Agrégateur de flux

Marshall v MIB [2015] EWHC 3421 (QB) involved a road traffic accident that occurred in France. On 19th August 2012 an uninsured Peugeot motor car registered in France driven by Ms Bivard, a French national, hit Mr Marshall and Mr Pickard, both British nationals, as they were standing behind a Ford Fiesta motor car and its trailer, while it was being attended to by a breakdown recovery truck on the side of a motorway in France. The Ford Fiesta motor car was registered in the UK and insured by Royal & Sun Alliance (“RSA”), and the recovery truck was registered in France and insured by Generali France Assurances (“Generali”). The Peugeot then collided with the trailer shunting it into the Ford Fiesta which in turn was shunted into the vehicle recovery truck. Mr Pickard suffered serious injuries. Mr Marshall died at the scene.

This case raises points about among others (1) the law applicable to an accident involving a number of persons and vehicles; and (2) the application of the French Loi Badinter to the facts of this case, if French law applies: The second main issue is if French law applies, whether the Ford Fiesta motor car and recovery truck are “involved” within the meaning of the Loi Badinter, which it is common ground is the applicable French statute. If those vehicles are “involved” it is common ground that RSA, as insurer of the Ford Fiesta, and Generali, as insurer of the recovery truck, are liable to Mrs Marshall, and that Generali, as insurer of the recovery truck, is liable to Mr Pickard.

Two actions were commenced. The first by Mrs Marshall (Mr Marshall’s widow) against the Motor Insurers’ Bureau (“the MIB”). Mrs Marshall relied on relevant English 2003 Regulations. The 2003 Regulations make the MIB liable in respect of liabilities of compensation bodies in other EEA states for losses caused by uninsured drivers. The relevant compensation body in France responsible for such losses is the Fonds de Garantie (“FdG”). The MIB denied liability, contending that the FdG would not be liable to Mrs Marshall because under the Loi Badinter Mr Pickard and RSA, as driver and insurer of the Ford Fiesta, and Generali, as insurers of the recovery truck, were liable. The second action was brought by Mr Pickard against the Motor Insurers’ Bureau relying on the 2003 Regulations. The MIB deny liability and contend that Generali, as insurers of the recovery truck, are liable to Mr Pickard.

The High Court was asked (1) what law applies per Article 4 Rome II, and (2) whether under the circumstances, Article 4(3) Rome II might have any relevance.

Save for Mrs Marshall’s claim for dependency which if English law applies is under the Fatal Accidents Act 1976 (“FAA 1976”), it is common ground that the direct damage occurred in France for all of the claims, including Mrs Marshall’s claim on behalf of Mr Marshall’s estate. In respect of the FAA 1976 claim, RSA (Mr Marshall’s insurers) submits that the direct damage occurred in the location where Mrs Marshall has suffered her loss of dependency, which is in England and Wales. Dingemans J resolves this issue of ricochet damage with reference to the AG’s Opinion in Lazar: the CJEU’s judgment in same was issued about a month after the High Court’s judgment in Marshall. The Advocate General, having regard to the relevant principles of consistency, foreseeability and certainty, in his opinion considered that “the damage occurs” for the purposes of a claim such as an FAA 1976 claim where the relevant death occurs. The AG noted that different EEA states took different approaches to the characterisation of a dependency claim. For example in both England and Italy it is considered that the damage for a loss of dependency occurs in the country where the dependant is situated, but that this is not a European wide approach. The opinion, Dingemans J notes, shows that the Advocate General was influenced by the need to avoid different Courts in different EEA states adopting different solutions to applicable law in fatal accident cases, which would lead to a diversity of approach in different jurisdictions.

The action between Mrs Marshall and Mr Pickard triggers Article 4(2) of the Rome II Regulation, identifying as applicable law the law of the country were both the ‘person’ claimed to be liable and the ‘person’ sustaining damage, are habitually resident at the time the damage occurs. Dingemans J rightly (at 17) dismisses the suggestion (made in scholarship) that the moment more than two ‘persons’ are involved, Article 4(2) becomes inoperable.

Turning then to Article 4(3), the escape clause of a ‘manifestly closer connection’. Dingemans J entertains the interesting proposition that Article 4(3) has to lead to a law different from the law which would be applicable per Article 4(1) or (2). This in particular would mean that once Article 4(2) is engaged, it cannot be undone by recourse to Article 4(3). Dingemans J insists that Article 4(3) must be employed generally, even if it leads to a resurrection of Article 4(1), and goes on to find French law to be applicable (at 19-20):

In my judgment this case provides an illustration of when French law is provided as the governing law under article 4(1), excluded (for part of the claims) under article 4(2), and then required again under article 4(3).

