Agrégateur de flux

My reporting on [2018] EWHC 965 (Comm) Republic of Angola v Perfectbit et al is a bit overdue – the case came to my attention again recently in the context of a non-EU brief and I am grateful to Allen & Overy having reported it at the time: please refer to their summary for an overview of the issues and decision (concise summary reads ‘Despite an exclusive jurisdiction clause in favour of the Angolan courts, the High Court was satisfied that England was the appropriate forum to hear a claim by the Republic of Angola and Angola’s central bank against several English and non-EU defendants.’).

In short, the EU’s anchor defendants mechanism (Brussel I Recast, Article 8(1) cannot be used to establish jurisdiction against a non-EU defendant: residual conflicts rules apply. However Bryan J at 124 re-emphasises the extended effect of Owusu in cases such as these at issue:

‘The passages I have quoted were quoted by the Court of Appeal in Lungowe v Vedanta Resources plc [2017] EWCA Civ 1528; [2017] BCC 787 at paragraphs [114] and [115] with approval. Simon LJ (with whom Jackson and Asplin LJJ agreed) at paragraph [113] also referred to the following observations made by the editors of Dicey and Morris:

“113. At paragraph 12-033, the editors of Dicey note the classic exposition of Lord Goff’s forum non conveniens test in the Spiliada case, but add: Lord Goff could not have foreseen, however, the subsequent distortion which would be brought about by the decision of the European Court in Owusu v Jackson. The direct effect of that case is that where proceedings in a civil or commercial matter are brought against a defendant who is domiciled in the United Kingdom, the court has no power to stay those proceedings on the ground of forum non conveniens. Its indirect effect is felt in a case in which there are multiple defendants, some of whom are not domiciled in a Member State and to whom the plea of forum non conveniens remains open: it is inevitable that the ability of those co-defendants to obtain a stay (or to resist service out of the jurisdiction) by pointing to the courts of a non-Member State which would otherwise represent the forum conveniens, will be reduced, for to grant jurisdictional relief to some but not to others will fragment what ought to be conducted as a single trial … There is no doubt, however, that the Owusu factor will have made things worse for a defendant who wishes to rely on the principle of forum non conveniens when a co-defendant cannot.” ‘

In short, against non-EU defendants whose case is anchored with an EU (England and Wales) defendant, forum non conveniens remains open but has become more unlikely. One issue perhaps under-considered by the English courts is Brussels Recast Article 34’s juncto recital 24 impact of exclusive choice of court in favour of a third State (neutralising Owusu for those specific circumstances) – not powerful enough perhaps in the case of a multitude of defendants.

Case goes to trial.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.4 (International impact of the Brussels I Recast Regulation), Heading 2.2.14.5.2.

The International Court of Arbitration in affiliation with the Chamber of Commerce and Industry of the Kyrgyz Republic, in association with the the Asian International Arbitration Centre & the ICC International Court of Arbitration, is hosting an international conference on the New York Convention and its interaction with domestic laws of the Central Asian countries. The conference will take place in Bishkek on November 30, 2018.

The goals of the conference are to examine the interaction between the New York Convention and domestic
legislation of the Central Asian countries, and to facilitate the exchange between experts from different jurisdictions of their experiences in Alternative Dispute Resolution.

The program of the conference and all pertinent information regarding the event may be found here.

I had earlier reviewed Bot AG’s Opinion in C-308/17 Leo Kuhn, in which the Court held on Thursday. The case concerns the retrofit introduction of CACs – Collective Action Clauses, in Greek bonds, allowing the amendment to the initial borrowing terms by decisions adopted by a qualified majority, of the remaining capital owed and applying also to the minority.

Along the lines suggested by the AG, the Court finds the litigation not to relate to civil and commercial matters (likely also leading to a finding on the basis of national law, of sovereign immunity).

Extensive reference is made of course to Fahnenbrock , among others. Yet the Court pays lip service only to Fahnenbrock: in that judgment, it launched the ‘direct and immediate’ formula: in that case it found it was the bondholders’ vote, which led directly and immediately to changes to the financial conditions of the securities in question, not the public authorities’ actions essentially dictating it: therefore that litigation was held not to be actum iure imperii, and it was found to be subject to the service of documents Regulation.

In Kuhn, Brussels I Recast is engaged and here the Court would seem to be inclined to follow (also) Bot AG’s Opinion in Fahenbrock (where he was not so followed): there, Bot AG had opined that the Greek State’s intervention in the contracts was direct and not at a distance from the contract. His focus was more on the circumstances of the case than on the legal nitty-gritty. There are certainly many similarities between Fahnenbrock and Kuhn: in the latter, the crammed-down haircut was formally the result of a majority decision of bondholders to accept the restructuring offer made by the Greek State. Not unlike Fahnenbrock were as noted it was also a bondholders’ vote which was the formal trigger.

In Kuhn, the Court emphasises the context, like Bot to no avail had done in Fahnenbrock: after a succinct tour d’horizon of the debt crisis leading to the CACs, the Court concludes ‘It follows that, having regard to the exceptional character of the conditions and the circumstances surrounding the adoption of Law 4050/2012, according to which the initial borrowing terms of the sovereign bonds at issue in the main proceedings were unilaterally and retroactively amended by the introduction of a CAC, and to the public interest objective that it pursues, the origin of the dispute in the main proceeding stems from the manifestation of public authority and results from the acts of the Greek State in the exercise of that public authority, in such a way that that dispute does not fall within ‘civil and commercial matters’ within the meaning of Article 1(1) of Regulation No 1215/2012.’

I suggested at the time that ‘direct and immediate effect’ is not a criterion which is easy to handle. Yet in solely emphasising context, the Court now casts the net too wide in my view, and at the very least leads to more speculation (pun intended) in the litigation context of sovereign debt.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2, Heading 2.2.9.

The pauliana rings extensively at Kirchberg these days and months.

Two days ago the Court held in C‑296/17 Wiemer & Trachte. Following Wahl AG’s Opinion (which is not available in English), the Court has confirmed exclusive jurisdiction for set aside (pauliana) actions, of the courts of the Member State within the territory of which insolvency proceedings have been opened (COMI or secondary proceedings). Not therefore jurisdiction under the Brussels I Recast for the State of domicile of the defendant.

The need to avoid forum shopping (a strong leading principle in the insolvency Regulation) in particular, led Wahl AG and now the Court to insist on exclusive jurisdiction. The alternative reading (defended, I understand, inter alia by the Commission) relied on the altogether limiting wording of the relevant articles in the Regulation (both the previous and current versions), and also on an efficiency argument: particularly the insolvency practitioner ought to be able to forum shop so as to ensure the best outcome for the collective creditors (particularly by pursuing parties who have benefitted from avoidance actions, in their domicile). Wahl AG confessed sympathy for that practical reason (not unlike some of the arguments in the common law against say Owusu or West Tankers), yet emphasised the CJEU’s direction on vis attractiva concursus: rather a magnetic direction.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5 Heading 5.4.1. Chapter 2 Heading 2.2.2.10.1

Les droits du propriétaire de bonne foi doivent être réservés, même lorsque le bien constitue le produit direct ou indirect de l’infraction.

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Si la contrainte n’est pas établie, les scènes de sexe et le climat « hypersexualisé » sont, selon les juges, avérés.

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Bail d'habitation

Procédure civile - Chose jugée