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Pesticide Action Network Europe e.a.
Agriculture
Protection phytosanitaire : les États membres ne peuvent pas déroger aux interdictions expresses de mise sur le marché et d’utilisation de semences traitées à l’aide de produits phytopharmaceutiques contenant des néonicotinoïdes

This post was contributed by Catherine Kessedjian, Professor Emerita of the University Paris Panthéon-Assas and Chair of the ADI/ILA 2023 Organising Committee.

In a judgment of 16 November 2022 (pourvoi n° 21-17.338), the French Supreme Court for private and criminal matters (Cour de cassation) addressed, among many other issues, the application of anational norms such as the Unidroit Principles on International Commercial Contracts.

This post will only focus on this issue.

Background

Conforama, a French Company, was contractually linked to Mab Ltd, a US company until the latter became bankrupt. Two creditors of Mab Ltd made a “saisie conservatoire” in Conforama’s hands of a certain sum that it owed to Mab Ltd. However, Conforama declared that Mab Ltd did owe it another sum of money (via several invoices issued by Conforama) and intended to apply “compensation” (set-off of debts) between the two sums in order to reduce the amount that it would have to pay to the creditors.

The Paris Commercial Court (First Instance) (Tribunal de commerce de Paris, 19 June 2019, n°2008006861) decided that Conforama’s invoices were issued without cause. Consequently, it ordered Conforama to pay the entire sum due to Mab Ltd.

Conforama appealed to the Paris Court of Appeal.

Legal Issue: Applicable Law to the contracts

At the centre of the controversy are several contracts between Conforama and Mab Ltd, from 2004 onward, titled “Commercial Cooperation” according to which Conforama issued the contested invoices. Article 4.2 of these contracts provided for set-off. French law is very strict when it comes to these types of contracts because they have led to abuses in the past. Particularly, former Article L.442-6 of the commercial Code provided that, in absence of proven counterpart, these contracts were to be declared null and void. The provisions on restrictive practices are now codified in Articles L. 442-1 to L. 442-4 of the Commercial Code (see in particular Article L 442-1 I 1°).

In this context, in order to avoid the application of French Law, Conforama argued that its cooperation contracts with Mabs were regulated by “general principles of law as applied to international commercial relations together with usages of international commerce” (translation of a quote made by the Court of Appeal out of Conforama’s brief). In addition, Conforama pointed out to Article 17 of the supplier contract of 15 July 2004 and Article 11 of its general terms and conditions of purchase of 14 October 2004 and also to the Unidroit Principles (Disclaimer: we did not have access to the exact wording of these contractual documents).

However, according to Conforama’s opponents, the cooperation agreement of 10 January 2006 referred to (former) Article 1289 of the French civil code on set-off of debts (cf. current Article 1347 of the French civil code).

The question of the applicable law to a “commercial cooperation” contract, was at the centre of the dispute with the following sub-questions: (a) what method should apply to define the applicable law when the contract is silent? (b) is the theory of “goup of contacts” helpful for applicable law purposes? (c) what role can play anational rules of law?

Application of the 1980 Rome Convention by the Court of Appeal

From this complicated contractual picture, the Court of Appeal rendered a very well-motivated decision centred on the mandatory character of French Law on the type of services Conforama pretended to invoice Mab Ltd (Paris, 30 March 2021, 19/15655). Wisely, the Court did not enter into the discussion on the matter of the ‘group of contracts’ theory or on the matter of the applicability of anational law. It simply said that the cooperation agreement did not include an applicable law provision and that the Rome Convention of 1980 (applicable ratione temporis) led the court to apply French law. Since the provisions of French law are mandatory, there was no need to go further into the arguments presented by Conforama.

Exclusion of Unidroit Principles by the Court of Cassation

At the level of the Court of cassation, Conforama altered slightly its story. Its argument can be summarised as follows. First, it argued that Unidroit Principles might be applied even though they are not mentioned expressly in a contract. Second, it insisted on the ‘group of contracts’ theory and argued that applicable law clauses contained in some other contracts did apply to all contracts that are related, including the “cooperation agreement”. Third, even if the court did decide that the contract did not include a proper choice of law clause, the cooperation contract is closely related to the distribution agreement and must be regulated by the same law.

In an unusual move for a decision that confirms the appellate decision, the Court starts with a broad pronouncement (§14 of the decision) and decides that (a) general principles applicable to international contracts, such as the Unidroit principles, may not be considered as “law” and (b) that they may not be chosen by the parties to regulate their contract according to article 3.1 of the Rome Convention of 1980.

Critical Assessment

First, this pronouncement was not necessary to the decision of the Court. It is an obiter dictum. The Court could have, as did the Paris Court of Appeal, decided that the Unidroit Principles did not apply in the case at hand (and limited its pronouncement to that) because they were simply not referenced in the contract that, apparently (although this is only implied in the discussion of the facts by the Court of Appeal) was silent on the applicable law. The Court could also reach the same decision on the basis of the mandatory nature of the applicable French provisions. Therefore, it had two avenues to confirm the Court of appeal decision without making a strong, bold, broad and overarching declaration.

Instead, for an unknown reason or out of sheer conservatism and strict positive law conception, the Court reverses years of understanding under French law (see already in that sense, Cour de cassation, 13 January 2021, 19-17.157), or at least in French doctrine, that under French law, general principles such as the Unidroit Principles could indeed have some application.

