Agrégateur de flux

Shortly before Christmas the UKSC released its decision on jurisdiction in Brownlie v Four Seasons Holdings Incorporated (available here).

Almost all the legal analysis is obiter dicta because, on the facts, it emerges that no claim against the British Columbia-based holding corporation could succeed (para 15) and the appeal is allowed on that basis. I suppose there is a back story as to why it took a trip to the UKSC and an extraordinary step by that court (para 14) for the defendant to make those facts clear, but I don’t know what it is. On the facts there are other potential defendants to the plaintiffs’ claim and time will tell whether jurisdictional issues arise for them.

The discussion of the value of the place of making a contract for jurisdiction purposes is noteworthy. In para 16 two of the judges (Sumption, Hughes) are critical of using the traditional common law rules on where a contract is made for purposes of taking jurisdiction. This has been the subject of debate in some recent Canadian decisions, notably the difference in approach between the Court of Appeal for Ontario and the Supreme Court of Canada in Lapointe Rosenstein Marchand Melançon LLP v Cassels Brock & Blackwell LLP, 2016 SCC 30 (available here). The SCC was fine with using the traditional rules for this purpose. In Brownlie, I do not think it is clear as to what view the other three judges take on this point.

Even more interestingly, the UKSC judges split 3-2 on how to understand the idea of damage in the forum as a basis for jurisdiction. Three judges (Hale, Wilson, Clarke) retain the traditional broad common law view – the position in many Canadian provinces prior to Club Resorts Ltd v Van Breda, 2012 SCC 17 (available here) – that ongoing suffering in the forum in respect of a tort that happened abroad is sufficient. Two judges (Sumption, Hughes) reject that approach and adopt a more narrow meaning of damage in the forum (it must be direct damage only).

This 3-2 split is closer even than it might first seem, since Lord Wilson (para 57) suggests that in a different case with fuller argument on the point the court might reach a different result.

Canadian law does not get a fair description in the UKSC decision. The court notes twice (para 21 and para 67) that Canada’s common law uses a broad meaning of damage for taking jurisdiction. Club Resorts, and the change to the law it represents on this very issue, is not mentioned. This is yet another illustration of the importance of being careful when engaging in comparative law analysis.

In Beaver v Hill, 2017 ONSC 7245 (available here) the applicant sought custody, spousal support and child support. All relevant facts happened in Ontario.

In response, the respondent asserted that the “inherent right of the Haudenosaunee and the Six Nations to govern themselves includes the right to have inter and intra-familial disputes decided through Haudenosaunee governance processes and protocols and according to Haudenosaunee laws”.

This took the court in some very interesting directions. It held “One of the novel issues that this case raises is whether general conflict of laws jurisdiction principles are also relevant on a more ‘micro-level,’ to an intra-provincial jurisdiction dispute between two Ontario citizens. In my view, these principles remain relevant in this case, even though the dispute has arisen at the intra-provincial level. Although the Respondent is not alleging that the Haudenosaunee or the Six Nations constitute a sovereign nation or other type of territorial entity within Ontario, his jurisdictional challenge is based on an alleged right to be governed by a complete system of dispute resolution, adjudicative processes and laws for handling Family Law matters that is independent of Ontario’s court system, processes and laws. This broad claim has raised basic preliminary issues about the appropriate forum for decision-making and the applicable laws. These are precisely the types of disputes that conflict of laws principles are intended to address.” (para 53)

I think the reaction to this analysis will be mixed. It seems possible that a court could have held exactly the opposite: that conflict of laws principles have nothing at all to do with the objections raised by the respondent. Instead, some form of public or constitutional law analysis is required to determine whether the respondent’s objections to Ontario jurisdiction and law are valid. But I also understand that some scholars have suggested an approach that accords with the court’s: that private international law principles can be used to address conflicts within one jurisdiction between the domestic legal system and indigenous legal systems or approaches. See for example Sara L. Seck, “Treaties and The Emancipatory Potential of International Law” in Michael Coyle and John Borrows, eds, The Right Relationship: Reimagining the Implementation of Historical Treaties (Toronto: University of Toronto Press, 2017).

Readers of this blog might be interested in Roxana Banu, “A Relational Feminist Approach to Conflict of Laws” (2017) 24 Mich. J. Gender & L. 1.  It can be accessed through SSRN at this location.

The specific context is transnational surrogacy arrangements, but much of the article goes beyond that to other areas of the field more generally.  The article engages with work by several other scholars who write about theories or philosophies of private international law.

The Abstract is below.

