Agrégateur de flux

EVH / Commission
Concurrence
Le recours du producteur d’électricité allemand EVH contre l’approbation par la Commission de l’achat d’actifs d’E.ON par RWE est rejeté

enercity / Commission
Concurrence
Le recours de la régie municipale allemande enercity contre l’approbation par la Commission de l’achat d’actifs de production d’E.ON par RWE est jugé irrecevable

BK et ZhP (Suspension partielle de la procédure au principal)
Droit institutionnel
Une demande de décision préjudicielle adressée à la Cour de justice n’empêche pas la juridiction de renvoi de poursuivre partiellement la procédure au principal

DC (Rétractation après l’exécution du contrat)
Rapprochement des législations
Défaut d’information sur le droit de rétractation : un consommateur est exonéré de toute obligation de paiement s’il se rétracte d’un contrat de service, conclu hors établissement, qui a déjà été exécuté 

Ralf Michaels (Max Planck Institute Hamburg) has posted Private International Law and the Legal Pluriverse on SSRN.

The abstract reads:

Private international law responds to the plurality of existing normative orders, and at the same time, as domestic law, it partakes in that plurality. As a consequence, private international law does not overcome legal plurality, nor does it provide a metanormativity shared between the regimes; it merely adds a second level to the plurality of substantive laws and conflicts regimes. This makes a legal ontology necessary that avoids oneness and embraces plurality. The chapter suggests pluriversality as such an ontology. Drawing on different theories – Carl Schmitt, William James, and decolonial theory – such an ontology is developed and analyzed. Private international law is not an add-on in such an ontology; instead it is a constitutive element.​

The paper is forthcoming in Philosophical Foundations of Private International Law, OUP, Roxana Banu, Michael Green, Ralf Michaels, eds.

We are pleased to announce that registration is now open for the 9th Journal of Private International Law Conference. The conference will be held on 3 to 5 August 2023 at the Yong Pung How School of Law at the Singapore Management University. The keynote address will be delivered by The Honourable Justice Philip Jeyaretnam, President of the Singapore International Commercial Court.

The deadline for speakers to register is 30 May 2023. The deadline for other registrants is 25 June 2023.

Registration is complimentary for speakers, Journal of Private International Law editorial board members and SMU faculty, staff and students. Preferential rates apply for academics, government officials, SMU alumni and non-SMU students – register with your institutional e-mail to enjoy the preferential rate.

More information, including the draft programme and link to register, can be found here. We look forward to welcoming you to Singapore.

As noted earlier on this blog, on 17 May 2023, from 6 pm to 8 pm CEST, the third webinar of the series that has been organised under the title The Future of Cross-Border Parenthood in the EU – Analyzing the EU Parenthood Proposal will take place. The webinar, chaired by Nadia Rusinova, will deal with the following relations: The mutual recognition of decisions under the EU Proposal: much ado about nothing? (Alina Tryfonidou), and Who decides on parenthood? The rules of jurisdiction (Maria Caterina Baruffi).

Those wishing to attend have time until 16 May 2023 at noon to register. The registration form is available here.

Registered participants will receive the details to join the webinar by e-mail (please note the e-mails with these details occasionally end up in the spam folder).

The form, then, will remain open for registration for the last webinar of the series.

The updated and final version of the program is available here.

The first issue of 2023 of the Journal of Private International Law is out. It contains the following articles:

David McClean, The transfer of proceedings in international family cases

There is general agreement that jurisdiction over issues concerning children or vulnerable adults should lie with the court of their habitual residence. There are particular circumstances in which that is not wholly satisfactory and four international instruments have provided, using rather different language, the possibility of jurisdiction being transferred to a court better placed to decide the case. They include Brussels IIb applying in EU Member States since August 2022 and the Hague Child Protection Convention of growing importance in the UK. This paper examines that transfer possibility with a detailed comparison of the relevant instruments.

