Agrégateur de flux

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has just released the final French and English versions of the draft Guide to Good Practice on Article 13(1)(b) of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention) for the attention of the Special Commission meeting of October 2017 on the practical operation of the 1980 Child Abduction Convention and of the 1996 Child Protection Convention.  A Spanish translation of the document is also available.

Further information relating to the Special Commission meeting is available here: https://www.hcch.net/en/publications-and-studies/details4/?pid=6545&dtid=57

In my view, this topic will likely spark some debate at the meeting given the heightened awareness of some of the pitfalls of the Child Abduction Convention in relation to cases of domestic violence. See, for example, Taryn Lindhorst and Jeffrey L. Edleson, Battered Women, their Children, and International Law – the Unintended Consequences of the Hague Child Abduction Convention (Boston: Northeastern University Press, 2012) and Honourable Brenda Hale (Baroness Hale of Richmond), “Taking Flight—Domestic Violence and Child Abduction”, Current Legal Problems (13 August 2017).

Please note that the meeting above-mentioned is open only to delegates or experts designated by the Members of the Hague Conference, invited non-Member States and International Organisations that have been granted observer status.

It does not happen too often that (the notion of) European Private International Law hits the front pages of the daily news. But on Friday it happened: Germany’s foremost (conservative) newspaper, the Frankfurter Allgemeine Zeitung (FAZ), addressed A.G. Saugmandsgaard’s recent opinion on the recognition of private (Sharia) divorces under the Rome III Regulation. In so doing the FAZ expressly pointed out, on page 1, that it was unclear whether “European rules on choice of law (“Europäisches Kollisionsrecht”) actually applied in the case at bar.

The A.G.’s full opinion according to which the Rome III Regulation (if it applies at all) does not allow a private divorce to be recognized as valid where the applicable foreign law is discriminatory, is available here (in a number of languages, but not in English). The official press release can be downloaded here.

Written by Veerle Van Den Eeckhout

In February 2017, the working paper “Internationaal privaatrecht in tijden van globalisering. “Neutraal” internationaal privaatrecht!?”) of Veerle Van Den Eeckhout was posted on ssrn. This paper was written in Dutch.

Meanwhile, an English, slightly extended version of the paper (“Private International Law in an Era of Globalisation. “Neutral” Private International Law? I could be brown, I could be blue, I could be violet sky”) has been made available.

The abstract reads as follows: “In times of (discussions about) globalisation, due attention must be given to the operation of rules of private international law. Examination of the ongoing developments in private international law itself and in private international law in its interaction with other disciplines from the perspective of “protection of weak parties” and “protection of planetary common goods” allows carrying out the analysis to which current developments invite.”

The English paper can be found here.

I reported earlier on Saugmandsgaard ØE’s opinion in Cases C‑168/16 and C‑169/16, Nogueira et al and Osacar v Ryanair. The CJEU yesterday held and as I put it in immediate comment on the case reported in the FT, the Court’s view clearly resonates with the current mood against social dumping.

The case here ostensibly concerns jurisdiction only, however the Rome I Regulation includes mandatory protection of the employee guaranteed by the laws of the same place where (s)he habitually carries out his /her work. Hence a finding in the context of the Brussels I Recast inevitably has an impact on applicable law, too.

Firstly the Court has no mercy for the limiting choice of court agreement in the relevant contracts (at 53): in the case of employment contracts, a jurisdiction clause cannot apply exclusively and thus prohibit the employee from bringing proceedings before the courts which have jurisdiction under the protective regime of the Brussels I Recast.

The Court then essentially reiterates its AG: The concept of ‘place where the employee habitually carries out his work’ must be interpreted as referring to the place where, or from which, the employee in fact performs the essential part of his duties vis-à-vis his employer (at 59). Referring to its earlier case-law, the Court reiterates that national courts must, in particular, determine in which Member State is situated (i) the place from which the employee carries out his transport-related tasks, (ii) the place where he returns after his tasks, receives instructions concerning his tasks and organises his work, and (iii) the place where his work tools are to be found. (at 63). The place where the aircraft aboard which the work is habitually performed are stationed must also be taken into account (at 64).

