Agrégateur de flux

A quick note on Hiscox v Weyerhaeuser [2019] EWHC 2671 (Comm), in which Knowles J was asked to continue an anti-suit injunction restraining Weyerhaeuser from continuing proceedings in the US courts and ordering parties to turn to arbitration. He obliged.

In April 2018 Weyerhaeuser filed proceedings in the US District Court (Western District of Washington at Seattle)for a declaratory judgment in respect of certain of its insurance excess policies in the tower of excess liability. Weyerhaeuser sought, among other things, a declaration that there is no valid arbitration agreement applicable to any coverage disputes between itself and various defendant insurers and that the US District Court is the appropriate forum for any such disputes.

Knowles J lists the various proceedings pending in the US however particularly in the light of all parties being established businesses, is not impressed by arguments of comity or fairness to restrain the English courts from further involvement in the matter. He expresses the hope and expectation that the US courts will come to the same conclusion as himself, in light of the contractual provisions.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1.

Pourvoi c/ Cour d'appel de Montpellier, 18 décembre 2018

Cour d'appel de Rennes, 4 octobre 2019

Tribunal correctionnel de Paris, 2 octobre 2019

Pourvoi c/ Cour d'assises des Deux-Sèvres, 6 novembre 2018

Tribunal d'instance de Paris (17ème), 3 octobre 2019

Cour d'appel de Colmar, 3 octobre 2019

Contrôle d'identité

The Max Planck Institute Luxembourg is currently recruiting new members for its team. Two types of positions are currently open:

I. Research Fellow in EU and Comparative Procedural Law (PhD candidate)

The Max Planck Institute Luxembourg would like to appoint highly qualified candidates for two open positions as Research Fellow (PhD candidate) for the Research Department of European and Comparative Procedural Law

• Fixed-term contract for 24 months, a contract extension is possible, 40 hrs/week

Your tasks

The Research Fellow will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators.

The successful candidate will have the opportunity to contribute to the development of the Department of European and Comparative Procedural Law led by Prof. Burkhard Hess and, in parallel, work on her/his PhD project.

The Research Fellow is expected to write her/his PhD thesis and perform the major part of her/his PhD research work in the premises of the Institute in Luxembourg, but also in close collaboration with her/his external supervisor and with the university or institution delivering her/his PhD diploma. Supervision of the PhD-thesis by Prof. Burkhard Hess will also be possible.

Your profile

The applicants are required to have obtained at least a Master degree in Law with outstanding results and to have a deep knowledge of domestic and EU procedural law. According to the academic grades already received, candidates must rank within the top 5-10%.

The successful candidate should demonstrate a great interest and curiosity for fundamental research and have a high potential to develop excellence in academic research. Proficiency in English is compulsory (written and oral); further language skills (in French and German notably) are an advantage.

Documents required

Documents required: a detailed CV incl. list of publications; copies of academic records; a PhD project description of no more than 1-2 pages with the name of the foreseen PhD supervisor and the name of the institution awarding the PhD certificate; the name and contact details of two referees.

Please apply online until 31 December 2019.

Contact: recruitment@mpi.lu

II. Senior Research Fellow in Procedural Law (Postdoc)

The Max Planck Institute Luxembourg would like to appoint a highly qualified candidate for one open position as Senior Research Fellow for the Research Department of European and Comparative Procedural Law.

• Fixed-term contract for 36 months, a contract extension is possible, 40 hrs/week

Your tasks

The Senior Research Fellow will conduct postdoctoral research (own publications and contribution to common research projects), in the field of Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute and in partnership with international collaborators.

The position is open to candidates interested in acquiring a postdoctoral academic qualification in the form of a postdoctoral thesis (or a German Habilitation) or other publications. Teaching at law faculties is accepted.

Your profile

Applicants must have earned a degree in law and hold a PhD degree by the time they join the MPI, preferably in a topic falling within the scope of Procedural and/or Civil Law. The successful candidate shall possess a strong interest and aptitude for legal research and have a high potential to develop excellence in academic research.

Her/his CV must portray a consolidated background in Procedural and/or Civil Law. Prior publications in this field of the law shall be highly regarded in the selection process. A solid background in German law will be positively considered. Full proficiency in English (and other foreign languages) is compulsory (written and oral).

Documents required

Documents required: detailed CV incl. list of publications, one to two own legal manuscripts with no more than approx. 50 pages in total, such as one chapter of the PhD thesis or a scholarly paper; a research project description of no more than 1-2 pages; the name and contact details of two referees.

Please apply online until 30 November 2019

Contact: recruitment@mpi.lu

For additional information on all the positions listed, see here.

The Max Planck Institute Luxembourg is an equal opportunity employer.

C-213/18 Adriano Guaitoli et al v Easyjet concerns the clearly complex relationship between the Brussels Ia jurisdictional regime, the 1999 Montreal Convention for the Unification of Certain Rules for International Carriage by Air, and the EU’s flight compensation Regulation 261/2004.

