Agrégateur de flux

Pourvoi c/ décision de la Cour d'appel de Paris du 23 novembre 2020

Opposition à la décision de non-admission pourvoi du 20 novembre 2020

Tribunal judiciaire de Lyon, 14 février 2020

Pourvoi c/ Cour d'appel d'Aix-en-Provence, 18 juin 2020

Pourvoi c/ Cour d'assises du Haut-Rhin, 3 juillet 2020

Pourvoi c/ déc. CA de Paris du 15 juin 2020

Pourvoi c/ déc. CA de Rennes du 22 octobre 2020

Pourvoi c/ déc. CA de Paris du 15 juin 2020

Pourvoi c/ déc. CA de Cayenne du 17 juillet 2020

Pourvoi c/ déc. CA d'Aix-en-Provence, du 8 janvier 2021

Motacus Constructions Ltd v Paolo Castelli SpA [2021] EWHC 356 (TCC)  to my knowledge is the first case post-Brexit that shows how a jurisdictional discussion that might have been settled swiftly under Brussels Ia, leads to a lot more chewing over under 2005 Hague Convention (on choice of court) principles. It may not be ‘important‘ in terms of its impact on authority (this is a first instance judgment; and it may be overly enthusiastic in engaging with the issues) yet it nevertheless is a good illustration of what was left behind.

The Private International Law (Implementation of Agreements) Act 2020 has given the 2005 Convention force of law in the UK.

The ‘Governing Law & Dispute Resolution’ clause (clause 19) of a contract between contractor and subcontractor re a London hotel provided ‘This Agreement shall be governed by and construed in accordance with the laws of Italy’ and for all disputes to ‘submitted to the exclusive jurisdiction of the Courts of Paris, France’. A payment issue ensued and the contractor started classic English construction sector adjudication proceedings despite the aforementioned clause: the Housing Grants, Construction and Regeneration Act 1996 is overriding mandatory law /loi de police /loi d’application immédiate in England and Wales [3]. To address cash flow problems in the construction industry, and the shortcomings of the traditional litigation process in serving the needs of the construction industry, Parliament decided there should be a short-form process of adjudication producing binding, and readily enforceable, decisions [25].

The UK has not made a reservation under Hague 2005 viz contracts in the construction sector  [18] (compare the EU’s reservation viz insurance contracts).

Sub-contractor actively took part, yet declined to make the necessary payment which the adjudicator’s decision had instructed. Adjudication enforcement proceedings were started on 12 January 2021. Sub-contractor challenged the enforcement proceedings, arguing the proceedings could only be commenced in Paris under the choice of court.

Claimant’s case is that the High Court should accept jurisdiction and enforce the adjudicator’s decision, notwithstanding the exclusive jurisdiction clause, in light of the provisions in either A6(c) or A7 Hague 2005. It submits that it would be manifestly contrary to the public policy enshrined in the 1996 Act, or alternatively it would be manifestly unjust, to refuse to enforce an otherwise enforceable adjudicator’s decision in reliance on clause 19 of the contract. In any event, it is argued, the enforcement of an adjudicator’s decision is the enforcement of an interim measure of protection. It falls outside the scope of Hague 2005 and so the defendant cannot rely on its provisions.

A6(c) Hague 2005 provides that a court of a contracting state (in this case the UK) other than that of the chosen court (in this case Paris, France), “… shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless – (c) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised. 

A7 provides that: “Interim measures of protection are not governed by [the Hague] Convention. [That] Convention neither requires nor precludes the grant, refusal or termination of interim measures of protection by a court of a Contracting State and does not affect whether or not a party may request or a court should grant, refuse or terminate such measures.”

Spiliada, Fiona Trust, The Eleftharia etc. are all discussed in what looks like a bonfire of the CJEU authorities. The impact of Italian law as lex contractus, for the construction of the choice of court clause (under BIa this would have to be French law) is also signalled, but not entertained for this is an application for summary judgment in which, in the absence of proof of Italian law, its contents are presumed to be the same as English law [51].

