I discussed this case with my students the day the judgment came out. Copy of the judgment has travelled with me far and wide. Yet I only now find myself getting round to posting on Anas v Facebook, at the courts at Würzburg back in February. Mr Anas came from Syria as a refugee and took a famous selfie with Frau Merkel. The photo later came to haunt him as fake news sites used it in connecting with accusations of terrorism. Mr Anas thereupon sued Facebook, requesting it to act more swiftly to remove the various content reporting on him in this matter. The Würzburg court obliged. I understand that in the meantime Mr Anas has halted further action against FB which I am assuming includes the appeal which FB must have launched.
Now, the interest for this blog lies not in the issue of fake news, but rather the jurisdictional grounds for the ruling. Mr Anas sued Facebook Ireland, not Facebook Inc. The latter, I would suggest, he might have done on the basis of the Brussels I Recast’s provisions on consumer contracts – albeit that the conditions for that title might not be fulfilled if Mr Anas became a FB user in Syria.
The court did not entertain the consumer title. It did uphold its jurisdiction on the basis of Article 7(2) of the Recast, as lex loci damni. (But without consideration of the Shevill limitation). Awkwardly, it then lest my German fails me, goes on to determine its internal jurisdiction on the basis of German civil procedure law. Plaintiff was domiciled in Berlin; not Würzburg. The judgment therefore turns into the proverbial cake and eating it: Article 7(2) does not just lay down jurisdiction for a Member State: it also identifies the very court in that MS that has jurisdiction. It cancels out internal rules of jurisdiction. With Mr Anas’ domicile in Berlin, Wurzburg as locus damni is not immediately obvious.
German speakers, if I am not reading this right please do comment.
Geert.
(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.
The Private International Law Group from the School of Law of Carlos III University of Madrid (Universidad Carlos III de Madrid, www.uc3m.es) is delighted to announce its International Congress on matters of matrimonial property regimes and property consequences of registered partnerships (from 16-17 November 2017).
Young researchers are invited to submit their papers about the subject of the Congress. Abstracts, either in Spanish or English (Word format) must be sent to mjcastel@der-pr.uc3m.es (deadline: 30th September 2017), including:
-Name and surname
-Affiliation of the submitting researcher
-Short biographical note (no more than 500 words)
-Title and Summary of the proposed paper (no more than 800 words)
The abstracts will be reviewed by the following Committee:
Alfonso L. Calvo Caravaca, Professor of Private International Law (Carlos III University of Madrid).
Esperanza Castellanos Ruiz, Associate Professor of Private International Law (Carlos III University of Madrid).
Juliana Rodríguez Rodrigo, Associate Professor of Private International Law (Carlos III University of Madrid).
The decision will be notified to the author by 15th October 2017
Successful applicants will present their papers into the Young Researchers Round Table (17th November 2017) and their papers may be published in the Journal Cuadernos de Derecho Transnacional.CDT (www.uc3m.es/cdt ).
The organization will not be responsible for the expenses of young researchers’ participation in the Congress.
La compétence du juge français ne peut pas être retenue, au titre du déni de justice, dans l’hypothèse où un juge étranger est déjà saisi du litige, même si une société française détient une partie du capital de la société étrangère contre laquelle l’action est intentée.
Back in March the the Child & Family Law Quarterly together with Cambridge Family Law hosted a conference on the the impact of Brexit on international family law (see our previous post). Some of the academic papers that were presented at this occasion have now been published in a special Brexit issue of the Child & Family Law Quarterly.
Here is the table of content:
L’article 13, point 5, du règlement Bruxelles I, considéré conjointement avec l’article 14, point 2, sous a), de ce règlement, doit être interprété en ce sens qu’une victime disposant d’une action directe contre l’assureur de l’auteur du dommage qu’elle a subi n’est pas liée par une clause attributive de juridiction conclue entre cet assureur et cet auteur.
La Cour de justice de l’Union européenne (CJUE) considère que le Tribunal de l’Union a correctement jugé qu’une initiative citoyenne européenne (ICE) ayant pour objectif d’effacer la dette publique des pays en état de nécessité ne peut être enregistrée.
Les règles de la directive Accueil du 26 juin 2013 relatives au placement en rétention d’un demandeur d’asile pour établir ou vérifier son identité ou sa nationalité ou lorsqu’il existe un risque de fuite sont compatibles avec le droit fondamental à la liberté.
