Agrégateur de flux

La possibilité de surveillance effectuée par des enquêteurs privés pour le compte d’une compagnie d’assurance n’est pas suffisamment encadrée par la loi suisse et ne permet pas de prévenir les assurés contre d’éventuels abus. Cette surveillance s’analyse en une violation du droit à la vie privée de la requérante.

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Les autorités d’un État membre de l’Union peuvent remettre aux autorités judiciaires françaises un CD-Rom contenant la transcription d’écoutes téléphoniques réalisées à l’étranger sans demande préalable des autorités françaises et le juge français n’est pas compétent pour statuer sur la régularité de ces écoutes.

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In Endean v British Columbia, 2016 SCC 42 (available here) the Supreme Court of Canada has held that “In pan-national class action proceedings over which the superior court has subject-matter and personal jurisdiction, a judge of that court has the discretion to hold a hearing outside his or her territory in conjunction with other judges managing related class actions, provided that the judge will not have to resort to the court’s coercive powers in order to convene or conduct the hearing and the hearing is not contrary to the law of the place in which it will be held” (quotation from the court’s summary/headnote).

The qualifications on the holding are important, since some of the earlier lower court decisions had been more expansive in asserting the inherent power of the superior court to sit outside the province (for example beyond the class proceedings context).  I am concerned about any extraterritorial hearings that are not expressly authorized by specific statutory provisions, but I do appreciate the utility (from an efficiency perspective) of the court’s conclusion in the particular context of this dispute.  It remains to be seen if attempts will be made to broaden this holding to other contexts.

The court has also held that “A video link between the out-of-province courtroom where the hearing takes place and a courtroom in the judge’s home province is not a condition for a judge to be able to sit outside his or her home province. Neither the [class proceeding statutes] nor the inherent jurisdiction of the court imposes such a requirement. The open court principle is not violated when a superior court judge exercises his or her discretion to sit outside his or her home province without a video link to the home jurisdiction” (quotation from the court’s summary/headnote).

This aspect of the decision concerns me, since my view is that the open court principle requires that members of the Ontario public and the media can see the proceedings of an Ontario court in an Ontario courtroom.  It is a hollow claim that they can fly to another province to watch them there.  The separate concurring decision appreciates this aspect of the case more than the majority decision, though it too stops short of requiring a video link.  In its view, “While the court should not presumptively order that a video link back to the home provinces be set up where the court sits extraprovincially, members of the public, the media, or counsel can request that a video link or other means be used to enhance the accessibility of the hearing. If such a request is made, or the judge considers it appropriate, a video link or other means to enhance accessibility should be ordered, subject to any countervailing considerations” (quotation from the court’s summary/headnote).

Prescription ; Presse

Cautionnement - Cession de créance professionnelle

Photini Pazartzis, Maria Gavouneli (eds / a cura di), Reconceptualising the Rule of Law in Global Governance, Resources, Investment and Trade, Hart Publishing, 2016, ISBN  9781849468800, pp. 520, GBP 65.

The relevance and importance of the rule of law to the international legal order cannot be doubted and was recently reaffirmed by the Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Level’s solemn commitment to it on behalf of states and international organizations. In this edited collection, leading scholars and practitioners from the fields of global governance, resources, investment and trade examine how the commitment to the rule of law manifests itself in the respective fields. The book looks at cutting-edge issues within each field and examines the questions arising from the interplay between them. With a clear three-part structure, it explores each area in detail and addresses contemporary challenges while trying to assure a commitment to the rule of law. The contributions also consider how the rule of law has been or should be reconceptualised. Taking a multi-disciplinary approach, the book will appeal to international lawyers from across the spectrum, including practitioners in the field of international investment and trade law.

Registrations are now open for the 2017 summer courses at the Hague Academy of International Law. The private international law session will run from 31 July to 18 August 2017. The general course will be given by Horatia Muir-Watt. Special courses will be delivered by Burkhard Hess, Michael Karayanni, Alan Scott Rau, Andrés Rodrìguez-Benot, Francesco Salerno, Carmen Tiburcio and Patrick Wautelet. Geneviève Saumier and Laura Carballo Piñeiro will serve a directors of studies. The complete programme is available here.

