Agrégateur de flux

In Colouroz Investment et al [2020] EWHC 1864 (Ch.), Snowden J at 59 ff considers the classic issues (see ia Lecta Paper) on the jurisdictional issue: no cover under the Insolvency Regulation; cover under Brussels Ia (future Brexit alert: ditto under Lugano) left hanging and assumed arguendo. At 62 Snowden J summarises the position excllently:

‘(T)he court has usually adopted the practice of assuming that Chapter II of the Recast Judgments Regulation applies to schemes of arrangement on the basis that the scheme proposal is to be regarded as a “dispute” concerning the variation of the existing relationship between the company and its creditors under which the company “sues” the scheme creditors as “defendants” seeking an order binding them to the scheme.  If, on the basis of that underlying assumption, the court has jurisdiction over the scheme creditors pursuant to Chapter II of the Recast Judgment Regulation, then there is no need for the Court to determine whether that assumption is correct.

At 64: ‘Credit Agreements and the ICA (Intercreditor Agreement, GAVC) were originally governed by New York law and were subject to the exclusive jurisdiction of the New York Court. However, as a result of the amendments made on 2 June 2020 with the consent of the requisite majority of the lenders under the contractual amendment regime, the governing law and jurisdiction provisions have now been changed to English governing law and English exclusive jurisdiction.’ At 65: expert evidence on NY law suggests amendments made on 2 June 2020 are valid and binding as a matter of New York law.

This to my mind continues to be a fuzy proposition under the Rome I Regulation: change of lex contractus by majority must beg the question on the relevant provisions under Rome I. As far as I am are, this hitherto has not been driven home by anyone at a sanction hearing however it is bound to turn up at some point.

At 66 Snowden J, who gives consent for the sanction hearing, announces that one issue that will have to be discussed there is that if the Schemes are sanctioned, the intention is to have the jurisdiction clauses then changed to asymmetric jurisdiction clauses, detailed in 21-23: lenders will be entitled to bring proceedings against the obligors in any jurisdiction although any proceedings brought by the obligors must be brought in England. At 66 in fine: ‘that question is not for decision at this convening hearing, but should be considered at the sanction hearing.’

That’s a discussion I shall look forward to with interest.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

#Restructuring.
Schemes of arrangement. Involves US, UK, contintental EU corporations.
Convening hearing approved.
Contentious issue of future change to assymetric choice of court deferred to the sanction hearing. https://t.co/OU9MqYdVFX

— Geert Van Calster (@GAVClaw) July 13, 2020

Hamida Begum v Maran UK [2020] EWHC 1846 (QB) engages exactly the kinds of issues that I have just posted about, in court rather than in concept. On 30th March 2018 Mr Mohammed Khalil Mollah fell to his death whilst working on the demolition of a defunct oil tanker in the Zuma Enterprise Shipyar in Chittagong (now Chattogram), Bangladesh. On 11th April 2019 the deceased’s widow issued proceedings claiming damages for negligence under the UK Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976; alternatively, under Bangladeshi law. The scope of the proceedings has subsequently been broadened inasmuch as draft Amended Particulars of Claim advance a cause of action in restitution: more precisely, unjust enrichment.

Application in the current case is for strike-out and /or summary judgment (denying liability) hence the legal issues are dealt with at prima facie instead of full throttle level. One or two of the decisions deserve full assessment at trial. Trial will indeed follow for the application was dismissed.

The case engages with the exact issues in exchanges I had at the w-e.

Proceedings have not been brought against the owner of the yard and/or the deceased’s employer. Both are Bangladeshi entities. Maran (UK) Ltd,  defendant, is a company registered in the UK and, it is alleged, was both factually and legally responsible for the vessel ending up in Bangladesh where working conditions were known to be highly dangerous.

Focus of the oral argument has been whether claim discloses viable claims in English law on the basis of tort of negligence (answer: yes) and in unjust enrichment (answer: no).

The issue of liability in tort is discussed on the basis of English law, which is most odd for Rome II might suggest Bangladeshi law as the lex causae and Justice Jay himself says so much, but only at 76 ff when he discusses Rome II viz the issue of limitation.

