Agrégateur de flux

In [2020] EWHC 40 (Ch) Easygroup v Easyfly and ATR Aircraft the issue is the jurisdiction of the English court to hear claims of trade mark infringement, passing off and conspiracy against a Colombian domestic airline, its founder and chief executive, and a French aircraft manufacturer. As always the blog’s interest is not in the substantive issues concerning trademark and passing off, they do however make for interesting reading.

Nugee J considers the jurisdictional issues at 26 ff with respect to the first two defendants and with respect to the French defendant, in para 127 ff. Here the relationship between the EU Trade Mark Regulation 2017/1001 and Brussels Ia comes to the fore. (I continue to find my colleague Marie-Christine Janssens’ 2010 paper most informative on the issues; see also the link to Tobias Lutzi’s analysis of AMS Neve in my report of same). The relevant provisions of the Regulation (previously included in Regulation 207/2009, applied ia in CJEU AMS Neve), read

Article 125. International jurisdiction
1. Subject to the provisions of this Regulation as well as to any provisions of Regulation (EU) No 1215/2012 applicable by virtue of Article 122, proceedings in respect of the actions and claims referred to in Article 124 shall be brought in the courts of the Member State in which the defendant is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment.
2. If the defendant is neither domiciled nor has an establishment in any of the Member States, such proceedings shall be brought in the courts of the Member State in which the plaintiff is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment.

3. If neither the defendant nor the plaintiff is so domiciled or has such an establishment, such proceedings shall be brought in the courts of the Member State where the Office has its seat.

4. Notwithstanding the provisions of paragraphs 1, 2 and 3:

(a) Article 25 of Regulation (EU) No 1215/2012 shall apply if the parties agree that a different EU trade mark court shall have jurisdiction;

(b) Article 26 of Regulation (EU) No 1215/2012 shall apply if the defendant enters an appearance before a different EU trade mark court.

5. Proceedings in respect of the actions and claims referred to in Article 124, with the exception of actions for a declaration of non-infringement of an EU trade mark, may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened, or in which an act referred to in Article 11(2) has been committed.

 

Article 126. Extent of jurisdiction
1. An EU trade mark court whose jurisdiction is based on Article 125(1) to (4) shall have jurisdiction in respect of:

(a) acts of infringement committed or threatened within the territory of any of the Member States;

(b) acts referred to in Article 11(2) committed within the territory of any of the Member States.

2. An EU trade mark court whose jurisdiction is based on Article 125(5) shall have jurisdiction only in respect of acts committed or threatened within the territory of the Member State in which that court is situated.

 

The first two defendants are not based in the EU. Here, Article 125(2) grants jurisdiction to the UK courts.

Controversially, at 36 Nugee J applies a forum non conveniens test. It is disputed whether this is at all possible in the Trademark Regulation. He decides England clearly is the appropriate forum: ‘there is no other court that can try the UK trade mark claims, and for the reasons just given [French and  Spanish courts might have partial jurisdiction, GAVC] no other court that can grant pan-EU relief in respect of the EU trade mark claims.’

At 37 ff Nugee J then also still considers with reference ia to CJEU Pammer and the discussions on ‘accessibility’ (see also ia Football Dataco) whether there is a ‘serious issue to be tried’ and answers in the affirmative. Here I am assuming this must be seen as part of case-management rather than a jurisdictional test (viz Article 8(1) BIa’s anchor defendant mechanism, a ‘serious issue to be tried’ test is said to be part of the ‘related cases’ analysis; see related discussions ia in Privatbank), unless he reformulates the application of Article 126 as a ‘serious issue to be tried’ test – the structure of the judgment is leaving me confused.

Eventually however the previous Order made by the High Court, granting permission to serve out of jurisdiction, is set aside by Nugee J on grounds of lack of full and frank disclosure at the service hearing – an issue less exciting for this blog however dramatic nevertheless.

