Agrégateur de flux

Following up on last week’s post on the Second Circuit’s comity decision in the Vitamin C Antitrust Litigation case, Professor Bill Dodge of UC Davis has the following thoughts (also cross-posted on Opinio Juris here)

American law has many doctrines based on international comity—doctrines that help mediate the relationship between the U.S. legal system and those of other nations. The Second Circuit’s decision last week in the Vitamin C Antitrust Litigation case correctly identified an international comity issue. But did it choose the right comity tool to address that issue?

Plaintiffs alleged that defendants, two Chinese companies, participated in a cartel to fix the price of vitamin C exported to the United States in violation of U.S. antitrust law. Defendants did not deny the allegations, but argued that Chinese law required them to coordinate export prices. The Chinese Ministry of Commerce backed the defendants in an amicus brief explaining Chinese law. The district court, however, declined to defer to the Ministry’s interpretation of Chinese law, awarding the plaintiffs $147 million in damages and permanently enjoining the defendants from further violations of U.S. antitrust laws.

On appeal, defendants argued that the district court should have dismissed on grounds of foreign state compulsion, international comity, act of state, and political question. While the political question doctrine rests on separation of powers, the other three grounds are all doctrines of prescriptive comity. As I have explained in a recent article, American law is full of international comity doctrines, each with its own specific requirements.

To avoid confusion, it is worth noting at the outset that although the Second Circuit repeatedly framed the question as whether the district court should “abstain from exercising jurisdiction,”Vitamin C was clearly not an international comity abstention case. International comity abstention is a doctrine of adjudicative comity, or deference to foreign courts. The Second Circuit has held that it is available only if parallel proceedings are pending in a foreign court. See Royal & Sun Alliance Ins. Co. of Canada v. Century Intern. Arms, Inc., 466 F.3d 88, 93-94 (2d Cir. 2006). The same is true in most other circuits that have adopted the doctrine (the cases are collected here at pp. 2112-14). The main exception is the Ninth Circuit, whose decision in Mujica v. Airscan Inc., 771 F.3d 580 (9th Cir. 2014), applied a broad and uncertain comity abstention doctrine that conflicts with its own precedents, those of other circuits, and even the Supreme Court’s. Because no parallel antitrust claims against these defendants were pending in Chinese courts, international comity abstention would not have been an appropriate ground on which to dismiss this case.

Instead, the Second Circuit properly viewed the Vitamin C case as raising questions of prescriptive comity—deference to foreign lawmakers—which U.S. law has developed a number of different doctrines to address (for discussion see here at pp. 2099-2105). The court relied particularly on an interest-balancing, comity doctrine commonly associated with Timberlane Lumber Co. v. Bank of America, 549 F.2d 597 (9th Cir. 1976), Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287 (3d Cir. 1979), and Section 403 of the Restatement (Third) of Foreign Relations Law. In the court’s view, this doctrine authorized it to “balance the interests in adjudicating antitrust violations alleged to have harmed those within our jurisdiction with the official acts and interests of a foreign sovereign in respect to economic regulation within its borders” (slip op. at 4). The idea that U.S. courts are institutionally capable of balancing the interests of foreign governments against our own has the subject of significant criticism over the past three decades.

Moreover, it is hard to see how this particular prescriptive comity doctrine survives the Supreme Court’s later decisions in Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993), and F. Hoffmann-La Roche Ltd. v. Empagran, S.A., 542 U.S. 155 (2004), both of which declined to apply a multi-factor balancing approach in antitrust cases. The Second Circuit read Hartford “narrowly” (slip op. at 20) not to preclude such an approach, particularly when compliance with both U.S. and foreign law was impossible. But the Second Circuit did not even mention Empagran, which expressly rejected case-by-case balancing as “too complex to prove workable.” Empagran recognized that ambiguous statutes should be construed “to avoid unreasonable interference with the sovereign authority of other nations,” but it also said in no uncertain terms that “application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.” Plaintiffs unquestionably alleged domestic antitrust injury in Vitamin C, making the application of U.S. law reasonable and consistent with prescriptive comity, at least has the Supreme Court has understood these concepts in the antitrust context.