On the tort of neglicence claimant argues under English law, with direct relevance to the current debate on environmental and human rights due diligence, that a duty of care required the defendant to take all reasonable steps to ensure that its negotiated and agreed end of life sale and the consequent disposal of the Vessel for demolition would not and did not endanger human health, damage the environment and/or breach international regulations for the protection of human health and the environment. The EU Ship Recycling Regulation 1257/2013 was suggested as playing a role, which is dismissed by Justice Jay at 24 for the Regulation was not applicable ratione temporis.

At 30, claimant’s case on negligence is summarised:

First, the vessel had reached the end of its operating life and a decision was taken (perforce) to dispose of it. Secondly, end-of-life vessels are difficult to dispose of safely. Aside from the evident difficulties inherent in dismantling a large metal structure, a process replete with potential danger, an oil tanker such as this contains numerous hazardous substances such as asbestos, mercury and radio-active components. Although these were listed for Basel Convention purposes and for the attention of the buyer, and the deceased was not injured as a result of exposure to any hazardous substance, the only reasonable inference is that waste such as asbestos is not disposed of safely in Chattogram. Thirdly, the defendant had a choice as to whether to entrust the vessel to a buyer who would convey it to a yard which was either safe or unsafe. Fourthly, the defendant had control and full autonomy over the sale. Fifthly, the defendant knew in all the circumstances that the vessel would end up on Chattogram beach. Sixthly, the defendant knew that the modus operandi at that location entailed scant regard for human life.

The gist of the argument under tort therefore is a classic Donoghue v Stevenson type case of liability arising from a known source of danger.

At 42 ff Justice Jay discusses what to my mind is of great relevance in particular under Article 7 Rome II, should it be engaged, giving claimant a choice between lex locus delicti commissi and lex locus damni for environmental damage, in particular, the issue of ‘control’. One may be aware from my earlier writings (for an overview see my chapter in the 2019 OUP Handbook of Comparative environmental law) that the determination of the lex causae for that issue of control has not been properly discussed by either the CJEU or national courts. This being a prima facie review, the issue is not settled definitively of course however Justice Jay ends by holding that there is no reason to dismiss the case on this issue first hand. This will therefore go to trial.

 As noted Rome II is only discussed towards the end, when the issue of limitation surfaces (logically, it would have come first). Claimant does not convince the judge that the case is manifestly more closely connected with England than with Bangladesh under A4(3) Rome II. Then follows the discussion whether this might be ‘environmental damage’ under Article 7 Rome II, which Justice J at 83 ff holds preliminary and prima facie, it is. That might be an overly broad construction of A7 Rome II, I believe, which shows too much reliance on the context of the litigation.

At 85 a further issue for debate is trial is announced, namely whether the one-year statute of limitation under Bangladeshi law, should be extended under Article 26 Rome II’s allowance for ordre public (compare Roberts and CJEU C-149/18 Martins v DEKRA – that case concerning lois de police and statutes of limitation. 

Plenty of issues to be discussed thoroughly at trial.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

I thought I should post briefly, including for archiving purposes, on one or two developments and recommendations viz the draft UN Business and Human Rights Treaty. This also follows exchanges I had at the w-e on the issue.

See Nadia Bernaz here for an introduction and see here for a document portal. The overview of statements made, shows some attention being paid to forum non conveniens, universal jurisdiction, and applicable law – a summary of those comments re applicable law is here at 84. That same document in Annex II contains the list of experts and further in the Annexes, their views on jurisdiction etc. (incl. forum necessitatis) which anyone wishing to write on the subject (that would include me had I not a basket already thrice full) should consult.

Claire Bright at BIICL also posted her views on the applicable law issues last week, including a proposal to exclude renvoi from the applicable law Article.

