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Bank Melli Iran
Libre circulation des capitaux
Avocat général Hogan : les entreprises iraniennes peuvent invoquer le droit de l’Union bloquant les sanctions secondaires américaines devant les juridictions des États membres

Commission / Grèce
Aide d'État
La Grèce a manqué à ses obligations en s’abstenant de récupérer des aides illégales versées aux agriculteurs grecs en compensation de mauvaises conditions climatiques

Bundesrepublik Deutschland (Notice rouge d’Interpol)
Principes du droit communautaire
Le principe interdisant le cumul des poursuites peut s’opposer à l’arrestation, dans l’espace Schengen et dans l’Union européenne, d’une personne visée par un signalement Interpol

Electronic commerce: past, present and future

The UNCITRAL National Coordination Committee for Australia (UNCCA) invites you to attend its Seventh Annual May Seminar, to be held online as a webinar. This year we celebrate the 25th anniversary of the UNCITRAL Model Law on Electronic Commerce 1996, and the 20th Anniversary of the UNCITRAL Model Law on Electronic Signatures 2001.

Both of these Model Laws and the subsequent United Nations Convention on Electronic Communications in International Contracts 2005 have had a profound effect on the regulation of electronic commerce globally. In Australia, all of these developments have been incorporated in the Electronic Transactions Acts passed by the Commonwealth and all States and Territories. During 2020 the relevance of these enactments came to the fore as a result of the COVID pandemic.

In this live, interactive webinar, expert commentators from UNCITRAL and Australia will review the history of these developments in ecommerce, the current state of the law, as well as issues that are being considered for future work nationally and globally.

For more information, see here.

This post was contributed by Dr Nicolas Kyriakides, who is a practising lawyer in Cyprus and an Adjunct Faculty at the University of Nicosia, and Ms Yomna Zentani (LLM, Cantab – Cambridge Trust scholar), who is a future Trainee Solicitor at Clifford Chance LLP.

On 21 April 2021, the English High examined the interplay between the Brussels Recast Regulation (BRR) and the principle of ‘modified universalism’ in international insolvency proceedings in WWRT Ltd v Tyshchenko & Anor ([2021] EWHC 939 (Ch)). It particularly addressed whether proceedings can be stayed on the grounds of modified universalism, despite jurisdiction having been established by Article 4 of the BRR (see also the previous report of G. van Calster).

Background

The claimant, WWRT, brought proceedings against the defendants, Mr Serhiy Tyshchenko and his ex-wife Mrs Olena Tyschchenko on the grounds that they had both carried out extensive fraud on the Ukrainian Bank, JSC Fortuna Bank which was owned by Mr Tyschenko between the years 2011 and 2014. The fraud consisted of the granting of numerous loans to companies with limited commercial activity who had no intention of repaying these loans. This then led to the bank declaring insolvency and being liquidated by which a package of assets consisting of also the disputed loans, was sold to Star Investment One LLC, a Ukrainian Company. The package, along with the rights to them were sold to WWRT in March 2020. WWRT argued that it had now acquired the rights to bring the claim relied upon in the present proceedings and obtained ex parte a worldwide freezing order. Mr and Mrs Tyschenko were both served in England within the court’s jurisdiction.

One of the main arguments centred around Mr Tyschenko’s objection to the court’s jurisdiction. He argued that WWRT’s claims should be stayed under common law so as to prevent WWRT from circumventing the Ukrainian insolvency proceedings opened on 9 December. He submitted that under Ukrainian law, claims such as the one contested in this case should only be adjudicated within the proceedings opened in December and thus must be stayed on the principle of “modified universalism.” The discussion surrounding this principle is of particular interest in this case.

Modified Universalism and Owusu

As potentially one of the final cases concerning the Brussels Regulation in England and Wales, we are reminded of the importance of the CJEU judgment in the case of Owusu v Jackson which set out that a finding of jurisdiction under Article 4 would exclude any challenge on forum non conveniens grounds.