Pourvoi c./ Cour d'appel de Paris, Pôle 5, 23 janvier 2017
Pourvoi c./ Cour d'appel d'Aix en Provence, 5e chambre correctionnelle, 8 février 2017
Cour d'appel de Versailles, 16e Chambre, 7 septembre 2017
Pourvoi c./ Cour d'appel de Paris, Pôle 5, 21 février 2017
Pourvoi c./ Cour d'appel de Nancy, 4ème Chambre des Appels Correctionnels, 12 janvier 2017.
Cour d'appel d'Amiens, Chambre Baux Ruraux, 12 septembre 2017
In Case C-372/16 Sahyouni SAUGMANDSGAARD ØE Opined Friday last (Opinion not yet available in EN at the time of writing of this post; the curia press release on the case helps). The case concerns the scope of application of Rome III, Regulation 1259/2010 (on enhanced co-operation Regulation on divorce and legal separation), as well as the application of its Article 10. This Article inserts the lex fori for the lex causae, where the lex causae as identified by the Regulation makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex.
In the previous Sahyouni Case C‑281/15, the request was considered inadmissible for lack of factual beef to the bone to allow the Court to apply its Dzodzi case-law (Joined Cases C‑297/88 and C‑197/89). In that case, the Court had held that the authors of the Treaty did not intend to exclude from the jurisdiction of the Court requests for a preliminary ruling on a provision of EU law in the specific case where the national law of a Member State refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that State and that, on the contrary, it is manifestly in the interest of the EU legal order that, in order to forestall future differences of interpretation, every provision of EU law should be given a uniform interpretation irrespective of the circumstances in which it is to be applied.
In the case at hand, Rome III is not generally applicable to decisions on divorce and legal separation issued by the authorities of third States. German residual private international law on the matter, however, makes it so applicable.
SAUGMANDSGAARD ØE first of all opines that the national court now does give the CJEU enough information for it to rule on the case. Contrary to what the German legislature
assumed, however, the AG suggests Rome III does not cover divorces which are declared without a constitutive decision of a court or other public authority, such as a divorce resulting from the unilateral declaration of a spouse which is registered by a religious court. Note that the AG for this purpose employs lex fori in the sense of EU law (the Regulation and its preparatory works), to determine whether such divorce is ‘private’ or not; not as might be considered an alternative in the case at hand, Syrian law. Those of us with an interest in Vorfrage may find this interesting.
Next, the AG does complete the analysis should the Court disagree with his view on scope of application. The question whether access to divorce provided for by the foreign law is discriminatory (this is the test of the aforementioned Article 10) must, in the view of the AG, be assessed in the abstract, and not specifically in the light of the circumstances of the case. Therefore, it suffices that the applicable foreign law be discriminatory by virtue of its content for it to be disapplied. This AG suggests that the EU legislature considered that the discrimination at issue, namely that based on the sex of the spouse, is so serious as to warrant unqualified rejection, without the possibility of exception on a case-by-case basis, of the entirety of the law which should have been applied in the absence of such discrimination. This interpretation differs from the standard application of another well-known mechanism, that of ordre public, where any assessment needs to be based on a case-by-case basis.
Finally, the AG examines whether the fact that the spouse discriminated against
possibly consented to the divorce allows the national court not to disapply the foreign law despite its discriminatory nature, and therefore to apply that law. He suggests that question be answered in the negative. The rule set out in Article 10 of the ‘Rome III’ Regulation, which is based on compliance with values considered to be fundamental, is mandatory in nature and therefore, as a result of the intention of the EU legislature, does not fall within the sphere in which the persons at issue can freely waive the protection of their rights.
A judgment to look out for.
Geert.
On 5/6 April 2018 Dr. Ana Mercedes López Rodríguez, Ph.D. and Dr. Katia Fach Gómez, LL.M will convene a conference to commemorate the 60th anniversary of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The conference will take place at University Loyola Andalucia (Seville/Spain) and is expected to comprise 3-4 Keynote Lectures and round tables with approximately 36 speakers.
Academics, practitioners and policymakers are invited to submit extended abstracts or unpublished full papers on the referred topic to the conference directors (amlopez@uloyola.es; katiafachgomez@gmail.com) by 30 November 2017. Practitioners at all stages of their careers and senior and junior scholars (including Ph.D. students) are encouraged to participate.
The Conference directors expect to publish an edited volume in English by a relevant legal publishing house containing the most relevant papers presented in the Conference.
Further information about the submission and publication process can be found here and at the Conference website.
