Agrégateur de flux

In its judgments delivered in the cases WB, C-658/17 and E.E., C-80/19, the Court of Justice already addressed the question whether a notary dealing with succession-related matters is a “court” for the purposes of the Succession Regulation. In these cases, however, the requests for a preliminary ruling originated from the proceedings pending before the national courts.

By contrast, in the case OKR, C-387/20, the request for a preliminary ruling is brought before the Court by a Polish notary [or, to be more specific, by a notarial clerk/assistant (fr. “clerc de notarie”, pl. “zast?pca notarialny”), yet this nuance does not seem to affect the outcome of the case at hand].

The case itself concerns a Ukrainian national living in Poland who is the joint owner of an estate situated in that Member State. A Polish notary is requested to draw up a notarial will which would contain a choice-of-law clause opting for Ukrainian law and modify the legal order of succession. The notary refuses to perform the notarial act on the ground that the choice of Ukrainian law in the will would be unlawful.

The refusal to perform the notarial act in question is challenged by an appeal brought by the interested party: under Polish law, such appeal is lodged through the refusing notary who may still perform the notarial act, if he or she deems the appeal justified. In the request for a preliminary ruling it is argued that within this framework the notary acts as an authority of first instance.

On its merits, the request for a preliminary ruling revolves around the choice of law under Article 22 of the Succession Regulation and a bilateral agreement with Third State that takes precedence over the Regulation and does not explicitly provide for choice of law in matters of succession.

However, as noted by Carlos Santaló Goris in his outline of the request for a preliminary ruling, the case provokes a no less intriguing question whether a Polish notary faced with an appeal is a “court” within a meaning of Article 267 TFEU and as such can submit a preliminary reference to the Court.

That question is addressed by the Court in its order delivered early this September. It receives a negative answer and, as a consequence, the request for a preliminary ruling lodged by a notary is considered to be inadmissible.

Even a cursory reading of the order reveals that, for the Court, a notary faced with an appeal against his or her refusal is not deciding a legal dispute and is not delivering a decision of judicial nature. Therefore, according to the Court, the notary is not engaged in exercise of a judicial function: he or she only confirms the refusal to perform a notarial act or performs the notarial act accordingly to the initial request of the interested party (paragraphs 25 and 28).

Those findings lead to the conclusions that, “for the purposes of the present reference for a preliminary ruling”, a notary (scil. a notarial clerk/assistant) cannot be classified as a “court” within the meaning of Article 267 TFEU (paragraph 34).

It is noteworthy that in this order the Court makes it clear that the notion of “court” in the meaning of Article 3(2) of the Succession Regulation is broader in scope than the notion of “court” in the sense of Article 267 TFEU (paragraph 31).

The order is available here (no English version yet).

Last week Costa Rica signed the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 HCCH Judgments Convention). The HCCH news item is available here.

It should be noted that in order to consent to be bound by the treaty, Costa Rica would need to deposit an instrument of ratification, acceptance or approval. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

Costa Rica made the following declaration: “in accordance with article 14, paragraph 3, of the Convention, the Republic of Costa Rica declares that it shall not apply Article 14, paragraph 1, of the Convention.”

Article 14(1) of  the HCCH 2019 Judgments Convention states the following:  “No  security,  bond  or  deposit,  however  described,  shall  be  required  from  a  party  who  in  one Contracting State applies for enforcement of a judgment given by a court of another Contracting State on the sole ground that such party is a foreign national or is not domiciled or resident in the State in which enforcement is sought.” Article 14(3) of the HCCH 2019 Judgments Convention allows States to file a declaration stating that they will not apply Article 14(1).

In this regard, it should be noted that many HCCH Conventions contain a similar provision. This is particularly the case of the  HCCH 1980 Access to Justice Convention, whose objective is precisely, as its name suggests, to promote access to justice by ensuring that “the mere status as an alien or the absence of residence or domicile in a State are not grounds for discrimination with regard to access to justice in that State” (HCCH outline of this Convention).

The HCCH 1980 Access to Justice Convention strikes the right balance by eliminating such a requirement and at the same time allowing the enforceability of orders for costs (Chapter II, arts 14-17). The latter is somewhat similar to Article 14(2) of the HCCH 2019 Judgments Convention and undoubtedly was a source of inspiration during the negotiations.

The interesting fact is that Costa Rica is a party to the HCCH 1980 Access to Justice Convention. Thus, Costa Rica is not allowed to impose any security, bond or deposit on the basis of a person being a foreign national or of not having his or her domicile or residence in Costa Rica if the conditions of Article 14 of the HCCH 1980 Access to Justice Convention are met, at least in its relations with the Contracting States to the said Convention.

Nevertheless, the declaration of Costa Rica underlines the fact that some States continue to impose such a requirement (although admittedly this requirement is fading away in some regions of the world). And thus the promotion of the HCCH 1980 Access to Justice Convention and all other HCCH Conventions that promote the principle of non-discrimination continue to be all the more relevant.

