

Aldricus – Rambut lepek dan tidak bervolume merupakan masalah kebanyakan perempuan yang berhijab. Kondisi ini terjadi karena kurangnya perawatan atau perawatan yang tidak tepat pada rambut. Bagi Anda yang berhijab, Anda harus tahu cara membuat rambut bervolume dan tidak lepek.

Terlebih lagi kita ini tinggal di negara tropis yang mana membuat kita mudah berkeringat. JIka tidak cepat diatasi, masalah ini bisa mengurangi semangat dan rasa percaya diri Anda.

Cara Membuat Rambut Bervolume

Untuk membua rambut Anda menjadi lebat dan bervolume, ada beberapa cara yang bisa lakukan. Apa saja itu? Silahkan simak daftar caranya berikut ini:

1. Konsumsi Makanan Berprotein

Cara pertama adalah dengan mengonsumsi makanan yang mengandung banyak protein dan antioksidan. Alasannya karena rambut membutuhkan protein yang juga disebut dengan nama keratin. Jika rambut kekurangan protein, rambut menjadi mudah rontok dan menipis.

2. Keringkan Rambut Sebelum Berhijab

Rambut yang lepek karena hijab bisa Anda atasi dengan memastikan rambut sudah  kering sebelum memakainya. Rambut yang basah dan langsung menggunakan hijab akan membuat rambut cepat rusak. Anda bisa menepuk halus rambut dengan handuk atau diangin-anginkan supaya cepat kering.

3. Ubah Belahan Rambut

Selain membuat tampilan Anda menjadi lebih fresh, mengubah belahan rambut juga bisa membuat volume rambut Anda bertambah. Jadi silahkan Anda  ubah arah belahan rambut saat kondisinya masih basah atau setelah keramas, setelah itu keringkan secara alami.

4. Longgarkan Ikatan Rambut

Mengikat rambut terlalu kencang bisa menyebabkan maslah, salah satunya adalah membuat rambut lepek. Selain itu, hindari mengikat menggunakan karet gelang karena rambut bisa rusak akibat gesekan. Sebaiknya ikat rambut dengan bahan kain, jangan lupa untuk melepas ikatan ketika sedang tidak berhijab.

5. Jangan Gunakan Hijab Bertumpuk

Hijab dengan bahan katun biasanya mempunyai pori-pori yang bisa memperlancar udara yang masuk ke rambut. Jadi cara untuk membuat rambut bervolume adalah dengan menghidari penggunaan hijab model bertumpuk supaya kulit kepala tidak mudah berkeringan dan lepek.

6. Gunakan Shampo yang Tepat

Cara terakhir untuk membuat rambut bervolume adalah dengan menggunakan produk yang tepat. Beberapa produk yang bisa Anda gunakan adalah Sunsilk Hijab Refresh & Volume yang bisa membuat rambut Anda mengembang dan tidak lepek.

Demikianlah beberapa tips cara untuk membuat rambut bervolume, semoga bermanfaat.

The post 6 Cara Membuat Rambut Bervolume dan Tidak Lepek appeared first on Aldri Blog.

By Julian Henrique Dias Rodrigues

 

The Brazilian Superior Court of Justice reinforced the understanding that a foreign judgment that sets the amount of child support must be enforced even if the high economic-financial standard of the country of origin gives rise to an excessive amount, when compared to the national standards.

 

The case concerns the enforcement in Brazil of a decision from the District Court of Bludenz, in the Republic of Austria, against a debtor residing in Brazil.

The Austrian court set the monthly amount of maintenance at EUR 290.00 and determined that the amounts in arrears totaled EUR 35,090.00.

The debtor claimed that the decision could not be enforced since such amount would be totally unreasonable in relation to the economic reality of the defendant, characterizing the foreign decision as violating human dignity and the basic principles of the Brazilian legal system by ignoring the socioeconomic reality of Brazil and of the defendant in particular.

However, the Court emphasized that the enforcement of a foreign decision is a merely formal act, whereby is not possible to enter into the merits of the original dispute, nor investigating any injustice of the foreign decision. This enforcement, therefore, has the sole and exclusive purpose of transferring into the Brazilian legal system a decision handed down abroad, provided the formal requirements required by Brazilian law are met.

With this, the enforcement does not deprive the debtor of the possibility of filing a suit to review the amount of the child support, in view of the alleged disparity between the economic realities in Brazil and in the country where the amount was fixed.

The decision was rendered in Application HDE n.º 4.289 (Special Section of the STJ) and took into consideration the requirements under Brazilian law for enforcement of a foreign decision.

Brazilian legal framework on enforcement of foreign decisions

The Brazilian Federal Constitution states that the enforcement of foreign judgements is a competence of the Superior Court of Justice (STJ). The Brazilian legal instrument, therefore, for the recognition of foreign decisions is, in Portuguese, the Ação Especial de Homologação de Decisão Estrangeira (HDE).