The CJEU’s judgment then zooms in particularly on the notion of ‘home base’, a term used in relevant EU civil aviation law. The concept of ‘place where, or from which, the employee habitually performs his work’ cannot be equated with any concept referred to in another act of EU law (at 65).  However that does not mean that it is irrelevant to determine the place from which an employee habitually carries out his work. In fact, the Court held, the concept is likely to play a significant role in the identification of place of habitual employment in cases as these (at 69). In fact, taking account of the facts of each of the present cases, it would only be if applications, such as those at issue in the main proceedings, were to display closer connections with a place other than the ‘home base’ that the relevance of the latter for the identification of ‘the place from which employees habitually carry out their work’ would be undermined (at 73).

Nationality of the aircraft is summarily dismissed at 75, as being of any relevance at all.

At 62, the Court, importantly, also wars against fraudulent forum shopping: ‘That circumstantial method makes it possible not only to reflect the true nature of legal relationships, in that it must take account of all the factors which characterise the activity of the employee (see, by analogy, judgment of 15 March 2011, Koelzsch, C‑29/10, EU:C:2011:151, paragraph 48), but also to prevent a concept such as that of ‘place where, or from which, the employee habitually performs his work’ from being exploited or contributing to the achievement of circumvention strategies (see, by analogy, judgment of 27 October 2016, D’Oultremont andOthers, C‑290/15, EU:C:2016:816, paragraph 48 and the case-law cited).‘

The case now goes back to Mons howeer as has been reported, it is almost inconceivable for that court not to find Charleroi to be the place of habitual employment. Despite Ryanairs bravado, it is clear this judgment blows a hole in its regulatory strategy.

Geert.

(Handbook of) EU Private International Law, 2nd ed 2016, Chapter 2, Heading , Chapter 3, Heading 3.2.5.

Michael Broeders and Ulrike Verboom have excellent overview of the decision back in May by the Amsterdam Court of Appeal not to recognise the Russian liquidation order of 1 August 2006 regarding OAO Yukos Oil Company. The refusal to recognise is based on ordre public: in particular, a finding was made that the Russian order contravenes the principles of due process hence also ordre public. Reference was made in extenso to decisions by the European Court of Human rights against Russia in related cases in 2011 and 2014.

Michael and Ulrike also refer to previous case-law of the Dutch Supreme Court which held that on the basis of the lex concursus (here: Russian), there is no principled objection to the Russian trustee in bankruptcy to exercise his powers as such trustee in The Netherlands.

Geert.

Yummie: Dutch High Court asks the European Court of Justice for assistance in qualifying anti-avoidance /fraudulent conveyance mechanisms. (Guest blog in Dutch).

Corporate Finance Lab

De Nederlandse Hoge Raad stelde op 8 september het Europese Hof van Justitie enkele interessante prejudiciële vragen over de Peeters/Gatzen-vordering (ECLI:NL:HR:2017:2269). Voor hen die er het raden naar hebben wie die Peeters of Gatzen dan wel zijn, eerst een korte toelichting. De andere lezers kunnen gelijk naar de navolgende alinea’s scrollen.

In eerdere posts wezen we al op de actio pauliana als techniek van schuldeisersbescherming. Ze laat schuldeisers, en na faillissement de boedel, toe om handelingen niet-tegenwerpelijk te laten verklaren, mits voldaan is aan bepaalde voorwaarden. We noemen hier omwille van de bondigheid enkel de voornaamste twee:

• de ene voorwaarde is verhaalsbenadeling: het beslag op het schuldeisersvermogen wordt bemoeilijkt of uitgehold, bijvoorbeeld omdat de schuldenaar goederen wegschenkt aan vrienden;
• de andere voorwaarde is het zogenoemde subjectief element: de schuldenaar heeft de bestreden handeling verricht met “wetenschap van benadeling” of zelfs “bedrieglijke intentie”.

Soms is de pauliaanse niet-tegenwerpelijkheid…

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Un juge trop lent peut-il être réprimandé par son supérieur ? Le débat agite la magistrature allemande.

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