***

The HCCH 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently four signatory States: Costa Rica, Israel, Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

 

On 9 September 2021 the Court of Justice pronounced its judgment in the case RK (C-422/20) concerning the mechanism of the transfer of jurisdiction under the Succession Regulation. The judgement also gives an insight into transitional provisions of the regulation. The preliminary questions originate from the Higher Court in Cologne (Oberlandesgericht Köln). The opinion on the case was delivered earlier this year by Advocate General Szpunar. The case was already commented here by Matthias Weller.

Facts of the Case

A mutual will was drafted in 1990 in German language, in which CR and her husband (German national) designated each other as heirs. After the death of the husband, last habitually resident in Spain, CR applied to a German court for, inter alia, a European Succession Certificate. The jurisdiction of German courts was successfully contested by RK, the deceased’s brother. Hence, CR commenced proceeding in Spain. On CR’s request, the Spanish court decided not to hear the case noting that German courts are better placed to do so, due to practical circumstances, including CR’s residence and location of assets. CR filed another application to German court accompanying it with the decision of the Spanish court.

Transfer of Jurisdiction Mechanisms

It is worth reminding that pursuant to Article 4 of the Succession Regulation, the courts of the Member State of the last habitual residence of the deceased are competent in succession matters. Also, the law applicable is designated by this connecting factor (Article 21(1)), which allows for the coincidence of ius and forum so desired by the Regulation. It may happen however that the deceased has chosen (one of) national laws as applicable, which results in the distortion of the ius and forum principle. To avoid this (at least to certain extent), the Regulation, as explained by recital 27 “provides for a series of mechanisms”, which should restore the situation, in which the competent court applies its own succession law as applicable. These mechanisms are provided for in Articles 5 – 9 of the regulation and consist of the “transfer” of jurisdiction to the courts of the Member State the law of which was chosen as applicable by the deceased.

In accordance with one of the mechanisms, based on Article 6(a), the court seized pursuant to Article 4, may at the request of one of the parties, decline jurisdiction if a court of another Member State is “better placed to rule on the succession” given “practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets”. In such case, pursuant to Article 7(a), the “national” courts “have jurisdiction to rule on the succession”, provided that “a court previously seised has declined jurisdiction in the same case” pursuant to Article 6.

Declining of Jurisdiction

In the RK case, the Oberlandesgericht Köln has doubts if it may assume that the Spanish court declined its jurisdiction pursuant to Article 6(a), given that this is not clearly stated in its decision. Answering this first question, the Court of Justice underlined that it is not crucial that the declining of jurisdiction is express, as long as refraining from hearing the case indicates that the court will not hear it, because another court was found to be better placed to do so (para. 37). This conclusion is justified by the aim of creating in the EU an area of freedom, security and justice based in the mutual trust between Member States (para. 37). The Court of Justice found that the regulation does not provide for the form, in which the declining of jurisdiction should be pronounced (para. 36). It also noticed that the Spanish court used the expression of the Spanish language version of the regulation, namely “to refrain from hearing” (abstenerse de conocer), instead of “to decline jurisdiction”, which is used in other language versions, including the German one. The difference in the wording in the language versions of the regulation and the resulting differences in the wording of decisions should not be relevant, when the intention of the declining court is clear enough.

Assuming jurisdiction after decline

The Oberlandesgericht Köln had also doubts if before assuming jurisdiction pursuant to Article 7(a) it may verify whether the prerequisites for declining jurisdiction pursuant to Article 6(a) were met. Namely whether a valid choice of applicable law was made, whether there was an application for “transfer” filed by one of the parties and whether it was examined if another court is in fact better placed to hear the case (para. 41).

Answering the second question, the Court of Justice underlined that no such verification may be exercised (para. 52). The Court of Justice classified the decision on declining jurisdiction as a “judgement” subject to automatic recognition in other Member States, without any possibility of reviewing it as to its substance (para. 45-47). Such conclusion is justified by the principle of mutual recognition of judgements and mutual trust (para. 48). It seems that as an effect of such recognition the court seized pursuant to Article 7(a) must assume jurisdiction (compare para. 58 in fine of the opinion).

The Court of Justice does not give clear response to the doubt that resonates in the opinion whether the decision on declining jurisdiction pursuant to Article 6(1) is binding the court seized pursuant to Article 7(1) as to the determination of law applicable, as declining jurisdiction assumes the exitance of a valid choice of applicable law made by the deceased. On one hand, the court of a Member State assuming jurisdiction pursuant to Article 7(1) should be able to assess independently, which law is applicable (para. 36 opinion). On the other hand, one should not differentiate between a choice of applicable law, which is valid for the purpose of declining jurisdiction and a choice, which is valid for the purpose of establishing applicable law (para. 46 of the opinion). The opinion seems to opt for the “stronger” effect of the judgement, including the determination as to applicable law (para. 46 in fine of the opinion).

