Agrégateur de flux

Indemnisation des victimes d'infraction - Chose jugée

Preuve - Procédure civile

Sûretés réelles immobilières

The Permanent Bureau of the Hague Conference on Private International Law is seeking two legal officers. Candidates are expected to possess, among others, two years of relevant full-time professional experience (e.g., in practice, government, academia, IGOs or NGOs). They must also be nationals of Member States of the Conference.

Duties include general assistance in various areas of the work programme of the Conference, the areas of priority being international commercial litigation / civil procedure and child support (maintenance) matters.

One-year contracts are offered, starting in May 2020.

The deadline for applications is 25 March 2020 (12.00 a.m. CET).

Further information is available here.

Yesterday (4 March 2020) Viet Nam acceded to the HCCH Evidence Convention and the Philippines acceded to the HCCH Service Convention.  Ukraine signed the HCCH Judgments Convention.

The HCCH Evidence Convention will enter into force for Viet Nam on 3 May 2020. Pursuant to article 39 of the Evidence Convention, the accession will have effect only as regards the relations between Viet Nam and such Contracting States as will have declared their acceptance of the accession. Accordingly, this is a semi-open Convention similar to the HCCH Child Abduction Convention.

In the absence of any objection pursuant to its article 28, the HCCH Service Convention will enter into force for the Philippines on 1 October 2020. No objection has ever been made under the Service Convention (so far).

Ukraine has signed the HCCH Judgments Convention in accordance with its article 24. In order to consent to be bound by the treaty, Ukraine needs to deposit an instrument of ratification. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The HCCH Judgments Convention is not yet in force. In accordance with article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently two signatory States: Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

The HCCH news item is available here.

Yesterday (4 March 2020) Viet Nam acceded to the HCCH Evidence Convention and the Philippines acceded to the HCCH Service Convention.  Ukraine signed the HCCH Judgments Convention.

The HCCH Evidence Convention will enter into force for Viet Nam on 3 May 2020. Pursuant to article 39 of the Evidence Convention, the accession will have effect only as regards the relations between Viet Nam and such Contracting States as will have declared their acceptance of the accession. Accordingly, this is a semi-open Convention similar to the HCCH Child Abduction Convention.

In the absence of any objection pursuant to its article 28, the HCCH Service Convention will enter into force for the Philippines on 1 October 2020. No objection has ever been made under the Service Convention (so far).

Ukraine has signed the HCCH Judgments Convention in accordance with its article 24. In order to consent to be bound by the treaty, Ukraine needs to deposit an instrument of ratification. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The HCCH Judgments Convention is not yet in force. In accordance with article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently two signatory States: Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

The HCCH news item is available here.

Foundation for the Protection of the Traditional Cheese of Cyprus named Halloumi / EUIPO
Propriété intellectuelle et industrielle
La Cour annule l’arrêt du Tribunal selon lequel la marque collective HALLOUMI, réservée aux fromageries chypriotes, ne fait pas obstacle à l’enregistrement comme marque de l’Union européenne du signe « BBQLOUMI » pour les fromages d’un producteur bulgare

Commission / Hongrie (Enseignement supérieur)
Liberté d'établissement
Selon l’avocate générale Kokott, la Hongrie doit traiter de la même manière les établissements d’enseignement supérieur nationaux et étrangers

Johnny Hallyday, born Jean-Philippe Smet, died in 2017 age 74. Over a career of 57 years, he released more than 80 albums and gave over 3200 concerts. He was nicknamed the French Elvis, l’idole des jeunes. Over a million people filled the streets of Paris for his funeral.

Although he was known to spend a lot and to tour constantly to maintain his lifestyle, Johnny had quite some assets when he died. In addition to the royalties he would receive each year, he owned a house near Paris, a house in the French Carribean and two properties in California (one in Pacific Palisades in Los Angeles, one in Santa Monica). He also owned a number of luxury cars and motorbikes.

Children

The singer had married several times and had many affairs. In 1965, he married French singer Sylvie Vartan, with whom he had a son, David.  In the early 1980s, he dated French actress Nathalie Baye and had a daughter, Laura. David Hallyday became a singer, Laura Smet an actress (picture).

Finally, in 1996, he was married to French model Laeticia Boudou by Mayor Nicolas Sarkozy. In the 2000s, they adopted two girls, Jade and Joy.

Californian Will

In 2014, Johnny wrote several wills. In the first will, he declared that he resided at his home in Los Angeles and that he donated the entirety of his estate to his last wife Laeticia pursuant to Californian law or, should she die before or with him, to his two adopted daughters, Joy and Jade. But he then wrote a new will whereby he transferred all his assets to a trust established in the U.S. and appointed his wife as executrix of the will.

Obviously, the immediate consequence of the will was that his two first children would not receive anything from their father. This would go against one of the fundamental principle of the French law of succession, namely that each of the four children was entitled to receive 18% of the entire estate. But was French law applicable?

French Proceedings

In February 2018, David and Laura initated proceedings against Laeticia and her two adopted daughters in Nanterre, France, seeking a declaration that the (last) will of their father was null and void under French law. They also sought and obtained protective measures freezing a number of the assets in dispute.