—

Feminist writers have long engaged in critiques of private law. Surrogacy contracts or the “reasonable man” standard in torts, for example, have long been the subjects of thorough feminist analysis and critique. When private law issues touch on more than one jurisdiction, Conflict of Laws is the doctrine that determines which jurisdiction can try the case and—as separate questions—which jurisdiction’s law should apply and under what conditions a foreign judgment can be recognized and enforced. Yet, there are virtually no feminist perspectives on Conflict of Laws (also known as Private International Law). This is still more surprising when one considers that feminist approaches to Public International Law have been developing for over a quarter century.

In this Article, I show that there is a fundamental need to rethink the image of the transnational individual in Conflict of Laws theory and methodology. It is here, I argue, that feminism—specifically relational, often known as cultural, feminism—has an important contribution to make to Conflict of Laws. I develop a relational feminist approach to Conflict of Laws and apply it to a pressing contemporary issue, namely transnational surrogacy arrangements.

Overall, this Article shows how relational feminism can illuminate the problems of adopting an atomistic image of the individual in a transnational context, as well as provide an outline for an alternative—a relational theory of the self that redefines autonomy and the law, creating an important shift in how Conflict of Laws perceives its regulatory dimensions. The Article connects three of relational feminism’s core insights—the notion of relational autonomy, the focus on relationships, and relational theories of judging—to Conflict of Laws theory and methodology.

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

The Regional Court Korneuburg has opened a main insolvency proceeding – not a secondary insolvency proceeding that the German provisional administrator has applied for – on the assets of NIKI Luftfahrt GmbH in Austria (see here). Therefore, it obviously shares the view of the Regional Court of Berlin that NIKI’s COMI is located in Austria and not Germany.

However, it will be possible to lodge an appeal (“Rekurs”) against the Regional Court’s decision within the next 14 days.

As the German Federal Court of Justice still has to decide about the appeal against the ruling of the Regional Court of Berlin, we now see a main (preliminary) insolvency proceeding in Germany and one in Austria. It is not entirely clear under the EIR how to deal with such a positive conflict of jurisdiction. Depending on the decision of the German Federal Court it might just dissolve (if it locates NIKI’s COMI in Austria as well). Otherwise it should be – from my point of view – solved by cooperation and coordination in the spirit of Art. 42 EIR between the German and Austrian courts.

Interestingly the Regional Court Korneuburg has stated that since the decision of the Regional Court of Berlin no main insolvency proceeding is upheld in Germany. However, the Regional Court of Berlin has stated that, due to the fact that it has admitted an appeal (“Rechtsbeschwerde”) to the German Federal Court against its ruling, it has no legal force yet (see here).

Cour d'appel de Paris, Pôle 1 - Chambre 7, 30 novembre 2017

Pourvoi c/ Cour d'appel de Toulouse - 4e chambre, section 1, chambre sociale , 30 juin 2017

Tribunal d'Instance de Villejuif, 29 décembre 2017

Pourvoi c/ Cour d'appel de Versailles, 9eme chambre, 23 novembre 2016

Une règlementation nationale qui ne permet pas à l’avocat et à son client de convenir d’une rémunération d’un montant inférieur au montant minimal fixé par une organisation professionnelle d’avocats est susceptible de restreindre le jeu de la concurrence dans le marché intérieur au sens de l’article 101, § 1, du Traité sur le fonctionnement de l’Union européenne (TFUE).

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Following the entry into force of the new Insolvency Regulation across the European Union in June 2017, the MPI Luxembourg has released a book guiding practitioners and national lawmakers through the implementation of the new rules. The title corresponds to volume 10 of the Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law collection (320 pp., ISBN 978-3-8487-4448-0).

The book is the result of a 2-year research project, co-funded by the European Commission under the Specific Programme “Civil Justice” and co-led by the MPI Luxembourg together with the Universities of Vienna and Milano. The project aimed to evaluate the changes that were brought to the European Insolvency Regulation in order to keep pace with the substantial developments in domestic law.

Beyond providing an overview of these changes and expected problems that lay ahead, the book puts forth a series of guidelines and recommendations to facilitate the application and interpretation of the new Regulation. It covers the three primary advancements of the Regulation:

(1) pre-insolvency proceedings that discourage liquidation in favour of rescue and restructuring;

(2) procedural instruments which facilitate the administration of complex cross-border insolvencies and, thus, reduce the opening of inefficient parallel insolvency proceedings via the strengthening of procedural cooperation;

(3) a procedural mechanism designed to reinforce coordination of corporate group insolvencies.

