Agrégateur de flux

Written by Felix M. Wilke, Senior Lecturer at the University of Bayreuth, Germany.

Must a foreign judgment be recognised in which a jurisdiction agreement has been applied incorrectly, i.e. in which a court wrongly assumed to be competent or wrongly declined jurisdiction? Within the European Union, the basic answer is a rather straightforward “yes”. Recognition can only be refused on the grounds set forth in Article 45(1) Brussels Ibis Regulation, and unlike Article 7(1)(d) of the recently adopted HCCH Judgments Convention, none of them covers this scenario. What is more, Article 45(3) Brussels Ibis expressly states that the jurisdiction of the court of origin, save for certain instances of protected parties, may not be reviewed, not even under the guise of public policy.

Why, then, should one bother to read the book by Niklas Brüggemann, Die Anerkennung prorogationswidriger Urteile im Europäischen und US-amerikanischen Zivilprozessrecht (Mohr Siebeck) on the recognition of judgments in contravention of prorogation clauses in European and US-American law? The first and rather obvious reason can be found in the second part of the title. The book contains a concise, yet nuanced overview of the law of jurisdiction agreements in the US (in German). To the knowledge of this author, it has been 12 years since the last comparable work was published (Florian Eichel, AGB-Gerichtsstandsklauseln im deutsch-amerikanischen Handelsverkehr (Jenaer Wissenschaftliche Verlagsgesellschaft) – which dealt with recognition only in passing and was limited to German and US law). Thus, this new book can be recommended to anyone with sufficient command of the German language who is interested in this particular aspect of US civil procedure, whose concepts – if one even dares to use that term – partly differs from European ideas.

The second and main reason to concern oneself with Brüggemann’s book, however, is his proposition for a new ground of refusal of recognition: a new Article 45(1)(e)(iii) Brussels Ibis for which he even offers a draft. To this end, the author comprehensively analyses jurisdiction agreements within the Brussels Ibis framework. While Article 31(2) Brussels Ibis, one of the main innovations of the Recast, has indeed “enhance[d] the effectiveness of exclusive choice-of-court agreements” (Recital 22 Brussel Ibis), Brüggemann argues that the Regulation still safeguards jurisdiction agreements insufficiently. He points out several situations (e.g. asymmetrical agreements, mere derogation agreements) that Article 31(2) Brussels Ibis does not cover in the first place. He also argues in some detail that the court first seised is allowed to examine the jurisdiction agreement in question with regard to the existence of an agreement and its formal validity; its assessment would be binding upon other courts in line with Gothaer Allgemeine (ECJ Case C-456/11). This in turn would lead to a race to the courts and even to a race between the courts. (The latter metaphor is only partially convincing, for it is unlikely that the judges will intentionally accelerate their respective proceedings in order to “beat” the other court.)

Brüggemann goes on to argue that when it comes to jurisdiction agreements it is contradictory to make an exception to the principle of mutual trust in the lis pendens context but to strictly adhere to it in the recognition context. He demonstrates that, in particular, default judgments by a derogated court pose a significant risk for the defendant – one with which US civil procedure arguably deals more effectively. Alas, this appears to be the only instance in which the author’s comparative analysis, as interesting it is in and of itself, contributes to his broader point. He concludes by pointing out parallels to jurisdiction in insurance/consumer/employment matters (safeguarded at the stage of recognition by Article 45(1)(e)(i) Brussels Ibis) and exclusive jurisdiction (safeguarded at the stage of recognition by Article 45(1)(e)(ii) Brussels Ibis), and by suggesting that a special ground for refusal of recognition would have positive effects on the internal market.

While the abovementioned Judgments Convention is too recent to feature in the book, the author was able to consider its draft in a separate, albeit somewhat oddly positioned, chapter. Conspicuously absent is any specific discussion of the issue of damages for the violation of a choice of court agreement (see this recent post). The omission is certainly justifiable as Brüggemann is only concerned with procedural safeguards for jurisdiction agreements. But maybe such a remedy under substantive law could obviate or at least lessen the need for a separate ground of refusal of recognition? All in all, however, the author has carefully built a compelling case for an addition to Article 45(1) Brussels Ibis.

The Faculty of Law of Humboldt-University Berlin invites applications for 7 doctoral positions as Research fellow with 3/4-part-time-employment – E 13 TV-L HU1 (third party funding, short-term until 30 November 2021, prolongation is possible; engagement intended until 1 December 2019)

Job description:

• Research activities in the doctoral programme “Dynamic Integration – Law in-between Harmonisation and Plurality in Europe (DynamInt)” funded by the Deutsche Forschungsgemeinschaft (German Research Foundation, GRK 2483);
• Activities for your own scientific qualification (PhD within the thematic areas of the doctoral programme).

