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La résolution de Banca delle Marche par les autorités italiennes a été essentiellement déterminée par sa défaillance

In a series of posts published at the Kluwer Arbitration Blog, Gary Born argues that States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention.

At the invitation of the Editors of the EAPIL Blog, Trevor Hartley, Professor emeritus at the London School of Economics, replies.

Gary Born starts by saying that the 2005 Hague Choice-of-Court Convention gives choice-of-court agreements the same enforceability and effect as arbitration agreements. This, he argues, is wrong because, while the parties to an arbitration agreement can choose the individual arbitrators, the parties to a choice-of-court agreement can only choose the country, or the court, from which the judges will be drawn: they cannot choose the individual judges. The reason he finds this objectionable is that the judges in many countries are corrupt or incompetent. He cites various statistics to show this. He names a number of countries which he says are especially bad: Russia, China, Venezuela, Iran, the Congo and Nicaragua. However, none of these countries is a Party to the Hague Convention; so choice-of-court agreements designating their courts would not be covered.

There can be no doubt that corrupt, biased or incompetent judges do exist, as do corrupt, biased or incompetent arbitrators. However, even though the parties to a choice-of-court agreement cannot choose the individual judges who will hear their case, they can choose the country the courts of which will hear it. They can even choose the particular court: Article 3(a) of the Convention. And since there are many countries where the judges are not corrupt, biased or incompetent—several EU countries, as well as the United Kingdom, spring to mind—the parties can, if they choose, ensure that the judges hearing their case are unbiased, competent and impartial. If the parties insist on choosing the courts of a country where judicial corruption is a problem, they have only themselves to blame.

Moreover, it cannot be said that the Convention does not deal with this problem. Article 6(c) provides that the obligation of a court of a Contracting State other than that of the chosen court to suspend or dismiss proceedings covered by an exclusive choice-of-court agreement does not apply  if 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.’ While Article 9(e) provides that recognition and enforcement of  a judgment given by a court of a Contracting State designated in an exclusive choice-of-court agreement may be refused if it would be ‘manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State.’

Born tries to argue that the grounds for refusing to recognize a judgment under the Hague Convention are insufficient compared with those applicable to arbitration awards under the New York Convention. Little would be gained by a detailed analysis of the two sets of provisions. However, it can be said that the grounds in the Hague Convention are wide ranging—Article 9 has seven paragraphs, each setting out a different ground—and they provide ample opportunities for any court willing to use them to refuse recognition. The same courts will decide on recognition of judgments under the Hague Convention as on the recognition of arbitration awards under the New York Convention. There is no reason to believe that they will be less willing to refuse recognition in the former case than in the latter. In any event, if parties think that their rights will be better protected under an arbitration agreement than under a choice-of-court agreement, there is nothing to stop them from opting for the former. To deprive them of that choice by denouncing the Hague Convention would not enhance party autonomy: it would seriously limit it.

It should finally be said that the provisions on recognition and enforcement in the Hague Convention are very similar to those of the Brussels Regulation and the common law. The Brussels Regulation, rather than the New York Convention, was in fact the model for the Hague Convention. The most important difference between the two is that the grounds for non-recognition are considerably more extensive under the Hague Convention than under the Brussels Regulation. Both the Brussels Regulation and the common law seem to have operated satisfactorily for many years now.

Au cœur d’une controverse sur le (dys)fonctionnement du guichet unique, la Cour de justice de l’Union européenne réaffirme la répartition des compétences entre les autorités chef de file et concernées prévue par le RGPD. L’obligation de coopération loyale appliquée à l’exercice de leurs pouvoirs doit cependant éviter qu’une interprétation trop littérale du texte ne permette d’en trahir l’esprit.

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The ERC Building EU Civil Justice team in Rotterdam is running a series of seminars, covering a variety of topics in the field of European civil justice and international litigation.

