Agrégateur de flux

Carmen Otero García-Castrillón, Complutense University of Madrid, has kindly provided us with her thoughts on personal data protection and international trade regulation. An extended version of this post will appear as a contribution to the results of the Spanish Research Project lead by E. Rodríguez Pineau and E. Torralba Mendiola “Protección transfronteriza de la transmisión de datos personales a la luz del nuevo Reglamento europeo: problemas prácticos de aplicación” (PGC2018-096456-B-I00).

The regulatory scenario

1. In digital commerce times, it seems self-evident that personal data protection and international trade in goods and services are intrinsically connected. Within this internet related environment personal data can be accessed, retrieved, processed and stored in a number of different countries. In this context, the legal certainty for economic actors, and even the materialisation or continuation of commercial transactions requires taking into consideration both, the international jurisdiction and the applicable law issues on the one hand, and the international trade regulations covering these commercial transactions on the other hand.

Too much personal data protection can excessively restrict international trade, especially in countries with less developed economies for which the internet is considered an essential sustainable development tool. Little protection can prejudice individual fundamental rights and consumers’ trust, negatively affecting international trade also. Hence, some kind of balance is needed between the international personal data flux and the protection of these particular data. It must be acknowledged that, summarising, whilst in a number of States personal data and their protection are fundamental rights (expressly in art. 8 CFREU, and as a part of the right to private and family life in art. 8 ECHR), in others, though placed in the individual’s privacy sphere (in the light of art. 12 UDHR), it is basically associated to consumer’s rights.

2. The only general international treaty specifically dealing with personal data protection is the Convention 108 + of the Council of Europe, for the protection of individuals with regard to the processing of personal data. The Convention defines personal data as any information relating to an identified or identifiable individual (art. 2.a) without an express and formal recognition of its fundamental right character. The Convention, whose raison d’etre was justified for need to avoid that the personal data protection controls interfere with the free international flow of information (Explanatory Report, para. 9), “should not be interpreted as a means to erect non-tariff barriers to international trade” (Explanatory Report, para. 25). Its rules recognise the individual’s rights to receive information on the obtaining and the treatment of their data, to be consulted and oppose that treatment, to get the data rectified or eliminated and to count, for all this, with the support of a supervisory authority and judicial and non-judicial mechanisms (arts. 8, 9 and 12). On the basis of these common standards, member States agree not to prohibit or subject to special authorisations the personal data flows as long as the transfer does not imply a serious risk of circumventing them (art. 14). Moreover, the agreed rules can be exempted when it is a “necessary and proportionate” measure “in a democratic society” to protect individual rights and “the rights and fundamental freedoms of others”, particularly “freedom of expression” (art. 11). Presently, 55 States are parties to this Convention, including the EU but not the US, that have an observer status.

Along these lines, together with other Recommendations, the OECD produced a set of Guidelines Governing the Protection of Privacy and Transborder Flows of Personal Data (11.7.2013; revising the 1980 version). After establishing general principles of action as minimum standards, it was concluded that the international jurisdiction and the applicable law issues could not be addressed “at that stage” provided the “discussion of different strategies and proposed principles”, the “advent of such rapid changes in technology, and given the non-binding nature of the Guidelines” (Explanatory Memorandum, pp. 63-64).

On another side, the World Trade Organisation (WTO) administers different Agreements multilaterally liberalising international trade in goods and services that count with its own dispute settlement mechanism. In addition, States and, of course, the EU and the US, follow the trade bilateralism trend in which data protection and privacy has begun to be incorporated. Recently, this issue has also been incorporated into the WTO multilateral trade negotiations on e-commerce.

CJEU Schrems’ cases

3. Last 16 July, in Schrems II (C-311/18), the CJEU declared the invalidity of the Commission Decision 2016/1250 on the adequacy of the protection provided by the Privacy Shield EU–US, aimed at allowing the personal data transfer to this country according to the EU requirements, then established by Directive 95/46 and, from 25 May 2018, by the Regulation 2016/679 (GDPR). On the contrary, Commission Decision 2010/87 (2016/2297 version) on the authorisation of those transfers through contractual clauses compromising data controllers established in third countries is considered to be in conformity with EU law.

