Agrégateur de flux

Entrée en fonctions d’un nouveau membre au Tribunal de l’Union européenne

A partial renewal of positions, both of AGs and of judges, will take place next October at the Court of Justice. The reasons vary from retirement to normal rotation (the latter being the case of the so-called “smaller countries” in as far as AGs are concerned).

As a consequence some opinions and judgments have been or will be delivered before scheduled. In PIL this will the case of C-296/20, Commerzbank, a request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany) on the interpretation of Article 15 (1)(c) of the Lugano Convention 2007. The Opinion was delivered on September 9. AG Campos Sánchez-Bordona proposes that

‘Article 15(1)(c) of the Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Lugano on 30 October 2007, the conclusion of which was approved on behalf of the European Community by Council Decision 2009/430/EC of 27 November 2008, must be interpreted as meaning that it is not applicable in the case where, at the time when the contract is concluded, the parties to that contract are domiciled (within the meaning of Articles 59 and 60 of the Convention) in the same State bound by the Convention and the foreign component of the legal relationship arises only subsequently, when the consumer has transferred his or her domicile to another State also bound by the Convention.

In the alternative, Article 15(1)(c) of the Convention would be applicable in the case where the parties’ domicile at the time when the contract is concluded is situated in a single State bound by the Convention and the consumer subsequently relocates to another State also bound by the Convention, provided that the economic operator pursues in the State of the consumer’s new domicile a trade or profession such as that which gave rise to the conclusion of the contract.’

Should one or the other strands of the Opinion be followed, the Court would be taking a stance in favor of predictability both for the consumer and the other party to the contract, in line with C-585/08 and C-144/09 (Pammer and  Hotel Alpenhof). The contrary view will be more comfortable for the consumer, but deterrent for potential contractual parties (I would add: as things stand. Business counter-party will certainly try to develop strategies to reduce the impact of a consumer moving cross-border. A easy one: indiscriminate increase of the price of goods and services).

Our colleague Geer Van Calster provides a short accurate summary of the Opinion’s reasoning here, based on the provisional English translation. I would like to complete it by highlighting the following points:

First of all, according to the Opinion the ratio legis of Section 4 of Title II of the Convention is  to ensure adequate protection for the consumer against a very specific risk, namely that of internationality. Indeed, a process abroad entails costs and challenges an average consumer will not not willing or able to assume.

Secondly, consumer protection in the field of international jurisdiction is not an absolute goal in the Convention. Some requirements have been set up by the lawmaker delineating the scope of the Section, tending to ensure that the economic operator will be able to foresee where he or she may sue and be sued when entering into a contract with a consumer. It should be borne in mind that under Article 16 of the Convention the consumer has the choice between filing a claim with the courts of his or her own domicile – forum actoris– or those of the defendant.

By contrast, the other party to the contract is deprived of any choice: he or she can only file a claim with the counts at the consumer’s domicile. Like in a B2B case, the relevant domicile in this regard is the one at the date on which the court action is brought (see C 98/20, mBank). There is no doubt this rule always carries uncertainty with it, for no one can predict whether a potential defendant domiciled in a contracting State at the time a contract is concluded will move cross-border afterwards. The insecurity is the same no matter the type of contract, i.e, B2B or B2C. There is an important difference, however, in a B2B setting: because a choice of court is possible without any limitation, and also Article 5(1) remains available, the parties can figure out jurisdiction from the very beginning.

The logical inference from those two points would be that, in case the consumer moves to another contracting State after the conclusion of a contract which, at that point in time, was purely domestic, it is for him or her to cope with the risks and costs of cross-border litigation. In other words: if the consumer is the one transforming a domestic situation into an international one, he or she should stand the consequences of internationality (in terms of jurisdiction).

Thirdly, it is true that at first sight, Article 17(3) of the Convention makes it difficult to claim than Section 4 of Title II does not apply to situations lacking an international element (more precisely: an international element resulting from the domicile of the parties) when the contract is entered into. As a matter of fact, the provision endorses the premise that balance is needed between protecting the consumer and offering predictability to the professional. The Opinion explains why it would be neither sound nor advisable to infer that Article 15(1)(c) applies to situations of supervening internationality on the basis of the mere existence of Article 17(3). It recalls in this regard, among other, the fact that the mechanism the latter rule relies on – choice of court clauses- may not be admissible under the law of the contracting States.

