Agrégateur de flux

By Stephen G.A. Pitel, Faculty of Law, Western University

Eritrean mine workers who fled from that country to British Columbia sued the mine’s owner, Nevsun Resources Ltd. They sought damages for various torts including battery, false imprisonment and negligence. They also sought damages for breaches of customary international law. Their core allegation was that as conscripted labourers in Eritrea’s National Service Program, they were forced to work in the mine in intolerable conditions and Nevsun was actively involved in this arrangement.

Nevsun moved to strike out all of the claims on the basis of the act of state doctrine. It also moved to strike out the proceedings based on violations of customary international law because they were bound to fail as a matter of law.

In its decision in Nevsun Resources Ltd v Araya, 2020 SCC 5, the Supreme Court of Canada has held (by a 7-2 decision) that the act of state doctrine is not part of Canadian law (para. 59) and so does not preclude any of the claims. It has also held (by a 5-4 decision) that the claims based on customary international law are not bound to fail (para. 132) and so can proceed.

Act of State Doctrine

Justice Abella, writing for five of the court’s nine judges, noted that the act of state doctrine had been heavily criticized in England and Australia and had played no role in Canadian law (para 28). Instead, the principles that underlie the doctrine were subsumed within the jurisprudence on “conflict of laws and judicial restraint” (para 44).

In dissent, Justice Cote, joined by Justice Moldaver, held that the act of state doctrine is not subsumed by choice of law and judicial restraint jurisprudence (para. 275). It is part of Canadian law. She applied the doctrine of justiciability to the claims, finding them not justiciable because they require the determination that the state of Eritrea has committed an internationally wrongful act (para. 273).

This division raises some concerns about nomenclature. How different is “judicial restraint” from “non-justiciability”? Is justiciability an aspect of an act of state doctrine or is it a more general doctrine (see para. 276)? Put differently, it appears that the same considerations could be deployed by the court either under an act of state doctrine or without one.

The real division on this point is that Justice Cote concluded that the court “should not entertain a claim, even one between private parties, if a central issue is whether a foreign state has violated its obligations under international law” (para. 286). She noted that the cases Justice Abella relied on in which Canadian courts have examined and criticized the acts of foreign states are ones in which that analysis was required to ensure that Canada comply with its own obligations as a state (para. 304). In contrast, in this case no conduct by Canada is being called into question.

In Justice Abella’s view, a Canadian court can indeed end up determining, as part of a private civil dispute, that Eritrea has engaged in human rights violations. She did not, however, respond to Justice Cote’s point that her authorities were primarily if not all drawn from the extradition and deportation contexts, both involving conduct by Canada as a state. She did not squarely explain why the issue of Eritrea’s conduct was justiciable or not covered by judicial restraint in this particular case. Having held that the act of state doctrine was not part of Canadian law appears to have been sufficient to resolve the issue (para. 59).

Claims Based on Violations of Customary International Law

The more significant split relates to the claims based on violations of customary international law. The majority concluded that under the “doctrine of adoption”, peremptory norms of customary international law are automatically adopted into Canadian domestic law (para. 86). So Canadian law precludes forced labour, slavery and crimes against humanity (paras. 100-102). Beyond that conclusion, the majority fell back on the hurdle for striking out claims, namely that they have to be bound (“plain and obvious”) to fail. If they have a prospect of success, they should not be struck out. The majority found it an open question whether these peremptory norms bind corporations (para. 113) and can lead to a common law remedy of damages in a civil proceeding (para. 122). As a result the claims were allowed to proceed.

Four of the judges dissented on this point, in reasons written by Brown and Rowe JJ and supported by Cote and Moldaver JJ. These judges were critical of the majority’s failure to actually decide the legal questions raised by the case, instead leaving them to a subsequent trial (paras. 145-147). In their view, the majority’s approach “will encourage parties to draft pleadings in a vague and underspecified manner” which is “likely not to facilitate access to justice, but to frustrate it” (para. 261). The dissent was prepared to decide the legal questions and held that the claims based on violations of customary international law could not succeed (para. 148).

In the dissent’s view, the adoption into Canadian law of rules prohibiting slavery, forced labour and crimes against humanity did not equate to mandating that victims have a civil claim for damages in response to such conduct (para. 172). The prohibitions, in themselves, simply did not include such a remedy (para. 153). The right to a remedy, the dissent pointed out, “does not necessarily mean a right to a particular form, or kind of remedy” (para. 214).

