Agrégateur de flux

YouTube et Cyando
Rapprochement des législations
En l’état actuel du droit de l’Union, les exploitants de plates-formes en ligne ne font en principe pas, eux-mêmes, une communication au public des contenus protégés par le droit d’auteur que leurs utilisateurs mettent illégalement en ligne

This post was contributed by Thomas Mastrullo, who is a lecturer at the Sorbonne Law School (Paris 1)

On 31 March 2021, the Legal High Committee for Financial Markets of Paris (“Haut Comité juridique de la Place Financière de Paris” – HCJP) has published a report on the applicable law to companies  (Rapport sur le rattachement des sociétés – see here). This report is of great interest for those who are interested in the evolution of international company law.

Context

For several years, there has been a reflection in France about the conflict-of-law rule in corporate matters.

We know that two theories coexist in international company law: the theory of incorporation, which consists in applying to the company the law of the State where it was incorporated and where its registered office, or statutory seat, is located; the real-seat theory, which submits the company to the law of the State where its head office, or central administration, is localised.

In French law, the conflict-of-law rule in corporate matters is laid down in unilateralist terms, with almost the same drafting, in Article 1837 of the Civil Code (see here) and in Article L. 210-3 of the Commercial Code (see here).

The doctrine is divided on the interpretation of these texts, which have been bilateralized by French Cour de cassation (e.g. Com. 9 mars 1993, n° 91-11.003, Bull. civ. IV, n° 94 ; see here). The traditional view among French writers is that the connecting factor is in principle the real seat, because the statutory seat is not enforceable against third parties in case of dissociation of the registered office and the head office. But the modern view is that the connecting factor is in principle the statutory seat, considering that third parties have an option between the registered office and the head office in case of dissociation.

In this context, by letter dated 18 February 2020, the HCJP was jointly seized by the Ministry of Justice and the Ministry of the Economy with a request for a study on the “Opportunity, feasibility and conditions of turning to the theory of incorporation”. This initiative takes place in an environment of increased economic and legal competition: the adoption of the theory of incorporation might strengthen the legal attractiveness and economic influence of France. But the referral letter does not ignore that such a liberal conflict-of-law rule might also encourage opportunistic behaviors by economic actors and departure of French companies abroad.

Several questions were therefore raised in the referral letter: Consequences of adopting the theory of incorporation in terms of attractiveness? Experience of other EU Member States? Compatibility with EU law? Risks of forum and law shopping? Consequences for matters related to company law?

Finally, the letter requested that “the necessary legislative and regulatory changes” be proposed.To meet this demand, a working group was set up under the chairmanship of Professor Hervé Synvet, composed of academics and legal practitioners.

The result of the working group’s reflection is the report under consideration, which is divided into two parts.

Impact of a New Conflict-of-law Rule in Corporate Matters on Other Matters

In the first part, the HCJP studies the impact that the evolution of the French connecting factor in corporate matters would have on other branches of law. Several matters are taken into consideration: tax law, insolvency law, social law, capital market law, regulation of foreign investments, banking and financial law. The conclusion is that the adoption of the theory of incorporation would have little impact on these different branches of the law, and in any case no negative effects likely to prevent a reform. Indeed, these different disciplines have their own conflict-of-law rules and the connecting categories are quite clearly defined in French private international law. In addition, each of these matters has a specific approach to the company seat.

Proposed Reform

In the second part, the working group argues in favor of an evolution of the French conflict-of-law rule. More precisely, it proposes to adopt a new connecting factor relying exclusively on the statutory seat – or registered office, and to abandon any reference to the real seat.

Arguments in favor of the adoption of the connecting criterion by the statutory seat

Several arguments are advanced in support of this proposition.

Firstly, this conflict-of-law rule would be simpler and, as a consequence, more favorable to legal certainty. Indeed, on the one hand, it would eliminate the touchy question of the place of the real seat and, on the other hand, it would guarantee respect for the operators’ choice of the law to rule their company or even their group of companies. Thus, France’s attractiveness might be reinforced. Secondly, the solution is inspired by the comparative private international law (German, Irish, Luxembourg, Dutch, British, Swiss and Delaware law are studied) which reveals a strong tendency towards the generalization of the theory of incorporation or connecting criterion by the registered office. Thirdly, the solution is presented as more suited to the development of EU law which, through the jurisprudence of the CJEU – and in particular the Centros, Uberseering, Inspire Art and Polbud judgments – and some regulations – such as European Regulation n° 2157/2001 on SE (see here), tends to favor the registered office as a connecting factor.

Although it is not unaware of the risk of law shopping, the HCJP considers that this risk should not be overestimated since the laws of the EU’s Member States have “a common base” because of the European directives adopted on corporate matters, which is likely to prevent a “race to the bottom”. Moreover, the transfer of registered office from one Member State to another is still difficult, which is an obstacle to law shopping.

Proposed new texts

The HCJP recommends amending the Civil Code, and in particular Article 1837, and repealing Article L. 210-3 of the Commercial Code.

