Agrégateur de flux

The COVID-19 Pandemic has impacted on commercial dispute resolution in China, Singapore and Australia. The important question is whether these impacts will be transformed into legal doctrines and shape the development of law for commercial dispute resolution in the long term.

Experienced panellists will consider how Covid-19 has promoted online trials in China, influenced forum non conveniens and other aspects of international commercial litigation in the Singapore courts, and challenged service of process outside Australia and other private-international-law related issues.

In 2021, besides this panel discussion, the Centre for Asian and Pacific Law (CAPLUS) at the Sydney Law School will organize a series of events on the (post)development of Covid-19 in the Asia-Pacific region focusing on social justice, civil rights and religion, and trade and investment legal issues.

Moderator:

Professor Vivienne Bath’s teaching and research interests are in international business and economic law, private international law and Chinese law. Professor Bath has extensive professional experience in Sydney, New York and Hong Kong, specialising in international commercial law, with a focus on foreign investment and commercial transactions in China and the Asian region.

Panellists:

Dr. Wenliang Zhang is an Associate Professor at Renmin University of China Law School. He has been teaching and doing research in the field of international disputes resolution, with a focus on international jurisdiction and global judgments recognition. His works appear in peer-reviewed international journals including Vanderbilt Journal of Transnational Law, Journal of International Dispute Settlement, Yearbook of Private International Law and Chinese Journal of International Law.

Dr. Adeline Chong is an Associate Professor at the School of Law, Singapore Management University. She has published in leading peer-reviewed journals such as the LQR, ICLQ, LMCLQ and JPIL. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the Singapore and New Zealand High Courts, the UK Law Commission, as well as in leading texts on conflict of laws. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Dr. Jie (Jeanne) Huang is an Associate Professor at the Sydney Law School. She teaches and researches in the fields of private international law and digital trade. She has published four books and authored many articles in peer-reviewed law journals, such as Journal of Private International Law and Journal of International Economic Law. She is the Deputy Director of CAPLUS. She also serves as an Arbitrator at the Hong Kong International Arbitration Center, Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Center), Nanjing Arbitration Commission and Xi’an Arbitration Commission. She has also appeared as an expert witness for issues of Chinese law and private international law at the courts in Australia and the US.

Webinar via Zoom, Friday 12 March, 1pm AEST.

Once registered, you will receive Zoom details closer to the date of the webinar.

CPD Points: 1

Registration: https://law-events.sydney.edu.au/talkevents/aftermath-of-pandemic

New publication 25% off discount offer:

New Frontiers in Asia-Pacific International Arbitration and Dispute Resolution

Edited by Luke Nottage, Shahla Ali, Bruno Jetin & Nubomichi Teramura

Discount 25% by applying Code 25NEWF21

 

Le Conseil d’État précise que les obligations de déclaration préalable au détachement de salariés européens s’appliquent à tout détachement effectif réalisé à compter du 1er mai 2015.

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You are kindly invited for the conference on “Regional Migration Governance: Soft Law and the Diffusion of Policies on Integration and Inclusion (Focus on South America Regionalism)” by Dr. Verónica Ruiz Abou-Nigm (senior Lecturer in Private International Law at Edinburgh Law School and the principal investigator of the GCRF funded project Migration in Latin America (MiLA)) on March 9, 2021, Tuesday between 12.30-13.30 (GMT+3). The conference is organised by Bilkent University as a part of the Talks on Migration Series within the Jean Monnet Module on European and International Migration Law. It will be held via zoom, free of charge. Please contact us (Jmmigration@bilkent.edu.tr) for participation.

 

Malgré les contraintes inédites liées à la situation pandémique, la Cour de justice de l’Union européenne a assuré en 2020 un niveau d’activité élevé

On 17 September 2020 the Court of Justice of the EU issued a judgement in the case of WV v Landkreis Harburg (C-540/19) concerning the interpretation of the jurisdictional rules of the EU Maintenance Regulation, in particular its Article 3(b). An opinion in this case was prepared by AG Sánchez-Bardona.

Factual Background

WV’s mother lived in a residential care home for the elderly in Germany. In accordance with § 1601 of the German Bürgerliches Gesetzbuch, WV, the son, was required to provide maintenance to his mother. However, he failed to do so. As the mother did not have adequate means to cover expenses, she received, under the German Sozialgesetzbuch, social assistance from a public body – the Landkreis Harburg. Pursuant to § 94(1) Sozialgesetzbuch, maintenance claims are by way of statutory subrogation transferred to the public body providing social assistance. Relying on this provision, the Landkreis Harburg lodged an application with the Amtsgericht Köln (Germany) claiming from WV the payment of maintenance arrears and regular maintenance for the future.

