Agrégateur de flux

On 2 July 2019, the Hague Conference on Private International Law (HCCH) adopted the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019 HCCH Judgments Convention). The instrument has already been described as a true game changer and the apex stone in international commercial litigation.

To celebrate the adoption of the 2019 HCCH Judgments Convention, the Netherlands International Law Review (NILR) produced a special edition entirely dedicated to the instrument.

Volume 67(1) of the NILR, which is now available in its final, paginated version, features contributions from authors closely involved in the development of the instruments. The articles provide deep insights into the making, and intended operation, of the instrument. They are a valuable resource for law makers, practitioners, members of the judiciary and academics alike.

The NILR’s Volume comprises the following contributions (in order of print, open access contributions are indicated; the summaries are, with some minor modifications, those published by the NILR).

Thomas John ACIArb, “Foreword” (open access)

Ronald A. Brand, “Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead”

Ron Brand considers the context in which a Hague Convention on Jurisdiction and the Recognition and Enforcement of Foreign Judgments was first proposed in 1992. It then traces the history of the Hague negotiations, both from within those negotiations and in regard to important developments outside the negotiations, through the completion of the 2005 Convention on Choice of Court Agreements and the 2019 HCCH Judgments Convention. The article ends with comments on whether it is advisable to now resume discussion of a separate convention on direct jurisdiction.

Francisco Garcimartín, “The Judgments Convention: Some Open Questions”

Francisco Garcimartín explores some of the open issues that were discussed in the negotiation process but remained open in the final text, such as, in particular, the application of the 2019 HCCH Judgments Convention to pecuniary penalties (2) and negative obligations (4), as well as the definition of the res judicata effect (3).

Cara North, “The Exclusion of Privacy Matters from the Judgments Convention”

Cara North considers on issue of particular focus in the later phases of the negotiations of the Convention, namely, what, if any, judgments ruling on privacy law matters should be permitted to circulate under the 2019 HCCH Judgments Convention. Having acknowledged that privacy is an evolving, broad and ill-defined area of the law and that there are obvious differences in the development and operation of privacy laws and policies in legal systems globally, the Members of the Diplomatic Session on the Judgments Convention determined to exclude privacy matters from the scope of the Convention under Article 2(1)(l). The purpose of this short article is to describe how and why the Diplomatic Session decided to exclude privacy matters from the 2019 HCCH Judgments Convention and to offer some observations on the intended scope of that exclusion.

Geneviève Saumier, “Submission as a Jurisdictional Basis and the HCCH 2019 Judgments Convention”

The 2019 HCCH Judgments Convention establishes a list of jurisdictional filters, at least one of which must be satisfied for the judgment to circulate. One of those is the implied consent or submission of the defendant to the jurisdiction of the court of origin. While submission is a common jurisdictional basis in international litigation, its definition and treatment vary significantly across states, whether to establish the jurisdiction of the court of origin or as a jurisdictional filter at the enforcement stage in the requested court. This diversity is most evident with respect to the mechanics and consequences of objecting to jurisdiction to avoid submission. The 2019 HCCH Judgments Convention adopts a variation on an existing approach, arguably the least complex one, in pursuit of its goal to provide predictability for parties involved in cross-border litigation. This contribution canvasses the various approaches to submission in national law with a view to highlighting the points of convergence and divergence and revealing significant complexities associated with some approaches. It then examines how the text in the 2019 HCCH Judgments Convention came to be adopted and whether it is likely to achieve its purpose.

Nadia de Araujo, Marcelo De Nardi, “Consumer Protection Under the HCCH 2019 Judgments Convention”

The 2019 HCCH Judgments Convention aims at mitigating uncertainties and risks associated with international trade and other civil relationships by setting forth a simple and safe system according to which foreign judgments can easily circulate from country to country. The purpose of this article is to record the historical moment of the negotiations that took place under the auspices of the HCCH, as well as to pinpoint how consumer cases will be dealt with by the Convention under Article 5(2).