The act of state doctrine is a separate and distinct manifestation of international comity, requiring that the acts of foreign sovereigns performed within their own territories be deemed valid. But the Supreme Court has made clear that the act of state doctrine applies only when a U.S. court must “declare invalid, and thus ineffective as ‘a rule of decision for the courts of this country,’ the official act of a foreign sovereign.” W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., International, 493 U.S. 400, 405 (1990). To find that the defendants fixed the price of vitamin C, the district court did not have to find any part of Chinese law invalid or even to evaluate the conduct of the Chinese government. It only had to find that Chinese law did not immunize the defendants’ own conduct from liability under U.S. law.

The best fitting tool to address the prescriptive comity issue in Vitamin C would seem to be the doctrine of foreign state compulsion (also known as foreign sovereign compulsion), which sometimes allows a U.S. court to excuse violations of U.S. law on the ground that the violations were compelled by foreign law. That is precisely what defendants had argued in this case. Although the exact contours of this doctrine are uncertain, the U.S. government has recognized it as a defense in antitrust cases. See Antitrust Enforcement Guidelines for International Operations ¶ 3.32 (1995). China represented that its law compelled the defendants to coordinate export prices for vitamin C, and the Second Circuit considered itself bound by China’s interpretation of its own laws (slip op. at 30), which seems reasonable at least in these circumstances.

Unfortunately for the defendants, there are at least two potential problems with foreign state compulsion in this case. First, it appears that defendants may have asked the Chinese government to mandate their price fixing. See slip op. at 36-37. At least some authority suggests that a defendant wishing to claim foreign state compulsion as a defense must try in good faith to obtain relief from the compulsion from the foreign state. See, e.g., Societe Internationale v. Rogers, 357 U.S. 197, 208-09, 213 (1958). Second, it appears that defendants may have fixed prices at levels higher than those mandated by the Chinese government. See slip op. 38. The Second Circuit found this irrelevant to its “comity” analysis but seemed to acknowledge that such facts would preclude a foreign compulsion defense. See id.

U.S. courts have many tools at their disposal to address international comity issues. But sometimes no tool fits. “International comity” is not a universal wrench offering unlimited judicial discretion to dismiss cases that seem problematic. It is a principle underlying specific doctrines, with specific requirements, developed over many years to keep judicial discretion within bounds.

With many conflict of laws classes fresh underway, it is good to be reminded of the classics. Forum non conveniens was at issue in Kaynes v BP, at the Court of Appeal for Ontario. There is a pending class action in the U.S. District Court, Southern District of Texas. The class in that proceeding includes current plaintiff and other Canadian investors who purchased BP securities on the NYSE.

The judgment has ample and concise background, please refer to it for same. The Court of appeal has now lifted a stay, previously put in place on forum non conveniens ground, in light of changed circumstance. The U.S. District Court judge ruled that as the moving party and his proposed Canadian class were members of the class represented by the lead plaintiffs, he was not entitled to now assert a separate class action based upon a claim that the lead plaintiffs had not pursued. Second, the U.S. District Court judge ruled that the moving party’s claim was time-barred under the Ontario Securities Act. Plaintiff and other members of his proposed class are free to pursue individual claims in the U.S. District Court (not already represented in the class action) based on Ontario securities law, subject to any defences BP may advance, including a limitations defence. (Note that the US court therefore holds limitations to be part of the lex causae, not lex fori).

Since the US court do not claim exclusive jurisdiction over the litigation, and given that if a case were to go ahead in the US, it would be subject to Ontario law, the stay was lifted.

The case is a good illustration that forum non conveniens is live and evolving, not static.

Geert.

