Agrégateur de flux

Pourvoi c/ Cour d'appel de Versailles, 7e chambre des appels correctionnels, 13 novembre 2018

Pourvoi c/ Cour d'appel de Paris, pôle 4, chambre 10, 18 septembre 2017

Pourvoi c/ Cour d'appel de Pau, chambre de l'instruction, 22 janvier 2019

Pourvoi c/ Cour d'appel de Lyon, chambre de l'instruction, 29 mars 2018

Extradition - Prescription

Instruction

A little bit of factual background is required to understand [2019] EWHC 173 (Comm) Danilina v Chernukin. It concerns a valuable site in Central Moscow (readers of the blog and students of mine will now no longer wonder why this is being litigated in England) which is, indirectly, the subject of a Shareholder Agreement dated 31 May 2005 (the “SHA”). The issue is whether Vladimir Chernukhin, who is not named as a party to the SHA is in fact party to the SHA as a disclosed principal of Lolita Danilina, who is named as a party to the SHA. Mr. Chernukhin and Mrs. Danilina had been in a relationship; it is Mr. Chernukhin’s case that she was a named party because she was acting as his nominee or agent.

That is the purely business side of the litigation – there is also a family assets angle: Ms Danilina has a claim arising out of what she argues to have been an agreement between her and Mr. Chernukhin in 2007 for the division of their assets after their relationship had come to an end.

The latter issue is the ‘2007 Agreement’ and it is this which is of interest to the blog: Teare J at 324: Mrs. Danilina seeks to prove alleges the following, quite detailed, agreement: a) TGM would remain (as it always was) as an asset belonging to Mrs. Danilina and her alone; b) the assets accumulated between them jointly and which they regarded as family assets would be distributed between them on an effectively equal basis with: i) Mrs. Danilina retaining and/or taking those residential real property assets located within Russia, ii) Mr. Chernukhin having those residential real property assets located outside of Russia and iii) save for certain chattels such as cars and the weapon collection (which were to be owned by Mr. Chernukhin) and jewellery and artwork in Russia (which were to be owned by Mrs. Danilina), the balance of their assets would be split equally and Mrs. Danilina’s 50% share held in a trust for her benefit; c) a new structure would be required to reflect these agreements; and d) Mr. Chernukhin would be responsible for taking the necessary steps to give effect to the agreement.

Teare J starts with the bootstrap /von Munchausen: at 325: it is necessary to begin by considering what would be the governing law of the 2007 agreement, if it was made on the terms alleged by Mrs. Danilina. The reason for this is that it is submitted on behalf of Mr. Chernukhin that the agreement, if made, would be governed by Russian law, and that there are provisions of Russian law that affect the admissibility of witness testimony in proving the existence of an oral agreement. Being a contract entered into prior to 16 December 2009, the proper law of the 2007 Agreement would be determined under the Rome Convention on the law applicable to contractual obligations – not the later Rome Regulation.

Was there choice of law “expressed or demonstrated with reasonable certainty by … the circumstances of the case’ (per Article 3(1) Rome Convention? [I have included Articles 3 and 4 in relevant part below]

At 327 are cited (i) the fact that “Mr. Chernukhin had fled Russia in 2004 in an effort to make a clean break from Russian law and jurisdiction”; (ii) that Mrs. Danilina assisted him in moving to England, including by sending legal documents there; (iii) in 2007 Mr. Chernukhin was seeking English matrimonial law advice in relation to his assets, prior to his marriage to Mrs. Chernukhin. With Teare J I do not think this is sufficient to amount to a choice for the purposes of article 3. They do not amount to a positive choice of law “expressed or demonstrated with reasonable certainty.”

Consequently Article 4 is engaged.

Presumption of characteristic performance. It was submitted on behalf of Mrs. Danilina (at 328) that England is the “most closely connected” country, under the presumption in article 4(2). It is said that the characteristic performance under the agreement was to create the relevant trust structure for dividing, managing and investing the assets. The performer of these obligations was Mr. Chernukhin, who was and is resident in England. Teare J agrees: at 330: the characteristic performance of the agreement was primarily to be performed by Mr. Chernukhin. On Mrs. Danilina’s case, Mr. Chernukhin was entrusted to divide, invest and structure significant liquid and illiquid assets, of which Mrs. Danilina was in large part unaware.

Displacement of the presumption? Mrs. Danilina then submits that this presumption should not lightly be displaced.