Things, they are moving. Including in case-law. That will be my next posting.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Swissport Fuelling Ltd, Re [2020] EWHC 1499 (Ch) at 59 ff repeats the classic (see Lecta Paper for the status quo), unresolved issue of jurisdiction for schemes of arrangement under under BIa (hence also: Lugano 2007). The case is worth reporting for slightly unusually, the scheme company, UK incorporated, acts as guarantor rather than borrower. Borrowers are mainly incorporated in Luxembourg and Switserland. Under the Credit Agreement, the Borrowers do not have a right of contribution or indemnity against the guarantors, so a claim against them would not ricochet against the UK incorporated Company.

Recognition under New York law is discussed – not yet the issue of recognition under Luxembourgish and Swiss law. That, one imagines, will follow at the sanctioning hearing, which will ordinarly follow the meeting of the scheme creditors which Miles J orders in current judgment.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

Scheme of arrangement. Scheme company is UK incorporated and guarantor, not borrower. Borrowers are in the main Luxembourg and Switserland incorporated.
Hence the classic considerations of recognition and enforcement. https://t.co/dih7ZgXJhp

— Geert Van Calster (@GAVClaw) July 10, 2020

A comprehensive and innovative volume by Tobias Lutzi was recently released providing a dedicated analysis of the EU private international law framework as it applies to online activities and to the civil liability arising therefrom. The volume is a welcome addition to Oxford University Press’s already thriving ‘Oxford Private International Law Series’.

Linking the question of the role of private international law in addressing the challenges brought forth by the Internet to the broader debate about the potential of private international law in conflicts regulation and resolution, the Author identifies in the Internet’s independence from State border and in the prevalence of private ordering the two key challenges for private international law vis-à-vis civil liability arising from online activities.

Selecting, as core areas for his analysis, the protection of personality rights, the protection of intellectual property rights, the prevention of unfair competition, the regulation of agreements, and the protection of weaker contract parties, the Author expounds on the potential of private international law as a tool for regulation. In doing so, he provides a comprehensive overview and critical analysis of the current private international law framework for Internet activities in the European Union, extending his analysis to comparisons with the U.S. legal framework, where desirable.

Against this background, the Author puts forth a proposition for an alternative approach, which aims to bring into balance the interests of the different stakeholders and regulators and the legitimate expectations of the parties to a legal relationship. Notably, he advocates for a new EU instrument providing specific rules of jurisdiction and applicable law that combine a country-of-origin default rule with a targeting-based exception for the structurally weaker parties.

Overall, Tobias Lutzi’s book successfully combines complex theoretical analysis with concrete propositions in a multifaceted and developing area of the law. It exemplifies the contribution of private international law in addressing the challenges arising in information services: in doing so, it illustrates how policies and political aims may be promoted via private international law. As such, his book is an essential and highly recommended reading for academics, regulators, and practitioners.

Tobias LUTZI, Private International Law Online. Internet Regulation and Civil Liability in the EU, pp. vii-223 (Oxford University Press, 2020), available for purchase at global.opu.com.

One consequence of the Europeanisation of private international law is the need to examine and characterise certain phenomena, which have already been classified under national law, by reference to new EU Regulations. Family law, in particular, raises the question as to whether existing characterisation under national private international law regimes can be maintained. The German Federal Court (Bundesgerichtshof, BGH) had the opportunity to consider this issue in a judgment dated 18 March 2020 (BGH XII ZB 380/19). 

A mahr is a marriage gift, or dower, under Islamic law promised from the groom to the bride, which usually becomes due upon divorce. It has different functions, such as to secure the financial situation of the bride upon marriage, as well as to protect her against an arbitrary divorce. Because the institution is unknown in Western legal systems, and because the specific legal arrangements of a mahr may differ between jurisdictions, its characterisation raises difficult problems.

In 2006, a Libyan national married a German national who had converted to Islam. At an Islamic ceremony in Germany, they signed a document stating – in German –: “dower coverage: Hajj”. A Hajj is an Islamic pilgrimage to the Kaaba in Mecca. In the following year, the couple also celebrated a civil marriage in Germany, the country of their common domicile.

