Agrégateur de flux

S’il fait figure d’exception dans une jurisprudence allemande fragmentée, la décision du tribunal administratif allemand d’Arnsberg souligne en creux le flou qui règne dans l’application du règlement Dublin III et les incohérences du système de demande d’asile en Europe.

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Since the entry into force of the Treaty of Amsterdam in 1999, the European Union has adopted an impressive number of regulations in the field of Private International Law. As a result, Private International Law has gradually become a truly European discipline. However, a truly pan-European forum to discuss issues of European Private International Law is still missing. Following a conference in Berlin in 2018, a group of Private International Law scholars from all over Europe[*], therefore, felt that it was time for a European Association of Private International Law (EAPIL).

The Association will be established in late 2019 and its establishment celebrated at a conference to  be held at Aarhus University, Denmark, from 14 to 16 May 2020. The conference will bring together academics and practitioners from all over Europe and provide a unique opportunity to talk and think about European Private International Law in a pan-European fashion. Topics to be discussed will include the effects and the challenges of digitalization, the problems of fragmentation as well as other challenges the discipline is currently facing.

Confirmed speakers are:

• Marie-Élodie Ancel (Université Paris-Est Créteil)
• Francisco Garcimartín-Alférez (Autonomous University of Madrid)
• Burkhard Hess (Max Planck Institute Luxemburg)
• Thalia Kruger (University of Antwerp)
• Matthias Lehmann (University of Bonn)
• Ralf Michaels (Max Planck Institute Hamburg)
• Peter Arnt Nielsen (Copenhagen Business School)
• Haris Pamboukis (University of Athens)
• Gian Paolo Romano (University of Geneva)
• Marta Pertegás Sender (University of Maastricht)
• Maciej Szpunar (Court of Justice of the European Union)
• Andreas Stein (European Commission)
• Christiane Wendehorst (University of Vienna)

If you are interested in attending, please register via the conference website. For any other questions, please get in touch with the local organizer, Morten M. Fogt (mmf@law.au.dk).

Information about the European Association of Private International Law (EAPIL) including information about how to join will soon be made available on this blog!

[*]Apostolos Anthimos, Sabine Corneloup, Gilles Cuniberti, Morten M. Fogt, Pietro Franzina, Agnieszka Frackowiak-Adamska, Jan von Hein, Thomas Kadner Graziano, Eva-Maria Kieninger, Johan Meeusen, Pedro de Miguel Asensio, Marta Requejo Isidro, and Giesela Rühl.

Cem Veziroglu, doctoral candidate at the University of Istanbul and research assistant at Koc University Law School has provided us with an abstract of his paper forthcoming in the European Company and Financial Law Review.  <!–more–>

Arbitrating Corporate Law Disputes:

A Comparative Analysis of Turkish, Swiss and German Law

Cem Veziroglu

The resolution of corporate law disputes by arbitration rather than litigation in national courts has been frequently favoured due to several advantages of arbitration, as well as the risks related to the lack of judicial independence, particularly in emerging markets. While the availability of arbitration appears to be a major factor influencing investment decisions, and there is a strong commercial interest in arbitrating corporate law disputes, the issue is unsurprisingly debated in respect of certain characteristics of the joint stock company as a legal entity. Hence the issue comprises a series of legal challenges related to both corporate law and arbitration law.

In a paper forthcoming in the European Company and Financial Law Review, I tackle the arbitrability of corporate law disputes and the validity of arbitration clauses stipulated in the articles of association (“AoA”) of joint stock companies. The study compares Turkish law with that of Germany and Switzerland and in particular tries to shed light on the current position of Turkish law with respect to (i) arbitrability of corporate law disputes, such as validity of general assembly resolutions and requests for corporate dissolution, (ii) validity and binding nature of an arbitration clause provided in the AoA. The paper also suggests practicable legislative recommendations as well as a model arbitration clause.