WV submitted that German courts lack jurisdiction. The lower instance court shared this view, noting that, according to Article 3(b) of the Maintenance Regulation, jurisdiction lies with the court for the place where the creditor is habitually resident. At the same time the concept of “creditor” is defined in Article 2(1)(10) of this Regulation as meaning “any individual to whom maintenance is owed or is alleged to be owed”. Hence, only the creditor personally can make use of the ground listed in Article 3(b). The dispute reached the Bundesgerichtshof, which referred a preliminary question to the CJEU.

Previous Jurisprudence of the CJEU

As reminded in the opinion and in the judgement, the Brussels Convention and Brussels I Regulation included jurisdictional rules for maintenance claims (until Maintenance Regulation has started to be applied on 18 June 2011). Pursuant to these rules, jurisdiction lies with the courts of the defendant’s domicile (based on general rule – Article 2 Convention; Article 4 Regulation) and with the courts for the place where the maintenance creditor is domiciled or habitually resident (Article (5)(2) of both acts).

The CJEU ruled on the interpretation of Article (5)(2) of the Convention in Blijdenstein (C- 433/01), a case similar, as to its factual background, to the one considered in Landkreis Harburg. The Court stated in Blijdenstein that Article 5(2)

cannot be relied on by a public body which seeks, in an action for recovery, reimbursement of sums paid under public law by way of an education grant to a maintenance creditor, to whose rights it is subrogated against the maintenance debtor.

The CJEU explained on that occasion that the general principle is that the courts of the State in which the defendant is domiciled are to have jurisdiction “and that rules of jurisdiction which derogate from this general principle cannot give rise to an interpretation going beyond the cases expressly envisaged.” (24)

The “derogation provided for in Article 5(2) of the Convention is intended to offer the maintenance applicant, who is regarded as the weaker party in such proceedings, an alternative basis of jurisdiction (…) that specific objective had to prevail over the objective of the rule contained in the first paragraph of Article 2 of the Convention, which is to protect the defendant as the party who, being the person sued, is generally in a weaker position.” (29).

Then, it submitted that “a public body which brings an action for recovery against a maintenance debtor is not in an inferior position with regard to the latter. Moreover, the maintenance creditor, whose maintenance has been covered by the payments of the public body, is no longer in a precarious financial position.” (30) Additionally, “the courts of the defendant are better placed to determine the latter’s resources.” (31)

AG’s Opinion Arguing the Need to Depart from Blijdenstein

The AG’s Opinion submitted numerous reasons for which the CJEU should depart from Blijdenstein. The AG underlined the differences between Brussels Convention and Maintenance Regulation, analyzed the CJUE’s “new” jurisprudence relating to the latter (namely: Sanders and Huber, C-400/13; V, C-499/15; R, C-468/18), in particular as regards the regulation’s overarching principles, like protection of maintenance creditors or the effective recovery of maintenance claims in cross-border situations. Additionally, with reference to the Hague Protocol on the law applicable to maintenance obligations, the advantages of the coincidence between ius and forum were sketched.

Departure from Blijdenstein and its Justification

The CJEU shared the views of the AG and departed from Blijdenstein jurisprudence. In practical terms, it means that public bodies like Landkreis Harburg might file claims against maintenance debtors at the place of maintenance creditor’s habitual residence, which in most instances would coincide with their own.

The CJEU underlined that Article 3 of the Maintenance Regulation:

contains neither a general principle, such as jurisdiction of the court for the defendant’s domicile, nor derogating rules which would have to be interpreted strictly (…) but rather a number of criteria which are equal and alternative (…). (29)

and

does not specify that the claim must be brought by the maintenance creditor himself or herself before the courts identified in paragraphs (a) and (b) [and therefore does not] preclude a claim relating to a maintenance obligation from being brought by a public body, to which the claims of that creditor have been transferred by way of statutory subrogation, before one or the other of those courts. (31)

Consistent with the opinion, the CJEU also pointed to the fact that the Maintenance Regulation, as opposed to Brussels Convention and the Brussels I Regulation, does apply no matter domicile or habitual residence of the defendant. Hence:

refusing to allow a public body subrogated to the claims of a creditor to bring an action before the courts where that creditor is habitually resident in circumstances where the maintenance debtor is domiciled in a third State is most likely tantamount to requiring that public body to bring its action outside the European Union. (35)

This would result in legal and practical difficulties, which go against the objective of the effective recovery of maintenance claims.

