Agrégateur de flux

Saugmandsgaard Oe AG opined (no English version at the time of writing) last week in C‑242/20 HRVATSKE ŠUME on the classic conflict of laws issue of distinguishing contract from tort.. He, oddly perhaps, unless some technical reason for it escapes me, does not entertain the question on the scope of Article 24(5) Brussels Ia’s exclusive jurisdictional rule for ‘proceedings concerned with the enforcement of judgments’.

The Opinion is a Qualificationfest.

The case concerns actions for recovery of sums unduly paid, in other words, undue enrichment. This enrichment came about by a Croatian court having  earlier ordered Hrvatske Šume, debtor of  Futura, both of Croatia, to pay its debt to Futura directly to BP Europe SA, successor to Burmah Oil, both domiciled in Germany. Hrvatske appealed that order however that appeal did not halt the payment. Now that the appeal has turned out to be successful, Hrvatske want their money back yet so far Croatian courts have held that they do not have jurisdiction under Article 7(2) BIa (the case actually went under the the predecessor, Brussels I however there is no material difference).

As the referring court notes, there is no delicti commissi in the case of unjust enrichment: it is a non-contractual obligation in which no delict is committed. (This is the very reason Rome II includes a separate heading for unjust enrichment). One might suggest this would leave forum damni only under A7(2), however the AG correctly in my view re-emphasises the seminal statements in CJEU Kalfelis, that actions under A7(2) concern ‘all actions which seek to establish liability of a defendant  and which are not related to a ‘contract’ within the meaning of Article [7](1)’. Unjust enrichment not seeking to establish liability, A7(2) is not engaged. Along the way, note his discussion of linguistics and his seeking support in Rome II.

At 71 ff the AG distinguishes the wide interpretation of ‘establishing liability’ in CJEU Austro Mechana.

A clear implication of the Opinion is that it confirms a disjoint in BIa /Rome II: not all non-contractual obligations for which Rome II identifies a lex causae, are caught by A7(2) BIa’s forum delicti rule.

The AG also engages with the possibility of Croatia being forum contractus  (he kicks off his Opinion with this issue) and dismisses it, seeking support inter alia in CJEU Handte and also in Rome II specifically providing for an unjust enrichment heading. This part of the Opinion is more optimistically straightforward than one might have expected. Following flightright, Wikingerhof etc., A7(1) has been (unduly, in my view) stretched and it would be good to have the CJEU further clarifying same. (C-265/21, in which I have been instructed, might be just the case).

Geert.

EU Private International Law, 3rd ed. 2021, 2.419 ff.

Opinion Saugmandsgaard Oe this morning, C‑242/20 HRVATSKE ŠUME. Jurisdiction, Brussels Ia, concept of 'contract', delineation with A7(2) forum delicti. Actio pauliana. (In other words, a collection of old chestnuts).https://t.co/3R5qU9rvVn

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

The International Law Association will celebrate its 150th anniversary all along the year 2023 through a series of webinars and, hopefully, an event organised by the French branch of the ILA in Paris on 18 – 20 June 2023.

In order to prepare the scientific content of these events, a vast organization of working groups has already been launched, on the five continents, under the coordination of the Foresight Council, in order to feed back the ideas that will be developed during the webinars and during the June event. These working groups are primarily aimed at the younger generation (PhD students, PhDs, young professionals in all branches of international law). Companies, essential actors of the international society, will be full partners, as well as NGOs and public actors.

A series of thematic White Papers will be prepared on 24 themes, including Cities, Civil Status, Cultural Heritage, Dispute Resolution, Migration, Intellectual Property or Oceans, to name only a few.

Regular updates concerning the evolution of the work of the Working Groups and the preparation of the celebration will be given by a Newsletter. The first issue is available here.