You can find more information about the post graduate program DynamInt online: https://www.rewi.hu-berlin.de/de/lf/oe/rhp/index.htm

Requirements

• First German State Examination in Law or Master Degree in Law (preferably with distinction or better);
• Sufficient command of German and at least one further European common language.

Application period until

1st November 2019 (not fixed, extension possible)

Application details

Applications must include a research proposal for the PhD discussing the state of research, framing a scientific question as well as a research plan.

Applications must indicate the identification number of this Call for application (DR/158/19) and should be sent to Humboldt University of Berlin, Faculty of Law, Professor Dr. Matthias Ruffert, Unter den Linden 6, 10099 Berlin or to the following e-mail address: DynamInt@rewi.hu-berlin.de (one PDF, max. 10 MB).

NB

The working language of the programme (courses, workshops etc.) is German. The PhD thesis may be written in English.

English text for information with additional explanations – only the German text is authoritative.

Workshop: Application of the “Second Generation” Regulations in The Netherlands

The Erasmus School of Law (Erasmus University Rotterdam, the Netherlands) will host a second national workshop on Thursday, 14 November 2019 from 9.30-13.00 hrs, in the framework of the research project “Informed Choices in Cross-Border Enforcement” (IC2BE) (see our first workshop). This project (JUSTAG-2016-02) is funded by the Justice Programme (2014-2020) of the European Commission and aims to assess the functioning in practice of the “second generation” of EU regulations on procedural law for cross-border cases, i.e. the European Enforcement Order (“EEO”), European Order for Payment (“EPO”), European Small Claims (as amended by Regulation (EU) 2015/2421) (“ESCP”) and the European Account Preservation Order (“EAPO”) Regulations.

The project is carried out by a European consortium involving the Max Planck Institute Luxembourg and the universities of Antwerp, Complutense of Madrid, Milan, Rotterdam, and Wroclaw, and is coordinated by Prof. Jan von Hein from the University of Freiburg.

The workshop will present the findings of the research in the Netherlands and discuss these with experts from legal practice and academics, with the aim of assessing and improving the application of these instruments.

The language of the workshop is mostly Dutch. Practitioners and academics interested in cross-border litigation are invited to participate in this event. The program can be found here. Contact address for registration and further information: ontanu@law.eur.nl.

The final conference for this IC2BE project will take place in Antwerp on 21-22 November 2019. For more information and registration see our previous post and the project website.

 

Claude Chossat, qui impute l’assassinat de Richard Casanova à Francis Mariani, dont il était le chauffeur, explique que le but officiel de l’opération était de surveiller Michel Quilici, qui les mènerait à son ami Jean-Luc Germani, dont Mariani pensait qu’il avait voulu l’assassiner. Mercredi et jeudi, la cour d’assises a entendu les principaux concernés.

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The third issue of 2019 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released and it features:

Stefania Bariatti, Professor at the University of Milan, Volontà delle parti e internazionalità del rapporto giuridico: alcuni sviluppi recenti nella giurisprudenza della Corte di giustizia sui regolamenti europei in materia di diritto internazionale privato (Party Autonomy and Characterization of a Legal Relationship as International: Some Recent Developments in the Jurisprudence of the Court of Justice on the EU Regulations in Private International Law; in Italian)

Two recent cases brought before the Court of Justice of the EU lead to meditate about the admissibility of choice of court clauses in favour of a foreign court and choice of law clauses in favour of a foreign law inserted in purely domestic contracts. In the Vinyls case, the Court of Justice has stated that the choice of a foreign law, that is valid according to the Rome I Regulation, is valid also for purposes of Article 16 of Regulation No 2015/848 (European Insolvency Regulation Recast), provided that such choice is not fraudulent or abusive. This solution, that is in line with the previous case-law of the Court, requires that the parties to a domestic contract carefully check the reasons for choosing a foreign law and it excludes that national provisions of law concerning the voidness or voidability of detrimental acts in case of insolvency qualify as mandatory rules under Article 3(3) of the Rome I Regulation. The second case, that will not be decided by the Court since it was repealed by the national judge, concerns the choice of a foreign forum in a domestic contract subject to the ISDA rules, that are widely used in international business transactions. Some recent judgments of the Court suggest that such choice is apt to qualify a domestic contract as ‘international’ for purposes of applying the Brussels I recast Regulation and is valid according to its Article 25.

