Agrégateur de flux

Craeynest e.a.
Environnement et consommateurs
Les juridictions nationales sont compétentes pour contrôler le choix de l’emplacement des stations de mesure de la qualité de l’air et prendre, à l’égard de l’autorité nationale concernée, toute mesure nécessaire

Krajowa Rada Sądownictwa (Indépendance de la chambre disciplinaire de la Cour suprême)
Droit institutionnel
Selon l’avocat général Tanchev, la chambre disciplinaire, nouvellement créée, de la Cour suprême polonaise ne satisfait pas aux exigences de l’indépendance judiciaire établies par le droit de l’Union

For those of you who read German it is great news that volume 2 of the leading German textbook on Private International Law, ‘Internationales Privatrecht’ by Christian von Bar has just been published in a second edition, now authored by Peter Mankowski. The impressive book offers a comprehensive analysis of the current framework of Private International Law concepts and rules in specific areas of law: contractual and non-contractual obligations, law of property, family law, law of succession, personal law of natural persons and company law. The book combines a didactic approach with a far-reaching comparative methodology and admirable in-depth analyses. An indispensable reference guide and source of inspiration for everyone interested in Private International Law! Highly recommended!

Further information and the table of contents can be found here and here.

Hongrie / Commission
Aide d'État
Le Tribunal annule la décision de la Commission constatant l’incompatibilité de la taxe hongroise sur la publicité avec les règles de l’Union concernant les aides d’État

Krajowa Rada Sądownictwa (Indépendance de la chambre disciplinaire de la Cour suprême)
Droit institutionnel
Selon l’avocat général Tanchev, la chambre disciplinaire, nouvellement créée, de la Cour suprême polonaise ne satisfait pas aux exigences de l’indépendance judiciaire établies par le droit de l’Union

In July 2018, Professors Claudia Schubert (then University of Bochum, now Hamburg), Yuanshi Bu and Jan von Hein (both University of Freiburg) organised a comparative, Chinese-German symposium on the recent codification of the general principles of Chinese private law and their implications for freedom of contract (including choice of law) in Freiburg. The contributions to this conference have now been published in a special edition of the German Journal of Chinese Law (Zeitschrift für Chinesisches Recht [ZChinR]) Vol. 26 No. 1 (2019). The full issue is available (for subscribers) here. All the articles are in German, but the authors have kindly provided the following English abstracts:

Franz Jürgen Säcker: The Development of Civil Law in Accordance with the Constitutional and Economic Order (§ 1 General Part of the Chinese Civil Code)

The article compares the General Part of the German Civil Code with the General Part of the Chinese Civil Code. The author positively assesses the fundamental-rights-related provisions at the top of the Chinese Civil Code, their serving as ideal guiding principles on interpretative matters. Further, he welcomes the inclusion of intention and fault as relevant bases of obligations. The structure and system of the General Part of the Chinese Civil Code is very similar to that of the German Civil Code. However, legal uncertainties and doubts remain here as well, as shown by the example of regulations on usury.

BU Yuanshi: The Principle of Legal Equality

The legal equality of all civil law subjects in China has been codified in § 2 of the General Part of the People’s Republic of China’s Civil Code. The article conveys the significance of the codification by detailing the difficulties in finding a consensus and agreeing upon a choice of words for § 2 GPCL on the one hand and §§ 4 and 113 GPCL on the other. The purpose and content of the codification are clarified in particular by a comparison to the earlier General Principles of Civil Law. Since the principle of legal equality was already entailed in the General Principles of Civil Law, the main function of § 2 GPCL is one of consolidation. Such a function also appears to be of greater significance in light of China’s legislative history. The codification of § 2 GPCL is criticized with regard to the separation of civil and administrative law. However, a comparison to foreign codifications justifies such a separation. The true significance of § 2 GPCL lays in both its “ripple effect” on other codifications as well as in its justiciability. The principle of legal equality has penetrated into various laws, whereas the application of the principle of equality by courts is still debated in legal literature. Nonetheless, the principle has served as grounds for various judgements, some of which were announced by the SPC itself.

Andreas Engert: Contractual Freedom vs. Contractual Justice – §§ 5 and 6 of the General Part of the Civil Code of the People’s Republic of China

The article examines the relationship between the principles of contractual freedom and justice as enshrined in the new General Part of the Chinese Civil Code. To this end, it considers the contract theory of German legal scholar Walter Schmidt-Rimpler. According to this theory, contractual freedom is merely a means of creating a “correct” (just) regulation of a contractual exchange between parties. However, the free bargaining process does not guarantee that the resulting contract will be perfectly just. Therefore, it seems obvious at first glance that the contract should be subject to comprehensive judicial review. Schmidt-Rimpler objected to such far-reaching interventions as a serious threat to legal certainty. The article elaborates on this claim in more detail. It thus provides a reason why judicial review of a contract must remain narrowly limited even if freedom of contract is only a means to the end of contractual justice.