Au mois d’août, l’activité jurisprudentielle de la Cour de Strasbourg se limite, traditionnellement, à une poignée d’arrêts et de décisions si bien que la chronique estivale promettait d’être quantitativement réduite, même si qualitativement elle devra rendre compte d’importantes prises de position sur le renforcement du droit des étrangers, l’examen post-mortem du corps d’un bébé contre la volonté de sa mère, de nouvelles applications du principe de non-discrimination, le stockage des produits radioactifs, la protection des journalistes, la protection des détenus, les droits procéduraux. En 2021, ce déficit sera compensé par un événement majeur qui n’est pas d’ordre jurisprudentiel, mais qui influencera sans doute fortement l’activité de la Cour dans les mois et les années à venir. Aussi faudra-t-il lui réserver la première place.

en lire plus

La chambre de l’instruction n’a pas à rechercher si la personne visée par un mandat d’arrêt européen émis par une autorité étrangère était atteinte d’un trouble mental, seulement s’assurer que les faits à l’origine du mandat constituent une infraction au regard de la loi pénale française.

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On Friday, 24 September 2021, the Max Planck Institute Luxembourg for Procedural Law will host the EFFORTS National Exchange Seminar for France and Luxembourg (online).

This Seminar is organised in the framework of the EFFORTS project (Towards more effective enforcement of claims in civil and commercial matters within the EU), which tackles the Brussels I-bis Regulation and the Regulations on the European Enforcement Order, the European Small Claims Procedure, the European Payment Order, and the European Account Preservation Order. The Project investigates, in particular, the implementation of these Regulations in the national procedural law of Belgium, Croatia, France, Germany, Italy, Lithuania, and Luxembourg, and is conducted by a consortium comprising the Max Planck Institute Luxembourg, the Universities of Milan (coord.), Heidelberg, Zagreb, Vilnius, and the Free University of Brussels.

The programme of the Seminar is available here.

Participants are kindly requested to pre-register by sending an email including their full name, title and affiliation to secretariat-prof.hess@mpi.lu at the latest by Sunday, 19 September 2021.

More information on EFFORTS and its research outputs are available via the project website and in various newsletters previously posted here, here, and here.

On the EFFORTS German Exchange Seminar, see the previous announcement here.

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

Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union

This post was written by Harshal Morwale, an India-qualified international arbitration lawyer working as an associate with a premier Indian law firm in New Delhi; LLM from the MIDS Geneva Program (2019-2020); alumnus of the Hague Academy of International Law. 

Recently, the issue of foreign sovereign immunity became a hot topic in India due to the new judgment of the Delhi High Court (“DHC”) in the case of (KLA Const Tech v. Afghanistan Embassy). The previous part of the blog post analyzed the decision of the DHC.  Further, the post focused on the relevance of the United Nations Convention on Jurisdictional Immunities of States and Their Property. The post also explored the interplay between state immunity and diplomatic immunity.

This part focuses on two further issues which emanate from the decision of the DHC. Firstly, the post deals with the impact of the consent to arbitrate on immunity from enforcement. Then, the post explores the issue of attachment of state’s property for satisfying the commercial arbitral award against a diplomatic mission.

Consent to Arbitrate: Waiver Of Immunity From Enforcement?

As highlighted in the last post, one of the main arguments of the KLA Const Technologies (“claimant”) was that the Embassy of the Islamic Republic of Afghanistan’s (“respondent”, “Embassy”) consent to arbitrate resulted in the waiver of the sovereign immunity. The DHC accepted the argument and ruled that a separate waiver of immunity is not necessary to enforce an arbitral award in India as long as there is consent to arbitrate. The DHC also stated that this position is in consonance with the growing International Law principle of restrictive immunity while referring to the landmark English case (Trendtex Trading Corp. v. Central Bank of Nigeria).

However, there’s more to the issue than what catches the eye. First of all, the Trendtex case was decided before the English Sovereign Immunity Act (“UKSIA”) came into effect. Therefore, the DHC could have examined the relevant provisions under UKSIA and the more recent cases to track the jurisprudential trend on sovereign immunity under English law. For example, Section 13(2) of the UKSIA recognizes the difference between jurisdictional immunity and immunity from enforcement and requires an express waiver of immunity from enforcement. Even the ICJ has noted the requirement of an express waiver of immunity from enforcement in the Jurisdictional Immunities case. (para 118).