The French defendant (who issued a relevant press release (only 11 copies of which were distributed at the Farnborough airshow; this was found to be de minimis; not as such a mechanism available under the EUTMR I don’t think; but it might be under case management) and was also responsible for organising (ia by having the logo painted) the offending branding in France), at the jurisdictional level is dealt with in para 127 ff., first with respect to the trademark claim.

‘By art. 125(1) the default position is that the proceedings shall be brought in the courts of the Member State where the defendant is domiciled: in ATR’s case this is France. Neither art. 125(2) nor art. 125(3) applies to ATR because each only applies if the defendant is neither domiciled nor has an establishment in a Member State. Art. 125(4) does not apply as it is not suggested that ATR has either (a) agreed that the English court should have jurisdiction, or (b) entered an appearance before the English court. That leaves art. 125(5) under which proceedings may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened. In the present case that would also be France (and possibly Spain). It follows that none of the provisions of art. 125 confer jurisdiction on the English court to hear actions based on acts of infringement said to have been carried out by ATR in France and Spain.’

Counsel for EasyGroup accepted ia per AMS Neve that the Trademark Regulation is lex specialis vis-à-vis Brussels Ia but that nevertheless the general spirit of BIa should blow over Regulation 2017/1001. They refer at 130 to the ‘general desirability of avoiding duplicative proceedings and the risk of inconsistent judgments (as exemplified by arts 29 and 30 of Brussels I Recast),’ and argue that ‘it followed that once the English court had jurisdiction over the Defendants for the acts taking place in France (as it undoubtedly did under art. 125(2)), then it must also have jurisdiction over anyone else alleged to be jointly liable for the same acts of infringement.’

This therefore is a makeshift joinder mechanism which Nugee J was not impressed with. He pointed to the possibility under A125(5) to sue the other defendants and the French defendants in one jurisdiction, namely France. An A7(2) BIa action is not possible: A122(2)(a) EUTMR expressly provides that in proceedings based on A124, A7(2) BIa does not apply.

Finally, a claim in conspiracy against the French defendant is not covered by the EUTMR and instead by A7(2) BIa, discussed at 142 ff with reference to (Lugano) authority [2018] UKSC 19, which I discussed here. Locus delicti commissi, Nugee J finds, is not in England: no conspiratorial agreement between ATR and the Defendants in relation to the branding of the aircraft took place in England. At 145: ‘the Heads of Agreement, and Sale and Purchase Agreement, were each signed in France and Colombia, and there is nothing that can be pointed to as constituting the making of any agreement in England.’

As for locus damni, at 148 Nugee J holds this not to have been or potentially be in England:

‘The foundation of easyGroup’s claims in relation to the branding of the aircraft is that once painted they were flown on test flights, and en route to Colombia, in full view of the public. But the public which might have viewed the planes were the public in France and Spain, not the public in the UK. That might amount to a dilution in the brand in the eyes of the French and Spanish public, but it is difficult to see how it could affect the brand in the eyes of the UK public, or otherwise cause easyGroup to sustain loss in the UK. Mr Bloch said that if such a plane crashed, the news would not stop at the Channel and it might adversely affect easyGroup’s reputation in the UK, but no such damage has in fact occurred, and it seems to me far too speculative to say that it may occur. As already referred to, Mr Bloch also relied on easyGroup having suffered damage on the user principle (paragraph 82 above), but it seems to me that damages awarded on this basis would be damages for the loss of an opportunity to exploit easyGroup’s marks by licensing them to be used in France and Spain, and that for the purposes of the first limb of art. 7(2) such damage would therefore be suffered in France and Spain as that is where the relevant exploitation of the asset would otherwise take place.’

This last element (place where the relevant exploitation of the asset would otherwise take place) is interesting to me in Universal Music (purely economic loss) terms and not without discussion, I imagine.

Conclusions, at 152:

(1) There is a serious issue to be tried in relation to each of the claims now sought to be brought by easyGroup against the non-EU defendants.

