Agrégateur de flux

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international and comparative law.

The abstracts read:

• Katharina Beckemper: Bestechung und Bestechlichkeit im geschäftlichen Verkehr – Die gegenläufige Umsetzung des EU-Rahmenbeschlusses 2003/568/JI in Spanien und Deutschland, ZVglRWiss 119 (2020), 277-313

Criminal law on corruption is largely determined by Union law. This can make a comparison of the national law of two Member States interesting if there have been different implementations in detail as Union law leaves room for interpretation. However, the German legislator did not see any such room for interpretation when, in 2015, it reorganized the facts of bribery and corruption in business dealings. Rather, he felt compelled to introduce the so-called business owner model. Meanwhile, Spain removed a comparable regulation from the relevant facts in the same year. This raises the question of whether European law offers more scope for implementation than the German legislator assumed or whether the Spanish legislator violated the requirements.

• Patrick Hell: Die Shareholder Proposal Rule des US-amerikanischen Kapitalmarktrechts als Instrument des nachhaltigkeitsorientierten Aktionärsaktivismus, ZVglRWiss 119 (2020), 314-338

Environmental, social and governance (ESG) issues play a major role on both sides of the Atlantic in the current discussion in corporate and capital market law. Investors are increasingly developing their own ESG standards and are trying to influence ESG issues through direct dialogue with their companies and through voting. This sustainability-oriented shareholder activism has a long tradition in the United States. The Shareholder Proposal Rule enables non-binding decisions initiated by shareholders. This has led to a significant increase in sustainability-oriented shareholder proposals in recent years. In the following article, this rule will be presented from a historical, dogmatic and functional perspective in order to take a comparative look at German stock corporation law.

• Frederick Rieländer: Der Schutz von Geschäftsgeheimnissen im europäischen Kollisionsrecht, ZVglRWiss 119 (2020), 339-368

Whilst the Directive (EU) 2016/943 ensures that there is a consistent level of civil redress in the internal market in the event of trade secret violations, the determination of the law applicable to non-contractual claims arising out of trade secret violations raises several unresolved questions. As will be shown hereafter, non-contractual obligations flowing from infringements of trade secrets within the meaning of the Directive ought to be governed by the lex loci protectionis principle as enshrined in Art.?8(1) Rome II Regulation. Nevertheless, the law of the country in which the market is distorted applies in so far as claims are based on trade secret violations by means of ”unfair competition” within the meaning of Art.?6(1) Rome II Regulation.

The Journal can be accessed here (no open access)

By Francisco Javier Zamora Cabo

Despite the progress made towards its prevention and resolution, contemporary history continues to show us examples of human-induced catastrophes, such as the genocides in Rwanda and the Balkans or, in our days, the one that afflicts the Rohingya ethnicity.

These are events that impact the conscience of humanity and that, unlike linear explanations, are usually based on a set of causes that are not always easily discernible. For instance, this is the case of the Rohingya Conflict, which, in its various phases, has generated a great deal of information and evidence, among which it is necessary to glean with a critical spirit, so as to fix the problem and, consequently, proceed to its much-needed denounce and to the pursuit of a path to a solution. To this end, and from the performance of the sciences, interdisciplinary approaches are required, the only ones that can give a full measure of the magnitude of such conflicts and of the means that must be prepared to address them.

In this order, and complemented by contributions from other branches of knowledge, international law, both public and private, constitutes an essential element to face the aforementioned conflict, by arbitrating mechanisms that enable its control and also necessarily opening ways for the remedy of victims and the punishment of those responsible for a calamity of such caliber, which affects more than a million human beings of the ethnic group mentioned above, which currently is the most persecuted on the planet and is also exposed to suffer in a special way the effects of the pandemic that afflicts the world.

The Rohingya conflict thus constitutes a field of choice at the interface between public international law and private international law, in which, for instance, actions are complemented according to the institutional channels established by the international community or, with the technical resources provided by the conflict of laws, through state-based international litigation or the implementation of elements belonging to its body of laws and with an imperative nature, such as international sanctions. Based on this, we then propose, on the occasion of the aforementioned conflict, a private international law in accordance with world governance and mobilized towards the achievement of peace, which is the ultimate foundation on which it coincides with the law of nations.

We have focused our modest contribution to the study and solution of the Rohingya conflict on these ideas, after exploring its actors, causes, and ominous results, from a wide range of sources. Written in Spanish, it is accessible here: http://www.rivistaoidu.net/sites/default/files/2_FZamora%20Cabot%20%20Marullo.pdf. Its abstract in English can be accessed here: http://www.rivistaoidu.net/sites/default/files/Abstract%20Zamora%20Cabot%20Marullo.pdf.