ZHANG Shuanggen: The Principle of Good Faith in Chinese Civil Law

The article focuses on two aspects in relation to the topic of good faith. First, the state of the current commentary on the Chinese ATZR is briefly presented and evaluated against the yardstick of German legal commentary. Second, individual questions typical of the commentary on § 7 ATZR and the principle of good faith are addressed, such as whether a “special rights relationship” is a prerequisite for the application of Section § 7 ATZR, and how the relationship between the principle of good faith and other individual legal institutions should be understood.

Claudia Schubert: The Principle of Good Faith and Fair Dealing (§§ 6, 7 AT ZGB)

Good faith and fair dealing is a basic principle in German and Chinese civil law. Whereas the German Civil Code does not expressly regulate the principle and relies instead on a general clause in paragraph 242, Chinese law specifies the principle and its manifestations. In both countries the principle of good faith limits the exercise of rights and creates individual justice on the basis of a balancing of interests. Unlike German law, the Chinese Civil Code includes a separate principle of iustitia commutativa. Therefore, the principle of good faith and fair dealing is not completely congruent in both countries.

FENG Jieyu: Public Law Limitations on the Freedom of Contract – A Commentary on § 8 General Part of the Chinese Civil Code

In § 8 of the General Part of the Chinese Civil Code (GPCC), which originated from § 8 of the General Principles of Chinese Civil Law and § 7 of the Contract Law, illegality and public morality are regulated. Compared to the German BGB, it is a special feature of § 8 GPCC that illegality and immorality are regulated in the same paragraph. This reflects the discussion in China about the relationship between prohibitive legal rules and public morality. As a principle, § 8 GPCC is specified in the field of contract law by § 52 No. 4 and 5 Contract Law. The interpretation of “law” in the sense of § 8 GPCC and § 52 No. 5 Contract Law encountered problems in the application of law. Legal theory and legal interpretations in China seek to limit the scope of legal prohibitions. In order to assess the validity of a contract, recent Chinese theory creates a flexible system comprising eight evaluative elements, e.g. the degree to which a contract has been fulfilled.

WANG Hongliang: Public Morality and Contractual Penalties

This article first discusses the principle of public morality. Any legal transaction which violates public morality is void. Thereafter, it is analysed how the principle of public morality affects the concept of contractual penalties. In the view of the legislature, only penalties having the nature of a sanction are compatible with the principle of public morality. However, penalties having a punitive character are not prohibited, instead being only limited. Thirdly, the article considers how an agreed contractual penalty may be reduced. If the contractual penalty that the parties have agreed to is excessive, the judge can reduce it on application of a party. However, not infrequently the judges in China will apply the principle of public morality to a contractual penalty ex officio. In addition, the article looks at legislative provisions limiting usury and the permissible annual interest rate for loan agreements.

Jan Lieder / Philipp Pordzik: Environmental Protection as a Limitation of the Freedom of Contract

With § 9 of the General Part of the Civil Code of the People’s Republic of China, an obligation to protect the environment was incorporated into Chinese civil law. Henceforth, when legal entities conduct legal transactions, they must contribute to the conservation of resources and protect the ecological environment. This article considers the extent to which § 9 limits the contractual freedom guaranteed in § 5 of the General Part of the Civil Code. For this purpose, the content and scope of the provision will be subject to a critical-constructive analysis with recourse to comparable provisions in German law.

HE Jian: The Green Principle and Law and Economics in Chinese Civil Law

Article 9 of the General Provisions of the Chinese Civil Code (the green principle) aims not only at protecting the environment but also at preserving resources. Although environmental protection is a crucial part of the green principle, this aspect of the principle can rarely be applied in the context of public law or private law. The notion of preserving resources can be interpreted in different ways. A single dimension interpretation is quite common in practice, but it is erroneous. A comprehensive interpretation is synonymous with a minimization of social costs or a maximization of social wealth and leads to a law and economics approach. This must be the future of the green principle.

