Agrégateur de flux

As announced earlier on this blog, the Private International Law Interest Group of the Italian Society of International Law and EU Law organises a series of webinar titled Private International Law in Europe: Current Developments in Jurisprudence.

The webinar scheduled to take place on 19 February 2021 on State Immunity and Jurisdiction in Civil and Commercial Matters in Recent Court of Justice Rulings, with Alexander Layton and Lorenzo Schiano di Pepe has been rescheduled. It will take place on 1 March 2021, 4 to 6 PM (CET).

To attend the webinar, please write an e-mail to sidigdipp@gmail.com.

Written by Marcus Teo (Sheridan Fellow (Incoming), National University of Singapore)

The law in Singapore on Mareva injunctions supporting foreign proceedings is on the move again. The High Court’s recent decision in Allenger v Pelletier [2020] SGHC 279, issued barely a year after the Court of Appeal’s decision in Bi Xiaoqiong v China Medical Technologies [2019] 2 SLR 595; [2019] SGCA 50 (see previous post here) qualifies the latter, confounding Singapore’s position on this complex issue even further.

Pelletier sold shares to buyers in Florida while allegedly misrepresenting the company’s value. The buyers obtained arbitral awards against him, then obtained a bankruptcy order against him in the Cayman Islands. By this time, however, Pelletier had initiated several transfers, allegedly to dissipate his assets to Singapore among other jurisdictions. The buyers then initiated proceedings to clawback the transfers in the Cayman courts, and obtained a worldwide Mareva injunction there with permission to enforce overseas. Subsequently, the buyers instituted proceedings in Singapore against Pelletier in Singapore based on two causes of action – s 107(1) of the Cayman Bankruptcy Law (the “Cayman law claim”), and s 73B of Singapore’s Conveyancing and Law of Property Act (the “CLPA claim”) – and applied for a Mareva injunction to freeze his Singapore assets.

Senior Judge Andrew Ang acknowledged that “the Mareva injunction remains, at its very core, ancillary to a main substantive cause of action.” (Allenger, [125]). In doing so, he remained in step with Bi Xiaoqiong. Ang SJ eventually held that Mareva could be sustained based on the CLPA claim. However, he reasoned that the Cayman law claim could not; it is this latter point that is of relevance to us.

Ang SJ first held that the court had subject-matter jurisdiction over the Cayman law claim, because Singapore’s courts have unlimited subject-matter jurisdiction over any claim based on statute or common law, whether local or foreign. The statute that defined the court’s civil jurisdiction – Section 16(1) of the Supreme Court of Judicature Act (“SCJA”) – implicitly retained the position at common law, that the court possessed a generally “unlimited subject-matter jurisdiction”, while expressly defining only the court’s in personam jurisdiction over defendants ([45], [51]-[52]). The only limits on the court’s subject-matter jurisdiction, then, were those well-established in the common law, such as the Mozambique rule and the rule against the justiciability of foreign penal, revenue and public law claims ([54]). This was a conception of international jurisdiction organised primarily around control and consent rather than sufficient connections between causes of action and the forum, although Ang SJ’s recognition of the abovementioned common law exceptions suggests that a connection-based notion of jurisdiction may have a secondary role to play.

However, Ang SJ then held that the court could not issue a Mareva injunction against Pelletier, because, as all parties had accepted, Singapore was forum non conveniens. This is where the difficulty began, because the court’s reasoning here was anything but clear. At times, Ang SJ suggested that Singapore being forum non conveniens precluded the existence of the court’s jurisdiction over Pelletier; for instance, he dismissed the buyer’s arguments for a Mareva injunction based on the Cayman law claim on grounds that “Singapore court would first have to have in personam jurisdiction over a defendant before it could even grant a Mareva injunction” ([145]). At other times, however, Ang SJ suggested that Singapore being forum non conveniens only prevented the court from “exercising its jurisdiction” over Pelletier ([123], emphasis added). The former suggestion, however, would have been misplaced: as Ang SJ himself noted ([114]), Pelletier had voluntarily submitted to proceedings, which gave the court in personam jurisdiction over him. That Ang SJ would otherwise have refused the buyers leave to serve Pelletier should also have been irrelevant: Section 16(1) of the SCJA, mirroring the position at common law, gives Singapore’s courts “jurisdiction to hear and try any action in personam where (a) the defendant is served with a writ of summons or any other originating process … or (b) the defendant submits to the jurisdiction of the [court]” (emphasis added).

