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Sebastian Mock (University of Hamburg), Kristian Csach (Pavol Jozef Šafárik University in Košice) and Bohumil Havel (Institute of Law, Czech Academy of Science, Prague) have published an “International Handbook on Shareholders’ Agreements – Regulation, Practice and Comparative Analysis” addressing various issues of shareholders’ agreements. The book includes general remarks on specific topics related to shareholders’ agreements and numerous country reports. One chapter also specifically deals with cross-border shareholders’ agreements and private international law. More information is available on the website of the publisher (here).

Les débats à l’Assemblée nationale ont parfois été vifs mais les évolutions du projet de loi ont été peu nombreuses. L’article 2 a particulièrement mobilisé les énergies, l’opposition accusant le gouvernement de vouloir correctionnaliser les viols sur mineurs.

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Bayer CropScience / Commission
Agriculture
Le Tribunal de l’UE confirme la validité des restrictions introduites au niveau de l’UE en 2013 à l’encontre des insecticides clothianidine, thiaméthoxame et imidaclopride en raison des risques pour les abeilles

Karel de Grote - Hogeschool Katholieke Hogeschool Antwerpen
Rapprochement des législations
La directive de l’Union sur les clauses abusives dans les contrats conclus avec les consommateurs peut s’appliquer à un établissement d’enseignement

Not just my blog posts on both cases follow each other closely. Tanchev AG in his Opinion in C-88/17 Zurich Insurance v Metso, takes inspiration from the Court’s findings in flightright (which I reported this morning). He emphasises the objective of predictability of the Brussels I Recast Regulation.

The case concerns multimodal transport of goods from one Member State to another. Pursuant to an agreement entered into with a Finnish undertaking, a British haulier undertook to carry goods from Finland to the United Kingdom. After the goods concerned were lost while being transported in the United Kingdom, the Finnish undertaking and the insurer of the goods sued for damages before a Finnish court. Does that court have jurisdiction per Article 7(1)b, second indent ?: in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided.

ALS concluded a contract for the carriage of goods with Metso Minerals Oy (‘Metso’), a Finnish manufacturer of equipment for the mining and construction industries. A cylindroconical crusher was to be transported from Pori in Finland to Sheffield in the United Kingdom. The crusher was insured by Zurich Insurance plc (‘Zurich’). Both Metso and Zurich are the plaintiffs in the main proceedings.

ALS, with the help of subcontractors, transported the crusher as follows. It was first transported from Pori to Rauma in Finland by a lorry with a low loader. At Rauma, it was unloaded from the lorry and driven on to a ship under its own power. After transport by sea to the United Kingdom, the crusher was again driven under its own power off the ship in the port of Hull and loaded onto another lorry. As Metso’s consignee did not have sufficient or adequate storage capacity, it asked a sub-contractor of ALS to drive the crusher to its own warehouse and keep it there temporarily for a couple of days. However, the crusher was stored there for a longer period, and disappeared before it could be delivered to the consignee in Sheffield.

ALS argues that only the place of unloading may be deemed to be the place of performance, claiming that the place of performance can only be one single place and that the place of final destination is of considerably greater importance than the place of dispatch. This, according to ALS, is consistent with the determination of the applicable law in respect of contracts for the carriage of goods under Rome I, which gives a degree of preference to the place of delivery and is to be interpreted taking into account the Brussels I Regulation.

The Commission, referring to CJEU predecent Rehder, Wood Floor Solutions Andreas Domberger and Color Drack, acknowledges that, in any event, the place of arrival is a place of performance, as it is the final place in the chain of transportation. The Commission further argues, however, that, bearing in mind the requirements of proximity, foreseeability and legal certainty, it would be appropriate to recognise in addition the place of dispatch as a place of performance.

The question of international jurisdiction arises in the main proceedings because the case has connections not only with Finland but also with other countries: Finland is the country in which the goods were dispatched and the consignor has its seat, whereas the destination of the goods being carried and the location of the haulier’s seat is in the United Kingdom, where, moreover, the goods were ultimately lost. Finally, in order to convey the crusher from Finland to the United Kingdom, it had to be transported through the waters of other Member States or waters under the sovereignty of no State. In ordinary language, the AG suggests (at 28) all these territories and waters are places where the contract was performed.

