Agrégateur de flux

Irrecevabilité

After arguing that States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention, Gary Born received a series of serious criticisms by Trevor Hartley, Andreas Bucher and the Hague Conference of Private International Law.

Mr Born has responded to some of these criticisms in two further posts at the Kluwer Arbitration Blog.

At the invitation of the Editors of the EAPIL Blog, Trevor Hartley, Professor emeritus at the London School of Economics, offers the following rejoinder.

I assume we can all agree on two things: first, corrupt and biased judges exist; secondly, corrupt and biased arbitrators exist. Since the parties to an arbitration agreement choose the arbitrators and the parties to a choice-of-court agreement choose the court, this ought not to be a problem. However, for one reason or another, a party to an arbitration agreement may find himself before an arbitrator whom he believes to be corrupt and biased; likewise, a party to a choice-of-court agreement may find himself before a judge whom he believes to be corrupt and biased. If we can agree on all this, the matter comes down to the safeguards against the enforcement of a corrupt award under the New York Convention and the safeguards against the enforcement of a corrupt judgment under the Hague Convention. I want to examine this in order to see how the two instruments compare.ague Convention.

The grounds for refusing to recognize or enforce an award are set out in Article V of the New York Convention. The equivalent grounds under the Hague Convention are in Article 9. We will consider them one by one.

Arbitration Agreement Invalid

Under New York, an award will not be recognized or enforced if the arbitration agreement was invalid: Article V(1)(a). This covers incapacity of the parties and other grounds of invalidity. The capacity of the parties is governed by ‘the law applicable to them’; other grounds of validity are governed by the law to which the parties have subjected the agreement or, failing any indication thereon, the law of the country where the award was made. Under Hague, a judgment under a choice-of-court agreement will also be refused recognition if the agreement is null and void: Article 9(a). The applicable law is stated to be the law of the State of the chosen court; but if the chosen court has already held the agreement to be valid, this is conclusive.

However, under Article 9(b) of Hague, recognition and enforcement may also be refused if a party lacked capacity to conclude the agreement under the law of the requested State (the State asked to recognize the judgment). Thus, New York is slightly stronger in general, in that it gives the parties the right to subject the validity of the agreement to some law other than that of the country where the award is made. However, Hague is slightly stronger as regards capacity, in that it requires capacity to exist under both the law of the chosen court and the law of the country asked to recognize the judgment.

Insufficient Notice

Under New York, another ground for non-recognition is that the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case: Article V(1)(b). Under Hague, there are two grounds for non-recognition. Under Article 9(c)(i), recognition may be refused if the document which instituted the proceedings (or an equivalent document, including the essential elements of the claim) was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence. However, the defendant loses this right if he entered an appearance and presented his case without contesting notification in the court of origin (provided that the law of the State of origin permitted notification to be contested). This has the same effect as the ground under New York, though Hague is more fleshed out. The second ground under Hague is that the document was notified to the defendant in the requested State in a manner that was incompatible with fundamental principles of the requested State concerning service of documents: Article 9(c)(ii). This has no equivalent under New York.

New York is slightly wider in that it also permits non-recognition where the party is ‘otherwise unable to present his case’. There is no exact equivalent to this under Hague, though if his inability to present his case is due to chicanery by the other party, Article 9(d) would come into play. This gives another ground for non-recognition, namely that the judgment was obtained by fraud in connection with a matter of procedure.

Outside the Scope of the Submission

Under New York, recognition of an award can be challenged on the ground that the award deals with a difference outside the scope of the submission to arbitration: New York, Article V(1)(c). At first sight, there appears to be no equivalent to this in Hague. However, the duty to recognize and enforce a judgment applies only to a judgment given by a court of a Contracting State ‘designated in an exclusive choice of court agreement’: Hague, Article 8(1). The term ‘exclusive choice of court agreement’ is defined in Article 3(a) as an agreement that designates a court (or several courts) ‘for the purpose of deciding disputes which have arisen or may arise in connection with a particular legal relationship’ (italics added). If the designated court decided a matter that did not concern the legal relationship specified in the choice-of-court agreement, it could be argued that the court was no longer designated in the choice-of-court agreement. Then the judgment would not be subject to recognition and enforcement under the Convention. If this is right—and it surely must be—the Hague Convention produces the same result.