In addition, and more importantly, it was always understood that freedom of contract allowed parties to reference such non-state rules of law. This is reflected in Recital 13 of the preamble to the Rome I Regulation that reads as follows:

This Regulation does not preclude parties from incorporating by reference into their contract a non-State body of law or an international convention.

It is true that such a reference is not very common in practice. Indeed, parties may run a risk by limiting their choice of law to a non-State body of law either because that document is incomplete or would not cover the very question underlying the dispute, or because of the lack of case law to ascertain proper interpretation of these rules.

A final remark as to the effect of that part of the decision by the Court of cassation: it is rendered under the 1980 Rome Convention and not the Rome I Regulation. Strictly speaking, the Court will have to change its decision the next time it will be confronted with a similar provision in a contract regulated by Rome I. Indeed, under the Regulation, it is clear that the Court would not be able to say that parties are not allowed to choose non-State body of law as the applicable law to their contract.

La transposition en droit français de la directive (UE) 2019/1023 n’a pas modifié les dispositions édictées par l’article L. 632-2 du code de commerce en matière de nullités de la période suspecte. Dès lors, ces dispositions ne doivent pas être interprétées à la lumière de la directive.

Sur la boutique Dalloz Droit et pratique des procédures collectives 2023/2024 Voir la boutique Dalloz

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Par un arrêt du 11 janvier 2023, la première chambre civile se prononce sur le cas de compétence exclusive énoncée par l’article 24, § 3, du règlement Bruxelles I bis relatif aux registres publics.

Sur la boutique Dalloz Droit et pratique de la procédure civile 2021/2022 Voir la boutique Dalloz

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Thanks to Alberto Pomari, JD Candidate at the University of Pittsburgh School of Law, for his assistance with this post.

Two cases slated for Supreme Court’s 2024 term could boost the enforcement of foreign arbitral awards in the United States. On Friday January 13, 2023, the U.S. Supreme Court granted certiorari and consolidated the cases of Yegiazaryan v. Smagin and CMB Monaco v. Smagin. Both present the question of when an injury is foreign or domestic for purposes of RICO civil applicability. Beyond this statutory issue, however, the Supreme Court’s decision will have consequences for the enforcement of foreign arbitral awards too.

The Racketeer Influenced and Corrupt Organizations Act (“RICO”) enables private individuals injured by a racketeering violation to bring a civil suit and recover treble damages if he was “injured in his business or property.” In RJR Nabisco, Inc. v. European Cmty., the U.S. Supreme Court upheld the federal presumption against extraterritoriality to limit RICO’s private right of action to only those injuries that are “domestic” in their nature. However, no definition or test was provided to draw a bright line between domestic and foreign injuries.

In Yegiazaryan v. Smagin, the defendant (Yegiazaryan) is a Russian businessman living in California. The plaintiff (Smagin) commenced arbitration proceedings against him in London and was awarded $84 million. In 2014, Smagin successfully filed to recognize and enforce the award against Yegiazaryan in the U.S. district court where Yegiazaryan now resides. In 2020, Smagin filed a RICO action against Yegiazaryan alleging that he and various associates attempted to conceal $198 million from Smagin, which inevitably “injured in his business or property.” Specifically, Smagin alleged that his U.S. judgment confirming this prior foreign arbitral award against Yegiazaryan is intangible property located in the United States, thus making any injury thereto eligible for a RICO civil claim even though he lives abroad.

As to the location of intangible property for purposes of RICO injuries, circuits have split. The Seventh Circuit adopted the residency test, according to which an injury to intangible property must occur in the place where the plaintiff has its residence. Accordingly, a foreign-resident plaintiff like Smagin always suffers foreign injuries to intangible property and cannot recover under RICO. The Third Circuit rejected the residency test in favor of a holistic, six-factor test, with particular emphasis on where the plaintiff suffers the effect of the injurious activity. The Ninth Circuit in the Smagin cases adopted a totality-of-the-circumstances test similar to the Third Circuit’s one, yet with a particular emphasis on the defendant’s conduct. Indeed, the court concluded that Smagin had pleaded a domestic injury because much of the defendant’s alleged misconduct took place in California and the U.S. judgment confirming the foreign award could be executed against the defendant only in California.

The case also has implications for the enforcement of foreign judgments and arbitral awards in the United States. If a U.S. judgment recognizing a foreign judgment or confirming a foreign arbitral award are considered property in the United States, then RICO violations committed in the process of trying to avoid enforcement of the U.S. judgment may give rise to civil liability.

A new issue of the Revue Critique de Droit International Privé (4/2022) is out.

It contains one essay, one briefing note on the accession of the EU to the Hague Judgments Convention (by Y. El Hage, Lyon 3 University), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Journey to Europa?).

In a comprehensive article, Symeon C. Symeonides (Alex L. Parks Distinguished Research Professor and Dean Emeritus, Willamette University College of Law) explores possible ways of reforming EU conflict-of-laws rules in torts (Rome II et la responsabilité délictuelle transfrontière : une nécessaire refonte).

