Agrégateur de flux

Readers previously obtained a preview of the 13 principles which make up the Asian Principles for the Recognition and Enforcement of Foreign Judgments, a publication by the Asian Business Law Institute (ABLI). I am delighted to be informed by ABLI that the Asian Principles has been formally released today.

The blurb is below:

“Authored by leading academics and practitioners with extensive regional exposure, the Asian Principles is a set of 13 overarching principles that underpin the recognition and enforcement of foreign judgments in the Asia Pacific. Each principle comes with a detailed commentary fully supported by citations, distills the commonalities and differences of the law on foreign judgments recognition and enforcement in 15 countries (all ten ASEAN member states, plus Australia, China India, Japan and South Korea) for its readers, and where appropriate, suggests ways forward for the development of the law in this area.

The first of any such publication in the world, the Asian Principles is available here where you can download the first chapter free of charge. The table of contents and a detailed FAQ list are also available at the link. It is hoped that the release of the Asian Principles can serve to promote convergence in this area of the law by facilitating greater portability of judgments within ASEAN and its major trading partners, which can in turn facilitate cross-border transactions by reducing legal uncertainties, lowering transaction costs and minimizing associated legal frictions.”

The contributors to the Asian Principles are:

• Dr Adeline CHONG (Project Lead and editor, Singapore Management University)
• Dr Bích Ngoc DU (Dean of Faculty of Law, Ho Chi Minh City Open University)
• Dr Yujun GUO (Professor, China Wuhan University Institute of International Law)
• Dr Colin ONG QC (St Philips Stone Chambers, London)
• Dr Yu Un OPPUSUNGGU (Lecturer, Faculty of Law Universitas Indonesia)
• Professor Narinder SINGH (Former Chairman, International Law Commission (UN); Maharishi Law School)
• Dr Poomintr SOOKSRIPAISARNKIT (Lecturer in Maritime Law, Australian Maritime College, University of Tasmania)

ABLI has kindly offered readers of ConflictofLaws. net an exclusive discount of 10% off for the Asian Principles. Please write to catherine_shen@abli.asia to get your unique coupon code.

Delfly
Transport
Un passager dont le vol a été annulé ou a subi un retard important peut exiger le paiement de l’indemnisation prévue par le droit de l’Union dans la monnaie nationale du lieu de sa résidence

Vivendi
Rapprochement des législations
La disposition italienne empêchant Vivendi d’acquérir 28 % du capital de Mediaset est contraire au droit de l’Union

It is widely known that disputes related to sports are most of the times referred to arbitration. Football is of course in the forefront. Usually cases referred to either the CAS or the FIFA Dispute Boards lead to an award. Not so in the case at hand. As a result, the creditor was left with the sole option, i.e. to return civil litigation. However, the road was not paved with roses…

1. The facts

The Appellant, a resident of the Netherlands, is a professional football player’s agent of Dutch nationality, licensed by the Royal Dutch Football Association. The Respondent is a Greek football société anonyme, which runs a professional football team participating in the Greek Super League. The Club is affiliated with the Hellenic Football Federation (the “HFF”), which in turn is a member of the Fédération Internationale de Football Association (“FIFA”). It has its seat in Thessaloniki, Greece.

In May 2012, the Appellant represented the professional football coach D. and three coach assistants as their agent in the contractual negotiations with the Respondent. In this context, the Parties signed a Private Agreement setting out, in essence, the terms and conditions on which the Respondent should pay the Appellant for his services in facilitating the signing of the contracts between the Respondent and the Coach, and the Assistant Coaches.

The Agreement stated, inter alia, the following: ‘the parties also expressly agree that the competent Committee of FIFA will have jurisdiction to decide for any and all disputes that might arise from or in relation to the present agreement and that the FIFA Regulations will apply to any such dispute’.

Owed to a negative result, the Team lost its chance to qualify for the Greek cup final. As a consequence, a clash was provoked between the Team and the Coach, which resulted in the discontinuation of their cooperation, and the non-payment of the second tranche to the Agent by the Team.

Stage A: FIFA

On September 2014, the Appellant filed his claim with FIFA, claiming the Respondent’s payment of 70.000 € in accordance with the Agreement. FIFA informed the Appellant of the following:

We would like to draw your attention again to art. 1 of the Players’ Agents Regulations, which stipulates that “These regulations govern the occupation of players’ agents who introduce players to clubs with a view to negotiating or renegotiating an employment contract or introduce two clubs to one another with a view to concluding a transfer agreement within one association or from one association to another”. Moreover, art. 1 par. 2 of the Regulations stats that “The application of the regulations is strictly limited to players’ agents activities described in the paragraph above”. In light of the aforementioned and by way of clarification, it would rather appear that your claim lacks legal basis, since the services provided by you and which are object to your claim i.e. providing services on behalf of the coaching staff are outside the scope of the abovementioned provisions’.