(2) There was however a failure to make full, frank and fair disclosure at the service out of jurisdiction hearing, and in the circumstances that Order should be set aside.

(3) The question of amending to bring claims against the French defendant. But if it had, Nugee J would have held that there was no jurisdiction for the English court to hear the claims based on the acts in France (or Spain), whether based on trade mark infringement or conspiracy. There is jurisdiction to hear the claims based on the issue of the Press Release in the UK, but Nugee J would have refused permission to amend to bring such claims on the basis that they were de minimis.

A most interesting and thought provoking judgment.

Geert.

 

 

 

On 27 February 2020 the Court of Justice rendered its ruling in Corporis (case C-25/19), a case regarding the interpretation of Solvency II Directive and the Service Regulation.

The Court held that Article 152(1) of the Directive, read in conjunction with Article 151 of the same text and Recital 8 of the Service Regulation (pursuant to which the Regulation ‘should not apply to service of a document on the party’s authorised representative in the Member State where the proceedings are taking place regardless of the place of residence of that party’), must be interpreted as meaning that the appointment by a non-life insurance undertaking of a representative in the host Member State also includes the authorisation for that representative to receive a document initiating court proceedings for damages in respect of a road traffic accident.

Stefano Dominelli provided an account of the ruling in Conflictoflaws. By this post, I would like to add some comments on the issues discussed by the Court.

The ‘novelty’ of the judgment

In general terms, Corporis brings owls to Athens. The Court had already made its point in 2013, in the ruling concerning the Spedition Welter case. It stated then that Article 21(5) of the Motor Insurance Directive must be interpreted as meaning that the claims representative’s sufficient powers must include authority validly to accept service of judicial documents necessary for proceedings for settlement of a claim to be brought before the court having jurisdiction.

The difference between the two cases lies in the content of the preliminary request: unlike the German court in the former case, the Polish court that made the request in the latter case additionally brought the Service Regulation into the picture.

The Court’s findings however remain basically the same. This is somehow evidenced by the fact that the Court considered it could proceed to judgment without the Advocate General’s opinion.

Actually, some domestic courts have already issued judgments going in the same direction. See in particular the ruling of the Portuguese Supremo Tribunal de Justiça of 4 July 2019, and the ruling of the Tribunal da Relação de Guimarães of 17 November 2016 ( which are available through this database), and the ruling of the Landgericht Saarbrücken of 11 May 2015, reproduced in IPRax, 2015, 567. I’m sure there are more, but for the time being I managed to trace the above. Any feedback from other jurisdictions is more than welcome.

The notion of the ‘authorized representative’

Hence, in Corporis the Court reiterates its original views. It does not shed light to the overall question, i.e. what constitutes an authorized representative: first, because it had not been asked to do so, and second, because this seems to be an issue for the national courts to decide.

At least this is the common understanding among courts and scholars.

The fact is, however, that this situation comes, potentially, at a cost for the proper application of the Service Regulation. Burkhard Hess warned about the pitfalls nearly 20 years ago (Die Zustellung von Schriftstücken im europäischen Justizraum, NJW, 2001, 22).

Neither the predecessor of the current Service Regulation (Regulation No 1348/2000) nor the Service Convention drawn up by the Council of the European Union in 1997 (and never entered into force) referred to ‘authorized representatives’. The notion was also missing in the original 2005 Commission’s proposal to amend Regulation No 1348/2000.

The term only appeared in 2006, in the Commission’s proposal that replaced the latter proposal, without any further information. Thomas Rauscher indicates that it was added to solve a problem which appeared in the Dutch legal order. I understand that the introduction came as one of the 35 proposed amendments by the Rapporteur of the European Parliament. To sum up, there’s no clear indication of the rationale which led to the inclusion of the notion into the preamble.