Hodge J at 54 declines the suggestion of A6(c) ordre public. ‘Manifest’ requires a high burden of proof, no reservation has been made and there is no good reason why the parties should not be held to the bargain that they freely made when they incorporated clause 19 into their construction contract.

At 56 ff however claimant’s arguments on interim measures having been carved out, does lead to success: it is held that an application for summary judgment to enforce an adjudicator’s decision is an interim measure of protection within A7 Hague 2005. ‘The concept extends to any decision that is not a final and conclusive decision on the substantive merits of the case…The function of the adjudicator’s decision is to protect the position of the successful party on an interim basis pending the final resolution of the parties’ dispute through the normal court processes (or by arbitration).’ [57] The summary judgment application before the High Court has that same DNA: ‘What is before this court is not the underlying dispute between these parties but whether an interim procedure and remedy have been followed and granted.’

Interesting. Geert.

And so it has started
Whether choice of EN Court ousted by Paris exclusive jurisdiction clause – Housing Grants, Construction, Regeneration Act 1996
Held: A7 2005 Hague Convention @HCCH_TheHague engaged, interim measures exception
BIa assessment would have been much more succinct https://t.co/FctAia7bqF

— Geert Van Calster (@GAVClaw) February 22, 2021

The Journal for European, Private International and Comparative Law (Zeitschrift für Europarecht, Internationales Privatrecht und Rechtsvergleichung – ZfRV) just released its latest issue. It includes two interesting articles.

The first, published in English and authored by Leszek Bosek and Grzegorz Żmij, is titled “On the CETA’s compatibility with European Union law in light of Opinion No 1/17 of the Court of Justice of 30 April 2019” (ZfRV 2020, p. 248). The summary reads:

The CJEU’s opinion No 1/17 regarding the CETA’s compatibility with European Union law is an important document demonstrating the evolution of the Court’s position when faced with the challenges of the world’s economic globalisation and the effect of various factors related to it on its case law. In our view, the Court of Justice has not sufficiently explained why it has departed from the principal determinations laid down in its Opinions Nos 2/13 and 1/09 and the Court’s judgement in the Achmea case, which were demonstrably in accordance with the line of the Court’s case law consistently defined by its subsequent judgements to date, demarcating in a clear way the fundamental constitutional principles of EU legal and judicial order. In particular, it is hard to accept as satisfactory its contention that the CETA tribunals will not apply or interpret the EU’s or Member States’ law, requiring a uniform interpretation in accordance with the rules laid down in Article 267 of the TFEU, which does not agree with observations from the international investment arbitration practice. The solutions adopted in the CETA seem to be pragmatic, but may raise doubts from the point of view of Article 19 of the TEU and Article 47 of the Charter of Fundamental Rights, and the corresponding guarantees in the constitutions of Member States. Those issues have not been sufficiently tackled by the Court of Justice.

The second article, published in German by Caroline Kohlhaupt, deals with the change of the Consumer Rights Directive’s substantive scope of application through the Omnibus Directive (“Die Änderung des sachlichen Anwendungsbereichs der Verbraucherrechte-RL 2011/83/EU durch die Omnibus-RL (EU) 2019/2161”, ZfRV 2020, p. 276). The summary reads:

The Directive (EU) 2019/2161 brings various amendments to the Consumer Rights Directive 2011/83/EU. When it comes to the material scope of Directive 2011/83/EU, especially the following clarification is substantial: The Directive shall – in principle – also apply where the trader supplies or undertakes to supply digital content which is not supplied on a tangible medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data to the trader.

The post below was written by Serena Forlati, Professor of International Law at the University of Ferrara. It follows a post by Andrew Dickinson which opened an on-line symposium devoted to the fate of the 1968 Brussels Convention. One more contribution will be published on this blog in the coming days.

The symposium follows a lively exchange prompted by a post by Matthias Lehmann (Brexit and the Brussels Convention: It’s All Over Now, Baby Blue?), which attracted comments by Eduardo Álvarez-Armas, Apostolos Anthimos, Gilles Cuniberti, Burkhard Hess, Costanza Honorati, Alex Layton, François Mailhé and Fabrizio Marongiu Buonaiuti.