Non renvoyée au Conseil constitutionnel

The German Notary Institute and the Chair of Civil Law, Private International Law and Comparative Law at the University of Regensburg are hosting a joint conference on the new Matrimonial Property Regulations for spouses and registered partners. The conference (in German language) will take place on 10 February 2017 in Würzburg. Speakers include:

• Professor Andrea Bonomi, Université de Lausanne
• Professor Michael Coester, Ludwig Maximilians University Munich
• Dr Christoph Döbereiner, Notary Public in Munich
• Professor Anatol Dutta, University of Regensburg
• Dr Andreas Köhler, University of Passau
• Professor Christian Kohler, Europa-Institut at the Saarland University
• Professor Stephan Lorenz, Ludwig Maximilians University Munich
• Professor Peter Mankowski, University of Hamburg
• Joanna Serdynska, European Commission, Brussels
• Dr Rembert Süß, German Notary Institute, Würzburg
• Dr Johannes Weber, German Notary Institute, Würzburg

The programme can be downloaded here.

Lors du Conseil des ministres du 22 septembre 2016, le secrétaire d’État chargé des affaires européennes, Harlem Désir, a présenté un projet de loi autorisant la ratification du protocole additionnel à la convention du Conseil de l’Europe pour la prévention du terrorisme (STCE, n° 196).

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During the months of October-December 2016, Professor Christian Kohler (Europa-Institut, University of Saarbrücken) will give a series of doctoral seminars on European Private International Law at the University of Padova, where he will be a Visiting Scientist during this period.

The programme can be found here.

Professor Bernardo Cortese, who has organized the series, warmly invites applications from PhD students with a focus on International and EU Law.

The University of Milan (Department of International, Legal, Historical and Political Studies) will host on Friday 14 October 2016 (14h00) a conference on “Cross border family litigation in Europe. The Brussels IIbis recast“.

Here is the programme (the sessions will be held in English and Italian):

Welcoming addresses

• Chiara Tonelli (Vice-Rector for Research, Univ. of Milan)
• Laura Ammannati (Director of the Department of International, Legal, Historical and Political Studies)

Chair: Stefania Bariatti (Univ. of Milan)

The Brussels IIbis recast

• Joanna Serdynska (Civil Justice Policy, DG Justice, European Commission): The Commission’s proposal
• Anatol Dutta (Universität Regensburg – MPI Hamburg): A comment on the Commission’s Proposal from a member of the Commission’s Expert Group

Round Table – The Commission’s Proposal: exchange of views among judges, practitioners and academics

• Giuseppe Buffone (Milan Court, Family Division)
• Monica Velletti (Rome Court, Family Division)
• Suzanne Todd (Whiters LPP, London)
• Cinzia Calabrese (President of AIAF Lombardia)
• Carlo Rimini (Univ. of Milan)
• Ilaria Viarengo (Univ. of Milan)

Closing remarks: Stefania Bariatti (Univ. of Milan)

Venue: Sala Lauree, Facoltà di Scienze Politiche, Economiche e Sociali, University of Milan.

(Many thanks to Prof. Ilaria Viarengo for the tip-off)

In Zulfikarpašić Case C-484/15, Bot AG opined on 8 September. At issue is the intepretation of ‘court’ and ‘judgment’ in the European enforcement order Regulation. Mutatis mutandis therefore the case has implications for most other EU private international law instruments, which employ similar terms. In all of these Regulations, the terms ‘court’ and ‘judgment’ are under- or not at all defined.

The question was submitted in the context of a dispute between Ibrica Zulfikarpašić, a lawyer established in Croatia, and Slaven Gajer, who is also domiciled in Croatia, regarding the certification as a European Enforcement Order, of a writ of execution issued by a notary based on an authentic document.  The referring court essentially inquires whether a notary who, in accordance with Croatian law, has issued a definitive and enforceable writ of execution based on an authentic document has the power to certify it as a European Enforcement Order where it has not been opposed. If the answer is no, the referring court asks whether a national court can carry out that certification where the writ of execution concerns an uncontested claim.

