Agrégateur de flux

Ilaria Viarengo and Pietro Franzina have edited The EU Regulations on the Property Regimes of International Couples – A Commentary, published by Edward Elgar in its Elgar Commentaries in Private International Law series.

The publisher’s abstract reads as follows.

This article-by-article Commentary on EU Regulations 2016/1103 and 2016/1104 critically examines the uniform rules adopted by the EU to deal with the property relations of international couples, both married and in registered partnerships. Written by experts from a variety of European countries, it offers a comprehensive side-by-side discussion of the two Regulations to provide context and a deeper understanding of the issues of jurisdiction, applicable law and recognition of judgements covered.

The authors of the commentary are Giacomo Biagioni, Andrea Bonomi, Beatriz Campuzano Díaz, Janeen Carruthers, Sabine Corneloup, Gilles Cuniberti, Elena D’Alessandro, Pietro Franzina, Martin Gebauer, Christian Kohler, Silvia Marino, Cristina M. Mariottini, Dieter Martiny, Csongor I. Nagy, Jacopo Re, Carola Ricci, Andres Rodríguez Benot, Lidia Sandrini, Ilaria Viarengo and Patrick Wautelet.

More information available here.

La cour d’assises spécialement composée juge jusqu’à vendredi le djihadiste Tyler Vilus, 30 ans, accusé de meurtres en bande organisée terroriste, direction d’une entreprise terroriste et association de malfaiteurs terroriste. Le mercredi 1er juillet était consacré à l’interrogatoire au fond de l’accusé.

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Thank you Maxime Barba for flagging the judgment in the Paris Court of Appeal Sodmilab et al. (Text of the judgment in Maxime’s post). The case concerns the ending of a commercial relationship. Part of the contract may be qualified as agency with lex causae determined under the 1978 Hague Convention. On this issue, the Court of Appeal confirmed French law as lex causae.

Things get messy however with the determination of that part of the contract that qualifies as distribution (a mess echoing DES v Clarins), and on the application of Rome II.

The Court of Appeal first (at 59) discusses the qualification of A442-6 of the French Code du commerce, on unfair trading practices (abrupt ending of a commercial relationship), dismissing it as lois de police /overriding mandatory law under Article 9 Rome I. As I noted in my review of DES v Clarins, this is a topsy turvy application of Rome I. The qualification as lois de police is up to the Member States, within the confines of the definition in Rome I. The Court of Appeal holds that A442-6 only serves private interests, not the general economic interest, and therefore must not qualify under Rome I. Hitherto much of the French case-law and scholarship had argued that in protecting the stability of private interests, the Act ultimately serves the public interest.

Next (as noted: this should have come first), the Court reviews the application of A4f Rome I, the fall-back position for distribution contracts – which would have led to Algerian law as lex causae. It is unclear (62 ff) whether the Court reaches its conclusion as French law instead either as a confirmation of circumstantial (the court referring to invoicing currency etc.) but clear choice of law under Article 3, or the escape clause under Article 4(3), for that Article is mentioned, too.

Rome I’s structure is quite clear. Why it is not properly followed here is odd. That includes the oddity of discussing French law under Article 9 if the court had already confirmed French law as lex causae under A3 or 4.

Finally, corners are cut on Rome II, too. Re the abrupt ending of the relationship (at 66ff). French law again emerges victorious even if the general lex locus damni rule leads to Algerian law. The court does not quite clearly hold that on the basis of Article 4(3)’s escape clause, or circumstantial choice of law per A14. The court refers to ‘its findings above’ on contractual choice of law, however how such fuzzy implicit choice under Rome I is forceful enough to extend to choice of law under Rome II must not be posited without further consideration. Particularly seeing as Article 6 Rome II excludes choice of law for acts of unfair trading.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9; Chapter 3, Heading 3.2.8, Heading 3.2.8.3; Chapter 4).

Pourvoi c/ cour d'appel de Colmar, 9 janvier 2020

Pourvoi c/ cour d'appel de Rennes, 11 mai 2020

The Presidency of the Council of the European Union and the European Parliament reached on 30 June 2020 a provisional agreement on the modernisation of Regulation 1206/2001 on the taking of evidence abroad, and Regulation 1393/2007 on the service of judicial and extra-judicial documents (see here and here for contributions appeared on this blog regarding the reform).

The provisional agreement now needs to be submitted for endorsement by Member States’ representatives.

The purpose of the amendments under discussion is, generally, to improve the efficiency and speed of cross-border judicial proceedings by taking advantage of digitalisation and the use of modern technology, and by these means advance access to justice and fair trial for the parties.