In addition to the foregoing, the following comment is featured:

Martina Mantovani, PhD Candidate at the University of Paris II Pantheon-Assas and Research Fellow at the Max Planck Institute Luxembourg for Procedural Law, Horizontal Conflicts of Member States’ GDPR-Complementing Laws: The Quest for a Viable Conflict-of-Laws Solution (in English)

This paper offers a comparative overview of the national provisions defining the reach of the laws adopted by Member States on the basis of the opening clauses enshrined in the GDPR. It identifies the lack of coordination among the Member States’ complementing laws as a major hindrance to the proper functioning of the internal digital market, due to the paramount problems of over – and under – regulation, and increased potential for forum and law shopping stemming from the existing legislative framework. Against this backdrop, this paper submits that existing national rules of applicability may be deemed contrary to EU law, and should be interpreted, to the extent possible, “in conformity” with the wording and the purpose of the GDPR. In this vein the scheme and objectives of the GDPR, should be directly applied.

Commission / Pologne (Mécanisme temporaire de relocalisation de demandeurs de protection internationale)
Espace de liberté, sécurité et justice
L’avocate générale Sharpston propose à la Cour de juger que, en refusant de se conformer au mécanisme provisoire et temporaire de relocalisation obligatoire de demandeurs de protection internationale, la Pologne, la Hongrie et la République tchèque ont manqué à leurs obligations découlant du droit de l’Union

The latest issue of Erasmus Law Review, edited by Xandra Kramer and John Sorabji is dedicated to International Business Courts. It contains eleven papers focusing on a specific jurisdiction or on horizontal issues, including international jurisdiction and lawyers’ preferences in international litigation. The Introductory paper by the editors frames the discussion on international business courts and provides explanations for the rise ofthese courts in Europe and beyond, addresses aspects of
justice innovation and international competition, as well as the effect these new courts may have on
globalising commercial court litigation.

This issue of Erasmus Law Review results from the seminar ‘Innovating International Business
Courts: a European Outlook’ hosted by the Erasmus School of Law in Rotterdam, held on 10 July 2018, and coorganised by the Max Planck Institute for Procedural Law in Luxembourg and the Montaigne Centre for Rule of Law and Administration of Justice of Utrecht University. It includes the speaker contributions to that seminar and additional articles resulting from a call for papers on this blog.  The complete issue can be downloaded here. The table of contents is at the bottom of this post.

Similtaneously a book expanding on the topic and including a views from twelve jurisdictions has just been published: International Business Courts: A European and Global Perspective  (eds. Xandra Kramer & John Sorabji), Eleven International Publishing 2019. (order form) This electronic version of this book will become available open access soon.

These publications result from and are financed by the ERC Consolidator project Building EU Civil Justice at the Erasmus School of Law in Rotterdam.

 

Table of contents Erasmus Law Review 2019(1) – International Business Courts

(1) International Business Courts in Europe and Beyond: A Global Competition for Justice?
Xandra Kramer & John Sorabji

(2) A View from the Business and Property Courts in London
Sir Geoffrey Vos

(3) Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court
Eddy Bauw
(4) International Commercial Courts in France: Innovation without Revolution?
Alexandre Biard
(5) Chambers for International Commercial Disputes in Germany: The State of Affairs
Burkhard Hess & Timon Boerner
(6) The Brussels International Business Court: Initial Overview and Analysis
Erik Peetermans & Philippe Lambrecht
(7) Requirements upon Agreements in Favour of the NCC and the German Chambers – Clashing with the Brussels Ibis Regulation?
Georgia Antonopoulou
(8) Matchmaking International Commercial Courts and Lawyers’ Preferences in Europe
Erlis Themeli
(9) The Singapore International Commercial Court: The Future of Litigation?
Man Yip
(10) Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement
Drossos Stamboulakis & Blake Crook
(11) The Emergence of International Commercial Courts in India: A Narrative for Ease of Doing Business?
Sai Ramani Garimella & M.Z. Ashraful
(12) The Court of the Astana International Financial Center in the Wake of Its Predecessors
Nicolas Zambrana-Tevar

 

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

D. Einsele: The Law Applicable to Third-Party Effects of Assignments of Claims – A Critical Interjection Regarding the Commission’s Proposal

Claims are relative rights against the debtor. Therefore, third parties are not legally affected by the assignment of a claim. However, legal systems may protect third parties’ (economic) interest in knowing who the creditor of a claim is. Insofar, essentially two different means of making the assignment public have to be distinguished, i.e. “relative” publicity, in particular by notice of the assignment to the debtor, and “absolute” publicity, in particular by registration of the assignment in a public register. Whereas means of relative publicity usually can be qualified as rules covered by Art. 14(1) and 18(1) Rome I Regulation, means of absolute publicity are generally overriding mandatory provisions. Instead of qualifying different publicity provisions, Art. 4 of the Proposal establishes one single rule for all third-party effects of assignments. Yet it distinguishes, in a conceptually erratic manner, different cases of assignments of claims and allows for party autonomy relating to third-party effects, thereby infringing basic legal principles. The Proposal will also not bring about legal certainty regarding the third-party effectiveness of assignments. This is due to the “super” conflict rules of Art. 4(1) subs. 2, Art. 4(4) of the Proposal and the lack of (explicit) rules concerning chains of assignments. Requirements for absolute publicity – qualified as overriding mandatory provisions – would in any event not be caught by Art. 4 of the Proposal.