Choice of Applicable Law Presumption

As already mentioned, the prerequisite for declining jurisdiction pursuant to Article 6(1) is that “the deceased had chosen as the law to govern his succession the law of a Member State of which he was a national (recital 27)”. In the case at hand, the mutual will of 1990 contained no such choice. As, pursuant to Article 84, the Succession Regulation applies from 17 August 2015 to the succession of persons who die starting from that day (Article 83(1)), it contains transitional provisions relating to dispositions of property upon death made before 17 August 2015 of a deceased person, whose succession is governed by the Succession Regulation.

Pursuant to Article 83(4), in case of a disposition of property upon death made prior to 17 August 2015, there is a presumption that the deceased has chosen as applicable the law, in accordance with which this disposition was made, provided that this law could be chosen pursuant to the regulation (namely, it is a national law of the deceased). For example, in the commented case, assuming that the mutual will was indeed made in accordance with German law (at least, as mentioned in the judgment, it was prepared in German language), German law is presumed to be chosen by the deceased, who was a German national at the moment of making the choice and/or at the moment of death. Unfortunately, the Court of Justice is silent on how to determine whether the disposition was made “in accordance with” a given succession law.

The answer to the third preliminary question posed by the Oberlandesgericht Köln concerns the above provision of Article 83(4). The Court of Justice stated that the choice of applicable law, which is the prerequisite for transfer mechanism of Article 6(1) may result from the operation of the above presumption (para. 61). However, as results from the answer to previous questions, the court assuming jurisdiction pursuant to Article 7(1) is not allowed to verify the existence of the prerequisite.

Conclusion

It seems that in RK the Court of Justice provides for practical solutions, considering specificities of procedural laws of Member States and understanding that declining jurisdiction may be pronounced in different forms. The conclusion that no control may be exercised over the decline decision pursuant to Article 6(1) also seems perfectly in line with mutual trust principle as implemented in the instruments on EU judicial cooperation in civil matters. It is not entirely clear however whether this decision has a binding effect on courts of other EU Member States also with respect to the determination of applicable law, as a valid choice made by the deceased is a prerequisite for such decision. Additionally, one may regret that the Court of Justice have not elaborated on what does it mean that a disposition of property upon death was made “in accordance with the law” of a given state for the purpose of Article 83(4).

Sanchez-Bordona AG Opined last week in C-296/20 Commerzbank AG v E.O, a case on the consumer section of the Lugano Convention however in essence on the international element required to trigger consumer protection in private international law. The distinguishing feature of this case lies in the fact that, at the time when the contract was concluded, both parties were domiciled in the same State (Germany), whereas, when recovery was sought through the courts, the customer was domiciled in Switzerland.

The international nature of the situation therefore came about subsequently rather than being present at the outset.

The Advocate General is absolutely right to point to the objective of the consumer section of Lugano, and indeed Brussels Ia, to protect the consumer as the economically weaker party; and in C-98/20 mBank, the Court held that the consumer’s domicile needs to be determined at the time of the instigation of the suit, not the conclusion of the contract (or a later date in the proceedings) even in those circumstances where the consumer failed to inform the professional party of the change of domicile.

The AG however also insists on the predictability of forum both as claimant and as defendant, for the economic operator.

His provisional conclusion therefore (73-74), following analysis of the travaux, is that the international element needs to be present at the outset. However then comes the oddity of A17(3) Lugano, which mirrors A19(3) Brussels Ia:

‘The provisions of this Section may be departed from only by an agreement [conferring jurisdiction]:… 3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State.’

[With respect to the last element of this Article, it is indeed by no means certain that national law allows for such agreement and the AG (87) notes same].

The Jenard Report viz the Brussels 1968 Convention explains that that rule was included for reasons of equity to benefit a seller or lender domiciled in the same State as the buyer or borrower in the case where the latter establish themselves abroad after the contract has been concluded. The AG opines that the purely domestic setting of A17(3) must not be extended to the remainder of the consumer section, instead keeping it confined to the particular circumstances of that subsection.

In subsidiary fashion, the AG proposes that if the CJEU does not follow him on the generally required international element at the outset, it limit the extensive  application of the consumer section to cases where 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.

Interesting.

Geert.

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

Opinion SÁnchez-Bordona this morning in C‑296/20 Commerzbank. Jurisdiction, #Lugano Convention. International element required to trigger consumer section.https://t.co/9wM8T3Po4m pic.twitter.com/WJvKsOuz4l

— Geert Van Calster (@GAVClaw) September 9, 2021

Marketa Trimble (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted The Public Policy Exception and International Intellectual Property Law on SSRN.