Composition of the Arbitral Authority

Another ground for non-recognition under New York is that the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties (or, failing such agreement, was not in accordance with the law of the country where the arbitration took place): New York, Article V(1)(d). For obvious reasons, there is no equivalent to this under Hague. However, if the court which gave the judgment was not designated in the choice-of-court agreement, the judgment would not, for the reasons explained in the previous paragraph, be subject to recognition and enforcement under the Convention.

Award Not Binding on the Parties

Under New York, recognition and enforcement of an award may be refused if it has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made: Article V(1)(e). This is supported by Article VI, which makes provision for the adjournment of enforcement proceedings where an application is made for the setting aside or suspension of the award. Under Hague, there are two provisions, which together have the same effect. The first is Article 8(3), which provides that a judgment will be recognized only if it has effect in the State of origin and will be enforced only if it is enforceable in the State of origin. If has been set aside or suspended in the State of origin, it will not be recognized or enforced. The second is Article 8(4), which provides that recognition or enforcement may be postponed or refused if the judgment is the subject of review in the State of origin or if the time limit for seeking ordinary review has not expired. (It goes on to say that a refusal does not prevent a subsequent application for recognition or enforcement of the judgment.) Taken together, these provisions give protection that is at least as good as that under New York.

Subject Matter Not Capable of Settlement by Arbitration

Another ground for non-recognition under New York is that the subject matter of the difference is not capable of settlement by arbitration under the law of the country in which enforcement is sought. There is no equivalent to this under Hague since there are few matters within the subject-matter scope of the Convention that are not capable of settlement by a court. However, if the judgment did concern such a matter, public policy could be invoked.

Public Policy

In both New York and Hague, the most important safeguard is the provision which allows recognition and enforcement to be refused on the ground of public policy. The relevant provision in New York is Article V(2)(b) and in Hague it is Article 9(e). The provision in New York simply says that recognition and enforcement may be refused if it would be contrary to the public policy of the country concerned. Hague, however, is a little more detailed. After saying that recognition or enforcement may be refused if it would be manifestly incompatible with the public policy of the requested State, it adds ‘including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State’.

A Problem

This all seems clear; however, there is a problem. Article 8(2) of Hague provides that the court asked to recognize and enforce the judgment is bound by the findings of fact on which the court of origin based its jurisdiction (unless the judgment was given by default). Does this mean that if the court of origin ruled that its members were not corrupt, the court asked to recognize and enforce the judgment cannot question this? If this were true, it would be a serious defect. However, the answer is given in the Explanatory Report, which was approved by all the States that participated in the Conference which drew up the Convention. The relevant paragraphs are 166–169. The first point made is that the court addressed will not have to accept the legal evaluation of the facts adopted by the court of origin. For example, if the court of origin found that the choice-of-court agreement was concluded by electronic means that satisfied the requirements of the Convention, the court addressed would be bound by the finding that the agreement was concluded by electronic means, but not by the finding that it satisfied the requirements of the Convention.

The second point is that the court asked to recognize and enforce the judgment is only bound by the findings of fact of the court of origin with regard to the grounds of non-recognition specified in Article 9(a) and (b). The rule does not apply to the grounds in the other sub-paragraphs of Article 9, that is sub-paragraphs (c), (d) and (e). This is because these latter provisions do not concern jurisdiction. The Report states in paragraph 167:

The position is different with regard to the grounds of non-recognition laid down in sub-paragraphs c), d) and e) of Article 9. These are not concerned with jurisdiction under the Convention, but with public policy and procedural fairness. Thus, the court addressed must be able to decide for itself, in accordance with these sub-paragraphs, whether the defendant was notified; whether there was fraud; or whether there was a fair trial: a finding by the judge of origin that he did not take a bribe, for example, cannot be binding on the court addressed.

A footnote adds that this also applies to a finding by an appeal court that the first instance judge was not guilty of corruption.

Paragraph 168 of the Report continues:

The same is true with regard to procedural fairness under sub-paragraph e). Assume that the defendant resists recognition and enforcement on the ground that the proceedings were incompatible with the fundamental principles of procedural fairness of the requested State. He claims that he was not able to go to the State of origin to defend the case because he would have been in danger of imprisonment on political grounds. A finding by the court of origin that this was not true cannot be binding on the court addressed. Where matters of procedural fairness are concerned, the court addressed must be able to decide for itself.

In view of this, we can conclude that rule that findings of fact are binding does not seriously compromise the safeguards.

