Agrégateur de flux

Presse - Jugements et arrêts

OHB System / Commission
Marché publics
Le président du Tribunal rejette la demande de sursis à l’exécution des décisions de l’Agence spatiale européenne, agissant au nom et pour le compte de la Commission européenne, comportant l’exclusion de la société allemande OHB System du marché public pour la « Fourniture de satellites de transition Galileo »

The second 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 issues.

In the first article, Mathieu Guerriaud and Clotilde Jourdain-Fortier (University of Burgundy Franche-Comté, CREDIMI) discuss, from a political perspective, the legal regime of the international contracts for the procurement of Covid-19 vaccines concluded by the European Union (“L’accès au vaccin contre la Covid-19 : le contrat international peut-il suffire ?“). 

The English abstract reads:

The European Union has opted for centralized negotiation to ensure the supply of Covid-19 vaccines to its Member States. To this end, several international contracts have been concluded by the European Commission with pharmaceutical companies. In principle, those contracts are covered by confidentiality, but three of them were published following a dispute over the interpretation of the obligations of one of those companies. Analysis of those contracts indicates that they are advance purchase agreement, which may fall under the Vienna Convention on the International Sale of Goods, and raise issues of interpretation as to the nature of the obligation to manufacture and deliver the vaccine doses. Is it an obligation of result, as the Commission seems to assert, or an obligation of means on the part of laboratories ? The “best reasonable efforts” clauses are particularly difficult to interpret here, especially as part of contracts characterized by an obligation of cooperation between the parties and in a European context of pharmaceutical deindustrialization. In the face of supply difficulties in the execution of those contracts, contractualization shows its limits and some believe that a more radical solution could be envisaged, that of infringing the industrial property rights of the laboratory. To this end, several weapons available to the public authorities are examined here. Some of them, like the ex officio license or the compulsory license, are moderately prejudicial to the rights of the patentee, while others are much bolder and more damaging for the manufacturer, like the expropriation of the patent, the requisition or even the nationalization. In all cases, the question of sovereignty and the pharmaceutical industrial apparatus arises, and it is on this point that decision-makers will have to work for the next decades to come, because medicines, and vaccines in particular, have become diplomatic weapons.

In the second article, Mauricio Almeida Prado (Arbitrator, PhD, University of Paris X) addresses the important issue of incorrect awards in international commercial arbitration (“Réflexions sur les sentences incorrectes au fond dans l’arbitrage commercial international“). 

The English abstract reads:

Awards that incorrectly decide the merits of a dispute are regrettable events in the practice of international commercial arbitration.

As a voluntary mechanism, trust in its ability to promote legal certainty and provide technically correct decisions is at the heart of its choice as a method of dispute resolution. Consequently, the recurrence of incorrect awards as to the merits has negative effects on the arbitral system because it threatens its credibility.

The article is based on three main ideas. First : it is important to define what is meant by an incorrect sentence as to its merits and, above all, not to confound it with divergent sentences, but technically correct. Second, it addresses the most common reasons that lead to errors in arbitral awards. Third : few proposals are presented to improve the organization of evidence production and the quality of the decision-making process by the arbitral tribunals.

A full table of contents can be downloaded here.

Pourvoi c. déc. cour d'appel de Metz du 22 mars 2021

Pourvoi c. déc. cour d'appel d'Aix-en-Provence du 16 novembre 2020

Pourvoi c. déc. Cour d'appel de Papeete du 10 décembre 2020

Pourvoi c. déc. cour d'appel de Versailles du 12 février 2021

Tobias Lutzi (University of Cologne) and Ennio Piovesani (University of Turin) have taken over the responsibility of chairing the EAPIL Young Research Network from Tamás Szabados (ELTE Eötvös Loránd University). They are joining Martina Melcher (University of Graz), who founded the Network in 2019 together with Susanne Gössl (University of Kiel).

The Young Research Network aims to facilitate academic exchange between junior faculty members working on questions of private international law across Europe and to further comparative research through international cooperation. It became part of the EAPIL in 2020 as an official ‘activity’ of the Association.

Since its creation, the Network has successfully completed two research projects, further information on which can be found here.

Together with Dora Zgrabljić Rotar (University of Zaghreb), Tobias and Ennio are currently working on a third research project, that is going to focus on the national rules on jurisdiction in civil and commercial matters over non-EU defendants, in light of the report envisioned in Article 79 Brussels I bis Regulation.

The Young Research Network can be contacted via e-mail at youngresearch@eapil.org.