The book bridges the gap between academia and practice. Judges and practitioners, including representatives of the German Ministry of Justice, were invited to actively contribute to the discussions and enhanced the academic dialogue. Some of their inputs are published as well in the Annex to the book.

The table of contents can be found here.

 

Approaches to Procedural Law. The Pluralism of Methods, edited by Professors Loïc Cadiet, Burkhard Hess and Marta Requejo Isidro (552 pp., ISBN 978-3-8487-4309-4) corresponds to volume 9 of the Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law collection.

As explained in the foreword the book is the final outcome of the second edition of the MPI-IAPL Post-doctoral Summer School in procedural law, which took place at the Max Planck Institute premises in July 2016. Guiding thread of the book are two complementary reflections: On the one hand, modern procedural law is characterized by its openness to comparative and international perspectives. On the other hand, the aperture of procedural science requires a new approach of research, which has to be based on a comparative methodology. In this context, particular attention was paid to recent trends characterizing the field: Europeanization and harmonization, marking the evolution towards a new, cross-border dimension of Procedural Law; and the growing importance of transnational legal relations in all spheres of civil and commercial which obliges to face the new challenges of procedural law across national borders.

The book gathers the contributions of young post-doc whose research focus on European and comparative procedural law, as well as on relevant dispute mechanisms for civil controversies, and those of the Professors who shared with them the summer-school experience.

You can access the table of contents here.

It is my pleasure to announce in this and the following entries the publication of three new volumes of the Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, starting with volume 8, edited by Professors B. Hess and X. Kramer.

From common rules to best practices in European Civil Procedure

 

2017, 486 p., ISBN 978-3-8487-4219-6

Click here to access the table of contents

Abstract:

What road should procedural innovation take? Twenty years after the adoption of the extended competence in the area of judicial cooperation under the Amsterdam Treaty, numerous instruments on European civil procedure have been developed and enacted by the EU legislature, and applied by national courts. There is no doubt that these instruments have built a genuine Judicial Area where citizens and businesses can rely on operating justice systems and functioning cross-border cooperation. While it remains important to study these legislative instruments and, where necessary, to establish new instruments, civil procedure in the EU has entered a new era in which the development of common standards and best practices in the Member States and at the EU level are of the essence.

The theme of the present book is inspired by the shift in focus from the establishment of new legislation with common rules to a focus on the actual implementation, application, and operationalization of the rules on cooperation in civil justice. While the discussion of common rules continues to be important and has regained importance as a result of the “common minimum standards” initiative of the European Parliament, some papers in this book also focus on how to move beyond common rules and towards best practices. These “best practices” in applying European instruments, implementing new pathways to civil justice – including eJustice, alternative dispute resolution (ADR) and collective redress — and the operationalizing of judicial cooperation, for instance through the European Consumer Centres and the European Judicial Network, give body to the principles of mutual trust and judicial cooperation. These can in turn feed the further development of the European civil procedure framework from the bottom up.

Part I is a general part dedicated to common standards of EU civil procedure, focusing on the harmonization of civil procedure and judicial cooperation in general. The central questions of this part concern whether there is a need for common standards of EU civil procedure, how to identify them, and whether we need harmonization to achieve harmonious cooperation.

The chapters included in Part II of the book are organized around the question as to whether and how innovative mechanisms for dispute resolution can enhance cooperation in the field of civil justice. E-Justice has been one of the spearheads of the European Commission to improve access to justice, with the establishment of the e-justice portal as the main achievement.

Part III is dedicated to alternative dispute resolution. Encouraging and improving Alternative Dispute Resolution (ADR) mechanisms, in particular for consumers, is another focal point in EU policy to simplify access to justice in recent years, and has resulted in the Directive on Consumer ADR48 and the Regulation on Consumer Online Dispute Resolution (ODR) along with the establishment of the ODR platform.

Part IV includes a number of short chapters on best practices in the EU to operationalize judicial operation and to improve mutual trust.

With contributions from more than 20 experts from practice and academia this remarkable conference volume offers valuable blueprints for a reinvigorated judicial cooperation.

Le gouvernement a diffusé aux associations une note de synthèse présentant le projet de loi asile-immigration. Le texte sera présenté par Emmanuel Macron lors de son discours à Calais et devrait être adopté en conseil des ministres courant février. 