Article 4(1) of Regulation 805/2004 defines ‘judgment’ as ‘any judgment given by a court or tribunal of a Member State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court’. Article 2(a) of the Brussels I Recast Regulation now includes exactly the same definition. Yves Bot himself summarised the CJEU’s case-law on the notion of ‘judgment’ in the Brussels I Regulation in Gothaer. He reiterates that Opinion here and I should like to refer readers to my earlier summary of the Opinion in Gothaer.

After a tour de table of the various opinions expressed ia by the EC and by a number of Member States, the Advocate General submits that the concept of ‘court’ should be interpreted, for the purposes of Regulation No 805/2004, as covering all bodies offering guarantees of independence and impartiality, deciding on their own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority (at 108). A functional approach, therefore (at 109).

Advocate General Bot submits therefore that an enforcement title such as a writ of execution issued by a notary based on an authentic document constitutes a judgment within the meaning of Article 4(1) of Regulation No 805/2004, provided that the notary with power to issue that writ adjudicates, in the exercise of that specific function, as a court, which requires him to offer guarantees as to his independence and impartiality and to decide on his own authority by a judgment which, first, was or may be subject to an exchange of arguments before being certified as a European Enforcement Order and, second, may be challenged before a judicial authority. 

Whether these conditions are fulfilled is for the national courts to assess.

This Opinion and the eventual judgment by the Court will also be relevant for the application of the Succession Regulation, 650/2012. In matters covered by that Regulation, notaries throughout the EU have an important say and may quite easily qualifies as a ‘court’. Bot AG refers to the Regulation’s definition of ‘court’ at 71 ff of his current Opinion.

Geert.

European private international law, second ed. 2016, Chapter 2, Heading 2.2.16.1.1. Chapter 6, Heading 6.2.1.

 

La Cour de Strasbourg a déclaré recevable la requête reprise par une Organisation non-gouvernementale (ONG) représentée par les avocats qui avaient été mandatés par le requérant originaire, décédé en cours de procédure.

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Dans ses conclusions rendues le 8 septembre 2016, l’avocat général de la Cour de justice de l’Union européenne (CJUE), Juliane Kokott, estime que le législateur de l’Union a respecté ses exigences en prévoyant un taux réduit de TVA applicable aux publications imprimées, non extensible aux livres, journaux et périodiques numériques fournis par voie électronique.

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Copropriété

Protection des droits de la personne - Respect de la vie privée

Élection des présidents de chambre du Tribunal de l’Union européenne

Many thanks to Alexia Pato, PhD candidate at the Universidad Autónoma, Madrid, for this piece of news. And my best wishes!

Today, blog droit européen officially celebrates the opening of its European and private international law section (hereafter, EU and PIL section), which is edited and coordinated by Karolina Antczak (Ph.D. candidate at Université de Lille), Basile Darmois (Ph.D. candidate at Université Paris Est Créteil) and Alexia Pato (Ph.D. candidate at Universidad Autónoma de Madrid). In a recently published inaugural post (available here), they present their project in detail. In particular, they expose the positive interactions between PIL and European law, as well as their friction points. Undoubtedly, the increasingly tight links that are forged between these two disciplines encourage legal experts to collaborate and exchange their views. The creation of the mentioned section in blog droit européen contributes to the achievement of this objective.

The Content of the European and Private International Law Section

Although the EU and PIL section has just been inaugurated, more food for thought will be uploaded soon. Readers will find articles diving into PIL issues, and we will be covering additional areas such as international civil litigation, as well as the internal market and its four freedoms. Don’t miss our upcoming co-signed article on Brexit, highlighting its legal consequences from an international perspective. Also, on its way is a post discussing the EU’s competence to adopt minimum standards of civil procedure. Additionally, the team plans to upload interviews with professors and legal experts, who debate fundamental EU and PIL matters. These interviews will be available in video format. Lastly, readers will be able to stay updated by reading our posts on the latest legal news.

Contribute to the European and Private International Law Section

In order to foster constructive debates and extract the merits of collaborative learning, we welcome any Ph.D. candidate, professor, or legal professional to voice his/her opinion on the EU and PIL section. You may submit your ideas in the form of a post (approximately 1.000 words), which consists of a critical assessment on a particular topic. Working papers, video conferences and tutorials are equally welcome (for more information on how to contribute, click here). Articles can be written in either French or English.