Matthias Lehmann, Incremental international law-making: The Hague Jurisdiction Project in context

The Hague Conference on Private International Law is currently working towards a new instrument on jurisdiction and parallel proceedings. But critics ask if we need another instrument, in addition to the Hague Choice of Court Convention of 2005 and the Hague Judgments Convention of 2019. This article gives reasoned arguments for a “yes” and explores possibilities for the substantive content of the new instrument. It does so by looking back and contextualising the new instrument with regard to the two preceding Conventions, and by looking forward to what is still to come, ie the interpretation and application of all three instruments. On this basis, it argues that a holistic approach is required to avoid the risk of a piecemeal result. Only such a holistic approach will avoid contradictions between the three instruments and allow for their coherent interpretation. If this advice is heeded, incremental law-making may well become a success and perhaps even a model for future negotiations.

Ben Köhler, Blaming the middleman? Refusal of relief for mediator misconduct under the Singapore Convention

The discussion surrounding the Singapore Convention on Mediation 2018 has gathered steam. In particular, the refusal of enforcement based on mediator misconduct as prescribed in Article 5(1)(e) and (f) has been the focus of debate and is widely perceived to be the Convention’s Achilles heel. These two provisions, already highly controversial in the drafting process, have been criticised as ill-suited to a voluntary process and likely to provoke ancillary dispute. This article defends these grounds for refusal, arguing that they play an indispensable role in guaranteeing the legitimacy of mediated settlements enforced under the Convention. It addresses some of the interpretative challenges within Article 5(1)(e) and (f) before discussing the tension between the provisions on mediator misconduct and the confidentiality of the mediation. The article then offers some guidance on how parties may limit the effects of the provisions, concluding with a brief outlook for the future.

Abubakri Yekini, The effectiveness of foreign jurisdiction clauses in Nigeria: an empirical inquiry

Business entities do not often include terms in commercial agreements unless those terms are relevant and are designed to maximise the gains of the parties to the agreement. To realise their reasonable and legitimate expectations, they expect that contractual terms and promises would be respected by the parties and courts. There is a growing body of literature suggesting that Nigerian courts are not giving maximum effects to foreign jurisdiction clauses (FJC). What is largely missing from the scholarly contributions is that no one has worked out a principled solution to overcome this conundrum. This article significantly contributes to the existing literature through an empirical analysis of Nigerian appellate court decisions on FJCs with a view to gaining deeper insights into the attitude of Nigerian courts to FJCs. Compared to the US where the national average of enforcement is 74%, a 40% rate for Nigeria does not project Nigeria as a pro-business forum. This outlook can potentially disincentivise cross-border trade and commerce between Nigeria and the rest of the world. To address this problem, the paper proceeds by presenting a normative framework, built principally on economic and contract theories, for enforcing FJCs. As most of the cases are B2B transactions, the paper invites the courts to treat FJCs and arbitration clauses equally and to replace forum non conveniens considerations with a more principled approach which limits non-enforcement to overriding policy, and a strong cause that is defined by reasonableness and foreseeability.

Mohammed Mjed Kabry and Azam Ansari, The enforcement of jurisdiction agreements in Iran

Parties to a contract may designate the court or courts of a particular country to decide their disputes which have arisen or may arise from a particular legal relationship. Many countries give party autonomy its binding effect in selecting the competent court and enforcing jurisdiction agreements. There is complete silence in Iranian law regarding the enforcement of jurisdiction agreements. The current study examines the enforcement of jurisdiction agreements under Iranian law. This study investigates whether parties in international disputes can agree to confer jurisdiction to Iranian non-competent courts and whether they can agree to exclude the jurisdiction of competent Iranian courts in favour of foreign courts. The study contends that parties can agree to grant jurisdiction to Iran’s non-competent courts unless the excluded foreign court has exclusive jurisdiction to hear the dispute. On the other hand, parties may agree to exclude the jurisdiction of the competent Iranian courts in favour of foreign courts unless the Iranian courts assert exclusive jurisdiction over the dispute.

Alexander A. Kostin and Daria D. Kuraksa, International treaties on assistance in civil matters and their applicability to recognition of foreign judgments on the opening of insolvency proceedings (reflections regarding the Russian national and international experience)

The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).