Conclusions

As this short discussion has shown, the safeguards in the two instruments have almost the same effect. One cannot say that one is better than the other. In any event, where the judgment is tainted by corruption or bias, public policy would always ensure that it was not recognized or enforced. Of course, there is the question of proof, but this is just as much a problem in the case of an award as in the case of a judgment.

Décès de M. Barna Berke, juge au Tribunal de l’Union européenne

The Hague Conference on Private International Law has engaged in a series of projects that, if successful, could provide the framework for critical aspects of trans-national litigation in the Twenty-first Century. Thus far, the work has resulted in the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. Work now has begun to examine the need, desirability and feasibility of additional instruments in the area, with discussions of an instrument that would either require or prohibit the exercise of jurisdiction by national courts, and of an instrument that would channel parallel proceedings to a “better’ forum.

The authors of this brief article advance the view that a convention regulating jurisdiction is not a good approach, but that an instrument finding a “better” forum in parallel proceedings, constructed on an open-minded and non-dogmatic basis, is needed, desirable, and feasible.

The piece is located here.

Membership

On 1 July 2021, Mongolia deposited its instrument of acceptance of the Statute, becoming the 89th Member of the HCCH. More information is available here.

Conventions & Instruments  

On 3 July 2021, the HCCH 1961 Apostille Convention entered into force for Jamaica. It currently has 120 Contracting Parties. More information is available here.

On 30 July 2021, the HCCH 1970 Evidence Convention entered into force for Georgia. It currently has 64 Contracting Parties. More information is available here.

Meetings & Events

From 5 to 9 July 2021, the Experts’ Group on Parentage/Surrogacy met for the ninth time, via videoconference. The Group discussed the scope of the possible draft Convention on legal parentage and the scope of the possible draft Protocol on legal parentage established as a result of an (international) surrogacy arrangement. More information is available here.

On 27 July 2021, the Permanent Bureau announced that Edition 2021 of HCCH a|Bridged will be dedicated to the HCCH 2005 Choice of Court Convention and held online on 1 December 2021. More information is available here.

On 28 July 2021, the Permanent Bureau launched the Advancing and Promoting the Protection of All Children (Approach) Initiative, in celebration of the 25th anniversary of the HCCH 1996 Child Protection Convention. As part of this initiative, the Permanent Bureau is organising two competitions: the HCCH|Approach Essay Competition and the HCCH|Approach Media and Design Competition. Submissions are due on 1 October 2021. More information is available here.

Publications & Documentation

On 2 July 2021, the Permanent Bureau announced the publication of translations, in Albanian, Macedonian, and Bosnian-Serbian-Montenegrin languages, of the Explanatory Report on the HCCH 2019 Judgments Convention. These are the first available translations after the official publication of the Explanatory Report in October 2020. They were supported by the Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), Open Regional Fund for South East Europe – Legal Reform (ORF – Legal Reform). More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The decision corresponding to case C-262/21 PPU A, will be delivered on 2 August 2021. It corresponds to a preliminary reference from the Supreme Court of Finland, with five questions on Regulation 2201/2003 and the 1980 Hague Convention, as well as on the interface between the first one and the Dublin III Regulation. Practicalities surrounding the application of Article 11(4) Brussels II bis regulation are also at stake.

1. Must Article 2(11) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (‘the Brussels II bis Regulation’), relating to the wrongful removal of a child, be interpreted as meaning that a situation in which one of the parents, without the other parent’s consent, removes the child from his or her place of residence to another Member State, which is the Member State responsible under a transfer decision taken by an authority in application of Regulation (EU) No 604/2013 of the European Parliament and of the Council (‘the Dublin III Regulation’), must be classified as wrongful removal?

2. If the answer to the first question is in the negative, must Article 2(11) of the Brussels II bis Regulation, relating to wrongful retention, be interpreted as meaning that a situation in which a court of the child’s State of residence has annulled the decision taken by an authority to transfer examination of the file, but in which the child whose return is ordered no longer has a currently valid residence document in his or her State of residence, or the right to enter or to remain in the State in question, must be classified as wrongful retention?

3. If, in the light of the answer to the first or the second question, the Brussels II bis Regulation must be interpreted as meaning that there is a wrongful removal or retention of the child, and that he or she should therefore be returned to his or her State of residence, must Article 13(b) of the 1980 Hague Convention be interpreted as precluding the child’s return, either

(i) on the ground that there is grave risk, within the meaning of that provision, that the return of an unaccompanied infant whose mother has personally taken care of him or her would expose that child to physical or psychological harm or otherwise place the child in an intolerable situation; or

(ii) on the ground that the child, in his or her State of residence, would be taken into care and placed in a hostel either alone or with his or her mother, which would indicate that there is a grave risk, within the meaning of that provision, that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation: or

(iii) on the ground that, without a currently valid residence document, the child would be placed in an intolerable situation within the meaning of that provision?