What is blog droit européen?

Blog droit européen is a website that provides information with an interactive touch on a broad range of legal topics such as: digital single market, Economic and monetary Union, competition law, and so on. In particular, its purpose is to gather together students, investigators, professors, and legal experts who share a common and enhanced interest for European law at large (EU, ECHR, impact of European law on States’ public and private laws). The originality of blog droit européen lies in two essential features: firstly, the blog delivers high quality and varied contents, including interviews (of ECJ members and professors), call for papers and conferences, not to mention working papers and legal columns, which critically analyse EU law. Secondly, the use of e-techniques of information sharing, like Facebook, Twitter, and YouTube make this blog interactive and user friendly. From an organizational perspective, blog droit européeen is run and edited by young investigators from different legal backgrounds in different Universities across Europe (for an overview of our team, click here). Thanks to Olivia Tambou (Lecturer at Université Paris-Dauphine), our dedicated team leader and creator/editor of the blog, for connecting us and making this project possible.

See you soon on blog droit européen!

Conseil / LTTE
Relations extérieures
L’avocat général Sharpston considère que la Cour devrait annuler, pour vice de procédure, les mesures maintenant le Hamas et les LTTE sur la liste de l’Union européenne des organisations terroristes

Commission / République tchèque
Libre circulation des marchandises
En refusant de reconnaître les poinçons de garantie pour métaux précieux apposés par WaarborgHolland, un bureau de garantie néerlandais, la République tchèque a enfreint le droit de l’Union

On Tuesday, the United States Court of Appeals for the Second Circuit issued a decision reversing a $147.8 million price-fixing judgment against two Chinese manufacturers of Vitamin C. The plaintiffs alleged that the Chinese manufacturers engaged in price fixing and supply manipulation in violation of U.S. antitrust laws. In its first ever appearance as an amicus before a U.S. court, the Chinese government filed a formal statement asserting that Chinese law required the Chinese manufacturers to set prices and reduce the quantities of Vitamin C sold abroad. Relying on this statement, the Second Circuit held that because the Chinese manufacturers could not comply with both Chinese law and the U.S. antitrust laws, principles of international comity compelled dismissal of the case.

This case raises a host of interesting questions. First, did the Second Circuit reach the right result? Second, is this a comity case or a foreign sovereign compulsion case? Third, what level of deference is due to a foreign sovereign that appears in private litigation to explain their country’s laws? Fourth, should U.S. judges defer to such an explanation?

It will be interesting to see whether this case makes it to the United States Supreme Court.

Représentation des salariés

The following information is provided by the conference organizers.  Given how rare conflict of laws conferences are in Canada, I am delighted to pass this along.

The CJPTA: A Decade of Progress

In 2016, the Court Jurisdiction and Proceedings Transfer Act marks its tenth year in force.  Adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA has clarified and advanced the law of judicial jurisdiction. This symposium will assess the progress made by the CJPTA across the range of issues addressed and critically evaluate the capacity of the CJPTA: to provide leadership for the law in other parts of Canada; to enable further development in the law; and to meet the needs of Canadians in the years ahead in a world of increasing cross-border dealings.

Details:

Friday, October 21, 2016 (expected to run from 9am to 4:30pm)

University Club of Toronto (380 University Avenue, just north of the American consulate)

Co-chaired by Professor Janet Walker (Osgoode) and Lisa Munro (Lerners LLP) with the assistance of Dr. Sagi Peari and Gerard Kennedy

We are excited to bring you a fantastic lineup of speakers and panelists discussing a wide range of topics pertaining to CJPTA and judicial jurisdiction.

Space is limited. Kindly RSVP to

Sagi Peari (SPeari@osgoode.yorku.ca)
or
Gerard Kennedy (GerardKennedy@osgoode.yorku.ca)

by October 3, 2016.