C. Thole: The distinction between EIR and Brussels Ia-reg. with respect to damage claims against third parties based on damages incurred by the general body of creditors

The recent judgment of the ECJ shows, once again, the difficulties in distinguishing between civil matters (falling within the scope of the Brussels Ia Regulation) and actions within the meaning of Art. 6 EIR which derive directly from the insolvency proceedings and are closely linked to them. The Court had to deal with a special action established under Dutch law that allows the insolvency practitioner to pursue a damage claim against third parties on the grounds of them allegedly being party to a misappropriation of assets committed by the debtor. The ECJ concluded that such a claim falls within the scope of the Brussels Ia Regulation, notwithstanding the fact that the action is brought by the liquidator in insolvency proceedings and the proceeds of the action, if the claim succeeds, accrue to the general body of creditors. Christoph Thole analyses the judgment and its consequences for other damage claims based on German law. He also argues that the ECJ is trying to more and more confine the criteria relevant under Art. 6 EIR to a sole criterion, i.e. the legal basis of the action. This shows some similarities with the approach followed by the ECJ with respect to the general distinction between civil and administrative matters under art. 1 Brussels Ia Regulation.

C.A. Kern/C. Uhlmann: International jurisdiction and actio pauliana (avoidance action) in the absence of insolvency proceedings

The ECJ ruled that international jurisdiction for the avoidance action of a Polish creditor against a Spanish third party which had received assets from the Polish co-contractor of the creditor can be based on Art. 7 No. 1 lit. a Brussels I bis Regulation. For the ECJ, international jurisdiction for an avoidance action against the “enriched” third party can be derived from the original contractual relationship between creditor and debtor. The authors criticize the decision of the ECJ and instead argue in favor of the general place of jurisdiction (Art. 4 para. 1 Brussels I bis Regulation).

K. Sirakova/P. Westhoven: Do broadly worded jurisdiction clauses cover actions based on the abuse of a dominant position?

The interpretation of jurisdiction agreements in the private enforcement of EU competition law continues to raise various questions in Member State courts even after the ECJ’s decision in CDC Hydrogen Peroxide. The latest ruling of the Luxembourg court in this context was the case Apple Sales International. The judgment clarifies some of the questions that remained open in the aftermath of the CDC-ruling and provides guidance on the interpretation of jurisdiction agreements by proposing a general differentiation between claims resulting from an infringement of Art. 101 TFEU and such based on Art. 102 TFEU. While the judgment will undoubtedly facilitate a swift decision of jurisdiction issues in many private enforcement cases, the approach of the ECJ should not be understood as entirely excluding the discretion of the national courts in interpretation matters. It remains the sole responsibility of the Member State judges to take into account the individual circumstances of each case.

C. Mayer: Pitfalls of public service and of choice of court agreements in international business transactions

In order to guarantee the applicant effective legal protection, the possibility of public service is indispensable, particularly in cross-border legal relations with non- EU Member States. However, in order to protect the defendant’s right to be heard, public service is permissible only under strict conditions, otherwise service is ineffective. A hasty recourse to this procedural means can therefore have considerable procedural, but also material legal consequences for an applicant entitled to claim, because ineffective service does not start the course of appeal periods nor the limitation period. The decision of the higher regional court of Hamburg discussed below shows that even small mistakes in allegedly simple procedural steps can be fatal to the plaintiff.

M. Brinkmann: Counterclaims under the Brussels I Regulation

In Petronas Lubricants Italy SpA ./. Livio Guida, the ECJ had the opportunity to refine the Court’s understanding of the relationship between claim and counter-claim required by Art. 8 Nr. 3 Brussels Ia Regulation. As in Northartov(C-306/17), a decision which had been published shortly before, the ECJ relied on the wording established in the Kostanjevec-case by asking whether the original claim and the counter-claim share a “common origin”. Such a common origin exists, according to the ECJ, even if the original claim is based on a contractual relationship and the counter-claim is based on a different contractual relationship as long as they arise from the “same facts”. If this requirement is met, the fact that the claim of the counter-claimant has previously been assigned to him by a third party, is irrelevant. The reasoning of the Court gives cause to revisit the basics of the jurisdiction for counter-claims in European Civil Procedure and to reflect on the admissibility of counter-claims against third parties under the Brussel Ia Regulation.