This notwithstanding, one cannot simply ignore Article 17(3). Therefore, the AG will try to offer an interpretation of Article 15(1)(c) apt to conciliate both the objective of protecting the consumer from the inconveniences deriving from internationality (including one which the consumer him- or herself creates), and the objective of providing the other party to the contract with foreseeability as to the courts having international jurisdiction. To this aim, Article 15(1)(c) of the Convention could be interpreted as encompassing any situation in which the professional pursues its economic activity in, or directs it towards, States other than that where he or she is domiciled, including the State where the consumer is domiciled at the time when  proceedings are instituted.

In the past, the Court has rendered decisions which could be read as supporting the opposite hypothesis, that is to say, Article 15(1)(c) applies in any event, independently of whether the international element is present when the contract is entering into or appears at a later stage due to a change of domicile of the weaker party, who moves to another contracting State . Just like the referring national court, the AG considers those Court’s judgments and orders not categorical. He claims instead that the “weighty consequences which applying the consumer protection rules brings to bear upon a professional surprised by a change of domicile by the consumer which it was not expecting or could not have foreseen call for an explicit examination of this issue.” Whether this “explicit examination” will end up with the endorsement of the Opinion remains to be seen: to be clear, judging from the jurisprudence of the Court of Justice in consumer matters, the odds are against. The Court has steadily shown a clear pro-consumer tendency and it is unlikely that it will give it up now: at least, not without a sign from the lawmaker, which has already been suggested in the literature, see for instance here (or maybe, by making litigation more costly for the business party to the contract, the Court is indirectly pushing in support of ADR mechanisms).

In the meantime, should the Court decide not to follow the Opinion, I would like to add that a clause in a domestic contract with the consumer whereby he or she must communicate the change of abode does not provide for predictability as a factor to decide whether to engage or not in deals with a specific consumer. It will prove useful for other purposes, though, such as service of process (if the consumer complies with the obligation).

La production par un conjoint de messages électroniques échangés par son épouse sur un site de rencontres dans le cadre d’une procédure de divorce n’est pas attentatoire au droit au respect de la vie privée de l’épouse, dès lors qu’elle n’intervient que dans le cadre de procédures civiles dont l’accès au public est restreint.

en lire plus

 

On Thursday 7 and Friday 8 October 2021, the University of Strasbourg will host a symposium on mutual trust in the Area of freedom, security and justice. The purpose of the symposium is to explore the current crises affecting mutual trust between EU Member States, and to draw perspectives for the future of judicial cooperation in the EU. The full program is available here Registration is open at jnyobe@unistra.fr.

The event is organised by Emanuel Castellarin, Etienne Farnoux and Samuel Fulli-Lemaire, professors at the University of Strasbourg.

 

The call for abstracts for the ‘Transnational Dispute Resolution in an Increasingly Digitalized World’ conference is now open until 1 December 2021. This online conference will be hosted by the Center for the Future of Dispute Resolution at Ghent University on Thursday 24 March 2022.

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.

Ph.D. candidates, senior researchers and legal practitioners are invited to submit an abstract (on one of the topics above or on a topic of their own choice relating to the general theme) by 1 December 2021 to Maud.Piers@ugent.be and Wannes.Vandenbussche@ugent.be. Abstracts should be no longer than 1000 words. Authors of selected abstracts will be notified by 10 January 2022.

All contributions should be in English. This online conference is intended to serve as a first opportunity to present and discuss the authors’ ideas. Publication venues for the final papers will also be explored.

Should you have any questions please do not hesitate to contact the two members of the organizing committee.

Maud Piers

Wannes Vandenbussche

Renvoi

The focus of this write-up is a brief case note on a recent decision of the Nigerian Court of Appeal on Mareva injunction.

The principal concern of a judgment creditor is that it should reap the fruits of the judgment. A judgment is useless or nugatory if the judgment debtor has no assets within the jurisdiction of the court and the judgment debtor is unwilling to comply with the court’s judgment. A prospective judgment debtor could frustrate the administration of justice and commercial effectiveness of a judgment by moving away all its assets from the Nigerian jurisdiction to another jurisdiction. The remedy of a Mareva injunction (or freezing injunction) was developed as a means of curtailing this form of bad litigation tactics by a judgment debtor. In reality, a Mareva injunction is similar to interlocutory and anticipatory injunctions. It is similar to an interlocutory injunction because it is granted pending the determination of the dispute between the parties. It is similar to an anticipatory injunction because it anticipates that there is a real likelihood that a prospective judgment debtor would take its assets out of the court’s jurisdiction in order to frustrate the effectiveness of a judgment.[1]

