Agrégateur de flux

As mentioned earlier this summer, the Max Planck Institute for Comparative and International Private Law in Hamburg will host the third conference for young German-speaking scholars in private international law (“IPR-Nachwuchstagung”) in March 2021. The conference will focus on the theme of PIL for a better world: Vision – Reality – Aberration? and will include a keynote by Angelika Nußberger, former judge at the European Court of Human Rights, and a panel discussion between Roxana Banu, Hans van Loon, and Ralf Michaels.

The organisers are inviting contributions that explore any aspect of the conference theme, which can be submitted until 20 September 2020. The call for papers and further information can be found on the conference website.

Although the conference will mainly be held in German, English proposals and presentations are also most welcome.

Of course, the organizers are mindful of the current Corona pandemic and will adjust the planning accordingly.

The DIRECTORATE-GENERAL JUSTICE AND CONSUMERS of the Commission has recently published a further notice on the EU-Brexit saga in the field of civil justice and private international law.

The notice covers core aspects, such as international jurisdiction, applicable law, recognition and enforcement, specific European procedures (EPO, ESCP), judicial cooperation instruments (Service and Evidence Regulations), insolvency, ans other pertinent issues (public documents, legal aid, mediation).

The full text of the notice may be retrieved here.

It was a year ago since I started writing up this post – I must have gotten distracted, for I continue to find the issues both relevant and interesting. In Bank of Baroda v Maniar & Anor [2019] EWHC 2463 (Comm) (not appealed to my knowledge),  Pearce J considered the attempt by an Indian Bank (with business activities in the UK) to enforce personal guarantees given in respect of the liability of an Irish-registered company (which had been set up by the guarantors) under a credit facility. The Irish company had entered into examinership under Irish law, and the Irish courts had approved a scheme of arrangement. Of interest to the blog is whether the bank had properly served notice on the guarantors, in accordance with the Companies Act 2014 (Ireland) s.549.

Claimant referred inter alia to the Gibbs rule, which I discussed in my posting on [2018] EWHC 59 (Ch) International Bank of Azerbaijan , since confirmed by the Court of Appeal. Defendants rely ia on Article 4 of the EIR 2000, Regulation 1346/2000, materially applicable to the proceedings:  “(1)…the law applicable to insolvency proceedings and their effects shall be the law of the Member State within the territory of which such proceedings are opened…(2) The law of the State of the opening of proceedings shall determine the conditions of the opening of those proceedings, their conduct and their closure. It shall determine in particular: .. j. The conditions for and the effects of closure of insolvency proceedings, in particular by composition; k. Creditors’ rights after the closure of insolvency proceedings.”

Claimant concedes that law of the State of the opening, namely Irish law, may be required to be given effect under the EIR, however argues that effect is limited to those aspects of Irish insolvency law which are necessary for the insolvency proceedings to fulfil their aim, and that Section 549 of the Irish Company Act (which concerns the preservation of the right to pursue guarantors) does not fall within the ambit of “the law applicable to insolvency proceedings” to which Article 4(1) of EIR applies.

In other words Claimant does not entertain the possibility of what was Article 13 in the 2000 EIR and is now Article 16 in the 2015 EIR, also applied by the CJEU in Nike, Kornhaas and Lutz. Rather, it more straightforwardly argues that relevant sections of the Irish Company Act are simply not within the scope of the lex concursus and that (at 84) the law governing the guarantees is English law per Article 4 Rome I.  At 109 Pearce J ultimately rather concisely holds

The important point here is the potential effect of a Section 549 offer on creditors’ meetings. The fact that the making of such an offer gives rise to the possibility of the guarantor accepting the offer and exercising the voting rights of the creditor at a members’ meeting creates a significant connection between the notice and the conduct of the examinership itself. This brings the procedure within the ambit of Article 4 of EIR. (now Article 7 EIR 2015 – GAVC)

Why the relation with the carve-out of Article 13 (now 16) was not discussed is not clear to me, particularly as at 156 ff there is discussion of Article 15 (now 18)’s provision : “The effects of insolvency proceedings on a lawsuit pending concerning an asset or a right of which the debtor has been divested shall be governed solely by the law of the Member State of which that lawsuit is pending.”) 

Claimant not having discussed Article 13 (16), presumably did not raise the possibility of an appeal, either. 

The remainder of the discussion then turns to the validity of service under Irish law,  to be judged by an English judge. With Pearce J at 138 and 143 I see no reason why the EIR would stand in the way of an English judge so applying the lex concursus, even if an Irish judge would do so with an amount of discretion. At 152 and 154, after consideration, service was deemed not to have been valid.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.7.