The CJEU convincingly added that:

The transfer of the maintenance creditor’s claims to such a public body impairs neither the interests of the maintenance debtor nor the predictability of the applicable rules of jurisdiction; that debtor must, in any event, expect to be sued either before the court for the place where he or she is habitually resident or before the courts for the place where that creditor is habitually resident. (38)

The CJEU also referred to Hague Protocol, underling that its Article 10 provides that the right of a public body to seek reimbursement of a benefit provided to the creditor in place of maintenance is governed by the law to which that body is subject. This:

ensures, in the vast majority of cases – which are those in which the seat of the public body and the habitual residence of the creditor are in the same Member State – a parallel between the rules on jurisdiction and those concerning the applicable substantive law. (43)

Euro Box Promotion e.a.
Droit institutionnel
Selon l’avocat général Bobek, les décisions d’une Cour constitutionnelle constatant l’illégalité de la composition de formations d’une juridiction suprême en raison de la violation du droit à un tribunal indépendant et impartial et constatant l’inconstitutionnalité de mesures de surveillance technique exécutées par des services de renseignement nationaux dans une procédure pénale sont compatibles avec le droit de l’Union

Commission / Fútbol Club Barcelona
Aide d'État
La Cour annule l’arrêt du Tribunal par lequel la décision de la Commission qualifiant d’aide d’État le régime fiscal de quatre clubs de football professionnel espagnols avait été annulée

According to a press release of the Spanish Constitutional Court, on 23 February 2021 the Plenary has partially ruled in favor of the Government of Catalonia (the Generalidad de Cataluña/Generalitat de Catalunya) and, consequently, declared unconstitutional part of the provisions of the Spanish Regulation on International Adoption approved by Royal Decree 165/2019 of 22 March 2019, implementing Law 54/2007 of 28 December 2007 on International Adoption.

Before the Constitutional Court, the Generalidad claimed that the Regulation infringed its statutory powers in the field of social services and the protection of minors. The Court has ruled that the State has indeed encroached on the powers of the Autonomous Communities in that field, in its international dimension. The reason is that the Regulation goes too much into the detail of the legal status of ‘accredited bodies’ and has entirely centralised, without recourse to cooperation mechanisms, a number of executive tasks such as the recognition, suspension and revocation of the accreditation of intermediary bodies, as well as the monitoring and control of the activity and some tasks related to the national registering of accredited bodies.

On the other hand, according to the Court, the State, in so far as it has jurisdiction over international relations, may conclude bilateral agreements to promote reciprocal relations with other States; establish the list of countries excluded from the regime of international adoption due to war, disaster and other serious reasons; and suspend as a precautionary measure adoptions in progress for these reasons.

Similarly, the State may entrust executive tasks corresponding to the regional institutions to a Sector  Conference such as the Delegate Committee on Social Services, composed of representatives of all the autonomous communities and cities. The Committee decides by consensus and, failing that, by majority, on the maximum number of international adoption files to be dealt with each year in relation to each country, and on their distribution between the Autonomous Communities and the accredited bodies. It also decides on the approval of the basic model contract for international adoptions.

In order to protect the best interests of minors, and having in mind as well the rights of the adopters, the effect of the judgement has been put off for one year from its publication. In this way, an immediate legislative vacuum adversely affecting minors -in particular those involved in international adoption proceedings initiated prior to the decision- is prevented. Additionally, the declarations of unconstitutionality and nullity contained in the decision ‘shall not affect consolidated legal situations such as those established by final administrative measures, or those which have been decided by a judgment having the force of res judicata’.

The ruling is accompanied by a dissenting vote from two Justices. In their view, the application should have been dismissed in its entirety since the Generalidad does not have the competence it claims – hence there is no possible trespassing on the side of the State. According to the magistrates, the Generalidad has no power to intervene in the extra-judicial phase of an international adoption taking place abroad. By contrast, it has competence for the protection of children who are in distress or at risk ; however, neither minors in other Autonomous Communities nor those in another State fall under its scope, even if they may be adopted by Catalans. The principle of territoriality makes it impossible to acknowledge Catalonia’s competence to protect minors residing abroad. Furthermore, adoptable minors abroad are not in a situation of risk or distress, since they reside in institutions who look after them.

All in all, a complicated political setting. Difficult to assess whether, in practice, it works in favor or against the main stakeholders : the children, the adopters, the families.

