Agrégateur de flux

Germanwings
Transport
Un transporteur aérien est tenu d’indemniser les passagers pour un retard de trois heures ou plus dans le cas de l’endommagement d’un pneumatique d’un aéronef par une vis se trouvant sur la piste de décollage ou d’atterrissage uniquement s’il n’a pas mis en œuvre tous les moyens dont il dispose pour limiter le retard du vol

Written by John Coyle, the Reef C. Ivey II Term Professor of Law, Associate Professor of Law at the University of North Carolina School of Law

Last week, I wrote about the interpretive rules that U.S. courts use to construe ambiguous choice-of-law clauses.  Choice-of-law clauses are not, however, the only means by which contracting parties may exercise their autonomy under the rules of private international law.  Parties may also select via contract the forum in which their disputes will be resolved.  In the United States, these contractual provisions are generally known as forum selection clauses.  Elsewhere in the world, such provisions are generally known as choice-of-court clauses.  Since this post is largely focused on U.S. practice, I utilize the former term.

The question of whether and to what extent forum selection clauses should be enforceable is contested.  It is also well beyond the scope of this post.  Instead, I want to call attention to a related issue that has attracted considerably less scholarly attention.  This is the issue of how to interpret the contractual language by which private actors exercise their autonomy to choose a forum.  I explore this issue at some length in a forthcoming article.  Over the past several decades, the courts in the United States have developed several interpretive rules of thumb—canons of construction, to use a fancy term—that assign meaning to ambiguous words and phrases that frequently appear in forum selection clauses.  I discuss several of these interpretive rules below.

The first and most important of these interpretive rules help a court determine whether a forum selection clause is exclusive or non-exclusive.  An exclusive forum selection clause requires that any litigation proceed in the named forum to the exclusion of all others.  In a non-exclusive forum selection clause, by contrast, the parties merely consent to personal jurisdiction in the chosen forum or agree not to object to venue if the other party files suit in the chosen forum.  Over the past few decades, U.S. courts have heard thousands of cases in which they were called upon to distinguish exclusive clauses (sometimes described as mandatory clauses) from non-exclusive clauses (sometimes described as permissive clauses).  To assist them in this task, they have developed a set of rules that I describe as the canons relating to exclusivity.

At the outset, it is important to emphasize that, under prevailing U.S. legal doctrine, forum selection clauses are presumptively non-exclusive.  This rule is different from the one stated in Article 3(b) of the Hague Convention on Choice-of-Court Agreements, which provides that forum selection clauses are presumptively exclusive.  In the United States, therefore, the presumption of non-exclusivity must be rebutted by so-called “language of exclusivity,” i.e. language that signals the intent of the parties to litigate in the chosen forum and no other.  If a clause states that litigation “must” proceed in the chosen forum or that the chosen forum shall have “exclusive jurisdiction” to hear the case, then the clause is exclusive.  If a clause merely states that the parties “consent to jurisdiction” in the chosen forum or that they “agree not to object to venue” in the chosen forum, by comparison, the clause is non-exclusive.

Foreign actors should be aware that U.S. courts will frequently apply the canons relating to exclusivity to construe forum selection clauses selecting a foreign jurisdiction even when the contract contains a choice-of-law clause selecting foreign law.  In one recent case, a Florida court was called upon to determine whether the following forum selection clause was exclusive or non-exclusive:

This Agreement shall be governed by and construed in accordance with the Laws of Malta and each party hereby submits to the jurisdiction of the Courts of Malta as regards any claim, dispute or matter arising out of or in connection with this Agreement, its implementation and effect.

Notwithstanding the fact that the clause expressly stated that it was to be governed by the Laws of Malta, the Florida court looked exclusively to U.S. precedent to conclude that the clause was, in fact, non-exclusive, and that the suit could proceed in Florida state court.  When dealing with U.S. counterparties, therefore, foreign companies are well advised to draft their forum selection clauses with an eye to U.S. interpretive rules even when the contract contains a choice-of-law clause selecting the law of their home jurisdiction.

The second set of interpretive rules are the canons relating to scope.  These canons are used to determine whether a forum selection clause applies exclusively to contract claims or whether it also applies to related tort and statutory claims.  To date, U.S. courts have developed at least five different interpretive rules that purport to resolve this question and no one test has attracted majority support.  The courts have, however, consistently held that forum selection clauses which state that the chosen forum shall hear all claims “relating to” the contract are broad enough to encompass tort and statutory claims with some connection to the agreement.  To the extent that contracting parties want their forum selection clause to sweep broadly, therefore, they are well advised to include “relating to” language in their agreements.  For readers interested in exactly how many angels can dance on the head of this particular pin, a detailed analysis of the various canons relating to scope is available here.