The abstract reads:

Public international law affects private international law (conflict of laws) in a myriad of ways. This article discusses potential effects of international intellectual property (“IP”) law on the application of the public policy exception, which is used as a limitation on the application of foreign law and on the recognition and enforcement of foreign judgments. The article describes the function of the exception and its treatment in existing academic projects on IP law issues in private international law. It provides examples of the uses of the exception in IP cases and contemplates the frequency of the use of the exception in such cases. The article reviews international IP treaties, including IP chapters of free trade agreements, as possible sources of relevant public policies and evaluates whether a foreign IP law compliance with international intellectual property treaties could serve as a factor in the public policy exception analysis. The article suggests that courts give some weight in the public policy exception analysis to a finding of a foreign IP law’s compliance with international IP treaties but recognizes that the proposed approach would need to be nuanced and account for diverse circumstances.

The article is forthcoming in the Annali Italiani del Diritto D’Autore, Della Cultura e Dello Spettacolo.

Observations à l’occasion de l’ordonnance n° 2021-958 du 19 juillet 2021 concernant les échanges d’informations financières pour lutter contre certaines infractions pénales.

en lire plus

Aldricus – Salah satu kebutuhan yang diperlukan anak adalah mainan. Beberapa ayah bunda pasti pernah merasakan rewelnya anak saat tidak diberi mainan kan ? akan tetapi terkadang sebagai orang tua ayah bunda juga merasa khawatir, terhadap beberapa mainan anak yang bisa berbahaya dan tidak bermanfaat. Selain itu juga kebanyakan harganya hal. Eits tenang kami punya jawabanya, yaitu Lego selain manfaatnya yang mengedukasi. Bisa mendorong kreativitas dan imajinasi anak. Lego juga mudah didapatkan dan sangat terjangkau bagi dompet ayah bunda. Berikut kami rangkum daftar lego murah mulai dari harga 100 Ribuan :

1. LEGO Ninjago 70661 Spinjitzu Zane Blocks & Stacking Toys

Lego ini  diperuntukan untuk anak usia 7 tahun keatas dan didesain fun & playfun loh parents. Karena bentuknya yang didesain seperti ninja, membuat anak kalian semangat dalam memainkanya. Dan tentu saja bukan hanya diperuntukan untuk anak laki-laki, tapi juga untuk perempuan. Selain itu, lego ini memiliki 3 attachment untuk mode serangan, kecepatan, dan pertahanan. Membuat anak mampu menciptakan teknik tertentu, kemungkinan tidak terbatas, sehingga lebih mendorong kreativitas anak. Harganya cukup terjangkau dimulai dari 130.000rban aja lo parents.

2. Mainan Lego Block isi 714 Pcs Edukasi

Lego block merupakan mainan yang dapat disusun secara bebas, sehingga mampu melatih saraf motorik anak. Selain bentuk block dalam paketnya juga tersedia roda, sehingga anak bisa membuat mobil, kereta dan lainya. Harganya sangat murah loh parents dengan isi 714 Pcs di bandrol dengan harga 133.000.

3. MR Block 406 PCs

MR Block merupakan Lego Block yang banyak dijumpai di marketplace. Item yang dapat dijumpai dalam satu paket bermacam-macam. Mulai dari orang-orangan, dan ada juga block berbentuk mobil. Banyaknya variasi item yang ada di MR Block ini sudah tentu mendorong anak-anak untuk lebih kreatif dalam mengimajinasikan pikiranya. Selain itu MR Block juga mampu meningkatkan sosialisasi dengan teman-teman. Harga MR Block dengan isi 406 Pcs ini dibandrol dengan cukup terjangkau lo parents dimulai dengan 175.000.

Masih banyak lagi lego yang harganya sekitar seratus ribuan. Kita tinggal memilihnya di toko mainan terdekat.

The post Lego Murah Harga 100 Ribuan appeared first on Aldri Blog.

Further to CoL’s posts on recent case law of the ECJ last week, we allow ourselves to draw CoL readers’ attention to the judgment of the ECJ of 9 September 2021, C-422/20 – RK ./. CR, on the interpretation of jurisdictional provisions of the European Succession Regulation (ESR), upon reference by the Higher Regional Court (Oberlandesgericht) of Cologne, Germany. Neither the ECJ’s judgment, nor AG Maciej Szpunar’s Opinion of 8 July 2021 is yet available in English translation. The following summary draws on the original German texts.

The referring national court asked (1) whether it is required, for a declaration of lack of jurisdiction by the court previously seised as provided for in Article 7(a) ESR, that the latter court expressly declines jurisdiction, or whether an implicit declaration suffices if it is clear by interpretation that that court has in fact declined jurisdiction? The national court further asked (2) whether the court of a Member State whose jurisdiction is to emerge from a declaration of lack of jurisdiction by another Member State court is entitled to examine whether the conditions for such a declaration were in fact fulfilled. In particular, the referring court asked (a) whether the second court may examine whether the testator validly chose the applicable law in accordance with Article 22 ESR, whether (b) a request for a declaration of lack of jurisdiction, as required by Article 6(a) ESR has been brought by one of the parties in the first proceedings, and (c) whether the first court correctly assessed that the courts of the Member State of the chosen law are better placed to rule on the succession. In a last question, the referring court asked (3) whether Articles 6(a) and 7(a) ESR are applicable if the testator has not made an express or implied choice of law in a testamentary disposition before 17 August 2015 but the law applicable to the succession may be inferred from Article 83(4) ESR.

