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The preliminary programme for the TMC Asser Institute Masterclass on investing in English speaking Africa through private international law is now out.

During a two-day masterclass Chukwuma Okoli from the TMC Asser Institute will be joined by experts in the field of private international law such a Dr Pontian Okoli, lecturer in Private International Law and Commercial Law at the University of Stirling, Scotland, Professor Elsabe Schoeman, Dean of the Faculty of Law at the University of Pretoria, South Africa, Richard Frimpong Oppong, Associate Professor a the University of Bradford School of Law, and Anthony Kennedy, Associate Member of Serle Court Chambers in London.

 

These professionals will offer you theoretical and practical insights into commercial law, private international law and transnational litigation. Among other topics, they will discuss the questions of jurisdiction, choice of court agreements, foreign currency obligations, and recognition and enforcement of foreign judgments. Knowledge of these topics in English-speaking Africa is essential for effective investment, as the number of international commercial transactions on the continent grows.

 

For more information please visit the event page.

 

Relevance for investment

Africa’s population is approximately one billion people, and its growing population is expected to reach nearly 2.2 trillion dollars in consumer spending by 2030. The recent African Continental Free Trade Area (AfCTA) Agreement seeks to create free movement of persons, goods and services within the African Union. This has accentuated the role of private international law in resolving potential cross-border disputes involving international commercial actors. Lawyers, judges, arbitrators and other stakeholders will have to gain advanced knowledge of the specific operation of private international law in the African context.

 

PO points

Dutch lawyers can obtain 10 PO points for their attendance.

 

About the masterclass series

Lifelong learning is essential for those engaged in today’s legal and business world. The Asser Academy Masterclass series are short courses tailored to professionals who wish to deepen their knowledge, stay up-to-date and remain competitive by mastering skills the global market needs. The Asser Academy Masterclass series will combine the cutting-edge knowledge of academia with the hands-on experience of practitioners.

 

Date: 24 – 25 June 2021

Fee: €995,- €745,-(IJI and Asser clients),- €495,-(Students and NGO-workers)

Venue: Online

Organiser: T.M.C. Asser Instituut

Ryanair / Commission (Espagne; Covid-19)
Aide d'État
Le fonds de soutien à la solvabilité des entreprises stratégiques espagnoles qui connaissent des difficultés temporaires en raison de la pandémie de Covid-19 est conforme au droit de l’Union

Ryanair / Commission (TAP; Covid-19)
Aide d'État
La décision de la Commission déclarant l’aide du Portugal en faveur de la compagnie aérienne TAP compatible avec le marché intérieur est annulée car insuffisamment motivée

Ryanair / Commission (KLM; Covid-19)
Aide d'État
Le Tribunal annule la décision de la Commission approuvant l’aide financière des Pays-Bas en faveur de la compagnie aérienne KLM dans le contexte de la pandémie de Covid-19 pour insuffisance de motivation.

The European Group of Private International Law, also known as GEDIP (Groupe européen de droit international privé), has just launched a new website.

Created in 1991, GEDIP aims to study the interactions of private international law and European law in the broad sense. It is a place for the exchange of information and ideas for scientific and academic purposes, bringing together a small number of colleagues, mainly from Universities in various Member States of the European Union. The Group, chaired by Catherine Kessedjian, holds an annual three-day meeting at the invitation of a member.

The new website, which is bilingual (English and French), provides for easier and more comprehensive access to information regarding the Group’s activities, namely the documents adopted by the Group over the years and the papers drafted by individual members in preparation of the meetings.

Searches within the Group’s rich collection can be made by meeting and by topic.

The new website, like the previous one, also includes a list of acts and conventions (or projects) related to the European Union which include provisions of private international law.