Phillip Hellwege: The Role of Common Practices under the General Part of the Chinese Civil Code

According to § 10 of the Chinese General Part of the Civil Code, a court may refer to common practices only where there are gaps in the law. Although on its face an easily grasped provision, its interpretation raises a number of problems. The present contribution formulates an interpretation from a comparative perspective. This viewpoint suggests that § 10 uses the term common practices in the meaning of customary law. Furthermore, it would be preferable to interpret § 10 such that customary law is of equal rank to statutory law, thereby allowing customary law to also trump non-mandatory statutory law.

ZHUANG Jiayuan: Draft-Commentary on § 79 Contract Law – An Excerpt

This article presents an excerpt from a commentary on § 79 Contract Law regarding the assignment of claims. In principle, legal claims constitute an important property asset and therefore can be assigned freely. Such an assignment transfers a legal right, which thus requires the assignor to hold legal title of the transferred claim. Reasons for limiting or prohibiting assignment can stem from the content of the claim at hand, the underlying circumstances or societal policies. In addition, parties often agree on the non-assignability of a certain claim. It is pointed out in this article that a prohibition or limitation of assignment also serves to limit the content of the claim itself. The doctrines of relative validity and similar theories are discussed, with focus also placed on the legal status of an assignor, an assignee and a debtor as well as on liquidity and the interests of third parties.

Jan von Hein: Limitations to Contractual Freedom in Private International Law (§ 12 General Part of the Chinese Civil Code)

Although the principle of territoriality has been codified in section 12, 1st sentence, of the General Part of the Chinese Civil Code (GPCC), it merely serves as a default rule in legal practice because, pursuant to the 2nd sentence of section 12 GPCC, the provisions of the Chinese Act on Private International Law and the judicial interpretation by the Supreme People’s Court take precedence. In the present article, the rules governing party autonomy in Chinese international contract law are compared with their counterparts in the Rome I Regulation and the Hague Principles on Choice of Law in International Commercial Contracts. Although EU and Chinese PIL differ in some technical details, their general approach to party autonomy and the laws that may be chosen is quite similar. Substantial differences exist with regard to consumer and individual employment contracts, but their practical impact appears to be limited. Insofar, the Hague Principles do not offer any guidance for further harmonisation because their scope is limited to B2B scenarios. Both the EU and the Chinese PIL rules are characterised by gaps and uncertainty as far as foreign overriding mandatory rules are concerned.

ZHU Xiaozhe: Party Autonomy and its Limitation when Determining the Law Applicable Law to Foreign Related Civil Relations

12 of the General Part of the new Chinese Civil Code originates from § 8 of the former General Principles of Civil Law. Specifying an absolute principle of territoriality, and thereby reflecting a traditional emphasis on sovereignty, the provision has been heavily criticized in terms of both theory and its legal application. In the view of the legislature, this problem should be remedied by China’s Code on Private International Law (PIL Code) taking precedence over § 12. China’s PIL Code states that the parties can exercise party autonomy so as to agree on the applicable law before or even after the formation of legal relationships. While the menu of eligible laws traditionally encompassed laws having a “substantial connection”to the case at hand, this requirement has been relaxed in § 7 of the Supreme People’s Court interpretive guidelines. Nonetheless, party autonomy is limited by overriding mandatory rules, public policy and notions of consumer protection.

In [2019] EWHC 1391 (QB) Percival v Moto Novu LLC Murray J considers the ins and outs of Article 38 Brussels Ia.

The dispute arose out of an aborted property transaction in Italy. Mr Teruzzi and Ms Puthod are husband and wife. La Fattoria was a “pass-through” company incorporated under Italian law and owned by Mr Teruzzi and Ms Puthod through which the property at the centre of the dispute was temporarily owned. It has since been dissolved.

By an Assignment of Rights of Judgment dated 28 March 2011 (but signed by the parties on 29 June 2011) and governed by the laws of the Commonwealth of Massachusetts (“the 2011 Assignment”), Mr Teruzzi assigned to the respondent, Motu Novu LLC (“Motu Novu”), a Delaware limited liability company, all of his right, title and interest in the Tribunal Judgment and the CA Milan Judgment. There is a dispute between the parties as to whether the 2011 Assignment was also effective to transfer the right, title and interest of Ms Puthod and La Fattoria in those judgments or, if not, whether that fact is relevant to the effectiveness of the registration.

At 8: Title III (the recognition and enforcement Title) involves two stages: i) under Article 39 of the Regulation, a first stage involving only the applicant, who must be an “interested party” and who applies ex parte to the relevant “court or competent authority” listed in Annex II to the Regulation to obtain an order for registration of the foreign judgment in order to permit enforcement locally; and ii) under Article 43 of the Regulation, a second stage, inter partes, during which the respondent (the judgment debtor) has the opportunity to raise certain limited objections by lodging an “appeal” (under English CPR rules this would be an application to set aside the order).