Profesor Dr. Francisco Javier ZAMORA CABOT,
Catedrático de Derecho Internacional Privado
(Chair Professor of Private International Law)
Facultad de Ciencias Jurídicas y Económicas
Universitat Jaume I de Castellón

In Stephenson Harwood LLP v Medien Patentverwaltung AG & Ors [2020] EWHC 1889 (Ch), proceedings were triggered by funding arrangements and alleged success fee entitlements following patent infringement proceedings. MPV is Swiss-based.

The action is an ‘interpleader’ one, now called a ‘stakeholder’ action: as Lenon DJ at 34 described, it is a ‘means by which a court (at the request of claimant, who typically holds property on behalf of one of the parties, GAVC) compels competing claimants to the subject matter of the application to put forward their claims and have them adjudicated on, thereby enabling the stakeholder to drop out of the picture.’

In the English residual private international law, stakeholder actions ground jurisdiction on the basis of the defendant’s property being present there. This is the kind of assets- based jurisdiction which the EC, but not the other Institutions, had wanted to introduce in Brussels Ia. As a result of the Brussels Convention’s Article 3 (materially the same as Article 3 Lugano), these actions became part of residual rules which could no longer be invoked against EU /Lugano States based defendants.  In the Schlosser report on the UK’s accession to the Brussels Convention, to which the judge refers at 40, it was said

“Interpleader actions (England and Wales) … are no longer permissible in the United Kingdom in respect of persons domiciled in another Member State of the Community, in so far as the international jurisdiction of the English or Scottish courts does not result from other provisions of the 1968 Convention. This applies for example, to actions brought by an auctioneer to establish whether ownership of an article sent to him for disposal belongs to his customer or a third party claiming the article.”

An alternative jurisdictional gateway therefore needs to be found. The discussion turned to submission (aka voluntary appearance) and CJEU C-150/80 Elefanten Schuh GmbH v Pierre Jacqmain. In particular, MPV completed the acknowledgment of service form indicating that it intended to contest Stephenson Harwood’s claim, did not tick the box saying that it intended to dispute jurisdiction and set out its own claim for payment of the Monies which it intended to pursue in the stakeholder application and stating its intention to exchange evidence. It then served and filed two witness statements in support of that claim addressing the merits and rebutting Mr Kagan’s claim. As the judge notes at 49,

MPV’s case that it has not submitted to the jurisdiction depends on the Court accepting the premise that it is open to MPV to distinguish for jurisdictional purpose between Stephenson Harwood’s claim (in relation to which MPV has raised no jurisdictional dispute) and Mr Kagan’s claim made as part of the stakeholder proceedings (in relation to which MPV does dispute jurisdiction). It is on this basis that MPV simultaneously asks the Court to order payment of the Monies to itself, as a disposal of the stakeholder application, while disputing the jurisdiction of the Court to determine Mr Kagan’s claim to the Monies.

However Lenon DJ holds that appearance was entered, as Mr Kagan’s claim is part and parcel of the stakeholder application and cannot be separately rejected at the level of jurisdiction. The level of engagement with the claim amounts to voluntary appearance viz both parties. At 53 obiter discussion of other gateways is pondered but not further entertained for lack of proper discussion by the parties.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 1, Heading 1.3.1,

Albert Henke (University of Milan) has been awarded the EU-funded Jean Monnet Module on ‘Multilevel, Mutiparty and Multisector Cross-Border Litigation in Europe’. The three-year teaching and research project will run from 2021 to 2023 and will focus on three main areas: relations and conflicts between national courts, European courts and international tribunals; cross-border collective redress; procedural issues arising out of litigating cross-border commercial, financial, competition, IP, labour, consumers and family law disputes.

Civil litigation in a cross-border dimension presents greater complexity than domestic litigation, due to differences in legal traditions and regimes, as well as in cultural and social values among jurisdictions. A recent EU Study (JUST/2014/RCON/PR/CIVI/0082) shows that EU Member States’ procedural law regimes are still far from being harmonized, what negatively impacts on free circulation of judgments, equivalence and effectiveness of procedural protection and the functioning of the internal market.

The module is proposed to Italian and foreign under- and postgraduate students, as well as to practitioners. It will identify the main procedural issues deriving from a lack of harmonization among EU jurisdictions, contribute to the academic debate at national and European level, produce a series of academic outputs and set the basis for future academic cooperation, also in view of international joint research projects.

