Agrégateur de flux

I reviewed Bot AG’s Opinion in C-386/17 Liberato here. The Court confirmed last week. Whether lis alibi pendens applies, entails applying jurisdictional rules (in essence an assessment as to whether parties are the same etc.). Except in the very rare cases of (now) Article 45 1(e) Brussels I Recast, infringement of jurisdictional rules does not feature among the reasons for refusal of recognition. Alleged infringement of the lis alibi pendens rule does not therefore qualify as ordre public.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.3, 2.2.16.1.4.

As announced by the Department of International Law of the Organization of American States (OAS), registration is now open for the XLVI Course of International Law to be held in Rio de Janeiro, Brazil, from 22 July to 9 August 2019. Further information is available here in Spanish and English.

The preliminary draft agenda is available here.

A revised Draft Explanatory Report (version of December 2018) on the HCCH Draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is available in both English and French on the Hague Conference website.

In my opinion, particularly complex topics in this Draft Explanatory Report include intellectual property (IP) rights (in particular, Art. 5(3) of the draft Convention– there are several provisions dealing with IP rights in addition to this Article) and the relationship of the draft Convention with other international instruments (Art. 24 of the Draft Convention). Some of the text is in square brackets, which means that such text has tentatively been inserted due perhaps to a lack of consensus at the Special Commission meetings, and thus a final decision will be taken at the Diplomatic Session scheduled for the summer 2019.

With regard to intellectual property rights, the draft Convention distinguishes between IP rights that require to be granted or registered (such as patents, registered trademarks, registered industrial designs and granted plant breeders’ rights) and those that do not require grant or registration (i.e.  copyrights and related rights, unregistered trademarks, and unregistered industrial designs – this is a closed list for these specific rights). See paragraph 238 of the Draft Explanatory Report.

The draft Convention’s approach to IP rights, which is based on the territoriality principle, is set out very clearly in paragraph 235 of the Draft Explanatory Report. In particular, the draft Convention reflects a compromise according to which the State of Origin of the judgment will coincide with the lex loci protectionis i.e., the law of the State for which protection is sought, so as to avoid the application of foreign law to these rights (see also paragraph 236).

With respect to the relationship of the draft Convention with other international instruments, it is important to note that this draft Convention will cover, among many other things, non-exclusive choice of court agreements so as to give preference to the application of the HCCH Hague Convention of 30 June 2005 on Choice of Court Agreements to exclusive choice of court agreements. See paragraphs 220-225 and 410-430 of the Draft Explanatory Report.

The latest information about the Judgments Project is available here.

On March 22-23, 2019, the Center for International Legal Education (CILE) at the University of Pittsburgh School of Law will host an international conference on the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The conference is entitled “The CISG at Middle Age.” It will be held in the Teplitz Memorial Courtroom of the Barco Law Building.

On Friday morning, panelists will discuss topics dealing with “The Past of the CISG: Its Successes and Failures.” This session will honor the memory of Peter Schechtriem and his suggestion that the CISG could provide “an International Linqua Franca.” The Friday afternoon panels will consider “The Present of the CISG: Is Uniform Interpretation Possible?,” honoring the memory of John Honnold and his exhortation towards “Resisting the Homeward Trend.” A dinner on Friday evening will feature a keynote address by Pitt Emeritus Professor Harry Flechtner on “The Past, Present and Future of the CISG (and Other Uniform Commercial Law Initiatives).” Saturday morning’s panels will focus on “The Future of the CISG: Have we come to Praise it or Bury it?”

The conference presents the opportunity to consider whether the widespread state ratification of the CISG indicates success in international law development, or whether the common practice of opting out of the CISG in private contracts demonstrates that its impact has been limited at best.

Conference speakers include: Ronald Brand (University of Pittsburgh), Petra Butler (Victoria University Wellington), Susanna Cook (Cohen & Grigsby), John Coyle (University of North Carolina), Milena Djordjevic (University of Belgrade), Johan Erauw (University of Ghent), Harry Flechtner (University of Pittsburgh), Henry Gabriel (Elon University), Jack Graves (Touro University), Joseph Gulino (Diaz, Reus & Targ), Stefan Kröll (Bucerius University), Ulrich Magnus (University of Hamburg), Francesco Mazotta (International Contract Manual), Chiara Giavannucci (University of Bologna), Vjosa Osmani (University of Pristina), Alejandro Osuna, (Tijuana, Mexico), Francesca Ragno (University of Verona), Ingeborg Schwenzer (University of Basel), Nina Tepic (University of Zagreb), Marco Torsello (University of Verona), Mark Walter (DAI Inc)

A link to more information on the conference, including additional links to the program and registration can be found here.