The new bilateral conflict-of-law rule, applicable to all companies with legal personality, is set out in Article 1837, paragraph 1, of the Civil Code. It provides that the company would be governed by the law of the State in which it has its statutory seat – or registered office. Rather than a reference to the company’s incorporation, this formulation is chosen because it would ensure terminological continuity with the current Article 1837 and would model the French conflict-of-law rule on that of the European Regulation on the SE.

Besides, the HCJP devotes paragraph 2 of Article 1837 to companies without statutory seat. For these companies, the conflict-of-law rule would be inspired from the solutions provided by the Rome 1 Regulation: the applicable law would be the law chosen by the partners or, in the absence of choice, the law of the country with which the company is most closely connected.

The proposed Article 1837 reads:

Article 1837 du Code civil

La société est régie par la loi de l’État dans lequel elle a son siège statutaire.

À défaut de siège statutaire, la société est régie par la loi choisie par ses associés ou, à défaut de choix, par la loi de l’État avec lequel elle présente les liens les plus étroits.  

The HCJP proposes also to introduce a new article 1837-1 of Civil Code devoted to the lex societatis’ scope of application, inspired from Swiss law. The aim is to increase the readability and, as a result, the attractiveness of French law. A list of questions falling within the scope of lex societatis would be drawn, this list being non-exhaustive as suggested by the use of the French adverb “notamment” (which can be translated by “in particular”).

The proposed Article 1837-1 reads:

Article 1837-1 du Code civil

La loi applicable à la société en vertu de l’article précédent régit notamment : a) la nature juridique de la société ; b) la capacité juridique de la société ; c) la dénomination ou la raison sociale ; d) la constitution de la société ; e) la nullité de la société, ainsi que celle des délibérations sociales ; f) la dissolution et la liquidation de la société ; g) les opérations emportant transmission universelle de patrimoine et le transfert du siège statutaire ; h) l’interprétation et la force obligatoire des statuts ; i) la modification des statuts, en particulier la transformation de la société ; j) l’organisation et le fonctionnement de la société, ainsi que sa représentation ; k) les droits et obligations des associés ; l) la preuve, l’acquisition et la perte de la qualité d’associé ; m) la détermination des titres susceptibles d’être émis par la société ; n) la détermination des personnes responsables des dettes sociales et l’étendue de leur responsabilité ; o) la responsabilité civile encourue en cas de violation des règles gouvernant la constitution, le fonctionnement ou la liquidation des sociétés, ou d’obligations statutaires. 

In addition, the HCJP considers the introduction of an Article 1837-2 which includes a substantive rule aiming at protecting “French” contracting parties of foreign companies. More precisely, the legal or statutory restrictions on the capacity or the powers of the representatives of a company under foreign law, which would produce effect in external relations according to the foreign law, would be unenforceable against “French” co-contractors, as long as they are of good faith. This rule aims mainly to protect the co-contractors of companies incorporated outside EU – such as American companies which apply the ultra vires doctrine ; the risk is indeed lower in EU, thanks to the protective regime of directive 2017/1132/UE (see here).

The proposed Article 1837-2 reads:

Article 1837-2 du Code civil  

Les restrictions légales ou statutaires à la capacité juridique ou aux pouvoirs des représentants d’une société de droit étranger concluant un acte juridique en France qui, selon la loi régissant la société, produiraient effet dans ses relations externes, sont inopposables au cocontractant ayant légitimement ignoré ces restrictions. 

In conclusion, the HCJP’s “Report on the connecting factor of companies” appears to be a stimulating contribution for the modernisation of French international company law.

Written by the Asian Business Law Institute and the Permanent Bureau of the HCCH

It was reported previously that the Asian Business Law Institute (ABLI) and the Permanent Bureau of the Hague Conference on Private International Law (HCCH) were to co-host a webinar titled HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link on 1 June.

The session has since been successfully held. The organisers would like to share the summary and key takeaways of the session with readers of this blog. Readers who are interested in learning more about the session and requesting access to the video recording may contact ABLI at info@abli.asia.

On 1 June 2021, the Permanent Bureau of the Hague Conference on Private International Law (HCCH) and the Singapore-based Asian Business Law Institute co-hosted webinar HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link, welcoming attendees from 30 different jurisdictions, including representatives of Central Authorities, HCCH Members, private practitioners, international public service officers and business professionals.

Dr Christophe Bernasconi, Secretary General of the HCCH, opened the webinar with a welcoming address where he underscored that the success of the 1970 Evidence Convention was attributable to not only its simplified transmission procedures and its flexibility to accommodate the needs of different legal traditions, but also the technology-neutral approach adopted by drafters, which has allowed the Convention to remain fit for purpose in the 21st century. Specifically, Dr Bernasconi highlighted that the Convention, with 63 Contracting Parties representing every major legal tradition, facilitated the transmission of thousands of requests for taking of evidence every year and allowed the use of video-link technology in the taking of evidence abroad.