The teaching staff includes Alan Uzelac (University of Zagreb), Diego P. Fernández Arroyo (Sciences Po, Paris), Gilles Cuniberti (University of Luxembourg), Fernando Gascón-Inchausti (Complutense University of Madrid), Maria Teresa Carinci (University of Milan), Francesco Rossi dal Pozzo (University of Milan), Stefaan Voet (Katholieke Universiteit, Leuven), Francesca Marinelli (University of Milan), Pietro Ortolani (Radboud University, Njimegen) and Apostolos Anthimos (European University, Cyprus).

For information, please contact Prof. Albert Henke at albert.henke@unimi.it.

Une nouvelle fois, la Cour de justice se penche sur la notion de matière civile et commerciale visée par le règlement du 12 décembre 2012 pour définir son champ d’application.

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Par un arrêt du 16 juillet 2020, la chambre commerciale apporte une précision inédite dans une hypothèse dans laquelle le partage d’une indivision est provoqué en France à la suite de l’ouverture d’une procédure collective en Angleterre à l’égard d’un coïndivisaire.

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On 3 September 2020, the Court of Justice delivered its Judgment in the case that had sparked considerable scholarly interest in recent months, namely in the case Supreme Site and Others, C-186/19.

Back in June, due to the courtesy of María Barral Martínez, we presented an analysis of the case itself and of the Opinion issued by AG Saugmandsgaard Øe.

Preliminary questions and their context

As a reminder, in the background of this case is a contractual dispute over the payment of fuels supplied by companies to an international organisation, in the context of a military operation carried out by the latter.

The legal question at stake concerns, primarily, the applicability and/or the scope of application of the Brussels I bis Regulation in the context of a case where the international organisation brings an action to, firstly, lift an interim garnishee executed in another Member State by the opposing parties, and, secondly, prohibit the opposing parties from levying, on the same grounds, an interim garnishee in the future and all that on the basis of an immunity of execution that this international organisation allegedly enjoys.

Subsequently, the referring court asks, in essence, whether Article 24(5) of the Brussels I bis Regulation is to be interpreted as meaning that the action for interim relief falls within the exclusive jurisdiction of the courts of the Member State in which the interim garnishee order was executed.

Judgment of the Court and its consideration of the questions referred

In relation to the question of the applicability/scope of application of the Brussels I bis Regulation, the Court begins its analysis by affirming, at paragraph 54 of the Judgment, that the interim measures in question should be considered as the ‘provisional measures’ within the meaning of the Article 35 of the Regulation. The inclusion of these measures in the scope of the Regulation is determined by the nature of the rights that they serve to protect.

Next, at point 55, the Court acknowledges the two sets of criteria used in its case-law in order to characterize whether or not an action is covered by the concept of ‘civil or commercial matter’ within the meaning of Article 1(1) of the Brussels I bis Regulation. These are ‘the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof’ and – as the Court puts it – ‘alternatively’, ‘the basis and the detailed rules governing the bringing of the action’. Both sets of criteria are afterwards applied in relation to the case at hand, at paragraphs 65 to 67. It may seem that the first set of criteria is used in order to determine the nature of rights that the provisional measure serves to protect, while the check of the basis and the detailed rules governing the bringing of the action (second set of criteria) is done in order to ensure that the request for the measure does not consist on exercise of public powers and as such could potentially exclude the measure from the scope of the Regulation (Cf. paragraph 62 of the Court’s Judgment in case C-73/19, Movic and Others).

Interestingly, in relation to ‘the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof’ (first set of criteria), the Court seems to be taking the view that the purpose of the contract on the supply of fuel is not of a decisive importance. As under public international law the purpose of a transaction may arguably have some significance in determining whether that transaction was performed iure gestionis and is therefore not covered by the immunity, it is worth noticing that the Court indicates that the criteria for the determination of a ‘civil and commercial’ character are established for the purpose of the application of EU law (see paragraph 68: ‘neither the legal relationship between the parties to an action such as that in the main proceedings nor the basis and the detailed rules governing the bringing of that action can regarded as showing the exercise of public powers for the purposes of EU law‘; see also paragraph 69 as well as in the operative part 1 of the Judgment: ‘action in question is not pursued under public powers, within the meaning of EU law‘).

Finally, at paragraph 74, the Court indicates that the fact that an international organisation relied on the immunity from execution in support of its action for interim relief does not preclude examination by the court of its international jurisdiction under the Brussels I bis Regulation. For the Court, the issue of whether that immunity is a bar to the court seised having jurisdiction to hear and determine such an action arises at a later stage, after the international jurisdiction of that court has been determined.