Developments since the adoption of Regulation Rome II have demonstrated the need to extend the logic of Article 7 beyond environmental torts to other categories of cross-border torts. Recognizing this need, the Legal Affairs Committee of the European Parliament (JURI) proposed a similar pro-victim rule for one category of cross-border torts — those involving human rights violations — which would give victims even more choices than Article 7. Likewise, two academic groups, the Group européenne de droit international privé (GEDIP) and the European Law Institute (ELI), have also proposed a similar pro-plaintiff rule for these conflicts. This essay supports these proposals, but also goes beyond them by proposing a rule that would encompass all cross-border torts, in addition to environmental torts and those involving human rights violations. The essay will be soon available in English on Dalloz website.

More information is available here.

Dans le cadre d’un contrat de quasi-régie, le critère tenant à ce que le pouvoir adjudicateur exerce un contrôle conjoint avec d’autres pouvoirs adjudicateurs sur une personne morale, analogue à celui qu’ils exercent sur ses propres services, ne saurait être rempli au seul motif que siège au conseil d’administration de cette personne morale le représentant d’un autre pouvoir adjudicateur qui fait également partie du conseil d’administration du premier pouvoir adjudicateur.

Sur la boutique Dalloz Les grands arrêts de la Cour de justice de l’Union européenne Voir la boutique Dalloz

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La Commission de protection des données irlandaise (CPD) a rendu deux décisions le 31 décembre 2022, clôturant deux enquêtes sur les opérations de traitement des données de Meta Platforms Ireland Limited (Meta Ireland)1, relatives à la base légitime de traitement en matière de publicité comportementale dans le cadre de la fourniture de ses services Facebook et Instagram.

Sur la boutique Dalloz Code de la protection des données personnelles 2023, annoté et commenté Voir la boutique Dalloz

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With my co-authors Professor Franco Ferrari and Friedrich Rosenfeld, I am pleased to announce the publication of my newest work, “Recognition and Enforcement of Foreign Arbitral Awards: A Concise Guide to the New York Convention’s Uniform Regime.” It is available for order here.

This incisive book is an indispensable guide to the New York Convention’s uniform regime on recognition and enforcement of foreign arbitral awards. Framing the Convention as a uniform law instrument, the book analyses case law from major arbitration jurisdictions to explain its scope of application, the duty to recognize arbitral agreements and awards as well as their limitations, and the procedure and formal requirements for enforcing arbitral awards.

Combining insight from arbitration practice with perspectives from private international law, the book underlines the importance of the Convention’s foundation in a treaty of international law, arguing that this entails a requirement to interpret the key concepts it sets forth based on international law rules of interpretation. However, it also demonstrates where municipal laws are relevant and discusses the private international law principles through which these instances can be identified.

Addressing one of the core treaties of international arbitration, this will be crucial reading for legal practitioners and judges working in the field. It will also prove valuable to scholars and students of commercial and private international law, particularly those focused on cross-border disputes and arbitration.

The third issue for the Journal of Private International Law for 2022 was published today. It contains the following articles:

K Takahashi, “Law Applicable to Proprietary Issues of Crypto-Assets”

Crypto-assets (tokens on a distributed ledger network) can be handled much in the same way as tangible assets as they may be held without the involvement of intermediaries and traded on a peer-to-peer basis by virtue of the blockchain technology. Consequently, crypto-assets give rise to proprietary issues in the virtual world, as do tangible assets in the real world. This article will consider how the law applicable to the proprietary issues of crypto-assets should be determined. It will first examine some of the cases where restitution was sought of crypto-asset units and consider what issues arising in such contexts may be characterised as proprietary for the purpose of conflict of laws. Finding that the conventional connecting factors for proprietary issues are not suitable for crypto-assets, this article will consider whether party autonomy, generally rejected for proprietary issues, should be embraced as well as what the objective connecting factors should be. GV Calster, “Lis Pendens and Third States: the Origin, DNA and Early Case-Law on Articles 33 and 34 of the Brussels Ia Regulation and its “forum non conveniens-light” Rules” The core European Union rules on jurisdiction have only in recent years included a regime which allows a court in an EU Member State temporarily or definitively to halt its jurisdiction in favour of identical, or similar proceedings pending before a court outside the EU. This contribution maps the meaning and nature of those articles, their application in early case-law across Member States, and their impact among others on business and human rights litigation, pre and post Brexit. F Farrington, “A Return to the Doctrine of Forum Non Conveniens after Brexit and the Implications for Corporate Accountability” On 1 January 2021, the European Union’s uniform laws on jurisdiction in cross-border disputes ceased to have effect within the United Kingdom. Instead, the rules governing jurisdiction are now found within the Hague Convention 2005 where there is an exclusive choice of court agreement and revert to domestic law where there is not. Consequently, the doctrine of forum non conveniens applies to more jurisdictional issues. This article analyses the impact forum non conveniens may have on victims of human rights abuses linked to multinational enterprises and considers three possible alternatives to the forum non conveniens doctrine, including (i) the vexatious-and-oppressive test, (ii) the Australian clearly inappropriate forum test, and (iii) Article 6(1) of the European Convention on Human Rights. The author concludes that while the English courts are unlikely to depart from the forum non conveniens doctrine, legislative intervention may be needed to ensure England and Wales’ compliance with its commitment to continue to ensure access to remedies for those injured by the overseas activities of English and Welsh-domiciled MNEs as required by the United Nation’s non-binding General Principles on Business and Human Rights. A Kusumadara, “Jurisdiction of Courts Chosen in the Parties’ Choice of Court Agreements: An Unsettled Issue in Indonesian Private International Law and the way-out”