We are pleased to remind you two days ahead of a lecture hosted by the University of Bonn in cooperation with ConflictofLaws.net. Professor Amnon Lehavi (Harry Radzyner Law School, Reichman University, Israel) is going to speak on ‘Globalization through the re-codification of property law?’.

The globalization of markets, technology, and interpersonal networks poses a growing challenge for national legal systems. Property law is traditionally considered a “domestic” field of law, not only because of its structural features (such as the in rem or numerus clausus principles), but also because it promotes cultural, economic, and social values. The decision if property law should be globalized also requires a choice among potential globalization strategies (how to do so). This lecture examines four globalization strategies: (1) soft law / private ordering; (2) conflict of laws; (3) approximation; and (4) supranationalism. It does so by comparing three types of assets: land, digital assets, and cultural property – which have all been dramatically affected by current processes of globalization, albeit in diverging ways. It is argued that different strategies of globalization, and corresponding forms of re-codification of national property laws, should be adopted for land, digital assets, and cultural property.

The event will take place on 17 May at 6.30pm at the Senate Hall of the University of Bonn; it can also be joined via Zoom. The flyer can be found here.

 

 

 

 

A seminar will be held on 19 June 2023 at Maastricht University in the Netherlands concerning the Service and Evidence Regulations recast (see here our previous post regarding these regulations).

This seminar is being organised within the framework of the DIGI-GUARD project, which is co-funded by the European Union under the JUST-2021-JCOO program and which stands for Digital communication and safeguarding the parties’ rights: challenges for European civil procedure.

Among the topics to be discussed will be the electronic service of documents, e-codex and many other practicalities relating to the service and the taking of evidence within the European Union. It will include breakout sessions where practical examples will be discussed and led by officials / practitioners.

Discussions will take place in Dutch.

For more information (incl. registration), please click here. Attendance is possible both online and in-person. Please find the program below.

Programma

13:00 – 13:25 uur Ontvangst en inschrijving 13:30 – 13:40 uur Welkom door Pauline van der Grinten 13:40 – 14:25 uur Wannes Vandenbussche
De Betekeningsverordening: een overzicht van de recente wijzigingen en een stand van zaken 14:30 – 15:15 uur Cedric Vanleenhove
De Bewijsverordening: een overzicht van recente wijzigingen en een stand van zaken 15:30 – 16:15 uur Praktische oefeningen (breakout rooms)

1. Betekenen in het buitenland – o.l.v. Bartosz Sujecki en een gerechtsdeurwaarder
2. Bewijsvoering in het buitenland – o.l.v. een rechter

16:20 – 16:40 uur Marta Pertegás Sender
Het DIGI-GUARD project: relevantie voor de rechtspraktijk 16:40 – 17:00 uur Discussie 17:00 – 18:00 uur Borrel

 

Many other activities (mainly in English) are being held as part of the DIGI-GUARD project, click here for more information.

“Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Commission. Neither  the European Union nor the European Commission can be held responsible for them.”

 

 

 

In this post, Sandrine Brachotte presents her doctoral work on private international law and so-called “conflicts of worldviews”, which she undertook at Sciences Po Law School (Paris), in English, under the supervision of Horatia Muir Watt. The PhD Dissertation, entitled ‘The Conflict of Laws and Non-secular Worldviews: A Proposal for Inclusion’, offers an alternative theory of party autonomy, public policy and international jurisdiction that aims to be more inclusive of postcolonial claims at the global level.

Introduction

This doctoral work connects the discipline of private international law with an intellectual movement that has found its way into several branches of law but remains marginal in this discipline, that is decolonial theory (called “decolonial legal studies” when focused on law). To put it in a nutshell, this movement calls for an alternative production of knowledge that would follow non-Western sources and processes. It also asks for the re-empowerment of non-Western ways of living and seeing the world, which are here called “worldviews”. It does not only target postcolonial contexts but aspires to be embraced at the global level. There, it does not demand that Western productions of knowledge and worldviews be replaced by their non-Western equivalents but instead that the latter be recognised as equal to the former. Such pluralisation requires departing from the ‘modern episteme of universalism’ to endorse the paradigm of pluriversality, i.e., to acknowledge that ‘several worlds, and not only the Western world, have world visions that they aspire to be universal’.