According to their wording, both sections (a) and (b) of Article 5(1) of the Brussels I Regulation refer to ‘the place of performance’ and, in the case of section (b), additionally to ‘the place in a Member State’. In consideration of the singular form employed, it seems,  the AG suggests at 30, that only one single place can be regarded as having special jurisdiction in respect of contractual matters. However, this conclusion is not borne out by the case-law.

In color Drack the Court ruled that, if it is not possible to determine one single principal place of performance, each of the places of performance has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, a significant link as regards jurisdiction. In a dispute concerning the sale of goods, the Court has held that, in such a case, the plaintiff may sue the defendant at one of the places of performance — at his choice.

In flightright, as far as delayed flights are concerned, the Court considers both the place of departure and the place of the final destination to be equally significant under the contract, thereby establishing a sufficient territorial link between these places and any proceedings arising from the contractual situation.

(At 59) In the present situation, where the means used to transport the goods change as the journey progresses, particularly in harbours, the fact that the goods are carried in a number of different stages is also an inevitable feature of such transport. In the AG’s view, however, even the fact that it was necessary to unload heavy and bulky goods such as the crusher in question and transfer it across land under its own power, with the dangers in terms of loss or damage inherent in a procedure of that kind (including the possibility of theft), does not alter the situation in such a way as to give the places of reloading or transhipping an importance equal to that of the place of dispatch. Therefore, recognising the latter place, along with the place of destination, as one of two ‘places of performance’ does not enhance the number of available fora in a way as to give reason for concerns of forum shopping.

The AG clearly struggles between limiting forum shopping and enhancing predictability, and suitability of various places to assess the litigation at issue. The AG (at 60) finds support for his view that the intermediate stages should not so be given jurisdiction, in the fact that it is common practice not to mention the places of reloading or reshipping in contracts of the kind in issue in the main proceedings.

The AG concludes therefore that the place of dispatch and the place of destination are thus both ‘main places of performance’ under the second indent of Article 7(1)(b), whereas the loading places in general are not.

A good case to further complete analysis under Article 7(1).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1

 

One of my PhD students, Michiel Poesen, has an extensive case-note coming up on C-274/16 flightright – when it is out I shall include a link here. For the time being therefore I shall be very brief. In summary, the Court held

• first of all that the special jurisdictional rules of the Brussels I Recast do not apply to defendants domiciled outside of the EU. That was as such an obvious finding: these suits are subject to residual national rules on jurisdiction. However the Court makes a point, at 54, to emphasise that in accordance with the principle of effectiveness (effet utile), rules under national law cannot make it impossible or excessively difficult to exercise the rights conferred by EU law. Here: the rights of passengers under the flight delay compensation rules, Regulation 261/2004. Is that CJEU shorthand for suggesting that if a Member State were not to allow claimants based in the EU, to claim compensation against third-country defendants, it would contravene EU law?
• second, where an operating air carrier which has no contract with the passenger performs obligations under Regulation 261/2004, it is to be regarded as doing so on behalf of the person having a contract with that passenger. (At 64) that carrier must be regarded as fulfilling the freely consented obligations (a reference to the Handte formula) vis-à-vis the contracting partner of the passengers concerned. Those obligations arise under the contract for carriage by air. Consequently,  an application for compensation for the long delay of a flight carried out by an operating air carrier such as (here) Air Nostrum, with which the passengers concerned do not have contractual relations, must be considered to have been introduced in respect of contracts for carriage by air concluded between those passengers and the carrier with whom they bought tickets. (Per the first bullet-point above, provided that carrier does have domicile in the EU). Of note is that this finding of a jurisdictional trigger under the rule of contracts (7(1), does not necessarily imply that at the substantive level, the court with jurisdiction will eventually decide that there is a contract on the basis of the lex causae.
• finally, to determine per Article 7(1)b second -, the court of ‘the place in a Member State where, under the contract, the goods were delivered or should have been delivered’, a contract for carriage by air, such as the contracts at issue in the cases in the main proceedings consisting of a single booking for the entire journey, establishes the obligation, for an air carrier, to carry a passenger from a point A to a point C. Such a carriage operation constitutes a service of which one of the principal places of provision is at point C. That finding is not called into question by the fact that the operating operates only the carriage on a flight which does not finish at the place of arrival of the second leg of a connecting flight in so far as the contract for carriage by air relating to the connecting flight covers the carriage of those passengers to the place of arrival of the second leg.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1.