Further, as to whether these rules can be directly enforced against corporations, the dissent was critical of the complete lack of support for the majority’s position: “[i]t cites no cases where a corporation has been held civilly liable for breaches of customary international law anywhere in the world” (para. 188). As Justice Cote added, the “widespread, representative and consistent state practice and opinio juris required to establish a customary rule do not presently exist to support the proposition that international human rights norms have horizontal application between individuals and corporations” (para. 269).

On this issue, one might wonder how much of a victory the plaintiffs have achieved. While the claims can now go forward, only a very brave trial judge would hold that a corporation can be sued for a violation of customary international law given the comments of the dissenting judges as to the lack of support for that position. As Justices Brown and Rowe put it, the sole authority relied on by the majority “is a single law review essay” (para. 188). Slender foundations indeed.

Droit de la défense

The European Association of Private International Law will hold its founding conference in Aarhus on 14, 15 and 16 May 2020. We have invited the speakers to talk in turn about the topic of their presentations and briefly address the issues they will be discussing in Aarhus. The first speaker we host in this series is Matthias Lehmann, of the University of Bonn. His presentation, on Blockchains and Smart Contracts, is part of a block devoted to ‘Digitalization and European Private International Law’.

Blockchain and smart contracts are based on Distributed Ledger Technology (DLT), which combines the decentralised storage and validation of information with the use of modern cryptography. Both blockchain and smart contracts pose novel and unique challenges to Private International Law (PIL).

The first challenge is getting a proper grasp of the technology, which comes in many different forms and shapes. The benefits and potential applications are often widely exaggerated, while the real working is not fully understood. Evidently, there are obstacles in the communication between coders and lawyers. These difficulties are compounded by the fact that the technology is constantly evolving, creating the risk of any legal analysis being quickly outdated.

What is relevant for lawyers is that the blockchain allows to record new types of “crypto assets” and to transfer them easily around the globe. It can also be used for the transfer of copyrights, data or real-world assets, such as commodities or real estate. Given the value of the crypto assets, and their vulnerability to attacks (e.g. through hacks or fraud), it is necessary to put them under some sort of legal protection. Which legal protection is granted depends on the applicable national law, which must be determined first.

Smart contracts are computer programmes grafted onto the blockchain. In their most common application, they are used to automatically enforce obligations, excluding any resistance by the debtor. In such applications, they do not create or amend legal rights but shift the factual situation without either party being able to stop the process. The execution of the programme may deviate from the parties’ agreement (e.g. due to some malfunction or the input of false data). This situation must be treated by the law. There is also a very different type of smart contract: These are agreements concluded exclusively through the workings of machine, and therefore are also called “algorithmic contracts”. In such cases, the need to determine an applicable law is even more obvious and challenging.

From a PIL perspective, a major problem is shoehorning the new phenomena into the categories of conflicts of laws. Crypto assets are intangible and have no obvious counterpart in the real world. They are legal chameleons oscillating between currencies, securities, and claims. Smart contracts can either be used to automatically enforce the obligations under a contract or to create a binding agreement through algorithms. All of this is new and, so far, has no parallel in PIL.

Once a category has been found or a new one created, it will be challenging to find proper connecting factors. These difficulties stem from the fact that the creators have designed DLT as being “a-national” in the double sense that it shall work without the law and be independent of any legal system. The information is spread on computers and servers all around the world and often there is no operator controlling the process. For these reasons, finding the most significant or closest connection for the blockchain and smart contracts creates considerable headaches, more so than the internet did at the time of its introduction.

The presentation will address these issues one by one. It will analyse the applicability of existing regulations (such as Rome I, Rome II or the Succession Regulation) and explore the need for new ones. But it will also ask whether the EU is the appropriate venue to deal with these questions or whether it would be preferable to look for a world-wide solution given the global nature of DLT.

— More information about the EAPIL founding conference in Aarhus is available here. If you want to register, click here. 

The Court of Justice delivered today its judgment in case C‑25/19 (Corporis sp. z o.o. v Gefion Insurance A/S), which is in particular about the Service Regulation (recital 8):

« Article 152(1) of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II), read in conjunction with Article 151 of that directive and recital 8 of Regulation (EC) No 1393/2007 […] 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”.