In a nutshell, in order to avoid personal data flows to “data heavens” countries, transfers from the EU to third States are only allowed when there are guarantees of compliance with what the EU considers to be an adequate protective standard. The foreign standard is considered to be adequate if it shows to be substantially equivalent to the EU’s one, as interpreted in the light of the EUCFR (Schrems II paras. 94 and 105). To this end, there are two major options. One is obtaining an express Commission adequacy statement (after analysing foreign law or reaching an agreement with the foreign country; art. 45 GDPR). The other is resorting to approved model clauses to be incorporated in contracts with personal data importers, as long as effective legal remedies for data subjects are available (art. 46.1 and 2.c GDPR). According to the Commission, this second option is the most commonly used (COM/2020/264 final, p. 15).

4. In Schrems II the CJEU confirms that, contrary to the Privacy Shield Decision, the US data protection regime is not equivalent to EU’s one because it allows public authorities to access and use those data without being subject to the proportionality principle (para. 183; at least in some surveillance programs) and, moreover, without recognising data owners their possibility to act judicially against them (para. 187). It never rains but what it pours since, in 2015, a similar reasoning led to the same conclusion in Schrems I (C-362/14, 5.6.15) on the Safe Harbour Decision (2000/520), preceding the Privacy Shield one. Along these lines, another preliminary question on the Privacy Shield Decision is pending in the case La cuadrature du net, where, differing from Schrems II, its compatibility with the CFREU is expressly questioned (T-738/16). In this realm, it seems relevant noting that the CJEU has recently resolved the Privacy International case, where, the non-discriminated capture of personal data and its access by national intelligence and security agencies for security reasons, has been considered contrary to the CFREU unless it is done exceptionally, in extraordinary cases and in a limited way (C-623/17, para. 72). Given the nature of the issue at hand, a similar Decision could be expected in the La cuadrature du net case; providing additional reasons on the nullity of the Privacy Shield Decision, since it would also contravene the CFREU. Moreover, all this could eventually have a cascading effect on the Commission’s adequacy Decisions regarding other third States (Switzerland, Canada, Argentina, Guernsey, Isle of Man, Jersey, Faeroe Islands, Andorra, Israel, Uruguay, New Zealand and Japan).

5. As to the contractual clauses, beyond confirming the Commission analysis on their adequacy in this case, the CJEU states that it is necessary to evaluate the data access possibilities for the transferred country public authorities according to that country national law (para. 134). At the end of the day, EU Data Protection authorities have to control the risks of those authorities’ actions not conforming with EU standards, as much as the capability of the contractual parties to comply with the contractual clause as such. If the risk exists, the transfers have to be prohibited or suspended (para.135).

6. The EU personal data protection norms are imperative and apply territorially (art. 3 GDPR; Guidelines 3/18 EDPB version 2.1, 7.1.2020 and CJEU C-240/14, Weltimmo). Therefore, data “imports” are not regulated and the “exports” are subject to the condition of being done to a country where they receive EU equivalent protection. In the light of CJEU case law, the measures to watch over the preservation of the EU standard are profoundly protective, as could be expected provided the fundamental rights character of personal data protection in the EU (nonetheless, many transfers have already taken place under a Decision now declared to be void).

Hence, once a third country legislation allows its public authorities to access to personal data -even for public or national security interests- without reaching the EU safeguards level, EU Decisions on the adequacy of data transfers to those countries would be contrary to EU law. In similar terms, and despite the recent EDPB Recommendations (01 and 02/20, 10.11.2020), one may wonder how the contracts including those authorised clauses could scape the prohibition since, whatever the efforts the importing parties may do to adapt to the EU requirements (as Microsoft has recently announced regarding transfers to the US; 19.11.2020), they cannot (it is not in their hands) modify nor fully avoid the application of the corresponding national legislation in its own territory.