The ECJ held that (1) no express declaration of lack of jurisdiction is required under Article 6(a) ESR, as long as the first court’s intention can be clearly inferred from its decision, that (2) the second court has no competence to review the first court’s declaration of lack of jurisdiction and (3) that Articles 6(a) and 7(a) ESR remain applicable if the applicable law may only be inferred from Article 83(4) ESR.

As to the first question, the Court made clear that certain differences in the Spanish language version of the ESR in Article 6(a) – “abstenerse de conocer” (in translation something like: “abstain from assuming jurisdiction”) – on which the Spanish first court had relied – are of no relevance for the autonomous interpretation of the ESR, to be exercised acccording to general and well established principles in light of all of its language versions and its objectives (para. 30). These do not require any particular form for a declaration under Article 6(a), and requiring such a form would jeopardize the objective of the ESR as laid down in Recital 27 Sentence 1, i.e. “to ensure that the authority dealing with the succession will, in most situations, be applying its own law”.

In relation the second question, the Court made reference to AG Spzunar’s Opinion (para. 39) and confirmed the latter’s finding that no second review may take place of the first court’s decision under Article 6(a) ESR (paras. 40 et seq.), not least because such as decision is a “decision” in the sense of Article 3(1) (g) ESR that falls within the scope of Chapter IV of the ESR on the recognition of decisions of the courts of other Member States (para. 42). The Court concludes that the first court’s decision under Article 6(a) ESR is binding for the second court both in its result – declaration of lack of jurisdiction – as well as in relation to its underlying findings about the conditions that Article 6(a) ESR requires. In the latter respect the Court made expressly reference to its earlier judgment of 15 November 2012, C-456/11 – Gothaer Versicherung, which means that its notion of a European res iudicata developed there is to be extended to the type of conditions found fulfilled by the first court here: “Any other interpretation would jeopardize the principles of mutual recognition and mutual trust on which the system of the ESR grounds” (para. 45, translation is my one).

For answering the third question the Court explained that Article 83(4) ESR contains a presumption of a choice of law by the testator that is to be attributed the same effects as a choice of law directly undertaken under the ESR (para. 53).

Responsabilité extra-contractuelle

Assurance - Contrat

Indemnisation des victimes d'infraction - Pension de réversion

Written by Alexander A. Kostin, Senior Research Fellow at the Private Law Research Centre (Moscow, Russia) and counsel atAvangard law firm

and Valeria Rzyanina, junior associate, Avangard Law Firm

The Decree of the Arbitrazh (Commercial) Court of the Volga District of December 23, 2019 N F06-55840 / 2019 docket numberN A12-20691 / 2019, addresses service of process on the Russian party by the Cypriot court by e-mail and thus the possibility of further recognition of a foreign judgment.

1. Factual background

1.1. Within the framework of the court proceedings, the Russian party (the defendant in the Cypriot proceedings) was notified by the Cypriot court by sending a writ of service of process to the known e-mail addresses of the defendant. In order to substantiate the manner of service, the Cypriot court referred to Art. 9 of Decree 5 of the Rules of Civil Procedure (Cyprus), according to which “In any case, when the court considers that, for any reason, the service provided for in Rule 2 of this Decree will not be timely or effective, the court may order a substitute for personal service, or other service, or substitute for a notice of service in any way that will be found to be fair and correct in accordance with the circumstances”.

1.2. After the default judgment of the Cypriot court was rendered, an application for its recognition was lodged with the Arbitrazh Court of the Volgograd Region. In addressing the issue of compliance with the notification rules, the Russian court referred to paragraph 2 of Art. 24 of the Treaty on Legal Assistance of the USSR-Cyprus 1984 on civil and family matters, according to which judgments are recognized and enforced if the party against whom the judgment was made, who did not appear and did not take part in the proceedings, was promptly and duly notified under the laws of the Contracting Party in the territory of which the judgment was made. The foreign judgment in question was recognized and enforced by the Russian court based on the fact that the proper manner of the notification was confirmed by the opinion of experts under Cypriot law. The Ruling of the Supreme Court of the Russian Federation of March 27, 2020 N 306-ES20-2957 in case N A12-20691 / 2019 left the acts of the lower courts unchanged.