Arbitrability of Corporate Law Disputes

Under Turkish law corporate law disputes are, in principle, considered to be arbitrable, whereas disputes concerning the validity of general assembly resolutions and corporate dissolution are still heavily debated. I argue that both types of disputes are arbitrable, albeit judicial dissolution requests accommodate practical hurdles due to the magnitude of remedial power granted to judges by law. Moreover, I suggest that arbitral awards should be granted an erga omnes effect (the effects exceeding the parties to the dispute), as long as the interested third parties are provided with the necessary procedural protection. These procedural mechanisms may include the pending and consolidation of all actions filed before the arbitral tribunal and collective – or impartial – selection of arbitrators in multy-party arbitral proceedings.

It seems that the case law has thus far followed the distinction adopted by the orthodox doctrine in general terms; namely disputes concerning the validity of general assembly resolutions and corporate dissolution are deemed inarbitrable. However, considering the ever-growing pro-arbitration tendency in Turkey –in parallel with many other jurisdictions– it would not be surprising if a more flexible approach is eventually adopted in case law as well.

Place of the Arbitration Clause: Articles of Association or Shareholders Agreement?

It is necessary to provide an arbitration clause in the AoA of the company, rather than a shareholders’ agreement (“SHA”), in order to (i) prevent contradicting judgments handed down in parallel proceedings, (ii) be able to request claims peculiar to corporate law and (iii) ensure the binding effect vis-à-vis the company, board members and new shareholders as well as the current shareholders.

Validity of an Arbitration Clause Provided in the AoA

There is no rule under Turkish corporate law that restricts contractual freedom within the AoA of privately held joint stock companies that has the effect of restraining arbitration clauses. An arbitration clause can, therefore, be validly provided either in the original AoA or by way of an amendment thereof by way of a unanimous vote. However, the binding effect of the arbitration clause in question depends on its legal nature, namely, ‘corporative’ or ‘formal’ (contractual).

Addressing this issue, the paper proposes to adopt a two-step test and concludes that if an arbitration clause stipulated in the AoA is deemed corporative in nature, the company, the board members, the new shareholders, and the current shareholders are bound by such an arbitration clause. In the event that the arbitration clause in question is deemed to be a formal provision, it may still remain effective only among the parties as a purely contractual term.

Policy Recommendations

The arbitrability of corporate law disputes, the validity of arbitration clauses stipulated in the AoAs and the procedural standards to protect third parties’ interests should be clarified by an explicit legal provision. In fact, Article 697n of the Swiss Draft Code of Obligations dated 23 November 2016[1] and Italian Legislative Decree of 17 January 2003 No. 5 Articles 34-37 may offer motivating examples in this respect.

According to German Federal Court’s decision in 2009[2], an arbitration clause in the AoA is valid, provided that the protections and the opportunity of shareholders to participate in the proceedings comparable to those in national court proceedings are respected. Therefore Turkish courts should examine the arbitration clause in question in terms of the protection provided to shareholders, rather than applying an outright ban on such clauses in the AoA.

The leading arbitration institutions should draft and publish rules for corporate law disputes as annexes to their existing rules of arbitration. These should consider the issues peculiar to corporate law disputes. Hence, they should provide such mechanisms as the pending and consolidation of actions filed before the arbitral tribunal; collective -or impartial- selection of arbitrators so as to provide the minimum legal procedural protection granted to shareholders. A comprehensive example is the German Arbitration Institution’s ‘DIS-Supplementary Rules for Corporate Law Disputes 09’[3].

With a view to facilitating the incorporation of applicable and valid arbitration clauses into the AoA, a model arbitration clause for corporate law disputes should be published by leading arbitration institutions. Such a model clause may be inspired by the draft model clause found in the paper referenced above.

[1]     https://www.admin.ch/opc/fr/federal-gazette/2017/625.pdf.

[2]     BGH, 6 April 2009, II ZR 255/08, BGHZ 180, 221.

[3]     The said rules can be found at: http://www.disarb.org/en/16/rules/dis-supplementary-rules-for-corporate-law-disputes-09-srcold-id15.