As a result, the companies aiming to do business in or with the EU, do not only have to adapt to the GRDP, but not to export data and treat and store them in the EU (local facilities). This entails that, beyond the declared personal data international transferability (de-localisation), de facto, it seems almost inevitable to “localise” them in the EU to ensure their protection. To illustrate the confusion created for operators (that have started to see cases been filed against them), it seems enough to point to the EDPB initial reaction that, whilst implementing the Strategy for EU institutions to comply with “Schrems II” Ruling, “strongly encourages … to avoid transfers of personal data towards the United States for new processing operations or new contracts with service providers” (Press Release 29.10.2020).

Personal data localisation and international trade regulation

7. There is a number of national systems that, one way or another, require personal data (in general or in especially sensitive areas) localisation. These kinds of measures clearly constitute trade barriers hampering, particularly, international services’ trade. Their international conformity relies on the international commitments that, in this case, are to be found in the WTO Agreements as much as in the bilateral trade agreements if existing. The study of this conformity merits attention.

8. From the EU perspective, as an initial general approach it must be acknowledged that, within the WTO, the EU has acquired a number of commitments including specific compromises in trans-border trade services in the data process, telecommunication and (with many singularities) financial sectors. Beyond the possibility of resorting to the allowed exceptions, the “localisation” requirement could eventually be infringing these compromises (particularly, arts. XVI and/or XVII GATS).

Regarding EU bilateral trade agreements, some of the already existing ones and others under negotiation include personal data protection rules, basically in the e-commerce chapters (sometimes also including trade in services and investment). Together with the general free trade endeavour, the agreements recognise the importance of adopting and maintaining measures conforming to the parties’ respective laws on personal data protection without agreeing any substantive standard (i.e. Japan, Singapore). At most, parties agree to maintain a dialog and exchange information and experiences (i.e. Canada; in the financial services area expressly states that personal data transfers have to be in conformity with the law of the State of origin). For the time being, only the Australian and New Zealand negotiating texts expressly recognise the fundamental character of privacy and data protection along with the freedom of the parties to adopt protective measures (international transfers included) with the only obligation to inform each other.

Concluding remarks

9. As the GDPR acknowledges “(F)lows of personal data to and from countries outside the Union and international organisations are necessary for the expansion of international trade and international cooperation. The increase in such flows has raised new challenges and concerns with regard to the protection of personal data.” (Recital 101). In facing this challenge, Schrems II confirms the unilaterally asserted extraterritoriality of EU personal data protection standards that, beyond its hard and fully realistic enforcement for operators abroad, constitute a trade barrier that could be eventually infringing its WTO Agreements’ compromises. Hence, in a digitalised and globally intercommunicated world, the EU personal data protection standards contribute to feeding the debate on trade protectionism. While both the EU and the US try to expand their respective protective models through bilateral trade agreements, multilaterally -among other initiatives involving States and stakeholders, without forgetting the role of technology (privacy by design)- it will be very interesting to see how the on-going WTO negotiations on e-commerce cover privacy and personal data protection in international trade data flows.

AG Hogan delivered yesterday his opinion in case C‑896/19 (Repubblika v Il-Prim Ministru, joined party: WY), which is about judicial independence, the procedure for the appointment of judges and the power of the Prime Minister as well as the involvement of a judicial appointments committee. Should this opinion be endorsed by the Court of Justice, and taking into account other cases, the Court is slowing but surely putting EU Law at the heart of the MS judiciary’s organisational rules.

Opinion: “(1) The second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, is applicable when a national court is assessing the validity of a procedure for the appointment of judges such as that provided for by the Constitution of Malta.