Par un arrêt du 8 mai, la Cour de justice de l’Union européenne a jugé que la demande de regroupement familial d’un ressortissant non-UE frappé d’une d’interdiction d’entrée sur le territoire doit être appréciée au cas par cas.

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Par son arrêt du 19 avril 2018, la Cour de justice se prononce sur les conditions de la prorogation de compétence prévue, en matière de responsabilité parentale, par l’article 12, § 3, du règlement Bruxelles II bis.

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Clearing up my backlog.

In [2017] EWCH 2208 (Comm)  Zavod Ekran v Magneco the Blair J held in September 2017 that a company must not hide behind documents initiating arbitration being drafted in Russian, when a properly observant litigant should have known that arbitration proceedings were being commenced. The most important point from a practical perspective was found to be that the heading of a letter, in English, states that it comes from the Moscow arbitration body—the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation. From that alone it should have been obvious that an arbitration was being commenced. There was no other reason for ICAC to be writing to the company.

An utterly practical approach.

Geert.

 

I reported earlier on the Aldi abuse of process principle: a party who intends to bring a subsequent action against existing parties or their privies must raise the issue with the court, which on case-management grounds may hold that all claims must be brought simultaneously.

Chivers J has now held that the principle applies in the British Virgin Islands. Harneys have the report here. I have pondered before whether there ought not to be an Aldi rule in EU conflicts law, however one can see the difficulty particularly as in the EU context an Aldi principle might favour the actor sequitur forum rei rule to the detriment of special jurisdictional rules: not an outcome supported by the current rules.

Geert.

 

 

AY
Espace de liberté, sécurité et justice
Selon l’avocat général Szpunar, la Cour n’est pas compétente pour répondre à des questions posées par l’autorité judiciaire d’émission d’un mandat d’arrêt européen en vue de déterminer si l’autorité d’exécution peut refuser d’exécuter le mandat

Deutsche Lufthansa / Commission
Concurrence
La Commission doit réexaminer la demande de Lufthansa et de Swiss concernant la levée de leurs engagements tarifaires pour la ligne Zurich-Stockholm

This post has been written by Cristián Giménez Corte, Editor of the ASIL Commentaries on PIL.

We are pleased to present the third issue of Commentaries on Private International Law, the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG). As readers of the newsletter know, the name of our newsletter, Commentaries, represents a modest tribute to one of the founding fathers of modern PIL, Joseph Story, by borrowing the name of his seminal book “Commentaries on the Conflict of Laws, foreign and domestic,” and only replacing “Conflict of Laws” with “Private International Law” to better reflect the broader object of our discipline today.

The primary purpose of our newsletter is to communicate news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, with a view to providing specific and concise raw information that our readers can then use in their daily work. These new developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

Commentaries aims to be a truly global newsletter, by reporting news from all major legal systems of the world, which may have different conceptions of PIL. Thus, the PILIG newsletter is framed in a rather broad sense, comprising all types of situations generating potential conflicts of laws and/or jurisdictions, regardless of the “international” or “internal,” or “public” or “private” nature of those conflicting regulations.

To achieve what is perhaps the first comprehensive global approach to PIL, Commentaries includes five sections dealing with regional issues, edited by specialists on the field: Africa, edited by Richard Frimpong Oppong and Justin Monsenepwo Joost; Asia, by Chi Chung, Yao-Ming Hsu and Béligh Elbalti; the Americas by Cristian Giménez Corte and Jeannette Tramhel (Central and South America), and Freddy Sourgens and Mayra Cavazos Calvillo (North America); Europe, by Massimo Benedettelli, Marina Castellaneta, and Antonio Leandro; and Oceania, by Jeanne Huang. We would like to highlight the efforts made by our global editorial team in translating, both linguistically and legally, into English and for a global audience information that was originally in Japanese, Arabic, Portuguese, Spanish, Russian, Italian, French, German, Turkish, Vietnamese, and Chinese.