Niklaus Meier, “Notification as a Ground for Refusal”

The 2019 HCCH Judgments Convention provides for several grounds for the refusal of recognition, including refusal based on insufficient notification. While this ground for refusal of the 2019 HCCH Judgments Convention seems quite similar to those applied in other conventions, the comparison shows that there are several differences between this instrument and other texts of reference, both with respect to the context of application as well as with respect to the details of the wording. The optional nature of the grounds for refusal under the 2019 HCCH Judgments Convention indicates that its primary focus is the free circulation of judgments, and not the protection of the defendant. The latter’s protection is left to the discretion of the state of recognition: a sign of trust amongst the negotiators of the 2019 HCCH Judgments Convention, but also a risk for the defendant. Practice will show whether the focus of the negotiators was justified.

Junhyok Jang, “The Public Policy Exception Under the New 2019 HCCH Judgments Convention”

The public policy exception is inherently a fluid device. Its content is basically left to each State. A shared public policy is an exception. Therefore, the obligation of uniform interpretation, as provided in Article 20 of the 2019 HCCH Judgments Convention, will have an inherent limit here. Moreover, the 2019 HCCH Judgments Convention leaves some important issues, including procedure, to national rules. Each requested State retains a discretion to invoke the Convention grounds of refusal in a concrete case, and on whether to make an ex officio inquiry or have the parties prove those refusal grounds. The 2019 HCCH Judgments Convention also provides for the concrete applications of the public policy exception, following the model of the 2005 Choice of Court Convention. Here, a purely grammatical reading may create some peripheral problems, especially with the specific defences of conflicting judgments and parallel proceedings. Solutions may be found in the method of purposive interpretation and some general principles, particularly the evasion of the law and the abuse of rights, before resorting to the public policy defence.

Marcos Dotta Salgueiro, “Article 14 of the Judgments Convention: The Essential Reaffirmation of the Non-discrimination Principle in a Globalized Twenty-First Century”

The 2019 HCCH Judgments Convention includes a non-discrimination disposition in Article 14, according to which there shall be no security, bond or deposit required from a party on the sole ground that such a party is a foreign national or is not domiciled or resident in the State in which enforcement is sought. It also deals with the enforceability of orders for payment of costs in situations where the precedent disposition applied, and lays down an ‘opt-out’ mechanism for those Contracting States that may not wish to apply that principle. This article frames the discussion of the non-discrimination principle in the wider context of previous private international law instruments as well as from the perspectives of access to justice, human rights and Sustainable Development Goals (SDGs), understanding that its inclusion in the 2019 HCCH Judgments Convention was an important, inescapable and necessary achievement.

Paul R. Beaumont, “Judgments Convention: Application to Governments” (open access)

The 2019 HCCH Judgments Convention makes the classic distinction between private law matters within its scope (civil or commercial matters) and public law matters outside its scope. It also follows the same position in relation to State immunity used in the Hague Choice of Court Convention 2005 (see Art. 2(5) in 2019 and 2(6) in 2005). The innovative parts of the 2019 HCCH Judgments Convention relate to the exclusions from scope in Article 2 relating to the armed forces, law enforcement activities and unilateral debt restructuring. Finally, in Article 19, the Convention creates a new declaration system permitting States to widen the exclusion from scope to some private law judgments concerning a State, or a State agency or a natural person acting for the State or a Government agency. This article gives guidance on the correct Treaty interpretation of all these matters taking full account of the work of the Hague Informal Working Group dealing with the application of the Convention to Governments and the other relevant supplementary means of interpretation referred to in Article 32 of the Vienna Convention on the Law of Treaties.

