Agrégateur de flux

Pourvoi c/ Cour d'appel de Paris, Pôle 2, chambre 1, 30 septembre 2015

The following announcement has been kindly provided by Vasil Savov, CDC, Brussels.

The European University Institute (EUI) Law Department in Florence, Italy, has just released a comparative study on the calculation of interest on damages resulting from antitrust infringements. It is highly topical, as the EU Member States are in the process of implementing Directive 2014/104/EU into their national laws. This “Damages Directive” seeks to facilitate private antitrust enforcement and, in particular, to ensure full compensation for victims. Due to the duration of antitrust infringements, the accrual of interest from the occurrence of the harm is essential to achieve full compensation. This study samples thirteen national laws and assesses how far they are consistent with the requirements to be found in EU law. It has been supported by Cartel Damage Claims (CDC) SCRL, Brussels.
The first part of the study elucidates the principles and requirements of EU Law relevant to interest calculation on damages caused by antitrust infringements. It further contains a high level assessment of the compliance of the surveyed Member States’ legal regimes.
It is followed by 13 country reports, written by national experts, all answering standardised questions concerning the subject of the study. The questions cover a range of material and procedural law aspects and include calculations for a hypothetical case.
The present EUI study is an in-depth and comparative treatment of this technical, yet significant, aspect of antitrust damages claims. For claimants and practitioners, the study offers a systematic and practical account of interest rules in a number of jurisdictions, for judges and lawmakers, the study provides analysis and recommendations for the proper application of interest rules and advice on principles that should inform the implementation of the Damages Directive.
The full text of the study is available here.

In Winkler v Shamoon [2016] EWHC 2017 Ch Mr Justice Henry Carr broadly follows Mrs Justice Susan Carr in Sabbagh v Khoury (which I have reviewed earlier) on the interpretation of the ‘wills and succession’ exception in the Brussels I Recast (and the Lugano convention). [The Justices themselves, incidentally, are neither related nor married, I understand]. In so doing, Sir Henry follows Dame Susan’s approach vis-a-vis the exclusions in the Brussels I Recast.

Ms Alexandra Shamoon accepts that she is domiciled in the UK for the purposes of the Brussels Regulation.  However, she applies for an order on essentially the same basis as that set out above, contending, in particular, that the claim relates to succession and therefore falls outside the scope of the Brussels Regulation. Brick Court have summary of the case and hopefully do not mind me borrowing their heads-up of the facts:

the case concerns the estate of the late Israeli businessman, Sami Shamoon.  Mr Shamoon owned and controlled the Yakhin Hakal Group of Israeli companies and was known in his lifetime as one of the wealthiest men in Israel.  The claim was brought by Mr Peretz Winkler, formerly the Chief Financial Officer and manager of Yakhin Hakal, against Mrs Angela Shamoon and Ms Alexandra Shamoon, the widow and daughter respectively of Mr Shamoon and the residuary legatees under his will.  In his claim Mr Winkler alleged that prior to his death Mr Shamoon had orally promised to transfer to him certain shares worth tens of millions of dollars.  On the basis of the alleged promise Mr Winkler claimed declarations against Angela and Alexandra Shamoon as to his entitlement to the shares (which they are due to receive under Mr Shamoon’s will).  Angela and Alexandra challenged the jurisdiction of the English Court to hear the claim on the basis that it was a matter relating to “succession” within article 1(2)(a) of the Brussels Regulation and therefore fell outside its scope (and that England was not the natural or appropriate forum for the dispute).

If the claim does fall within the scope of the Regulation, jurisdiction is quite easily established on the basis of the defendant’s domicile – albeit with contestation of such domicile in the UK by Mr Shamoon’s widow and daughter.

Carr J held that the claim was one relating to succession and therefore fell outside of the Brussels I Recast (at 53 ff). While I may concur in the resulting conclusion, I do not believe the route taken is the right one. Sir Henry follows Mrs Justice Carr’s approach in applying the excluded matters of the Brussels I Recast restrictively. I disagree. Exclusions are not the same as exceptions: Article 24’s exclusive rules of jurisdictions are an exception to the main rule of Article 4; hence they need to be applied restrictively. Article 1(2)’s exclusions on the other hand need to be applied solely within the limits as intended. Lead is also taken from Sabbagh v Koury with respect to the role of the EU’s Succession Regulation. Even if the UK is not party to that Regulation, both justices suggest it may still be relevant in particular in assisting with the Brussels I Recast ‘Succession’ exception. If the approach taken in Winkler v Shamoon is followed it leads to a dovetailing of the two Regulations’ respective scope of application. Not a conclusion I think which is necessarily uncontested.