In this regard, the dissertation seeks to contribute to the decolonisation of private international law by proposing an alternative theory of several paramount concepts of the field, to make them more inclusive of non-Western worldviews. To do so, as further explained below, the PhD dissertation starts from three Western court cases involving postcolonial claims brought before Western state courts, to show that the latter are poorly addressed under conventional legal reasoning. The reason thereof is that the said claims relate to worldviews that conflict with the worldviews underlying Western state law – hence the expression “conflict of worldviews”.  Then, the dissertation links these conflicts of worldviews to the most relevant pillars of Western private international law.

The Case Studies: Religious Arbitration, Sacred Land and Faith-Based Politics

The decolonial approach does not only involve substantive requirements (simplistically summarised above) but also methodological requirements, which are to enable the researcher to think outside of the conventional legal framework (that is considered as reflecting Western worldviews). Therefore, the dissertation starts from cases that do not especially involve questions of private international law. What matters is that they involve postcolonial claims that challenge state law’s worldviews because they reflect postcolonial ways of living and understanding the world. More concretely:

(i) Jivraj v. Hashwani ([2011] UKSC 40) (hereafter “Jivraj”) confronts state law with a religious form of arbitration, i.e. Ismaili arbitration, where the collective interests of the Ismaili community are central to the resolution of the dispute, in line with the religious ethos. This conception of arbitration contrasts with the legal, “secular”, conception of arbitration, which is to reflect the materialistic and individual interests of the parties. This disparity justifies distinct understandings, in Ismaili arbitration and in “secular” arbitration respectively, of the fact to choose arbitration – a question that was at the heart of the Jivraj case. In “secular” arbitration, an arbitration clause reflects a choice limited to the specific contract or business relationship concerned, which is to better serve the interests of the parties than court litigation (which is the “by default” dispute resolution process). Differently, an arbitration clause in favour of Ismaili arbitration corresponds to the normal way to proceed in intra-Ismaili disputes. It reflects the parties’ Ismaili ethos, which is to solve disputes to safeguard the peace in the Ismaili community.

(ii) Ktunaxa v. British Columbia (2017 SCC 54) (hereafter “Ktunaxa”) confronts state law with Indigenous ways of living, especially the notion of sacred land, which is based on a conception of the land as a living thing that is the source of Indigenous spirituality. This conception can hardly be recognised within legal categories, including freedom of religion, which the Ktunaxa (an Indigenous People in Canada) claimed was violated by a ski resort project to be built on land sacred to them. Indeed, freedom of religion, like other legal categories, is grounded on a material conception of land, according to which the claim of a relationship with the land must be grounded on sovereignty or on private ownership. As a result, freedom of religion can lead to protecting a religious belief or practice, but not a sacred land, unless the believers have ownership thereof. However, under Indigenous ways of living, the right to private property of sacred land is a non-sense, since the land is “God” (who they often call “Mother Earth”).

(iii) SMUG v. Scott Lively (254 F. Supp. 3d 262 (D. Mass. 2017); No. 17-1593 (1st Cir. 2018)) (hereafter “SMUG”) confronts state law with the American Evangelical “anti-gay” propaganda in Africa, which constitutes a form of faith-based politics that places African LGBTQIA+  people in an even more vulnerable position. Yet, this phenomenon cannot be considered under the principle of state territorial jurisdiction and the doctrine of international comity that ground international jurisdiction in the United States (US). These legal concepts rely on the assumption that states govern society, not transnational economic or religious actors. Yet, in the case at hand, an American Evangelical was sued before US courts by African LGBTQIA+ rights defenders, for its active participation in the prosecution of LGBTQIA+ people in Uganda. In this context, Ugandan law appeared instrumentalised by a transnational religious actor, since the defendant had initiated and supported the drafting of a legislative proposal reinforcing the criminalisation of activism in favour of LGBTQIA+ rights.