B. Heiderhoff: The „tricky” subjective element of habitual residence

The concept of habitual residence still poses problems for German courts. While the CJEU strongly favours a fact-based approach, national courts show a tendency to give greater weight to so-called subjective elements, i.e. factors such as attachment to the home state or the vague intention to move „back home“. Based on the analysis of several court decisions, including the CJEU’s UD ./. XB judgment, the article aims at clarifying the rather limited role of subjective criteria within the concept of habitual residence.

D. Looschelders: Waiving an inheritance before German courts in cases of international successions

Accepting or waiving an inheritance may pose considerable practical difficulties to heirs with habitual residence in a Member State different from the one in which the succession according to the European Succession Regulation is settled. In order to facilitate the acceptance or waiver of the succession, Article 13 of the European Succession Regulation assigns special jurisdiction to the court at the habitual residence of the person making the declaration. However, the interpretation of this provision raises some unresolved issues. The present decisions of the Higher Regional Courts of D sseldorf and Koblenz are the first statements by higher German courts in relation to this matter. Specifically, they deal with local jurisdiction, the effects of a waiver before a court at the habitual residence of the person making the declaration on the inheritance procedure of the competent court at the last habitual residence of the deceased and the necessity of court approval for waivers of minors. The article presents by means of these judgments that waivers of succession before German courts in cases of international successions lead to significant imponderability. Yet the author opines that the person making the declaration can counteract most of the uncertainties by following a careful approach.

C. Möllnitz: Violation of the national public policy by the registration of a noble name changed by deed poll and its effects on European fundamental rights

The current decision of the German Federal Court restricts the European right of freedom of movement by proscribing the registration of a name in Germany containing a former title of nobility due to a violation of the national public policy, even if the name is lawfully registered in another member state of the European Union. While the arguments on a violation of the national public policy are convincing, the justification of the restriction of the freedom of movement is questionable in the light of the European jurisprudence. The fact that former titles of nobility, as part of a name, are not completely banned in Germany raises doubts as to the necessity of this restriction.

B. Lurger: The Hypothetical Violation of EU Fundamental Freedoms Leads to a New Rule: Non-Possessory (German) Security Ownership Finally Survives the Transport to Austria

In its judgment of 23 January 2019 (3 Ob 249/18s), the Austrian Supreme Court (OGH) changed its line of decisions concerning the validity of nonpossessory security rights in movables which are brought to Austria. Before 2019, the Supreme Court (3 Ob 126/83) held that the (German) non-possessory security ownership („Sicherungseigentum“) of a German creditor in a movable became extinct the moment the movable (transported by the debtor) crossed the border from Germany to Austria. This was due to the Austrian “principle of possession of security objects”: Under Austrian law, pledges and security ownership are only valid when the security object rests in the “fists” of the creditor (= “Faustpfandprinzip” = “principle of fist pledge”). This principle was determined to apply as soon as the security object – in the hands of the debtor – entered Austrian territory. According to the judgment of 23 January 2019 the opposite is now correct: The non-possessory (German) security ownership now survives the transgression of the Austrian frontier. The Austrian “fist principle” does not apply. The validity of the foreign security right is solely based on the foreign (German) rules for security rights which applied due to the lex rei sitae when the security right was created (§ 31 Austrian IPRG) and which continue to apply. The main argument of the court for this about turn is the Austrian accession to the EU in 1995 which led to application of the fundamental freedoms of the TFEU. The (former pre-EU) application of the Austrian fist principle to imported security objects constituted (from 1995 onwards) an unjustified violation of the EU fundamental freedoms in most cases, according to the court. This argumentation is plausible and in line with major literature. The 2019 judgment establishes the recognition of non-possessory security rights in movables in Austria once these rights where validly created under the law of another EU Member State. This leads to less transparency and security on the credit security market in Austria with respect to movables. The question of whether the new PIL rule also applies to relations with Non-Member States can be answered in the affirmative.

M. Makowsky: The limitation of succession proceedings in cases of assets located in a third State pursuant to Art. 12 EU Succession Regulation

In principle, the EU Succession Regulation grants the courts of the member states jurisdiction to rule on the succession as a whole regardless of the location of the estate. If assets are located in a non-EU state, however, Art. 12 of the Regulation allows the court, at the request of the parties, to decide not to rule on these assets if it may be expected that its decision will not be recognised or declared enforceable in that third state. The Austrian Supreme Court has approved the limitation of succession proceedings in a case where part of the estate was located in Switzerland and the Swiss authorities had already issued a certificate of inheritance and appointed an executor. The Court argues that, due to these prior acts, a later decision by the Austrian probate court in respect of the Swiss estate could not be recognised in Switzerland. The article points out that firstly, it has to be determined whether the acts in the Swiss succession proceedings need to be recognised and therefore have a (res judicata) effect on the proceedings held in Austria. If the Swiss authorities’ acts, especially the certificate of inheritance, do not qualify as „decisions“ capable of recognition, they can hardly constitute a ground for non-recognition.