Stage B: CAS

On December 2014, the Appellant filed an appeal with the Court of Arbitration for Sport. He sought, inter alia, to: (1) set aside the decision issued on by the FIFA; (2) issue a (new) decision condemning Respondent to pay Appellant an amount of 70.000 € on outstanding commissions.

The Sole Arbitrator noted that Article R47 of the CAS Code states as follows: ‘An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body’.

Based on the foregoing, the Sole Arbitrator stated that it is undisputed that the CAS has jurisdiction to hear appeal cases only under the condition that a ‘decision’ has been rendered, in which connection the Appellant argued that the FIFA Letter satisfies the requirement for constituting a ‘decision’, whereas the Respondent denied that this is the case.

The Appellant did not deny the accuracy of FIFA’s (alleged) decision regarding lack of jurisdiction and did not really want to have this issue verified by the CAS. As stated in the appeal that he rather sought ‘an award on the basis of the merits and essentials of the case here presented, despite the fact that the appealed decision did not entail an elaboration on the essential content of the dispute’.

The Arbitrator regarded the appeal as an attempt to circumvent FIFA’s lack of jurisdiction – which was not contested by the Parties – and, in this manner, to make the CAS, as an appeals body, hear and decide on the substantive aspects of the dispute, notwithstanding that FIFA, as the first-instance body chosen by the Appellant, did not consider itself to have jurisdiction. Since it neither is, nor should be possible to circumvent a first-instance judicial body’s undisputed lack of jurisdiction to hear and decide on a substantive issue by merely attempting to refer such a decision to the CAS through a more or less fictitious appeal, the Sole Arbitrator ruled that the CAS had no jurisdiction to hear the ‘appeal’. In addition, the Arbitrator stated that an appeal to the CAS filed under the rules governing appeal proceedings set out in the Code therefore cannot merely be ‘transformed’ into a request for arbitration.

Based on the above, the Sole Arbitrator found that the CAS did not have jurisdiction to hear and decide the present dispute.

Stage C: Swiss Supreme Court

In accordance with the CAS Statutes, the agent challenged the CAS ruling before the Swiss Supreme Court. However, the latter did not render a ruling, because the agent requested discontinuance of the proceedings. Hence, the CAS decision became final and conclusive.

Stage D: Thessaloniki Court of 1st Instance

As a consequence, the agent returned to the path of ordinary civil and commercial court jurisdiction. He filed a claim before the Thessaloniki Court of First Instance. The team challenged the jurisdiction of Greek courts, invoking the arbitration clause stipulated in the agreement. In a rather superficial fashion, the Thessaloniki court ordered the stay of proceedings, and referred the case to the FIFA Dispute Resolution Chamber. The agent lodged an appeal.

2. The Ruling of the Thessaloniki Court of Appeal of 7 May 2020

The Thessaloniki Court of Appeal quashed the first instance judgment by applying domestic rules of arbitration. It considered that, under the circumstances above, the arbitration clause has lost its validity.

In addition, it dismissed a fresh plea by the Team, by virtue of which the dispute should be tried by the Financial Dispute Resolution Committee of the Hellenic Football Federation (HFF). The court invoked Article 1 Para 3 of the HFF Football Agents Statutes, which has a similar wording to that of Art. 1 of FIFA Players’ Agents Regulations (see above under I).

As a next line of defence, the Team pleaded a set off the claim by way of defence with respect to two costs orders issued against the agent by the CAS and the Swiss Supreme Court respectively. The Thessaloniki CoA dismissed the defence, stating that a set off is not possible, because the orders were not declared enforceable in Greece. Following the above, the court examined the case on the merits, applying Greek law. It recognized that the Team ought to compensate the Agent in full satisfaction of the claim.

3. Remarks

Notwithstanding that, in light of the evidence produced, the outcome of the judgment was correct, the court started and finished its examination by omitting any reference to provisions of International Commercial Arbitration and Private International Law. This proves yet another time that courts prefer to stick to their national comfort space, defying any international rules applicable in Greece by virtue of ratification or direct application.

In particular, the court failed to refer to the rules of the 1999 Greek law on International Commercial Arbitration, i.e. the UNCITRAL Model Law on Arbitration, although the case was falling under its scope.  In addition, the reasoning concerning the costs orders is not free of doubt: Incidental recognition of foreign judgments is regulated under the Lugano Convention; hence, the Swiss Supreme Court costs order should have been taken into account. Things are a bit complicated in regards to the CAS costs order. Incidental recognition of foreign arbitral awards is not regulated in the 1958 New York Convention. However, Article III of the Convention states that ‘Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon’. Article 903 Greek Code of Civil Procedure states that a foreign arbitral award is recognized automatically, if the requirements set for recognition are met. Hence, incidental recognition of the CAS costs order was also possible.