Reminder: Recital 8 of Regulation No 1393/2007 states that ‘This 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.’

Source: here

AG Bobek delivered today his opinion in case C‑41/19 (FX v GZ, represented by her mother), which is about the Maintenance Regulation:

 “Council Regulation (EC) No 4/2009 […] and, in particular, Article 41(1) thereof, should be interpreted as meaning that the courts of the Member State where the enforcement of a maintenance decision given in another Member State is sought have jurisdiction to adjudicate on an application opposing enforcement, in so far as it is intrinsically connected with enforcement proceedings, it does not seek the modification or review of the maintenance decision, and it is based on grounds that could not have been raised before the court that issued the maintenance decision. Those conditions appear to be fulfilled by the application of opposition to enforcement based on the discharge of the debt at issue in the present case, which is nonetheless ultimately for the referring court to verify”.

Source: here

The Court of Justice delivered today its judgment in case C‑803/18 (AAS « Balta » v UAB « Grifs AG »). It is not available in English, albeit you can read it in nearly all languages of the EU (by accessing the link infra and selecting the language of your choice). Here is the French version:

« L’article 15, point 5, et l’article 16, point 5, du règlement (UE) no 1215/2012 […] doivent être interprétés en ce sens que la clause attributive de juridiction prévue dans un contrat d’assurance couvrant un « grand risque », au sens de cette dernière disposition, conclu par le preneur d’assurance et l’assureur, ne peut être opposée à la personne assurée par ce contrat, qui n’est pas un professionnel du secteur des assurances, qui n’a pas consenti à cette clause et qui est domicilié dans un État membre autre que celui du domicile du preneur d’assurance et de l’assureur ».

Source : here

The case concerns the question whether the Lithuanian courts have jurisdiction under the Brussels I bis Regulation to deal with a case involving an insurance payment claimed by a company established in Lithuania and covered by a civil liability insurance contract concluded between the policyholder and the insurer, both of whom are established in Latvia.

The insurance contract in question contained a clause providing that any dispute relating to this contract should be brought before the Latvian courts. Following the wording of the preliminary question, the claimant is a ‘person insured under that contract who has not expressly subscribed to that clause’.

Similarly to the preliminary question referred in Case C-112/03, Société financière and industrielle du Peloux, the referring court seeks to establish whether the choice-of-court clause contained in the insurance contract may be invoked against the insured who has not expressly subscribed to that clause and who is established in a Member State other than that of the policyholder and the insurer.

The particularity of the present case stems from the fact the insurance contract covered a ‘large risk’ referred to in Articles 15(5) and 16(5) of the Brussels I bis Regulation. Following the wording of these Articles, concerning the large-risk insurances, the rules on jurisdiction in matters relating to insurance may be departed from by an agreement with no further conditions. It was the impact of Articles 15(5) and 16 of the Brussels I bis Regulation on the opposability of the choice-of-court clause against the insured that inspired the referring court to request for a preliminary ruling.

In its Judgment delivered today without Advocate General’s Opinion, the Court ruled that the choice-of-court clause contained in a large-risk insurance cannot be invoked against an insured who has not subscribed to that clause and who is established in a Member State other than that of the policyholder and the insurer.

At the outset the Court observed that when contrasted with Article 15(3) and (4) of the Brussels I bis Regulation, the wording of Article 15(5) of the Regulation may suggest that a choice-of-court clause contained in a large-risk insurance contract could be invoked not only against the parties to the contract but also against an insured. In fact, Article 15(3) and (4) of the Regulation refers to the policyholder and to the insurer as the parties to the choice-of-court clause. No such reference is to be found in Article 15(5) (paragraph 33 of the Judgment).

However, after having presented a series of arguments with respect to the history of this provision, the scheme of the rules on jurisdiction in matters relating to insurance and their objectives (paragraphs 34 to 36 of the Judgment), the Court held, on the one hand, that the prorogation of jurisdiction is strictly circumscribed by the aim of protecting the economically weaker party and it cannot be inferred from the nature of large-risk insurance that an insured (not being a party to this contract) is not a ‘weaker party’ (paragraphs 37 to 41 of the Judgment). On the other hand, the application of the special rules of jurisdiction in matters relating to insurance is not to be extended to persons for whom that protection is not justified. No special protection is justified where the parties concerned are professionals in the insurance sector (paragraphs 44 and 45 of the Judgment).