Sono aperte le iscrizioni per i tradizionali corsi estivi di dell’Accademia di Diritto Internazionale dell’Aja. La sessione di diritto internazionale privato si svolgerà fra il 31 luglio e il 18 agosto 2017. Il corso generale sarà impartito da Horatia Muir-Watt, quelli speciali da Burkhard Hess, Michael Karayanni, Alan Scott Rau, Andrés Rodrìguez-Benot, Francesco Salerno, Carmen Tiburcio e Patrick Wautelet. Geneviève Saumier e Laura Carballo Piñeiro saranno i direttori degli studi. Il programma completo è disponibile qui.

Pourvoi c/ Juridiction de proximité d'Aix-en-Provence, 14 septembre 2016

Tribunal correctionnel de Montpellier, 17 octobre 2016

The European Association for Data Science (EuADS) will hold the first European Data Science Conference in Luxembourg on 7-8 November 2016. This interdisciplinary event is the inaugural conference of EuADS and aims to provide a setting for fostering communication among all stakeholders of Data Science in Europe. You may download the flyer of the conference here. Conference topics include, among others, the question of trust, transparency and provenance of data including where data come from and by which mechanisms trust in data might be achieved, as well as legal aspects of data science such as data protection, data privacy and data access. The conference will feature a symposium on “Legal dimensions of Data Science” with contributions by Burkhard Hess (MPI Luxembourg), Advocate General Pedro Cruz Villalón, Gerald Spindler (University of Göttingen), Mark D. Cole (University of Luxembourg) and Jan von Hein (University of Freiburg). The full programme is available here.

When I reviewed Szpunar AG’s Opinion in C-195/15 Mulhaupt /SCI Senior Home, I predicted (it’s a safe prediction, nothing whiz-bang about it) that the Court would probably come to the same conclusion in less words and with less references to the overall context.

It did. It cherry-picked the AG’s arguments and came to the same conclusion. Of particular note is its insistence, with the AG, that even though a derogation must be interpreted strictly, it is nonetheless appropriate to ensure that the exception is not deprived of its effectiveness.

Please refer to my review of the AG’s Opinion for more detail. Final conclusion: security created by virtue of a provision of national law, such as that at issue in the main proceedings, by which the real property of a person owing real property taxes is, by operation of law, to be subject to a public charge and that property owner must accept enforcement of the decision recording that tax debt against that property, constitutes a ‘right in rem’ for the purposes of that article.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.7.1 ).

On 23 October 2016, AG Szpunar delivered his opinion in the case of Agro Foreign Trade & Agency Ltd v Petersime NV (C‑507/15). He suggested the Court to rule as follows.

Article 17 of Directive 86/653/EEC on the coordination of the laws of the Member States relating to self-employed commercial agents requires mandatory protection of a commercial agent who carries out his activity in the internal market. It does not preclude a law of a Member State according to which such protection is not afforded for a commercial agent who carries out his activity outside the internal market.

Neither the 1963 Agreement establishing an Association between the European Economic Community and Turkey, nor the 1972 Additional Protocol thereto, preclude a law of a Member State according to which protection under Directive 86/653 is only afforded where a commercial agent carries out his activity in that Member State and not where a principal is established in that Member State and a commercial agent is established in and carries out his activity in Turkey.

L’Avvocato generale Szpunar ha presentato il 23 ottobre 2016 le sue conclusioni nella causa Agro Foreign Trade & Agency Ltd v Petersime NV (C‑507/15). A suo avviso, la Corte dovrebbe statuire quanto segue.

L’art. 17 della direttiva 86/653/CEE relativa al coordinamento dei diritti degli Stati Membri concernenti gli agenti commerciali indipendenti esige in termini imperativi la protezione dell’agente che svolge la propria attività nel mercato interno. Come tale, esso non è di ostacolo a una legge di uno Stato Membro che riconosca una simile protezione a un agente la cui attività si sviluppi al di fuori del mercato interno.

Né l’Accordo di associazione del 1963 tra la Comunità economica europea e la Turchia né il suo Protocollo addizionale del 1972 sono d’ostacolo a una legge di uno Stato Membro in forza della quale la protezione garantita ai sensi della Direttiva 86/653 opera solo nell’ipotesi in cui l’agente svolge la propria attività in detto Stato Membro e non invece nell’ipotesi in cui il preponente sia stabilito in tale Stato Membro e l’agente svolga la propria attività in Turchia.

The EBS Law School in cooperation with Clifford Chance will host the EBS Law School Arbitration Day on 18 November 2016 organized by Professor Dr. Matthias Weller and Dr. Alexandra Diehl.