(2) Article 19(1) TEU, interpreted in the light of Article 47 of the Charter of Fundamental Rights, does not preclude national constitutional provisions under which the executive power or one of its members, such as the Prime Minister, plays a role in the process of the appointment of members of the judiciary. While Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, is not ex ante prescriptive either in terms of the particular conditions of appointment or the nature of the particular guarantees enjoyed by judges of the Member States, it does nonetheless require as a minimum that such judges enjoy guarantees of independence. What matters for the purposes of Article 19 TEU, is that judges must be free from any relationship of subordination or hierarchical control by either the executive or the legislature. Judges must enjoy financial autonomy from the executive and the legislature, so that their salaries are not impaired (otherwise than by generally applicable taxation or generally applicable and proportionate salary reduction measures) during their term of office. It is also important that they enjoy sufficient protection against removal from office, save for just cause and their disciplinary regime must include the necessary guarantees in order to prevent any risk of its being used as a system of political control of the content of judicial decisions.

(3) The procedure for the appointment of judges cannot be called into question under Article 19(1) TEU, interpreted in the light of Article 47 of the Charter of Fundamental Rights, in support of claims introduced before the date of the forthcoming judgment”.

Source: http://curia.europa.eu/juris/document/document.jsf?text=&docid=235729&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=19345372

The Administrative Cooperation Working Group on the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance met this week (14 to 17 December 2020). An aide-mémoire summarising the outcomes of the meeting has been released by the HCCH. It is available at https://assets.hcch.net/docs/ef04cdf2-2a19-4edb-bc73-2009ef9000a4.pdf.

Pourvoi c/ Cour d'appel d'Angers, 2 décembre 2020

Pourvoi c/ Cour d'appel de Versailles, 10 septembre 2020

Renvoi

David Dyzenhaus (University of Toronto Law and Philosophy) has posted Not an Isolated, Exceptional, and Indeed Contradictory Branch of Jurisprudence on SSRN.

The abstract reads:

Private international law [PrIL] got—and gets—virtually no attention in general philosophy of law, by which I mean Anglo-American philosophy of law since World War II with its debates about the nature of law, of legal authority and obligation, and the relationship between law and morality; principally, the Hart/Fuller debate and the Hart/Dworkin debate. I argue that PrIL can illuminate these debates. My argument works by excavating the ‘deep juridical structure’ of the House of Lords decision in Oppenheimer v. Cattermole (1976) through the lens of an article by the great PrIL scholar, F.A. Mann, which changed the course of the case. In particular, I contrast Lord Cross’s dictum that a Nazi nationality-stripping decree of 1941 constituted ‘so grave an infringement of human rights that the courts of this country ought to refuse to recognize it as law at all’ with Lord Pearson’s dictum that an individual would lose his nationality ‘however wicked’ the government and ‘however unjust and discriminatory and unfair’ the law, as long as that government had ‘been holding and exercising full and exclusive sovereign power’ and had ‘been recognized throughout by our government as the government of that country’. I show that Cross’s conclusion presupposes a Kelsenian juridical structure and Pearson’s a Hartian one. Since only the former is properly juridical and can make sense of the idea of judicial duty in PrIL, it is to be preferred.

Written by Orji Agwu Uka, Senior Associate at Africa Law Practice (ALP)*

This is the fifth and final online symposium on Private International Law in Nigeria initially announced on this blog. It was published today on Afronomicslaw.org. The first  introductory symposium was published here by Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, the second symposium was published by Anthony Kennedy, the third symposium was published by Richard Mike Mlambe, and the fourth symposium was published by Dr Abubakri Yekini.

For too long, law students in Nigerian universities have largely considered Private International Law [or Conflict of Laws as it is more commonly known in Nigeria] as an esoteric subject. Most students avoid it because of the adverse effect they think it is sure to have on their cumulative grade points average and the seeming lack of practical benefit of the subject to their future law practices. They do not know any better. Nigerian legal practitioners have had to provide legal advice and represent clients before trial and appellate courts as well as arbitral tribunals on disputes involving private international law questions within the context of Nigerian law. Those pieces of advice and legal representations would have benefitted greatly from a comprehensive private international law treatise. On their part, Nigerian courts have had to meander through the maze of interpreting questions of private international law without the benefit of the direction that high quality academic works [available in some other subject areas] provide. I am gratified to announce that finally, a Daniel is come to judgment.