João Ribeiro-Bidaoui, “The International Obligation of the Uniform and Autonomous Interpretation of Private Law Conventions: Consequences for Domestic Courts and International Organisations”

This article addresses the issue of the uniform and autonomous interpretation of private law conventions, including of private international law conventions, from the perspective of their Contracting States, particularly their judiciaries, and of the international organizations. Firstly, the author analyses the use of standard uniform interpretation clauses, and the origin of such clauses, in the context of the Hague Conference on Private International Law. The following part the article addresses negative and positive obligations imposed on States and their judiciaries under international law regarding the uniform and autonomous interpretation of international treaties. It is argued that States are not only obliged to refrain from referring to concepts from national laws for the purpose of the interpretation of international law instruments, but also that they face certain positive obligations in the process of applying the conventions. Those include referring to foreign case law, international scholarship, and under certain circumstances, also to travaux préparatoires. Thirdly, the author discusses the role of international organizations—e.g. HCCH, UNCITRAL, UNIDROIT, in safeguarding and facilitating the uniform and autonomous interpretation of private law conventions. It does so by describing various related tools and approaches, with examples and comments on their practical use (e.g. advisory opinions, information sharing, access to supplementary material, judicial exchanges and legislative action).

The NILR’s Special Edition on the 2019 HCCH Judgments Convention concludes with a reproduction of the text of the 2019 HCCH Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, as adopted on 2 July 2019.

Détention provisoire

Détention provisoire

In a recently reported ruling (No 423/2018, in Chronicles of Private Law, 2019, p. 204), the Greek Supreme Court (Άρειος Πάγος) addressed the thorny issues of choice of forum and choice of law agreements relating to agency and distribution. The judgment basically follows the path paved by the CJEU. However, its analysis is noteworthy, allowing hopes for a shift in the established course of action.

A Dutch company entered into a distribution agreement with a Greek company in 2004, followed by an agency agreement in 2007. The agreements included a choice of forum clause granting exclusive jurisdiction to the courts of Amsterdam and a clause stating that the contracts were governed by Dutch law. The Dutch principal terminated the agreements in 2009.

The Greek company started litigation in Athens. The defendant challenged the jurisdiction of the Greek courts on the basis of the choice of court clause. Both first and second instance Greek courts found they lacked jurisdiction.

The claimant filed a (final) appeal before the Supreme Court, arguing that the choice of forum clause was abusive, and contrary as such to public policy. The Greek company submitted, among other things, that it had no real negotiating power with the principal, and that the choice of law clause resulted in the circumvention of Greek mandatory provisions.

The Supreme Court confirmed the lower courts’ finding and dismissed the case for want of jurisdiction. The forum selection clause, the Court noted, was agreed upon as a result of sound negotiations, with no abuse on the part of the Dutch company. A draft of the agreement had been previously submitted to the claimant, who had sufficient time to reflect and did not raise any objections or reservations.

The Supreme Court emphasized that the Greek company had a high turnover and significant profits. Its representatives, the Court noted, were familiar with travelling abroad for discussions and negotiations; hence, any difficulty and increased costs associated with the exclusive jurisdiction of Dutch courts did not make litigation before the latter courts impossible or unreasonably burdensome.

The combined choice of Dutch courts and Dutch law, the Court added, did not affect the validity of the choice of forum clause. A circumvention of Greek mandatory law provisions was not established. No abuse of the principal’s position was evidenced. In any case, Dutch law could not be regarded as completely alien to the case, given that the principal is in fact based in the Netherlands.

The Supreme Court finally approved the Athens Court of Appeal decision not to turn to the choice of law clause for the purposes of assessing the validity of the choice of forum agreement. It relied for this on the ruling of the CJEU in Trasporti Castelletti, where the Court of Justice stated that “the national court seised should be able readily to decide whether it has jurisdiction on the basis of the rules of the [Brussels] Convention [of 1968, the predecessor of the Brussels I bis Regulation], without having to consider the substance of the case”, adding that the “substantive rules of liability applicable in the chosen court must not affect the validity of the jurisdiction clause”.

In a nutshell, the show must go on. In spite of the scepticism voiced in legal scholarship, the foundations of the CJEU ruling in Trasporti Castelletti are too hard to shake, let alone demolish.

Still, the Supreme Court did not refuse to examine the public policy defence raised by the agency, and in fact accepted to discuss the issue of the abusive character of the clause. One may not agree with the result; however the sheer fact that the court dared the step, raises ambitions for a further scrutiny in future cases.