Furthermore, there was an opportunity to undertake a more detailed cross-jurisdictional analysis on the issue.  In fact, the issue of arbitral consent as a waiver of immunity from enforcement was dealt with by the Hong Kong Courts in FG Hemisphere v. Democratic Republic Of The Congo. Reyes J, sitting in the Court of First Instance, ruled that consent of the state to arbitrate does not in itself imply the waiver of immunity from enforcement. The ruling on the issue was confirmed by the majority decision of the Court of Final Appeal. The position has also been confirmed by scholars.

However, this position is not the settled one. The DHC’s decision is in line with the approaches adopted in France (Creighton v. Qatar), Switzerland (United Arab Republic v. Mrs. X) that no separate waiver of immunity from enforcement would be required in the existence of an arbitration agreement.

However, the decision made no reference to the reasoning of the cases from these jurisdictions. Regardless of the conclusion, the DHC’s decision could have benefited from this comparative analysis, and there would have been a clearer answer as to the possible judicial approaches to the issue in India.

 Attachment of State’s Property for Satisfying an Award Against A Diplomatic Mission

In the current case, the DHC ordered the respondent to declare not only its assets and bank accounts in India but also all its commercial ventures, state-owned airlines, companies, and undertakings in India, as well as the commercial transactions entered into by the respondent and its state-owned entities with the Indian companies.

It is not entirely clear whether the Islamic Republic of Afghanistan’s (“Afghanistan”) properties and commercial debts owed by private Indian companies to the state-entities of Afghanistan would be amenable to the attachment for satisfying the award against the Embassy. To resolve the issue of attaching Afghanistan’s property to fulfill the liability of the Embassy, a critical question needs to be considered – while entering into the contract with the claimant, was the respondent (Embassy) acting in a commercial capacity or as an agent of the state of Afghanistan?

The contract between the claimant and the respondent was for the rehabilitation of the Afghanistan Embassy. The DHC found that the respondent was acting in a commercial capacity akin to a private individual. Additionally, there’s no indication through the facts elaborated in the judgment that the contract was ordered by, or was for the benefit of, or was being paid for by the state of Afghanistan. In line with these findings, it can be concluded that the contract would not be a sovereign act but a diplomatic yet purely commercial act, independent from the state of Afghanistan. Consequently, it is doubtful how the properties of state/state-entities of Afghanistan can be attached for fulfilling the award against the Embassy.

The attachment of the state’s property to fulfill the liability of the Embassy would break the privity of contract between the claimant and the respondent (Embassy). According to the privity of contract, a third party cannot be burdened with liability arising out of a contract between the two parties. Therefore, the liability of the Embassy cannot be imposed on the state/state-entities of Afghanistan because they would be strangers to the contract between the claimant and the respondent.

That said, there are a few well-known exceptions to the principle of privity of contract such as agency, third party beneficiary, and assignment. However, none of these exceptions apply to the case at hand. It is accepted that an embassy is the agent of a foreign state in a receiving state. However, in this case, the contract was entered into by the Embassy, in its commercial capacity, not on behalf of the state but in the exercise of its diplomatic yet commercial function. Afghanistan is also not a third-party beneficiary of the contract as the direct benefits of the contract for the rehabilitation of the Afghanistan Embassy are being reaped by the Embassy itself. Additionally, there is no indication from the facts of the case as to the assignment of a contract between the state of Afghanistan and the Embassy. Therefore, the privity of contract cannot be broken, and the liability of the Embassy will remain confined to its own commercial accounts and ventures.

In addition to the above, there also lacks guidance on the issues such as mixed accounts under Indian law. Regardless, the approach of the DHC remains to be seen when the claimant can identify attachable properties of the respondent. It also remains to be seen if the respondent appears before the DHC and mounts any sort of defence.

Conclusion

There remains room for growth for Indian jurisprudence in terms of dealing with issues such as immunity from the enforcement of arbitral awards. An excellent way to create a more conducive ecosystem for this would be to introduce stand-alone legislation on the topic as recommended by the Law Commission of India in its 176th report. Additionally, the issues such as the use of state’s properties to satisfy the commercial liability of diplomatic missions deserve attention not only under Indian law but also internationally.