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In Fu v. Fu, 2017 IL App (1st) 162958-U, a father brought a claim against his son to revoke an unconditional gift of $590,000 that he donated to his son for the later to pursue an EB-5 Visa to immigrate to the US. Both parties are Chinese citizens and the defendant is currently a resident of Massachusetts. The gift agreement was entered into in China, drafted in Chinese and contained a clause specifying PRC law should apply. The money was held by the International Bank of Chicago. The plaintiff brought the action in Illinois.
Under the US Law (Title 8 of the Code of Federal Regulations, § 204.6) a foreign national must invest at least $500,000 in the US to be considered for an EB-5 Visa, and must ‘show that he has invested his own capital obtained through lawful means.’ (Matter of Ho, 22 I&N Dec. 206, 210 (AAO 1998)) After a few denied EB-5 approval, the plaintiff sought to recover the money, by claiming that the defendant was estranged from his parents, including the donor and refused to support them, and the purpose of the gift contract was for the defendant to obtain an EB-5 Visa but the defendant failed to do so.
Under the Illinois law, a valid gift requires ‘delivery of the property by the donor to the donee, with the intent to pass the title to the donee absolutely and irrevocably, and the donor must relinquish all present and future dominion and power over the subject matter of the gift.” (Pocius v. Fleck, 13 Ill. 2d 420, 427 (1958)). Furthermore, the gift agreement between the parties also used the language that the gift was ‘unconditional’. However, the plaintiff argued that under the PRC law, gifts may be revocable after the transfer of ownership, if the donee ‘has the obligation to support the donor but does not fulfil it’, or a donnee ‘does not fulfill the obligations as stipulated in the gift agreement.’ (PRC Contract Law, Art 192)
The Appellate Court of Illinois First Judicial District affirmed the judgment of the circuit court of Cook County that the gift agreement was irrevocable. The plaintiff failed to successfully prove Chinese law. And even if the plaintiff properly pled PRC law, such interpretation was ‘oppressive, immoral, and impolitic’. Under the US law on EB-5 Visa application, the foreign citizen must prove ownership of those funds to be eligible for an EB-5 Visa. The signed agreement stating the gift ‘unconditional’ would help the defendant to prove he legally owned the funds to acquire an EB-5 visa. If the governing PRC law indeed allows a gift to be given unconditionally and revoked after delivery and acceptance, as argued by the plaintiff, it would facilitate a deception on the US Government and is against public policy.
The full judgment can be found here.

Pourvoi c/ Cour d'appel de Reims, Chambre correctionnelle, 23 juin 2017

Pourvoi c/ Cour d'appel de Paris, Chambre 5-12, 05 décembre 2017

Pourvoi c/ Cour d'appel de Douai, chambre 2, 29 juin 2017

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

The Spanish airline Vueling Airlines S.A is still intending to acquire large parts of the NIKI business. Vueling is part of the European aviation group IAG, which also includes British Airways, Iberia, Aer Lingus and LEVEL. The provisional insolvency administrator of NIKI Luftfahrt GmbH, therefore, will continue to drive the sales process. Vueling has provided interim financing of up to € 16.5 million to finance the NIKI business until the closing of the purchase agreement. This funding is only sufficient for a few weeks.

Meanwhile, NIKI has lodged an appeal with the Federal Court against the ruling by the Regional Court of Berlin. Due to the legal complaint of the NIKI management against the decision, it does not have legal force yet. The preliminary insolvency proceeding in Germany therefore continues.

NIKI is expected to apply for the opening of secondary insolvency proceedings in Austria by the end of the week, as well. According to the provisional insolvency administrator of NIKI this procedure is an important step to ensure the orderly processing of NIKI in Austria. In addition, the purchase agreement for the NIKI business should now be secured at short notice via this Austrian secondary process.

It remains to be seen how the German Federal Court deals with the question of the rebuttal of the assumption that NIKI’s COMI is located in Austria (the place of its registered office). It is even possible that the ECJ has to deal with this question for a second time after the Eurofood IFSC (Case C-341/04) case. As we will probably see a secondary proceeding commenced in Austria (NIKI seems to be one of the rare cases where the insolvency administrator of the main proceeding finds the commencement of a secondary proceeding useful for the success of the administration) we might even witness the application of some of the new rules of the EIR on the cooperation and coordination of main and secondary proceedings.

Coman e.a.
Citoyenneté européenne
Selon l’avocat général Wathelet, la notion de « conjoint » comprend, au regard de la liberté de séjour des citoyens de l’Union et des membres de leur famille, les conjoints de même sexe

Les articles 27 et 30 de la Convention de Lugano du 30 octobre 2007 doivent être interprétés en ce sens que, en cas de litispendance, la date à laquelle a été engagée une procédure obligatoire de conciliation devant une autorité de conciliation de droit suisse constitue la date à laquelle une « juridiction » est réputée saisie.

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