In 2016, the couple divorced – again in Germany, where they were still living. The former wife then asked for the Hajj she had been promised at the Islamic ceremony. As the former husband declined, she sued him in a German court.

The case ended up before the German Federal Court, which ruled that the promise should be characterised as a “general effect of marriage” and that, therefore, the conflicts rule of Article 14 of the Introductory Law to the German Civil Code (Einführungsgesetz zum Bürgerlichen Gesetzbuch – EGBGB) applied. According to this provision, German law governed the mahr, given the spouses’ common domicile in Germany.

The ruling is therefore consistent with previous case law of the Federal Court, which decided that a similar gift under Iranian law (a mehir) is to be characterised as a “general effect of marriage” within the meaning of Article 14 EGBGB (BGH NJW 2010, 1528). The present case, however, warrants special attention, because the Federal Court considered a number of alternative characterisations. Throughout the comprehensive judgment, the Court made some interesting comments about important acts of European Private International Law.

The first characterisation that the Federal Court considered was contractual promise. As the mahr agreement was made before the Rome I Regulation (Article 28 Rome I) came into force and no law had been chosen, Article 28 EGBGBG, which corresponds to Art 4 of the European Convention on the law applicable to contractual obligations 1980 (ECC), would have applied. The Court highlighted that, as the party obliged to characteristic performance had his habitual residence in Germany, German law would had applied if Art 28 EGBGB governed the case. The result would therefore have been the same as that under Article 14 EGBGB, so that the Federal Court did not need to decide whether this characterisation was correct.

Second, the Federal Court analysed the mahr as matrimonial property and drew attention to the scholarly debate as to whether a dower fall within the Regulation on Matrimonial Property Regimes. Yet, it did not have to decide this question, as the Regulation applies only to spouses who marry, or who specify the law applicable to the matrimonial property regime, after 29 January 2019 (Art 69(3) Regulation on Matrimonial Property Regimes). Article 15 EGBGB, which would have therefore applied, uses the same connecting factors as Art 14 EGBGB, save for the possibility of a choice of law by the parties. As the parties had not chosen the applicable law of the promise, the result would again have been the same as that under Article 14 EGBGB: German law applies.

Third, the Federal Court considered the mahr being characterised as a maintenance obligation under the Maintenance Regulation. The Court cited a CJEU decision for the proposition that a provision is ‘maintenance’ if it is designed to enable one spouse to provide for himself or herself, or if the needs and resources of each of the spouses are taken into consideration when determining its amount (Case C-220/95, Boogaard, margin no 22). While the Court opined that this would rarely be the case for a mahr, it considered that it did not need to decide the question. Since the spouse potentially entitled to the dower was domiciled in Germany, characterisation of the mahr as a maintenance claim would have resulted in the application of German law.

Finally, the Federal Court also considered the obligation to deliver the mahr as a legal consequence of divorce. Article 17 EGBGB submits the property effects of divorce to the law applicable under the Rome III Regulation. Again, the Federal Court ducked the question of whether this characterisation is correct. It instead relied on the fact that, because of the common domicile of the parties, German law would be applicable according to Article 8(1)(a) Rome III.

Ultimately, this ruling may seem much ado about nothing. However, it serves as a reminder of the complex legal problems a mahr may create under European Private International Law, and provides a glimpse of the issues that the CJEU will have to deal with in the event of a request for a preliminary ruling, which will be inevitable should the precise characterisation require determination in a specific case. One only has to tweak the facts of the case slightly, for instance, by assuming that one of the spouses is domiciled abroad, to see the uncertainty about the characterisation breaking out into the open. The simple fact that the Federal Court examined four alternative characterisations is testimony to the difficulties, as well as the fascinating and complex challenges that legal institutions unfamiliar to us pose, not only for national, but also for European international private law.

by Jie (Jeanne) Huang, Associate Professor of the University of Sydney Law School, Jeanne.huang@sydney.edu.au

Recently, in Australian Information Commission v Facebook Inc ([2020] FCA 531), the Federal Court of Australia (‘FCA’) addresses substituted service and the Hague Service Convention in the contexts of the COVID-19 pandemic. This case is important on whether defendants located outside of Australia in a Hague Convention state can be served by substituted service instead of following the Convention.