Transports aériens

Association

Protection des consommateurs

Protection des consommateurs

María Barral Martínez and I reviewed Saugmandsgaard Øe’s Opinion in C-186/19 Supreme Site Services v SHAPE here – see also references to earlier postings in that report. The Court held yesterday. The case involves both Article 1 Brussels Ia, on the issue of ‘civil and commercial’ and the impact on same of claimed immunity; and on the application of Article 24(5)’s exclusive jurisdictional rule for proceedings ‘concerned with the enforcement of judgments’.

The case concerns SHAPE’s appeal to a Dutch Court to lift the attachment aka ‘garnishment’ of a Belgian NATO /SHAPE escrow account by Supreme Services GmbH, a supplier of fuel to NATO troops in Afghanistan. In 2013, Supreme and Allied Joint Force Command Brunssum (JFCB), the Netherlands-based regional headquarters of NATO, set up an escrow bank account in Belgium with the goal of offsetting any contingent liabilities on both sides at the end of Basic Ordering Agreements (BOAs). Supreme Services in 2015 initiated proceedings against SHAPE and JFCB in the Netherlands arguing that the latter parties had not fulfilled their payment obligations towards Supreme. It also attached the account in Belgium.

Maria earlier discussed the oddity that the Dutch Court of Appeal in the meantime has already held on the merits of the case. Shape submitted at the CJEU that this, and the fact that the Belgian courts executed their Dutch counterpart’s lifting of the garnishee order following the Dutch-Belgian 1925 Bilateral Convention, meant the questions had become largely inadmissible. The CJEU disagrees: the case before it has been referred by the Supreme Court, and that court has exclusive power under national law to determine how much it can still interfere in the substance of the case, which is still very much ‘alive’ therefore.

A first issue under discussion was whether the garnishment order, which the Court per C‑261/90 Reichert and Kochler qualifies as ‘provisional, including protective measures’ under (now) Article 35 BIa, concerns ‘civil and commercial matters’. Among others Greece and Shape argue that the nature of the substantive proceedings determines this exercises, while the CJEU, following the view of ia the EC, BEN and NL, insists it is the nature of the rights which the provisional and protective measure seek to safeguard, that must rule that exercise – support is found in 143/78 de Cavel. This finding reinforces the particular nature of ‘provisional, including protective measures’ in the set-up of the Regulation.

On the impact of claimed immunity on the subsequent qualification as ‘civil and commercial’, reference is of course made to the CJEU’s May judgment in C-641/18 Rina which I reviewed here. The Court extends its reasoning there to here despite the fact that as it notes at 61, States’ immunity is automatic and based on par in parem non habet imperium, while for international organisations it is not automatic and has to be conferred by the treaties establishing those organisations. Per Rina the CJEU assesses whether the international organisation acted iure imperii, for which of course it has a range of predecent available. At 66 it emphasises that how the organisation uses the supplied goods (here: to support the military campaign in Afghanistan) does not impact on the nature of the relationship it has with the supplier. The Court ends by instructing the Dutch SC to carry out the necessary factual checks however it suggests that in casu 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 (here: the ordinary Article 705(1) of the Dutch CPR) can be regarded as showing the exercise of public powers for the purposes of EU law.

On the issue of Article 24(5), the Court takes a restrictive view as it becomes all elements of Article 24: reference here is made to CJEU C-722/17  Reitbauer: only proceedings relating to recourse to force, constraint or distrain on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments fall within A24(5)’s scope.

I trust public international lawyers will have more to say about the PIL implications of the judgment.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2.

The French Committee of Private International Law has published a book presenting portraits of 15 former presidents of the Committee since it was established in 1934.

As the goal of the Committee has been to establish a bridge between the bench, the bar and the academy, the presidents have been essentially academics (Batiffol, Goldman) and judges (Bellet, Ponsard, Dray), but also members of the bar (Decugis).

Each of the portraits attempts to assess the contribution of the president to the development of the field, but also to present his personal history.

The foreword and table of contents of the book can be accessed here. More information is available here.

Par un arrêt substantiel, la Cour de justice de l’Union européenne se penche sur les conditions de mise en œuvre du règlement du 4 juillet 2012 relatif aux successions, en s’arrêtant sur les notions de succession ayant des incidences transfrontières et de résidence habituelle du défunt, ainsi que sur la possibilité de choisir la loi applicable à la succession.

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Hormis le cas où la confiscation porte sur un bien qui constitue le produit ou l’objet de l’infraction, le juge, en ordonnant une telle mesure, doit apprécier le caractère proportionné de l’atteinte portée au droit de propriété de l’intéressé lorsqu’une telle garantie est invoquée ou procéder à cet examen d’office lorsqu’il s’agit d’une confiscation de tout ou partie du patrimoine. 

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