On these grounds, the Court considers that:

Article 1(1) of [the Brussels I bis Regulation] is to be interpreted as meaning that an action for interim relief brought before a court of a Member State in which an international organisation invokes its immunity from execution in order to obtain both the lifting of an interim garnishee order executed in a Member State other than that of the forum and a prohibition on levying such an order in the future on the same grounds, brought in parallel with substantive proceedings concerning a claim arising from alleged non-payment for fuel supplied for the purposes of a peacekeeping operation carried out by that organisation, is covered by the concept of ‘civil and commercial matters’, in so far as that action is not pursued under public powers, within the meaning of EU law, which is a matter for the assessment of the referring court.

In relation to the question on the interpretation of Article 24(5) of the Regulation, the Court takes, as observed by one commentator, a restrictive view: it seems that only proceedings that concern per se the enforcement of judgments fall within the scope of that provision.

The Judgment itself can be consulted here.

Non lieu à renvoi

On 27 September 1968, the (then) six member States of the European Communities signed the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. On the occasion of the 50th anniversary of this milestone, the European Court of Justice and the Max Planck Institute Luxembourg held an international conference on the most important developments, achievements and challenges in European civil procedural law since that date.

A book collecting most of the presentations, edited by Prof. Dr. Dres. h.c. Burkhard Hess and Prof. Dr. Koen Lenaerts, with Dr. Vincent Richard as coeditor, has just been published by Nomos Verlag, in the Studies of the Max Planck Institute for International, European and Regulatory Procedural Law series.

The book includes contributions on the Brussels regime authored by members of the European Court of Justice, established academics and young researchers, illustrating the dialogue between the Court of Justice and the national courts on the interpretation of European civil procedural law, and how it has impacted on the Europeanization of private international law. Moreover, it reflects on the future of European civil procedural law and on the suitability of the Brussels regime today.

Selon le rapport annuel sur le contrôle de l’application du droit de l’Union européenne publié par la Commission le 31 juillet 2020, les procédures d’infraction ouvertes contre la France sont en diminution mais restent encore nombreuses.

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La Commission européenne a décidé, le 21 août dernier, d’enregistrer une initiative citoyenne européenne intitulée « Droit aux vaccins et aux traitements » dans le contexte de la covid-19. Au-delà de l’intérêt qu’elle suscite en raison de son contexte, il s’agit par ailleurs de l’une des rares initiatives considérées comme recevables par la Commission.

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The Court of Justice delivered on Thursday (3 September 2020) its judgment in case C‑186/19 (Supreme Site Services GmbH, and alii v Supreme Headquarters Allied Powers Europe) which is about Article 1 and 24 Brussels I bis (along with Article 35) in the context of an action brought by an international organisation based on immunity from execution seeking to have an interim garnishee order lifted and a prohibition on new orders being levied on the same grounds.

Background: “The request has been made in the course of proceedings between, on one hand, Supreme Site Services GmbH, established in Switzerland, Supreme Fuels GmbH & Co KG, established in Germany, and Supreme Fuels Trading Fze, established in the United Arab Emirates (together, ‘the Supreme companies’) and, on the other hand, Supreme Headquarters Allied Powers Europe (‘SHAPE’ [NATO]), established in Belgium, concerning the lifting of an interim garnishee order”.

Decision: “1. Article 1(1) of Regulation (EU) No 1215/2012 […] is to be interpreted as meaning that an action for interim relief brought before a court of a Member State in which an international organisation invokes its immunity from execution in order to obtain both the lifting of an interim garnishee order executed in a Member State other than that of the forum and a prohibition on levying such an order in the future on the same grounds, brought in parallel with substantive proceedings concerning a claim arising from alleged non-payment for fuel supplied for the purposes of a peacekeeping operation carried out by that organisation, is covered by the concept of ‘civil and commercial matters’, in so far as that action is not pursued under public powers, within the meaning of EU law, which is a matter for the assessment of the referring court.

2. Article 24(5) of Regulation No 1215/2012 is to be interpreted as meaning that an action for interim relief brought before a court of a Member State in which an international organisation invokes its immunity from execution in order to obtain both the lifting of an interim garnishee order executed in a Member State other than that of the forum and a prohibition on levying such an order in the future on the same grounds, does not fall within the exclusive jurisdiction of the courts of the Member State in which the interim garnishee order was executed”.

Source: here