Pourvoi c. déc. cour d'appel de Paris du 4 novembre 2020

Tribunal de police de Limoges, 24 février 2021

Pourvoi c. déc. Cour d'appel de Besançon du 6 octobre 2020

Tribunal judiciaire de Thionville, 22 mars 2021

Cour d'appel de Paris, 19 mars 2021

Pourvoi c. déc. cour d'appel de Paris du 18 septembre 2020

Pourvoi c. déc. Cour d'appel de Poitiers du 9 décembre 2020

Pourvoi c. déc. Cour d'appel d'Aix-en-Provence du 3 février 2021

Pourvoi c. déc. cour d'appel de Paris du 15 décembre 2020

Pourvoi c. déc. Cour d'appel de Montpellier du 6 janvier 2021

The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on 27 May 2021 at 1 pm (Mexico City time – CDT), 8 pm (CEST time). The topic of the webinar is the 25th anniversary of the Mexican Journal of Private International Law, a contribution to the national doctrine (in Spanish). Among the speakers are: Alejandro Ogarrio Ramírez-España, Carlos Novoa Mandujano, Jorge Alberto Silva Silva, José Carlos Fernández Rozas, Eduardo Picand Albónico and Leonel Pereznieto Castro.

This journal may be accessed by clicking here.

The details of the webinar are:

Link:  https://us02web.zoom.us/j/89448167313?pwd=Vi81L2tVZTJRa2NPVzVQQlFrRTNuUT09

Meeting ID: 894 4816 7313

Password: BMAAMEDIP

Participation is free of charge.

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

The author of this post is Simon Laimer of the University of Linz.

By a ruling of 10 December 2020, the Austrian Supreme Court addressed a case relating to a statement of fault in respect of divorce, i.e. a statement that one spouse is to blame for the breakdown of marriage (the ruling’s reference is 3 Ob 58/20f). The case raised the question of whether, for the purposes of determining the applicable law, the matter ought to be characterised as a matter relating to divorce, or rather as a matter relating to maintenance. Under Austrian law, one key implication of fault is that the ex spouse who is found to be at fault is basically not entitled to maintenance.

Background

The plaintiff sought a declaration that the defendant was solely to blame for the breakdown of the marriage, which had previously resulted in a final divorce decree by the Tribunal of Brussels. The defendant objected inter alia that the Belgian divorce decree could not be supplemented by a declaration of fault. The court of first instance dismissed the action (on the grounds of equal fault). The Court of Appeal amended the decision to find that the defendant was predominantly at fault.

The generally accepted view in Austrian case law (see here) and doctrine (cf. Nademleinsky/Weitzenböck in Schwimann/Kodek, ABGB, 5th ed. [2019] § 61 EheG N° 21; Koch in Koziol/Bydlinski/Bollenberger, ABGB, 6th ed., [2020] § 61 EheG N° 4) is that even if a foreign court has terminated the marriage on the basis of a provision of a foreign legal system without a finding of fault (here, Belgian divorce law, which abandoned the principle of fault in 2007), the interested spouse may still seek a statement of fault as provided for under Section 61(3) of the Austrian Marriage Act.

Judgment

The Austrian Supreme Court upheld the extraordinary appeal. It observed that an action to supplement a divorce decree by a statement of fault does deal with the question of fault for the breakdown of marriage, but it does so for the purposes of determining the implications of divorce as regards maintenance. Consequently, there is only a need to supplement a foreign divorce decree with an award of fault if the post-marital maintenance is governed by a substantive law whereby the enforceability of a maintenance claim depends on whether the opposing ex spouse is predominantly at fault for the breakdown of the marriage, or not.

Article 1(2)(g) of the Rome III Regulation on the law applicable to divorce and legal separation expressly excludes from its scope maintenance obligations. Therefore, although the supplementary action complements the divorce proceedings with regard to the question of fault, its only objective is to make a separate decision on a (preliminary) question relevant to the maintenance claims. It follows that the applicable substantive law is rather to be determined in accordance with the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.

Pursuant to Article 3(1) of the Hague Protocol, maintenance is governed, as a rule, by the law of the State in which the maintenance creditor has his habitual residence, which in the specific case leads to the application of Austrian law. An exception applies if one of the parties objects and claims that there is a “closer connection of the marriage to another State”. As this had not yet been discussed with the parties, the decisions of the lower instances had to be set aside to supplement the proceedings. The court of first instance will therefore have to give the parties the opportunity to state their position on the matter.