Agrégateur de flux

Les statistiques judiciaires pour l’année 2015, publiées le 18 mars 2016, révèlent des nouveaux chiffres records des activités de la Cour de justice de l’Union européenne dans son ensemble. 

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The Max Planck Institute Luxembourg, heading an international consortium, is undertaking a European Commission-funded Study (JUST/2014/RCON/PR/CIVI/0082) on the laws of national civil procedure of the 28 Member States and the enforcement of European Union law.

The Study has two strands: the first deals with the impact of national civil procedure on mutual trust and the free circulation of judgments within the 28 Member States of the EU and the second deals with the impact of national civil procedure on the enforcement of consumer rights derived from EU law. Accordingly, the Consortium has prepared two online tools, aimed at gathering information, opinions and experiences (both available in six language versions):

• Questionnaire focusing on the impact of national procedures on mutual trust and the free circulation of judgments:
  English
  French
  German
  Italian
  Polish
  Spanish

• Questionnaire focusing on the impact of national procedures on the enforcement of EU consumer rights:
  English
  French
  German
  Italian
  Polish
  Spanish

We would encourage consumers, lawyers, judges, academics, consumer protection associations, businesses, business/trade associations, dispute resolution facilitators, and those working in other legal professions (including bailiffs, court clerks, registrars, notaries and so on) to respond to the questionnaire for one or both strands of the study.

If you agree, and wish to share more information with us on any of the topics covered by the Study, it will be possible to provide us with your contact details at the end of the survey.

Please feel free to share widely the links to this webpage and to the questionnaires within your own networks.

Indemnisation des victimes d'infraction

Pourvoi c/ Cour d'appel d'Aix en Provence, 1re chambre B, 24 septembre 2015

Tribunal de grande instance de Rouen, 15 mars 2016

Tribunal de Grande instance de Nice, 1re chambre, 17 mars 2016

I have reported before on various schemes of arrangement which the English Courts gave the go-ahead even when they concerned non-English companies (I should flag that in two of those, Apcoa and Van Gansewinkel, I acted as expert). Thank you Arie van Hoe for bringing Indah Kiat to my attention some weeks ago.

Indah Kiat is a Dutch BV seeking an order convening a single meeting of its scheme creditors to consider and if thought fit approve a scheme of arrangement pursuant to Part 26 of the Companies Act 2006. The application is strenuously opposed by one of the Scheme Creditors, APP Investment Opportunity LLC (“APPIO”), which contests the jurisdiction of the court to entertain or sanction the Scheme. Such opposition is different from the other schemes which I mention in my previous postings.

In the first instance, APPIO simply seeks an adjournment of the Scheme Company’s application on the grounds that inadequate notice has been given to Scheme Creditors. However, it also raises a significant number of other issues concerning the adequacy of the evidence and disclosure by the Scheme Company, together with questions concerning the procedure and scope of the court’s jurisdiction to sanction creditor schemes for foreign companies in relation to debts governed by foreign law.

The Scheme Company is a special purpose vehicle which was incorporated for financing purposes in the Netherlands. It sought the COMI way to enable English courts to obtain jurisdiction over the scheme. English jurisdiction, required to carry out the Scheme, usually rests on either one of two legs: COMI, or making English law the governing law of the underlying credit agreements (if necessary by changing that governing law en route).

The COMI route to jurisdiction in many ways defies the proverbial impossibility of having one’s cake and eating it. For the establishment of a company’s centre of main interests, the courts and practice tend to refer to the EU’s Insolvency Regulation. Yet that schemes of arrangement do not fall under the Insolvency Regulation is a crucial part of the forum shopping involved in attracting restructuring advice to the English legal market. This is especially so for the aforementioned second route to jurisdiction (a change in governing law). however it is also true for the first form. Snowden J refers to that at para 85-86 of his judgment.

Indah Kiat has effected its change of COMI (rebutting the presumption of COMI being at its registered seat) by notifying its creditors via a number of clearing houses for the Notes concerned. APPIO contest that this notification sufficed for change in COMI. There are not enough relevant facts in the judgment to consider this objection thoroughly, however APPIO’s misgivings would not seem entirely implausible.