Changes include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between Member States. The new regulations will also task the Commission with the creation, maintenance and future development of a reference software which Member States can choose to apply as their back end system, instead of a nationally-developed IT system.

As to the service of documents, the envisaged new rules provide that documents can be served electronically and directly on an addressee with a known address in another Member State, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The new rules also aim to promote the use of videoconferencing or other distance communication technology in the taking of evidence.

Anyone planning a conflict of laws course in the next term might well consider the succinct Council of Europe report on the application of islamic law in the context of the European Convention on Human Rights – particularly the case-law of the Court. It discusses ia kafala, recognition of marriage, minimum age to marry, and the attitude towards Shari’a as a legal and political system.

Needless to say, ordre public features, as does the foundation of conflict of laws: respect for each others’ cultures.

Geert.

On the last day of the Croatian Presidency of the Council of the EU, an important deal was concluded: “the Council Presidency and the European Parliament today reached a provisional agreement on two amended regulations, one on the taking of evidence and a second on the service of documents”.

Key points: “Changes in both regulations include the mandatory use of an electronic decentralised IT system, composed of interconnected national IT systems, for the transmission of documents and requests between member states. The draft regulations also task the Commission with the creation, maintenance and future development of a reference software which member states can choose to apply as their back end system, instead of a nationally-developed IT system.

Regarding the service of documents, under the draft new rules documents can be served electronically and directly on an addressee with a known address in another member state, when his or her express consent is given in advance. The service can be performed through qualified electronic registered delivery services or, under additional conditions, by e-mail.

The draft new rules also promote the use of videoconferencing or other distance communication technology in the taking of evidence which implies hearing a witness, party or expert present in another member state”.

Next step: “The provisional agreement now needs to be submitted for endorsement by EU member states’ ambassadors”

Source: here

See also, from the European Parliament, here

QPC

Before the judicial holiday, several decisions will be delivered regarding EU instruments on private international law.

The decision of the 1st Chamber (Bonichot, Safjan, Bay Larsen, Toader, Jääskinen) in C-343/19, Verein für Konsumenteninformation, regarding Article 7.2 of the Brussels I bis Regulation, is due on 9 July 2020. M. Safjan is the reporting judge; AG Campos’s Opinion was published on 4 April.

One week later the 1st Chamber will read the judgments in C-73/19, Movic e.a., C-80/19, E.E., and C-249/19, JE. C. Toader acts as reporting judge in C-73/19, on the meaning of “civil and commercial matters” in the Brussels I bis Regulation; see here AG Szpunar’s Opinion, of 23 April 2020. Judge Toader is the reporting judge as well in C-80/19, which addresses several aspects of the Succession Regulation; the Opinion by AG Campos, of 26 March 2020, has not yet been fully translated into English (here the French version; the original is in Spanish). C-249/19 benefited from AG Tanchev’s Opinion, also of 26 March 2020; the Court was asked to rule on the Rome III Regulation on the law applicable to divorce. R. Silva de Lapuerta is the reporting judge.

The same day, the judgment in C-253/19 (9th Chamber: Rodin, Jürimäe, Piçarra, with Jürimäe as reporting judge) will be delivered, addressing the COMI under the new Insolvency Regulation. AG Szpunar’s Opinion was published on 30 April 2020.

The Court’s activity resumes on 1 September 2020. Next date for a PIL judgment is September 3 (C-186/19, Supreme Site Services e.a.; see the Opinion by AG Oe here).

La cour d’assises spécialement composée de Paris juge Tyler Vilus, 30 ans, pour association de malfaiteurs terroriste criminelle, direction d’une entreprise terroriste et meurtres en bande organisée terroriste. Son procès se déroule du 25 juin au 3 juillet. Il encourt la réclusion criminelle à perpétuité.

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In 2017 drivers working under contract for Uber in Ontario launched a class action.  They alleged that under Ontario law they were employees entitled to various benefits Uber was not providing.  In response, Uber sought to stay the proceedings on the basis of an arbitration clause in the standard-form contract with each driver.  Under its terms a driver is required to resolve any dispute with Uber through mediation and arbitration in the Netherlands.  The mediation and arbitration process requires up-front administrative and filing fees of US$14,500.  In response, the drivers argued that the arbitration clause was unenforceable.