Indonesian civil procedure law recognises choice of court agreements made by contracting parties. However, Indonesian courts often do not recognise the jurisdiction of the courts chosen by the parties. That is because under Indonesian civil procedure codes, the principle of actor sequitur forum rei can prevail over the parties’ choice of court. In addition, since Indonesian law does not govern the jurisdiction of foreign courts, Indonesian courts continue to exercise jurisdiction over the parties’ disputes based on Indonesian civil procedure codes, although the parties have designated foreign courts in their choice of court agreements. This article suggests that Indonesia pass into law the Bill of Indonesian Private International Law that has provisions concerning international jurisdiction of foreign courts as well as Indonesian courts, and accede to the 2005 HCCH Choice of Court Agreements Convention. This article also suggests steps to be taken to protect Indonesia’s interests.

 

Mohammad Aljarallah, “The Proof of Foreign Law before Kuwaiti Courts: The way forward”

The Kuwaiti Parliament issued Law No. 5/1961 on the Relations of Foreign Elements in an effort to regulate the foreign laws in Kuwait. It neither gives a hint on the nature of foreign law, nor has it been amended to adopt modern legal theories in ascertaining foreign law in civil proceedings in the past 60 years. This study provides an overview of the nature of foreign laws before Kuwaiti courts, a subject that has scarcely been researched. It also provides a critical assessment of the law, as current laws and court practices lack clarity. Furthermore, they are overwhelmed by national tendencies and inconsistencies. The study suggests new methods that will increase trust and provide justice when ascertaining foreign law in civil proceedings. Further, it suggests amendments to present laws, interference of higher courts, utilisation of new tools, reactivation of treaties, and using the assistance of international organisations to ensure effective access and proper application of foreign laws. Finally, it aims to add certainty, predictability, and uniformity to Kuwaiti court practices.

 

CZ Qu, “Cross Border Assistance as a Restructuring Device for Hong Kong: The Case for its Retention”

An overwhelming majority of companies listed in Hong Kong are incorporated in Bermuda/Caribbean jurisdictions. When these firms falter, insolvency proceedings are often commenced in Hong Kong. The debtor who wishes to restructure its debts will need to have enforcement actions stayed. Hong Kong does not have a statutory moratorium structure for restructuring purposes. Between 2018 and 2021, Hong Kong’s Companies Court addressed this difficulty by granting cross-border assistance, in the form of, inter alia, a stay order, to the debtor’s offshore officeholders, whose appointment triggers a stay for restructuring purposes. The Court has recently decided to cease the use of this method. This paper assesses this decision by, inter alia, comparing the stay mechanism in the UNCITRAL Model Law on Cross Border Insolvency. It concludes that it is possible, and desirable, to continue the use of the cross-border assistance method without jeopardising the position of the affected parties.

 

Z Chen, The Tango between the Brussels Ia Regulation and Rome I Regulation under the beat of directive 2008/122/EC on timeshare contracts towards consumer protection

Timeshare contracts are expressly protected as consumer contracts under Article 6(4)(c) Rome I. With the extended notion of timeshare in Directive 2008/122/EC, the question is whether timeshare-related contracts should be protected as consumer contracts. Additionally, unlike Article 6(4)(c) Rome I, Article 17 Brussels Ia does not explicitly include timeshare contracts into its material scope nor mention the concept of timeshare. It gives rise to the question whether, and if yes, how, timeshare contracts should be protected as consumer contracts under Brussels Ia. This article argues that both timeshare contracts and timeshare-related contracts should be protected as consumer contracts under EU private international law. To this end, Brussels Ia should establish a new provision, Article 17(4), which expressly includes timeshare contracts in its material scope, by referring to the timeshare notion in Directive 2008/122/EC in the same way as in Article 6(4)(c) Rome I.

 

Review Article

CSA Okoli, The recognition and enforcement of foreign judgments in civil and commercial matters in Asia

Many scholars in the field of private international law in Asia are taking commercial conflict of laws seriously in a bid to drive harmonisation and economic development in the region. The recognition and enforcement of foreign judgments is an important aspect of private international law, as it seeks to provide certainty and predictability in cross-border matters relating to civil and commercial law, or family law. There have been recent global initiatives such as The Hague 2019 Convention, and the Commonwealth Model Law on Recognition and Enforcement of Foreign Judgments. Scholars writing on PIL in Asia are making their own initiatives in this area. Three recent edited books are worthy of attention because of their focus on the issue of recognition and enforcement of foreign judgments in Asia. These three edited books fill a significant gap, especially in terms of the number of Asian legal systems surveyed, the depth of analysis of each of the Asian legal systems examined, and the non-binding Principles enunciated. The central focus of this article is to outline and provide some analysis on the key contributions of these books.

Espagne / Commission
Relations extérieures
La Cour annule la décision de la Commission ayant admis la participation du Kosovo à l’organe des régulateurs européens des communications électroniques

On 15 December 2022, the UK Government launched an open consultation on its plan for the United Kingdom to become a Contracting State to the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Judgments Convention).