The Mareva injunction (as applied in Nigeria) was developed in the English case of Mareva Compania Naviera SA v International Bulkcarriers SA The Mareva (“The Mareva”).[2] It is also described as a “freezing injunction” on the basis that the order freezes the assets of a prospective judgment debtor, pending the determination of the case.[3]

Prior to the decision of the English Court of Appeal in The Mareva, it was uncertain[4] whether the English court had jurisdiction to protect a creditor before it obtained a judgment. The English Court of Appeal, in 1975,[5] had initially granted a “Mareva injunction” in the form of an interlocutory injunction, but the application of this concept in that case remained controversial.[6] The remedy of the Mareva injunction was later accepted by the then English House of Lords,[7] and is available in other Commonwealth jurisdictions.[8]

In the landmark case of Sotuminu v Ocean Steamship (Nig) Ltd(“Sotuminu”),[9] the Supreme Court of Nigeria legitimised the Mareva injunction, though on the facts of the case, the court did not think it was appropriate to grant a Mareva injunction.

Interestingly, although the decision of the Supreme Court was unanimous in dismissing the plaintiff-appellant’s case, Uwais JSC (as he then was), with whom two other Justices of the Supreme Court simply concurred, treated the plaintiff-appellant’s case as one involving an interlocutory injunction, and applied the principles relating to the grant of interlocutory injunction. It was Nnaemeka-Agu JSC and Omo JSC in their concurring judgments who qualified the plaintiff-appellant’s case as one involving a Mareva injunction.

Nnaemeka-Agu JSC made reference to Section 18(1) of the then High Court of Lagos Civil Procedure Rules, which provides that “[t]he High Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just and convenient to do so”; and Section 13 (of the then High Court of Lagos State Civil Procedure Rules), which provides that “subject to the express provisions of any enactment, in every civil cause or matter commenced in the High Court, law and equity shall be administered by the High Court concurrently and in the same manner as they are administered by the High Court of Justice in England.”  He was of the view that these provisions enabled a court in Nigeria to apply the principles of a Mareva injunction. The learned Justice provided the criteria to grant a Mareva injunction when he held that:

Now, all decided cases on the point show that the Courts are ever conscious of the fact that because of its very nature, Mareva injunctions could be open to abuses. So they have evolved some rules and principles which are designed to guard against such abuses. By these rules, before a Mareva injunction could be granted the applicant must show:-

“(i) that he has a cause of action against the defendant which is justiciable in Nigeria:[10] See – Siskina (Owners of Cargo lately laden on borad) v distas Compania S.A (1979) A.C 210;

(ii) that there is a real and imminent risk of the defendant removing his assets from jurisdiction and thereby rendering nugatory any judgment which the plaintiff may obtain: See – Barclay-Johnson v. Ynill(1980) 1 WLR 1259, at p.1264: also –Rahman (Prince Abdul) him Turki al Sudiary v Abu-Taha(1980) 1 WLR 1268, at p.1272;

(iii) that the applicant has made a full disclosure of all material facts relevant to the application: see – Negocios Del Mar SA v. Doric Shipping Corp. SA. (The Assios) (1979) 1 LI. Rep. 331;

(iv) that he has given full particulars of the assets within the jurisdiction;

(v) that the balance of convenience is on the side of the applicant; and

(vi) that he is prepared to give an undertaking as to damages.

If he fails to satisfy the Court in any of these preconditions for a grant of a Mareva injunction, it ought not to be granted.”[11]

Nnaemeka-Agu JSC’s concurring judgment in  Sotuminu has become the standard test for the application of Mareva injunction in Nigeria. However, it was not obvious whether this test provided by Nnaemeka Agu JSC was strict.