Lessons Learned to Decolonise Private International Law: Another Theory of Party Autonomy, Public Policy and International Jurisdiction

The PhD dissertation links the conflict of worldviews at play in the cases presented above to one pillar of private international law that they resonate with or directly concern. It further shows that the conventional theory of these paramount concepts cannot make sense of the postcolonial claims involved in the cases, because they, unsurprisingly, reflect Western worldviews. Then, alternative theory are proposed that would better include the non-Western worldviews concerned in the case studied. Hence, the following research findings are proposed:

(i) The notion of choice of arbitration at stake in Jivraj is linked to the notions of choice of court and choice of law. All these notions rely on the principle of party autonomy, which justifies a secular and individualistic understanding of choice of court or arbitration and choice of law, which fit secular worldviews but not Ismaili (and other religious) worldviews. Therefore, the PhD. dissertation proposes a more politically engaged understanding of party autonomy, understood as a form of self-determination, which would entail courts’ enquiry about the motivations underlying the court, arbitration and law choices made by the parties.

(ii) The claim at the origin of Ktunaxa consists of a demand for the protection of Indigenous sacred land, irrespective of property and sovereignty issues. This notably requires prioritising ecology and spirituality over these issues, which is generally not reflected in the current private-international-law rules. More broadly, the claim made in Ktunaxa is an example of the rising claim for the recognition of Indigenous ways of living at the global level, which asks for the inclusion of Indigenous perspectives in law in general, and not only via the granting of “special Indigenous rights”. In these regards, the Ktunaxa case calls for an alternative theory of the exception of public policy. This notion would then not be to safeguard the core values of the forum, but instead to prioritise the respect of “eco-spirituality” over national laws and judgments that would be contrary thereto, including those of the forum.

(iii) The issue brought before US courts in the SMUG case boils down to unbalanced power relations at play in a postcolonial context, which are grounded on the map of state jurisdictions. Especially, transnational actors like Global North-based religious missionaries and multinational corporations strategize around this map, while vulnerable postcolonial communities are submitted to it – a situation that human rights NGOs try to counterbalance, notably via transnational human rights litigation. In this context, the theory of international jurisdiction appears crucial, especially regarding the practice of forum shopping, which can be notably used both by illiberal or economically overpowerful transnational actors and by human rights NGOs conveying the voice of vulnerable postcolonial communities. This circumstance is however not part of the considerations that underly the usual regulation of international jurisdiction. In this respect, the PhD dissertation advocates for the adoption of a theory of international jurisdiction that would consider global welfare and intersectional discrimination, opening the door to a case-by-case approach to forum shopping that targets the political recognition of postcolonial states’ vulnerable communities.

La CJUE précise l’exigence de transparence de la directive 93/13 dont elle renforce la portée. L’intégralité du contrat d’assurance-emprunteur doit faire l’objet d’une communication préalable au consommateur. A défaut, la clause d’exclusion d’un risque qualifiée d’abusive lui est inopposable.

Sur la boutique Dalloz Code de la consommation 2023, annoté et commenté Voir la boutique Dalloz

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Abondance des éléments de preuve, collaboration d’acteurs de la société civile à leur collecte, fiabilité des preuves numériques, capacité de la justice ukrainienne à juger équitablement… La collecte et le traitement des éléments de preuve dans le cadre de la guerre en Ukraine soulèvent de nombreuses questions pour les acteurs judiciaires.

Sur la boutique Dalloz Guide pénal - Guide des infractions 2023 Voir la boutique Dalloz

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Written by Akanksha Oak and Shubh Jaiswal, undergraduate law students at Jindal Global Law School, India.

 

A Constitution Bench of the Indian Supreme Court in N.N Global recently adjudicated the contentious issue of whether arbitration clauses in contracts that were not registered and stamped would be valid and enforceable. As two co-ordinate benches of the Supreme Court had passed conflicting opinions on this point of law, the matter was referred to a Constitution bench—who answered the question in the negative, by a 3:2 majority.