I finish with a suggestion for further reading: Many esteemed colleagues have published notes on the above and subsequent rulings of the Court which followed suit. One of the most recent articles dealing extensively with the issue was authored by Matthias Weller, whose analysis gave me ample food for thought [Matthias Weller, Choice of court agreements under Brussels Ia and under the Hague convention: coherences and clashes, Journal of Private International Law, 2007, 13:1, 91-129, in particular pp. 107-109].

Maud Minois (University Paris Descartes) has published earlier this year a monograph presenting her Research on Characterization in the Private International Law of Obligations (Recherche sur la qualification en droit international privé des obligations).

The author has provided the following English abstract:

Characterization is traditionally presented as a tool used to ensure legal certainty and rationality of law. We observe, however, that this is not necessarily the case in the context of private international law. For a long time, the lex fori characterization has dominated the international scene, so that it may appear as the most suitable model of qualification. But it does reveal certain shortcomings when applied to contract and tort law. The diversification of sources of the law as well as the rise of autonomous characterizations established by the Court of Justice of the European Union add further complexity to the picture. An efficient model for characterization is needed to restore coherence in private international law. In order to elaborate such a model, two axes of study must be explored successively. First, the model must suit the specificities of private international relations. Second, once proof has been offered for the thesis that autonomous characterization best answers this demand, the question of its generalization should be addressed. It appears that an efficient use of the autonomous qualifications can be made not only at the level of European private international law, but on the contrary, can be extended to private international law of conventional as well as of national sources. On the other hand, this model, as it specifically applies to private international relations has no place in substantive law.

More details are available here, including free access to the table of contents and the introduction of the book.

C-500/18 AU v Reliantco was held by the CJEU on 2 April, in the early fog of the current pandemic. Reliantco is a company incorporated in Cyprus offering financial products and services through an online trading platform under the ‘UFX’ trade name – readers will recognise this from [2019] EWHC 879 (Comm) Ang v Reliantco. Claimant AU is an individual. The litigation concerns limit orders speculating on a fall in the price of petrol, placed by AU on an online platform owned by the defendants in the main proceedings, following which AU lost the entire sum being held in the frozen trading account, that is, 1 919 720 US dollars (USD) (around EUR 1 804 345).

Choice of court and law was made pro Cyprus.

The case brings to the fore the more or less dense relationship between secondary EU consumer law such as in particular the unfair terms Directive 93/13 and, here, Directive 2004/39 on markets in financial instruments (particularly viz the notion of ‘retail client’ and ‘consumer’).

First up is the consumer title under Brussels Ia: Must A17(1) BIa be interpreted as meaning that a natural person who under a contract concluded with a financial company, carries out financial transactions through that company may be classified as a ‘consumer’ in particular whether it is appropriate, for the purposes of that classification, to take into consideration factors such as the fact that that person carried out a high volume of transactions within a relatively short period or that he or she invested significant sums in those transactions, or that that person is a ‘retail client’ within the meaning of A4(1) point 12 Directive 2004/39?

The Court had the benefit of course of C-208/18 Petruchová – which Baker J did not have in Ang v Reliantco. It is probably for that reason that the case went ahead without an Opinion of the AG. In Petruchová the Court had already held that factors such as

• the value of transactions carried out under contracts such as CFDs,
• the extent of the risks of financial loss associated with the conclusion of such contracts,
• any knowledge or expertise that person has in the field of financial instruments or his or her active conduct in the context of such transactions
• the fact that a person is classified as a ‘retail client’ within the meaning of Directive 2004/39 is, as such, in principle irrelevant for the purposes of classifying him or her as a ‘consumer’ within the meaning of BIa,

are, as such, in principle irrelevant to determine the qualification as a ‘consumer’. In Reliantco it now adds at 54 that ‘(t)he same is true of a situation in which the consumer carried out a high volume of transactions within a relatively short period or invested significant sums in those transactions.’

Next however comes the peculiarity that although AU claim jurisdiction for the Romanian courts against Reliantco Investments per the consumer title (which requires a ‘contract’ to be concluded), it bases its action on non-contractual liability, with applicable law to be determined by Rome II. (The action against the Cypriot subsidiary, with whom no contract has been concluded, must be one in tort. The Court does not go into analysis of the jurisdictional basis against that subsidiary, whose branch or independent basis or domicile is not entirely clear; anyone ready to clarify, please do).