As part of the decision-making process on becoming a Contracting State, the Government is looking to gather wide-ranging perspectives, especially from who have experience of current cross-border litigation.

Based on the overall analysis, the Government will make a final decision on signing and ratifying and any declarations to be made, and commence the necessary processes to ensure that this can be achieved within a reasonable timescale, in consultation with the Devolved Administrations.

The Convention would be implemented in UK domestic law under the terms of the Private International Law (Implementation of Agreements) Act 2020, subject to appropriate parliamentary scrutiny. The Convention would enter into force for the United Kingdom 12 months after the date it deposits its instrument of ratification.

The consultation, which consists of 14 questions, is meant to remain open for eight weeks, that is, until 9 February 2023.

Further details concerning submissions are available here.

A paper summarising the responses to this consultation will be published in spring 2023. The response paper will be available on-line at gov.uk.

Dear fellow Members of the European Association of Private International Law, have you paid your annual fees?

If you haven’t, please take a moment to do so! All you need to know in this respect can be found here.

We are aware that, in the past, some of you have had troubles paying their fees by credit card, through PayPal. While we renew our sincere apologies to all those affected, we are happy to report that the EAPIL PayPal form is up and running. It is available here.

Payment by bank transfer is also possible. Please refer to this page to learn about the relevant details.

Please remember that, according to the Statutes of the Association, membership is renewed automatically every year, unless terminated by the member concerned using this form.

Those who have failed to pay the fees due last year, may now do so by the same means indicated above. Just follow the procedure twice, if you pay by PayPal. If you prefer to proceed with a bank transfer, just make a transfer for the the entire amount due.

Invoices are issued for all payments.

If you need further information or require assistance, please refer to the Treasurer of the Association, Apostolos Anthimos, at treasurer@eapil.org.

The editors of the European Yearbook of International Economic Law (EYIEL) welcome abstracts from scholars and practitioners at all stages of their career for the EYIEL 2023. This year’s focus section will be on European and International (Public) Procurement and Competition Law. Next to this, in Part II the EYIEL will consider Current Challenges, Developments and Events in European and International Economic Law.

For the Focus Section, abstracts may cover any topic relating to (public) procurement and competition law in the field of European and international economic law, though preference is given to topics focusing on the international perspective. We particularly welcome contributions addressing the following aspects:

• the WTO (Internal) Procurement Regime, 
• the UN Procurement Regime,
• the EU Procurement Regime,
• General International (Public) Procurement,
• the EU Competition Law Regime,
• the International Competition Law Regime.

For the General Section, abstracts shall address topics which are currently of relevance in the context of European and International Economic Law. Similarly, reviews of case-law or practices and developments in the context of international organisations are encouraged.

Abstracts should not exceed 500 words. They should be concise and clearly outline the significance of the proposed contribution. Abstracts together with a short bio note maybe submitted until 28 February 2023 via e-mail to eyiel@leuphana.de.

Successful applicants will be notified at the latest by 1 April 2023, that their proposal has been accepted. They are expected to send in their final contribution by 31 July 2023.

Final submissions will under go peer review prior to publication. Given that submissions are to be developed on the basis of the proposal, that review will focus on the development of the paper’s central argument.

Submissionsaddressingparticularregionalandinstitutionaldevelopmentsshould be analytical and not descriptive. Due to its character as a yearbook, the EYIEL will not publish articles which will lose their relevance quickly. Submissions should not exceed 12,000 words(including footnotes and references), though preference may be given to shorter submissions. They should include an abstract and a biographical note. Submissions need to be in conformity with the EYIEL style guidelines.

The editors of the EYIEL welcome informal enquiries about any other relevant topic in the field of international and European economic law. In case you have an idea or proposal, please submit your enquiry via e-mail to eyiel@leuphana.de.

On 22 December 2022, the CJEU ruled on the concept of civil and commercial matters in Eurelec Trading & Scabel v. (French) Ministre de l’Economie et des Finances (case C‑98/22). The case, which is not (yet?) available in English, is discussed by Geert van Calster here.

The case was again concerned with an action based on the power of a Member State to regulate anti-competitive practices. The court had already addressed the issue in Movic (case C‑73/19).

Background

The case was concerned with an action before French courts initiated by the French State (the Ministry of Economy) against two Belgian companies (Eurelec Trading and Scabel) and several French entities. The action aimed at declaring that certain practices of the defendants were anti-competitive in the meaning of French law. The remedies sought were a declaration that the practices were anti-competitive, an injunction to stop such practices, and the ordering of a fine to be paid by the offenders (for more on the facts in English, see the report by Geert van Calster).

The Belgian defendants challenged the jurisdiction of French courts on the ground that the action of the French State did not fall within the scope of the Brussels I bis Regulation, as it did not belong to civil and commercial matters. The Paris court of appeal referred the matter to the CJEU.

Judgment

As is well known, the CJEU has long defined the concept of civil and commercial matters by focusing on the powers of the relevant person (typically a public authority) and investigating whether those powers differ from the powers that private actors enjoy and are thus exorbitant compared to the latter.

In Eurelec, the CJEU discusses two separate issues. The first is the remedies sought before the French court.  The second is the method for gathering evidence.

