Agrégateur de flux

In [2019] EWHC 1793 (Ch) Paul Holgate v Addleshaw Goddard (Scotland) the claim is for damages for breach of contract, negligence and/or breach of fiduciary duty in connection with and arising out of the defendant’s acceptance and performance (and/or non-performance) of instructions to act as solicitor for and to advise Arthur Holgate & Son Limited (then in administration, now in liquidation) in relation to a dispute between the Company and Barclays Bank.

The application concerns the allocation of jurisdiction within the UK. The rival forums are England and Scotland. The claim is not time-barred in England, but may, at least in part, be time-barred in Scotland, where the relevant period of ‘prescription’ (the Scottish equivalent of ‘limitation’) is 5 years.

The Civil Jurisdiction and Judgments Act 1982 allocates jurisdiction within the devolved regions of the UK and, for civil and commercial matters, has opted to apply the (now) Brussels I Recast Regulation mutatis mutandis. At issue is first of all the insolvency exception of Brussels Ia (extended here as noted to the UK Act) interpreted per CJEU C-133/78 Gourdain: at 4:””[I]t is necessary, if decisions relating to bankruptcy and winding-up are to be excluded from the scope of the [Brussels] Convention, that they must derive directly from the bankruptcy or winding-up, and be closely connected with the proceedings for the liquidation des biens or the règlement judiciaire .” (Reference to the French procedure given the French origins of the case). This provision of course in the meantime has a mirror image in the Insolvency Regulation known as the vis attractiva concursus: the forum concursus can hear not just the very insolvency action but also those closely connected to it. CJEU C-111/08 SCT Industri v Alpenblume also features heavily in the discussion.

(Note Clark M makes the oft-repeated mistake of suggesting Brussels Ia and Insolvency Regulation dovetail. I have emphasised on various occasions that they do not).

Following discussion, at 50 Clark M holds that the claim does not relate to the internal management, of the administration or the conduct of the Joint Administrators (JAs) of the insolvency: the defendant’s purely advisory role meant it was not responsible for either of these. This is insufficient for the claim to be “closely linked” to the administration.

Next is the application of the anchor proceedings: these, too, follow EU language and precedent entirely and at 79ff Clark M discusses the interesting question whether a claim providing the anchor, issued after the claim which anchors unto it, is capable of conferring jurisdiction. He held that it does, provided the other requirements of the anchor provisions are satisfied: in particular the desirability of avoiding irreconcilable judgments. The sequence of claims did lead to some procedural oddity which could however be rectified and there was no suggestion of abuse. 

At 89 ff follows discussion of the forum contractus: ‘place of performance of the obligation in question’. At 129 Master Clark concedes that the relevant statutory instrument deliberately did not instruct this part of the UK’s residual rules to be interpreted in line with EU rules, however given the exact same wording, there is no reason for not doing so. At 132 follows then the oddity of the consequences of CJEU De Bloos (and now the language of the Regulation) with respect to ‘the obligation in question’: the determination of the principal obligation is carried out by analysing the particulars of claim. He finds at 136 that the Company’s complaints flow essentially from the primary complaint that the defendant was in breach of its fiduciary duty by continuing to advise and act for the Company (and not advising it that it could not properly do so), thereby putting the Bank’s interests (and its interests) before those of the Company. At 139: the place of performance of that obligation, is held to be in England.

Finally, forum non conveniens is briefly discussed and the right forum held to be England.

Quite a jurisdictional goodie bag.

Geert.

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

… le temps d’un été. Reprise des éditions de Dalloz actualité le 2 septembre 2019.

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L’association « Lawyers for Women » vient d’être créée. La structure veut agréger autour d’elle tous les professionnels du droit qui interviennent dans la réponse judiciaire aux violences faites aux femmes. Rencontre.

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En application de l’article 24 du règlement Bruxelles I bis, « l’action d’un créancier en contestation de l’état de distribution du produit d’une adjudication judiciaire d’un immeuble, tendant, d’une part, à la constatation de l’extinction par compensation d’une créance concurrente et, d’autre part, à l’inopposabilité de la sûreté réelle garantissant l’exécution de cette dernière créance, ne relève pas de la compétence exclusive des juridictions de l’État membre où l’immeuble est situé ou des juridictions du lieu d’exécution forcée ».

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The latest issue of the Revista Electrónica de Estudios Internacionales (REEI), the on-line open-access journal of the Association of Spanish Professors of international law and international relations, is out (issue 37, 2019).

Some of the articles in this issue address topics in the area of private international law.

All articles are in Spanish but come with an abstract in English.

L’obtention d’un avis favorable à une demande d’extradition requiert le respect du principe de la double incrimination en droit positif. 

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La chambre criminelle affine les limites du contrôle que doit exercer la chambre de l’instruction lorsqu’elle est saisie de l’appel d’une saisie pénale spéciale, et précise les éléments sur lesquels elle peut se fonder pour l’exercer.