The majority posited that an insufficiently stamped arbitration agreement within the meaning of Section 7 of the Arbitration and Conciliation Act, 1996 (hereinafter “ACA”) could not be acted upon in view of Section 35 of the Stamp Act unless following impounding and paying requisite duty. Furthermore, the bench held that the Court was bound to examine the agreement at Section 11 (appointment of arbitrators) stage itself and was duty bound to impound the agreement—if found to be unstamped.

In doing so, the Apex Court reiterated the principle cited in SMS Tea Estates and Garware Wall ropes and overturned the decision of the full bench of the same court in the 2021 N.N Global case. In this regard, the authors intend to critique this decision of the Constitution bench on three primary grounds-

1. Limited review under Section 11

The Court observed that the issue of stamping had to be looked at the very threshold, by the courts in the exercise of Section 11(6A) of the ACA, when the consideration with respect to the appointment of an arbitrator is undertaken. To that effect, it is argued that Section 11 (6A) merely allows the court to examine the “existence of an arbitration agreement” while dealing with the appointment of arbitrators. In fact, in Pravin Electricals, the court had held that the scope of review under Section 11 (6A) was confined to scrutinizing whether the contractual essentials had been fulfilled and whether the requisites under Section 7 of the ACA (which lays down the necessary particulars of arbitration agreements) had been satisfied. It is imperative to note that Section 7 does not include stamping as a necessary particular of an arbitration agreement. Moreover, in Sanjiv Prakash, the court had observed that Section 11 (6A) only permitted a prima facie review for the existence of an agreement, and a more detailed review could only be carried out by the arbitral tribunal.

Thus, it is contended that at the Section 11 stage, if the court feels that a deeper consideration is required, it must appoint an arbitral tribunal and refer the matter for their adjudication. This is in line with the cardinal principle of Kompetenz-Kompetenz (which allows the tribunal to decide over its own jurisdiction) that is found in Section 16 (1) of the ACA. This provision permits the tribunal to make rulings on objections with respect to the “existence and validity” of the arbitration agreement, thereby allowing the arbitrator to make considerations with respect to the stamping of the document. These words have been adopted from Article 16 (1) of the UNCITRAL Model Law on International arbitration, in order to ensure that the Indian Act is in conformity with international standards and practices. In fact, most international arbitration institutions like LCIA, SIAC and HKIAC also use similar terminology to encapsulate the principle of Kompetenz-Kompetenz, thus showcasing that such extraneous factors are always left to the tribunal’s discretion globally.

Accordingly, leaving the consideration of stamping to the arbitral tribunal is the only way to harmonize Sections 11 and 16 and ensure that the purpose of Section 16 is not defeated. Such an interpretation would cement India’s position as a pro-arbitration country and ensure that international parties are not deterred from choosing India as the seat of their arbitration. The court’s judgement in NN Global dilutes the Kompetenz- Kompetenz principle, consequently hampering India’s position as a choice of seat for arbitrations between Indian parties or between Indian and International parties (as Section 11, by virtue of being part of Part I of the ACA, is applicable to international arbitrations seated in India).

1. Grounds for invalidation of the arbitration agreement

Internationally, there are two grounds on which the arbitration agreement is invalidated, namely, if the arbitration agreement is “inoperative and incapable” or if it is “null and void”. The words “inoperative or incapable” of being performed, which are enshrined in Section 45 of the ACA, have been mirrored from Article II (3) of the New York Convention. Redfern and Hunter on International Arbitration define these terms to describe situations in which the arbitration agreement is no longer in effect, such as when it has been revoked by the parties or when the arbitration cannot be set in motion. The latter may be a possibility if the arbitration clause is ambiguously worded or if the other provisions of the contract conflict with the parties’ intention to arbitrate.