In the recent case of Haladu v Access Bank, (Haladu)[12] the Court of Appeal (Ojo JCA) interpreted the Supreme Court’s decision (Nnaemeka Agu JSC) in Sotuminu as follows:

“The apex court in the above case has stated clearly the conditions that must be met for the grant of a Mareva Injunction. In other words, they are pre-conditions that must be met. To my mind, the conditions are of strict liability. It follows therefore that an applicant who seeks an order of Mareva Injunction must place sufficient materials before the court upon which it can exercise its discretion.”[13]

In the instant case, the applicant’s case failed at the Court of Appeal because it failed to provide an undertaking as to damages in its application for Mareva injunction, and did not sufficiently prove that the defendant intends to remove its asset in Nigerian banks to a foreign country.[14]

The take away of Haladu is that an applicant that wants to obtain a Mareva injunction in Nigeria has to be thorough, hardworking, and diligent in its case. All the conditions for the grant of Mareva injunction as stated in Nnaemeka-Agu JSC’s concurring judgment in Sotuminu must be met. Indeed, this is not an easy task. As stated by Ojo JCA in Haladu, “solid evidence” must be provided to succeed in a prayer for Mareva injunction. It is submitted that there is justice in this approach because if a Mareva injunction is granted without the right justification, it would cause great hardship to the respondent. A balance is thus struck between ensuring that a claimant should be able to reap the fruits of its judgment, and on the other hand the defendant should not be subjected to great hardship by a wrongful grant of Mareva injunction. Haladu’s case demonstrates that Nigerian law tilts more towards the side of the defendant as a matter of evidence and procedure.

 

[1]See Omo JSC in Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990 approving the English case of Z Ltd v AZ and AA-LL (1982) 2 QB 558, 584-6.

[2](1980) 1 All ER 213.

[3]See generally Dangabar v Federal Republic of Nigeria (2012) LPELR-19732 (CA).

[4]“I know of no case where, because it was highly improbable that if the action were brought to a hearing the plaintiff could establish that a debt was due to him from the defendant, the defendant has been ordered to give security until that has been established by the judgment or decree.” – Lister & Co v Stubbs (1886-90)] All ER Rep 797, 799 (Cotton LJ).

[5]Nippon Yusen Kaisha v Karageorgis (1975) 3 All ER 282.

[6]Cf. Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990 (Nnaemeka-Agu JSC); Adeyemi Durojaiye v Continental Feeders (Nig) Limited (2001) LPELR-CA/L/445/99 (Aderemi JCA, as he then was).

[7]Owners of Cargo Lately Laden on Board the Siskina v Distos Compania Naveria SA (1979) AC 210.

[8] AJ Moran and AJ Kennedy, Commercial Litigation in Anglophone Africa (Cape Town, Juta and Company (Pty) Ltd, 2018) at 47–50, 87.

[9](1992) LPELR-SC 55/1990.

[10]The original judgment contains “in England”. We have substituted it with the phrase “in Nigeria” to appropriately suit the Nigerian context.

[11]Sotuminu v Ocean Steamship (Nig) Ltd (1992) LPELR-SC 55/1990. See also AIC LTD v. NNPC (2005) LPELR-6 (SC) 33-4 (Edozie JSC); Extraction System And Commodity Services Ltd. v. Nigbel Merchant Bank Ltd.(2005) 7 NWLR (Pt. 924) 215; R Benkay (Nig.) Ltd v Cadbury (Nig) Plc (2006) 6 NWLR (Pt. 976)338; International Finance Corporation v DSNL Offshore Ltd (2007) LPELR-5140(CA) 12-3 (Rhodes Vivour JCA (as he then was); Union Bank of Nig. Plc v. Pam (2016) 14 NWLR (Pt. 1533) 400; Haladu v Access Bank (2021) 13 NWLR (Pt. 1794) 434. The Nigerian Court of Appeal has granted Mareva injunction in some cases : Adeyemi Durojaiye v Continental Feeders (Nig) Ltd (2001) LPELR-CA/L/445/99; Compact Manifold and Energy Services Ltd v West Africa Supply Vessels Services Ltd (2017) LPELR-43537 (CA). See also AIC Ltd v Edo State Government (2016) LPELR-40132 (CA).

[12] (2021) 13 NWLR (Pt. 1794) 434.

 

[13] Haladu v Access Bank (2021) 13 NWLR (Pt. 1794) 434, 458.

[14] ibid.