Since Nigeria’s return to civilian rule in 1999, there have been significant increase in cross border trade, international business transactions and foreign investments in Nigeria. Successive Nigerian governments across all tiers have made the attraction of foreign investments a cardinal part of their economic policies and have accordingly made deliberate efforts and committed abundant resources to attract foreign investments into Nigeria.[1]This accords with the preponderance of opinion to the effect that, with the right economic policies, FDI inflow into developing economies can be a major catalyst for economic development.[2] With these activities however, have come the resultant need for increased attention to the body of laws in Nigeria that regulate transactions with multi-jurisdictional elements.

In a recent article, I called for increased study of private international law in Africa and the establishment of a harmonised private international legal regime especially in the context of the Agreement establishing the African Continental Free Trade Area (AfCFTA) which came into force on 30 May 2019.[3] I argued that the economic integration and the concomitant growth in international relationships that are sure to result from these integration efforts will undoubtedly lead to a rise in cross border disputes, which call for resolution using the instrumentality of private international law. That call, especially in the case of Nigeria, was significantly handicapped by the absence of a treatise length textbook on the subject.

Interestingly, I had, in that article, borrowed heavily from the writings of Professor Richard Frimpong Oppong, a renowned private international law expert in Africa, and Dr Chukwuma Samuel Okoli, a Postdoctoral Researcher at T. M. C. Asser Institute in the Hague and a prolific writer in the field of private international law in Nigeria. Writing on the importance of a private international law system that responds to the interests of Africa, Dr Okoli observed that with growing international trade with Africa comes an inevitable rise in disputes among contracting parties conducting trade on the continent.[4]According to him, when these disputes arise, questions such as what courts have jurisdiction, what law(s) should apply, and whether a foreign judgment will be recognised and enforced by the courts of African States, will need to be resolved for international trade to run smoothly.[5]

On his part, Professor Oppong, argued that a well-developed and harmonised private international law regime is an indispensable element in any economic community and can play a significant role in addressing issues such as the promotion of international trade and investment, immigration, regional economic integration, globalisation and legal pluralism.[6] It is altogether fitting that these two will join forces to produce the first treatise length textbook on private international law in Nigeria and it is against the foregoing backdrop that I wholeheartedly welcome the product of their collaboration – Private International Law in Nigeria.[7]

The book examines Nigerian law rules, principles, and doctrines for the resolution of disputes with cross-border components. The authors begin by tackling the elephant in the room which is to provide a helpful explanation of the conceptual and preliminary issues which constitute the most intricate aspects of private international law. The concepts addressed are Characterisation; Substance and Procedure; and of course, Renvoi which the authors wittingly recall has been described in the past as a subject loved by academics, hated by students and ignored by lawyers and judges. There is also a special treatment of the concept of domicile which is one of the cardinal concepts in the field of English private international law and by necessary implication that of Nigeria, and which is one of the fundamental connecting factors that indicate the law or jurisdiction that governs a dispute particularly in matters related to jurisdiction, family law, property law, and other issues affecting the legal rights and privileges of parties.

The book expertly navigates the topic of jurisdiction, a cardinal concept under Nigerian adjectival law, but which in some cases is weaponised and has now acquired exaggerated notoriety to the extent that it now constitutes a cog in the wheel of the smooth and timely determination of cases in Nigeria. To avoid the monster that jurisdiction as a concept has developed into, the book carefully focuses on a consideration of jurisdiction in actions in personam. The authors consider the rules for determining jurisdiction in actions in personam and the extent to which judges in Nigeria have succeeded or mostly failed in appreciating or applying jurisdictional rule son actions in personam especially by misapplying rules designed for international litigation in the context of interstate disputes in the unique federal system practiced in Nigeria.