Readers are encouraged to share their comments to the contributions. Those wishing to submit a full contribution to the on-line symposium are invited to get in touch with Pietro Franzina at pietro.franzina@unicatt.it.

Matthias Lehmann’s post on the possibility to ‘revive’ the Brussels Convention in the relationship between the United Kingdom and EU Member States, and the discussion it triggered, raise a number of interesting issues of both private and public international law.

I intend to offer a few reflections from the latter perspective, and more specifically from the standpoint of the international law of treaties. While termination of the Brussels Convention is regulated by customary international law (see Article 4 of the Vienna Convention on the Law of Treaties of 1969), I will refer to the rules enshrined in the Vienna Convention since the grounds of termination it sets forth largely codify custom (see notably the ICJ Judgment in Gabčíkovo/Nagymaros, paras 46, 99-100, and here also for further references).

Whether the Brexit could revive the Brussels Convention in the relations between the United Kingdom and the EU Member States was already discussed in this blog (see here and here). I tend to rule out such possibility, for the reasons set out by Andrew Dickinson and Burkhard Hess. The picture would however be clearer if one could argue that, before Brexit, the Brussels Convention was no longer applicable as regards Aruba and relevant French overseas territories – as the revival of a treaty that was already completely terminated (cf Article 59 VCLT) would be difficult to conceive. An aspect worth raising in this regard (and I thank Pietro Franzina for pointing it out to me) concerns the impact of the Lugano Convention 2007 on the applicability of the Brussels Convention to such territories. Notably Article 69(7) of the 2007 Lugano Convention stipulates:

Insofar as the relations between the Member States of the European Community and the non-European territories referred to in Article 70(1)(b) are concerned, this Convention shall replace the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968 … as of the date of the entry into force of this Convention with respect to these territories in accordance with Article 73(2).

In discussing this text, the Pocar Explanatory Report (para. 186) characterized the continuing applicability of the Brussels Convention to non-European territories as a ‘problem’ which the 2007 Convention ‘supplied an opportunity to resolve’, thus indicating that a complete termination of the Brussels Convention would be advisable. Still, Article 69(7) did not automatically achieve this result: the Lugano Convention could actually replace of the older instrument only upon completion of the simplified accession procedure under Article 70(1)(b) on behalf of those non-European territories ‘that are part of the territory of [a] Member State or for whose external relations [a] Member State is responsible’. This does not seem to be the case.

More specifically, the French Parliament has authorized the accession to the Lugano Convention on behalf of overseas territories to which the Brussels Convention applies through law No. 2019-983 of 26 September 2019 (see here, and here for the explanatory report); however, apparently the French Government did not follow suit, as no notification of accession is mentioned to date in the repository of the Swiss Government, as depositary of the Lugano Convention; nor is there any record of similar steps being taken by the Netherlands on behalf of Aruba (see here). Article 69(7) of the Lugano Convention and the implementing practice would thus seem to offer no conclusive indication ruling out a revival of the Brussels Convention.

Assuming, for the sake of argument, that the Brussels Convention still regulates the relationship between the UK and the EU, and should the EU challenge the United Kingdom’s claim that it does not apply in its regard, which options would the United Kingdom have under the international law of treaties to terminate a treaty relationship that it deems no longer to meet its interests? None of the grounds of termination discussed in the previous posts would seem to be fully adequate for the purpose.