On 12 September 2019, the University of Silesia in Katowice (Poland) will host an international conference on the Regulation (EU) No 650/2012 of the European Parliament and of the Council – the Succession Regulation and on the various issues relating to the succession matters within the European area of freedom, security and justice.

The conference is organized at the occasion of the annual session of the European Group for Private International Law (EGPIL/GEDIP) that will be held at the premises of the University of Silesia in Katowice at the invitation of a member of the Group and a Professor of this University – First Advocate General at the CJEU Maciej Szpunar.

The opening session of the conference will be devoted to the review of Member States’ first experiences with the application of the Succession Regulation. This session will be followed by two panel discussions.

The opening session and both panels will be attended by renowned scholars and practitioners, including but not limited to: Professor Stefania Bariatti (University of Milan), Professor Andrea Bonomi (University of Lausanne), Professor Jürgen Basedow (Max-Planck-Institut für ausländisches und internationales Privatrecht), Professor Christian Kohler (University of Saarbrücken), Professor Paul Lagarde (University of Paris 1 – Panthéon-Sorbonne, Professor emeritus), Professor Cristina González Beilfuss (University of Barcelona) and Michael Wilderspin (European Commission).

The working language of the conference is English, no translation is foreseen.

The fee covering participation in the conference, additional materials and meals including attendance at the reception held after the closing of the deliberations equals to less than 60 EUR.

The draft programme of the conference is available here. More details are available at the website of the University hosting the conference.

Upon the conclusion of the conference, on 13 September 2019, the University of Silesia will award a Doctorate Honoris Causa to the renowned scholar, Professor Paul Lagarde who will deliver a commemorative lecture at this occasion. This ceremony will start at 11:00 AM.

For any inquires that you may have relating to these events, please contact monika.jagielska@us.edu.pl or krzysztof.pacula@curia.europa.eu.

In [2019] EWHC 1747 (Comm) LIC Telecommunications et al v VTB Capital et al Moulder J suggests an unorthodox interpretations of Article 25 of the Brussels Ia Regulation. (Note also her very critical view at 22 of one of the experts, whom she found having confused his role as expert with a role as advocate). Much of the lengthy judgment is devoted to intricate discussions of Luxembourgish corporate law (hence the need for expert evidence) and the jurisdictional issues are, somewhat illogically, discussed towards the end of the judgment, at 245 ff.

Maze, one of the defendants, acts as a manager of V2 pursuant to a directorship agreement dated 26 May 2015 (the “Directorship Agreement”). It relies on the effect of clause 19 of the Directorship Agreement and submitted that claims against it are subject to the exclusive jurisdiction of the courts of Luxembourg pursuant to Article 25 Brussels Ia. Clause 19 provides: 

“for the benefit of the Manager, the Shareholder and the Company hereby irrevocably, specially and expressly agree that the courts of Luxembourg city have jurisdiction to settle any disputes in connection with this Agreement and accordingly submits to the jurisdiction of the courts of Luxembourg city. Nothing in this clause limits however the rights of the Manager to bring proceedings against the Company in connection with this Agreement in any other court of competent jurisdiction or concurrently in more than one jurisdiction.”

The clause is asymmetric aka hybrid aka unilateral. (See e.g. my discussion of Rothschild etc.). These clauses as I have noted elsewhere highlight the clear insufficiency of Brussels Ia’s new lex fori prorogati (including renvoi) rule for choice of court. Which court has been prorogated, hence also lex fori prorogati, is not clear when the clause is asymmetric.

Moulder J discusses [2017] EWHC 161 (Comm) Commerzbank v Liquimar Tankers as precedent: I reviewed it here and signalled at the time that it would not be the last we would hear of the issue. In that case Cranston J held ‘There is nothing in Article 25 that a valid jurisdiction agreement has to exclude any courts, in particular non EU Courts. Article 17, penultimate paragraph, of the Brussels Convention recognised asymmetric jurisdiction clauses. To my mind it would need a strong indication that Brussels 1 Recast somehow renders what is a regular feature of financial documentation in the EU ineffective.‘ I was never taken by that conclusion viz the Brussels Convention: its Article 17 reference to a party having ‘benefit’ from choice of court does not relate entirely to the same discussion on asymmetric clauses (Peralla v Codere [2016] EWHC 1182 (Comm) which I discussed here illustrates that difference).