The High Court concludes (at 72) ‘this claim is excluded from the Brussels Regulation and the Lugano II Regulation as its principal subject matter is “succession” within the meaning of Article 1(2)(a).  In particular, it is a claim whose object is “succession to the estate of a deceased person” which includes “all forms of transfer of assets, rights and obligations by reason of death”. It is a succession claim which concerns “sharing out of the estate”; and it is a claim within the definition of “succession as a whole” in Article 23 of the Succession Regulation, as a claim whose principal subject matter concerns  “the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death”: Article 23(h); and an “obligation to …account for gifts, …when determining the shares of the different beneficiaries”: Article 23(i).

Intriguingly, of course, had the UK be bound by the Succession Regulation, and given the dovetailing which the judgment suggest, the next step after rejection of jurisdiction on the basis of the Brussels I Recast, would have been consideration of jurisdiction following the Succesion Regulation. It is ironic therefore to see the Regulation feature as a phantom piece of legislation. Now you see it, now you don’t.

Geert.

(Handbook EU Private international law, Chapter 2, Heading 2.2.2.10).

On 15 April 2016, the Faculty of Law of the University of Santiago de Compostela will host a conference on Security rights and the European Insolvency Regulation: From Conflicts of Laws towards Harmonization.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Autonomous Univ. of Madrid), Anna Gardella (European Banking Authority), Wolf-Georg Ringe (Copenhagen Business School), Françoise Pérochon (Univ. of Montpellier) and Paul Omar (Nottingham Trent University).

The conference is part of the SREIR project, coordinated by Gerard McCormack, Reinhard Bork, Laura Carballo Piñeiro, Marta Carballo Fidalgo, Renato Mangano and Tibor Tajti.

The full programme is available here.

Attendance to the conference is free, but registration prior to 10th April is required.  For this, an e-mail with name and ID card must be sent to marta.carballo@usc.es or laura.carballo@usc.es.

On 15 April 2016, the Faculty of Law of the University of Santiago de Compostela will host a conference on Security rights and the European Insolvency Regulation: From Conflicts of Laws towards Harmonization.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Autonomous Univ. of Madrid), Anna Gardella (European Banking Authority), Wolf-Georg Ringe (Copenhagen Business School), Françoise Pérochon (Univ. of Montpellier) and Paul Omar (Nottingham Trent University).

The conference is part of the SREIR project, coordinated by Gerard McCormack, Reinhard Bork, Laura Carballo Piñeiro, Marta Carballo Fidalgo, Renato Mangano and Tibor Tajti.

The full programme is available here.

Attendance to the conference is free, but registration prior to 10th April is required.  For this, an e-mail with name and ID card must be sent to marta.carballo@usc.es or laura.carballo@usc.es.

Karen Birch and Sarah Garvey from Allen & Overy have published two papers dealing with the likely/possible effects of the UK leaving the European Union on choice of law clauses in favor of English law and jurisdiction clauses in favor of English courts. The authors essentially argue that Brexit would not make a big difference and that commercial parties could (and should) continue to include English choice of law and jurisdiction clauses in their contracts: English courts (as well as other Member States’ courts) would continue to recognize and enforce such clauses. And English judgments would continue to be enforced in EU Member States (even though the procedure might be more complex in some cases).

In essence, the authors thus argue that giving up the current unified European regime for choice of law, jurisdiction, recognition and enforcement of foreign judgments, service of process, taking of evidence would not matter too much for commercial parties. I am not convinced.

The papers are available here.

The University of Missouri and Marquette University announce a student writing competition in associated with the University of Missouri’s upcoming symposium “Moving Negotiation Theory from the Tower of Babel: Toward a World of Mutual Understanding.” The competition offers a $500 first prize and $250 second prize.

Submissions must relate to one or more problems with negotiation theory, broadly defined, and should suggest a solution to the problem(s). Students are encouraged to consider sources in the symposium reading list, though they are not required to discuss or cite any of these sources.

The competition is open to all persons enrolled during calendar year 2016 in a program of higher education leading to any degree in law or a graduate degree (including but not limited to the J.D., LL.B., LL.M., S.J.D., M.A. or Ph.D.). Applicants may be of any nationality and may be affiliated with a degree-providing institutions located in any country.

Papers that have been published or accepted for publication are not eligible for the writing competition.

Submission Requirements

Submissions must be in English and between fifteen (15) and twenty-five (25) pages in length, including footnotes. The text of the paper must be typed and double spaced pages in 12 point Times New Roman font (or similarly readable typeface) with 1-inch margins on all sides. Footnotes should preferably appear in Bluebook form, although papers using other established systems of legal citation will be accepted.

The title of the paper must appear on every page of the submission. The author’s name must not appear anywhere on the submission itself.