What is noteworthy however, is that the term nay not be treated as equivalent to that of a representative ad litem, as referred to in Article 40(2) of Regulation No 44/2001 (Brussels I). The language employed to in the Service Regulation and in the Brussels I Regulation are not the same: the German version of the two texts refers, respectively, to ‘Bevollmächtigter’ and ‘Zustellungsbevollmächtigter’; the Spanish version refers to ‘representante autorizado’ and ‘mandatario ad litem’; the French version employs ‘représentant mandaté’ and ‘mandataire ad litem’, etc.

The issue under the forthcoming amended Service Regulation

On 31 May 2018, the Commission presented a proposal for a Regulation amending the Service Regulation, which is currently under discussion.

In this framework, the Commission suggested, inter alia, to move the text that is currently included in Recital 8 to Article 1. This change reflects the importance given to the matter, in light of the Alder case, where the CJEU held that the Service Regulation precludes Member States form providing in their legislation that judicial documents addressed to a party whose place of residence is in another Member State are placed in the case file, and deemed to have been effectively served, if that party has failed to appoint a representative who is authorised to accept service and is resident in the State where the judicial proceedings are taking place.

Although the proposal was accepted by the Council, the European Parliament refused to abide. Hence, the second exception to the application of the Regulation will most probably remain ‘hiding in the bushes’…

Extending the boundaries of the judgment

Notwithstanding the above, the judgment of the CJEU in Corporis paves the path to an extensive protection of other parties.

In paragraphs 41-44, the Court accentuates the difficulties faced by the victims of road traffic accidents. For those (insured) persons, the Brussels I Regulation has granted a forum actoris. Now the Court provides them with yet another benefit, i.e. the possibility to serve proceedings within the forum, and without attaching a costly translation.

De lege ferenda, the same level of protection could be granted to other recognized categories of weak(er) parties, such as consumers and employees, in their capacity as claimants against sellers, service providers, or employers.

Beyond insurance companies, one could think of foreign pharmaceutical companies, air carriers, car industries, social network giants, and the like. The fact that the above enterprises did not grant explicit powers to their representatives to receive judicial documents on their behalf shouldn’t be an impediment anymore. This is at least the implication of the CJEU in the Corporis case.

Se dessine progressivement le projet d’une application mobile pour limiter la propagation du coronavirus lors des phases de déconfinement, lequel doit naturellement répondre aux principes de protection des données personnelles précisés le 14 avril par le Comité européen de la protection des données.

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A most useful new research handbook in European Law is on the table – highly recommended! The publisher’s blurb reads:

„The Brussels Ibis Regulation is the magna carta for jurisdiction and the free circulation of judgments in civil and commercial matters in the EU, and forms a cornerstone of the internal market. This timely Research Handbook addresses the cutting edges of the regime, in particular its place within the overall system of EU law and its adaptations in response to specific kinds of lawsuits or the needs of particular industries.

Featuring original research by leading academics from across Europe, chapters take a systematic approach to examining a broad variety of topics in relation to the Brussels Ibis Regulation. Such topics include collective redress, injunctive relief, lis pendens and third states, negotiorum gestio, arbitration, intellectual property lawsuits, and its interface with the European Insolvency Regulation (Recast). Moving beyond what is offered by textbooks and commentaries, this incisive Research Handbook analyses the most recent developments in legislation and practice, as well as providing an outlook on the future of this field of EU law.

This Research Handbook will prove a critical read for scholars and students of EU law. Judges and practitioners working in this area will also find its insights to be of significant practical relevance.

Contributors: T.M.C. Arons, S. Bollée, T.W. Dornis, P. Franzina, T. Garber, C. Heinze, A. Leandro, L.D. Loacker, P. Mankowski, F. Marougiu Buonaiuti, J. Meeusen, D. Moura Vicente, G. Payan, A. van Hoek, C. Warmuth, M.M. Winkler; Edward Elgar: Cheltenham/Northampton, MA 2020 ISBN 978-1-78811-079-22020  392 pp  Hardback  978 1 78811 078 5  £165.00 / $255.00“.