4. If, in the light of the answer to the third question, it is possible to interpret the grounds of refusal in Article 13(b) of the 1980 Hague Convention as meaning that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, must Article 11(4) of the Brussels II bis Regulation, in conjunction with the concept of the child’s best interests, referred to in Article 24 of the Charter of Fundamental Rights of the European Union and in that regulation, be interpreted as meaning that, in a situation in which neither the child nor the mother has a currently valid residence document in the child’s State of residence, and in which therefore have neither the right to enter nor the right to remain in that State, the child’s State of residence must make adequate arrangements to secure that the child and his or her mother can lawfully remain in the Member State in question? If the child’s State of residence has such an obligation, must the principle of mutual trust between Member States be interpreted as meaning that the State which returns the child may, in accordance with that principle, presume that the child’s State of residence will fulfil those obligations, or do the child’s interests make it necessary to obtain from the authorities of the State of residence details of the specific measures that have been or will be taken for the child’s protection, so that the Member State which surrenders the child may assess, in particular, the adequacy of those measures in the light of the child’s interests?

5. If the child’s State of residence does not have the obligation, referred to above in the fourth question, to take adequate measures, is it necessary, in the light of Article 24 of the Charter of Fundamental Rights, to interpret Article 20 of the 1980 Hague Convention, in the situations referred to in the third question, points (i) to (iii), as meaning that that provision precludes the return of the child because the return of the child might be considered to be contrary, within the meaning of that provision, to the fundamental principles relating to the protection of human rights and fundamental freedoms?

AG Pikamäe’s Opinion was published in French and Finnish on July 14. He proposed the Court to answer as follows (translation by the author):

Council Regulation (EC) No 2201/2003 … must be interpreted as meaning that the situation, such as that in the main proceedings, in which a child and its mother have moved and remain in a Member State in execution of a transfer decision taken by the competent authority of the Member State of origin in accordance with Regulation (EU) No 604/2013 … cannot be considered as unlawful removal or retention within the meaning of Article 2 (11) of Regulation No 2201/2003, except if it is established that, under cover of an application for international protection made for the child, the mother has de facto tried circumvent the rules of judicial jurisdiction provided for by Regulation No 2201/2003, which is for the referring court to verify in the light of all the specific circumstances of the case.

The case will be decided by the First Chamber (M. Bonichot, as reporting judge ; M. Bay Larsen, Mme. Toader, M. Safjan, M. Jääskinen).

Today (1 August 2021) the Protocol No. 15 amending the Convention for the Protection of Human Rights and Fundamental Freedoms has entered into force. This Protocol will apply in all 47 States Parties. Although it was open for signature/ratification since 2013, the ratification of Italy only occurred until 21 April 2021.

In the past, we have highlighted in this blog the increasing interaction between human rights and private international law and the need to interpret them harmoniously (see for example our previous posts here (HCCH Child Abduction Convention) and here (transnational surrogacy))

Protocol No. 15 has introduced important amendments to the text of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In particular, it has included the principle of subsidiary and the doctrine of the margin of appreciation in the preamble, which have long and consistently been adopted by the case law of the European Court of Human Rights (ECtHR), and thus this is a welcome amendment.

It will now read as follows (art. 1 of the Protocol):

“Affirming  that  the  High  Contracting  Parties,  in  accordance  with  the  principle  of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation,  subject  to  the supervisory  jurisdiction  of  the  European  Court  of  Human Rights established by this Convention”.

Of great important is the shortening of the time for the filing of an application in accordance with article 35 of the ECHR: from 6 to 4 months. This amendment will enter into force 6 months later (I assume on 1 February 2022). Articles 4 and 8(3) of the Protocol state the following:

Article 4

“In Article 35, paragraph 1 of the Convention, the words “within a period of six months” shall be replaced by the words “within a period of four months”.

Article 8(3)

“Article 4 of this Protocol shall enter into force following the expiration of a period of six months after the date of entry into force of this Protocol. Article 4 of this Protocol shall not apply to applications  in  respect  of  which  the  final  decision  within  the  meaning  of  Article  35, paragraph 1 of the Convention was taken prior to the date of entry into force of Article 4 of this Protocol” (our emphasis).