This third issue of Commentaries covers more countries and includes in greater detail recent developments in our field. Each regional section includes a brief introductory note, and a special chapter devoted to new scholarly work, which is of particular importance for those areas of the world where the dissemination of information on PIL is more difficult. The main developments covered by Commentaries occurred during 2016, including only a few developments occurred in late 2015 and early 2017.

In this third issue, Commentaries continues to develop a section introduced last year. This section is called “Global Conflict of Laws,” edited by Cristián Giménez Corte and Javier Toniollo, presents new developments on PIL that are not necessarily linked to one particular region or country in the world, but that are truly transnational or global.

Commentaries would not have been possible without the tireless support of the PILIG co-chairs, Freddy Sourgens and Kabir Duggal, and the hard and smart work of the section editors mentioned above. In addition, I would like to express our gratitude for the comments, suggestions and help provided by Sheila Ward, Matthew Gomez, and Mitsue Steiner. And I would like also to express our gratitude to Adriana Chiuchquievich, Emilia Gonzalez Cian y Martin Cammarata, for their assistance in the research and edition of the new section “Global Conflict of Laws.”

 

We would appreciate receiving your suggestions, comments and critiques. We welcome your feedback and participation. Please send me an e-mail at cristiangimenezcorte@gmail.com.

 

 

Tanya Monestier (Roger Williams University School of Law) has published an article (available here) addressing the Supreme Court of Canada’s decision in Douez v Facebook, Inc. (available here).

The abstract reads: Every day, billions of people use the online social media platform, Facebook.  Facebook requires, as a condition of use, that users “accept” its terms and conditions — which include a forum selection clause nominating California as the exclusive forum for dispute resolution.  In Douez v. Facebook, the Supreme Court of Canada considered whether this forum selection clause was enforceable, or whether the plaintiff could proceed with her suit in British Columbia.  The Supreme Court of Canada ultimately decided that the forum selection clause was not enforceable.  It held that the plaintiff had established “strong cause” for departing from the forum selection clause.  The Court premised its decision on two primary considerations: the contract involved a consumer and was one of adhesion, and the claim involved the vindication of privacy rights. The Court’s analysis suffers from several major weaknesses that will undoubtedly cause confusion in this area of law.  This Article will examine those weaknesses, and argue that the Supreme Court of Canada actually abandoned the strong cause test that it claimed to be applying.  The consequence of the Douez decision is that many forum selection clauses — at least in the consumer context — will be rendered unenforceable.  While this may be a salutary development from the perspective of consumer protection, it will undoubtedly have an effect on companies choosing to do business in Canada.

Delaware’s governor John Carney signed a bill prohibiting marriage before age 18, making it the first US state to ban all child marriage, on May 9, 2018. Heather Barr from Human Rights Watch has more on that topic here.

The Committee on Women’s Rights and Gender Equality of the European Parliament has, on 18 April 2018, adopted an opinion entitled “Towards an EU external strategy against early and forced marriages – next steps” (2017/2275(INI), PE616.622v03-00). The Committee stresses that “child, early and forced marriage is a violation of the human rights enshrined in international standards such as the Beijing Declaration and Platform of Action, the International Conference on Population and Development Programme of Action and the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages and which form part of the core principles embodied in the European Union as an area of security, freedom, justice and human rights, including women’s and girls’ rights”. Although “child marriage is ingrained in some traditions and cultures, […] no culture or religion can justify such a practice, particularly when human rights and the rights of children are at stake.” The Committee “[n]otes that many parents living in distress and extreme poverty in refugee camps feel the need to protect their daughters from the threat of sexual violence by marrying them to older men; stresses however that the EU and its Member States should be united and consistent in their dismissal of the requests of refugees for legal recognition of marriages where one of the alleged spouses is a child or teenager; underlines that refugee status cannot be used as a legal backdoor to recognition of child marriages in Europe”. The full text of the opinion is available here. For a more detailed report, see here.

Une « grève sauvage » du personnel navigant à la suite de l’annonce surprise d’une restructuration ne constitue pas une « circonstance extraordinaire » permettant à la compagnie aérienne de se libérer de son obligation d’indemnisation en cas d’annulation ou de retard important de vol.

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