(The views expressed by the author are personal and do not represent the views of the organizations he is affiliated with. The author is grateful to Dr. Silvana Çinari for her feedback on an earlier draft.)

Restauration d'un bâtiment ancien

URSSAF - Contrôle

Exonération du versement de transport - Association

The proceedings of the conferences held under the aegis of the French Committee of Private International Law for the period 2018-2020 have recently been published by Pedone.

The volume contains eleven contributions (in French) from experts of private international law, scholars or practitioners, complemented by the exchange of views which took place in the course of each session of the Committee.

• The UN Singapore Convention on the Efficiency of International Settlement Agreements Resulting from Mediation(La Convention de Singapour des Nations-Unies sur l’efficacité des accords en matière de médiation internationale), by Jean-Michel Jacquet

• The Matrimonial Property Regimes Regulation in the Perspective of a EU Private International Law Code (Le règlement Régimes matrimoniaux lu dans la perspective d’un code de droit international privé européen), by Marie-Christine De Lambertye-Autrand

• The Respective Roles of the Court and the Parties in Litigation Involving Foreign Nationals (L’office du juge judiciaire dans le contentieux des étrangers), by Stéphanie Gargoullaud

• The Care Relationship in Private International Law (La relation de soins en droit international privé), by François-Xavier Train

• The Principle of Effectiveness in the Case Law of the Court of Justice in the Field of Private International Law (L’effet utile dans la jurisprudence de la Cour de justice en matière de droit international privé), by Maciej Szpunar

• The Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: What Can Be Expected? (La Convention de la Haye du 2 juillet 2019 sur la reconnaissance et l’exécution des jugements étrangers en matière civile ou commerciale : que peut-on en attendre ?), by Sandrine Clavel and Fabienne Jault-Seseke

• The Interplay between Duty of Care and Private International Law (Le devoir de vigilance et le droit international privé – Influences croisées), by Valérie Pironon

• Conflicting Standards in Investment Arbitration (Les conflits de normes en arbitrage d’investissement), by Isabelle Michou

• The Objective of Concentration of Litigation in EU Judicial Law (L’objectif de concentration du contentieux en droit judiciaire européen), by Olivera Boskovic

• Monegasque Private International Law (Le droit international privé monégasque), by Géraldine Gazo

• Panel Discussion on the Project of Codification of French Private International Law (Table ronde sur le projet de codification du droit international privé français), with Dominique Foussard, Jean-Pierre Ancel, Jean-Noël Acquaviva and Marie-Laure Niboyet

The table of contents of the book can be accessed here. More information is available here.

Originally posted today on NGPIL website

The Nigeria Group on Private International Law “(NGPIL”) invites submissions for next year’s NGPIL Conflict of Law’s Competition. The winner will be awarded for the best essay on any aspect of Nigerian conflict of laws. Entries will be accepted from the following: an undergraduate and/or postgraduate scholar studying in Nigeria, or any Nigerian lawyer five years call or below practicing and residing in Nigeria. The essay should be unpublished at the time of submission. Submitted essays should be in the English language. Submitted essays should also be within five to ten thousand words. Competitors may be citizens of any nation, age or gender but must be an undergraduate and/or postgraduate scholar studying in Nigeria, or any lawyer below five years post-call experience practicing and residing in Nigeria. They need not be Members, or on the Participant’s list of NGPIL.

The prize is 300 GBP, and the winner of the competition will be encouraged to publish the paper in any high-quality peer reviewed journal on private international law (conflict of laws). The prize is sponsored by and will be awarded by NGPIL based upon the assessment of NGPIL.

Submissions to the Prize Committee must be received no later than January 10, 2022. Entries should be submitted by email in Word or pdf format. The winner will be announced no later than 2 months after the deadline. Decisions of the NGPIL on the winning essay and on any conditions relating to this prize are final. Submissions and any queries should be addressed by email to ngpilaw@gmail.com. All submissions will be acknowledged by e-mail.