F. Fuchs: Cross-border effects of third-party notices and actions on a warranty with a special regard to the Portuguese Code of Civil Procedure

Under the Brussels Ia Regulation, a person domiciled abroad may be invited to join proceedings before the courts of a Member State pursuant to that Member State’s rules on third-party notice. The third-party notice enables the claimant, if he loses the case, to have a recourse against the third party with that third party being bound by the outcome of the first proceedings. Instead of rules on third-party notice, some Member States allow actions on a warranty. Both concepts aim to protect the interest of that party whose claim would be dismissed twice if the proceedings against two or more adversaries could not be combined. The situation in Portugal is quite interesting, given that its national law provides for both, third-party notices and actions on a warranty. This article offers an insight into the Portuguese Code of Civil Procedure. Moreover, it examines how the effects of a German third-party notice are recognized in other Members States and how a judgment on a warranty rendered in Portugal is recognized in Germany.

Réparation du préjudice

The latest issue of RabelsZ has just been published. It contains the following articles:

Olaf Meyer, Parteiautonomie bei Mehrrechtsstaaten (Party Autonomy in States with More than One Legal System), pp. 721 et seq

Where parties’ choice of law in private international law is limited to states with which they have reasonably close ties, similar restrictions usually apply to their choice of local law in states having more than one legal system. However, applying the same limits to both contexts is not mandatory. On the international level there is already a connecting factor that has designated the applicability of the law of a multi-law state. At the local level it is then a question of fine-tuning within that state’s legal order. To undertake this fine-tuning exercise on the basis of purely objective criteria is, however, more difficult within a single non-unified legal system than it is between two different states. This is because the relevant facts are packed more densely together and people are more mobile within the same state. Hence, the habitual residence of a person or the closest connection to the facts of a case tends to be more difficult to localise than in cases with connections to different states. Here lies an essential difference between international and inter-local conflicts of laws, which would justify a different approach to resolving them.

Zufall, Frederike, Shifting Role of the “Place”: From locus delicti to Online Ubiquity in EU, Japanese and U.S. Conflict of Tort Laws, pp. 760 et seq

This article examines the evolution of conflict rules in their perception of “place”: the basis for determining jurisdiction and the applicable law. To examine this topic from a global perspective, the legal systems of the EU, Japan, and the U.S. are analyzed and contrasted as representative legal systems from around the world (I.). Europe can be seen as the cradle of the concept of locus delicti, upholding it, albeit with reinterpretation, until today. Like other Asian countries, Japan received locus delicti as a legal transplant, implementing and adapting it in its own way. Finally, the U.S. is known for pursuing a different approach and different connecting places as a result of its conflicts revolution. This study, then, aims to combine a comparative approach with conceptual analysis, tracing the evolution of locus delicti as first received from Roman law (II.), through its reinterpretation to address cross-border and multi-state torts (III.), and the adoption of different connecting approaches (IV.), to questions arising from the ubiquity raised by the Internet (V.). To ensure a comprehensive approach, this paper will cover aspects of both the applicable law and jurisdiction, while at the same time having cognizance of their conceptual differences. It will be shown that in seeking “connecting factors”, “contacts”, or “interests”, connection to a place is increasingly lost, blurring territoriality and provoking the question of whether pursuing a fair balance between the parties should, instead, lead our legal reasoning (VI.).

Oliver Mörsdorf, Private enforcement im sekundären Unionsprivatrecht: (k)eine klare Sache? (Private Enforcement under Secondary EU Private Law: (Not) a Clear Matter?), pp. 797 et seq

National private law is increasingly determined by EU legislation which either directly establishes standards of conduct between individuals or obliges Member States to do so. However, such legislation often lacks clarity as to whether private law remedies are granted in cases of non-compliance. In Van Gend & Loos the EJC held that the EEC (now EU) creates individual rights that are directly enforceable before national courts. The Court later developed this principle of direct effect into a far-reaching duty for Member States to ensure the enforcement of individual rights by providing remedies such as a right to invoke the nullity of legal provisions or contract clauses and a right to claim damages from public authorities and private persons. Most legal writers take a functional approach to the question of which EU laws contain individual rights, arguing that the involvement of individuals in enforcement of EU law calls for over-all recognition of individual rights. This private enforcement approach might fit primary law but cannot be transferred to secondary law, where the ECJ’s recognition of individual rights goes along with a reduction of EU lawmakers’ prerogative to decide on the enforcement standard. The question of whether a secondary law provision contains an individual right thus must be answered strictly by interpreting that provision, taking into account not only its wording and context but also the legislative process preceding its adoption. A prerogative to decide autonomously on the creation of individual rights should be rejected, however, regarding EU provisions that give specific expression to individual rights deriving from primary law. Even if one accepts EU lawmakers’ power to define the scope of primary law to some extent, this power cannot include the very character of provisions as individual rights.