The third set of interpretive rules are the canons relating to non-signatories.  These canons help the courts determine when a forum selection clause binds parties who did not actually sign the contract.  Ordinarily, of course, individuals who have not signed an agreement cannot be bound by it unless they are third-party beneficiaries.  In the context of forum selection clauses, however, U.S. courts have crafted a more lenient rule.  Specifically, these courts have held that a non-signatory may be covered by a forum selection clause if that non-signatory is “closely related” to a signatory and it is “foreseeable” that the non-signatory would be bound.  In practice, this means that parent companies, subsidiary companies, corporate directors, and agents, among others, are frequently permitted to invoke forum selection clauses set forth in contracts they did not sign to obtain the dismissal of cases filed outside the forum named in those clauses.  Although this rule is difficult to justify under existing third-party beneficiary doctrine, U.S. courts have reasoned that it is necessary to avoid fragmented litigation proceedings and, at the end of the day, generally consistent with party expectations.

The fourth and final set of interpretive rules are the canons relating to federal court.  In the United States, one may file a lawsuit in either state court or federal court.  A recurring question in the interpretation of forum selection clauses is whether the parties wanted to litigate their disputes in state court to the exclusion of federal court or whether they wanted to litigate their disputes in either state or federal court.  In order to distinguish one type of clause from the other, U.S. courts have drawn a sharp distinction between the word “of” and the word “in.”  When the parties select the “courts of New York,” they are deemed to have selected the state courts of New York to the exclusion of the federal courts because only state courts are “of” New York.  When the parties select the “courts in New York,” by comparison, they are deemed to have selected either the state courts or the federal courts in New York because both sets of courts are physically located “in” New York.

Sophisticated parties may, of course, contract around each of the interpretive default rules discussed above by stating clearly that they want their clause to (a) be exclusive or non-exclusive, (b) apply or not apply to specific types of claims, (c) apply or not apply to non-signatories, or (d) select state courts, federal courts, or both.  To date, however, many U.S. parties have failed to update their forum selection clauses to account for these rules.  Chris Drahozal and I recently reviewed the forum selection clauses in 157 international supply agreements filed with the SEC between 2011 and 2015.  We discovered that (i) approximately 30% of these clauses were ambiguous as to their intended scope, and (ii) none of these clauses specifically addressed the status of non-signatories.  These findings—along with the results of a lawyer survey that I conducted in the summer of 2017—suggest that the feedback loop between judicial decisions interpreting contract language and the lawyers tasked with drafting contract language does not always function effectively.

Going forward, it would be fascinating to know whether any non-U.S. courts have developed their own interpretive rules that assign meaning to ambiguous words and phrases contained in forum selection clauses.  If anyone is aware of any academic papers that have explored this issue from a non-U.S. perspective, I would be very grateful if you could bring it to my attention.

 

Statut collectif du travail

Prescription

Responsabilité délictuelle ou quasi-délictuelle - Dommage

Testament

This year’s edition of the Brussels Global Week, an annual forum open to academics, researchers, students, NGOs, legal practitioners, regulators and decision-makers to discuss issues of law and globalization, will take place from 20 to 23 May 2019 at the Solbosch Campus of the Université Libre de Bruxelles.

Speakers include Karim Benyekhlef (Montréal), Jean-Sylvestre Bergé (Nice Sophia Antipolis), Walter Mattli (Oxford), and Wolfgang Schulz (Hamburg).

The Chaïm Perelman Lecture will be delivered by Gunther Teubner (Goethe Univ.).

The full programme can be found here. For further information, see here.

Outline and Call for Papers

 

 

On 25 September 2015 the UN General Assembly unanimously adopted the Resolution Transforming our world: the 2030 Agenda for Sustainable Development. The core of the Resolution consists of 17 Sustainable Development Goals (SDGs) with 169 associated targets, and many more indicators. The SDGs build on the earlier UN Millennium Development Goals, “continuing development priorities such as poverty eradication, health, education and food security and nutrition”. Yet, going “far beyond” the MDGs, they “[set] out a wide range of economic, social and environmental objectives”. The SDGs add new targets, such as migration (8.8; 10.7), the rule of law and access to justice (16.3), legal identity and birth registration (16.9), and multiple “green” goals. And, more than the MDGs, they emphasize sustainability.