The second issue of the Journal of Private International Law  for 2021 was just released and it features the following articles:

Lachlan Forrester, “Resulting Trusts in Conflict of Laws: An Australian Perspective”

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

 

María Mercedes Albornoz & Sebastián Paredes, “No turning back: information and communication technologies in international cooperation between authorities”

The usefulness of ICTs is on full display when it comes to international cooperation between authorities in civil and commercial litigation. The core international conventions on cross-border cooperation (currently in force) were drafted many decades ago, when the overwhelming growth of ICTs was unimaginable. Setting the focus on Latin America, where legal regional integration has not yet reached the level attained by the European Union, this article assesses whether the selected legal sources reject, tacitly accept, or encourage the use of ICTs in international cooperation. The analysis of international conventions, some soft law instruments and domestic PIL rules supports the argument that an adequate legal framework that accepts the use of ICTs in international cooperation is necessary. Indeed, there is no turning back from the use of technologies in this field, where modern and suitable regulation would strengthen legal certainty, of utmost importance for the parties involved in cross-border litigation.

 

Sirko Harder, “The territorial scope of Australia’s consumer guarantee provisions”

Australian Consumer Law provides for consumer guarantees, according to which the taking of a particular action (for example, the application of due care and skill) or the presence of a particular fact (for example, a particular quality) is deemed as guaranteed where goods or services are supplied to a consumer in certain circumstances. Remedies lie against the supplier or (where goods are supplied) against the manufacturer or both. Pursuant to its application provisions, Australian Consumer Law applies to conduct outside Australia if one of several alternative criteria is satisfied. One criterion is that the defendant carried on business within Australia. There is no express requirement that the defendant’s business activities in Australia include the transaction with the plaintiff. This article argues that comity requires an implied restriction on the territorial scope of the consumer guarantee provisions, and searches for the most appropriate criterion for that purpose.

 

Lance Ang, “Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised”

Party autonomy is the defining principle of private international law today. Notwithstanding its broad acceptance, what does party autonomy mean in the context of jurisdiction agreements? The lack of commercial certainty in how the agreement to “submit” to the jurisdiction of the courts in the chosen forum will be interpreted and enforced by the courts defeats the very purpose of party autonomy itself, which is the management of venue risk by commercial parties in entering into cross-border transactions. In light of recent developments, the Singapore court has blurred the distinction between exclusive and non-exclusive jurisdiction agreements by holding that the same requirement of “strong cause” applies if a party reneges on its agreement to “submit”. This is premised on the same strict contractual analysis and enforcement of both types of agreements. It is against this background that the approach of the Singapore courts in determining the exercise of their own jurisdiction under the common law will be reappraised, along with a comparison with the practice of the English courts.

 

Marco Giacalone, Irene Abignente & Seyedeh Sajedeh Salehi, “Small in value, important in essence: lessons learnt from a decade of implementing the European Small Claims Procedure in Italy and Belgium”

This article examines the extent to which the European Small Claims Procedure (ESCP) has served the main purpose of the EU legislature to establish a legal framework to improve access to justice for creditors of cross-border small claims through a simplified, expedited and inexpensive redress mechanism. This article first analyses the implementation of the ESCP in Italy and Belgium. These two countries were chosen because of the authors’ research on the Small Claims Analysis Net (SCAN) Project (The SCAN Project was initiated in 2018 as a two-year project with the fundamental aim of evaluating the efficiency of the European Small Claims Procedure within several EU Member States (France, Belgium, Italy, Slovenia, and Lithuania), besides raising awareness of this procedure among consumers and other judicial stakeholders. For the conducted activities as part of the SCAN project, see http://www.scanproject.eu accessed on 24 February 2021). The second part of this article deals with the impact of this regulatory instrument on access to justice for citizens, in view of the principle of judicial efficiency. Finally, this article focuses on the possibility of using this instrument for collective redress, on the one hand, and linking this procedure to online dispute resolution, on the other.

 

Agne Limante, “Prorogation of jurisdiction and choice of law in EU family law: navigating through the labyrinth of rules”

This article focuses on the scope of party autonomy in EU family regulations, especially in cases of marriage dissolution with an international element. Through the lens of a case study, the author analyses whether provisions allowing party autonomy in EU family regulations are consistent and wide enough to enable parties to find a solution that best fits their interests. The paper concludes that the advantages of party autonomy in private international family law outweigh the associated risks which should be mitigated by safeguarding measures.