Droit de la défense - Enquête préliminaire - Preuve

Asociaţia "Forumul Judecătorilor Din România"
Adhésion de nouveaux Etats
La Cour de justice se prononce sur une série de réformes roumaines relatives à l’organisation judiciaire, au régime disciplinaire des magistrats ainsi qu’à la responsabilité patrimoniale de l’État et à la responsabilité personnelle des juges à la suite d’une erreur judiciaire

The latest issue of RabelsZ has just been published. It features the following articles:

Horst Eidenmüller: Recht und Ökonomik des Extremsport-Sponsorings in vergleichender Perspektive, Volume 85 (2021) / Issue 2, pp. 273-325 (53), DOI: 10.1628/rabelsz-2021-0002

The Law and Economics of Extreme Sports Sponsoring in Comparative Perspective. – This article investigates the law and economics of extreme sports sponsoring in a comparative perspective. It is based on 40 structured interviews with sponsored athletes from various common law and civil law jurisdictions. The article demonstrates that the current contracting practice is unbalanced and inefficient. It entices athletes to take unreasonably high risks. There are ways to significantly increase the cooperative surplus compared to the status quo. The article further demonstrates that sponsor firms face increased and mandatory duties of care towards young and/or inexperienced athletes. In particular, such athletes should not be influenced by bonus systems in their risk-taking behaviour. The duties of care of a sponsor under contract and/or tort law are also determined by the degree of control exercised by a sponsor and the economic dependence of the athlete on the sponsor. This allows creating a finely tuned regulatory system that, unlike the dichotomy of an independent contractor and dependent worker, is better able to do justice to individual cases.

Arnald J. Kanning: Unification of Commercial Contract Law: The Role of the Dominant Economy, Volume 85 (2021) / Issue 2, pp. 326-356 (31), DOI: 10.1628/rabelsz-2021-0003

This paper is about the unification of commercial contract law. Showing that the legal rules preferred by the “dominant economy” frequently end up in uniform commercial contract laws does not show that those legal rules are inherently superior to any other legal rules. It will be argued that approval of a uniform commercial contract law by the “dominant economy” is the environmental factor that is crucial to its ultimate success, independent of the innate quality of the legal rules preferred by the “dominant economy”. Within the conceptual framework of historical and comparative institutional analysis (HCIA), a study is offered of several well-known attempts to unify (and codify) divergent bodies of commercial contract law in the past two centuries. The argument is not so much that the American UCC Article 2 on Sales greatly influenced the CISG as that United States adoption of the CISG was crucial to its ultimate success, independent of the innate quality of the legal rules preferred by the United States.

Justus Meyer: Die praktische Bedeutung des UN-Kaufrechts in Deutschland, Volume 85 (2021) / Issue 2, pp. 357-401 (45), DOI: 10.1628/rabelsz-2021-0004

The Practical Significance of the CISG in Germany. – The UN Sales Law is in different respects a clear success: worldwide, reforms of contract law are oriented towards the CISG. In September 2020 Portugal became the 94th contracting state. The importance of international trade in goods is steadily increasing. However, there is still uncertainty about the acceptance of UN sales law by internationally operating companies and their legal advisors. The present study is based on a survey of 554 attorneys in Germany and compares the answers with results from 2004 as well as from Austria and Switzerland. According to this survey, the international sales contracts heard by courts and arbitrators are predominantly not subject to UN sales law and the proportion of those who regularly use a choice-of-law clause with CISG exclusion has even risen from 42.2 to 52.9 % since 2004. In Austria and Switzerland this proportion has also risen and is even higher than in Germany. Many lawyers are well aware of the advantages of a neutral legal regime. However, it seems to be easier for them to recommend choice-of-law clauses that exclusively invoke domestic law.