The latest Volume of the Japanese Yearbook of International Law (Vol. 62, 2019) has been released. The Volume dedicates one section to the introduction of the new legislation on international jurisdiction of Japanese courts in family matters. (For an introduction of the new rules relating to international jurisdiction in matter of divorce, see Yasuhiro Okuda, “New Rules of International Jurisdiction over Divorce in Japanese Courts”, Yearbook of Private International Law, Vol. 20 (2018/2019), pp. 61-72).

The Volume also contains an English translation of the new rules as well as English translation of some court decisions relating to public and private international law.

Relevant content include the following:

NEW LEGISLATION ON THE INTERNATIONAL JURISDICTION OF JAPANESE COURTS ON PERSONAL STATUS LITIGATIONSAND DOMESTIC RELATIONS CASES

Aki Kitazawa, Introductory Note, p. 118

Yuko Nishitani, New International Civil Procedure Law of Japan in Status and Family Matters, p. 119

Yuko Nishitani, International Adjudicatory Jurisdiction in Matrimonial Matters in Japan, p. 151

Masako Murakami, International Jurisdiction of Child-Related Cases in Japan, p. 189

Takami Hayashi, International Jurisdiction in Case Related to Succession: New Rules in Japan, p. 209

Manabu Iwamoto, Recognition and Enforcement of Foreign Decisions on Personal Status Litigation and Family Relations Cases, p. 226

JUDICIAL DECISIONS IN JAPAN

Public International Law

Tokyo High Court, Judgment, December 14, 2017, p. 426

Compensation for War Injuries – Individuals’ Right to Seek Compensation under Additional Protocol I to the Geneva Conventions in 1977 – Individuals’ Right to Seek Compensation under Customary International Law

Nagoya High Court, Judgment, April 11, 2018, p. 433

Immigration Control and Refugee Recognition Act – Enforced Deportation – Circumstances to Be Taken into Account – De Facto Marriage with a Nikkei Nisei (Second Generation of Japanese Emigrant)

Tokyo District Court, Judgment, February 28, 2018, p. 440

Dispute over an Employment Contract – Immunity from the Civil jurisdiction of Diplomatic Agent – Article 31(1)(c) of the Vienna Convention on Diplomatic Relations

 Tokyo District Court, Judgment, March 20, 2018, p. 443

Application for Reconsideration of Refugee Status by Persons Who Have Already Left japan – Definition of Refugees – Burden of Proof- Situation in Syria

 Tokyo District Court, Judgment, July 5, 2018, p. 447

Tbe Cessation Clause – Article 1-C(5) of the Refugee Convention – Burden of Proof- Situation in Sri Lanka

Private International Law

Supreme Court (1st Petty Bench), Judgment, March 15, 2018, p. 452

International Child Abduction – Habeas Corpus Relief

Tokyo High Court, Judgment, June 29, 2017, p. 455

Jurisdiction over the Claim Based on Non-performance of Carriage Contract – Piercing the Corporate Veil

Tokyo High Court, Decision, June 30, 2017, p. 458

Order of Seizure – Applicable Law of Statutory Lien 

Tokyo High Court, Decision, August 1, 2018, p. 462

Setting aside of Arbitral Award – Procedural Public Policy

Tokyo District Court, Decision, June 12, 2018, p. 468

Applicable Law of the Claim Arising from a Tort of Defamation – Disclosure of Identification Information of the Sender- Word of Mouth on the Website

 DOCUMENT

National Legislation Act for the Partial Revision of the Personal Status Litigation Act, Etc. (Act No. 20 of April 25, 2018), p. 486

More information on the Yearbook (former Annual) and the content of its past volumes is available at http://www.ilajapan.org/jyil/.

Tribunal judiciaire de Paris, 23ème chambre correctionnelle

María Asunción Cebrián Salvat and Isabel Lorente Martínez (both from the University of Murcia) have edited a collection of essays in Spanish titled Protección de menores y Derecho internacional privado (Child Protection and Private International Law), published by Comares.

The abstract, kindly provided by the editors, reads as follows.

