Agrégateur de flux

An interesting exchange with fellow practitioners on Twitter yesterday reminded me of this post which I have had in the draft folder since some time in June.  Back in February, the  Dutch SC confirmed the approach of the lower courts and the Court of Appeal on the correct approach to e-mail evidence and the existence of specific dispute resolution clauses. Here: an agreement to arbitration. The result is that a London-issued arbitral award cannot be enforced in The Netherlands.

When I flagged the case on Linked-in in June I observed there were two approaches to the judgment. Some emphasise the Courts’ refusal to recognise the validity of the agreement to arbitrate made by e-mail, in the face of what is common and very informal practice in the shipping industry /charterparty; others point more practically to parties having to be prepared to prove the authenticity of electronic correspondence.

Defendant did not enter an appearance but the lower Court in earlier ruling was alarmed by the print-out of e-mails allegedly containing the ‘agreement’ in the charterparty looking dodgy (there were for instance various white blots). It proprio motu pursued originality research. In subsequent rulings confirmed and completed by the Court of Appeal, the courts were not satisfied by the originality research, among others because the claimant’s ‘independent’ expert was an ICT employee with the law firm involved in the case.

Procureur Generaal Vlas with the Hoge Raad in his Opinion in December 2019, discussed the slight differences between the 1958 New York Convention and the Dutch law on the evidence required (with the Dutch rules in fact being more relaxed), and the nature and content of guidelines issued for the interpretation of the Convention. He advised to follow the lower court’s approach not because of some grand statement in principle but rather because he could not see fault in the courts’ factual observation of lack of independent and objective proof of authenticity. The Supreme Court followed in the most succinct of ways, without justifying rejection of the appeal. It is entitled to do so in cases where its findings have no impact on the unity in application of the law, indicating that the factual observations swayed the SC.

‘Before e-mail’ (my kids would respond to that ‘yes dad, when you got to work on horse and cart’) printers and warehouse assistants where a key link in the chain of general terms and conditions – GTCs. They needed to ensure the right content ended up on the right printed, blank order forms, and ended up with the right wholesalers, sales agents etc. – to be repeated every single time these GTCs were amended; and many a litigation has begun with sales agents continuing to use old forms ‘because it would be a shame to throw all that paper’. Fast forward to electronic correspondence, and website managers and general ICT staff have now assumed that role. In the context of any dispute resolution, they need to ensure everyone has the right e-mail footer, properly functioning link to the right version of the GTCs on the website, etc. They also need to have protocols in place to ensure authentication is thought of proactively. Lack of such proper electronic housekeeping leads to results no different than when sales agents continued to use the old paper forms.

Geert.

 

 

A new monograph written in German deals with cross-border insurance brokerage in the Single Market (Christian Rüsing, Grenzüberschreitende Versicherungsvermittlung im Binnenmarkt, 2020). The monograph is aimed at practitioners, national and European supervisory authorities as well as academics dealing with private international law, its relationship to international supervisory law and insurance law.

This book complements studies on the single market in insurance, which the EU has strived to establish for decades. EU institutions have primarily facilitated cross-border business of insurers by implementing rules on international supervisory law in the Solvency II Directive and on private international law for insurance contracts in Article 7 of the Rome I Regulation. The study focuses on intermediaries, such as insurance brokers and agents.

While intermediaries play a vital role in the cross-border distribution of insurance products, clear conflict-of-law rules for insurance intermediation are missing. The Insurance Distribution Directive (IDD), which intends to promote cross-border activities of intermediaries, focuses on the harmonisation of the substantive law on insurance intermediation, apart from provisions on international administrative cooperation. Furthermore, it has not fully harmonised national laws. Insurance intermediaries providing services in other countries are therefore still required to be aware of the relevant national regulatory requirements and private laws they have to comply with.

International Supervisory Law

With regard to international supervisory law, the author analyses where intermediaries have to be registered and which regulatory requirements they have to meet when exercising activities in another member state by using freedom to provide services or the freedom of establishment. One of the key findings is that although the IDD is partly based on the country of origin principle, intermediaries must comply with stricter national provisions protecting general interests of the host member state, irrespective of whether they serve consumers or professionals as policyholders.