The Supreme Court of Canada has held in Uber Technologies Inc. v. Heller, 2020 SCC 16 that the arbitration clause is unenforceable, paving the way for the class action to proceed in Ontario.  A majority of seven judges held the clause was unconscionable.  One judge held that unconscionability was not the proper framework for analysis but that the clause was contrary to public policy.  One judge, in dissent, upheld the clause.

A threshold dispute was whether the motion to stay the proceedings was under the Arbitration Act, 1991, S.O. 1991, c. 17 or the International Commercial Arbitration Act, 2017, S.O. 2017, c. 2, Sch. 5.  Eight judges held that as the dispute was fundamentally about labour and employment, the ICAA did not apply and the AA was the relevant statute (see paras. 18-28, 104).  While s. 7(1) of the AA directs the court to stay proceedings in the face of an agreement to arbitration, s. 7(2) is an exception that applies, inter alia, if the arbitration agreement is “invalid”.  That was accordingly the framework for the analysis.  In dissent Justice Cote held that the ICAA was the applicable statute as the relationship was international and commercial in nature (paras. 210-18).

The majority (a decision written by Abella and Rowe JJ) offered two reasons for not leaving the issue of the validity of the clause to the arbitrator.  First, although the issue involved a mixed question of law and fact, the question could be resolved by the court on only a “superficial review” of the record (para. 37).  Second, the court was required to consider “whether there is a real prospect, in the circumstances, that the arbitrator may never decide the merits of the jurisdictional challenge” (para. 45).  If so, the court is to decide the issue.  This is rooted in concerns about access to justice (para. 38).  In the majority’s view, the high fees required to commence the arbitration are a “brick wall” on any pathway to resolution of the drivers’ claims.

The majority then engaged in a detailed discussion of the doctrine of unconscionability.  It requires both “an inequality of bargaining power and a resulting improvident bargain” (para. 65).  On the former, the majority noted the standard form, take-it-or-leave-it nature of the contract and the “significant gulf in sophistication” between the parties (para. 93).  On the latter, the majority stressed the high up-front costs and apparent necessity to travel to the Netherlands to raise any dispute (para. 94).  In its view, “No reasonable person who had understood and appreciated the implications of the arbitration clause would have agreed to it” (para. 95).  As a result, the clause is unconscionable and thus invalid.

Justice Brown instead relied on the public policy of favouring access to justice and precluding an ouster of the jurisdiction of the court.  An arbitration clause that has the practical effect of precluding arbitration cannot be accepted (para. 119).  Contractual stipulations that prohibit the resolution of disputes according to law, whether by express prohibition or simply by effect, are unenforceable as a matter of public policy (para. 121).

Justice Brown also set out at length his concerns about the majority’s reliance on unconscionability: “the doctrine of unconscionability is ill-suited here.  Further, their approach is likely to introduce added uncertainty in the enforcement of contracts, where predictability is paramount” (para. 147).  Indeed, he criticized the majority for significantly lowering the hurdle for unconscionability, suggesting that every standard-form contract would, on the majority’s view, meet the first element of an inequality of bargaining power and therefore open up an inquiry into the sufficiency of the bargain (paras. 162-63).  Justice Brown concluded that “my colleagues’ approach drastically expands the scope of unconscionability, provides very little guidance for the doctrine’s application, and does all of this in the context of an appeal whose just disposition requires no such change” (para. 174).

In dissent, Justice Cote was critical of the other judges’ willingness, in the circumstances, to resolve the issue rather than refer it to the arbitrator for decision: “In my view, my colleagues’ efforts to avoid the operation of the rule of systematic referral to arbitration reflects the same historical hostility to arbitration which the legislature and this Court have sought to dispel. The simple fact is that the parties in this case have agreed to settle any disputes through arbitration; this Court should not hesitate to give effect to that arrangement. The ease with which my colleagues dispense with the Arbitration Clause on the basis of the thinnest of factual records causes me to fear that the doctrines of unconscionability and public policy are being converted into a form of ad hoc judicial moralism or “palm tree justice” that will sow uncertainty and invite endless litigation over the enforceability of arbitration agreements” (para. 237).  Justice Cote also shared many of Justice Brown’s concerns about the majority’s use of unconscionability: “I am concerned that their threshold for a finding of inequality of bargaining power has been set so low as to be practically meaningless in the case of standard form contracts” (para. 257).

The decision is lengthy and several additional issues are canvassed, especially in the reasons of Justice Cote and Justice Brown.  The ultimate result, with the drivers not being bound by the arbitration clause, is not that surprising.  Perhaps the most significant questions moving forward will be the effect these reasons have on the doctrine of unconscionability more generally.