Agrégateur de flux

Liga van Moskeeën en Islamitische Organisaties Provincie Antwerpen e.a.
Agriculture
La Cour confirme que les abattages rituels sans étourdissement ne peuvent avoir lieu que dans un abattoir agréé

Le tribunal de l’Union européenne a considéré que Lionel Messi pouvait enregistrer la marque « Messi » pour des articles et vêtements de sport.

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In Platinum Partners, Chapman J held that foreign discovery laws should be considered
for comity concerns, yet they are not determinative of whether discovery should be
permitted under United States law.

Foreign Representatives sought access to documents from US audit firms concerning investment funds that were debtors in Cayman Islands liquidation proceedings recognized under Chapter 15 as foreign main proceedings. Jacob Frumkin has excellent insight and I am happy to refer.

Section 1521(a) of the Bankruptcy Code provides that, upon recognition of a foreign main proceeding, a bankruptcy court may, “at the request of a foreign representative, grant any appropriate relief” … “where necessary to effectuate the purpose of [chapter 15] and to protect the assets of the debtor or the interests of the creditors.”  The first main argument of the auditors was that Cayman law does not permit the discovery of audit work papers or materials that are not a debtor’s property and, if the Court were to grant the motion, its interests and the interests of comity would not be protected.

The Court dismissed this argument, noting that

“it is well-established that comity does not require that the relief available in the United States be identical to the relief sought in the foreign bankruptcy proceeding; it is sufficient if the result is comparable and that the foreign laws are not repugnant to our laws and policies.” and that

“requiring this Court to ensure compliance with foreign law prior to granting relief sought pursuant to chapter 15 would require the Court to engage in a full-blown analysis of foreign law each and every time a foreign representative seeks additional relief in the United States, which may result in differing interpretations of U.S. law depending on where the foreign main proceeding was pending.”

Comity considerations surface in the most technical of corners.

Geert.

 

La marque constituée des lettres HP (signe verbal et signe figuratif représentant les lettres entourées d’un rond noir) est suffisamment distinctive pour être enregistrée.

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Le Conseil d’État admet, sous conditions, l’existence de tarifs réglementés de vente de l’électricité.

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« Lorsqu’une succession comporte des immeubles situés dans l’un et l’autre de deux pays dont le défunt a la nationalité, le renvoi opéré par la loi du lieu de situation de l’immeuble impose que le critère de rattachement à la loi nationale du défunt soit apprécié selon les règles de conflit de lois prévues par la loi du pays renvoyant. »

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The School of Law of the University of Bologna is organizing the III Edition of the Summer School on European and Comparative Environmental Law, to be held in Ravenna, July 9-13, 2018.

For more information click here.

You can also get directly in touch with Prof. Lupoi [micheleangelo.lupoi@unibo.it].

 

In 4A_417/2017 (litigants’ names per usual unnecessarily anonimysed; Ganzoni reveal it to be Swatch AG) the Swiss Federal Supreme Court (at 2) first of all correctly reminds us that neither the Lugano Convention nor Brussels I (or indeed the Recast) capture the procedural interest required for a party to request a negative declaration (of liability; in tort, contract or otherwise). In C-113/11 Folien Fischer the CJEU held that negative declarations are covered by Article 7(2); the national court can, indeed must examine its jurisdiction under that provision (and the corresponding one in Lugano) but that does not say anything about standing requirements vis-a-vis interest. (As far as I am aware there is no similar judgment viz 7(1) but the rule must be the same).

Such negative declarations are often part of the race to court; via the lis alibi pendens rules they undercut the forum which the counterparty might have preferred.

As Walderwyss summarise, Hitherto the Swiss Supreme Court had a rather strict approach to the interest required for a negative declaration. Race to court (or ‘forum running’ as the SC calls it) alone was not a sufficient reason. With the March 2018 judgment, that has now been relaxed: Swatch Group AG’s interest in securing a Swiss forum  in a dispute against an English counterparty, was considered sufficient to grant it interest: at 5.4: ‘Zusammenfassend ist festzustellen, dass jedenfalls im internationalen Verhältnis das Interesse einer Partei, bei einem bevorstehenden Gerichtsverfahren einen ihr genehmen Gerichtsstand zu sichern, als genügendes Feststellungsinteresse zu qualifizieren ist.‘

With race to court following Swatch no longer hindered by a restrictive approach to standing, the Swiss surely must have an advantage in this time-sensitive part of international litigation. (Not a great pun, I realise. But I am nearing the end of yet another long working week).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2.6.