The result of the authors’ analyses of Nigerian appellate courts’ cases bordering on the jurisdiction of Nigerian courts in actions in personam arising from causes of action which accrue outside the territorial jurisdiction of the courts is particularly eye-opening. The authors divide the failure of Nigerian courts in this regard into three scenarios to wit: cases where Nigerian courts reach the right decision but wrongly apply choice of venue rules to arrive at that decision; cases where Nigerian courts wrongly apply choice of venue rules and reach the wrong decision; and cases where Nigerian courts simply conflate the choice of venue provisions in the rules of the respective courts in Nigeria with the rules of private international law applicable in actions in personam in Nigeria. The reasoning of the courts in the cases treated leaves a lot to be desired and call for a dispassionate soul searching.

Private International Law in Nigeria lucidly addresses the historical controversies surrounding the requirement for leave to issue and serve a court process out of jurisdiction both in the case of interstate (domestic) disputes and in international disputes strictly so called. The book highlights the delicate balance between the Sheriffs and Civil Process Act and the various rules of court. For good measure, the authors clearly explain what the Nigerian Supreme Court got wrong in the infamous M. V. Arabella case [which the court has now thankfully moved away from].[8] In that case the Supreme Court set aside a writ of summons that was issued in the Federal High Court Lagos and served on a defendant resident in Abuja, Federal Capital Territory without the leave of court. The court relied on Order 10 rule 14 of the Federal High Court (Civil Procedure) Rules 1976[9] and discountenanced the contention of the appellant that the Federal High Court is one court and no leave of court is required to issue and serve a court process in one judicial division of the court (i.e. in one State) for service in another State. The authors however rightly highlight the reluctance of the Supreme Court to explicitly overrule cases that were obviously wrong, a trend that has been on the rise in the last two decades; and which is the subject of another day’s discussion.

What I would consider as an ambitious aspect of the book, however, is the authors’ categorical position regarding the non-binding effect of the obiter dicta of some Supreme Court decisions. For instance, while discussing a recent decision of the Nigerian Supreme Court,[10]the authors stated that the obiter dictum of Aka’ahs JSC is not binding on lower courts in Nigeria and should not be followed.[11]While this undoubtedly represents the correct position of the law in principle, it is however of doubtful practical effect given the peculiarity of the diminishing line between rationes decidendi and obiter dicta under the Nigerian version of the doctrine of stare decisis as well the attitude of Nigerian courts to decisions of higher courts.

Special consideration is also given to such procedural law concepts as ‘forum selection clauses’, ‘forum non conveniens’, ‘lis alibi pendens’ and ‘limitations on jurisdiction’ as well as the substantive law topics of Contract, Torts, Foreign Currency Obligations, Bills of Exchange, Marriage, Matrimonial Causes and Administration of Estates. Very crucially too, the book does not fail to address the critical topics of enforcement of foreign judgments and international arbitral awards, while the last two chapters, grouped under a part entitled, ‘International Civil Procedure’ are dedicated to the consideration of the procedural rules applicable in international civil disputes including domestic remedies affecting foreign proceedings, international judicial assistance in the service of legal processes and taking of evidence. Nigerian lawyers with cross border practices will find these two chapters particularly helpful. One topic that is however given a less than adequate treatment is the topic of adoption. To be fair, adoption law and procedure in Nigeria is largely covered in opacity but a more comprehensive treatment of the subject in this book would have finally afforded practitioners the long-needed reference point.

On the whole, the book draws on over five hundred Nigerian cases including [thankfully] contemporary judicial decisions touching on the subject of private international law, relevant legislations and academic writings while exploring, where necessary, comparative perspectives from other jurisdictions.

This book is without doubt, one of the most impactful legal textbooks in Nigeria in at least twenty five years. It is a refreshing addition to the legal libraries across Nigeria and beyond. Judges at all levels of courts in Nigeria, legal practitioners, arbitrators and lawmakers alike as well as law teachers, researchers and students, will find Private International Law in Nigeria a highly resourceful and practical guide that fills an intellectual void in a long neglected but increasingly critical field of law. It is a long overdue contribution to the field of private international law in particular, and to legal scholarship in Nigeria as a whole.

*Orji Agwu Uka is a Senior Associate at a top Commercial Law Firm in Lagos, Nigeria. He holds an LLM from King’s College London and an LLB from Abia State University, Uturu Nigeria.