Applicable Rules of Private International Law

Concerning private international law, the author analyses the intermediaries’ relationships with customers and insurers. A comparative legal analysis reveals that these relationships are based on contract in some member states and on tort in others. Therefore, it is even unclear whether the Rome I or the Rome II Regulation has to be applied. The author calls for an autonomous interpretation of the regulations’ scope of application, which also solves the problem of concurring claims. He suggests that the Rome I Regulation must be applied irrespective of whether the intermediary is an agent or a broker.

Rome I Regulation

Applying the Rome I Regulation to the relationship between intermediaries and customers leads to further difficulties. On the one hand, it is unclear whether the conflicts rule for insurance contracts in Article 7 of the Rome I Regulation can be applied to intermediation services. On the other hand, it is also uncertain whether Articles 3, 4 and 6 of the Rome I Regulation are applicable without modification given that the IDD uses different connecting factors with regard to international supervisory law rules. The author argues that certain IDD “flexibility clauses” constitute special conflict-of-law rules in the sense of Article 23 of the Rome I Regulation and therefore partially supersede Articles 3, 4 and 6 of the same Regulation.

With regard to the relationship between intermediaries and insurers, the author analyses whether Article 4(3) of the Rome I Regulation can be used to apply the law governing the insurance contract or the relationship between intermediaries and customers. He stresses that the parties must be aware of the customs they have to comply with and of certain mechanisms protecting insurance agents, which might include mandatory provisions.

Conclusion

This is a complex area, and the author has to be complemented for having taken a broad perspective, which combines international supervisory law and private international law. The study concludes with an assessment of the extent to which the current state of the law promotes cross-border activities of intermediaries. Particular attention is paid to the importance and legal framework of digital insurance intermediaries, which are also dealt with separately in each chapter.

Slovénie / Commission
Agriculture
Le Tribunal rejette le recours de la Slovénie tendant à l’annulation du règlement délégué en vertu duquel la dénomination « Teran » peut être mentionnée sur l’étiquette des vins croates

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

 

D. Coester-Waltjen: Some Thoughts on Recital 7 Rome I Regulation and a Consistent and Systematic Interpretation of Jurisdictional and Choice of Law Rules.

Decisions of the ECJ in recent years have cast some new light on recital 7 of the Rome I Regulation. These decisions will be analysed regarding the limits of and the guiding principles for a consistent and systematic interpretation of the rules in the Brussels Ibis Regulation on the one hand and the Rome I Regulation on the other. The analysis proves that the understanding of a term in the jurisdictional framework need not necessarily influence the interpretation for private international purposes.

 

U.P. Gruber/L. Möller: Brussels IIbis Recast

After complicated negotiations, the Council of the EU has finally adopted a recast of the Brussels IIbis-Regulation. The amendments focus primarily on parental responsibility. As far as the enforcement of foreign judgements is concerned, the new regulation provides for a delicate balance between different positions of the Member States. While the new regulation abolishes exequatur, it also introduces new reasons which can be invoked against the enforcement of foreign decisions. At first, the reform did not aim at changes in the field of divorce, legal separation or marriage annulment. However, in the course of the legislative procedure, new provisions allowing for the recognition of extra-judicial agreements on legal separation and divorce were added.

 

C. Kohler: Mutual trust and fundamental procedural rights in the framework of mutual assistance between EU Member States and beyond

In case C-34/17, Donnellan, the ECJ ruled that the recovery of a fine by way of mutual assistance between EU Member States pursuant to Directive 2010/24 may be refused by the requested authority if the decision of the applicant authority imposing the fine was not properly notified to the person concerned, so that the person’s right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights has been infringed. The Court restricts the principle of mutual trust which, pursuant to Opinion 2/13, prevents the requested authority in principle to check whether the applicant Member State has infringed a fundamental right of Union law. The ECJ’s ruling takes into account the case-law of the ECtHR and, by admitting a “second look”, strengthens the protection of fundamental rights in the internal market and within the framework of the judicial cooperation in civil matters.