Leon Theimer, The End of Consumer Protection in the U.S.? –Mandatory Arbitration and Class Action Waivers, pp. 841 et seq

Historically, in the early twentieth century, mandatory arbitration was almost non-existent due to the judiciary’s widespread refusal to enforce arbitration agreements. This began to change slowly when Congress passed the Federal Arbitration Act (FAA) in order to provide a forum for merchants to settle fact-based contractual disputes. […] The sweeping change towards individual arbitration in consumer disputes is underpinned by the Supreme Court’s jurisprudence, which over the last forty years has overwhelmingly favoured the party seeking to arbitrate.  While it is beyond the scope of this article to analyse the entirety of the Supreme Court’s FAA jurisprudence, Part II will trace arbitration’s ascent from the enactment of the FAA in 1925 to the prominent status it enjoys today, particularly focusing on and critically analysing key decisions rendered in the last four decades. Part III will discern some of the most important implications of the status quo and discuss what is left of consumer protection in the arbitration context in the United States today. Lastly, Part IV will explore some approaches that would enhance consumer protection in arbitration along with their prospects, criticisms and justifications.

Rendez-vous lundi 4 novembre.

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Thank you AKD for flagging the Dutch Hoge Raad (Supreme Court) reference to the CJEU in what at the Court is now known as case C-709/19 Vereniging van Effectenbezitters (VEB) v BP. The Hoge Raad’s decision is here, AKD have the questions in English.

The case essentially seeks clarification of Kolassa, Universal Music and Lober, given the specifics in the VEB case as pointed out in the AKD summary: the case concerns a class action, not that of an individual shareholder; no prospectus was specifically addressed at Dutch investors, who instead feel they received incomplete and misleading information that was made public through press releases, websites and public statements by directors; finally the Dutch Supreme Court questions the CJEU on an e-Date accessibility type jurisdictional basis.

One to look out for.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.7

 

Après deux mois de réflexion, les onze groupes de travail issus du Grenelle des violences conjugales ont rendu mardi leurs copies. Au total, 66 mesures sont dévoilées pour un « changement systémique ». Peu ou prou se concentrent sur la prise en charge des auteurs de ces violences.

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Claude Chossat, 42 ans, comparaît, du 28 octobre au 8 novembre, pour assassinat en bande organisée de Richard Casanova. Claude Chossat a quitté le milieu criminel pour en dénoncer les arcanes aux services de police, et revendique aujourd’hui le statut de repenti. Il accuse son ancien patron, Francis Mariani, d’être l’assassin de Casanova.

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La France a manqué, depuis le 1er janvier 2010, aux obligations qu’impose la directive n° 2008/50/CE du 21 mai 2008 Qualité de l’air ambiant, a jugé le 24 octobre, la Cour de justice de l’Union européenne. La CJUE a fait droit au recours en manquement engagé par la Commission européenne du fait du dépassement régulier, dans douze agglomérations, des valeurs limites d’émission de dioxyde d’azote (NO2) fixées par cette directive.

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Written by Professor Stephen G.A. Pitel, Western University

The decision of the Supreme Court of Canada in R.S. v P.R., 2019 SCC 49 (available here) could be of interest to those who work with codified provisions on staying proceedings. It involves interpreting the language of several such provisions in the Civil Code of Quebec. Art. 3135 is the general provision for a stay of proceedings, but on its wording and as interpreted by the courts it is “exceptional” and so the hurdle for a stay is high. In contrast, Art. 3137 is a specific provision for a stay of proceedings based on lis pendens (proceedings underway elsewhere) and if it applies it does not have the same exceptional nature. This decision concerns Art. 3137 and how it should be interpreted.

P.R. (the husband) filed for divorce in Belgium. R.S. (the wife) filed for divorce three days later in Quebec. The husband sought to stay the Quebec proceedings on the basis of lis pendens. [para. 2] The motions judge refused a stay but the Quebec Court of Appeal reversed and granted a stay. The Supreme Court of Canada (6-1) reversed and restored the original refusal of a stay. The upshot is that the wife is allowed to proceed with divorce proceedings in Quebec.

The dispute was protracted largely because the husband, under Belgian law, purported to revoke all gifts he had given to the wife during their marriage. [paras. 2 and 13] These were worth more than $33 million. This is legal under Belgian law though not free from controversy [para. 59].

Art. 3137 provides “On the application of a party, a Québec authority may stay its ruling on an action brought before it if another action, between the same parties, based on the same facts and having the same subject is pending before a foreign authority, provided that the latter action can result in a decision which may be recognized in Québec, or if such a decision has already been rendered by a foreign authority.”