Firstly, as regards termination on grounds of breach, Matthias Lehmann rightly questions whether the repeal of implementing legislation would as such qualify as a ‘material breach’ of the Brussels Convention. Although this is not straightforward, the repeal, taken together with the notification to the European Council of 29 January 2021, could amount to a ‘repudiation’ of the treaty (see Article 60, para 3(a) VCLT); this notion is understood as ‘encompass[ing] all means by which a party intends to relieve itself from its obligations under a treaty’  (cf here B. Simma, C. Tams, ‘Article 60’, para 16), and this is clearly the intention of the United Kingdom. However, under the rule reflected in Article 60(2)(a) VCLT the United Kingdom’s non-performance could be invoked as a ground for termination only by all the other Parties to the Brussels Convention acting together – most likely through the EU Institutions, in light of the EU’s acquired exclusive external competence in the issue. Should such a consensus exist, it would be much more practical to express it right away – even if only implicitly by accepting the UK’s request to accede to the Lugano Convention, in line with the approach of the other contracting Parties to the latter instrument (see here and here). The possibility for ‘specially affected States’ to individually suspend the Brussels Convention (Article 60(2)(b) VCLT) would seem to raise further difficulties also in light of the EU’s exclusive competence in the matter.

Whether the United Kingdom could invoke a fundamental change of circumstances is also doubtful in my view. I agree that the ‘subjective’ requirement set forth by Article 62 VCLT is met in this case, since membership in the European Union was ‘an essential basis of the consent’ of the United Kingdom to be bound by the Brussels Convention.  However, as Matthias Lehmann notes in his reply of 17 February 2021, it is by no means certain that a renewed application of that instrument would ‘radically […] transform the extent of obligations still to be performed under the treaty’ (Article 62(1)(b) VCLT).

The United Kingdom may be on safer ground in invoking Article 56 of the Vienna Convention, whose paragraph 1 stipulates: ‘A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless: (a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or (b) a right of denunciation or withdrawal may be implied by the nature of the treaty’. Arguably the presumption against withdrawal enshrined in Article 56 can be rebutted in the case of the Brussels Convention (and of the 1978 Luxembourg Convention) by relying on either the intention of the parties or the nature of the treaty in question.

The scope of these exceptions is admittedly ambiguous, and the burden of proving that the situation falls under their scope would fall upon the United Kingdom (see here  T. Giegerich on Article 56, p. 1048, margin note 24). Notably the exception linked to the ‘nature’ of a treaty was the object of much controversy during the negotiations. According to the International Law Commission’s Special Rapporteur Waldock, the category would include ‘commercial and trading’ treaties, that seem much closer to the Brussels Convention than the examples of treaties which in his view ‘shall continue in force indefinitely’, listing treaties establishing boundaries and territorial regimes, treaties of peace, treaties concerning the final settlement of international disputes and multilateral treaties codifying general international law (see under Article 17 in his Second Report on the Law of Treaties, p. 64; on practice subsequent to the adoption of the Vienna Convention see however T. Christakis’ comment to Article 56, para 59).

A further indication as to the possibility to withdraw unilaterally from the Brussels Convention could come from ‘the intention of the parties’, under Article 56(1)(a) VCLT. The silence of the Brussels Convention could arguably be read in light of its nature as an instrument of EC Law, that others have highlighted in this discussion; this would militate in favour of a possibility for the United Kingdom to withdraw unilaterally once its membership in the EU has ceased, without necessarily meeting the requirements for termination in light of a fundamental change of circumstances. Nonetheless, a clear stance by the EU in this respect would be welcome in the interest legal certainty and of the stability of future relations.

Commission / Hongrie
Espace de liberté, sécurité et justice
Selon l’avocat général Rantos, en sanctionnant pénalement l’activité d’organisation visant à permettre l’ouverture d’une procédure de protection internationale par des personnes ne remplissant pas les critères nationaux d’octroi de cette protection, la Hongrie a manqué à ses obligations découlant du droit de l’Union

ClientEarth / Commission
Recherche, informations, éducation, statistiques
Selon l’avocate générale Kokott, il convient d’annuler la décision de la Commission par laquelle celle-ci refuse de réexaminer l’autorisation du plastifiant DEHP [phtalate de bis (2-éthylhexyle)]

WABE
SOPO
Selon l’avocat général Rantos, un employeur peut autoriser, dans le cadre de sa politique de neutralité, le port, par ses employés, de signes religieux de petite taille