2. Analysis of the Decree of the Arbitration Court of the Volga District of December 23, 2019 N F06-55840 / 2019 in the case N A12-20691 / 2019

2.1. At first glance the logic of the Supreme Court and lower courts appears to be flawless. Nevertheless we find it important to correlate the provisions of paragraph 2 of Art. 24 of the 1984 Legal Aid Treaty with the provisions of Art. 8 of the Treaty. Article 8 requires that: “the requested institution carries out the service of documents in accordance with the rules of service in force in its state, if the documents to be served are drawn up in its language or provided with a certified translation into this language. In cases where the documents are not drawn up in in the language of the requested Contracting Party and are not provided with a translation, they are handed over to the recipient if only he agrees to accept them. ”

2.2. In this regard, it should be taken into account that when using the wording “notified under the laws of a Contracting Party,” the Treaty States simultaneously tried to resolve the following situations:

1) where the parties were in the state of the court proceedings at the time of the consideration of the case. In this case, the national (“domestic”) law of the State in which the dispute was resolved shall apply;

2) where the parties were in different states at the time of the consideration of the case. In this case, the provisions of the relevant international treaty shall apply, since the judicial notice is [a] subject to service in a foreign state and, therefore, it affects its sovereignty.

2.3. In this regard, attention should be paid to the fact that under the doctrine and case law of the countries of continental law, the delivery of a judicial notice is considered as an interference with the sovereignty of the respective state. The following are excerpts from case law. Excerpts from legal literature are provided for reference purposes:

1. a) “The negotiating delegations in The Hague faced two major controversies: first, some civil law countries, including Germany, view the formal service of court documents as an official act of government; accordingly, they view any attempt by a foreign plaintiff to serve documents within their borders as an infringement on their sovereignty ” – Volkswagen Aktiengesellschaft v. Schlunk, 486 U.S. 694 (1988);
2. b) “The exclusive competence to carry out acts of state power on its own territory follows from the sovereignty of states. As a rule, a state cannot perform actions of this kind within the borders of another state without violating its sovereignty and, therefore, without violating international law. An act is compatible with this right only if it is permitted by a specific international regulation, for example, if it is agreed in a treaty concluded between the states concerned, or if it is unilaterally accepted by the state in which it is carried out. When the notification is given abroad without permission under international law, this notification is invalid under Swiss domestic law due to its supremacy – Decision of the Swiss Federal Court of 01.07.2008 in case No. BGer 4A_161 / 2008.
3. c) “According to the traditional German law approach, delivery is considered to be an act of sovereignty.”- Rasmussen-Bonne H-E., The pendulum swings back: the cooperative approach of German courts to international service of process P. 240;
4. d) “From prospective of the Japanese state, certain judicial acts of foreign courts, such as the service of court notices and the receipt of evidence, are considered as a manifestation of sovereignty.”- Keisuke Takeshita, “Sovereignty and National Civil Procedure: An Analysis of State Practice in Japan,” Journal of East Asia and International Law 9, no. 2 (Autumn 016): 361-378

2.4. In light of the above, the interpretation of the Treaty on Legal Assistance of the USSR-Cyprus 1984, according to which a party located in the territory of Russia is subject to notification in accordance with Art. 8 of the Treaty, seems to be preferable.

We welcome further discussion on this intricate matter.

Written by Alexander A. Kostin, Senior Research Fellow at the Private Law Research Centre (Moscow, Russia) and counsel atAvangard law firm

and Valeria Rzyanina, junior associate, Avangard Law Firm

(This is a synopsis of an article published  in the Herald of Civil Procedure Law Journal N 1/2021 in Russian)

 Issues concerning cross-border insolvency rarely arise in Russian case law. For this reason, the Decree of the Arbitrazh Court of the Moscow District dated 22.11.2018 docket number N A40-39791 / 2018 is of particular interest to both practitioners and academics.

1. The factual background of case No. ?40-39791 / 2018

A bankruptcy procedure had been introduced at a German court against the Russian individual having the status of an individual entrepreneur under German law. After the opening of this procedure in Germany, the Russian debtor donated an apartment in Moscow to her daughter.

As a consequence of the said acts the bankruptcy trustee of the Russian debtor brought an action before the Moscow Arbitrazh (Commercial) Court, requesting the following relief: 1) to recognize the judgment of the German court opening the bankruptcy proceedings; 2) to set aside the agreement for donation of the apartment; 3) to enforce the judgment of the German court by prohibiting the alienation of this immovable property upon the completion of the bankruptcy procedure in Germany; 4) to attach the said immovable property in Russia.

On 01.10.2018 the Moscow Arbitrazh (Commercial) Court (First instance) dismissed the claim relating to the setting aside of the agreement of donation on the ground that that application was not heard by the German court and consequently it could not be resolved within the framework of the procedure for recognition of the German  judgment. The court of First instance specifically held that the question relating to the validity of the agreement of donation should be resolved in separate proceedings to be brought before the Russian courts.

In further proceedings the Moscow Arbitrazh (Commercial) Court (First instance) recognized the judgment of the German court on the opening of the bankruptcy proceedings (decision of 07.12.2018). With reference to Art. 343 of the German Bankruptcy Ordinance and the Russian case Law (docket number No. A56-22667 / 2007), the Russian court acknowledged the existence of reciprocity in relation to the recognition of Russian court judgments in Germany as prescribed by the German Federal Law “On insolvency (bankruptcy)”. The Russian court made an express finding that the foreign court order did not violate the exclusive jurisdiction  over bankruptcy matters, because the debtor’s activities as an individual entrepreneur are regulated by the law of the Federal Republic of Germany (Article 1201 of the Civil Code of the Russian Federation – “The law applicable to determination of the ability an individual to engage in entrepreneurial activity”).