Ang SJ’s objection, then, must have been the latter: if a court will not to exercise its jurisdiction over a defendant, it should not issue a Mareva injunction against him. This conclusion, however, is surprising. Ang SJ considered himself bound to reach that conclusion because of the Court of Appeal’s holding in Bi Xiaoqiong that “the Singapore court cannot exercise any power to issue an injunction unless it has jurisdiction over a defendant” (Bi Xiaoqiong, [119]). Yet, this hardly supports Ang SJ’s reasoning, because Bi Xiaoqiong evidently concerned the existence of jurisdiction, not its exercise. There, the Court of Appeal simply adopted the majority’s position in Mercedes Benz v Leiduck [1996] 1 AC 284 that a court need only possess in personam jurisdiction over a defendant to issue Mareva injunctions against him. It was irrelevant that the court would not exercise that jurisdiction thereafter; even if the court stayed proceedings, it retained a “residual jurisdiction” over them, which sufficed to support a Mareva injunction against the defendant (Bi Xiaoqiong, [108]). Indeed, in Bi Xiaoqiong itself the court did not exercise its jurisdiction: jurisdiction existed by virtue of the defendant’s mere presence in Singapore, and the plaintiff itself applied to stay proceedings thereafter on grounds that Singapore was forum non conveniens (Bi Xiaoqiong, [16], [18])

Ang SJ’s decision in Allenger thus rests on a novel proposition: that while a defendant’s presence in Singapore can support a Mareva against him even when Singapore is forum non conveniens, his submission to proceedings in Singapore cannot unless Singapore is forum conveniens, though in both situations the court has in personam jurisdiction over him. Moreover, while Ang SJ’s decision may potentially have been justified on grounds that the second requirement for the issuance of Mareva injunctions in Bi Xiaoqiong – of a reasonable accrued cause of action in Singapore – was not met, his reasoning in Allenger, in particular the distinction he drew between presence and submission cases, was directed solely at the first requirement of in personam jurisdiction. On principle, however, that distinction is hard to defend: in both scenarios, the court’s jurisdiction over the defendant derives from some idea of consent or control, and not from some connection between the substantive cause of action and the forum. If like is to be treated alike, future courts may have to relook Ang SJ’s reasoning on this point.

What was most surprising about Allenger, however, was the fact that Ang SJ himself seemed displeased at the conclusion he believed himself bound to reach. In obiter, he criticised Bi Xiaoqiong as allowing the “‘exploitation’ of the principle of territoriality by perpetrators of international frauds” (Allenger, [151]), and suggested that Bi Xiaoqiong should be overturned either by Parliament or the Court of Appeal ([154]). In the process, he cited Lord Nicholls’ famous dissent in Leiduck, that Mareva injunctions should be conceptualised as supportive of the enforcement of judgments rather than ancillary to causes of action (Leiduck, 305). The tenor of Ang SJ’s statements thus suggests a preference that courts be allowed to issue free-standing Mareva injunctions against any defendant with “substantial assets in Singapore which the orders of the foreign court … cannot or will not reach” (Allenger, [151]). Whether the Court of Appeal will take up this suggestion, or even rectify the law after Allenger, is anyone’s guess at this point. What seems clear, at least, is that Singapore’s law on Mareva injunctions supporting foreign proceedings is far from settled.

La directive 2012/13/UE n’exige pas que les personnes visées par un mandat d’arrêt européen (MAE) aux fins de poursuites pénales soient informées des voies de recours ouvertes dans l’État d’émission, notamment pour contester la légalité de l’arrestation, et disposent de l’accès aux pièces du dossier avant la remise aux autorités de cet État.

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La Cour de cassation apporte un éclairage important quant à la mise en œuvre d’un mandat d’arrêt européen dont la contestation étend la procédure au-delà de la période de transition relative au retrait du Royaume-Uni hors de l’Union européenne.

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Union européenne - Urbanisme

Union européenne - Urbanisme

Union européenne - Urbanisme

The first issue of the Journal du droit international for 2021 has just been released. It contains two articles and several case notes relating to private international law. Both articles deal with the topical issue of corporate social responsibility.

In the first article, Bernard Teyssié (University of Paris II – Panthéon-Assas) discusses the legal scope of the OECD Guidelines for multinational enterprises (“Les principes directeurs de l’OCDE à l’intention des entreprises multinationales”)

The English abstract reads:

The OECD Guidelines for multinational enterprises carry rules of conduct which, on a literal reading, are not binding. The recommendations made are designed to identify, prevent, exclude or, at least, mitigate the negative impacts generated by the activity of multinational enterprises or their suppliers and subcontractors in the social and corporate social responsability area. However, the reach of these recommandations is increased by the obligation imposed on any State, which has acceded to the Guidelines, to establish a national Point of contact to deal with complaints alleging a breach of the laid down Principles. The role of these Points of contact in fact confers a binding effect upon the enacted rules, contrary to what it is officially declared.

In the second article, Catherine Kessedjian (University of Paris II – Panthéon-Assas) analyses the Hague Rules on Business and Human Rights Arbitration drawn up under the auspices of the Center for International Legal Cooperation (CILC) (“The Hague Rules on Business and Human Rights Arbitration ou comment l’arbitrage et la médiation peuvent renforcer le respect des droits de l’homme par les entreprises“).