More and more frequently, families live a highly international life. Children move with their parents, travel and live in different States. Consequently, there has been an exponential growth of international legal disputes in which minors are involved. Legal operators shall be prepared to provide legal solutions to the private international law challenges of these cases and thus, to satisfy the best interest of the child in the specific case. This work brings together a collection of essays dealing with the hot spot areas of private international law in which minors play the major role. Some of these studies address the latest developments of institutions like the protection of unaccompanied minors, adoption, child abduction, rights of custody and rights of access, kafala, surrogacy, online contracts, sports, child workers, fatherhood recognition, family reagrupation… Others deal with the principles underlying the protection of minors in private international law (the “habitual residence of the child” connection, the need of urgent procedures, State cooperation…). Topics are addressed from an European and Spanish Private International Law perspective and written by a renowned team of private international law scholars and practitioners.

For more information, see here.

Dr Jan De Bruyne presented a paper at the Research Seminar Series at the School of Law, the University of Queensland, Australia discussing ‘Regulating Artificial Intelligence in the European Union: Legal and Ethical Aspects’ on 17 April 2020.

Artificial intelligence (AI) has become an area of strategic importance and a key driver of economic development. It has many benefits and can bring solutions to several societal challenges. At the same time, however, legal and ethical challenges remain and have to be carefully addressed. It is, therefore, not surprising that the regulation of AI is probably one of the most debated legal topics in the European Union (EU) and several of its Member States. This debate has only been strengthened with the recent European Commission’s White Paper on Artificial Intelligence – A European approach to excellence and trust.

Some argue that the law will need a fundamental make-over to deal with the reality of AI. The question that arises from a legal point of view is thus whether the existing longstanding legal principles are compatible with these technological evolutions or, instead, new legislation will need to be adopted. After a more general overview of the existing legal and ethical framework on AI in the European Union, I will proceed with an analysis of the situation for damage caused by AI systems such as autonomous vehicles to find an answer to that question. The analysis uncovers some difficulties in the application of traditional tort law principles. Reliance on a fault-based liability regime, for instance, will become uncertain in the context of autonomous vehicles. Liability in traffic-related matters will, therefore, evolve from a fault-based mechanism towards forms of strict liability. Particular attention is thereby given to the application of the EU Product Liability Directive. It will eventually be assessed who should be held liable for the damage caused by self-driving cars and other AI systems by an extension (de lege ferenda).

 

Details of the presentation may be found at: https://law.uq.edu.au/event/session/13582

Confinement has severely curtailed our freedom of movement, but it has certainly not put an end to disagrements and disputes.

Citizens and businesses needing to take procedural action in a cross-border case may be unable to do so due to emergency measures taken in an EU Member State in order to counter the spread of the COVID-19 virus.

These measures may result in the complete or partial suspension of the work of courts and authorities; the temporary inability to obtain legal aid; difficulty to access information normally provided by the competent authorities; other practical issues, for instance delays in enforcing a decision in a cross-border context or in serving a judicial document; temporary adjustments in terms of communication with the public (by email, by phone or by postal mail).

With this is mind, the e-Justice Portal has opened a page aiming to provide an overview of temporary measures taken within the European Union in relation to the COVID-19 virus. The page gives access to a table (pdf document) with information provided by the EJN contact points – and the usual disclaimer: ‘If you need additional information, please consult the webpages of the Ministry of Justice of the Member State for which you need information’

As the situation is changing rapidly and information on this topic is still evolving, the page is updated regularly to reflect new developments.

The EAPIL blog hosts an ongoing on-line symposium aimed to explore the impact of the coronavirus crisis on the phenomena of mobility and exchange that form the constituent elements of private international law, and to discuss the responses that private international law rules provide to the challenges posed by the crisis itself. Contributions on this topic have been proposed so far by Giovanni Chiapponi, Matthias Lehmann and Tomaso Ferando. Those interested in proposing a guest post for publication on these issues are encouraged to contact the blog’s editorial team at blog@eapil.org. 