The first issue for the French court was to decide whether it had jurisdiction under the Succession Regulation. This meant assessing where the habitual residence of the deceased at the time of his death was. Scholars have long identified that a drawback of this connecting factor is that it is very difficult to apply to artists who travel all the time and have homes in different countries. Laeticia claimed that her husband (and she and her daughters) resided habitually in Los Angeles; David and Laura that he habitually resided in France.

There is no doubt that Johnny spent a lot of time in both places. His adopted daughters were schooled at the Lycee Français of Los Angeles and, as many French stars, he liked the fact that he could live an anonymous life in the U.S.  But he also spent a lot of time in France. He was a French idol, and his concerts were essentially given in France. He died at his home in Paris.

Recital 23 vs Recital 24

The Preamble to the Succession Regulation proposes alternative methods to assess residence. Recital 23 provides that, in principle, the test should be whether the deceased has a “close and stable relationship” with the state concerned. However, Recital 24 states that, in certain cases where the deceased lived in several states alternatively, it could be difficult to assess habitual residence, and it would thus be legitimate to take into account nationality and the location of the main assets of the deceased. Laeticia relied on Recital 23, David and Laura relied on Recital 24.

The Court would ultimately find that Recital 23 controlled, but decide in favour of David and Laura.

Instagram Tracking

In a judgment delivered on 28 May 2019, the Court conducted an overall assessment of the situation.

It first noted that the issue was the last habitual residence of the deceased. A number of facts were reported dating decades earlier, such as the fact that, when Sylvie Vartan, the first wife of Johnny, lived in LA with young David (now 53), the rockstar would spend most his time in France. The Court ruled that it would ignore such references to events older than 10 years.

The court started with the period 2007-2012 to insist on the fact that, during that time, Johnny declared, in particular in various wills, that he resided in Switzerland and wished to subject his succession to Swiss law. The court noted that, while the purpose of such declarations were likely tax related, it did not change the fact that under Swiss tax law, the tax status that Johnny wanted required to have significant ties with Switzerland.

The court then moved to the time period after 2012, for which much more factual evidence of the presence of the rockstar on each of the two territories was available. The Reason why was that Johnny and his last wife had opened an instragram account in 2012. David used the instagram account of his father to provide a detailed account of the time the latter spent in France and elsewhere since 2012. The result was that the rockstar spent at least 151 days in France in 2015, at least 168 days in France in 2016, and that he stayed in France in the last 8 months of his life in 2017. With modern technology, finding out where VIPs spent most of their time might not be so difficult, after all.

Finally, the court conducted a subjective analysis and assessed the conditions and reasons of the presence of the rockstar in each country. The court recognised that it was not easy to assess the state of mind of the deceased relating to his stays in each of the two countries. However, the court agreed with the proposition that it was not possible to dissociate the artist from the private person, and thus found that the decisive factor was that the singer loved to perform, and that his life was entirely directed towards this activity. He toured constantly, including in the last three years of his life, and he did so almost exclusively in France.

The court concluded that Johnny Hallyday did not have alternate residences, but only one residence, in the last years of his life. He thus fell within the scope of Recital 23 of the Preamble, not Recital 24. Quite a remarkable conclusion : although the two youngest kids of the rockstar were schooled in the U.S. and he spent time there each year, he was found to have no residence there.

Laeticia immediately lodged an appeal againt the judgment. But she waived it in November 2019.

Superior Court of California

In 2018, the trust established by the rockstar to the profit of his wife initiated proceedings in the Superior Cour of California in Los Angeles against David and Laura seeking an order to transfer various assets of the rockstar to the trust, including rights over songs, funds in a bank account, four Harley Davidsons and three luxury cars. David and Laura have filed a motion to stay or dismiss proceedings on the ground of comity and forum non conveniens.

It seems that the case puzzled the LA Court. After being postponed four times, the case was postponed again on 4 February 2020, to May 2020. I could not access the documents filed by the parties, but the popular press has reported that Justice May said during one of the hearings that he found the case “very complex”, that he did not see the jurisdiction of the French court as necessarily exclusive of the jurisdiction of his own court, and that he wondered about the base of the rights of the widow under French law: “We are talking about 25%, but the big question is, 25% of what?”

What is the territorial reach of the Succession Regulation? If it purports to reach assets situated in California, does California law allow it? If it does not, should the shares of each of the children be calculated on the French/European estate only?

All very interesting questions. We very much hope Justice May answers them.

Singapore and Fiji have each deposited instruments of ratification at the UN Headquarters on 25 February 2020. The UN Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation (see previous post here). To date, fifty-two States have signed the Convention. It will enter into force six months after the deposit of three instruments of ratification. The list of signatory States may be found here.

Singapore and Fiji have each deposited instruments of ratification at the UN Headquarters on 25 February 2020. The UN Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation (see previous post here). To date, fifty-two States have signed the Convention. It will enter into force six months after the deposit of three instruments of ratification. The list of signatory States may be found here.