The other ground where an arbitration agreement becomes invalidated is if it is “null and void”. Albert Jan Van Dan Berg, in an article, states that the terms “null and void” can be defined when referring to situations in which the arbitration agreement is affected by some invalidity from the start, such as lack of consent owing to misrepresentation, duress, fraud or undue influence. An insufficiently stamped arbitration agreement does not fall under the ambit of either of these grounds as being a curable defect; non-stamping would not render the instrument null and void. Thus, it can be inferred that the Indian courts have developed a new ground for invalidation of the arbitration agreement, which is not recognised internationally.

In fact, this new ground also violates Article 5 of the UNCITRAL Model law, which has been interpreted to prohibit domestic courts from adding any extra grounds for invalidation—grounds that are not mentioned in the model law.

The implications of this judgement could hamper India’s position as an unfavourable seat for International Commercial Arbitration since this new caveat is not arbitration-friendly and could invalidate an agreement if a technical procedure such as stamping is not followed.

1. Technical advancements

This Court cannot be oblivious to electronic improvements given that commercial transactions are moving beyond pen-and-paper agreements. The ACA’s definition of arbitration agreements was amended in 2015 to recognise electronic communication, bringing the procedure in line with Article 7 of the UNCITRAL Model law, which was revised in 2006. Dr. Peter Binder in International Commercial Arbitration and Mediation in UNCITRAL Model Law Jurisdictions notes that “The wording in exchange of letters, telex, telegrams or other means of telecommunication indicates Model law’s flexibility towards future means of communication by being geared solely at the record of the agreement rather than the strict direct signature of the agreement.” It expanded the form of the arbitration agreement to align with international contract conventions and practices. In the present times, a valid arbitration agreement includes communications via letters, telexes, telegrams, or other forms of communication, including electronic channels. From the foregoing, it follows logically that traditional laws cannot deem these new types of agreements unenforceable merely because of insufficient stamping. However, the court in N.N Global has failed to clarify the same, thereby rendering the validity of such agreements questionable.

In conclusion, the authors posit that it is imperative to note that the Indian ACA is based on the doctrine of autonomie de la volonté (“autonomy of the will”), enshrined in the policy objectives of the UNCITRAL. Accordingly, it is improper and undesirable for the courts to add a number of extra formalities that are not envisaged by the legislation. The courts’ goal should be to achieve the legislative intention, and not to act as a barrier between parties and their aim of seeking an efficient, effective, and potentially cheap resolution of their dispute.

After the  completion of  three research projects, the chairs of the EAPIL Young Research Network (Tobias Lutzi, Ennio Piovesani and Dora Zgabrljić Rotar) are happy to announce the next endeavor.

The Network is ready to start working on the national rules of the Member States governing the recognition and enforcement of non-EU judgements in civil and commercial matters.

The aim of the project is to enable a comparison of the above-mentioned national rules, which, in turn, will allow a broader comparison between the latter rules and those of the 2019 Hague Judgments Convention.

The fourth project – like the previous and third one – will consist in the drafting of national reports, based on a questionnaire, by rapporteurs. Each national report will be expected to be roughly between 5,000 and 12,000 words (including footnotes). A first draft of the report will need to be sent to the heads of the project by the end of September 2023. Chairs are confident that the reports will be published (together with other materials) in a volume similar to the one from the third project.

Chairs are warmly inviting young researchers (see here for the notion) to provide a national report on the legal framework of the Member State they are based in (or which they are otherwise qualified to provide).

In particular, reports are currently requested from the following Member States: Cyprus, Czechia, Denmark, Estonia, Ireland, Lithuania, Portugal, Rumania, Slovakia, Slovenia and Sweden.

If you are interested in providing a national report – with respect to the Member States listed above – chairs would be grateful if you could come back to them at youngresearch@eapil.org by 21 May 2023.

Jean-Paul Costa

Sur la boutique Dalloz Code de procédure fiscale 2023, annoté et commenté Voir la boutique Dalloz

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La Cour de justice refuse de considérer que constitue une communication au public au sens des directives 2001/29/CE et 2006/115/CE la simple installation de systèmes de sonorisation de moyens de transport (en l’occurrence, des avions et des trains). Seule la diffusion délibérée de la musique constitue une telle communication au public.