In Representation of Lydian international Limited [2020] JRC 049 MacRae DB refers to universality in insolvency proceedings only once,  namely where he refers to authority at 20. Yet his approach in honouring the request for assistance, made by the courts at Ontario ‘on the basis of comity’, walks and talks like universality. This is of course reminiscent of Menon CJ’s recent speech on the issue, or similar decisions elsewhere.

‘Though there is no precedent in Jersey for a Canadian CCAA order or similar order being enforced or recognised in relation to a Jersey company, we had no doubt that we should assist the Canadian Court in this case.  There were no reasons of Jersey public policy impeding the court making the orders sought.  To the contrary, it is consistent with Jersey’s status as a responsible jurisdiction for the Royal Court to lend assistance in order to facilitate an international insolvency process in a friendly country that has a potential to benefit the creditors of the Lydian Group as a whole.’ The Deputy Bailiff also notes that key Jersey creditors and the Jersey corporation of the Lydian group itself were represented in the Canadian proceedings.

Geert.

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

 

#Insolvency.
Request honoured of the courts of Ontario to assist with proceedings on the basis of comity, universalism. https://t.co/vUelMOKdId

— Geert Van Calster (@GAVClaw) April 15, 2020

Par une ordonnance de référé du 3 mars 2020 rendue dans l’affaire Junqueras, le vice-président du Tribunal de l’Union européenne clarifie l’articulation entre le bénéfice de son inviolabilité par le parlementaire européen et les pouvoirs des autorités nationales pour prononcer la déchéance de son mandat, dans le respect des règles d’immunité de l’Union. 

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Par un arrêt du 26 mars 2020, la grande chambre de la Cour de justice a rejeté comme irrecevables des questions préjudicielles provenant de juridictions polonaises qui craignaient que le nouveau régime disciplinaire polonais ne soit employé par le gouvernement afin d’exercer des pressions politiques à leur encontre. D’une portée limitée, cet arrêt ne signifie ni que de telles réformes sont compatibles avec le droit de l’Union, ni qu’un futur renvoi à leur sujet ne soit déclaré recevable.

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En application des articles 15, § 5, et 16, § 5, du règlement Bruxelles I bis, la clause attributive de juridiction prévue dans un contrat d’assurance couvrant un « grand risque », conclu par le preneur d’assurance et l’assureur, ne peut être opposée à la personne assurée, qui n’est pas un professionnel du secteur des assurances, qui n’a pas consenti à cette clause et qui est domiciliée dans un État membre autre que celui du domicile du preneur d’assurance et de l’assureur.

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A quick note on [2020] EWHC 893 (Fam) I and L (children), in which Mostyn J berates and effectively disciplines a father’s abuse forum and process shopping.

At 11:

‘I pause at this point to reflect on the actions taken by the father. Not only did he act in bad faith, as I have explained, but he also was guilty not only of blatant forum shopping but also of process shopping. If the father had genuinely developed misgivings about the wisdom and merits of the parenting agreement signed by him on 5 August 2019 then the appropriate place to raise those misgivings was the court in South Africa [the habitual residence of the children, GAVC]. Instead, by a ruse de guerre he lured the mother and children to this jurisdiction where he immediately started proceedings in the forum which he considered to be most favourable to him. By striking pre-emptively he also selected the process which he considered most favourable to him. Had he merely retained the children on 3 January 2020 and awaited the mother to take steps in response she would, unquestionably, have raised a case under the 1980 Hague Convention on the Civil Aspects of Child Abduction. In such a process the welfare of the children, while being an important consideration, would not have been the paramount consideration. Instead, the court would have started with the position that the children should be returned to the place of their habitual residence unless the father could demonstrate a defence.’

In the end he held that under the Children Act, in which the welfare of the children is the paramount criterion, a return to their habitual residence (to be effected as fast as possible following the end of Covid-19 lock-down) is in their best interest, thus torpedoing the abuse. Clearly like in QD, the English courts do not appreciate cloak and dagger manipulation of forum or process.