The requirements for the enforcement of a foreign judgment through HDE are foreseen in Article 963 of Código de Processo Civil (CPC) and in Articles 216-C and 216-D of the Internal Rules of the STJ. In this regard, it is worth remembering that neither Brazil nor Austria ratified the Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.

The article 216-D states that the foreign decision must:

1. have been rendered by a competent authority,
2. contain evidence that the parties have been duly summoned or that a default judgement has been legally issued, and

• have become effective or res judicata in the country in which it was rendered.

According to Article 216-F a foreign decision shall not be enforced if that offends national sovereignty, human dignity and/or public order.

In short, the debtor argued that the economic disparity and the lack of analysis by the Austrian Court about his financial condition in particular would imply a violation of human dignity and the Brazilian legal order, but the Brazilian Court found that these issues would be a question of merit, and not of formal requirements. Whereas related to the merit of the suit filed before the foreign Court, these questions cannot be analyzed before the Court in the exercise of its competence merely to enforce the decision rendered abroad.

Click here to access the full decision (in Portuguese)

 

 

Thomas Pfeiffer/Quincy C. Lobach/Tobias Rapp (Eds.), “Facilitating Cross-Border Family Life – Towards a Common European Understanding”, Heidelberg University Publishing 2021 (link)

The EUFams II consortium has just released the project’s Final Study. The volume contains the papers presented at the project’s Final Conference. The contributors were invited to present historical developments, discuss the status quo, and draw the lines along which European family and succession law may develop. The authors hope to inspire the readership and the scientific community at large to engage in further research along and across these lines.

The book is available both online (open access) as well as in print (link). Its contributors are (in alphabetical order): Marlene Brosch, Laura Carballo Pineiro, Diletta Danieli, Rosario Espinosa Calabuig, Ivana Kunda, Quincy C. Lobach, Cristina M. Mariottini, Ulf Maunsbach, Nicolo Nisi, Cinzia Peraro, Thomas Pfeiffer, Paula Poretti, Tobias Rapp, Lenka Valkova, Ilaria Viarengo, Francesca Villata, Marcel Zühlsdorff, and Mirela Zupan.

The EUFams II project (2018-2020) was coordinated by the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University. Project partners were the Universities of Lund, Milan, Osijek, Valencia, and Verona as well as the MPI Luxembourg. This blog has previously reported on some of the project’s research outputs, including the Final Conference.

This project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

In the last decades, Spanish academia has seen a growing number of journals devoted, exclusively or not, to PIL issues. The editorial principles of them all have also quickly evolved and may are open access and downloadable from the very moment of publication, or only some months afterwards. Most of them follow a strict double-blind peer-review, almost all provide for a summary of the contributions in English, and some accept to publish in languages other than Spanish.

Cuadernos de Derecho Transnacional, of the University Carlos III of Madrid, has already a place in the EAPIL blog. In this and following entries I will present other relevant current Spanish PIL journals, starting with those belonging to the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI): the Spanish Yearbook of International Law (SYbIL), the Revista Electrónica de Estudios Internacionales (REEI) and the Revista Española de Derecho Internacional (REDI).

The SYbIL, founded in 1991, provides an annual report on new developments in international law. From 1991 to 2012 (vols. 1-17), the Yearbook was published by Martinus Nijhoff/Brill. From vol. 18 onwards, the Editor decided to go entirely on-line under a complete open-access philosophy. The contents of volumes 1-17 in PDF format have been kindly made freely accessible by Brill to all readers, thus all them can be freely downloaded too.

Since its first volume, the Yearbook has endeavoured to make a significant academic contribution to the on-going development of international law, with a particular focus on Spanish doctrine and practice. The SYbIL is the only publication edited by AEPDIRI completely written in English in order to reach the largest possible international audience. Its rules of governance have been adopted by AEPDIRI (a résumé may be found here, in Spanish).

In 2013, with the election of a new Editorial Board, a new editorial plan was adopted and the SYbIL changed its purpose, structure and editorial model. This new website tries to offer the contents of this new epoch of the Yearbook. This editorial decision will enable the Yearbook to be accessible to the entire international readership, offering current research in Spanish academic institutions but other research of what Oscar Schachter labelled as the “invisible college of international law” as well.

Fully aware of the paramount importance of international practice, the Spanish Yearbook publishes contributions from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on Spanish State practice relating to international and EU law, as well as international reactions to that practice.

The last issue of the SYbIL can be access here. The next one will be published in January 2022. Contributions for each forthcoming issue need to be sent by July 31 of the previous year at the latest to editor@sybil.es following the editorial guidelines.