The English abstract reads:

Many recognize that access to justice is the Achilles’ heel of corporate respect for human rights. This is why, at the end of 2019, a group of jurists from various backgrounds proposed a set of arbitration rules specific to this area, which mixes public and private interests. The exercise was not easy. The purpose of the article that follows is to evaluate these rules in the light of the particularities of the subject matter and the concrete findings that have been made thanks to the procedures conducted before national courts in a few countries, some of which are still ongoing. Certain points are identified that could justify amendments to the rules when and if a revision is initiated. 

A full table of contents can be downloaded here.

La décision de demande de renseignements visée à l’article 18, § 3, du Conseil du 16 décembre 2002 relatif à la mise en œuvre des règles de concurrence prévues aux articles 101 et 102 du TFUE peut être prise par la Commission postérieurement à la procédure de communication des griefs. Elle constitue un acte préparatoire à une éventuelle décision de constatation d’infraction et présente ensuite, pour ce qui concerne la disposition prévoyant une astreinte, un caractère provisoire supposant, afin que puisse être contesté son montant, une décision définitive de condamnation au paiement de cette astreinte.

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Preuve - Enregistrement

The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is currently recruiting new members for its team. Two fully-funded positions as Research Fellow (PhD candidate; m/f) for the Research Department of European and Comparative Procedural Law are currently open:

• Fixed-term contract for 2 years; contract extension is possible; 40 hrs/week; Luxembourg

Your tasks

The Research Fellow will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators.

The successful candidate will have the opportunity to contribute to the development of the Department of European and Comparative Procedural Law led by Prof. Dr. Dres h.c. Burkhard Hess and, in parallel, work on her/his PhD project. A supervision by Prof. Dr. Dres h.c. Hess of the successful candidate’s PhD thesis is also a possibility.

Your profile

Applicants shall have obtained at least a Master’s degree in Law with outstanding results: they must have ranked within the top 5-10 % of their class and shall have a deep knowledge of domestic and EU procedural law.

The successful candidate should demonstrate a great interest in academic research and have a high potential to develop excellence. Proficiency in English is compulsory (written and oral); further language skills (notably in French and German) are an advantage.

Documents required

A detailed CV comprising of a list of publications; copies of academic records; a PhD project description of no more than 1-2 pages with the name of the prospective PhD supervisor and the name of the institution awarding the PhD certificate; the name and contact details of two referees.

You may apply online until 28 February 2021.

Contact: recruitment@mpi.lu

The Max Planck Institute Luxembourg strives to ensure a workplace that embraces diversity and provides equal opportunities.

Réglementation - durée du travail

Impôts et taxes

Chambre de l'instruction

Douanes

Transaction

Those who combine my excitement of having professor McCorquodale contribute to the blog, with his enthusiasm at the end of his post, may find themselves in a perennial game of complimentary renvoi.

Robert, who represented interveners CORE in Okpabi v Shell (one-line summary in live tweeting here), signals the jurisdictional take-aways. The wider due diligence context of the case is considered by Ekaterina Aristova and Carlos Lopez here, Lucas Roorda signals ia the merits bar following the jurisdictional findings and Andrew Dickinson expressed his hope of an end to excessively lengthy jurisdictional proceedings here.

Okpabi v Shell: Judges’ Approach to Jurisdictional Issues is Crucial

In Okpabi v Shell [2021] UKSC 3, Nigerian farmers brought a claim against Shell’s parent company (RDS) and its Nigerian subsidiary (SPDC) for environmental and human rights impacts of oil pollution. The claim had been struck out at the initial state on the basis of lack of jurisdiction in relation to the actions of SPDC, and this decision had been upheld by the Court of Appeal.

The Supreme Court unanimously swept aside these decisions. It held that when considering issues of the court’s jurisdiction over such a claim, a court must start from the basis that the alleged facts of the claim are true and from there determine if the claim has a real prospect of success.  The defendant should not bring evidence of its own to dispute the alleged facts unless the facts are demonstrably untrue or unsupportable, as otherwise it risks showing that there is an issue to be tried.  If a judge engages with the evidence and makes findings on it in a summary judgment, the more likely it is that the decision to strike out will be overturned. Further, the Court considered that there was a danger of a court determining issues which arise in parent/subsidiary cases without sufficient disclosure of material documents in the hands of the defendants. Both courts below had acted incorrectly and conducted a “mini-trial”, and so the appeal by the claimants was successful.

The Court affirmed Vedanta that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that the Caparo test was inapplicable to these types of cases. The Court also clarified the scope of the duty of care by making clear that control is not determinative, it is the level of management involvement by the parent which is crucial. A parent company’s group-wide policies and standards were relevant in this respect. The Court, unfortunately, did not refer in its decision to any comparative law cases or international developments, even though these had been drawn to its attention.

This decision embeds the position that parent companies can have a duty of care towards those affected by a subsidiary’s actions, and that de facto management is a factor to consider. It examined the legal process by which courts consider these jurisdictional issues and made it much harder for a judge to strike out a case at the jurisdictional stage unless the facts on which the claim is based are demonstrably untrue or unsupportable. This could enable quicker proceedings towards the merits in these types of cases.

—Robert McCorquodale – it is my honour to contribute to this excellent blog.