Thanks to Horatia Muir Watt and Hélène van Lith (Sciences Po) for this post

Moving from Paris to The Hague for the PAX MOOT Finals – Moot Court Conflict of Laws/Droit International Privé – 6th Edition
Sciences Po – Law School / école de droit

The PAX Moot Eliminatory Round took place last Tuesday in Paris with 8 universities mooting the cross border climate change moot case which addressed a number of complex transnational legal questions in Private International Law and was generously hosted by the ICC (see also our previous post).
The four winning teams who made it to the finals are Erasmus University Rotterdam, University of Heidelberg, Paris I Sorbonne and Sciences Po.
The Panel of the PAX Moot Court Judges consisted of the following members:

Hans van Loon – Former Secretary General of the HCCH (The Hague)
Agnès Maitrepierre – Cour de cassation (Paris)
Daan Lunsingh Scheurleer –Nauta Dutilh (Amsterdam)/ Christine Lecuyer- Thieffry (Paris)
Clément Dupoirier – Herbert Smith Freehills (Paris)
Patrick Thieffry – Environmental Lawyer and Associate Professor. (Paris)
Alexis Foucard – Clifford Chance (Paris)
Michal Chajdukowski and Vasili Rotaru (PAX moot winning team 2017)
The PAX Moot Finals will be held on 1 June at the Peace Palace – hence the name – in The Hague, paying tribute to the city as the “legal capital of the world” and home of The Hague Conference of Private International Law, which also marks its 125th anniversary.

The winning Mooters and best pleaders will be rewarded with an internship at international commercial litigation departments of renowned law firms Nauta Dutilh in Amsterdam and Herbert Smith in Paris.
The concept and goal of the PAX Moot is to study and apply private international law for the resolution of cross border disputes through a concrete problem “the Case” and to train law students and practitioners of tomorrow in arguing and analysing complex global legal questions in international litigation.

The inter-university PAX Moot organized by Sciences Po Law School is a pleading competition addressing issues of Private International Law and this year’s 6th edition has gone global to include teams from universities in Europe and beyond. The organizers thank the following institutions for their support and willingness to open the competition to their students: Sorbonne University Paris I, London School of Economics, HEC, Heidelberg University, Luxembourg University, Cambridge University, University College London (UCL), King’s College London, University of Antwerp, Erasmus University, Université Libre de Bruxelles (ULB), Sciences Po Law School and Statale University of Milan. Participation was also open to US exchange students from Harvard, Columbia, Duke, Northwestern, Northeastern, Duke and Penn law schools.

Inquiries can be addressed to Dr. Hélène van Lith by email at helene.vanlith@sciencespo.fr

In [2018] EWHC 1230 (Comm) St Vincent v Bruce Roberston et al Males J set aside a worldwide freezing order in summary judgment but that is not the trigger for this blog post. Rather, consider paras 33 and 34:

1. St Vincent (and two associated companies) attempted to stop the sale [of a chunk of assets by commencing proceedings in Cyprus against 19 defendants, including Mr Robinson, Winterbourne Pte and the other defendants to these proceedings and also HHL and HDP. On 5 August 2013 the District Court of Nicosia granted an injunction, purporting to restrain any dealings with HDP’s assets. [GAVC: for the jurisdiction of the Cypriot courts: see 12: The Shares Pledge was governed by the law of Cyprus and provided for the exclusive jurisdiction of the courts of that country]
2. Notwithstanding the Cyprus order, on 30 September 2013 the creditors of HDP approved the sale to KFTP. The arrangement was then approved by the District Court of Gliwice on 24 October 2013. The Polish court did not regard the order of the Cyprus court as an impediment to the sale, taking the view that it had exclusive jurisdiction over a Polish company under its supervision and was not required to recognise the Cypriot order in accordance with the provisions of the Brussels Regulation. The court did not rule on any issue whether the proposed sale to KFTP was at market value and was not asked to do so.