Professor Yun Zhao, Representative of the HCCH Regional Office for Asia and the Pacific, was next to speak where he gave an overview of the operation of the Evidence Convention. He explained how the Convention provided, in Chapter I, a main channel of transmission under which a judicial authority in a requesting State may send a Letter of Request directly to a Central Authority in the requested State, before elaborating that the Convention also provided, in Chapter II, a streamlined process for the direct taking of evidence by commissioners or consuls, to which Contracting Parties may object upon or after accession. Professor Zhao pointed to the recently published Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention and outlined a plethora of ways in which video-link technology may be used to take evidence abroad, e.g. to facilitate the presence of the parties and their representatives by video-link at the execution of a request or to permit a commissioner located in the State of Origin to take evidence by video-link in the State of Execution.

Following Professor Zhao’s presentation, Mr Alexander Blumrosen, Partner at Polaris Law (Paris), provided a historical account of the use of the Evidence Convention in the United States and the significance of the landmark Supreme Court decision Aérospatiale. He went on to explain in detail, and by reference to his practical experience, how evidence located in France but needed for U.S. civil or commercial proceedings may be taken through a Letter of Request (under Chapter I) or more swiftly through a commissioner (under Chapter II). Mr Blumrosen highlighted that the execution of a Chapter I Letter of Request in France usually took between six weeks and three months, and that under Article 9 of the Convention, foreign counsel may be allowed to participate in the direct or cross examination of witnesses by video-link provided that such participation was expressly requested in the Letter of Request and allowed by local law and practice as it is in France. Mentioning that the taking of evidence by commissioner under Chapter II could be even faster and more flexible, Mr Blumrosen added that once the Central Authority had authorized a commissioner – which could take between one to ten days, depending on the matter – the evidence may be taken immediately either in person in conference room facilities or using video-link, without needing any further intervention or participation by a local judge. He mentioned the increased use of Chapter II discovery in requests from the U.S. over the last ten years, and applauded the qualified Article 23 reservation adopted by France to the Convention that allows for pre-trial discovery but requires requests to be “enumerated limitatively” and to be relevant to the underlying dispute in order to avoid overly broad “fishing expeditions”.

Turning attendees’ attention from France to Singapore was Mr Edmund Kronenburg, Managing Partner of Braddell Brothers LLP, who presented a brief overview of the operation of the Evidence Convention in Singapore by looking at the country’s legal framework. In his view, the popularity of the Convention was likely to increase in the coming years in tandem with Singapore’s efforts to reinforce its dispute resolution hub status. Mr Kronenburg then moderated a lively panel discussion among all panelists, including Mr Blumrosen, Justice Anselmo Reyes of the Singapore International Commercial Court, Dr João Ribeiro-Bidaoui, First Secretary at the HCCH and Professor Zhao.

To conclude the session, Dr Ribeiro-Bidaoui spoke of the salient benefits and main features of another HCCH instrument, the 1965 Service Convention, highlighting that the Service Convention, with 78 Contracting Parties, was accessible to almost 70% of the global citizenship who represents more than 80% of the world’s GDP.?

The Permanent Bureau of the HCCH and ABLI are heartened by the positive feedback received after the webinar. Some Singaporean practitioners who were in the midst of preparing for virtual hearings found the session especially timely. One attendee from the business community commented that although not legally trained, he found the discussions useful in understanding the difficulties involved in multi-jurisdictional legal processes from the perspective of running a multinational business. Attendees joining from outside of Singapore said they benefited most from learning about the implementation of the Evidence Convention in places other than their home jurisdictions. Specifically, Matthijs Kuijpers and Sofja Goldstein from Amsterdam-based law firm Stibbe shared that they found it extremely valuable for their international litigation practice to have judges, practitioners and academics from various jurisdictions exchange and discuss experiences and best practices. In particular, they very much appreciated that the organisers actively engaged practitioners during the session as such engagement helped overcome issues that would inevitably rise over time given that the methods of taking evidence today differ significantly from how it was envisioned when the Convention was drafted.

The organisers thank all attendees for their active participation and warm reception and look forward to having more such opportunities for exchange of ideas and sharing of experiences.

The full version of the key panel discussion takeaways can be read here.

Sur les sujets régaliens, le droit français et le droit européen ne manquent pas de points de frictions. À la suite de l’arrêt La Quadrature du net sur la conservation des données de connexion, et avant un nouvel arrêt sur le temps de travail des militaires, le Sénat a organisé une table ronde, rassemblant autorités françaises (le procureur national anti-terroriste), représentants européens et universitaires. Des débats riches.

en lire plus

The Young Research Network of the European Association of Private International Law (EAPIL) has just launched its latest research project, which is being led by Tobias Lutzi, Ennio Piovesani, and Dora Rotar. The project will focus on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, in light of the report envisioned in Article 79 Brussels Ia Regulation.

As the project will primarily be based on national reports describing the situation in each Member State (structured by a detailed questionnaire), the organizers are currently still looking for participants who would be interested in providing a national report for one of the following Member States: Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, and Sweden.