1. Facts:

Facebook Inc is a company incorporated in the US (‘Facebook US’), while Facebook Ireland is in Ireland. Due to the Cambridge Analytica scandal, Facebook was fined in the US and the UK. The office of the Australian Information Commission has also investigated Facebook over the scandal since April 2018 and hauled Facebook into the FCA on 9 March 2020.[1] The Commission alleged that Facebook Inc and Facebook Ireland breached s 13 G of the Privacy Act (Cth) from 12 March 2014 to 1 May 2015.

Both defendants appointed King & Wood Mallesons (‘KWM’) to respond to the Commission’s inquiries before the FCA proceeding was initiated. On 6 March 2020, the Australian Government Solicitor (‘AGS’) asked KWM whether it had instructions to accept the service of originating process. KWM replied that it acted for the respondents but was not instructed to accept the service on their behalf. They also indicated that it had instructions to discuss the substantive issues raised in the proceeding.

Consequently, the Commission sought orders under Federal Court Rules (‘FCR’) 2011 rr 10.42 and 10.43(2) for leave to serve Facebook US and Facebook Ireland (1) through the central authorities according to Article 5 of the Hague Convention and (2) by substituted service under r 10.24. With respect to the latter, the proposed substituted service was to serve the respondents by emailing the judicial documents to the named persons at KWM and the Head of Data Protection and Privacy and Associate General Counsel at Facebook Ireland.

2. Ruling

On 22 April 2020, the FCA rendered a judgment favourable to the Commission granting both leave to serve outside Australia and the order for substituted service.

Leave to serve outside Australia was granted pursuant to FCR 2011 rr 10.42, 10.43(2) and (4). The rationale for this was manifold. First, the court held that, vested by the Parliament under of the Privacy Act (Cth), it had original jurisdiction in the proceeding. Second, as the proceeding was related to the construction, effect or enforcement of the Privacy Act, it fell into pigeonhole 14 of r 10.42. Third, the Commission established a prima facie case for the reliefs claimed in the proceeding. Moreover, the proposed method of service via the central authorities in the US and Ireland complied with Article 5 of the Hague Convention. Therefore, the court granted leave for service outside Australia.

Regarding substituted service, the court invoked FCR 2011 r 10.24 in agreeance with the Commission and granted the order for substituted service for two reasons.

First, in circumstances where the pandemic was declared by the World Health Organisation and is directly affecting the US, it is not presently practicable to effect service on Facebook US pursuant to Article 5 of the Hague Convention. ABC Legal is the contractor for the US Department of Justice, Civil Division, and the Office of International Judicial Assistance. It is in charge of serving foreign processes on private individuals and companies in the US under the Hague Convention. However, due to the COVID-19 pandemic, ABC Legal has ‘suspended service of process nationwide’ across the US according to its website. Consequently, the FCA considered that it was substantially difficult for the Commission to effect service on Facebook US pursuant to Article 5 of the Hague Convention. On the other hand, despite the pandemic also affecting Ireland, the court acknowledged that Ireland’s High Court and postal services remained operative.[2] Nevertheless, the court held that ‘it is impracticable to do so in the rapidly changing and evolving environment caused by the current pandemic; the present situation may have changed by the time service in the relevant way would be sought to be effected’.[3]

Second, the proposed method of substituted service by email was likely to bring the proceeding to the attention of the respondents. This was because the respondents are aware of this proceeding. Moreover, in representing the respondents, the named individuals at KWM in Sydney and the Facebook Head of Data Protection and Privacy and the Associate General Counsel in Ireland replied to the Commissioner’s inquiries which led to this proceeding. Therefore, substituted service was ordered and the Commission was allowed to email judicial documents to these individuals.