The event will focus on the quest for improved systems of arbitration. Topics will be:

• Dispute Resolution in Asia: Dominated by the Singaporean Merlion?
• The Iran-United States Claims Tribunal: a role model for international arbitration?
• TTIP and CETA: On a Road to Nowhere or to Success?

The speakers are:

• Claudia Annacker, Cleary Gottlieb, Paris
• Simon Greenberg, Clifford Chance, Paris
• Elan Krishna, Clifford Chance, Singapore
• Dr. Cristina Hoss, Legal Adviser to Judge Bruno Simma, Iran-US Claims Tribunal, Den Haag
• Prof. Dr. R. Alexander Lorz, Secretary for Public Education, German State of Hesse, Wiesbaden
• Representative from US Consulate General Frankfurt
• Prof. Dr. André Schmidt, EBS Business School/University Witten-Herdecke
• Prof. Dr. Mathias Wolkewitz, General Counsel Legal, Taxes, Insurances, Wintershall AG

The lectures as well as the panel discussions will be in English. The event will start at 1.30 p.m. in Lecture Room “Sydney” at EBS Law School in Wiesbaden.

For further information and registration see here.

Symeon C. Symeonides, Choice of Law, Oxford University Press, 2016, ISBN 9780190496722, pp. 840, USD 225.

Choice of Law provides an in-depth sophisticated coverage of the choice-of-law part Conflicts Law (or Private International Law) in torts, products liability, contracts, forum-selection and arbitration clauses, insurance, statutes of limitation, domestic relations, property, marital property, and successions. It also covers the constitutional framework and conflicts between federal law and foreign law. The book explains the doctrinal and methodological foundations of choice of law and then focuses on its actual practice, examining not only what courts say but also what they do. It identifies the emerging decisional patterns and extracts predictions about likely outcomes.

As my review of Szpunar AG’s Opinion in Nikiforidis highlighted, on the issue of temporal applicability to continued contracts, the AG suggested along the lines of Rome I Article 10’s regime (the von Munchausen or the ‘bootstrap’ principle) that the lex causae has to determine the moment of ‘conclusion’.

The employment relationship at issue is conducted in Germany and subject to German law, which does not permit reductions in remuneration similar to those to which the Hellenic Republic had recourse (as a result of austerity).

The Court held last week and points out (at 20) that if the Rome I Regulation did not apply to the main proceedings, Article 34 of the EGBGB (the relevant provisions  of residual German private international law concerning contractual relationships) would permit it to take into account the overriding mandatory provisions of another State. Provisions like those are exactly why the UK and Luxembourg in particular (concerned about financial services contracts subject to their laws) insisted on Article 9 Rome I seriously constraining the room for manoeuvre of the forum.

Different from its AG, the Court squarely rejects (at 30) any role here for Article 10. In support, it refers to the original proposal of the European Commission with a view to the adoption of what eventually became Rome I. COM(2005) 650 referred to ‘contractual obligations’: ‘‘contractual obligations arising after its entry into application’; as opposed to the Regulation’s eventual use of ‘‘contracts’ concluded as from 17 December 2009.

At 34: ‘Whilst the reference, proposed by the Commission, to contractual obligations arising after the entry into application of that regulation covered, in addition to contracts concluded after its entry into application, the future effects of contracts concluded before then, that is to say, obligations arising from the latter after then, this is not so in the case of the wording of Article 28 of the Rome I Regulation, which covers exclusively contracts concluded on or after 17 December 2009, the date on which that regulation became applicable pursuant to Article 29 thereof. It follows that, contrary to what the referring court envisages, any agreement by the contracting parties, after 16 December 2009, to continue performance of a contract concluded previously cannot have the effect of making the Rome I Regulation applicable to that contractual relationship without thwarting the clearly expressed intention of the EU legislature.’

Now, I have admittedly only quickly scanned the travaux preparatoires in writing up this post, yet I do think the Court’s conclusion on this point may be misguided. It was Parliament which introduced ‘contracts’ as opposed to ‘contractual obligations’. It did so in response to the EC’s proposed sentence which read in full

‘It shall apply to contractual obligations arising after its entry into application. However, for contractual obligations arising before its entry into application, this Regulation shall apply where its provisions have the effect of making the same law applicable as would have been applicable under the Rome Convention of 1980.’