The full Call for Participants can be found here.

Non lieu à renvoi

The EAPIL’s Young Research Network has just launched its latest research project, which is being led by Tobias Lutzi, Ennio Piovesani, and Dora Rotar. The project will focus on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, in light of the report envisioned in Article 79 Brussels Ia Regulation.

As the project will primarily be based on national reports describing the situation in each Member State (structured by a detailed questionnaire), the organizers are currently looking for participants who would be interested in providing a national report for one of the following Member States: Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Hungary, Ireland, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, and Sweden.

The full Call for Participants can be found here.

If you are a junior researcher (below full professor) or practitioner under the age of 45 and would like to receive information about similar projects before they are posted publicly, you can join the EAPIL Young Research Network by simply filling out this form.

Xu Huang, Wuhan University Institute of International Law

1. Background
On 10 June 2021, China’s Standing Committee of the National People’s Congress (hereinafter “NPC”) issued “Anti-Foreign Sanctions Law of the People’s Republic of China” (hereinafter “CAFSL”), which entered into force on the date of the promulgation. This is a reaction in response to the current tension between China and some western countries, in particular, the US and the EU that have imposed a series of sanctions on Chinese officials and entities. For example, in August 2020, the Trump administration imposed sanctions on 11 individuals for undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong. In June 2021, President Biden issued Executive Order 14032 to amend ban on US persons purchasing securities of certain Chinese companies. In March 2021, the EU imposed unilateral sanctions on relevant Chinese individuals and entity, based on the human rights issues in Xinjiang. China has responded by imposing counter sanctions, which were issued by the Ministry of Foreign Affairs as administrative orders. The Anti-Foreign Sanctions Law provides the legal basis for China’s further action and counter measures. This law was enacted after only two reading rather than normal three demonstrating China’s urgent need to defend itself against a growing risk of foreign hostile measures.

2. The main content

Competent Authority: All relevant departments under the State Council have been authorized to involve in issuing the anti-sanction list and anti-sanction measures (Art. 4 and Art. 5). The “Ministry of Foreign Affairs” and “other relevant departments under the State Council” are authorized to issue orders of announcement (Art. 9). Reviewing from the current practice of China’s response to foreign sanctions, the Ministry of Foreign Affairs has always issued sanctions lists against foreign individuals and organizations, so it is likely that the China’s Ministry of Foreign Affairs will still lead the movement of announcing and countering the foreign sanctions. However, other departments now also have the authority to sanction relevant individuals and entities. This provides flexibility if the foreign sanctions relate to a particular issue that is administrated by the particular department and when it is more efficient or appropriate for the particular department to handle it directly.

Targeted measures: Circumstances under which China shall have the right to take corresponding anti-sanction measures are as follows: (1) a foreign country violates international law and basic norms of international relations; (2) contains or suppresses China on various pretexts or in accordance with its own laws; (3) adopts discriminatory restrictive measures against any Chinese citizen or organization; (4) meddles in China’s internal affair (Art. 3).The CAFSL does not expressly specify whether the circumstances should be satisfied simultaneously or separately. From the perspective of legislative intent, it is obvious that the full text of the CAFSL is intended to broaden legal authority for taking anti-sanctions measures in China, so it may not require the fulfilment of all four conditions.

It does not clarify the specific meanings of “violates international law and the basic norms of international relations”, “contains or suppresses”, and “meddles in China’s internal affairs”, which vary in different states and jurisdictions. But considering the sanctions issued by China and answers by the NPC spokesman, the key targeted circumstances are meddling China’s internal affairs. It is reasonable to assume that these circumstances mainly aimed at unilateral sanctions suppressing China under the pretexts of so-called sea-based, epidemic-based, democracy-based and human rights-based issues in Xinjiang, Tibet, Hong Kong and Taiwan. Therefore, other issues may not be included.

Art. 3 aims against the sanctions imposed by foreign states, for example the US and the EU. But from the text of the law, the concept of “sanctions” is not used, instead the concept of “discriminatory restrictive measures” is adopted, which isvery vague and broad. Discriminatory restrictive measures can be interpreted as foreign unilateral sanctions directly targeting Chinese individuals and organizations, which are the so-called “primary sanctions”, different from the “secondary sanctions” restricting Chinese parties from engaging in normal economic, trade and related activities with directly sanctions third state’s parties. In a press conference, the NPC spokesman stated that “the main purpose of the CAFSL is to fight back, counter and oppose the unilateral sanctions against China imposed by foreign states.” It should only apply to tackle the primary sanctions against China.

Targeted entities: The targeted entities of anti-sanction list and anti-sanction measures are vague and broad. The targeted entities of anti-sanctions list include individuals and organizations that are directly involved in the development, decision-making, and implementation of the discriminatory restrictive measures (Art. 4). What means involvement in the development or decision-making or implementation is ambiguous. And the indirect involvement is even vaguer, which may broaden the scope of the list. Besides, following entities may also be targeted: (1) spouses and immediate family members of targeted individuals; (2) senior executives or actual controllers of targeted organizations; (3) organizations where targeted individuals serve as senior executives; (4) organizations that are actually controlled by targeted entities or whose formation and operation are participated in by targeted entities (Art. 5).