The Court rejected a case-by-case assessment of the question whether an insured covered by a large-risk insurance may be regarded as a ‘weaker party’/professional in the insurance sector (paragraph 43 of the Judgment). This interpretation is of course in line with the pre-existing case-law, in particular the judgments in Cases C-340/16, MMA IARD, paragraph 34 and C-106/17, Hofsoe, paragraph 45. It seems that a similar approach was also followed in paragraph 109 of the judgment in Case Aspen Underwriting v Credit Europe [2018] EWCA 2590 Civ, where the Court of Appeal held in relation to large-risk insurance that while the case-law of the CJEU excludes an individual factual assessment of the strength of the economic position, it is still possible to decide on the application of the protective rules on jurisdiction in matters relating to insurance by having regard to the class of business conducted by the party in question.

It is, as Court clarifies, common ground that the insured acting as a claimant in the procedure before the national courts is not considered as a professional in the insurance sector (paragraph 45 of the Judgment). It follows that the choice-of-court clause cannot be invoked against the insured who has not subscribed to that clause and who is established in a Member State other than that of the policyholder and the insurer.

The Judgment can be found here (no English version yet). For those wishing to study the case more extensively, the request for a preliminary ruling is available here.

It might be interesting to note a few points that may be inspirational for the discussion on EU private international law in contexts other than those of the present request for a preliminary ruling and in relation to the issues not covered by this request:

• Article 15(5) of the Brussels I bis Regulation allows to deviate from the protective rules on jurisdiction by a choice-of-court clause in relation to insurance contracts covering one or more of the risks set out in Article 16 of this Regulation, including those referred to in Article 16(5) as ‘large risks’. As the Court observes in its Judgment, even the large-risk insurances alone encompass the contracts covering risks of varied nature. Some risks are deemed large due to the subject of insurance cover (i.e. marine and aviation risks), while other have to meet the specific criteria that relate to the policyholder in order to be considered as large. It may be interesting to see in the future developments whether, in different contexts relating to the contracts that are considered as large-risk insurances solely due to the subject of insurance cover (the reference to various conditions in paragraph 43 of the Judgment seems to hint the fact that this was not the case here), the nature of risk is equally irrelevant and, if so, whether the nature of risk may be for instance used by national courts as an indication that the insured parties are professionals in the insurance sector.

• The insured acting as the claimant in the proceedings before the Lithuanian courts is a company which shares are held exclusively by the policyholder (paragraph 15 of the Judgment). In the national proceedings that led to the request for a preliminary ruling, the first instance court considered that, due to the fact that the insured is a company owned by the policyholder, this insured must have consented, even if only indirectly, to the choice-of-court clause (paragraph 18 of the Judgment). In its Judgment, the Court held in particular that the choice-of-court clause cannot be invoked against an insured who has not subscribed to that clause, without further distinction between express and implicit consent (‘la personne assurée par ce contrat […] qui n’a pas consenti à cette clause’). It is to be noted that the wording of the preliminary question refers solely to an insured who has not expressly subscribed to that clause. The referring court seemingly did not consider it necessary to inquire the Court on this particular aspect of the case. If anything, it is yet to be seen whether any definitive conclusion in relation to the aforementioned aspect (that the Court was not directly asked to address) may be inferred from the Judgment.

• The large-risk insurance contract in question did not only contain a clause conferring jurisdiction to the Latvian courts but apparently also a choice-of-law clause in favour of the laws in force in this Member State (paragraph 16 of the Judgment). It can be argued that in the context of choice-of-law clauses made in relation to insurance contracts in general (and not solely large-risk insurances), the Rome I Regulation approaches the protection of the ‘weaker parties’ in a different manner than the Brussels I bis Regulation. Having in mind the concept of consistency between these Regulations, it is likewise yet to be seen whether the solution adopted in relation to the Brussels I bis Regulation may be transposed to the realm of conflict of laws.

Outre-mer - Saisie immobilière

Mesure d'instruction

Protection des consommateurs (surendettement)

Appel civil

Procédure civile

Chose jugée

Appel civil

Suspicion légitime

Procédure civile

Procédures civiles d'exécution

Saisie immobilière

Aide juridictionnelle - Appel civil