Mr Tyschenko was found to be domiciled in England for the purposes of Article 4, however, a further argument was advanced on whether the court may stay these proceedings on the principle of modified universalism. Whilst accepting that Article 4 jurisdiction could not be challenged, a further argument was made by Mr Tyschenko’s legal representation, stating that the court in Owusu did not address the question of whether “…a domestic court could nevertheless stay its proceedings in favour of insolvency proceedings that had already commenced in another Member State.” He went on to state (at [52]) that the principle at work in such a case was not one of forum non conveniens but rather the common law principle of modified universalism, which carries with it the requirement to provide assistance to foreign insolvency proceedings. As stated by Lord Sumption in Singularis Holdings v PriceWaterhouseCoopers [2015], the principle is founded on

the public interest in the ability of foreign courts exercising insolvency jurisdiction in the place of the company’s incorporation to conduct an orderly winding up of its affairs on a worldwide basis, notwithstanding the territorial limits of their jurisdiction.

It was undisputed that a stay on this principle is conceptually different from a stay on forum non conveniens grounds. However, the question that the court had to address was whether this particular distinction could allow the present situation to be distinguished from the rule set out in Owusu and thus allowing a stay of proceedings, despite jurisdiction being founded on Article 4 (formerly Article 2 when Owusu was decided). In other words, whether the particular nature of insolvency proceedings require a different approach to the rule.

The decision on Owusu was reached out of respect for the principle of legal certainty, which the BRR (formerly the Brussels Convention) was built upon and the mandatory nature of Article 4. Allowing a deviation of this rule on the basis of forum non conveniens would have greatly undermined the predictability of the rules of jurisdiction as laid down by the Convention.

Further, insolvency proceedings and their peculiarities were taken out of the scope of the BRR altogether and reflected in other legislation, namely the Recast Insolvency Regulation and the UNICTRAL Model Law on cross-border insolvency. As such, the court reaffirmed the significance of Article 4 and held that a stay could not be granted on the basis of modified universalism. The court subsequently upheld the worldwide freezing injunction.

Analogous Application of Article 34 BRR?

In the alternative, the defendant suggested that a stay could be granted by the reflexive or analogous application of Article 34 of the BRR. This Article provides that:

1. Where jurisdiction is based on Article 4 … and an action is pending before a court of a third State at the time when a court in a Member State is seized of an action which is related to the action in the court of the third State, the court of the Member State may stay the proceedings if:

(a)  it is expedient to hear and determine the related actions together to avoid the risk of irreconcilable judgments resulting from separate proceedings;

(b)  it is expected that the court of the third State will give a judgment capable of recognition and, where applicable, of enforcement in that Member State; and

(c)  the court of the Member State is satisfied that a stay is necessary for the proper administration of justice.

The defendant accepted that “[…] the bankruptcy exclusion in Article 1 of the BRR precludes the express application of Article 34 if the pending action in the third State is in the nature of bankruptcy or insolvency proceedings.” However, he nevertheless contented that the Article could be applied by analogy to this case similarly to how Article 28 of the Lugano Convention was applied by analogy or reflexively to pending proceedings in JSC, Commercial Bank v Kolomoisky [2019] EWCA Civ 1708 §§159-181.

However, the court was not satisfied that the present proceedings were in anyway related to the pending insolvency proceedings in Ukraine (those opened on the 9th of December), to the effect that they would create a risk of irreconcilable judgments. Distinguishing Kolomoisky, the court stated that Article 28 was only given reflexive or analogous effect to the pending proceedings in Ukraine in that particular case in order to “[…] address the problem of the lacuna that would otherwise have arisen from the fact that Article 28 expressly applies only to related actions pending in the courts of different States bound by the Convention.” (at [91])

The reflexive application in Kolomoisky would not subvert the objectives of the Convention but would further its purposes by achieving legal certainty and ensuring that the risk of inconsistent judgments is avoided.

In the current case, the court held that the problem that was trying to be avoided in Kolomoisky when applying Article 28 reflexively, did not arise in this instance. This is because Article 34 of the BRR now specifically addresses proceedings in third States. The defendant’s argument thus attempted to advance a different proposition, distinct from what was advanced in Kolomoisky. The court held that the defendant’s apparent extension of Article 34, namely that it should be applied to proceedings which the defendant accepts as expressly excluded from the scope of the BRR, is not a proper one. The court continued that even in the event Article 34 could be applied by analogy or reflexively, it was not satisfied that the pending insolvency proceedings in Kyiv were related to the extent that they could create a risk of irreconcilable judgments.

