Agrégateur de flux

The World Intellectual Property Organisation (WIPO) and the Hague Conference on Private International Law (HCCH) have just published When Private International Law Meets Intellectual Property – A Guide for Judges. The guide, which has been co-authored by Annabelle Bennett (Former Judge at the Federal Court of Australia) and Sam Granata (Judge at the Court of Appeal of Antwerp, Belgium, and at the Benelux Court of Justice, Luxembourg), aims to provide practical guidance with regard to the intersection of intellectual property and private international law.

The guide has been published under a Creative-Commons License and can be downloaded from the HCCH and WIPO websites. It can also be purchased from WIPO as a print-on-demand publication.

This is a case with no immediate conflict of laws interests (jurisdiction for instance was not disputed), other than a helpful summary by Matthews J on the overall conduct of proceedings in civil law cases in England.

In [2019] EWHC 2656 (Ch) Paralel Routs v Fedotov, the claim is brought by the claimant, a company incorporated in the British Virgin Islands, but administered in Cyprus,  against the defendant, a Russian citizen, currently in prison in Russia. The defendant says that these proceedings have been brought as part of a process of so-called “corporate raiding” (“reiderstvo” in Russian) against him, by the claimant, at the instigation and direction of his former business associate.

Witnesses and evidence were the sticking point in the litigation, leading Matthews J to summarise the English law of civil proceedings, at 35 ff, concluding at 41:

‘decisions made by English civil judges are not necessarily the objective truth of the matter. Instead, they are the judge’s own assessment of the most likely facts based on the materials which the parties have chosen to place before the court, taking into account to some extent also what the court considers that they should have been able to put before the court but chose not to. And, whilst judges give their reasons for their decisions, they cannot and do not explain every little detail or respond to every point made.’

And at 95 ff just before conclusion, a robust defence of proper oral proceedings:

‘it is sometimes thought that the English procedural rules are too time-consuming and expensive to operate, without any corresponding advantage in terms of justice. But this is a case which amply illustrates the importance of procedural rules in ensuring a fair trial and the best opportunity to deliver a just result between the parties. This case illustrates the importance in particular of advance disclosure and production of documents in unredacted form, control by the court of expert evidence, and (at trial) cross-examination of witnesses, all properly pursued by a party’s lawyers. The persistence of the defendant’s legal team in enforcing these procedures has made all the difference in this case.

Geert.

Presse

On 17 October 2019 the island nation Palau acceded to the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention).

As indicated in the Depositary’s notification, the Apostille Convention will enter into force between the Republic of Palau and the other Contracting States, which have not raised an objection to its accession, on 23 June 2020.

This accession follows after an important neighbouring State joined the Apostille Convention, namely the Philippines (EIF: 14 May 2019).

This week the Hague Conference on Private International Law (HCCH) announced the release of a new publication: When Private International Law Meets Intellectual Property – A Guide for Judges. This Guide is co-authored by Annabelle Bennett (Australia) and Sam Granata (Belgium), with the co-ordination of the Secretariats of the World Intellectual Property Organization (WIPO) and the HCCH.

For more information, see the HCCH news item.

In [2019] EWHC 2776 (Fam) Ali v Rodrigues, claimant appreciated that the date of petition to divorce and date of and English respectively Scottish decrees are highly important to the husband’s immigration status. One way in which a former EEA family member can retain right of residence is if the marriage exceeded 3 years.

The husband was in Pakistan from 10th January 2016 to 18th February 2016. A certificate of entitlement to a divorce was issued on 21st March 2016 and decrees nisi and absolute were pronounced in the Romford (England) Family Court on, respectively, 12th April and 27th May 2016. That was the English decree. On 14th December 2016, the Home Office notified the husband that it was revoking his residence card on the basis that he was no longer a family member of an EEA national. The wife remarried in 2016, following the English decree and has sponsored her second husband’s application for leave to remain. The husband petitioned for divorce in Scotland on 27th September 2016, three years and five months after the date of the marriage and at least two years and three months from the date of the separation. On 6th November 2017, the Edinburgh Sherriff Court and Justice of the Peace Court pronounced the decree absolute, which is the Scottish decree.

If the English decree stands, the marriage will have lasted less than 3 years. If the Scottish decree stands, 3 years will have been exceeded. The husband essentially argues that the English decree is tainted by irregularity of service upon him. Lieven J held that the English decree should stand, on the basis that when it comes to failures related to service, it is appropriate to look at the nature of what went wrong and where the prejudice, if any, lies (at 36 ff). The wife took reasonable steps; and there are indications that the husband was trying to avoid service.

Given irregularities in service the English decree is voidable, but not void in the discretionary opinion of the court: the consequences of setting aside the English decree would more severe than that of the Scottish decree’s invalidity. If the English decree does not stand, the wife’s second marriage would have been made at a time when the first marriage persisted. That would be a very serious impact on her, her second husband and the child.

Geert.

Le traitement d’un mineur isolé étranger, à partir du moment où il a été considéré comme majeur par les autorités, n’a pas été contraire à la Convention, même s’il est resté quarante nuits sans solution d’hébergement, dans la mesure où le requérant n’établit pas ne pas avoir été en mesure de faire face à ses besoins élémentaires. 

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QPC

Responsabilité délictuelle ou quasi-délictuelle

Bail commercial

Indivision - propriété

Servitude

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