3. Comments:

Regarding substituted service, the Facebook judgment provides that[4]

‘[t]his Court has held, in circumstances analogous to the present, that an order for substituted service may be made under either r 10.24 or r 10.49 : Commissioner of Taxation v Zeitouni (2013) 306 ALR 603 at [60] (Katzmann J); see also: Australian Competition and Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035 at [18] (French J); Commissioner of Taxation v Oswal [2012] FCA 1507 at [32] (Gilmour J). Even if that position is incorrect, I would have ordered substituted service under r 10.49, with a dispensation from the implicit requirement to attempt service under r 1.34, for equivalent reasons to those for which I will order substituted service under r 10.24, explained next.’

Here, the court’s reasoning is dubious in three respects.

First, all the three cases cited above are not factually analogous to Facebook. Whilst the service of process in Facebook was subject to the Hague Convention, the cases of Zeitouni, Kokos, and Oswal were not. Specifically, this was because Zeitouni[5] and Kokos[6] were instances where the defendants’ addresses were unknown; in Oswal, the court noted that it was unaware of who might be present at the address to accept service on behalf of the defendant.[7] Article 1 of the Hague Convention explicitly indicates that these are circumstances where the Convention is not applicable.[8] Therefore, these three cases can be distinguished from Facebook. This differentiation is insurmountable due to the crucial application of the Hague Convention’s ‘non-mandatory but exclusive’ nature that informs service.[9] That is, service in Convention states must be conducted in a method permitted by the Convention. When the Convention is applicable, as in Facebook, the attempt requirement of r 10.49 should not be lightly dispensed with unless the rare instance under r 1.34 is satisfied.

Second, in Facebook, it is unclear what warrants the court to invoke the rare instance of r 1.34 in disregarding the usual attempt requirement contemplated in r 10.49 – namely, that service according to the Hague Convention should be attempted first and when it had not been successful, substituted service may be applied. There is a long-standing legal doctrine holding that substituted service should not be used to extend the court’s jurisdiction in the absence of any other power to do so. In Laurie v Carroll, the High Court of Australia held that substituted service should not be used to replace personal service if the defendant was out of the jurisdiction when a writ was issued. In Facebook, there is no real urgency for service because the claim centered on the defendants’ conducts in 2014 and 2015. Cambridge Analytica is bankrupt. The Commission did not produce any evidence substantiating that Facebook US and Facebook Ireland are currently continuing their violation of the Privacy Act (Cth) in Australia. There is also no evidence showing that the two defendants may move their assets outside of Australia or that any third party should be joined swiftly. Although COVID-19 may lead to uncertain proceeding delays, this reason alone is unlikely to justify the substitution of the Hague Convention. This is because Australia has a treaty obligation to serve foreign defendants in a Convention state according to the ‘non-mandatory but exclusive’ nature of the Convention. This obligation cannot be dispensed with in a proceeding that is not time-sensitive. Moreover, a delay of proceeding is distinct from the urgency of proceeding contemplated in r 1.34, as per Swan Brewery Co Ltd v Atlee. In this case, the defendant was in the Philippines, where service through diplomatic channels could take six months or considerably more. Evidence also demonstrated that ‘the authorities in the Philippines [would] not assist with service via the diplomatic channel’. In contrast, private service could be affected within 48 hours. The plaintiff applied for an order to serve a sequestration order by post, which was rejected by the court; while the utilisation of the diplomatic channel was impractical, it was not established on the evidence that personal service was not impractical. Similarly, in Facebook, although the ABC Legal Service in the US was not functioning, there was no evidence showing that the US postal service was not operational. The COVID-19 pandemic’s effect in delaying the proceedings cannot justify the dispense of the attempt requirement in r 10.49 alone.