The European Law Institute has approved and published its new instrument, the report on the Rescue of Business in Insolvency Law. The report is available on SSRN as well as on the website of the ELI. The abstract on SSRN reads as follows:
Since the global financial crisis, insolvency and restructuring law have been at the forefront of law reform initiatives in Europe and elsewhere. The specific topic of business rescue appears to rank top on the insolvency law related agenda of both the European Union (EU) and national legislators faced by a rapid growth of insolvencies, which clearly highlighted the importance of efficient mechanisms for dealing with distressed, but viable business. For the European Law Institute (ELI), this fuelled the momentum to launch an in-depth project on furthering the rescue of such businesses across Europe. The European Law Institute, established in 2011, is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. Building on the wealth of diverse legal traditions, ELI’s mission is the quest for better law-making in Europe and the enhancement of European legal integration. By its endeavours, ELI seeks to contribute to the formation of a more vigorous European legal community, integrating the achievements of the various legal cultures, endorsing the value of comparative knowledge, and taking a genuinely pan-European perspective. As such, its work covers all branches of the law: substantive and procedural; private and public (see http://www.europeanlawinstitute.eu/).
In September 2013, the ELI Council approved the proposal for a project on the ‘Rescue of Business in Insolvency Law’ (‘Business Rescue Project’) and appointed Prof. em. Bob Wessels (Leiden, Netherlands) and Prof. Stephan Madaus (Halle-Wittenberg, Germany) as Project Reporters to lead this two-stage project. The first stage comprised the drafting of National Inventory and Normative reports by National Correspondents (NCs) from 13 EU countries. In addition, Gert-Jan Boon, University of Leiden, prepared an inventory report on international recommendations from standard-setting organisations, such as UNCITRAL, the World Bank, the American Bankruptcy Institute or the Nordic-Baltic Business Rescue Recommendations, under the supervision of the Reporters. Based primarily on these detailed reports, the second stage consisted of drafting the ELI Instrument on Business Rescue (‘ELI Business Rescue Report’) that elaborates recommendations for a legal framework enabling the further development of coherent and functional rules for business rescue in Europe. After the Project Team finalised the draft Instrument in early 2017, ELI Fellows and Members of the ELI Council voted to approve the ‘ELI Business Rescue Report’ at the ELI General Assembly, representing ELI Members, and Annual Conference in Vienna (Austria) on 6 September 2017 with no objection. It consists of 115 recommendations explained on more than 375 pages. Oxford University Press will published it soon. The Report is electronically available here as well as on the website of the ELI.
The Rescue of Business in Insolvency Law project is timely and may have a significant and positive impact on the harmonisation efforts of the European Commission as laid down in the November 2016 Proposal for a Directive on preventive restructuring frameworks. The Report contains recommendations on a variety of themes affected by the rescue of financially distressed businesses: legal rules for practitioners and courts, contract law, treatment and ranking of creditors’ claims, labour law, laws relating to transaction avoidance and corporate law. The Report’s ten chapters cover: (1) Actors and procedural design, (2) Financing a rescue, (3) Executory contracts, (4) Ranking of creditor claims; governance role of creditors, (5) Labour, benefit and pension issues, (6) Avoidance transactions in out-of-court workouts and pre-insolvency procedures and possible safe harbours, (7) Sales on a going-concern basis, (8) Rescue plan issues: procedure and structure; distributional issues, (9) Corporate group issues, and (10) Special arrangements for small and medium-sized enterprises (SMEs) including natural persons (but not consumers). The Report also includes a glossary of terms and expressions commonly used in restructuring and insolvency law.
The topics addressed in the Report are intended to present a tool for better regulation in the EU, developed in the spirit of providing a coherent, dynamic, flexible and responsive European legislative framework for business rescue. Mindful of the European Commission’s commitment to better legal drafting, the Report’s proposals are formulated as comprehensibly, clearly, and as consistently as possible. Still, the recommendations are not designed to be overly prescriptive of specific outcomes, given the need for commercial flexibility and in recognition of the fact that parties will bargain in the ‘shadow of insolvency law’. The Report is addressed to the European Union, Member States of the EU, insolvency practitioners and judges, as well as scholars. The targeted group many times flows explicitly from the text of a recommendation or the context in which such a recommendation is developed and presented. The Reporters cherish the belief that the report will assist in taking a next, decisive step in the evolutionary process of the European side of business rescue and insolvency law.
En application de la convention franco-tunisienne du 28 juin 1972, un jugement tunisien n’est pas reconnu de plein droit en France s’il est contraire à une décision prononcée en France et y ayant l’autorité de la chose jugée.
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