Pourvoi c/ Cour d'assises de Paris, 1re section, statuant en appel, 6 juillet 2018

Tribunal correctionnel de Bordeaux, 29 novembre 2018

Tribunal de grande instance de Lille, 15 janvier 2019

Pourvoi c/ Cour d'appel de Paris, pôle 7, 2e chambre de l'instruction, 27 septembre 2018

In RG 16/05579 DES v Clarins (I have a copy on file for those finding it difficult to get access) the Paris Court of Appeal on 19 September 2018 effectively applied the CJEU’s Granarolo judgment on jurisdiction, to issues of applicable law. Yet it leaves many questions unanswered and does not carry out a neat and tidy analysis at all.

The case was signalled to me by Christophe Héry, who has complete analysis here in French as well as here in English.

Companies belonging to the Clarins group (of France and Luxemburg) were sued for breach of their business relationship with a French company that distributed Clarins cosmetics in Algeria through local companies there, and for the alleged sudden halt in negotiations to try and resuscitate their contractual relationship.

The Court of appeal first of all (p.16-17 of the PDF version of the judgment) summarily rejects objections to the anchoring of non-France based defendants onto Clarins, with domicile in département 92 – Hauts de Seine: claimants request damages from all defendants, on the basis of the same facts and the same legal basis. So as to avoid conflicting judgments the Court sees no reason at all not to join the cases.

In terms of applicable law, the Court refers to Granarolo to qualify the relationship as contractual (reference is made to a tacit contract), yet then skips the application of the cascade rules of the Rome Convention (which applied ratione temporis rather than Rome I) to simply jump straight to the qualification as the relevant French rules as lois de police. As Christophe points out, there are plentry of the Convention’s default categories which could have applied to the case. Skipping the cascade to go straight to the exception is not the right way to go about conflict of laws.

The Court similarly cuts plenty a corner by summarily qualifying the sudden stop to negotiations to resuscitate a previous contractual relationship as non-contractual and applying French law as lex loci damni per Rome II (p.18), particularly as Rome II has a specific rule for culpa in contrahendo.

I am assuming an appeal with the Supreme Court is underway.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9; Chapter 3, Heading 3.2.8, Heading 3.2.8.3).

Le tribunal administratif de Lyon interdit la commercialisation d’un désherbant contenant du glyphosate.

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Indemnisation des victimes d'infraction

Vente immobilière

Société civile immobilière

Agatha Brandão de Oliveira, Senior Research Assistant at the University of Lucerne, brought to my attention a forthcoming publication bearing the above title. The official book launch will take place on February 7 in Paris

The book was edited by: Horatia Muir Watt, Professor of Law, SciencesPo Law School, Paris, France, Lucia Bíziková, Trainee in an international law firm, London, UK, Agatha Brandão de Oliveira, Guest Lecturer, Federal University of Espirito Santo (UFES), Brazil and member of the Brazilian Bar and Diego P. Fernandez Arroyo, Professor of Law, SciencesPo Law School, Paris, France. 

Contributors include: F. Antunes Madeira da Silva, S. Archer, C. Avasilencei, G.A. Bermann, R. Bismuth, L. Bíziková, S. Bollée, J. Bomhoff, S. Brachotte, A. Brandão de Oliveira, H. Buxbaum, L. Carballo Piñeiro, C. Chalas, D. Coester-Waltjen, G. Cordero-Moss, S. Corneloup, F. Costa Morosini, G. Cuniberti, J. d’Aspremont, J. Daskal, S. Dezalay, R. Fentiman, D.P. Fernández Arroyo, T. Ferrando, S. Fulli-Lemaire, U. Grusic, H. Harata, L. Hennebel, J. Heymann, P. Kinsch, H. Kupelyants, K. Langenbucher, F. Latty, O. Le Meur, G. Lewkowicz, F. Licari, F. Marchadier, T. Marzal, R. Michaels, A. Mills, H. Muir Watt, N. Najjar, V.H. Pinto Ido, E. Pataut, D. Restrepo-Amariles, D. Rosenblum, C. Salomão Filho, M. Sanchez-Badin, P. Schiff Berman, J. Sgard, D. Sindres, E. Supiot, C. Thomale, K. Trilha, H. van Loon, J. Verhellen, M. Weidemaier, M. Wells-Greco.

Key Features of the publication are presented as follows:
• the specific global scope allows the reader to gain a contextualised understanding of legal transformation
• each case has two commentaries from different viewpoints, ensuring a nuanced perspective on the implications of the global turn in private international law and its importance for adjudication
• an astute combination of theory and practice ensures readers gain an understanding of the relevance of innovative legal theories in interpreting concrete cases in a changing world
• comparative material and ground-breaking analysis make this book eminently suitable for use with students and a useful tool for researchers and courts confronted with novel topics or issues.

For more info, check here.