Geert.

 

https://twitter.com/GAVClaw/status/1250359450357071873

The Russian Chamber of Commerce and Industry is issuing ‘force majeure certificates’, like some of their homologues in other countries, as discussed earlier in this blog. Although this practice has existed in Russia since 1993, the number of requests for the certificates has recently increased. The requests come not only from Russian companies but also from foreign entities. While the increase is understandable in these times of the coronavirus pandemic, under Russian law, the ‘force majeure certificate’ can (only) form a part of evidence in possible future disputes, as its impact on the outcome of the dispute is ultimately defined by the (Russian or foreign) courts or arbitration tribunals.

The Russian Chamber of Commerce and Industry (CCI) is issuing ‘force majeure certificates’, like some of their homologues in other countries. Although this practice exists in Russia since 1993, the CCI has recently noticed an increase in the number of requests for the certificates, due to the coronavirus pandemic. The requests come not only from Russian companies but also from foreign entities. What could be the practical value of the certificate in a contractual dispute relating to the consequences of the pandemic?

The legal basis for the CCI’s competence to issue the ‘force majeure certificates’ is laid down in the law ‘On the chambers of commerce and industry in the Russian Federation’ of 7 July 1993. Article 1 of the law defines the CCI as a non-state non-governmental organisation created to foster business and international trade. Along with other competences, the CCI may act as an ‘independent expert’ (art. 12) and may provide information services (art. 2) in matters relating to international trade. One of the services is the issuing of ‘force majeure certificates’. The Rules for issuing the certificates are defined by the CCI’s governing council. These Rules entrust the CCI’s legal department with assessing requests and advising whether the certificate should be issued. The advice is given on the basis of the documents that a party submits to substantiate their request, following the Rules.

Notably, the list of documents includes (a copy of) the contract, ‘which contains a clause on force majeure’ (point 3.3.2 of the Rules). This requirement is not accidental; it has to do with the non-mandatory character of the legal provision on force majeure. Article 401(3) of the Russian Civil Code provides for exoneration of liability for a failure to execute a contractual obligation due to the force majeure. This provision applies by default, if ‘the law or the contract does not provide otherwise’ (art. 401(3)). The parties may provide otherwise by including a clause about unforeseen circumstances, hardship, frustration, force majeure, or similar circumstances in the contract. This is, at least, the way Russian courts have applied art. 401(3) up to the present time. The Russian CCI does not appear to deviate from this approach.  More than 95% of the requests submitted to the Russian CCI for ‘force majeure certificates’ have so far been rejected, according to the head of the Russian CCI (even though some decrees deliberately label the COVID-19 pandemic ‘force majeure’ as, for example, the Decree of 14 March 2020 does, this decree is adopted by the municipality of Moscow to prevent the spread of the virus by various measures of social distancing).

Thus, the legal basis of the CCI’s competence to issue a ‘force majeure certificate’ implies that the certificate is the result of a service provided by a non-state non-governmental organisation. The application of Article 401(3) implies the need to interpret the contract, more specifically, the provision on force majeure it possibly includes. If the parties disagree on the interpretation, a dispute may arise. The competence to resolve the dispute lies with the courts or arbitration tribunals. In this way, the ICC’s decision (taken upon the advice of the CCI’s legal department) to confirm by issuing a certificate that a particular event represents a force majeure in the context of the execution of a specific contract can have persuasive authority in the context of the application of Art. 401 (3). However, it remains the competence of the courts or arbitration tribunals to apply art. 401(3) to the possible dispute and to establish the ultimate impact of the relevant events on the outcome of the dispute. Under Russian law, one would treat the ‘force majeure certificates’ issued by the CCI (and possibly a refusal to issue the certificate) as a part of evidence in possible future disputes. A (Russian or foreign) court or arbitration tribunal considering this evidence is free to make a different conclusion than that of the Russian CCI or may consider other evidence.

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