 

S. Huber: Broad Interpretation of the European Rules on Jurisdiction over Consumer Contracts

The jurisdiction rules for consumer contracts established in Articles 17 to 19 of the Brussels Ibis Regulation and 15 to 17 of the Lugano Convention respectively lead to the question whether the trader has directed his professional activities to the jurisdiction in which the consumer is domiciled. The German Federal Court of Justice had to decide on this question in the context of several similar cases where Swiss solicitors had concluded a contract with several persons living in Germany. The crucial point was a document that the Swiss solicitors had sent to these persons via their German solicitors. The question was whether this document was a sufficiently clear expression of the Swiss solicitors’ intention to conclude contracts with consumers domiciled in Germany. In this context, the German Federal Court of Justice (cf., for example, the case IX ZR 9/16) held that the intention to conclude contracts with consumers living abroad could not only be expressed by general forms of advertising addressed to the public abroad, but also  y documents that are sent to individual consumers. The line of reasoning of the Court reveals a certain sympathy for the position that even one single document sent to one individual consumer in a foreign jurisdiction might constitute a sufficient expression of the trader’s intention to conclude contracts with consumers of that jurisdiction – but this was of no relevance in the cases at hand where the document had been sent to a group of 60 to 100 persons. Whether the document is sent on the initiative of the trader or at the request of the consumer seems to be of no importance. In addition, the court argued that the acts of the German solicitors were to be attributed to their Swiss colleagues as both law firms had cooperated with the aim of permitting the Swiss solicitors to conclude contracts with clients from Germany. Finally, the court was confronted with the question whether in case of a reorganisation of the trader’s business, a consumer can bring a claim against the newly created company in the courts of its domicile. The Court answered this question in the affirmative even for the situation in which the trader’s entity that had concluded the consumer contract remained liable besides the new company. The analysis of the Court’s decisions shows that the Court has formulated guidelines which are based on the case law of the European Court of Justice and allow the lower courts to apply the rules on jurisdiction over consumer contracts in a way which implements the idea of consumer protection and at the same time takes into account the traders’ interests under the general principles of procedural fairness. The clarifying guidelines have enhanced legal certainty and might thus contribute to reducing time and cost-intensive discussions about jurisdiction issues.

 

K. Duden: Amazon Dash Buttons and Collective Injunctive Relief in E-Commerce: Ju-risdiction and Preliminary Questions

The decision of the Munich Court of Appeals relates to a preventive action brought by a consumer protection association against the so-called Amazon Dash Buttons. The decision is guided by the 2016 ECJ decision in Amazon (C-191/15), which it develops further. The Munich decision contains far-reaching statements that are of vital importance to e-commerce and the internet of things. On a substantive level the Court of Appeals finds the Dash Buttons to be an infringement of consumer protection laws. This finding has already led to Amazon’s withdrawal of Dash Buttons from the German market. On the level of conflict of laws and international civil procedure, which this paper focusses on, the court starts by rightfully declaring a nationwide jurisdiction under article 7(2) Brussels Ibis-Regulation for preventive actions brought by consumer protection associations. Since the associations pursue the collective interests of all consumers the place where the harmful event may occur is, after all, any place where a potential consumer might be injured. In determining the applicable law, the court distinguishes between the main question of a claim to injunctive relief and the preliminary question of an infringement of consumer protection laws. In doing so it qualifies the pre-contractual obligations of § 312j BGB as part of the law applicable to consumer contracts, even though a qualification under Art. 12 Rome II-Regulation would be more convincing. Because of the potential importance of the content of the decision to the business model of Amazon it can be assumed that Amazon will pursue this case further and try for its reversal.

 

L. Kuschel: Blocking orders against host providers: Content and territorial scope under the E-Commerce-Directive

In its recent decision (C-18/18) on hosting provider liability, the ECJ set out guidelines on the substantial extent and territorial reach of court orders in cases of online personality rights violations under the E-Commerce Directive. The court held that a hosting provider can be ordered to remove not only identical but also information that is equivalent to the content which has been declared unlawful. Moreover, the E-Commerce Directive does not preclude a court from ordering a hosting provider to remove information worldwide. The article examines critically the broad substantial scope of potential takedown orders and in particular the possibility of worldwide court orders. As to the latter, the article argues that there is neither a contradiction to the ECJ’s previous decision in Google v. CNIL nor a conflict with European jurisdiction law, namely the Brussels Ibis Regulation. A national court should, however, take into consideration the highly differing views among jurisdictions on what content is unlawful and what is protected as free speech, before issuing a global take-down order. The article thus pleads for a nuanced treatment of the subject matter by courts and legislators.