Parliament proposed lifting the first sentence into a separate Article and to drop the second sentence altogether, citing ‘Unlike in the case of torts and delicts, contracts are entered into deliberately and voluntarily. It is essential for the parties to know that the provisions on applicable law contained in this Regulation will apply only to contracts concluded after its date of application. Therefore proceedings brought after the date of application concerning contracts concluded before that date will apply the Rome Convention.’

This intervention therefore I believe was targeted at avoiding debates on equality between Rome I and Rome Convention outcomes. No indication was given that the change from ‘contractual obligations’ to ‘contract’ was of any specific relevance for the debate.

However, in the end that discussion in my view does not really matter because the Court itself does subsequently admit that its observation, that the Regulation cannot mean that ‘any, even minor, variation made by the parties, on or after 17 December 2009, to a contract initially concluded before that date were sufficient to bring that contract within the scope of the Rome I Regulation’ (at 35) , should not negate that

‘the possibility remains, as the Commission has pointed out in its written observations, that a contract concluded before 17 December 2009 may be subject, on or after that date, to a variation agreed between the contracting parties of such magnitude that it gives rise not to the mere updating or amendment of the contract but to the creation of a new legal relationship between the contracting parties, so that the initial contract should be regarded as having been replaced by a new contract, concluded on or after that date, for the purposes of Article 28 of the Rome I Regulation.’ (at 37).

Whether such ‘new legal relationship’ has been formed in casu, is down to the national court to decide. The CJEU does not give any indication whatsoever of what law is to guide that court in that decision. A European ius commune? I don’t see it. Lex fori? Perhaps. But that would encourage forum shopping. Lex causae? But the Court had dismissed Article 10 of having any relevance. I am at a loss.

Now, to the question of overriding mandatory requirements (please refer again to my review of Szpunar AG’s Opinion for context): here the Court I believe misses the mark. After pointing out, justifiably (and in contrast with the AG), that Article 9 needs to be interpreted restrictively, it holds that ‘the list, in Article 9 of the Rome I Regulation, of the overriding mandatory provisions to which the court of the forum may give effect is exhaustive. (at 49).

Check.

This means Article 9 of the Rome I Regulation must be interpreted ‘as precluding the court of the forum from applying, as legal rules, overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed. Consequently, since, according to the referring court, Mr Nikiforidis’s employment contract has been performed in Germany, and the referring court is German, the latter cannot in this instance apply, directly or indirectly, the Greek overriding mandatory provisions which it sets out in the request for a preliminary ruling.’ (at 50).

Check.

But then, at 52:

‘On the other hand, Article 9 of the Rome I Regulation does not preclude overriding mandatory provisions of a State other than the State of the forum or the State where the obligations arising out of the contract have to be or have been performed from being taken into account as a matter of fact, in so far as this is provided for by a substantive rule of the law that is applicable to the contract pursuant to the regulation.‘

And in conclusion, at 53:

Accordingly, the referring court has the task of ascertaining whether Laws No 3833/2010 and No 3845/2010 are capable of being taken into account when assessing the facts of the case which are relevant in the light of the substantive law applicable to the employment contract at issue in the main proceedings.

Err, here I really do not follow. Surely such de facto circumvention of Article 9’s restrictive scope, negates its effet utile. If and when a law other than the lex causae may be taken into account ‘as a matter of fact’, the Rome modus operandi is to say so: see in this respect in particular Article 17 Rome II. And what would ‘taking into account as a matter of fact’ mean for the case at issue?

Now you see it, now you don’t. In West Tankers the Court took effet utile to extreme length. Here it arguably entirely negates it. I am not convinced.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016. Chapter 2, Heading 2.2.8.3, Chapter 3, Heading 3.2.5 , heading 3.2.8.

Un demandeur d’asile turc, qui attendait depuis plus de douze ans la réponse à sa demande de protection déposée en Grèce, a obtenu gain de cause devant la Cour européenne des droits de l’homme (CEDH). Dans un arrêt du 13 octobre 2016, cette juridiction a jugé que l’article 8 de la Convention européenne des droits de l’homme (droit au respect de la vie privée et familiale) avait été violé.

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L’action en annulation de mariage introduite par un tiers postérieurement au décès de l’un des époux relève du champ d’application du règlement (CE) 2201/2003 du 27 novembre 2003, relatif à la compétence, la reconnaissance et l’exécution des décisions en matière matrimoniale et en matière de responsabilité parentale.