However, the Moscow Arbitrazh (Commercial) Court (1-st instance) rejected the part of the foreign insolvency judgment relating to the prohibition of the debtor to dispose of immovable property until the completion of the insolvency proceedings. In the court’s opinion, in this  respect the exclusive competence of the Russian courts and the public order of the Russian Federation had been violated (Article 248 of the Arbitrazh [Commercial] Procedure Code of the Russian Federation). At the same time, the court of first instance also noted that the bankruptcy trustee is entitled to institute separate bankruptcy proceedings against the debtor in order to set aside the agreement for donation of the apartment before the Russian courts.

2. Analysis of case ?40-39791 / 2018

The key question in this situation concerns the correct procedure for setting aside the transaction for the transfer of the immovable property as the restitution of the proper value is dependent on the said action. In turn  the success of the said action depends on the following issues: 1) procedural capacity of a bankruptcy trustee, including the issue whether the recognition of a foreign judgment is a prerequisite for granting procedural capacity to a foreign bankruptcy trustee; 2) the law applicable to avoidance of the donation agreement.

2.1.          Procedural capacity of a foreign bankruptcy trustee.

In view of the fact that the foreign bankruptcy trustee is regarded as the legal representative of the debtor, his/her powers (including the power to bring an action) are recognized if the corresponding limitation of the capacity of the debtor is recognized in its turn.

Under Art. 1197 of the Civil Code of the Russian Federation, the legal capacity of an individual is governed by his personal law (lex personalis).The personal law of an individual refers to the law of the country of his/her nationality (clause 1 of article 1195 of the Civil Code of the Russian Federation). Consequently, the personal law of a Russian national is the law of the Russian Federation.

In the present situation, the legal capacity of the Russian debtor had been limited by a foreign judgment. In this case, the legal effect of the  foreign judgment on limitation of capacity  did not fall within the scope of the applicable substantive law since the judgment was not rendered by the country of his/her nationality. For that reason, the bankruptcy trustee’s legal capacity (including procedural capacity) could not be recognized by virtue of the Russian national conflict of laws rule.

In its turn the possibility of recognition of the foreign judgment on the opening of bankruptcy proceedings is questionable for the following reasons. Although in the present matter the Moscow Arbitrazh (Commercial) Court argues that the capacity of the debtor shall be governed by the German law as the law of the country where the defendant was doing business (Art. 1201 of the Russian Civil Code) it needs to be noted that the capacity of the person to conduct business-related  activities  arises from  general civil legal capacity (Art. 1195-1197 of the Civil Code of the Russian Federation). Taking into account the above, the said judgment on the opening of the insolvency proceedings appears to be in  conflict with the Russian public order.

2.2.          Law applicable to avoidance of the donation agreement.

In order to establish that the agreement for donation of the apartment is void the bankruptcy trustee referred to the fact that the apartment forms an integral part of the bankruptcy estate pursuant to paragraph 1 of Art. 35 of the German Insolvency Ordinance, as well as under clause 1 of Art. 213.25 of the  Federal Law “On Insolvency (Bankruptcy)”. With reference to the fact that the agreement for donation of the apartment was concluded after the  commencement of  foreign bankruptcy proceedings against the Russian debtor, the trustee argued that the transaction should be deemed void under Art. 61.2. of The Federal Law “On Insolvency (Bankruptcy)” as  a “suspicious transaction”.

In our view application of Art. 61.2. of The Federal Law “On Insolvency (Bankruptcy)” to invalidate the debtor’s agreements within the framework of a foreign insolvency does not seem to be entirely justified due to the following. Due to the fact that the bankruptcy procedure against the Russian debtor had been opened by a German court, the legal consequences of this procedure should also be determined by German law. Another question is whether these legal consequences are recognized in the Russian Federation). In this case, the fact of initiation of bankruptcy proceedings against a Russian national at a foreign court does not provide grounds for the application of Russian bankruptcy law.

In our view the following ways to set aside the agreement within the framework of the foreign insolvency exist.

Primarily, it appears that the donation agreement entered into after the commencement of foreign insolvency proceedings may be regarded as a void transaction under the Russian law due to the fact that it was intended to defraud  creditors (Articles 10 and 168 of the Civil Code of the Russian Federation).

Secondly, it could be argued that the recognition of a foreign bankruptcy entails that the effects of that foreign bankruptcy also apply to all actions that took place in the territory of Russia, including the possibility to apply foreign bankruptcy grounds to avoid contracts. However, this line of argument may not be entirely in line with the provisions of the Russian Civil Code under which Russian law applies to contracts in relation to land plots, subsoil plots and other real estate located in the territory of the Russian Federation (paragraph 2 of Art. 1213 of the Civil Code of the Russian Federation).