La Cour de cassation confirme que la persistance d’une relation adultère durable et suivie pendant le mariage est susceptible de faire échec à l’acquisition de la nationalité française. 

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A la suite de blessures subies par deux jeunes hommes au cours de leur interpellation et de leur garde vue à Paris, la Cour européenne des droits de l’homme conclut, à l’unanimité, à la non-violation par la France de l’article 3 de la Convention, tant d’un point de vue procédural que d’un point de vue matériel.

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Today (3 March 2021) Israel signed the HCCH Convention of 30 June 2005 on Choice of Court Agreements (2005 Choice of Court Convention) and the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 Judgments Convention). The HCCH news item is available here.

It should be noted that in order to consent to be bound by the treaties, Israel would need to deposit an instrument of ratification, acceptance or approval under each instrument. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The 2005 Choice of Court Convention has currently 32 Contracting Parties. The act of signing does not make Israel a “Contracting Party” (yet) but it is definitely a good step forward and an excellent sign of the relevance of the Convention today.

The 2019 Judgments Convention is not yet in force. In accordance with its article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently three signatory States: Israel, Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the 2019 Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

 

 

Agressions sexuelles

Peines - Libération conditionnelle

Charlemagne Dagbedji (University of Corsica) organises a webinar (in French) titled “Effective Recognition of Non-Judicial Divorce” (L’efficacité internationale du divorce sans juge).

The webinar aims at assessing the international legal acquis on non-judicial divorce, with a special focus on the means to ensure its cross-border recognition. It requires to analyse private international law rules but also to adopt a comparative law approach and a practical perspective.

It will take place on 25 March 2021, 2 to 4 PM (CET).

The speakers are André Giudicelli (University of Corsica), Alex Tani (University of Corsica), Alain Devers (University of Lyon 3 & Lawyer at the Lyon Bar), Charlemagne Dagbedji (University of Corsica) and Sonia Ben Hadj Yahia (University of Corsica).

Program and registration here.

There is a benefit to the pace of work becoming so hectic that I cannot post on CJEU case-law swiftly: others have analysis to which I can refer. In the case of CJEU C-804/19 BU v Markt24 GmbH, Anna Wysocka-Bar has posted analysis this morning (Opinion Saugmandsgaard Øe here).

BU whose place of residence is at Salzburg (Austria) signed an employment contract for carrying out cleaning work in Munich (Germany) for Markt24 GmbH, whose registered office is also located in Munich. The contract was signed in a bakery in Salzburg, where Markt24 also had an office. BU was never allocated any work, the employment contract was terminated and BU claims outstanding wage at the Landesgericht Salzburg.

The CJEU refers to Holterman to define employment [25] and holds [26] that the presence of a contract of employment is relevant for triggering the protective regime: not its actual exercise a least of the lack of performance of the contract is not attributable to the employer [28].

This issue was not sub judice however reasoning mutatis mutandis I would suggest the attributability or not to the employer be subject to the putative lex loci laboris per A8 Rome I.

Having established that A21 BIa applies, the question is how a ‘‘place where or from where the employee habitually carries out his work’ may be determined if no work has been carried out. At 41:

in the case where the contract of employment has not been performed, the intention expressed by the parties to the contract as to the place of that performance is, in principle, the only element which makes it possible to establish a habitual place of work (…) That interpretation best allows a high degree of predictability of rules of jurisdiction to be ensured, since the place of work envisaged by the parties in the contract of employment is, in principle, easy to identify

In casu, that place is Munich albeit [46] Salzburg might also still be an option given as A20 BIa makes A7(5)’s branch jurisdiction applicable (“as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated”). Whether the conditions for that Article apply, is for the court at Salzburg to determine.

The CJEU’s emphasis on predictability in my view also means that if a place is agreed yet the employee, without agreement from the employer, de facto carries out the work elsewhere, the agreed place must take precedent.

The CJEU also holds [34] that the employment title of BIA exhaustively harmonises jurisdiction: more favourable national CPR rules (in casu granting jurisdiction to the employee’s residence and /or place of payment of the remuneration) become inoperable.

An important judgment.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.278 ff.

The Organization of American States (OAS) is organizing a virtual forum as noted in the poster above. For more information, click here.

This virtual forum will address the report: Improving transparency: international law and State cyber operations – fifth report drawn up by Professor Duncan B. Hollis. This report is available here and has been translated into the four official languages of the OAS: Spanish, English, French and Portuguese.

While this report touches upon international law in general, it may still be of interest to some of our readers.