Anti-sanction measures: The relevant departments may take four categories of anti-sanction measures: (1) travel ban, meaning that entry into China will not be allowed and deportation will be applied;(2) freezing order, namely, all types of property in China shall be seized, frozen or detained; (3) prohibited transaction, which means entities within the territory of China will not be allowed to carry out transactions or other business activities with the sanctioned entities; (4) the other necessary measures, which may include measures like “arms embargoes” or “targeted sanctions” (Art. 6). Former three anti-sanction measures have been taken by the Ministry of Foreign Affairs in practice. For example, on 26 March 2021, China decided to sanction relevant UK individuals and entities by prohibiting them from entering the mainland, Hong Kong and Macao of China, freezing their property in China, and prohibiting Chinese citizens and institutions from doing business with them.

Relevant procedure: The decisions made by the competent authorities shall be final and not subject to judicial review(Art. 7).The counterparty shall not file an administrative lawsuit against anti-sanction measures and other administrative decisions. The counterparty can change the circumstance causing anti-sanction measures, and request the relevant department for the modification and cancellation of anti-sanction measures. If any change in the circumstances based on which anti-sanction measures are taken happens, the competent authorities may suspend, change or cancel the relevant anti-sanction measures (Art. 8). The transparency requirement stipulates the relevant orders shall be announced (Art. 9).

A coordination mechanism for the anti-foreign sanctions work shall be established by the state to coordinate the relevant work. Coordination and cooperation, and information sharing among various departments shall be strengthened. Determination and implementation of the relevant anti-sanction measures shall be based on their respective functions and division of tasks and responsibilities (Art. 10).

Legal consequences of violation: There are two types of legal consequences for violating the obligation of “implementation of the anti-sanction measures”. Entities in the territory of China will be restricted or prohibited from carrying out relevant activities (Art. 11). Any entities, including foreign states’ parties, will be held legally liable (Art. 14).
Besides, a party suffering from the discriminatory restrictive measures may be entitled to bring a civil action against the entities that comply with the foreign discriminatory measures against China (Art. 12). The defendant, in theory, includes any entities in the world, even entities that are the nationals or residents of the country imposing sanctions against China. It is curious how this can be enforced in reality. In particular, if a foreign entity has no connections with China, it is hard for a Chinese court to claim jurisdiction, and even taking jurisdiction, enforcing judgments abroad can also be difficult, if not impossible. Because enforcement jurisdiction must be territorial, without assets and reputation in China, a foreign state’s party may disregard the Chinese anti-sanction measure.

3. Impact of the CAFSL

The CAFSL is a higher-level legislation in Chinese legal system than the relevant departmental rules, such as the Chinese Blocking Rules and “unreliable entity list” . It is a much more powerful legal tool than former departmental rules as it directly retaliates against the primary sanction on China. It provides a legal basis and fills a legal gap. However, it may not be good news for international businesses that operate in both the US and China. Those companies may have to choose between complying with foreign sanctions or Chinese laws, which may probably force some enterprises to make strategic decision to accept risk of penalty from one country, or even to give up the Chinese or US market. The CAFSL is vaguely drafted and likely to create unpredictable results to the commercial transaction and other interests. The application and enforcement of the CAFSL and Chinese subsequent rules and regulations may give detailed interpretation to clarify relevant issues to help parties comply with the CAFSL. However, to China, the CAFSL serves apolitical purpose, which is more important than the normal functioning of a law. It is a political declaration of China’s determination to fight back. Therefore, the most important matter for Chinese law-makers is not to concern too much of the detailed rules and enforcement to provide predictability to international business, but to send the warning message to foreign countries. International businesses, at the same time, may find themselves in a no-win position and may frequently face the direct conflict of overriding mandatory regulations in China and the US. By placing international businesses in the dilemma may help to send the message and pressure back to the US that may urge the US policy-makers to reconsider their China policy. After all, the CAFSL is a counter-measure, which serves defensive purposes, and would not be triggered in the absence of sanctions against Chinese citizens and entities.

The Hague Academy of International Law is holding its Summer Courses on Private International Law for the first (and perhaps last) time online from 26 July to 13 August 2021. Registration is open until Sunday 27 June 2021 at 23:59 The Hague time. More information is available here.

As you may remember, we announced in a previous post that the 2020 Summer Courses were postponed and that the only prior time that the courses were cancelled was World War II.

This year’s general course will be delivered by NYU Professor Linda Silberman and is entitled The Counter-Revolution in Private International Law in the United States: From Standards to Rules. The special courses will be given by José Antonio Moreno Rodríguez, Mary Keyes, Pietro Franzina (former editor of Conflictoflaws.net), Sylvain Bollée, Salim Moollan, Jean-Baptiste Racine and Robert Wai. The inaugural lecture will be delivered by Alexis Mourre, President of the International Court of Arbitration of the ICC. The poster is available here.