Consequently, the proceedings were not stayed on the basis of this argument and the court subsequently upheld the worldwide freezing injunction.

Peines correctionnelles

Peines correctionnelles

Droit de la défense - Instruction - Majeur protégé - Garde à vue

Peines

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 13 May 2021 at 5:00 pm (Mexico City time – CDT), 12:00 am (CEST time). The topic of the webinar is International Judicial Co-operation in Times of Pandemic and will be presented by Professor Carlos Echegaray de Maussion (in Spanish).

The details of the webinar are:

Link: https://us02web.zoom.us/j/87893740067?pwd=L0w4cThOVkFzQ04rZUZvT0lnNGpHZz09

Meeting ID: 878 9374 0067

Password: BMAAMEDIP

Participation is free of charge.

This event will also be streamed live: https://www.facebook.com/AmedipMX

 

 

As reported by Pietro Franzina last January, the Standing International Forum of Commercial Courts (SIFoCC), which brings together the commercial courts of several countries across the world, launched the second edition of its Multilateral Memorandum on Enforcement of Commercial Judgments for Money.  Last April, SIFoCC’s Second International Working Group, co-chaired by Sir William Blair and Judge François Ancel, has produced a Commentary to accompany the Multilateral Memorandum setting out an understanding of the procedures for the enforcement of a money judgment by the courts of one jurisdiction obtained in the courts of another jurisdiction, written by judiciaries from across the world.

The Multilateral Memorandum with the commentary is available here. The non-binding character of the Memorandum is highlighted from the outset; so is its purpose , which does not intend to “signal” the enforceability of the judgments of commercial courts, but to explain to how the courts which have contributed to the Memorandum approach requests for the enforcement of judgments of other courts. In turn, the commentary added to the second edition does not purport to state common principles arising form the contributions (see the statement in para. 31, “this seems unnecessary now that the Hague Conference has concluded its work on the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters”); it rather describes common themes that arise from the contributions, identifying significant differences of approach and indicating how far the contributions appear to show a tendency towards convergence.

An interesting reading by all means.

The Hague Conference Experts’ Group on the electronic Apostille Programme (e-APP) and New Technologies met last week (3 to 6 May 2021). The Group endorsed key principles and good practices for Contracting Parties in the implementation of the e-APP. They may be found in Annex 1 to the Report from the Chair on the Experts’ Group on the e-APP and New Technologies, made available today at https://assets.hcch.net/docs/b94fadf7-ba82-42d9-bdbb-f8088b040273.pdf

In February 2021, the European Commission launched a study to assess the need for more effective legal protection of vulnerable adults within the European Union. As part of this study, a survey has now been published online for all legal practitioners working in the area: judges, lawyers, notaries, and other relevant authorities. Input from practitioners will be important in shaping any future legislative initiative.

The survey is open until 4 June 2021 and available at the following link: https://ec.europa.eu/eusurvey/runner/vulnerable_adults_practitioners.

Although the survey is in English, respondents are welcome to submit responses in any of the official EU languages.

For more information, see the survey link above or for more specific questions contact the project team at: < crossborder.adults@milieu.be >.

On 12 April 2021, the Family Court of Namur, Belgium, applied the doctrine of renvoi under Article 34 of the Succession Regulation (the judgment and the commentary of Prof. Jean-Louis Van Boxstael – in French – are available here).

Background

The deceased was born in 1931 in Belgium, but was living in South Korea when he died in 2019. He held both Belgian and Korean nationalities. In 2001, the deceased wrote a will in which he declared that a (Belgian?) foundation would receive all his assets after his death. The plaintiff owned a building in Belgium and had monies on bank accounts. It does not seem that he had children.

The Belgian court was petitioned by the foundation in 2021.

Judgment

The court found that the deceased was resident in Korea. It retained jurisdiction, however, under Article 10(1) of the Succession Regulation, which provides that where the deceased was not habitually resident in a Member State, jurisdiction can be founded on the nationality of the deceased.

The court found that the deceased being a Belgian national, the court could retain jurisdiction.