Volume 415 of the Collected Courses of the Hague Academy of International Law published with Brill is dedicated to Mr. Trooboff’s Hague Academy general course lectures on ‘Globalization, Personal Jurisdiction and the Internet’.

The author reviews how courts in the United States, the European Union and a number of countries such as Canada, Japan, India and Latin America have responded to the challenge of adapting settled principles and precedents to cases arising from Internet usage. Trooboff examines the recent U.S. Supreme Court cases addressing general and specific personal jurisdiction and how U.S. appellate courts have applied the Court’s holdings in disputes arising out of the use of the Internet in Chapter 2. Eleven decisions of the European Union Court of Justice and related scholarship that interpret the jurisdictional provisions of Brussels I Regulation and its successor in the context of Internet usage and that arise from tort and contract claims (including infringement of intellectual property and related rights) are discussed in Chapter 3. Similarly selected decisions and scholarship addressing analogous personal jurisdiction issues in decisions of courts of Canada, Japan, China, Latin America and India are analysed in Chapter 4. The last part of the volume – Chapter 5 – is dedicated to an overview of the important projects that incorporate the principles emerging from the many judicial decisions and that have been undertaken by Hague Conference on Private International Law, the American Law Institute, the European Max Planck Group on Conflict of Laws in Intellectual Property, the International Law Association and the International Law Institute.

Further details about the volume are available here.

 

This week the European Union has given notice to all stakeholders that is preparing an initiative relating to justice and fundamental rights, the purpose of which is to enact the implementing acts establishing the decentralised IT system to be used for cross-border service of documents and cross-border taking of evidence. Click here and here.

This is in accordance with the Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast) and the Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast).

As stated in the notifications, the implementing acts will set out the technical specifications of the methods of communication and communication protocols, security objectives and relevant technical measures, minimum availability objectives and the establishment of a steering committee.

It is planned for the first quarter of 2022.

A new version of the Insolvency Registers Interconnection search interface is now available on the e-Justice Portal.

Background

The EU-wide interconnection of national insolvency registers (IRI 2.0) has been developed in accordance with article 25 of the Regulation (EU) 2015/848 on insolvency proceedings across EU borders. EU Member States are required to publish relevant information on cross-border insolvency cases in a publicly accessible online register (see here) and these registers shall be interconnected via the European e-Justice Portal.

The decentralised system allows searches for insolvent debtors, either natural or legal persons, within the EU Member States registers that completed the implementation according to the Insolvency Regulation. It aims at ensuring that creditors and national courts receive relevant information and at preventing parallel proceedings to be opened within the EU.

New Version

Since 1 September 2021, the new system has replaced the current version based on voluntary participation under the insolvency Registers Interconnection search (IRI 1.0) and applicable in the following Member States: Austria, the Czech Republic, Estonia, Germany, Italy, Latvia, the Netherlands, Slovenia and Romania (see here).

The new system applies (for now) in the following Member States: Belgium, Estonia, Spain, Croatia, Cyprus, Latvia, Lithuania, The Netherlands, Portugal, Romania, Slovakia, Finland, Sweden and Germany (see here).

More information here.

Ghent University (Belgium) and its Center for the Future of Dispute Resolution organise an online conference titled Transnational Dispute Resolution in an Increasingly Digitalized World, to be held on 24 March 2022.

A call for abstracts is open through 1 December 2021.

The concept is as follows:

The increased digitalization in the field dispute resolution, which received a boost from the Covid-19 pandemic, raises a number of important questions in terms of privacy, cybersecurity, data protection and artificial intelligence, going from rather practical concerns (how to protect the information exchanged, how to organize the taking of evidence, how to comply with the various obligations, etc.) to more fundamental inquiries (does it scare litigants off, does it foster or rather compromise efficiency, etc.).

The goal of the conference is to bring together academics, practitioners and policy makers with expertise in the field of dispute resolution (arbitration, transnational litigation, mediation, other ADR mechanisms) and technology law. That is why we are particularly (but not exclusively) interested in contributions that focus on :

• Obligations of the actors of justice
• Challenges and opportunities of (partial) online proceedings
• Evidentiary issues related to cybersecurity and data protection
• The (ab)use of these instruments as a dispute resolution strategy

and discuss these forward-looking dispute resolution topics in light of the various privacy, data protection, cybersecurity and AI regulations.

See here for more information.

La Cour de justice se prononce pour la première fois à propos de la mise en œuvre des règles protectrices des consommateurs prévues par la Convention de Lugano du 30 octobre 2007 dans une hypothèse où le consommateur a déménagé, suite à la conclusion du contrat, dans un autre État.

Sur la boutique Dalloz Code de procédure civile 2022, annoté Voir la boutique Dalloz

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