A separate document should be provided including (1) the author’s full name, address, telephone number and email address; (2) the degree-granting institution where the author is or was enrolled in 2016, as well as the degree sought and the (anticipated) year of graduation; (3) the title of the submission; and (4) the date of the submission.

Failure to adhere to these requirements may lead to disqualification of the submission.

Papers must be electronically submitted to: Laura Coleman, University of Missouri School of Law, colemanl@missouri.edu

Submissions must be received no later than 11:59 p.m., Central time, on Monday, October 17, 2016.

Criteria

Submissions will be judged based on the following factors:

· Quality, thoroughness, and persuasiveness of analysis

· Value to scholars, faculty, students, and/or practitioners

· Contribution to the scholarship in the field.

Submissions may be considered for publication in the Journal of Dispute Resolution. The sponsors reserve the right not to name a winner if a suitable submission is not entered into the competition.

Questions should be directed to Professor John Lande at landej@missouri.edu. More information is available here.

The International Institute for the Unification of Private Law (UNIDROIT) has recently announced the celebration of the 90th anniversary of its foundation. Established in 1926 as an auxiliary organ of the League of Nations, and re-established in 1940 on the basis of a multilateral agreement, UNIDROIT has made significant contributions to the modernisation and harmonisation of substantive private, notably commercial, law, but also to the conflict of laws and international civil procedure. In all these years, UNIDROIT has collaborated and maintained close ties of cooperation and friendship with numerous partner organisations and entities. To celebrate this momentous occasion, UNIDROIT will hold a series of celebratory events in Rome from 15 to 20 April 2016 which are devoted to the role and place of private law in supporting the implementation of the international community’s broader cooperation and development objectives. Please note that all events are accessible upon invitation only. Further information is available here.

Les juges de Strasbourg ont, à l’unanimité, déclaré irrecevable la requête introduite devant la Cour par l’avocat français Alex Ursulet, retenu dans un commissariat parisien en raison d’un soupçon d’infraction au code de la route.

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La Cour pénale internationale décide, à l’unanimité, le 21 mars 2016, de condamner Jean-Pierre Bemba Gombo, président du Mouvement de libération du Congo de plusieurs chefs, dont notamment le viol comme crime contre l’humanité et comme arme de guerre. La Cour fonde sa condamnation, pour la première fois, sur le principe du commandant. 

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As you may (or may not) already know, a team of researchers recently concluded a study for the European Parliament on arbitration across the European Union and Switzerland. As part of this study the researchers undertook a large-scale survey of arbitration practitioners across Europe, including 871 respondents from every country in the European Union and Switzerland. The results of this survey have allowed the research team to produce far more information on the practice of arbitration in Europe than has previously been available. (see, e.g. this discussion of arbitration in six southern European countries)

A new team of researchers (Tony Cole, Paolo Vargiu, Masood Ahmed at the University of Leicester; S.I. Strong at the University of Missouri, Manuel Gomez at Florida International University, Daniel Levy at Escola de Direito da Fundação Getúlio Vargas – São Paulo, and Pietro Ortolani at the Max Planck Institute Luxembourg) is now working in collaboration with the ICC International Court of Arbitration and the the Organisation of American States to deliver a survey that will generate similar information on the practice of arbitration in the Americas. Letters of support have been received from both the ICC and the OAS. Results from the survey will be used to draft articles on arbitration in the Americas, written by the members of the research team.

The survey consists almost entirely of multiple-choice questions, and only takes approximately half an hour to complete. Moreover, it need not be completed in a single sitting, and if respondents return to the survey on the same computer and with the same browser, they can resume where they left off. The survey team will keep responses confidential and will not divulge any respondent’s identity at any time without his or her explicit consent.

All response data from the survey will be stored securely under password on SurveyMonkey. All research records will be retained for a period of 7 years following the completion of the study. Responses by an individual can, however, be deleted at any time upon request of that individual. Responding to the survey will be taken as consenting to the use of the information provided, for the purposes of drafting the articles deriving from this project.

The survey will remain open until July 11, 2016. The survey is available here.

The Erasmus Graduate School of Law (EGSL) of the Erasmus University Rotterdam has two junior fellowships available for PhD candidates from universities outside the Netherlands, including candidates working in the field of private international law and European/international civil procedure, to visit the Erasmus School of Law for a period of three months. During this stay, the Junior Fellows will be able to discuss their research with senior staff members and interact with other PhD candidates in the framework of EGSL activities. Information about the Junior Fellowship programme can be found on this webpage.

Erasmus School of Law is also currently recruiting PhD Candidates, and also welcomes high quality proposals in the area of private international law and European, international or comparative civil procedure, in particular those that would fit into the multidisciplinairy and empirical research program Behavioural Approaches to Contract and Tort.