 

Jan L. Neels, “Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)”

The via media technique of characterisation in private international law, as proposed by the Canadian author Falconbridge, was – over a period of three decades – gradually adopted by the courts in Lesotho, South Africa, Zimbabwe, and, more recently, Eswatini. In a particular dispute, which is used as angle of incidence for the discussion below, the High Court of Swaziland (now Eswatini) applied the rules of the lex fori pertaining to liberative prescription (the limitation of actions) against the background of the via media technique. The decision was overruled by the Supreme Court of Eswatini, which – using the same technique – applied the proper law of the contract in this regard. In this contribution, the Canadian doctrine and its application by the Eswatini and other Southern African courts is critically discussed. The scenario in the Eswatini cases provides an example of what the author calls the phenomenon of dual cumulation. He attempts to provide guidance for the development of Southern African private international law in this regard beyond the via media technique.

 

Richard Garnett,  “Internationalism in New Zealand conflict of laws”

Internationalism has long been regarded as an important goal of any national conflict of laws system. The three main branches of the subject – jurisdiction, choice of law and recognition and enforcement of foreign judgments – should be developed in a manner sympathetic to the needs of international trade and interaction and allow for recognition of foreign interests. In exceptional cases, however, local public policy should also be available to protect private rights. Internationalism is a major theme in the recent book, The Conflict of Laws in New Zealand. This article assesses the state of internationalism in New Zealand conflict of laws and the contribution of the book to the issue.

The latest issue of the Journal of Private International Law contains the following articles:

Lachlan Forrester, Resulting trusts in the conflict of laws: an Australian perspective

The common law world continues to grapple with how to properly characterise equitable doctrines in private international law. There has been extensive criticism of the existing approach to characterisation and choice of law for equity which favours separately characterising equitable obligations and applying the lex fori. Within this broader discourse, a debate is beginning to emerge around issues involving both equitable obligations and immovable property. In this early debate, two schools of thought have developed with respect to the proper characterisation and choice of law for implied or resulting trusts over immovable property. The first approach, advanced primarily by the courts, characterises the trust as an equitable obligation governed by the lex fori. The second approach, primarily endorsed by commentators, characterises the trust as an issue of immovable property governed by the lex situs. This paper, upon evaluating the lex fori and the lex situs against the underlying objectives of choice of law, rejects both approaches as unfit for purpose. Instead, it advocates a new approach to the characterisation and choice of law for resulting trusts. This paper proposes that resulting trusts be governed by the proper law of the relationship. This conception would align with the approach taken to express trusts under the Hague Trusts Convention and most effectively provides for consistency and clarity while upholding the reasonable expectations of the parties.

María Mercedes Albornoz and Sebastián Paredes, No turning back: information and communication technologies in international cooperation between authorities

The usefulness of ICTs is on full display when it comes to international cooperation between authorities in civil and commercial litigation. The core international conventions on cross-border cooperation (currently in force) were drafted many decades ago, when the overwhelming growth of ICTs was unimaginable. Setting the focus on Latin America, where legal regional integration has not yet reached the level attained by the European Union, this article assesses whether the selected legal sources reject, tacitly accept, or encourage the use of ICTs in international cooperation. The analysis of international conventions, some soft law instruments and domestic PIL rules supports the argument that an adequate legal framework that accepts the use of ICTs in international cooperation is necessary. Indeed, there is no turning back from the use of technologies in this field, where modern and suitable regulation would strengthen legal certainty, of utmost importance for the parties involved in cross-border litigation.

Sirko Harder, The territorial scope of Australia’s consumer guarantee provisions

Australian Consumer Law provides for consumer guarantees, according to which the taking of a particular action (for example, the application of due care and skill) or the presence of a particular fact (for example, a particular quality) is deemed as guaranteed where goods or services are supplied to a consumer in certain circumstances. Remedies lie against the supplier or (where goods are supplied) against the manufacturer or both. Pursuant to its application provisions, Australian Consumer Law applies to conduct outside Australia if one of several alternative criteria is satisfied. One criterion is that the defendant carried on business within Australia. There is no express requirement that the defendant’s business activities in Australia include the transaction with the plaintiff. This article argues that comity requires an implied restriction on the territorial scope of the consumer guarantee provisions, and searches for the most appropriate criterion for that purpose.

Lance Ang, Party autonomy, venue risk and jurisdiction agreements – the Singapore position reappraised

Party autonomy is the defining principle of private international law today. Notwithstanding its broad acceptance, what does party autonomy mean in the context of jurisdiction agreements? The lack of commercial certainty in how the agreement to “submit” to the jurisdiction of the courts in the chosen forum will be interpreted and enforced by the courts defeats the very purpose of party autonomy itself, which is the management of venue risk by commercial parties in entering into cross-border transactions. In light of recent developments, the Singapore court has blurred the distinction between exclusive and non-exclusive jurisdiction agreements by holding that the same requirement of “strong cause” applies if a party reneges on its agreement to “submit”. This is premised on the same strict contractual analysis and enforcement of both types of agreements. It is against this background that the approach of the Singapore courts in determining the exercise of their own jurisdiction under the common law will be reappraised, along with a comparison with the practice of the English courts.