Finally, bearing in mind the cross-border nature of the dispute, the court could have examined the issue of applicable law under the scope of the Rome I Regulation. In fact, Article 4(1)(b) provides that, in similar cases, the law applicable is the law of the country of the habitual residence of the service provider. However, it appears that both litigants referred to provisions of Greek law in their briefs. Hence, the court considered that the parties tacitly agreed for the application of domestic law.

In  East-West Logistics LLP v Melars Group Ltd [2020] EWHC 2090 (Ch), at issue was COMI – Centre of Main Interests determination under Regulation 2015/848 of a  trading company incorporated in BVI, until 10 December 2015. It then moved its registered office to Malta, two months after service of the claim form in BVI proceedings and a month after acknowledging service, with regard to a charterparty gone wrong.

CJEU Interedil including its insistence on third-party observability, is the main authority called upon by parties. Baister DJ adds Northsea Base Investment in particular and notes at 22

Because this company traded virtually rather than physically, much of the case law is of little assistance: it deals largely with companies of substance that have a headquarters, offices, a tangible physical presence or assets or staff who are located and work somewhere or other.

He also notes, at 23 and I agree, that the forum shopping which the company had clearly engaged in, is not of itself of material relevance (despite nota bene the Regulation’s recitals betraying a contempt for forum shopping): ‘a debtor is entitled to move his centre of main interests and to do so for self-serving reasons. The question is whether the move is real or illusory.’ Baister DJ refers to Shierson v Vlieland-Boddy [2005] EWCA Civ 974 which albeit held early in the life of the (previous) EU Insolvency Regulation continues to have relevance.

The judge comments at 22 that ‘there appears to have been no attempt to notify any third party of the move: no evidence is given of the company’s having done so; on the contrary,…, the company continued to use a BVI address after the move’ – which could make one think that in fact BVI should emerge as a strong contender for COMI – even if seemingly neither party suggested it was.

The judge at 27 emphasises the proprio motu instruction of the EIR, i.a. in Article 4: a judge cannot ‘avoid the obligation imposed on it by the Regulation to “examine of its own motion whether the centre of the debtor’s main interests…is actually located within its jurisdiction,..”: the place of registered office is not a fallback in case parties do not provide proper evidence: the judge must examine COMI on the facts himself.

Then follows an admirably serious engagement with the few elements present in the case, leading to Baster J opting for England as COMI: at 54:

I conclude on the basis of the documentary material, the location of the company’s banking facilities from time to time, the location of its legal advisers, the location of at least one judgment creditor to which a debt was to be paid and the place where the company was involved in litigation that at the relevant time the company was administering its interests in both the UK and Switzerland so that both were centres of the company’s interests. I conclude, by a narrow margin and with misgivings, that on balance the greater use of English law for contracts, the greater use of London as a seat of arbitration, the actual recourse to or forced involvement in legal proceedings here and the consequential use of English lawyers makes the UK, on the balance of probabilities, the main centre of those interests. The company’s affairs seem to have been conducted in this country more than in Switzerland, certainly as far as contractual and litigation interests were concerned, although it is, I accept, hard to be precise.

I tend to disagree and I believe it is at 35 that the mistake is being made:

Locating the company’s centre of main interests in Malta rests on its registered office being there and no more than that. There is unchallenged evidence from the petitioner that there is no operational office and no one conducting the business of the company there. The registered office is a “letter box” and no more. It follows that if the company “conducts the administration of its interests on a regular basis elsewhere” such that that “is ascertainable by third parties,” that “elsewhere” can only be either the UK or Switzerland.

The Registered office presumption despite its rebuttability, remains a presumption. If on the facts, ‘the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties’ (definition of COMI in A3(1) EIR) does not clearly point to another place than the registered office, the presumption must remain in place. In the case at issue, the starting point seems rather to have been to establish either the UK or Switserland as COMI. In doing so the judge I feel did not give enough weight to the COMI presumption. Even with the proprio motu instruction, the judge must not scavenge for alternative COMI; there must be convincing evidence of the alternative, which I do not think from the judge’s description, is available here.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.2.Heading 5.6.1.2.4.

En application du règlement Bruxelles II bis, « lorsque des véhicules ont été illégalement équipés dans un État membre par leur constructeur d’un logiciel manipulant les données relatives aux rejets des gaz d’échappement avant d’être acquis auprès d’un tiers dans un autre État membre, le lieu de la matérialisation du dommage se situe dans ce dernier État membre ».

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