This is perhaps a reaction to the increasing workload of the Court, which seems to be of serious concern to the States Parties. In particular, the Brighton declaration has noted that “the number of applications made each year to the Court has doubled since 2004. Very large numbers of applications are now pending before all of the Court’s primary judicial formations. Many applicants, including those with a potentially well-founded application, have to wait for years for a response.” Undoubtedly, this may compromise the effectiveness and reliability of the ECtHR. Nevertheless, this reduction of the filing time may also leave out cases that are well founded but during which the parties were late in realising that such recourse / legal challenge was available.

Lastly, I would like to highlight the removal of the right of the parties to object to the relinquishment of jurisdiction to the Grand Chamber in certain circumstances, such as when a case pending before a Chamber raises a serious question affecting the interpretation of the ECHR or its protocols (art. 3 of the Protocol and art. 30 ECHR). In my view, this is an improvement and avoids delays as it allows the Chamber to make that call. It also provides consistency to the case law of the ECtHR. As to its entry into force, article 8(2) of the Protocol sets out the following:

“The amendment introduced by Article 3 of this Protocol shall not apply to any pending case in which one of the parties has objected, prior to the date of entry into force of this Protocol, to a proposal by a Chamber of the Court to relinquish jurisdiction in favour of the Grand Chamber”

 

 

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Cour d'appel d'Aix-en-Provence

Pourvoi c. déc. Cour d'appel de Versailles du 16 février 2021

Pourvoi c. déc. Cour d'appel de Versailles du 16 février 2021

Pourvoi c. déc. Cour d'appel de Versailles du 16 février 2021

Pourvoi c. décision Cour d'appel de Versailles du 16 février 2021

Pourvoi c. décision Cour d'appel de Versailles du 16 février 2021

Tribunal judiciaire de Douai

Pourvoi c. déc. Cour d'appel de Riom du 12 janvier 2021

Puigdemont i Casamajó e.a. / Parlement
Le vice-président du Tribunal de l’Union européenne rejette la demande de suspension de la levée de l’immunité parlementaire de MM. Carles Puigdemont i Casamajó et Antoni Comín i Oliveres ainsi que de Mme Clara Ponsatí i Obiols

Pourvoi c. déc. Cour d'appel de Paris du 3 mars 2021

“Comment concilier, au vu notamment de la décision n° 2010-8 QPC du 18 juin 2010 du Conseil constitutionnel :

les dispositions localement toujours en vigueur du décret modifié n° 57-245 du 24.02.1957, promulgué par l'arrêté n° 2079 du 25.11.1957 (JONC des 9 et 16.12.1957, p. 672) ?” sur la réparation et la prévention des accidents du travail et des maladies professionnelles dans les Territoires d'Outre-Mer, et notamment ses articles 34 et 35,

les dispositions des articles 6-1 et suivants de l'ordonnance n° 92-1146 du 12 octobre 1992 portant extension et adaptation dans les territoires de Nouvelle-Calédonie, de Polynésie Française et des îles Wallis et Futuna, de certaines dispositions de la loi n° 85-677 du 5 juillet 1985 tendant à l'amélioration de la situation des victimes d'accidents de la circulation et à l'accélération des procédures d'indemnisation,

et les dispositions de l'article 7 de l'ordonnance n° 2013-516 du 20 juin 2013 portant actualisation du droit civil applicable en Nouvelle-Calédonie et dans les îles Wallis et Futuna, qui créent une nouvelle sous-section étendant à la Nouvelle-Calédonie et aux îles Wallis et Futuna les règles relatives aux tiers payeurs de la loi du 5 juillet 1985,
Au regard des demandes formulées en Nouvelle-Calédonie par la caisse des allocations familiales et des accidents de travail (CAFAT), dont les missions sont comparables à la caisse primaire d'assurance maladie (CPAM), à l'encontre de l'employeur dont la faute inexcusable a été établie, tendant au remboursement des débours correspondant généralement aux préjudices patrimoniaux temporaires décomposés en :

dépenses des santé actuelles (frais d'hospitalisation, de radiologie, de pharmacie, de kinésithérapie, de laboratoire et de prothèses),
pertes de gains professionnels actuels (indemnités journalières) ?”

Pourvoi c. déc. Cour d'appel de Lyon du 26 janvier 2021