Marco Giacalone, Irene Abignente and Seyedeh Sajedeh Salehi, Small in value, important in essence: lessons learnt from a decade of implementing the European Small Claims Procedure in Italy and Belgium

This article examines the extent to which the European Small Claims Procedure (ESCP) has served the main purpose of the EU legislature to establish a legal framework to improve access to justice for creditors of cross-border small claims through a simplified, expedited and inexpensive redress mechanism. This article first analyses the implementation of the ESCP in Italy and Belgium. These two countries were chosen because of the authors’ research on the Small Claims Analysis Net (SCAN) Project (The SCAN Project was initiated in 2018 as a two-year project with the fundamental aim of evaluating the efficiency of the European Small Claims Procedure within several EU Member States (France, Belgium, Italy, Slovenia, and Lithuania), besides raising awareness of this procedure among consumers and other judicial stakeholders. For the conducted activities as part of the SCAN project, see http://www.scanproject.eu accessed on 24 February 2021). The second part of this article deals with the impact of this regulatory instrument on access to justice for citizens, in view of the principle of judicial efficiency. Finally, this article focuses on the possibility of using this instrument for collective redress, on the one hand, and linking this procedure to online dispute resolution, on the other.

Agne Limante, Prorogation of jurisdiction and choice of law in EU family law: navigating through the labyrinth of rules

This article focuses on the scope of party autonomy in EU family regulations, especially in cases of marriage dissolution with an international element. Through the lens of a case study, the author analyses whether provisions allowing party autonomy in EU family regulations are consistent and wide enough to enable parties to find a solution that best fits their interests. The paper concludes that the advantages of party autonomy in private international family law outweigh the associated risks which should be mitigated by safeguarding measures.

Jan L. Neels, Characterisation and liberative prescription (the limitation of actions) in private international law – Canadian doctrine in the Eswatini courts (the phenomenon of dual cumulation)

The via media technique of characterisation in private international law, as proposed by the Canadian author Falconbridge, was – over a period of three decades – gradually adopted by the courts in Lesotho, South Africa, Zimbabwe, and, more recently, Eswatini. In a particular dispute, which is used as angle of incidence for the discussion below, the High Court of Swaziland (now Eswatini) applied the rules of the lex fori pertaining to liberative prescription (the limitation of actions) against the background of the via media technique. The decision was overruled by the Supreme Court of Eswatini, which – using the same technique – applied the proper law of the contract in this regard. In this contribution, the Canadian doctrine and its application by the Eswatini and other Southern African courts is critically discussed. The scenario in the Eswatini cases provides an example of what the author calls the phenomenon of dual cumulation. He attempts to provide guidance for the development of Southern African private international law in this regard beyond the via media technique.

Copropriété - Parties communes

Aide personnelle au logement - Indu

Vente imobilière

 

The Organization of American States (OAS) is hosting a webinar entitled updated principles on privacy and the protection of personal data of the Inter-American Juridical Committee today at 10 am (DC time), 4 pm CEST time – in Spanish. More information is available here.

GSMB Invest,Volkswagen, Porsche Inter Auto et Volkswagen
Rapprochement des législations
Selon l’avocat général Rantos, l’installation d’un logiciel intégré modifiant, en fonction de la température extérieure et de l’altitude, le niveau des émissions des gaz polluants des véhicules est contraire au droit de l’Union et un tel véhicule n’est pas conforme au contrat de vente, au sens de la directive 1999/44

The Revista Electrónica de Estudios Internacionales (REEI), whose current editor-in-chief is Prof. de Miguel Asensio, a founding member of the EAPIL, is an open-access journal published by the Spanish Association of International Law and International Relations Professors (AEPDIRI). The journal exists since 2000; it is open to specialized research works on public international law, private international law and international relations. Those willing to submit a paper are invited to comply with the instructions available here.