At any rate I disagree with Moulder J’s statement at 254 that

It is now common ground that it is a question of autonomous EU law and not a question of national law. (It was I believe accepted that the proviso “unless the agreement is null and void as to its substantive validity” refers to issues such as capacity, fraud and mistake, not whether particular kinds of “choice of court” agreements are permitted under the Regulation).

Asymmetric clauses are the first example often given when highlighting the limited cover of Article 25 Brussels I a (and the need for certainty on the lex causae for choice of court). There is no autonomous interpretation there at all. I do agree however with the conclusion at 261: that Luxembourg courts, applying EU law, would not uphold such clauses was not made out on the evidence. Luxembourgish courts at least when they apply Luxembourgish law, generally uphold the validity of asymmetric choice of court.

At 263 ff then follows discussion of Article 7(1) and 7(2). Much of the authority discussed has been reviewed on this blog. (Including Bosworth (Arcadia) which is currently before the CJEU). Moulder J holds that Article 7(2) is engaged, not 7(1), and on the former discusses locus delicti commissi with reference to JSC BTA Bank v Khrapunov. At 295: it is not sufficient that there are meetings in England to implement the conspiracy, it is the making of the agreement in England which is to be regarded as the harmful event.  Claimants have not supplied a plausible evidential basis that the agreement was made in England. Their evidence is consistent with a case that the conspiracy was implemented in England but that is not sufficient.

As for locus damni, at 298: Even though the share purchase agreement was under English law, it is the loss of the shares in the Luxembourg company which is the pleaded damage not the agreement to sell or the auction. The Vivacom group consists of Bulgarian telecommunications companies which were held by InterV through Viva Luxembourg Bulgaria EOOD (paragraph 3 of the Agreed List of Agreed Issues). Locus damni is Bulgaria, perhaps Luxembourg. But not England.

Finally, abuse of process considerations are linked to English procedural law (whether claims should have been brought sooner).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.11.1, Heading 2.2.11.2 .

Pourvoi c/ Cour d'appel de Paris, chambre 2-7, 7 février 2019

Pourvoi c/ Cour d'appel de Grenoble, chambre de l'instruction, 15 janvier 2019

Pourvoi c/ Cour d'appel de Besançon, chambre correctionnelle, 15 janvier 2019

Pourvoi c/ Cour d'appel de Paris, chambre de l'instruction, 14 février 2019

Pourvoi c/ Cour d'appel de Paris, chambre de l'instruction, 14 février 2019

Pourvoi c/ Cour d'appel de Paris, 2e chambre, 31 janvier 2019

Pourvoi c/ Cour d'appel de Reims, chambre correctionnelle, 20 novembre 2018

Pourvoi c/ Cour d'appel de Paris, chambre 4-8, 6 septembre 2018

The Permanent Bureau of the Hague Conference on Private International (HCCH) seeks high-achieving interns for January to July 2020.

An internship with the HCCH offers a unique opportunity to deepen the knowledge of private international law, better understand how the HCCH functions, and contribute to the work of the Organisation.

Interested? Then lodge your application by Monday 30 September 2019.

For more information, including the application requirements, check out the HCCH website at: https://www.hcch.net/en/recruitment/internships#legal.

Par trois arrêts rendus le même jour, la chambre criminelle apporte d’utiles précisions relatives à la procédure applicable aux mineurs.

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Tribunal de grande instance de Besançon, chambre correctionnelle, 26 juin 2019

Tribunal de grande instance de Marseille, 21 juin 2019

Pourvoi c/ Cour d'appel de Paris - chambre 5-14, 12 février 2019