The CJEU starts with the method used by the French State to gather evidence. It insists that, in the case at hand, the evidence was obtained by a search of French authorities in the defendants’ premises and by seizing certain documents. Although the court notes that the search was authorised by a court, it rules that such searches are an exorbitant power, as they could not have been conducted by private parties. It finally insists that obstructing such a search would be a criminal offence under French law.

With respect to the remedies, the CJEU rules that there is nothing exorbitant in seeking a declaration of violation of competition law, or an injunction from refraining from violating competititon law. It recalls that actions from a public authority seeking such remedies were found to belong to civil and commercial matters in Movic.

In contrast, the CJEU finds that an action for the ordering of a fine is exorbitant and is thus public power. It notes that, in addition, under French law, such action may only be initiated by the Ministry of Justice.

The CJEU concludes that the action of the Ministry of Justice fell entirely outside the scope of the Brussels I bis Regulation.

Assessment

The judgment is not fully convincing.

The most unsatisfactory part is the reason relating to the gathering of evidence. The proposition that it is not possible for private parties to obtain judicial authorisation to search the premises of the opponents and to seize evidence of offences against competition law or indeed torts (IP violations) is simply wrong. Such remedies are available in private disputes in many Member States: saisie-contrefaçon in France (IP violations), search orders (previously Anton Pillar orders) in common law jurisdictions. The judgment does not identify any critical difference between these orders/remedies and the specific power afforded to the French Ministry of Justice to conduct searches on the basis of a judicial authorisation. It is interesting to note that the Ministry of Justice seemed to have implicitly accepted that there was a critical difference, as it argued that the test for defining the concept of civil and commercial matters should not have been how the evidence was gathered, but how it was used in the proceedings.

The argument that obstruction to searches are criminal offences is also pretty weak. In a number of Member States, obstruction to any attachement/seizure, whether carried out by a private party in a private case or by a public authority, will be a criminal offence.

The argument on the remedies sought is more convincing. One can see how an action to fine a particular offender could appear as a public power (though that conclusion will have to be revisited if punitive damages develop in the EU). But then there is no reason to exclude the other remedies from the scope of the Brussels I bis Regulation. The judgment should thus have been that only the action seeking a fine fell outside of the scope of the Regulation.

The Federal Court Legislation Amendment Rules 2022 (Cth) (‘Amendment Rules’) came into force on 13 January 2023. Among other things, they amend the Federal Court Rules 2011 (Cth) (‘FCR’) by repealing division 10.4, which dealt with service outside Australia. The Amendment Rules replace the old division 10.4 with a new one, which brings the Federal Court’s approach to service outside Australia into alignment with all other Australian jurisdictions, except for Western Australia and the Northern Territory.[1]

The previous approach to service outside Australia in the Federal Court

Historically, Australia’s superior courts have not been uniform in their approach to service outside the jurisdiction and outside Australia. The Federal Court’s approach was somewhat unique. Unlike the position in some of the State Supreme Courts,[2] leave to serve outside Australia[3] was required before service (FCR r 10.43(2)). Nonetheless, if leave was not obtained beforehand, service could be confirmed after the fact if sufficiently explained (FCR r 10.43(6)–(7)).

Leave to serve turned on three conditions: the court had subject matter jurisdiction, the claim was of a kind mentioned in the rules, and the party had a prima facie case for any or all of the relief claimed: FCR r 10.43(4). Even if those elements were satisfied, the court may have refused leave to serve in exercise of a ‘residual discretion’: Tiger Yacht Management Ltd v Morris (2019) 268 FCR 548, [100].

The second element, that the claim is of a kind mentioned in the rules, directed attention to FCR r 10.42. That rule set out pigeonholes or connecting factors that are familiar grounds of direct jurisdiction. For example, service may be permitted for a proceeding based on a cause of action arising in Australia (item 1), or where the defendant has submitted to the jurisdiction (item 19).

Some of the connecting factors might be described as exorbitant. For example, service may have been permitted where the proceeding was ‘based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring)’ (item 5). Reid Mortensen, Richard Garnett and Mary Keyes commented, ‘[i]n effect, [this ground of service] allows service outside Australia merely because of the plaintiff’s personal connection—usually be reason of residence—with the forum, despite the complete absence of any connection between the events or the defendant on the one hand, and the forum on the other’.[4]

Combined with Australian courts’ unique approach to forum non conveniens (see Puttick v Tenon Ltd (2008) 238 CLR 265), the FCR provided plenty of room for establishing personal jurisdiction over foreign defendants in matters with foreign elements, even where those matters had strong connections to foreign jurisdictions. That position continues under the new approach effected by the Amendment Rules in the amended FCR.

The new approach

The Amendment Rules provide in a note to the new div 10.4: ‘t]his Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee’. Those rules have been in force in New South Wales and other Australian jurisdictions for a some years. When the rules changed in New South Wales in late 2016, Vivienne Bath and I explained the significance for that State: Michael Douglas and Vivienne Bath, ‘A New Approach to Service Outside the Jurisdiction and Outside Australia under the Uniform Civil Procedure Rules’ (2017) 44(2) Australian Bar Review 160.

As regards the Federal Court, considering the previous approach, some of the notable changes include the following.