One of the central issues for the court was whether a Belgian decision could be recognized in Quebec. Because a Belgian court would give effect to the revocation of the gifts in its decision, Justice Abella did not think so. She held that “foreign judgments which annihilate not only countless international instruments regarding the equality of spouses and the protection of a vulnerable one, but also the very philosophical underpinnings of the provisions in the [Civil Code of Quebec] contradict those conceptions and will not be recognized in Quebec.” [para 142] In her view no Belgian decision accepting the revocation of the gifts on these facts could be recognized in Quebec: refusal under Art. 3155(5) – “the outcome of a foreign decision is manifestly inconsistent with public order as understood in international relations” – was inevitable. On this view, Art. 3137 did not apply and so there was no basis for a stay.

In contrast, Justice Gascon, joined by four other judges, held that a Belgian decision could be recognized in Quebec. The threshold is low, requiring only the possibility or plausibility of recognition. [para. 48] The focus is not on the specific provisions of any rule that the foreign court might apply in reaching its decision but on the outcome or decision itself. [para. 56] He held that “the husband was required to show only that there was a possibility that the eventual Belgian decision would not be manifestly inconsistent with public order as understood in international relations.” [para. 57] He listed several possible outcomes by which the Belgian court might render a decision that could be recognized in Quebec, including the prospect that a Belgian court might not give effect to the revocation of the gifts on the basis that the law so allowing is unconstitutional. [paras. 58-63]

On Justice Gascon’s reasoning, Art. 3137 did apply, making a stay available. However, the provision is discretionary, expressly using the word “may”. [para. 67] Justice Gascon considered that the motions judge’s decision to not grant a stay based on this discretion was not unreasonable and so should not have been disturbed by the Court of Appeal. [para. 80]

Unlike the other six judges, Justice Brown thought that a stay should be granted. In his dissent, he expressed concern about the motions judge’s reasoning. He held that the motions judge had, in interpreting the conditions that trigger Art. 3137, made “overriding” errors that justified appellate intervention. [para. 162]  He also held that the motions judge had not truly exercised the discretion under Art. 3137. [para. 169] Accordingly he was prepared to exercise it afresh and held (agreeing with the Quebec Court of Appeal) that the Quebec proceedings should be stayed. The factors favoured proceedings in Belgium, especially the concern that any Quebec judgment would not be recognized in Belgium because the Belgian proceedings had started first. [para. 186]

It appears that one of the key reasons for the split between Justice Gascon and Justice Brown is that the former focused on the substantial assets in Quebec, which would of course be subject to a Quebec divorce decision [para. 91], whereas the latter focused on the substantial assets in Belgium that would be unaffected by a Quebec divorce decision [para. 187]. This goes to the exercise of the discretion to ignore the lis pendens and refuse a stay. One of the relevant factors for this is whether the court’s eventual judgment would be recognized by the forum first seized. It is easy to appreciate that this factor does not matter if that judgment does not need to be recognized there at all to be effective and, in contrast, that it is vital if it must be. [para. 90] The facts position this case somewhere in between the ends of this spectrum.

The split between Justice Gascon and Justice Abella in part is based on their understanding of Belgian law. Justice Abella repeatedly noted that there is no evidence – Belgian law being a matter of fact in a Canadian court – that a Belgian court would do anything other than give effect to the revocation. [paras. 117-21] In contrast, Justice Gascon held there was at least some evidence going the other way [para. 59] and in addition he was prepared to rely on the possibility that certain arguments might be successfully advanced. [paras. 61-62]

Many of the issues in this case arise specifically because of the separate treatment under Quebec law of lis pendens. The analysis at common law could have been quite different, all conducted under the rubric of the doctrine of forum non conveniens. Parallel proceedings would have been one of the factors considered in the analysis. But the common law has been prepared to reject according much if any weight to first-in-time proceedings based only on relatively short differences in timing (in this case, three days). Indeed, Justice Gascon noted the tension caused by strict application of first-in-time rules, either when staying proceedings or deciding whether to recognize a foreign judgment. [para. 89]

One small point might be worth a final comment. In developing the proper interpretation of Art. 3137 the judges stressed that if successfully invoked by the defendant it leads to a stay of proceedings, which is less final and so less prejudicial to the plaintiff than an outright dismissal of the proceeding. A proceeding so stayed could, if justice demanded, be reactivated. This is contrasted with the general provision in Art. 3135. [paras. 72-73 and 179] However, that provision, while not using the word “stay”, uses the phrase “decline jurisdiction”. The judges treated it is as a given that this means the proceedings are dismissed and at an end. But is it not at least arguable that to decline jurisdiction the court must first have jurisdiction, and that the declining amounts to a stay of that jurisdiction and not a dismissal? The court could have explained the basis for its position on this issue somewhat more fulsomely.