The holding of the Summer Courses in times of the Covid-19 pandemic attests to the perseverance of the Hague Academy, which has organised two live broadcasts per day to cater to people living in different time zones.

Please note that “no certificate of attendance will be delivered upon completion of the courses. Instead, each attendee will receive an electronic certificate of enrolment at the end of the session.”

If you are interested in a more full-fledged experience, you may consider registering for the Winter Course, which appears to be an in-person course. Registration for the Winter Courses 2022 is open since 1 June 2021 and will end 31 July (scholarships) and 29 September 2021 (full fee). For more information, click here.

 

The first issue of 2021 of the Netherlands Journal of Private International Law (Nederlands Internationaal Privaatrecht – NIPR) has been published. More information about the review is available here.

The following articles are included in the issue:

R. Vriesendorp, W. van Kesteren, E. Vilarin-Seivane and Sebastian Hinse on Automatic recognition of the Dutch undisclosed WHOA procedure in the European Union

On 1 January 2021, the Act on Court Confirmation of Extrajudicial Restructuring Plans (‘WHOA’) was introduced into the Dutch legal framework. It allows for extrajudicial debt restructuring outside of insolvency proceedings, a novelty in the Netherlands. If certain requirements – mostly relating to due process and voting – are met, court confirmation of the restructuring plan can be requested. A court-confirmed restructuring plan is binding on all creditors and shareholders whose claims are part of that plan, regardless of their approval of the plan. WHOA is available in two distinct versions: one public and the other undisclosed. This article assesses on what basis a Dutch court may assume jurisdiction and if there is a basis for automatic recognition within the EU of a court order handed down in either a public or an undisclosed WHOA procedure.

T. Arons, Vaststelling van de internationale bevoegdheid en het toepasselijk recht in collectieve geschilbeslechting. In het bijzonder de ipr-aspecten van de Richtlijn representatieve vorderingen (in English, Determination of international jurisdiction and applicable law in collective dispute resolution. In particular, the PIL aspects of the Representative Actions Directive)

The application of international jurisdiction and applicable law rules in collective proceedings are topics of debate in legal literature and in case law. Collective proceedings distinguish in form between multiple individual claims brought in a single procedure and a collective claim instigated by a representative entity for the benefit of individual claimants. The ‘normal’ rules of private international law regarding jurisdiction (Brussel Ibis Regulation) and the applicable law (Rome I and Rome II Regulations) apply in collective proceedings. The recently adopted injunctions directive (2020/1828) does not affect this application. Nonetheless, the particularities of collective proceedings require an application that differs from its application in individual two-party adversarial proceedings. This article focuses on collective redress proceedings in which an entity seeks to enforce the rights to compensation of a group of individual claimants. Collective proceedings have different models. In the assignment model the individual rights of the damaged parties are transferred to a single entity. Courts have to establish its jurisdiction and the applicable law in regard of each assigned right individually. In the case of a collective claim brought by an entity (under Dutch law, claims based on Art. 3:305a BW) the courts cannot judge on the legal relationships of the individual parties whose rights are affected towards the defendant. The legal questions common to the group are central. This requires jurisdiction and the applicable law to be judged at an abstract level.

C. Bright, M.C. Marullo and F. J. Zamora Cabot, Private international law aspects of the Second Revised Draft of the legally binding instrument on business and human rights

Claimants filing civil claims on the basis of alleged business-related human rights harms are often unable to access justice and remedy in a prompt, adequate and effective way, in accordance with the rule of law. In their current form, private international law rules on jurisdiction and applicable law often constitute significant barriers which prevent access to effective remedy in concrete cases. Against this backdrop, the Second Revised Draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises has adopted a number of provisions on private international law issues which seek to take into account the specificities of such claims and the need to redress the frequent imbalances of power between the parties. This article analyses the provisions on jurisdiction and applicable law and evaluate their potential to ensure effective access to remedy for the claimants.

B. Van Houtert, Jurisdiction in cross-border copyright infringement cases. Rethinking the approach of the Court of Justice of the European Union (dissertation, Maastricht University, 2020): A summary