First, in most cases, leave is not required before service, provided that the case comes within the scope of (new) defined grounds of direct jurisdiction: FCR r 10.42.

Second, the grounds of direct jurisdiction have changed: FCR r 10.42. Many of the changes seemingly involve a simple a re-wording or a re-structure rather than anything radical, although I am sure that the case law will tease out differences of substance in coming months.

One of the new grounds is worth highlighting. The new FCR r 10.42(j) provides:

(j)  if the proceeding arises under a law of the Commonwealth, a State or a Territory, and:

(i)  any act or omission to which the proceeding relates was done or occurred in Australia; or

(ii)  any loss or damage to which the proceeding relates was sustained in Australia; or

(iii)  the law applies expressly or by implication to an act or omission that was done or occurred outside Australia in the circumstances alleged; or

(iv)  the law expressly or by implication confers jurisdiction on the Court over persons outside Australia (in which case any requirements of the law relating to service must be complied with);

FCR r 10.42(j)(iii) could provide a basis for jurisdiction over subject matter with very limited connection to Australia, provided an Australian legislature has sufficiently extended the territorial operation of a statute. This pigeonhole could give rise to some more interesting questions about the proper approach to identification of the applicable law where forum statutes are involved in the Australian context.[5]

Third, even if the proceeding does not come within one of the grounds of direct jurisdiction, service outside Australia may still be permitted with leave: FCR r 10.43. Leave requires the Court to be satisfied that the proceeding has a real and substantial connection with Australia, Australia is an appropriate forum for the proceeding, and in all the circumstances the Court should exercise jurisdiction: FCR r 10.43(4)(a)–(c).

Fourth, once a person is served outside Australia, that person may apply to stay or dismiss the proceeding, or set aside service: FCR r 10.43A(1). The Court may make an order to that effect if satisfied service of was not authorised by these Rules, Australia is an inappropriate forum for the proceeding, or the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending it: FCR r 10.43A(2)(a)–(c). This mechanism is introduced with the title, ‘Court’s discretion whether to assume jurisdiction’.

The second ground, that Australia is an inappropriate forum, turns on application of the ‘clearly inappropriate forum’ test of the Australian forum non conveniens doctrine: Chandrasekaran v Navaratnem [2022] NSWSC 346, [5]–[8]; Sapphire Group Pty Ltd v Luxotico HK Ltd [2021] NSWSC 589, [77]–[80]; Studorp Ltd v Robinson [2012] NSWCA 382, [5], [62].

Fifth, if service on a person outside Australia in accordance with the new provisions was not successful, the party may apply to serve the person substituting another method of service: FCR r 10.49(a). This may prove particularly useful for applicants chasing rogues who have absconded overseas. It might allow for service on a person outside Australia by email or even social media, contrary to historical practice: see  Yemini v Twitter International Company [2022] FCA 318, [5].

Comment

I expect that the Amendment Rules will be welcomed by litigators who frequent the Federal Court of Australia. Doing away with the need to seek leave in advance will increase efficiency and save some costs. Lawyers on the east and south coasts may appreciate not having to be across substantive differences as regards long-arm jurisdiction between the Federal Court and State Supreme Courts. (Those in glorious Western Australia continue to be in a different / superior position.)

Private international law scholars may be less enthusiastic. Writing on the 2016 equivalent reforms in New South Wales, Andrew Dickinson lamented the tenuous connection that could justify long-arm jurisdiction under the amended Uniform Civil Procedure Rules 2005 (NSW). Among other things, he noted that the ‘service without leave’ approach means that considerations of forum non conveniens might only arise if an application is brought by a person served contesting jurisdiction (under the equivalent of the new FCR r 10.43A(1)), costing them time and cost with respect to a matter with minimal connection to the forum.[6] That would be a fair objection to the new position in the Federal Court. I would argue, however, that the Federal Court’s new approach to long-arm service is a sensible innovation to better equip the Court to deal with the realities of modern commercial life (see Abela v Baadarani [2013] 1 WLR 2043, [53]). Australian courts are increasingly called on to deal with matters with a foreign element—their rules should adapt accordingly.

One of the more significant impacts of the Amendment Rules will concern a case that is currently before the High Court of Australia: Facebook Inc v Australian Information Commissioner & Anor (Case S 137/2022). Jeanne Huang and I previously blogged other decisions that have ultimately led to this appeal. Among other things, the American company behind Facebook (now Meta Platforms Inc) is challenging its service outside Australia in a proceeding brought by Australia’s privacy regulator in the wake of the Cambridge Analytica scandal. The rules on which the appeal depends are no longer in force. If the High Court’s previous grant of special leave to appeal is maintained, the forthcoming decision will be a new leading authority on long-arm jurisdiction in Australia.

Dr Michael Douglas is a Senior Lecturer at the University of Western Australia and a Consultant at Bennett, a litigation firm in Western Australia

 

[1] Civil Procedure Rules 2006 (ACT) div 6.8.9; Supreme Court Rules 2000 (Tas) div 10; Supreme Court Civil Rules 2006 (SA) pt 4 div 2; Supreme Court (General Civil Proceedings) Rules 2015 (Vic) O 7 pt 1; Uniform Civil Procedure Rules 1999 (Qld) pt 7 div 1; Uniform Civil Procedure Rules 2005 (NSW) pt 11, sch 6..