 

L. Colberg: Damages for breach of an exclusive jurisdiction agreement

In a recent decision, the Federal Court of Justice (“FCJ”) decided for the first time that the violation of a choice-of-court agreement can give rise to damages claims. The question had previously been the subject of intense discussions in German academic literature. In the case before the FCJ, a US party violated a jurisdiction clause in favor of the courts of Bonn, Germany by bringing a claim in a US District Court. Based on the valid and unambiguous choice-of-court agreement, the US court held it lacked jurisdiction. As US courts do not award costs to the winning party, the German party, however, had to bear its own lawyers’ fees. When the US party brought the same claim in Germany, the German party counter-claimed for damages. The FCJ decided that parties who are sued abroad despite the existence of a choice-of-court agreement in principle have a right to damages. However, some uncertainty remains as to the exact terms under which courts will award damages. The academic debate therefore is likely to continue.

 

J.D. Lüttringhaus: Jurisdiction and the Prohibition of Abuse of Rights

Does the Lugano Convention allow for an abuse of rights exception? A recent decision by the Higher Regional Court of Karlsruhe draws upon the principle of good faith and the prohibition of abuse of rights in order to disregard the defendant’s attempt to challenge jurisdiction pursuant to Art. 24 Lugano Convention. The Court found the defendant’s contesting of jurisdiction in the main proceedings irreconcilable with his pre-trial application for independent proceedings for the taking of evidence in the same jurisdiction. This reasoning does, however, not take into account that jurisdiction for independent proceedings for the taking of evidence may well differ from jurisdiction for the main proceedings. Against this backdrop, the article provides a critical analysis of the abuse of rights exception under both, the Lugano Convention and the Brussels Ibis Regulation.

 

F. Maultzsch: International Jurisdiction and Service of Process in Cross-Border Investment Torts under the Lugano Convention 2007/Brussels Ibis Regulation

The Supreme Court of Justice of the Republic of Austria (OGH) had to deal with issues of international jurisdiction for cross-border investment torts. Besides general problems of jurisdiction under Art. 5 No. 3 of the Lugano Convention 2007/Art. 7 No. 2 of the Brussels Ibis Regulation, the case touched upon the relation between service of process and possible jurisdiction by way of submission according to Art. 24 of the Lugano Convention 2007/Art. 26 of the Brussels Ibis Regulation. The OGH has decided that jurisdiction by way of submission may not be inhibited by a preceding denial of service of process. This article outlines the state of discussion under Art. 5 No. 3 of the Lugano Convention 2007/Art. 7 No. 2 of the Brussels Ibis Regulation concerning problems in investment torts (in particular regarding the location of the place in which pure economic loss occurs) and agrees with the OGH’s account of the relation between service of process and jurisdiction by way of submission. This account is consistent with the concept of jurisdictional submission as being akin to an ex post choice of court agreement.

 

J. Rapp: The recovery of erroneously paid insurance benefits under the Brussels Recast Regulation

In what is probably one of the last judgments of the UK Supreme Court on the Brussels Ibis Regulation, the Court addressed three fundamental questions on Article 10 et seq., 25: Is an assignee and loss payee bound by an exclusive choice of court agreement in an insurance contract between the insurer and the policyholder? And is the insurer’s claim for the recovery of erroneously paid insurance benefits against the assignee a “matter relating to insurance” within chapter II, section 3 of the Regulation? If so, is the assignee entitled to rely on section 3 even if he cannot be regarded as the economically weaker party vis-à-vis the insurer? In the given judgment, the Supreme Court ruled that the assignee is usually not bound by a choice of court agreement between the insurer and the policyholder; rather, pursuant to Article 14 of the Regulation, he can only be sued in the courts of the member state in which he is domiciled, even if the protection of the economically weaker party as basic concept enshrined in Art. 10 et seq. of the Regulation does not apply to him.