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Helmerich & Payne International v. Venezuela

On Wednesday, November 2, 2016, the Supreme Court will hear oral arguments in the case of Helmerich & Payne International v. Venezuela.  The Court granted certiorari to resolve a circuit split regarding the proper pleading standard needed to allege an expropriation claim for purposes of the Foreign Sovereign Immunities Act’s (FSIA) expropriation exception.  The FSIA provides that a foreign state and its agencies and instrumentalities “shall be immune from the jurisdiction” of federal and state courts except as provided by international agreements and by exceptions contained in the statute.  28 U.S.C. § 1604; see 28 U.S.C. § 1605-§ 1607.  The exception involved here is the expropriation exception.  That exception provides that a “foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case . . . in which rights in property taken in violation of international law are in issue” and there is a specified commercial-activity nexus to the United States. 28 U.S.C. § 1605(a)(3).  The Court will resolve whether a plaintiff needs only to plead some non-frivolous facts that could show an expropriation to survive a motion to dismiss or does a plaintiff need to plausibly allege that an expropriation occurred in violation of international law.

Venezuela, the Petitioner, and the United States, as amicus curiae in support of Venezuela, argue that for a case to come within the scope of Section 1605(a)(3), the complaint must assert a claim that is legally sufficient to satisfy the provision’s substantive requirements. According to the United States, “[w]hen the foreign state challenges the legal sufficiency of the complaint’s jurisdictional allegations under Federal Rule of Civil Procedure 12(b)(1), the district court must determine whether the plaintiff’s allegations, if true, actually describe a ‘tak[ing] in violation of international law’—that is, conduct that is prohibited by international expropriation law—and identify ‘rights in property’ that were impaired as a result of the foreign state’s conduct.  If those substantive requirements are not satisfied, the foreign state is immune from suit both federal and state courts, the district court lacks subject-matter jurisdiction, and the claim must be dismissed.”  Brief of the United States as Amicus Curiae at 7-8.

Helmerich, the Respondent, argues that “nothing in the FSIA displaces the longstanding, widespread practice that the possibility a claim might fail on its merits does not defeat the court’s jurisdiction to decide the merits, at least where the claim is not ‘clearly . . . immaterial and made solely for the purpose of obtaining jurisdiction’ or ‘wholly insubstantial and frivolous.’” Brief of Respondent at 14.

This case has the potential to be a blockbuster, as it will define when suits against foreign governments get through the courthouse door. The Court’s interpretation of the pleading standard for the expropriation exception will also impact the pleading standards for the FSIA’s other exceptions, such as the commercial activity exception and noncommercial tort exceptions.  The fact that the U.S. Government will participate in oral argument as amicus curiae in support of Venezuela will also be noteworthy, given that the Obama Administration recently suffered its first override of a presidential veto when the House and Senate voted against the President’s objection to a bill that amended the FSIA to allow family members to sue Saudi Arabia over claims it aided or financed the Sept. 11 terrorist attacks.

In its judgment of 7 July 2016, in the case of Hőszig Kft. v Alstom Power Thermal Services (case C-222/15), the Court of Justice ruled as follows.

Article 23(1) of Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) must be interpreted as meaning that a jurisdiction clause which, first, is set out in the client’s general terms and conditions, referred to in the instruments witnessing the contracts between those parties and forwarded upon their conclusion, and, secondly, designates as courts with jurisdiction those of a city of a Member State, meets the requirements of Article 23 relating to the consent of the parties and the precision of the content of such a clause.  

Nella sentenza del 7 luglio 2016 relativa alla causa Hőszig Kft. c. Alstom Power Thermal Services (causa C-222/15), la Corte di giustizia ha affermato quanto segue.

L’art. 23, par. 1, del regolamento (CE) n. 44/2001 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (Bruxelles I), dev’essere interpretato nel senso che una clausola attributiva di giurisdizione che, da un lato, sia stata stipulata nell’ambito delle condizioni generali di contratto del committente, menzionate negli atti contenenti i contratti inter partes e trasmesse all’atto della loro conclusione, e che, dall’altro, designi quali giudici competenti quelli di una città di uno Stato membro, soddisfa i requisiti del suddetto art. 23, relativi al consenso tra le parti ed alla precisione del contenuto di tale clausola.

L’article 9, § 3, du règlement Rome I exclut que des lois de police autres que celles de l’État du for ou de l’État dans lequel les obligations découlant du contrat doivent être ou ont été exécutées puissent être appliquées, en tant que règles juridiques, par le juge du for.

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