At 68 the CJEU holds that the culpa in contrahendo action is indissociably linked to the contract concluded between the consumer and the seller or supplier, and at 71 that this conclusion is reinforced by A12(1) Rome II which makes the putative lex contractus, the lex causae for culpa in contrahendo. At 72 it emphasises the need for consistency between Rome II and Brussels IA in that both the law applicable to a non-contractual obligation arising out of dealings prior to the conclusion of a contract and the court having jurisdiction to hear an action concerning such an obligation, are determined by taking into consideration the proposed contract the conclusion of which is envisaged.

Interesting.

Geert.

(Handbook of) EU private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.

Par deux arrêts rendus le 18 mars 2020, la Cour de cassation rappelle la caractérisation du blanchiment commis par concours apporté à une opération portant sur le produit de l’infraction principale.

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En présence d’une marque tridimensionnelle constituée par la forme du produit nécessaire à l’obtention du résultat technique, la perception du public pertinent peut être prise en compte pour identifier la caractéristique essentielle de la forme.

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I currently have a practice interest in all things Cypriot territory hence Local Authority B v X (Mother) & Ors [2020] EWFC 37 caught my eye even more than had it just involved Brussels IIa.

The application concerns a child, T. He is now about 5 years old. He is a British national; both his parents are British nationals. He was born in Kyrenia in the Turkish Republic of North Cyprus (‘TRNC’), and lived there from his birth in early 2014 until late summer 2018 when he travelled with his mother to the Republic of Cyprus, the southern territory of the island, where he remained until 17 October 2018. On that day, he flew to London, again in the company of his mother. On each occasion on which T and his mother travelled, the mother was the subject of a formal deportation order from the relevant territory of the island of Cyprus. On her arrival in the UK the mother was arrested and taken into custody, where she has remained to date. A police protection order was made in relation to T on his arrival in England, and he was placed into foster care, where he, in turn, has remained.

At issue is whether the Family Court in this country can properly exercise jurisdiction in relation to T.  Cobb J notes that the legal issues in the case are complicated by the internal territorial and political division within Cyprus. The United Kingdom, in accordance with its obligations under international law, has not recognised, and does not recognise, the TRNC as a state, yet the Republic of Cyprus is a Member State of the EU. Further discussion of the territorial issues at 7 ff include references to Protocol 10 of Cyprus’ accession Treaty, and CJEU C-420/07 Apostolides v Orams. (Itself linked to [2010] EWCA Civ 9).

The ensuing complicated jurisdictional questions are summarised at 33-34, with at 53 a resulting finding of lack of habitual residence of T in England, and an A13 BIIa jurisdiction. The mother, who argues for habitual residence in Cyprus, agues that BIA per CJEU Orams treats the TRNC as part of the Member State of the Republic of Cyprus, and so should BIIa. They further contend that given the many direct similarities between the language and the purpose of the two regulations, Brussels 1 and BIIa, Orams provides good authority for the argument that T, habitually resident in the TRNC (outside the Government’s effective control) was nonetheless, at the critical point, subject to the provisions of BIIa. At 68ff, Cobb J disagrees.

An interesting judgment for both BIIa and EU external relations law.

Geert.

The German Federal Court (Bundesgerichtshof) rendered an important ruling on jurisdiction and applicable law in claims against internet portals publishing crowd-sourced reviews about businesses on 14 January 2020 (BGH VI ZR 497/18).

Yelp Ireland Ltd., a company incorporated under Irish law, offers a well-known website and application (“app”) providing businesses recommendations. Yelp uses an algorithm to determine how reviews are arranged, distinguishing between “Recommended reviews” and “Currently not recommended reviews.”  When calculating the rating (“stars”) of a business, only “recommended reviews” are taken into account.

Yelp was sued by the owner of a German fitness studio, who complained that this mode of calculation had created a distorted picture of its business because a number of older, more favourable reviews had been ignored. The claim was brought before a German court at the place of business of the claimant.