Krzysztof Riedl: Natural Obligations in Comparative Perspective, Volume 85 (2021) / Issue 2, pp. 402-433 (32), DOI: 10.1628/rabelsz-2021-0005

A natural obligation (obligatio naturalis) is a legal construction whose roots stretch back to Roman law. This common source means that we will find similar solutions in legal systems descended from Roman legal culture – with respect to both the understanding of natural obligations and specific instances where they arise. The aim of this paper is to answer the question of whether these different systems define natural obligations in the same manner or whether the natural obligations encountered in these systems are distinct legal institutions sharing only a common name. In this paper, the various approaches of contemporary legal systems to this issue are characterized. Then, a comparative-law analysis focuses on three fundamental aspects of natural obligations: their legal construction (definition), a catalogue of instances, and their legal effectiveness. Under the constructional perspective, two basic models of obligatio naturalis are distinguished and discussed – the obligative model and the causal model – and it is around these two models which the particular conceptions converge. The analysis presented in the paper demonstrates that the similarities between the various models outweigh the differences. This permits us to refer to obligatio naturalis as a universal legal construction.

Ludovic Pailler (University of Lyon 3)  has just published a monograph on respect for the Charter of Fundamental Rights of the European Union in the European judicial area in civil and commercial matters, based on his doctoral thesis: Le respect de la charte des droits fondamentaux de l’Union européenne dans l’espace judiciaire européen en matière civile et commerciale, Pedone, 2021.

The author has provided the following abstract in English:

When the Treaty of Lisbon gave the Charter of Fundamental Rights of the European Union its legally binding force, it gave rise, in article 67, paragraph 1, of the Treaty on the Functioning of the European Union, to a legal obligation to respect fundamental rights while building the Freedom, Security and Justice Area. As this legal obligation concerns all the rules of this space, it raises questions in the European Judicial Area in civil and commercial matter where rules coordinating national legal systems are partially resistant to the influence of fundamental rights. Polysemy of the notion of respect make it possible to consider different ways for the Charter and the European Judicial Area law to interact. If the hierarchical principle seems to be the most obvious way to ensure the respect of the Charter, it transpires to be inappropriate by itself and because of the specific context fort the application of the Charter commanded by the European Judicial Area. So, it would be more convenient to substitute the hierarchical principle with a more supple way of interaction, the combination, so as to conform the studied space to the article 67, paragraph 1, of the Treaty on the Functioning of the European Union.

More details are available here, including a foreword by Fabien Marchadier (University of Poitiers) and Eric Garaud (University of Limoges) and the table of contents (here).

 

Non lieu à renvoi

Décision n° 2021-906 QPC du 14/05/2021 [Non conformité totale]

On 12 May, 2021, Advocate General Hogan delivered his opinion in Case C‑124/20 Bank Melli Iran v. Telekom Deutschland GmbH on the interpretation of the EU blocking statute (Regulation 2271/96 of 22 November 1996 protecting against the effects of the extraterritorial application of legislation adopted by a third country).

The context of the case was the newly reinstated sanctions of the U.S. against Iran. The main issue raised in the case was that of the impact of Article 5 of the blocking statute on the right of EU businesses to terminate private contracts.

Article 5 reads:

No person referred to in Article 11 shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.

Persons may be authorised, in accordance with the procedures provided in Articles 7 and 8, to comply fully or partially (…).

Background

The German branch of Bank Melli Iran had entered into a framework contract with Telekom Deutschland GmbH which allowed Bank Melli to group all its company connections at various sites in Germany under one contract. In the context of this contractual relationship, Bank Melli ordered different services which formed the exclusive basis of its internal and external communication structures in Germany and were therefore indispensable to its business activities.

After the Trump administration decided that the U.S. would withdraw from the 2015 Joint Comprehensive Plan of Action aimed at controlling Iran’s nuclear programme and lifting economic sanctions against Iran, the U.S. reinstated sanctions against Iran in 2018.

In November 2018, ten days after the new U.S. sanctions entered into force, Telekom Deutschland GmbH terminated its contract with Bank Melli. It gave similar notice to four other German based entities with connections with Iran.

Bank Melli brought proceedings against Telekom Deutschland GmbH in a German court based on the infringement of the EU blocking statute and requesting performance of the contract.