Conclusion

The Decree of the Arbitrazh (Commercial) Court of the Moscow District dated 22.11.2018 docket number N A40-39791 / 2018 as well as other court findings represent an interesting interplay between the legal provisions relating to the recognition of foreign insolvency and the application of Russian law for avoidance of the debtor’s transactions. In the present matter the Russian court clearly ruled in favor territoriality of foreign insolvency proceedings. However, we remain hopeful that one day the approach will change and the Russian courts will uphold the principle of universality of foreign insolvency.

 

 

On Thursday 14 October 2021 an online M-EPLI roundtable will take place on private international law issues relating to the recognition and enforcement of foreign (mostly US) punitive damages judgments in countries outside of Europe.

The event is organised by Lotte Meurkens and Cedric Vanleenhove and the Maastricht European Private Law Institute.

It is not frequent that a request for a preliminary reference on matters concerning civil and commercial litigation is assigned to the Grand Chamber. It has happened though already several times in relation to Article 7 (2) Brussels I bis Regulation (or the corresponding provisions in the previous instruments). It will happen again in case C-251/20, where the French Cour de Cassation asks for help to determine the place where the damage occurred and, consequently, the competent court to adjudicate on an action for damages due to disparagement.

The opinion of AG Hogan has just been published. Long, but easy to follow in spite of the absence of subheadings, it provides a rich and accurate overview of the case law of the Court in relation to the infringement of rights -privacy, copyrights, intellectual property- on the internet in order to address (see at 42)

“whether, in view of the reasons given by the Court to justify the exclusive jurisdiction of certain courts in relation to the deletion or rectification of disputed content [published on the internet], it would be appropriate also to recognise the exclusive jurisdiction of those same courts in relation to compensation”,

a point which

“implicitly raises the question of whether, in the judgment of 17 October 2017, Bolagsupplysningen and Ilsjan (C‑194/16, EU:C:2017:766), rather than simply distinguishing earlier case-law in this manner, the Court further intended to effect a complete reversal of its case-law and thus abandon the mosaic approach with regard to claims for damages as well” .

Spoiler: he believes it did not; also, that it should not; at most, he would agree to have the mosaic solution combined with the “focalization” criterion that has been used in certain areas (reference is made, among other, to Football Dataco and Others, C‑173/11, EU:C:2012:642).

I see no point in summarizing here the many arguments put forward by AG Hogan, among which the “dialogue” with AG Bobek; an assessment of the mosaic solution in case of SLAPP; the same, in the light of the main objectives of the Brussels I bis Regulation, as dealt with in the case law of the Court on Article 7(2); all this, with support of scholars’ views, English or French. The original is in English, thus easily accessible – easier, in any event, for those not reading French.

It should be born in mind, in addition, that, in fact, according to the AG

“the present case is not the right one for the Court to take a position on whether or not the mosaic approach should be maintained, refined or even abandoned. Indeed, in the case in the main proceedings, the applicant is alleging not that the contents in question would constitute acts of defamation, but that those would instead violate French law relating to acts of dénigrement, which is a form of malicious falsehood”,

rather belonging to the domain of unfair competition rules (under French law). Eventually, the AG addresses the question referred as one related to the materialization of a damage of a strictly economic nature. He elaborates from this perspective in points 98 and ff, to conclude with this proposal to the Court:

“Article 7(2) of Regulation No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a claimant who relies on an act of unfair competition consisting in the dissemination of disparaging statements on the internet and who seeks both the rectification of the data and the deletion of certain content and compensation for the non-material and economic damage resulting therefrom, may bring an action or claim before the courts of each Member State in the territory of which content published online is or was accessible, for compensation only for the damage caused in the territory of that Member State. In order, however, for those courts to have the requisite jurisdiction it is necessary that the claimant can demonstrate that it has an appreciable number of consumers in that jurisdiction who are likely to have access to and have understood the publication in question.”

Which of the contents of the opinion will be taken up by the Court is difficult to say. As we know it, the Court tends to remain cautious. In relation to a provision as slippery as Article 7(2) Brussels I bis Regulation, an interpretation focused strictly in the circumstance of the case at hand seems advisable, no matter how frustrating this may be for scholars and practitioners, and how much such approach endangers the consistency of the application of the rule itself. In any event, judging from experience there is little doubt that requests on the same provision will continue to be addressed to Court as long as its text remains unchanged.

Commission / Belgique et Magnetrol International
Aide d'État
Exonérations fiscales accordées par la Belgique à des sociétés multinationales par la voie de rulings : la Commission a établi à juste titre l’existence d’un régime d’aides

Commission / Italie
Fiscalité
L’Italie a enfreint le droit de l’Union en exonérant des droits d’accise les carburants des bateaux de plaisance privés, affrétés et utilisés par les utilisateurs finaux pour des activités non commerciales