Third, more evidence is necessary to demonstrate that rr 10.24 and 10.45 are satisfied in Facebook. Where Ireland’s High Court and postal services remain operative even during COVID-19 pandemic, it is still possible to serve Facebook Ireland in accordance with Hague Convention. The Facebook judgment does not specify what evidence should be provided by the plaintiff in order to prove that it is not sensible or realistic to effect service according to the Convention in Ireland. The court described how the environment is ‘rapidly changing and evolving’ due to the pandemic.[10] Yet, it seems that the court deemed that the environment would be worse off and even further aggravate service, as the court considered that the current service provided by the High Court and the post in Ireland might be changed. However, the court’s view may be inaccurate with regards to the trend of the pandemic in Ireland where the curve of confirmed COVID-19 cases has flattened, thereby indicating a realistic possibility that the environment may recover, not worsen. Further, whether the court considered the ‘rapidly changing and evolving’ environment of the pandemic is doubtful. This is a significant line of inquiry as the question of ‘being not practical’ should be determined by ‘whether at the date on which the application regarding service is made, the applicant, using reasonable effort, [was] unable to serve the respondent personally (emphasis added)’[11] Last but not least, the mere fact that Facebook was aware of the proceeding cannot suffice to satisfy the requirement of ‘not practicable’ in r 10.24.[12] Therefore, the court’s reasoning that it is not practical to serve Facebook Ireland by forecasting the future change does not seem persuasive.

In conclusion, substituted service in Facebook is granted too lightly.

[1] The dispute centered on the ‘This is your digital life’ App (hereinafter ‘APP’). It was a personality quiz designed by Dr Aleksandr Kogan who later established the Global Science Research Limited (GSR). The Graph API V1 developed by the respondents allowed the App to request information from the Facebook accounts of 305,000 Facebook Users globally who installed the APP, of which approximately 53 were Australian. The Graph API also allowed the App to request the personal information of approximately 86,3000,000 Facebook Users globally (approximately 311,074 of whom were Australian Facebook Users) who were friends of the installers (that is, they did not install the App themselves). Dr. Kogan and/or the GSR further disclosed the personal information it obtained from the Respondents to third parties, including the Cambridge Analytica Ltd, and/or its parent company, for profit.

[2] The Hague Service Convention website page relating to Ireland describes the prescribed methods as ‘[p]ersonal or by post.’ Ireland permits service of the court documents on individuals and entities in Ireland (e.g. Facebook Ireland) by post under the Hague Convention.

[3] Facebook [71].

[4] Facebook, [66].

[5] Zeitouni, [65]. There was no dispute that the Commissioner did not know the address(es) of the defendants. Though presumably in a position to provide information on the whereabouts of the defendants, their lawyers refrained from doing so. The Australian Federal Police had been looking for one brother who was in Indonesia for six months without success. For the other brother, the Commissioner only knew he was not in Australia but did not know where he went.

[6] Australian Competition & Consumer Commission v Kokos International Pty Ltd [2007] FCA 2035, [18]. Although ACCC knew that the defendant was likely in Japan, it had been unable to obtain an address at which he could be served. Neither the defendant nor his solicitors would provide an address for service. The Department of Foreign Affairs and Trade and Australia Embassy in Japan were unable to make inquiries on the ACCC’s behalf. Therefore, the plaintiff could not make an attempt to serve the defendant in Japan. The court held that service was not practical, and a substitute service was granted under ord 7 r 9 of FCR 1979.

[7] Oswal, [35]–[36]. Mrs. Oswal was not in Australia. Her last known address was in the UAE, but she is also an Indian national and has business interests in Singapore. Consequently, it is not possible to know with certainty her whereabouts to effect personal service.

[8] Hague Service Convention art 1.

[9] Hague Conference on Private International Law, Practical Handbook on the Operation of the Service Convention, ed Christophe Bernasconia and Laurence Thébault (Wilson & Lafleur, 2006) [24]-[41].

[10] Facebook [66].

[11] Foxe v Brown [1984] HCA 69, [547] as applied in O’Neil v Acott (1988) 59 NTR 1, 2.

[12] Morris v McConaghy Australia (No 4), [2018] FCA 1516, [16]. The second defendant MC2 was in the Cayman Islands. There was no dispute that MC2 was aware of the originating process and had notice of the relevant court documents. However, the court required that the service must be conducted under the Hague Convention because the mere fact that the document has been brought to the attention of the party being served cannot suffice to satisfy r 48(a) (i.e. the requirement of ‘not practical’).