Obligation to Give Reasons to Terminate Contracts

The most far reaching proposition of A.G. Hogan is to consider that the effet utile of Article 5 of the Blocking Statute requires a redistribution of the burden of proof. He opined that private parties terminating contracts in circumstances where they might be subject to foreign sanctions should have a duty to demonstrate that they did not do so because of the said sanctions.

Article 5 would therefore establish a duty to give the reasons for terminating the contract. Article 5 would also require that the reason be precise and objective, so that it could be verified that it was not to comply with the foreign sanction legislation.

AG Hogan explained:

89. (…) it (…) follows from the uncompromising terms of the first paragraph of Article 5 of the EU blocking statute that – in principle, at least – an undertaking seeking to terminate an otherwise valid contract with an Iranian entity subject to the US sanctions must demonstrate to the satisfaction of the referring court that it did not do so by reason of its desire to comply with those sanctions.

Should the CJEU follow A.G. Hogan, a first consequence would be that persons subject to the EU regulation could not rely on their freedom of terminate contracts without giving reasons under the law governing the contract. Article 5 of the blocking statute would establish an obligation to give a reason for terminating, or refusing to enter into, a contractual relationship with a person sanctioned by the relevant foreign legislation.

A second consequence would be that contractual clauses granting broad discretion to a contractual party to terminate the contract on vague regulatory grounds would be unenforceable. A.G. Hogan explained:

In particular, in my view, a person referred to in Article 11 of that statute should not be able to invoke a termination clause for force majeure to justify the termination of the contractual relationship without at least demonstrating that the event constituting force majeure is unrelated to the US sanctions legislation listed in the annex to that statute.

Sanctions: Punishing vs Redressing

Article 5 does not provide sanctions for the obligations that it establishes.

A.G. Hogan concluded that, in principle, it was for each Member State to lay down sanctions for infringements of the provision, and that their margin of discretion would be wide as far as punitive sanctions are concerned.

However, he opined that the margin of discretion of Member States would be very limited for civil sanctions, and that they would be bound to provide full effect to the provision by offering remedies which would put right-holders in the situation they would have been in in the absence of that unlawfulness.

108. Accordingly, I consider that, in the event of a breach of a provision prescribing a rule of conduct which must be complied with on a continuing basis (such as here), the national courts are required to order the infringer to put an end to the breach, on pain of a periodic penalty payment or other appropriate sanction, since only then can the continuing effects of the unlawfulness committed be brought to an end and compliance with EU law fully guaranteed.

Other Issues

The conclusions are long and address a number of other issues.

A.G. Hogan concluded by the following summary:

1) The first paragraph of Article 5 of Council Regulation (EC) No 2271/96 … is to be interpreted as not applying only where an administrative or judicial authority of a country whose laws and regulations are listed in the annex to that regulation has addressed, directly or indirectly, some instructions to a person referred to in Article 11 of that regulation. The prohibition contained in this provision accordingly applies even in the event that an operator complies with such legislation without first having been compelled by a foreign administrative or judicial agency to do so.

2) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as precluding an interpretation of national law under which a person referred to in Article 11 of that regulation may terminate a continuing contractual obligation with a contracting party named on the Specially Designated Nationals and Blocked Persons List held by the US Office of Foreign Assets Control, without ever having to justify its decision to terminate those contracts.

3) The first paragraph of Article 5 of Regulation No 2271/96 is to be interpreted as meaning that, in the event of a failure to comply with the provisions of that article, the national court seised by a contracting party subject to primary sanctions is required to order a person referred to in Article 11 of that regulation to maintain that contractual relationship, even though, first, the second paragraph of Article 5 should be interpreted restrictively, secondly, such an injunction measure is liable to infringe Article 16 of the Charter of Fundamental Rights of the European Union and, thirdly, such a person is therefore liable to be severely penalised by the authorities responsible for applying one of the laws referred to in the annex to that regulation.

Non lieu à envoi