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Irrecevabilité - Non lieu à renvoi

Non lieu à renvoi

The latest issue of RabelsZ has just been released. It contains the following articles (English abstracts are available only for articles in German):

Lord Thomas of Cwmgiedd, The Common Law in Private Dispute Resolution’s Shadow, pp. 487 et seq

Fleischer, Holger and Horn, Konstantin, Berühmte Gesellschaftsverträge unter dem Brennglas: Das Standard Oil Trust Agreement von 1882 (A Closer Look at Prominent Corporate Charters: The Standard Oil Trust Agreement of 1882), pp. 507 et seq

The charter shapes the life of the corporation. This crucial role notwithstanding, corporate contracts have received but scarce scholarly attention. Apart from a few exceptions, little is known about the charters of notable business entities. A new research program at the Max Planck Institute in Hamburg has set out to fill that void. The first test case, which is explored in this paper, is the Standard Oil Trust Agreement of 1882 – a seminal governance framework for corporate groups that spread quickly through different industries and became eponymous for the anti-trust legislation of the United States. The remarkable success of this agreement illustrates how innovative legal design can be just as vital to the survival and success of a company as managerial or technical innovation.

Hille, Christian Peter, Die Legitimation des Markenschutzes aus ökonomischer und juristischer Sicht- Ein Beitrag insbesondere zur Search Cost Theory des US-Markenrechts (Justifying Trademark Protection – An Economic and Legal Approach with Special Reference to the Search Cost Theory of US Trademark Law), pp. 544 et seq

Whereas trademark protection in the 19th century was justified by the theory of natural law, such concepts are generally considered to be outdated in secular law, even if the underlying values are still embedded in positive law. The law and economics approach, however, is focused solely on allocative efficiency as defined by Pareto optimality and the Coase theorem. US theory justifies trademark protection with the dual rationales of reducing consumer search costs and creating an incentive to improve the quality of products. While some authors criticize this view, they mostly do not propose a different approach, instead arguing that the search cost theory neglects certain social costs. Still, whereas the qualification of a trademark as a public good leads to completely different conclusions, it has been without significant influence on legal theory. Based on the search cost theory, the efficiency of German trademark law may be enhanced, e.g. by requiring a bona fide intention to use the trademark and by obliging the trademark owner to produce evidence of use. Requiring quality control in cases where a license is granted would also improve efficiency, and a mark should be invalidated if the sign becomes generic without this development being attributable to the owner. However, in order to evaluate the search costs as well as other social costs related to the trademark system, further research needs to be conducted with respect to the modes of action of trademarks (in particular in the context of famous trademarks and new technologies). The economic analysis of trademark law and the associated findings may be considered by judges in their interpretation of the law as long as their rulings do not serve to amend the statutory provisions establishing German trademark law (or the applicable European directives). Amendments of this nature would need to be carried out by lawmakers (see Art. 20 para. 3 of the German Constitution).

Makowsky, Mark, Die „Minderjährigenehe“ im deutschen IPR- Ein Beitrag zur Dogmatik des neuen Art. 13 Abs. 3 EGBGB (The “Marriage of Minors” in German Private International Law – The Legal Structure of the New Article 13 para. 3 EGBGB), pp. 577 et seq

The migration crisis has sparked a debate on how to deal with minor migrants who married in their home country or during their flight to Europe. In response to this problem, in 2017 the German legislature passed the Act Combatting Child Marriage. The paper analyses the new and highly controversial conflict-of-laws rules. Pursuant to the public policy clause of Art. 13 para. 3 EGBGB, a marriage is invalid under German law if a fiancé was under the age of 16 at the time of the marriage. If a fiancé had already turned 16 by the time of the marriage but was not yet 18, the marriage has to be annulled pursuant to German law. This strict approach allows for only few exceptions. The invalidity rule has a limited temporal scope and is not applicable when the minor fiancé had already turned 18 by the time of the law’s entry into force. Another exception to the invalidity rule exists if the marriage was “led” by the spouses up until the minor spouse’s reaching the age of majority and if no spouse had his or her habitual residence in Germany during the time between the marriage and the minor spouse’s attaining the age of majority. Due to the limited scope of these exception clauses, most child marriages are rendered void in Germany. This leads to the question whether the invalid marriage can nonetheless have some legal consequences, especially when the spouses relied on its validity. The exception clauses of the annulment rule are similarly very limited. An annulment is ruled out only if the minor spouse has turned 18 and wants to uphold the marriage or if the annulment would constitute an undue hardship for him or her. It is disputed whether this is in conformity with European law because the annulment rule also applies to marriages which were contracted and registered in another EU Member State. The paper argues that the law can be interpreted in accordance with Art. 21 TFEU.

Biemans, Jan, and Schreurs, Sits, Insolvent Cross-Border Estates of Deceased Persons – Concurrence of the Succession and Recast Insolvency Regulations, pp. 612 et seq

Infantino, Marta, and Zervogianni, Eleni, Unravelling Causation in European Tort Laws- Three Commonplaces through the Lens of Comparative Law, pp. 647 et seq