The SDGs have attracted significant attention. Although not undisputed – for example, regarding their assumption that economic growth may be decoupled from environmental degradation, and their lack of attention to the concerns of indigenous people – the SDGs have become a focal point for comprehensive thinking about the future of the world. This is so at least in the area of public law and public international law. With regard to private law, by contrast, there has been less attention, although the SDGs are directed not only to governments and parliaments, the UN and other international institutions, but also to “local authorities, indigenous peoples, civil society, business and the private sector, the scientific and academic community – and all people”.

Certainly, public action and public law will not be enough if the goals are to be achieved. Even a spurious stroll through the SDGs demonstrates interplay with private international law (PIL). The SDGs name goals regarding personal status and family relations: “By 2030, provide legal identity for all, including birth registration” (16.9), or “Eliminate… forced marriage…”(5.3), both well-known themes of PIL. The SDGs focus on trade and thereby invoke contract law in multiple ways. On the one hand, they encourage freedom of contract when they call to “correct and prevent trade restrictions and distortions in world agricultural markets”… (2.b) or “promote the development, transfer, dissemination and diffusion of environmentally sound technologies to developing countries on favourable terms… as mutually agreed” (17.7). On the other hand, they insist on restrictions, for example, the “immediate and effective” eradication of forced labour, “modern slavery” and child trafficking ((8.7, 16.2); “by 2030 significantly reduce illicit financial and arms flows”…(16.4); “substantially reduce corruption and bribery in all their forms” (16.5). There is clearly also a role for tort law, including its application to cross-border situations, for example in order to fulfill goals regarding environmental protection and climate change.

Other targets concern not substantive private law, but civil procedure. Thus, the call to “ensure equal access to justice for all” (16.3) has traditionally been confined to equal treatment within one legal system. But as a global goal it invokes global equality: for instance, the ability for European victims of the Volkswagen Diesel scandal to access courts like US victims, the access to court of Latin American victims of oil pollution on a similar level to those in Alaska, and so forth. All of this has multiple implications in the sphere of cross-border civil procedure: the admissibility of global class actions and public interest actions, judicial jurisdiction and recognition and enforcement of judgments concerning corporate social and environmental responsibility, and so on.

Finally, the SDGs have an institutional component. SDG 16 calls, among others, for “strong institutions,” and it encourages cooperation. What comes into focus here, from a private international law perspective, are institutions like the Hague Conference and treaties like the Hague Conventions, but also other possible instruments of cooperation and institutionalization in the private international law realm.

All this suggests that there are plenty of reasons to examine the relationship between the SDGs and PIL. And since the 2030 Agenda explicitly calls on the private sector and the academic world to cooperate for its implementation, and time is running fast, such an examination is also timely, indeed urgent. With this in mind, Ralf Michaels, Verónica Ruiz Abou-Nigm and Hans van Loon are organizing a conference at the Max Planck Institute in Hamburg on 10-12 September 2020. Speakers will systematically analyze the actual and potential role of Private International Law for each of the seventeen SDGs. The overall purpose is twofold:

(1) to raise awareness of the relations between the SDGs and private international law as it already exists around the world. Private international law is sometimes thought to deal with small, marginal issues. It will be important, for those inside and outside the discipline alike, to generate further awareness of how closely its tools and instruments, its methods and institutions, and its methodologies and techniques, are linked to the greatest challenges of our time.

(2) to explore the potential need and possibilities for private international law to respond to these challenges and to come up with concrete suggestions for adjustments, new orientations and regional or global projects. This exploration can aim to identify the need for further and/or new research agendas in specific fields; the development of new mechanisms and approaches, the usefulness of new international cooperation instruments, be it new Conventions at the Hague Conference or elsewhere, or be it new institutions.

Call for Papers

Submission deadline: May 10, 2019.

We are inviting contributions to this project. Interested applicants should submit the application by May 10, 2019. We ask you to identify which of the 17 development goals you want to address, which (if any) work you have already done in that area, and, in a few paragraphs (up to a maximum of 500 words), what you intend to focus on. We plan to select participants and invite them by the end of May 2019. Selected participants would be expected to come to Hamburg to present research findings in the conference, and to provide a full draft paper by the end of June 2020 (in advance of the conference), for discussion and subsequent publication as part of an edited collection to be published after the conference. We expect to be able to fund all travel and accommodation costs. If you are interested, please send your brief application to Britta Arp (arp@mpipriv.de) in Hamburg. Please title your email “SDG2030 and PIL,” and your document “SDG2030 and PIL_lastname”. We look forward to hearing from you.

Ralf Michaels, Director, Max Planck Institute for Comparative and International Private Law, Hamburg;

Verónica Ruiz Abou-Nigm, Senior Lecturer in International Private Law, University of Edinburgh;

Hans van Loon, former Secretary General of the Hague Conference.