Under Article 44 of the Regulation, the order made on appeal under Article 43 is subject to a single further appeal on a point of law.

At 11: The ex parte stage of the registration process is governed by Articles 38 to 42 of the Regulation. The inter partes stage is governed by Articles 43 to 47. The remainder of section 2 of chapter III of the Regulation, Articles 48 to 52, deals with miscellaneous points that do not arise in this case, other than in relation to Article 48 (undue delay).

The process is further described in detail in the judgment. This is most helpful. Unless one has done one of these oneself, in all Member States the actual procedure is often shrouded in various levels of fog.

Of longer term authority interest is the discussion of the mistake made at an earlier stage, to register all 3 Italian judgments even though under Italian law only one of them was actually enforceable. At 44 Murray J in my view justifiably excuses this error: there is nothing ‘in the Regulation, or otherwise, (that) limits an applicant’s registration of a foreign judgment to the proportion to which he is entitled. I have seen no authority for that proposition.’

What is also of note is the concept of ‘interested party’. At 45:

The term “interested party” is not defined in the Regulation, but a person who is the assignee of a named judgment creditor, even where there are other named judgment creditors, is clearly an interested party. It seems to me fundamentally incompatible with the deliberately limited and mechanical nature of the registration process under chapter III of the Regulation that the registering court or competent authority should be required to enquire into the nature and extent of an applicant’s interest in a judgment, beyond what is necessary to establish prima facie that the applicant is an interested party.

I believe this is right. That the proceedings leading to the Italian Judgment were served on the Original Claimants on 17 January 2011, pre-dating the 2011 Assignment by over two months has therefore become irrelevant (at 48).

Intricate detail of Title III is not often litigated. This judgment is noteworthy.

Geert.

(Handbook of) EU private international law 2nd ed. 2016, Chapter 2, Heading 2.2.16.

 

Dans deux affaires jugées le 13 juin 2019, la première chambre civile opère un revirement de jurisprudence concernant le régime de l’article 30-3 du code civil.

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La Cour européenne des droits de l’homme a condamné la France le 6 juin 2019 pour violation du droit à ne pas être jugé ou puni deux fois en raison de la double poursuite et condamnation prononcée par l’Autorité des marchés financiers et les juridictions pénales.

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Statut collectif du travail

Mineur - Cour d'assise

Abus de faiblesse

Yesterday the Council of the European Union adopted the Council regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast) (Brussels IIa regulation). For more information, see here.

As indicated on the Council’s website, the new rules will apply 3 years after the publication of the regulation in the Official Journal of the European Union.

For an English version of the regulation, see here (dated 24 May 2019). A Spanish version is available here (dated 24 June 2019).

 

The Institute for International Business Law of the University of Münster (Germany) will be hosting a conference on “Kollisionsrecht 4.0 – Künstliche Intelligenz, smart contracts und Bitcoins als Herausforderungen für das Internationale Privatrecht” on 8 November 2019 in Münster (Germany). The conference will examine the conflict of laws challenges arising from artificial intelligence and blockchain phenomena. Wolfgang Prinz (Fraunhofer Institute for Applied Information Technology FIT), will provide the indispensible technical background.

Speakers are Stefan Arnold, Bettina Heiderhoff, Matthias Lehmann, Jan Lüttringhaus, Gerald Mäsch and Michael Stürner. Further information and registration (before October 24th) at https://zivindico.uni-muenster.de/e/kollisionsrecht.

Craeynest e.a.
Environnement et consommateurs
Les juridictions nationales sont compétentes pour contrôler le choix de l’emplacement des stations de mesure de la qualité de l’air et prendre, à l’égard de l’autorité nationale concernée, toute mesure nécessaire

Craeynest e.a.
Environnement et consommateurs
Les juridictions nationales sont compétentes pour contrôler le choix de l’emplacement des stations de mesure de la qualité de l’air et prendre, à l’égard de l’autorité nationale concernée, toute mesure nécessaire

« Sauf lorsque soit les lois, règlements ou usages en vigueur dans l’État où l’acte est produit, soit une entente entre deux ou plusieurs États contractants l’écartent, la simplifient ou dispensent l’acte de légalisation, les actes publics qui ont été établis sur le territoire d’un État contractant et qui doivent être produits sur le territoire d’un autre État contractant, doivent être revêtus de l’apostille, délivrée par l’autorité compétente de l’État d’où émane le document. »

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