[1]Akinlo Enisan, ‘Determinants of Foreign Direct Investment in Nigeria: A Markov Regime-Switching Approach’ (2018) RIC 21.

[2] Organisation for Economic Cooperation and Development, Foreign Direct Investment for Development: Maximising Benefits, Minimising Costs (OECD 2002) 3.

[3]Orji Uka, ‘Cross Border Dispute Resolution under AfCFTA: A Call for the Establishment of a Pan-African Harmonised Private International Legal Regime to Actualise Agenda 2063’ (2020) ALP available at http://alp.company/resources/business-advisory/cross-border-dispute-resolution-under-afcfta-call-establishment-pan last accessed on 11 November 2020.

[4]Chukwuma Okoli, ‘Private International Law in Africa: Comparative Lessons’ available at http://conflictoflaws.net/2019/private–international–law–in–africa–comparative–lessons/.

[5]Chukwuma Okoli, (n. 4) above.

[6] Richard Frimpong Oppong, ‘Private International Law and the African Economic Community: A Plea for Greater Attention’ The International and Comparative Law Quarterly, Vol. 55, No. 4 (Oct., 2006), Cambridge University Press pp.911-928 available at https://www.jstor.org/stable/4092623.

[7]Chukwuma Samuel Adesina Okoli and Richard Frimpong Oppong, Private International Law in Nigeria Hart Publishing: Oxford, 2020.

[8]Owners of M. V. Arabella v Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (Pt. 1097) 182.

[9]For similar reasons, the Court of Appeal in Nestle (Nig) Plc v. Owners of M. V. MSC Agata(2014) 1 NWLR (Pt. 1388) 270 at pp. 288-290 set aside writ while relying on Order 6 rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000.

[10]Social Democratic Party v Bieman unreported decision of the Supreme Court in Appeal No. SC/341/2019 43.

[11]Chukwuma Okoli and Richard Oppong, (n. 7) above at p. 73.

AG Campos Sanchez-Bordona delivered today his opinion in case C‑709/19 (Vereniging van Effectenbezitters v BP plc), which is about Article 7.2 Brussels I bis in the case of a purely financial damage.

Context: “1. An association of securities holders has brought an action for damages before the Hoge Raad der Nederlanden (Supreme Court of the Netherlands) over the fall in the value of their shares in a company established in the United Kingdom, following an oil spill at the company’s operations in the Gulf of Mexico.

2. In the context of those proceedings, the court needs to obtain an interpretation of Article 7(2) of Regulation (EU) No 1215/2012. As the claim is for purely financial damage, the court has difficulty in deciding on its jurisdiction in the light of previous decisions of the Court of Justice, particularly the judgments in Kolassa, Universal and Löber”.

Opinion: “1. Article 7(2) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that:

(a) it is not a sufficient connecting factor for attributing international jurisdiction to the courts of a Member State that a fall in the value of the shares of a company listed on stock exchanges in other Member States is recorded in investment accounts located in that Member State or in investment accounts of a bank or investment firm established in that Member State, where the damage is the result of decisions taken by investors on the basis of allegedly incorrect, incomplete and misleading information distributed globally by the listed company;

(b) the existence of a settlement between the defendant company and some shareholders in a third State which has not been offered to the applicants in the main proceedings and the fact that some applicants are consumers are not relevant specific circumstances for the purposes of attributing international jurisdiction pursuant to Article 7(2) of Regulation No 1215/2012. Nor is the fact that the relevant information was distributed worldwide by the defendant company.

2. The exercise of a collective action in accordance with national rules of procedure by an association representing the interests of the holders of the securities who suffered the damage does not alter the interpretation of Article 7(2) of Regulation No 1215/2012”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=74FA8D126E0AFC56C07B928CDA7887E4?text=&docid=235726&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=19345184

Après cinq semaines d’audience, la cour d’assises de Paris spécialement composée a condamné jeudi quatre hommes pour leur participation, à des degrés divers, à l’attentat manqué dans le Thalys le 21 août 2015.

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