Snowden J notes that whilst protesting the jurisdiction, in the first instance APPIO simply seeks an adjournment of the convening hearing on the grounds that inadequate notice has been given of it to Scheme Creditors. It contends that given the complex nature of the Scheme and the factual background, there is no justification for an urgent hearing of the application. The Court agreed and the convening hearing (different from the sanction hearing, which follows later) was adjourned until 3 March. Snowden J further gave extensive argument obiter as to why the Scheme’s information was insufficient in the form as it stood at the hearing.

He then revisits (82 ff) the jurisdictional issue, which I have already signalled above: what role exactly COMI should play, how the Brussels I recast intervenes, what the impact is of likely recognition of the sanction (if any) in Indonesia, The Netherlands, and the US; and what if any role the relevant US judgments in the case should play: there will be plenty of points for discussion at the convening and sanction hearing. (I mentioned above that the convening hearing was scheduled around 3 March; I have not heard from the case since however if anyone has, please do let me know).

I do not think Indah Kiat has made the jurisdictional hurdle higher for Schemes of Arrangement involving foreign companies. Rather, the fierce opposition of an important creditor has brought jurisdictional issues into sharper perspective than had been the case before.

Geert.

(Handbook of) EU Private International Law, Chapter 5, Heading 5.4.2).

Kohärenz im Internationalen Privat- und Verfahrensrecht der Europäischen Union, a cura di Jan von Hein e Giesela Rühl, Mohr Siebeck, 2016, pp. XVII+389, ISBN 9783161533501, Euro 79.

[Dal sito dell’editore] – Since adopting the Treaty of Amsterdam in 1997, the European Union has enacted a large number of regulations in the field of Private International Law and International Civil Procedure. Resultant reconciliation and coordination problems were the subject of a 2014 conference in Freiburg im Breisgau. The findings presented here shed light on incoherences, describe the requirements for a more coherent regulation and discuss perspectives for a future European codification in the field of Private International Law.

L’indice ed un estratto del volume sono disponibili qui. Ulteriori informazioni sono reperibili a questo indirizzo.

Contrat de travail, rupture

Hendric Labonté has authored a book entitled “Forderungsabtretung International. Art. 14 Rom I-Verordnung und seine Reform” (International Assignments. Art. 14 Rome I Regulation and its Reform). The volume has been published by Mohr Siebeck. It is written in German.

The official abstract reads as follows:

The commercial significance of assignments, especially in an international context, requires a straightforward conflict of laws provision. However, art. 14 Rome I does not provide enough certainty, particularly when it comes to third party effects. These should be entirely determined by the law of the underlying debt.

More information is available on the publisher’s website.

Il fascicolo di gennaio 2016 della rivista La Ley: Unión Europea contiene alcuni contributi su temi internazionalprivatistici.

In particolare, Angel Espiniella Menéndez è autore di uno scritto, dedicato al regolamento 2015/2421, che modifica il regolamento n. 861/2007, sulle controversie di modesta entità, intitolato La reforma de los procesos europeos monitorio y de escasa cuantía.

Appaiono altresì un commento di Santiago Álvarez Gonzáles alla sentenza pronunciata dalla Corte di giustizia il 19 novembre 2015 nella causa C-455/15, PPU, intitolato Traslado ilícito de menores, competencia judicial internacional y orden público, e un commento di María Jesús Elvira Benayas alla sentenza Corte di giustizia del 16 settembre 2015 nella causa C-519/13, Alpha Bank, intitolata El uso de los formularios (en la notificación internacional conforme al Reglamento 1393/2007) y la tutela judicial efectiva.

L’indice completo della rivista è disponibile qui.

Responsabilité pénale

Action civile

Selon les statistiques pénales annuelles du Conseil de l’Europe (SPACE) publiées le 8 mars 2016, le surpeuplement carcéral en Europe diminue progressivement.

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Tribunal de Grande instance de Strasbourg, 2e chambre civile, 11 mars 2016