The latest issue is number 41, of June 2021. The following contents are of direct interest for PIL:

José Ignacio Paredes Pérez, Contratos de suministro de contenidos y servicios digitales B2C: problemas de calificación y tribunales competentes (B2C contracts for the supply of digital content and digital services: problems of characterization and competent courts)

The purpose of this study is to analyse the characterization problems posed, for the purposes of the application of the European rules on international jurisdiction, by the legal actions available to the consumer in the new European regulation on improving consumer access to digital goods and services, and the possible fragmentation of litigation relating to the same infringing conduct under Directive (EU) 2019/770 and Regulation (EU) 2016/679. In the context of the Brussels I bis Regulation, the autonomous characterization of the legal actions available under the new regulation, and the way in which this is done, is decisive, depending on whether or not the contract falls within the scope of articles 17 to 19.

María del Carmen Chéliz Inglés, La Convención de Singapur y los acuerdos de mediación comercial internacional (The Singapore Convention and the international commercial mediation agreements)

The Singapore Convention on International Settlement Agreements resulting from mediation represents a milestone in the determined promotion of this dispute resolution mechanism and puts an end to the absence of a harmonized legal framework to regulate this issue. The most significant advance is that it gives a new legal status to the agreements resulting from international commercial mediation, which become directly enforceable in all the States that ratify the Convention. In this context, the objective of this work is to analyze the key issues of the Singapore Convention, highlighting its lights and shadows, and assess what repercussions the adherence to said normative instrument would have on the Spanish legal system.

Georgina Garriga Suau, Blockchain-based smart contracts and conflict rules for business-to-business operations (Blockchain-based smart contracts y normas de conflicto para operaciones entre profesionales)

In recent years, the irruption of blockchain technology has enhanced the impact of smart contracts in the international trade scenario, although not without raising some problems, particularly, in terms of Private International Law. This paper, thus, addresses such problems when it comes to determining the applicable law from a business-to-business perspective leaving aside the particular problems raised by the conflict-of-law rules oriented to protect the weaker party to a contract. The analysis, however, starts with a general approach to the two concepts which are the object of this paper: smart contracts and blockchain technology.

As usual, the journal contains as well a section commenting on selected relevant decisions on PIL delivered in the six months prior to its publication. Reviews on recent monographs or collective books follow.

The remaining contributions in this issue relate to public international law or international relations. Those (like me) with a specific interest in procedural law will surely find worth reading these two:

Laura Aragonés Molina, Unidad o fragmentación en el Derecho internacional procesal: la revisión de sentencias ante la Corte Internacional de Justicia y el Tribunal Europeo de Derechos Humanos (Unity or fragmentation in international procedural law: revision of judgments at the International Court of Justice and the European Court of Human Rights)

The increasing specialization of Public International Law and the diversity of international courts and tribunals with specific competences ratione materiae and personae in the multiple international normative sectors are still generating challenges for coherence, consistency and predictability of international jurisprudence. Procedural rules and principles may have a cohesive effect on judicial practice and foster a judicial dialogue and cross-fertilization at a procedural level. It may contribute to the unity of the international legal order through the formation of common rules of procedure. In this paper we explore this cohesive effect exhaustively, studying the interaction between the International Court of Justice and the European Court of Human Rights when they interpret and apply the revision provision.

Montserrat Abad Castelos, Rendición de cuentas por los crímenes cometidos durante el califato del Daesh: las pruebas como clave (Accountability for crimes committed during the ISIS caliphate: evidence as key)

This article seeks to determine if evidence can be a way to overcome the existing difficulties in the field of justice to hold Daesh members accountable for the atrocity crimes committed in Syria and Iraq during the armed conflicts that took place there. To get this, recent innovations are examined both the actors that collect and preserve evidence and the nature, characteristics and challenges that evidences pose. It will be concluded that the developments that are taking place are crucial and, consequently, have the capacity to trigger a paradigm shift that might be reflected in the outcome of pending prosecutions, in order to ensure the responsibility of the perpetrators of the crimes. Nevertheless, at the same time, it also shows how evidence is not the only key to take into account, since the problems related to the exercise of jurisdiction in domestic orders, which go far beyond the legal plane, will also be transcendental.

Par un arrêt du 9 septembre 2021, la Cour de justice se penche sur le champ d’application du règlement « obtention des preuves » et sur les liens entre les injonctions de payer et le règlement Bruxelles I bis, en rappelant en substance aux juridictions des États membres qu’elles ne sauraient abuser de la procédure de renvois préjudiciels.

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