Sur la boutique Dalloz Droit de la concurrence Voir la boutique Dalloz

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This post has been prepared by Prof. Paris Arvanitakis

 Corporate cross-border disputes in modern commercial world have taken on a much more complex dimension than in the early years of the EU. Issues such as the relationship between the registered and the real seat (see e.g. CJEU, 27.9.1988, Daily Mail, C-81/87), the possibility of opening a branch in another Member State (e.g. ECJ, 9.3.1999, Centros/Ehrvervs-og, C-212/97), or the safeguarding of the right of free establishment by circumventing contrary national rules not recognizing the legal capacity of certain foreign companies (CJEU, 5.11.2002, Überseering/Nordic Construction, C-208/00), which were dealt with at an early stage by the ECJ/CJEU, now seem obsolete in the face of the onslaught of new transnational corporate forms, cross-border conversions and mergers, the interdependence of groups of companies with scattered parent companies and subsidiaries, or cross-border issues of directors’ liability or piercing the corporate veil, which create complex and difficult problems of substantive, procedural and private international law. These contemporary issues of corporate cross-border disputes were examined during an online conference of Lex&Forum on 23.2.2023, and are the main subject of the present issue (Focus.

In particular, the Preafatio of the issue hosts the valuable thoughts of Advocate General of the CJEU, Ms Laila Medina, on the human-centered character of the European Court’s activity (“People-centered Justice and the European Court of Justice”), while the main issue (Focus) presents the introductory thoughts of the President of the Association of Greek Commercialists, Emeritus Professor Evangelos Perakis, Chair of the event, and the studies of Judge Evangelos Hatzikos on “Jurisdiction and Applicable Law in Cross-border Corporate Disputes”, of Professor at the Aristotle University of Thessaloniki Rigas Giovannopoulos on “Cross-border Issues of Lifting the Corporate Veil”, of Dr. Nikolaos Zaprianos on “Directors Civil Liability towards the Legal Person and its Creditors”, of Professor at the University of Thrace Apostolos Karagounidis on the “Corporate Duties and Liability of Multinational Business Groups for Human Rights’ Violations and Environmental Harm under International and EU Law”, and of Professor at the Aristotle University of Thessaloniki George Psaroudakis, on “Particularities of cross-border transformations after Directive (EU) 2019/2121”.

The case law section of the issue presents the judgments of the CJEU, 7.4.2022, V.A./V.P., on subsidiary jurisdiction under Regulation 650/2012 (comment by G.-A. Georgiades), and CJEU, 10.2.2022, Share Wood, on the inclusion of a contract of soil lease and cultivation within the Article 6 § 4 c of Rome II Regulation (comment by N. Zaprianos). The present issue also includes judgments of national courts, among which the Cour d’ Appel Paris no 14/20 and OLG München 6U 5042/2019, on the adoption of anti-suit injunctions by European courts in order to prevent a contrary anti-suit injunction by US courts (comment by S. Karameros), are included, as well as the decision of the Italian CassCivile, Sez.Unite n. 38162/22, on the non-recognition of a foreign judgment establishing parental rights of a child born through surrogacy on the grounds of an offence against public policy (comment by I. Valmantonis), as well as the domestic decisions of Thessaloniki Court of First Instance 1201/2022 & 820/2022 on jurisdiction and applicable law in a paternity infringement action (comment by I. Pisina). The issue concludes with the study of the doctoral candidate Ms. Irini Tsikrika, on the applicable law on a claim for damages for breach of an exclusive choice-of-court agreement, and the presentation of practical issues in European payment order matters, edited by the Judge Ms. Eleni Tzounakou.

TAP Portugal (Décès du copilote)
Transport

L’annulation d’un vol en raison du décès inopiné du copilote n’exonère pas la compagnie aérienne de son obligation d’indemniser les passagers

Bezirkshauptmannschaft Lilienfeld
Transport
Une entreprise de transport routier ne peut pas se décharger de sa responsabilité de respecter les temps de conduite et de repos des conducteurs en la transférant à une tierce personne