[2] Leave to serve is still required in the Supreme Court of Western Australia. See Rules of the Supreme Court 1971 (WA) Order 10. See further M Davies, AS Bell, PLG Brereton and M Douglas, Nygh’s Conflict of Laws in Australia (LexisNexis Butterworths, 20th ed, 2020) ch 3.

[3] Except with respect to service in New Zealand. See Trans-Tasman Proceedings Act 2010 (Cth).

[4] Reid Mortensen, Richard Garnett and Mary Keyes, Private International Law in Australia (LexisNexis Butterworths, 4th ed, 2019) 63–4.

[5] See Michael Douglas, ‘Does Choice of Law Matter?’ (2023) Australian International Law Journal (forthcoming).

[6] Andrew Dickinson, ‘In Absentia: The Evolution and Reform of Australian Rules of Adjudicatory Jurisdiction’ in Michael Douglas, Vivienne Bath, Mary Keyes and Andrew Dickinson (eds), Commercial Issues in Private International Law (Hart, 2019) 13, 42.

Le Conseil d’État apporte deux précisions sur les dispositions règlementaires du code du sport en matière de procédure disciplinaire devant l’Agence française de lutte contre le dopage.

Sur la boutique Dalloz Les grands arrêts de la jurisprudence administrative Voir la boutique Dalloz

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The latest issue of the Dutch Journal on Private International Law (NIPR) has been published.

Editorial

M. Zilinsky / p. 629-630

 

Article

E.N. Frohn & I. Sumner, Protecting vulnerable adults across borders: where do we stand? / p. 631-649

Abstract

The first meeting of the Special Commission to review the practical operation of the 2000 Hague Convention took place from 9-11 November 2022, after writing this publication. In preparation for this meeting, a questionnaire was send to the Member States of the Conference. One of the questions addressed to the non contracting states of the 2000 Convention was of that state is considering joining the 2000 Convention. The Netherlands replied that there is no urgent need to become a contracting party, pointing out that the rules of the treaty are applied in practice.

This article concerns the Hague Convention of 13 January 2000 on the International Protection of Adults in relation to the Dutch standard practice of anticipating application of this Convention. Furthermore, this article will provide information on the European view regarding the international protection of vulnerable adults.

 

Case note

K.J. Krzeminski, Actio iudicati onder de Brussel I-bis Vo: een open deur of een geopend ‘achterdeurtje’? HvJ EU 7 april 2022, ECLI:EU:C:2022:264, NIPR 2022, 288 (J/H Limited) / p. 650-659

Abstract

In J v. H Limited, the CJEU has held that a decision rendered by an EU Member State court on the basis of a third country judgment (actio iudicati) may, under certain circumstances, qualify as a ‘judgment’ within the meaning of Article 2(a) Brussel I-bis Regulation, thereby opening the door to EU-wide recognition and enforcement. This article explores the implications of the decision for cross-border enforcement, in particular of judgments rendered in Dutch proceedings on the basis of Article 431(2) of the Dutch Code of Civil Procedure.

In the case Rzecznik Praw Dziecka and Others, C-638/22 PPU, a Polish court asks the Court of Justice in essence whether, in accordance with the Brussels II Regulation and The 1980 Hague Convention on the Civil Aspects of International Child Abduction, a Member State may provide for the possibility of an appeal in cassation (in practice: a third judicial instance) involving a stay of enforcement of a final return order on a simple application by one of the public entities entitled to lodge such an appeal.

AG Emiliou states from the outset that this question calls for a negative answer. His Opinion explains why this is the case.

A summary of the facts of the case reported here case has been already posted online by Marta Requejo Isidro so I am happy to refer to her contribution.

The urgency of the matter has compelled the Court to submit the case, at the request for the referring court, to the urgent preliminary ruling procedure provided for in Article 107 of the Rules of Procedure of the Court of Justice.

I might add that the provision of national law that made the aforementioned stay of enforcement possible entered into force on 24 June 2022 and the request for a preliminary ruling has been brought before the Court of Justice already on 13 October 2022.

Concerning the preliminary question itself, in his Opinion, AG Emiliou recognizes that the 1980 Hague Convention and the Brussels II bis Regulation do not unify the procedural rules applicable to return applications based on that Convention. Those issues are left to the procedural law of the Member State where a request for a return order is made (point 52).

Nevertheless, the competence of the Member States has its limits. For AG Emiliou, those limits are not respected by the Polish provision in question.

Advocate General argues that by adopting the provision in question, the Polish legislator has exceeded the limits of its competence: he has rendered the return proceedings ineffective. Furthermore, in doing so, the legislator has also limited the fundamental right to respect for family life and the fundamental right to an effective remedy of the parent requesting the return, despite there being no compelling justification for such limitation and the negative consequences it entails (point 54).

All those aspects are addressed in a detailed manner in the Opinion, so there is still a lot to unpack.

The Opinion is available here (so far only in French).

On 20 January 2023, the University of Strasbourg will host a conference on the private international law aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA) organised by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

This conference is structured in two parts. The first part will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Speakers include Frédérique Berrod, Stéphanie Carre, Tobias Lutzi, Yves El Hage and Nurten Kansu Okyay.

The conference will be held both in site and online. The full program and details about the location and registration can be found here.