On Thursday 1 July, 16-18 hrs CET, the webinar is dedicated to the topic Representing Future Generations: Private Law aspects of Climate Change Litigation. Speakers are Chantal Mak, Geert Van Calster and Sanne Biesmans, and the panel is moderated by Jos Hoevenaars. They will address the relationship between climate litigation, fundamental rights and the role of European judges; private international law aspects of climate litigation and strategic aspects; and liability aspects of climate litigation and implications of the recent Dutch Shell judgment (see our earlier blogpost).

Participation is free of charge. You can register here at Eventbrite.

The two remaining sessions of the series are dedicated to:

• The Arbitralization of Courts – Friday, 2 July (09:30-11:30 CET), with Georgia Antonopoulou and Masood Ahmed as speakers and moderated by Xandra Kramer (register)

• European Civil Justice in Transition: Past, Present & Future – Thursday 15 July  (15.30-17.30 CET) with Alan Uzelac, Burkhard Hess, John Sorabji and Eva Storskrubb, moderated by Alexandre Biard and Xandra Kramer (register)

Cour d'appel, 4 mai 2018

Tribunal d'instance de Melun, 4 avril 2019

Professions médicales et paramédicales

Protection de l'environnement

This post was written by Edyta Figura-Góralczyk, University of Economics in Kraków (Poland).

On 17 June 2021 the Court of Justice of the EU pronounced a judgment in case C‑800/19 Mittelbayerischer Verlag KG v. SM. At the time of writing this post, the text of the judgment was available only in Polish and French.

The preliminary question originates from a Court of Appeal in Warsaw and concerns jurisdictional rules for online infringements of personality rights according to Article 7(2) of the Brussels I bis Regulation. The opinion in this case was prepared by AG Bobek.

Comments concerning this judgments have already been posted by Tobias Lutzi and Geert van Calster. The case was also discussed on this blog by Marta Requejo Isidro.

Background

The plaintiff (SM) based the lawsuit on Polish material law – Article 23 and 24 of Polish Civil Code. The broad understanding of personality rights under those articles of Polish law causes qualification of the national identity and national dignity to be protected by such rights.

SM is a Polish national, lives in Poland and is a former prisoner of Auschwitz extermination camp during World War II. The online article was published by Mittelbayerischer Verlag KG, having the title: “Ein Kämpfer und sein zweites Leben” (The Warrior and His Second Life) in Germany on the website that was accessible in Poland. This article presented in German language the pre- and post-war life of Israel Offman, a Jew who survived the Holocaust. The online article included the statement  that Israel Offman’s sister ‘was murdered in the Polish extermination camp Treblinka [(im polnischen Vernichtungslager Treblinka ermordet worden war)]’ instead of informing that she ‘was murdered in Nazi German extermination camp Treblinka’. SM belongs to group of former prisoners of Nazi German extermination camps. SM claims that the words ‘Polish extermination camp Treblinka’ that were used in online article instead of ‘Nazi German extermination camp’  infringed national identity and dignity of SM what according to Polish material law causes the infringement of personality rights.

Polish courts have already issued judgments in similar cases without having doubts about the basis for jurisdiction (here and here). However this time Court of Appeal in Warsaw raised the question, if Polish courts have jurisdiction in such cases on the basis of Article 7 (2) Brussels I bis Regulation.

Limits to ‘Centre of Life Interests’ – Article 7(2) of the Brussels I bis Regulation

The CJEU ruled in this case that Article 7(2) of the Brussels I bis Regulation:

should be interpreted in this way that the court in which jurisdiction is the centre of life interests of the person alleging infringement of its personality rights by the content published on the website, has jurisdiction to hear – with regard to all harm suffered and damages suffered – an action for damages brought by that person, only if the content contains objective and possible elements to be verified allowing for the direct or indirect individual identification of that person.

As already mentioned above, the case concerns the jurisdiction of the court of Member State based on ‘centre of life interests’ of the person that personality rights were infringed by the online publication (Article 7(2) of the Brussels I bis Regulation).