The starting point of this research are the three rulings in the Pinckney, Hi Hotel, and Pez Hejduk in which the CJEU particularly focused on the interpretation of ‘the place where the damage occurred or may occur’ – the Erfolgsort – for determining jurisdiction according to Article 7(2) Brussels Ibis. The Court developed three criteria for jurisdiction in cross-border copyright infringements cases: (1) the state of the court seised should protect the copyright relied on, the so-called locus protectionis criterion, (2) the ‘likelihood of damage’ criterion which means that it should be likely that the damage may occur in the state where the court is located, and (3) court’s jurisdiction will be territorially limited to assess the damage caused within the forum state. The dissertation proceeds to demonstrate the need to rethink the CJEU’s approach to jurisdiction in cross-border copyright infringement cases. Based on common methods of interpretation, the author examines the leeway that the CJEU has regarding the interpretation of Article 7(2) Brussels Ibis in cross-border copyright infringement cases. She also examines alternative approaches to jurisdiction in cross-border copyright infringement cases adopted by scholars and courts of EU Member States and states of the United States of America distilling three main approaches: the ‘copyright holder’s centre of interests’ approach; the ‘substantial damage’ approach; and the ‘directed activities’ approach. The last part of the dissertation suggests that a combined approach to jurisdiction can be adopted in the recast of the Brussels Ibis Regulation or a future EU Copyright Regulation. Van Houtert considers that the proposals can also be adopted at the international level as they satisfy common principles of private international law and copyright law. Additionally, several global issues are considered in the analysis carried out such as copyright havens, online piracy, the cross-border flow of information, international trade, and the trend of competing jurisdictional claims.

N. Touw, The Netherlands: a forum conveniens for collective redress? (Conference Report)

On the 5th of February 2021, the seminar ‘The Netherlands: a Forum Conveniens for Collective Redress?’ took place. The starting point of the seminar is a trend in which mass claims are finding their way into the Dutch judicial system. To what extent is the (changing) Dutch legal framework, i.e. the applicable European instruments on private international law and the adoption of the new Dutch law on collective redress, sufficiently equipped to handle these cases? And also, to what extent will the Dutch position change in light of international and European developments, i.e. the adoption of the European directive on collective redress for consumer matters, and Brexit? In the discussions that took place during the seminar, a consensus became apparent that the Netherlands will most likely remain a ‘soft power’ in collective redress, but that the developments do raise some thorny issues. Conclusive answers as to how the current situation will evolve are hard to provide, but a common ground to which the discussions seemed to return does shed light on the relevant considerations. When legal and policy decisions need to be made, only in the case of a fair balance, and a structural assessment thereof, between the prevention of abuse and sufficient access to justice, can the Netherlands indeed be a forum conveniens for collective redress.

The Court of Justice delivered last Thursday (17 June) its judgment in case C-800/19 (Mittelbayerischer Verlag KG v SM), which is about Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 7, point 2, du règlement (UE) no 1215/2012 […] doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=243103&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1427608

At issue in  Khalifeh v Blom Bank S.A.L. [2021] EWHC 1502 (QB) is inter alia whether an anti-suit injunction is available to  a claimant who purports to have the protection of Section 4 of the Brussels Ia Regulation. That is the section which protects consumers by granting them a forum actoris and by limiting suits against them to, in principle (limited extensions are possible) their place of domicile. The contract is one in the banking sector, for the opening of 2 USD accounts. Defendant is a Lebanon-incorporated bank. The proceedings which are to be restrained, take place in Lebanon. Current order concerns anti-suit only. Other issues, including applicable law per Rome I (where of course the consumer title also plays a role) are not addressed.

The case is part of my essay questions in a conflicts exam at Leuven today. I would expect students to refer to the discussions in Gray v Hurley and to any reasons for EU courts to exercise, or not, judicial muscle-power in upholding the jurisdiction of courts in the EU as against that of courts outside it.

Claimants calls in support upon Samengo-Turner v J & H Marsh [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828. In those cases, concerning employees, anti-suit was employed viz employers’ potential action outside the EU. Defendant doubts the authority of both (and in particular of Samengo-Turner, a first instance judgment). It refers to both scholarly criticism of the position, and to the Court of Appeal’s recent finding in Gray v Hurley, referred to the CJEU but unfortunately (for reasons of legal certainty) since dropped.

At [38] Freedman J holds he need not make a ‘binary’ decision at this stage, and refuses the application for anti-suit, leaving the discussion for full debate at trial. Part of his reason for doing so is defendant’s commitment not to take the case in Lebanon any further at this stage (no commitment has been made of it to be dropped). At that trial, the ATI debate may continue (this, one imagines, will depend on defendant’s actions in Lebanon), as of course will the applicability of Rome I’s protected categories of consumers.

A trial to look out for.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.24.

Khalifeh v Blom Bank [2021] EWHC 1502 (QB)
Echoes of Gray v Hurley
Whether anti-suit injunction may be issued, targeting Lebanese proceedings, to protect rights as a consumer under Brussels Ia
Analysis forthcoming on the bloghttps://t.co/9fX1ecn2SZ

— Geert Van Calster (@GAVClaw) June 14, 2021

On 14 June 2021, the Research Service of the European Parliament released a briefing paper related to the proposal for a regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system), authored by Rafał Mańko (EP Research Service).

The abstract reads:

The e-CODEX system is the digital backbone of EU judicial cooperation in civil and criminal matters. e-CODEX comprises a package of software products that allow the setting up of a network of access points for secure digital communication between courts and between citizens and the courts, while also enabling the secure exchange of judicial documents.