Under Article 21 of the Succession Regulation, the applicable law should be, in principle, the law of the last habitual residence of the deceased. The court found that it was Korea. However, it noted that, under Art. 49 of the Korean Conflict of Laws Act, a Korean court would apply the law of the nationality of the deceased.

The deceased, however, was a dual national. The Belgian court referred to Art. 3(2) of the Belgian Code of Private International Law which provides that, in case of dual nationality, Belgian nationality prevails. It thus considered that the deceased was a Belgian national, and that Belgian law was applicable by renvoi from Korean law.

Assessment

The most interesting issue raised by the case was that of handling the dual nationality of the deceased.

For jurisdiction purposes, Art. 10 provides:

1.   Where the habitual residence of the deceased at the time of death is not located in a Member State, the courts of a Member State in which assets of the estate are located shall nevertheless have jurisdiction to rule on the succession as a whole in so far as: (a) the deceased had the nationality of that Member State at the time of death…

The rule does not refer to the “nationality of the deceased” in general. It refers to a person who has the nationality of a particular Member State. This resolves the issue of dual nationality where one of the nationalities is that of a third state. A rule of the forum provides taking into account the nationality of the relevant Member State. This implicitly excludes taking into account the nationality of the third state, or whether it might be more effective.

For choice of law purposes, Art. 34 provides:

1.   The application of the law of any third State specified by this Regulation shall mean the application of the rules of law in force in that State, including its rules of private international law in so far as those rules make a renvoi: (a) to the law of a Member State

The rule does not address the issue of dual nationality. It only provides to apply foreign choice of law rules if they refer to the law of a Member State.

So, the critical question is to determine the content of the foreign choice of law rule and ascertain whether the foreign rule designates the law of a Member State. It is therefore for the foreign legal system to say how it addresses dual nationality. If, under foreign private international law, local nationality prevails, this means that the foreign choice of law rule does not designate the law of a Member State.

In this case, the Belgian court should have wondered whether a Korean court would prefer Belgian nationality over Korean nationality. Instead, the Belgian court applied Belgian principles.

Maybe the Belgian court should have read the entirety of the Korean Conflict of Laws Act, a translation of which is freely available on the internet. Article 3 of the Act provides:

(1) In case the law of nationality of a party shall govern, if the party has two or more nationalities, the law of the country, which is most closely connected with the party, shall be the law of nationality: if one of the nationalities is the Republic of Korea, then the law of the Republic of Korea shall be the law of nationality…

So it seems that a Korean court would not have applied Belgian law: it would have applied Korean law. The Belgian court rewrote Korean private international law and invented a renvoi which did not exist.

Dans un avis du 28 avril rendu dans le cadre du « printemps de l’évaluation » mené par la commission des finances de l’Assemblée nationale, la Défenseure des droits s’est penché sur la question des moyens consacrés par les préfectures à l’instruction des demandes de titres de séjour : module de prise de rendez-vous en ligne et plateforme dématérialisée pour accomplir les démarches administratives. 

en lire plus

Le volet procédural de l’article 3 de la Convention européenne des droits de l’homme serait violé si le requérant, dont le statut de réfugié a été révoqué, était renvoyé dans son pays d’origine sans une appréciation préalable, tenant compte de sa qualité de réfugié, de la réalité et de l’actualité du risque qu’il allègue encourir en cas de mise à exécution de la mesure d’expulsion. 

en lire plus

In collaboration with the University of Heidelberg, the Charles University of Prague and the University of Warsaw, the University of Milan is conducting the project ‘From Diversities to Unity through Coordination (EU-DUC)’ within the framework of the 1st Call for joint educational proposal promoted by the 4EU+ European University Alliance.

In this context, from 16 to 18 June 2021, the University of Milan will host the Overcoming Challenges, Addressing Conflicts, Settling Disputes Summer School on EU Business Law. The Summer School is open to students of 4EU+ universities, and it is envisioned to take place in a hybrid (online/in person) mode.

Students can register, from 15 April until 16 May 2021, on Eventbrite. With their registration, they must submit to Prof. Francesca C. Villata (euduc@unimi.it) their CV and a letter of motivation, indicating the order of preference between the 5 interactive modules offered with the Summer School.

More information on the 4EU+ European University Alliance and the Summer School’s Programme are available here.