 

C. Madrid Martínez: The political situation in Venezuela and the Conventions of the Inter-American Specialized Conference on Private International Law of the OAS

The government of Nicolás Maduro withdraws Venezuela from the OAS and it has an impact on the Venezuelan system of Private International Law, particularly in the application of Inter-American conventions. In this article, we want to show the erratic way the Case Law has taken and the dire consequences that a political decision has had on the Venezuelan Private International Law.

The new issue of the Revue Critique de Droit International Privé (2/2020) is out. It contains three articles and numerous case notes.

In the first article, Sabine Corneloup (University of Paris II Panthéon-Assas) and Thalia Kruger (University of Antwerp) give a comprehensive overview of the new Brussels II ter Regulation (Le règlement 2019/1111, Bruxelles II : la protection des enfants gagne du ter(rain))

After a long legislative process, Regulation 2019/1111 or “Brussels II ter” has replaced the Brussels II bis Regulation (n° 2201/2003). The new Regulation will only become fully applicable on 1 August 2022. This article gives an overview of the most important changes even though it is impossible to discuss all of them. In the domain of parental responsibility Brussels II ter brings more clarity on choice of forum and lis pendens. It insertsa general obligation to respect the child’s right to be heard. For child abduction cases, the second chance procedure is retained but its scope is limited. The legislator places emphasis on mediation. The Regulation brings a general abolition of exequatur, similar to that of the Brussels I Regulation (n° 1215/2012). However, decisions concerning visitation and the second chance procedure (for which Brussels II bis already abolished exequatur) retain their privileged character and slightly different rules apply. Brussels II ter moreover harmonises certain aspects of the actual enforcement procedure. A final important change, especially for France, is a new set of rules on the recognition and enforcement of authentic instruments and agreements, such as private divorces. The legislator did not tackle the bases for jurisdiction for divorce, which is a pity. The authors conclude that, even though it is not perfect and certain issues still need the legislator’s attention, Brussels II ter has brought many welcome improvements, particularly in protecting the rights of children involved in cross-border family disputes.

In the second article, Christine Bidaud (University of Lyon 3) addresses the issue of the international circulation of public documents under French law from a critical perspective (La transcription des actes de l’état civil étrangers sur les registres français. Cesser de déformer et enfin réformer…)

Although the transcription of foreign civil-status records in french registers has long been qualified as a publicity operation, distortions of this notion has been made by the legislator and the case law. A reform in this field is imperative in order to guarantee the coherence of the system of reception in France of foreign civil-status records and, beyond that, of the international circulation of personal status.

Finally, the third article explore the theme of international circulation of personal status from a different perspective. Sylvain Bollée (University of Paris 1 Panthéon-Sorbonne) and Bernard Haftel (University of Sorbonne Paris Nord) discuss the sensitive topic of international surrogacy under the light of the recent case law of the French Supreme Court in civil and criminal matters.

In two judgments handed down by its First Civil Chamber on 18 December 2019, the Court of Cassation seems to have concluded a particularly spectacular case law saga relating to the reception in France of surrogate motherhood processes occurred abroad. Its position has evolved from a position of extreme closure to one that is diametrically opposed, now accepting full and almost unconditional recognition, out of step not only with its recent case-law, but also with domestic law that maintains a firm opposition to any surrogate motherhood process. This evolution is to be considered from the perspective of concrete solutions and, more fundamentally, of the place that the Court of Cassation intends to give in this area to its own case-law within the sources of law.

The full table of contents is available here.

L’article 10 du règlement n° 1259/2010 du 20 décembre 2010 doit être interprété en ce sens que les termes « lorsque la loi applicable en vertu des articles 5 ou 8 ne prévoit pas le divorce » visent uniquement les situations dans lesquelles la loi étrangère applicable ne prévoit le divorce sous aucune forme.

en lire plus

Action civile - Protection de la nature et de l'environnement

Homicide et blessures involontaires

Transports

Non lieu à renvoi