The project, which was launched in 2010 with EU grant funding, is managed by a consortium of Member States and other organisations and is coordinated by the Ministry of Justice of the German Land of North Rhine-Westphalia. Even though it is currently used by 21 Member States, e-CODEX lacks a clear, uniform and EU-wide legal basis. To remedy this situation, on 2 December 2020 the Commission put forward a proposal for an e-CODEX legal instrument (a regulation) to formally establish the e-CODEX system at EU level. The management of the project would be entrusted to eu-LISA (the EU Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice).

Within the European Parliament, the LIBE and JURI committees are jointly in charge of the file, and the draft report is expected shortly.

The Briefing can be freely downloaded here.

Thanks to Jorg Sladic for the tip-off.

I reviewed the AG’s Opinion in C-800/19 Mittelbayerischer Verlag KG v SM here. The CJEU held yesterday (no English version yet at the time of posting). Tobias Lutzi already has analysis up here.

As I reported at the time, the AG suggested that despite the need for restrictive interpretation of the special jurisdictional rules, in the case at issue there was foreseeability of many a Pole’s centre of interests as a tort gateway, given the predictable fall-out of protest among Poles given the contents and context of the article (please refer to earlier post for detail): an ‘objective foreseeability test’.

The CJEU however restricts the availability of the centre of interests gateway further:  [46]

article 7, point 2, du règlement no 1215/2012 doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu.

The aggrieved needs to be identifiable, at the time of publication, as an individual, not as belonging to an abstract group of offended persons.

With Gtflix TV pending, the CJEU will have a further opportunity to clarify the A7(2) gateway for defamation.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5, and para 2.598 in fine.

 

 

Judgment just out in Mittelbayerischer Verlag: jurisdiction in online defamation cases
For my review of AG Opinion see https://t.co/2d2Fjp70KT
Court takes a strict line of foreseeability, insists on nominatim or in abstracto identification of the victimhttps://t.co/EqSmpCeVol

— Geert Van Calster (@GAVClaw) June 17, 2021

AG Bobek delivered today his opinion in case C‑55/20 (Ministerstwo Sprawiedliwości joined parties: Pierwszy Zastępca Prokuratora Generalnego, Prokurator Krajowy, Rzecznik Dyscyplinarny Izby Adwokackiej w Warszawie), which is about the Rule of Law in Poland.

Context: “  In July 2017, the Prokurator Krajowy – Pierwszy Zastępca Prokuratora Generalnego […] (‘the National Prosecutor’) requested the Rzecznik Dyscyplinarny Izby Adwokackiej w Warszawie (Disciplinary Agent of the Bar Association in Warsaw, Poland) […] to initiate disciplinary proceedings against the lawyer of the former President of the European Council, Donald Tusk. In the view of the National Prosecutor, the statements made by that lawyer when publicly commenting on the possibility of his client being charged with a criminal offence amounted to unlawful threats and disciplinary misconduct. Twice, the Disciplinary Agent either refused to initiate such proceedings or decided to discontinue them. Twice, the Sąd Dyscyplinarny Izby Adwokackiej w Warszawie (Disciplinary Court of the Bar Association in Warsaw, Poland) […], following an appeal lodged by the National Prosecutor or the Minister of Justice, overturned those decisions and remitted the case back to the Disciplinary Agent.

2. The present request for a preliminary ruling has been made in a third ‘round’ of those proceedings, within which the Disciplinary Court is examining the decision of the Disciplinary Agent to discontinue once more the disciplinary inquiry against that lawyer, following an appeal lodged again by the National Prosecutor and the Minister of Justice. The referring court seeks to know whether Directive 2006/123/EC (‘the Services Directive’) (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are applicable to disciplinary proceedings pending before it. However, it appears that the crux of the matter before the referring court lies elsewhere: what concrete consequences, in procedural terms, is the referring court to draw from the Court’s judgment in A. K. and Others, (3) in view of the fact that its ruling might be subsequently appealed before the Izba Dyscyplinarna Sądu Najwyższego (Disciplinary Chamber of the Supreme Court, Poland)? How can that court, in specific and practical terms, ensure compliance with EU law?”

The suggested decision (Extract): “On the basis of the primacy of EU law:

–  A national court is required to set aside the provisions of national law which reserve jurisdiction to rule on cases to a court which is not an independent and impartial tribunal, so that those cases may be examined by a court which meets the requirements of independence and impartiality and which, were it not for those provisions, would have jurisdiction.

– A national court must, if necessary, disregard the rulings of a higher court if it considers that they are incompatible with EU law, including situations in which incompatibility derives from the lack of independence and impartiality of that higher court”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=243109&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=14807561

Dès lors que la persistance de troubles mentaux était avérée, la CEDH valide le refus des autorités belges de remettre en liberté deux auteurs d’infractions, internés et atteints de symptômes persistants, après l’adoption d’une loi nouvelle réservant le prononcé de cette mesure à des infractions plus graves que celles pour lesquelles ils avaient été internés.

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Le Conseil d’État précise les modalités de retrait du statut de réfugié à un étranger ayant commis des infractions pénales.

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