The issue of jurisdiction was rather straight-forward. The Federal Court had to decide whether the claimant had suffered damage in Germany and could therefore bring the claim under Article 7(2) of the Brussels I bis Regulation.

Tthe Federal Court started by clarifying that Art. 7(2) Brussel Ibis Regulation also covers violations of personal rights and actions for injunctive relief. Insofar, it referred to the CJEU decision in Bolagsupplysningen, which had held that “a legal person claiming that its personality rights have been infringed by the publication of incorrect information concerning it on the internet and by a failure to remove comments relating to that person can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located” (CJEU, Bolagsupplysningen, margin no 44).

The Federal Court applied this standard and ruled that the claimant had its centre of interests in Germany where it carries out the main part of its economic activities. It thus found that it had international jurisdiction over the claim.

Much more arduous was determining the applicable law under Article 4(1) of the Rome II Regulation. This is also the most interesting part of the decision.

The source of the problem is Article 1(2)(g) of the Regulation, which excludes “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation” from the scope of the Regulation. It was doubtful whether the business in the present case had claimed such a violation. If it had, the Rome II Regulation would be inapplicable and German Private International Law would govern. The latter uses a different general conflict rule to the Regulation, giving tort victims in all cases a choice between the law of the place of tortious conduct and the place of damage (Art 40(1) Introductory Code to the German Civil Code – Einführungsgesetz zum Bürgerlichen Gesetzbuch (EGBGB)).

Whether companies can be victims of “violations of privacy and rights relating to personality, including defamation” in the sense of the Rome II exclusion is subject to debate in the literature (see e.g. Andrew Dickinson, The Rome II Regulation, OUP 2008, margin no 3.227; Anatol Dutta, IPRax 2014, p. 33, 37). The German Federal Court avoids this point by a “trick”: It deems the submissions made by the claimant as conclusive evidence of an implicit choice of German law. Thus, it would not matter whether the Rome II Regulation applies or not. In both cases, German law would be applicable, either as a result of Article 4(1) of the Rome II or of Article 40(1) of the EGBGB.

Although the decision of the Federal Court provided clarity in the individual case, it did not answer the fundamental question of the scope of the exclusion under Article 1(2)(g) of the Rome II Regulation. In this respect, it is agreed that Article 1(2)(g) of the Regulation must be interpreted autonomously. It therefore does not matter whether national law grants companies personality rights or not.

The wording of Article 1(2)(g) does not differentiate between violations against natural or legal persons. The very term “legal person” and the concept of “legal personality” suggests that corporations may have “personality rights” in the sense of the provision. The decision in Bolagsupplysningen also points in this direction, though it concerned international jurisdiction and not the applicable law.

From a systematic viewpoint, however, the existence of Article 6(1) of the Rome II Regulation means that negative statements made in a commercial context must fall into the Regulation’s scope, as they make out a large part of unfair competition claims. Thus, they cannot be excluded under Article 1(2)(g) of the Regulation, regardless of whether they are brought against a legal or a natural person.

Historically, the exclusion under Article 1(2)(g) can be explained by conflicting views on the implications of the freedom of the press and other media and the freedom of expression for private international law. The Member States could not agree whether to use a connecting factor favouring the publisher’s freedom or the victim’s protection. For this reason, they decided to exclude the violation of personality and privacy rights from the provision’s scope altogether.

This background points to the need of careful construction of Article 1(2)(g) of the Rome II Regulation; the exclusion it contains must not be understood too widely.  An overly broad interpretation would also run against the effectiveness of the harmonised rules.

The proper decision would have been to apply the Rome II Regulation to negative online reviews of legal or other persons’ commercial activities. They should be seen as falling squarely in its scope. This also includes the question of how business ratings are calculated. It is unfortunate that the German Federal Court missed this opportunity for clarification.

Le Conseil constitutionnel déclare, avec réserve, l’article L 131-11 du code des juridictions financières conforme à la Constitution et apporte d’utiles précisions à propos du cumul des poursuites et des sanctions appliqué aux comptables de fait. 

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