I have tried to locate the Polish judgment but have failed to do so (which is where assistance from Polish readers would be appreciated). Presumably however the Polish courts argued that Article 24(2) Brussels I Recast was engaged, and then either per Weber ignored lis alibi pendens (were it to have found the case was still pending in Cyprus), or applied Article 45(1) e ii to ignore the Cypriot findings. In either case, the relevant point is how widely the Polish courts seem to have interpreted Article 24(2).

Come to think of it this would have been good exam material and I have one or two of those coming up (although there is plenty in the ‘exam material’ ledger).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.5, Heading 2.2.16.

 

Adoptée à l’origine aux États-Unis pour sanctionner des Russes accusés d’être impliqués dans la mort de l’avocat Sergeï Magnitski, la loi s’est élargie à tous les suspects de violation des droits de l’homme. En France, des parlementaires commencent à se mobiliser pour l’adoption d’une loi similaire.

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Incapacité

Protection de la nature et de l'environnement

Extradition - Prescription

Entreprise en difficulté (loi du 26 juillet 2005)

Entreprise en difficulté (loi du 26 juillet 2005)

Cautionnement dans la vie des affaires

Entreprise en difficulté (loi du 26 juillet 2005)

Expropriation

The 2017 Hague Lecture of Professor Burkhard Hess has been published in Recueil des Cours, vol. 388, pg. 49-266.

The Lecture addresses dispute resolution in international cases from the classical perspective of the private-public divide. This distinction is known in almost all legal systems of the world, and it operates in both domestic and in international settings. The main focus of the Lecture relates to overlapping remedies available under private international and public international law; it maps out the growing landscape of modern dispute resolution, where a multitude of courts and arbitral tribunals operating at different levels (domestic, international and transnational) is accessible to litigants in cross-border settings. Today, a comprehensive study of these developments is still missing. This Lecture does not aim to provide the whole picture, but focusses instead on some basic structures, revealing three main areas where the distinction between private and public disputes remains applicable today:

First, the divide delimitates the jurisdiction of domestic courts in cases against foreign states and international organisations (immunities); it equally limits the possibilities of foreign and international public entities to enforce public law claims in cross-border settings. As a matter of principle, public law claims cannot be brought before civil domestic courts of other states. However, this rule has been challenged by recent developments, especially by the private enforcement of (public) claims and by the cross-border cooperation of public authorities. Moreover, the protection of human rights and the implementation of the rule of law in cross-border constellations entail a growing need for a judicial control of acta iure imperii – even if only by the courts of the defendant state.

The second area of application of the divide relates to the delineation between domestic and international remedies. In this field, the distinction has lost much of its previous significance because nowadays individual commercial actors may bring their claims directly (often assisted by experienced actors like litigation funders) before international arbitral tribunals, claims commissions and human rights courts. In this area of law, individuals’ access to international dispute resolution mechanisms has been considerably reinforced. Here, Prof. Hess argues that it would be misleading to qualify parts of the current dispute resolution system as purely “commercial” and other parts as purely “public or administrative”. There are revolving doors between the systems and the same procedures are often applied; what really matters is the proper delineation of  different remedies which functionally protect the same interests and rights.

The third area relates to the privatization of dispute settlement, especially in the context of private ordering. At present, powerful stakeholders often regulate their activities vis à vis third parties (including public actors) by globalized standard terms. Pertinent examples in this respect are financial law (i.e. ISDA), the organization of the internet (i.e. ICANN) and sports law (i.e. CAS). In this context, there is a considerable danger that the privatization of law-making and of the corresponding dispute settlement schemes does not sufficiently respect general interests and the rights of third parties. A residual judicial control by independent (state) courts is therefore needed. Data protection in cyberspace is an interesting example where the European Union and other state actors are regaining control in order to protect the interests of affected individuals.

Finally, the Lecture argues that the private-public divide still exists today and – contrary to some scholarly opinions – cannot be given up. At the same time, one must be aware that private and public international law have complementary functions in order to address adequately the multitude of disputes at both the cross-border and the international level. In this context the private-public divide should be understood as an appropriate tool to explain the complementarity of private and public international law in the modern multilevel legal structure of a globalized world.

A pocket book of the Hague Lecture will be available in the coming months.