Montreal Article 33 determines which court has jurisdiction to hear an action for damages against an air carrier falling within the scope of that instrument. The reference has been made in the context of a cross-border dispute between an airline and a number of passengers, in relation to sums claimed by those passengers both by way of standardised compensation under Regulation 261/2004 and by way of individualised compensation for damage caused to them by the cancellation of an outward and a return flight, both operated by that airline.

Saugmandsgaard ØE had advised that the two instruments should be applied distributively, according to the nature of the relevant head of claim. The Court has followed: the court of a Member State hearing an action seeking to obtain both compliance with the flat-rate and standardised rights provided for in Regulation No 261/2004, and compensation for further damage falling within the scope of the Montreal Convention, must assess its jurisdiction, on the first head of claim, in the light of Article 7(1) BIa and, on the second head of claim, having regard to Article 33 Montreal.

This is also the result of Articles 67 and Article 71(1) BIa which allow the application of rules of jurisdiction relating to specific matters which are contained respectively in Union acts or in conventions to which the Member States are parties. Since air transport is such a specific matter, the rules of jurisdiction provided for by the Montreal Convention must be applicable within the regulatory framework laid down by it.

Note that per Article 17(3) BIa the consumer section ‘shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation’ (see also C‑464/18 Ryanair). The rule of special jurisdiction for the supply of services, A7(1)(b) BIa, designates as the court having jurisdiction to deal with a claim for compensation based on air transport contract of persons, at the applicant’s choice, that court which has territorial jurisdiction over the place of departure or place of arrival of the aircraft, as those places are agreed in that transport contract; see also C-88/17 Zurich Insurance.

The Court further held that Article 33 Montreal, like A7BIa, leads to the direct appointment of the territorially competent court within a Montreal State: it does not just just identify a State with jurisdiction as such.

The combined application of these rules inevitable means that unless claimants are happy to sue in Mozaik fashion, consolidation of the case will most likely take place in the domicile of the airline. In the Venn diagram of options, that is in most cases the only likely overlap.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2, Heading 2.2.11.1.

Dans cette cassation relative à la saisie d’un immeuble d’habitation, la chambre criminelle réaffirme son attachement au principe du contradictoire et au droit à un procès équitable. Elle considère en effet que la chambre de l’instruction saisie d’un recours formé contre une ordonnance de saisie spéciale doit s’assurer que les pièces sur lesquelles elle se fonde ont été communiquées à la partie appelante.

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Written by Mayela Celis

The sixth meeting of the Experts’ Group on Parentage / Surrogacy took place early November in The Hague, the Netherlands, and focused on proposing provisions for developing two instruments:

• a general private international law instrument on the recognition of foreign judicial decisions on legal parentage; and
• a separate protocol on the recognition of foreign judicial decisions on legal parentage rendered as a result of an international surrogacy arrangement.

As indicated in the HCCH news item, the Experts’ Group also discussed the feasibility of making provisions in relation to applicable law rules and public documents.

At the outset, experts underlined “the pressing need for common internationally-agreed solutions to avoid limping legal parentage. The aim of any future instrument would be to provide predictability, certainty and continuity of legal parentage in international situations for all individual concerned, taking into account their rights, the United Nations Convention on the Rights of the Child and in particular the best interests of the child.”

The Group studied both indirect grounds of jurisdiction (such as the child’s habitual residence) and grounds for refusal of recognition (such as public policy and providing the child with an opportunity to be heard, which seems to me of paramount importance). Other Private International Law techniques were also studied such as applicable law, a presumption of validity of legal parentage recorded in a public instrument issued by a designated competent authority, and direct grounds of jurisdiction.

In particular, to facilitate the recognition of foreign judgments on legal parentage in international surrogacy arrangements, “the Group discussed the possibility of certification (for example, by way of a model form) to verify that conditions under the Protocol have been met.” There was no consensus on who should provide this certification in the State of origin.

Given the controversial nature of international surrogacy arrangements, the Group stressed that any future protocol on this issue should not be understood as supporting or opposing surrogacy. The question of course remains whether States would be willing to join such an instrument and whether the international act of consenting to be bound by such an instrument on the international plane would signal a positive or negative approach to surrogacy arrangements by a specific State (and possibly result in a potential imbalance between national and international surrogacy arrangements i.e. the former being refused effect and the latter being recognised). The issue of domestic surrogacy arrangements still needs to be explored further by the Group (see para No 26 of the Report).

Moreover, an important feature of the work is the future relationship between the two draft instruments. In this regard, the Group noted that “In principle, the Group favoured an approach whereby States could choose to become a party to both instruments or only one of them. Some Experts proposed that consideration be given to possible mechanisms to serve as a bridge between the two instruments. Experts agreed that, at this time, the Group should continue its work by considering the draft instruments in parallel.”

The Group will continue its work on these issues and will report to the governance body of the Hague Conference (HCCH) in March 2022 so that this body can make a final decision on whether to proceed with this project.

The Report of the Experts’ Group is available here.

The HCCH news item is available here.