This section discusses a core challenge to Article 4, which is the continental European but mostly EU-driven quest for predictability, with the more common law oriented search for the ‘proper’ law of the contract. In Article 4 terms (similarly under the current Article  Rome I): per Samcrete Egypt Engineers v Land Rover Exports Ltd [2001] EWCA Civ 2019, at [41], “unless art.4(2) is regarded as a rule of thumb which requires a preponderance of contrary connecting factors to be established before that presumption can be disregarded, the intention of the Convention is likely to be subverted.” Nonetheless, “the presumption may most easily be rebutted in those cases where the place of performance differs from the place of business of the party whose performance is characteristic of the contract” (See Bank of Baroda v Vysya Bank Ltd. [1994] 2 Lloyd’s Rep 87, 93, in the context of a bank’s place of central administration).

Teare J leans on Samcrete Egypt Engineers and rejects the suggestions made (at 329) to displace the presumption. There were that “the principal subject-matter was assets based in Russia / assets acquired using money generated in Russia and while the parties were resident in Russia.” Further, the Agreement is said to be “akin” to a divorce arrangement pursuant to the Russian Family Code, and of a relationship which occurred primarily or exclusively in Russia. Finally, the Agreement as alleged would have involved performance by both Mrs. Danilina and Mr. Chernukhin, distributing (including, where relevant, by re-registration of shares and real property) their various assets. However (at 330) ‘there are indeed some factors that might otherwise point to Russia being “most closely connected” (and other factors pointing to other jurisdictions, such as the use of Channel Islands trusts and the fact that the agreement was allegedly concluded in Zurich), these factors are not, in my judgment, sufficient to displace the presumption in article.4(2).’

Proper law of the contract is English law (discussion of the Russian oral evidence issue is made obiter at 332 ff). Tear J does signal at 331 that per Article 4(3) at the merits stage, provision may have to be made for Russian law as the lex rei sitae, for some parts of the agreement. Eventually the High Court finds on the basis of English law that there was no 2007 Agreement – although there is an issue of breach of a trust agreement and that may be litigated.

Fun with Rome.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.4, Heading 3.2.6.

Article 3 Freedom of choice

1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract.

2. …

3. The fact that the parties have chosen a foreign law, whether or not accompanied by the choice of a foreign tribunal, shall not, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice the application of rules of the law at the country which cannot be derogated from by contract, hereinafter called ‘mandatory rules`.

4. …

Article 4 Applicable law in the absence of choice

1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a separable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.

2. Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party’s trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated.

3. Notwithstanding the provisions of paragraph 2 of this Article, to the extent that the subject matter of the contract is a right in immovable property or a right to use immovable property it shall be presumed that the contract is most closely connected with the country where the immovable property is situated.

4. …

5. Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.

Written by Georgia Antonopoulou and Xandra Kramer, Erasmus University Rotterdam (PhD candidate and PI ERC consolidator project Building EU Civil Justice)

Only six weeks after its official opening and a week after its inauguration, the Netherlands Commercial Court (NCC) held its first hearing today, 18 February 2019 (see our previous post on the creation of the NCC). The NCC?s maiden case Elavon Financial Services DAC v. IPS Holding B.V. and others was heard in summary proceedings and concerned an application for court permission to sell pledged shares (see here). The application was filed on 11 February and the NCC set the hearing date one week later, thereby demonstrating its commitment to offer a fast and efficient forum for international commercial disputes.

The parties’ contract entailed a choice of forum clause in favour of the court in Amsterdam. However, according to the new Article 30r (1) of the Dutch Code of Civil Procedure and Article 1.3.1. of the NCC Rules an action may be initiated in the NCC if the Amsterdam District Court has jurisdiction to hear the action and the parties have expressly agreed in writing to litigate in English before the NCC. Lacking an agreement in the initial contract, the parties in Elavon Financial Services DAC v. IPS Holding B.V. subsequently agreed by separate agreement to bring their case before the newly established chamber and thus to litigate in English, bearing the NCC?s much higher, when compared to the regular Dutch courts, fees. Unlike other international commercial courts which during their first years of functioning were ‘fed’ with cases transferred from other domestic courts or chambers, the fact that the parties in the present case directly chose the NCC is a positive sign for the court?s future case flow.