The CJEU already ruled the similar case – in eDate judgment and confirmed this judgment in Bolagsupplysningen. However, the specificity of the case C-800/19 is that the plaintiff (SM) is not addressed in person (name or surname) in the online article. On the contrary, in this case the plaintiff belongs to the group addressed in the article (the group of prisoners of Nazi German extermination camps). SM also has habitual residence in Poland. SM filed the lawsuit with claims that are ‘indivisible’ (e.g. the claim for publishing apology of the plaintiff for the false statement). In order to judge such claims the Polish court should have the jurisdiction based on the ‘centre of life interests’ according to Article 7 (2) Brussels I bis Regulation as it was introduced in eDate case.

According to the opinion of AG Bobek, the jurisdiction of the  courts in such cases based on the ‘centre of life interests’ doesn’t require that the allegedly harmful online content names a particular person.  However there should occur a close connection between that court and the action at issue, thus ensuring the sound administration of justice. On the contrary the Commission argued, in essence, that a person whose personal rights, according to its claim, would be infringed, should be able to bring an action before the court having jurisdiction in the centre of life interests, if this person was mentioned by name in the publication in question.

Moreover AG Bobek has proposed after AG Cruz Villalón in eDate opinion, the  proportionality test that should clarify the jurisdiction in online infringements of personality rights.

The ‘centre of gravity’ test [should] to be composed of two cumulative elements, one focusing on the claimant and the other on the nature of the information at issue. The courts of a Member State would have jurisdiction only if that were the place of the claimant’s centre of interests and if ‘the information at issue [was] expressed in such a way that it may reasonably be predicted that that information is objectively relevant in [that Member State]’. (para 64 of AG Bobek opinion).

As a result of this test AG Bobek arrives at the following assessment:

indeed [it is] difficult to suggest that it would have been wholly unforeseeable to a publisher in Germany, posting online the phrase ‘the Polish extermination camp of Treblinka’, that somebody in Poland could take issues with such a statement. It was thus perhaps not inconceivable that ‘the place where the damage occurred’ as a result of that statement could be located within that territory, especially in view of the fact that that statement was published in a language that is widely understood beyond its national territory. Within that logic, while it is ultimately for the national court to examine all those issues, it is difficult to see how jurisdiction under Article 7(2) of Regulation No 1215/2012 could be axiomatically excluded. (para. 74 of AG Bobek opinion)

However CJEU in the discussed judgment didn’t follow the proposed centre of gravity test. The Court stated that the sound administration of justice requires such interpretation of basis of jurisdiction in Article 7(2) Brussels I bis Regulation that the centre of life interests is located in the country foreseeable for the defendant. This requires the clarification of the previous judgments of CJEU (e.g. eDate).

The CJEU introduced this clarification in such a way that the connection of the plaintiff with the alleged online material should be based on objective and verifiable elements that allow the person to be identified, directly or indirectly, individually. The CJEU stated in the analysed case that SM (plaintiff) was clearly not directly or indirectly identified individually in the content published on the Mittelbayerischer Verlag website. The plaintiff bases the claim of an infringement of its personal rights due to the fact that SM belongs to the Polish nation and was the prisoner of extermination camp. The CJEU states that in such a situation, there is no particularly close connection between the court in which area of jurisdiction lies the centre of the life interests of the person claiming infringement of the personality rights and the dispute in question (para 45). Therefore, that court does not have jurisdiction to hear all ‘indivisible’  dispute claims on the basis of Article 7(2) Brussels I bis Regulation.

Assessment

The CJEU limited the interpretation of ‘centre of life interests’ in Article 7(2) of the Brussels I bis Regulation by invoking that the online content should contain objective and possible elements to be verified allowing for the direct or indirect individual identification of the person infringed.  However the CJEU didn’t limit the possibility to sue on the basis of jurisdiction from Article 7(2) in case of claims that may be ‘divided’ between the territories of the counties (mosaic principle) – e.g. the claim for compensation.

Generally, this judgment is a step forward to clarification of the broad basis for jurisdiction of ‘centre of life interests’ in case of online personality rights infringements. However the CJEU didn’t conduct the overall analysis but pronounced the sentence of the judgment based on the specificity of the analysed case.

The future will show how this criteria (the online content should contain objective and possible elements to be verified allowing for the direct or indirect individual identification of the person infringed) is to be applied further (e.g. in the pending Gtflix case).