As we have reported on this blog before, the NCC is a specialized chamber of the Amsterdam District Court, established on 1 January 2019. It has jurisdiction in international civil and commercial disputes, on the basis of a choice of court agreement. The entire proceedings are in English, including the pronouncement of the judgment. Judges have been selected from the Netherlands on the basis of their extensive experience with international commercial cases and English language skills. The Netherlands Commercial Court of Appeal (NCCA) complements the NCC on appeal. Information on the NCC, a presentation of the court and the Rules of Procedure are available on the website of the Dutch judiciary. It advertises the court well, referring to “the reputation of the Dutch judiciary, which is ranked among the most efficient, reliable and transparent worldwide. And the Netherlands – and Amsterdam in particular – are a prime location for business, and a gateway to Europe.” Since a number of years, the Dutch civil justice system has been ranked no. 1 in the WJP Rule of Law Index.

In part triggered by the uncertainties of Brexit and the impact this may have on the enforcement of English judgments in Europe in particular, more and more EU Member States have established or are about to establish international commercial courts with a view to accommodating and attracting high-value commercial disputes (see also our previous posts here and here). Notable similar initiatives in Europe are the ‘Frankfurt Justice Initiative’ (for previous posts see here and here) and the Brussels International Business Court (see here). While international commercial courts are mushrooming in Europe, a proposal for a European Commercial Court has also come to the fore so as to effectively compete with similar courts outside Europe (see here and here).

Révision et réexamen des décisions pénales

Révision et réexamen des décisions pénales

Révision et réexamen des décisions pénales

Written by Sophie Hunter, University of London (SOAS)

In light of the turmoil in the UK Parliament since the start of 2019, the only certain thing about Brexit is that everything is uncertain. The Law Society of England and Wales has warned that “if the UK’s relationship with the rest of the EU were to change as the result of significant renegotiations, or the UK choosing to give up its membership, the effects would be felt throughout the legal profession.”  As a result of Brexit, British firms and professionals will no longer be subject to European directives anymore. This foreshadows a great deal of complexity. Since British legal entities occupy a central place within the European legal market, stakes are high for both British and European lawyers. A quick overview of the challenges faced by English LLPs in France and the Paris Bar demonstrates a high level of complexity that, is not and, should be considered more carefully by politicians.

Currently, 1872 foreign lawyers from 92 different citizenships are registered at the Paris Bar, according to a report by Dominic Jensen, 181 are British citizens, out of which 72 are registered under their original professional titles pursuant to the European Directive 98/5/CE (70 solicitors and 2 barristers). From 61 foreign legal entities established in France, the majority are English limited liability partnerships (LLP) which employ 1,600 lawyers. Some American law firms rely on the LLP structure as a strategy to establish themselves within the European legal market. According to the European Directive 98/5/CE, foreign legal entities of one Member State can be registered at the Bar of another Member State. The consequences of Brexit will be radical. Because the UK will no longer be part of the EU, foreign legal entities subject to English Law and established in EU Member States will no longer be recognized by the Bar of the host state, and thus will no longer be entitled to do business within its jurisdictions. For the Paris Bar, stakes are high since no other European capital has experienced such an important implementation of British and American law firms.

With the deadline of Brexit looming closer, no one has raised the topic of foreign lawyers and the exercise of their right to practice in European jurisdictions, in spite of numerous calls from The Law Society of England and Wales. While the UK is advocating for mutual recognition of professional qualifications, the French Bar led by Florent Loyseu de Grandmaison has drafted a report outlining various ways to solve this problem. According to a new ordinance published in April 2018, a foreign legal consultant can register with the Paris Bar to practice international law and any other type of law he or she is registered for, with the exception of European law and the law of Member States. The main concern of LLPs will focus primarily on how to continue to practice in France with little disruptions. LLPs owned by English solicitors will need to establish French legal entities owned and managed according to French and European Law. Most likely, English LLPs established in France will benefit from a new legal structure called AARPI, which stands for French limited partnership and mirrors the structure of LLPs. However it is not fully implemented within French legislation yet.

In a tensed climate between the UK and the EU, the fate of foreign legal consultants and entities seem more than ever uncertain. The example of France demonstrates, first, a high degree of complexity in the legislation that prevents LLPs to easily transpose their structure into the jurisdiction post Brexit, and a lack of preparation from both LLPs and the host state to face the practical consequences of Brexit. The UK and EU Member States will need to show a great deal of flexibility to quickly adapt legislation to incorporate English LLPs within their jurisdictions. Therefore, the fear of The Law Society of England and Wales which has repeatedly warned the UK government of the consequences of a “no deal” seem justified. Regardless of whether Brexit is implemented or postponed on March 29, finding an appropriate answer to the dilemma faced by foreign legal professionals and LLPs across the continent should be a priority on the agenda.