It is also common ground that article 4(3) imposes a “high hurdle” in the path of a party seeking to displace the law indicated by articles 4(1) or 4(2), and that it is necessary to show that the “centre of gravity” of the case is with the suggested applicable law. In this case there are a number of circumstances which, in my judgment, make it clear that the tort/delict is manifestly more closely connected with France than England and Wales. These are: first that both Mr Marshall and Mr Pickard were hit by the French car driven by Ms Bivard, a national of France, on a French motorway. Any claims made by Mr Marshall and Mr Pickard against Ms Bivard, her insurers (or the FdG as she had no insurers) are governed by the laws of France; secondly the collision by Ms Bivard with Mr Marshall and Mr Pickard was, as a matter of fact and regardless of issues of fault or applicable law, the cause of the accident, the injuries suffered by Mr Marshall and Mr Pickard and the subsequent collisions; and thirdly any claims that Mr Marshall and Mr Pickard have against Generali, as insurers of the vehicle recovery truck, are also governed by the laws of France.

This judgment to my knowledge, with Winrow v Hemphill  is one of few discussing Article 4(3)’s escape clause in such detail. (The add-on being that in Marshall Article 4(3) was found as being able to override Article 4(2). A judgment which, like Winrow, does justice to both the exceptional nature of the provision, and the need to consider all relevant factors.

Geert.

Ps very soon the Supreme Court will hear further argument on the application of the Rome II Regulation in Moreno v MIB.

A report issued by the European Commission on 10 March 2016 analyses the functioning of the European Judicial Network in civil and commercial matters (COM(2016) 129 final).

The Network was set up by Council Decision No 2001/470/EC and operates in accordance with the latter Decision, as amended by Decision No 568/2009/EC (see here for the consolidated text of the Decision). It ensures direct contacts and case-handling between national Network contact points, facilitates cross-border access to justice through information given to practitioners and the general public and evaluates and shares experience on the operation of specific Union law instruments in the field of judicial cooperation in civil and commercial matters.

The report identifies a number of issues on which action should be taken to improve the Network’s functioning.

These issues relate, inter alia, to the resources and support given to contact points at national level, the synergies of the Network with other European networks pursuing similar aims, the visibility of the Network, including in the national websites of the institutions to which Network members belong to, and the Network’s role “in the full ex post evaluation of existing instruments”, which should be “further developed through the identification and collection of key statistical data based on national data collection mechanisms”.

Le 16 février 2016, le Conseil de l’Europe a rendu publiques les lettres adressées aux gouvernements de sept Etats membres dont la France, dénonçant les évacuations forcées des Roms faisant l’objet de formes graves de discriminations et une violation des droits de l’homme.

En carrousel matière:  Non Matières OASIS:  Néant

en lire plus

L’ONIAM, lorsqu’il a indemnisé une victime, peut être garanti par les assureurs des structures reprises par l’EFS. L’application aux instances en cours du mécanisme ne contrevient ni à l’article 6, § 1er, de la Convention européenne des droits de l’homme ni à l’article 1er du Protocole additionnel n° 1 à cette Convention.

En carrousel matière:  Non Matières OASIS:  Fonds d'indemnisation Responsabilité civile Responsabilité civile (Dommage) Responsabilité civile (Lien de causalité) Responsabilité civile (Mise en œuvre) Responsabilité civile contractuelle Responsabilité civile du fait des produits défectueux Subrogation Convention européenne des droits de l'Homme

en lire plus

As already announced on this blog, a conference is scheduled to take place in Bonn on 6 and 7 April 2017, under the title Politics and Private International Law (?). The aim of the initiative is to improve the exchange between young scholars of private international law.

A call for papers has now been issued to select the speakers.

The call may be found here (in German) and here (in English).

The deadline for submissions is 30 June 2016.

It has already been reported on this blog that the Council of the European Union was expected to authorise Austria to sign and ratify, and Malta to accede to, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, “in the interest of the Union”.

A decision to this effect has in fact been adopted on at the Justice and Home Affairs Council of 10 March 2016, accompanied by a statement of the German government.

In the statement, Germany expresses its doubts as to whether the decision in question “falls within the exclusive external competence of the European Union”.

It is not clear, the statement observes, “why the future application of the Hague Service Convention to Austria and Malta could affect common rules on judicial cooperation between Member States in civil matters or alter their scope (Article 3(2) TFEU)”, since the Hague Service Convention applies in relation to third countries, whereas between European Union Member States, Regulation No 1393/2007 “clearly takes precedence over that Convention”.

In the view of the German government, the decision “should therefore not be used as a model for and should be without prejudice to any other measures in which the exclusive external competence of the European Union may play a role which may be taken by the European Union to resolve other similar cases”.

 

I have earlier reported on the referral in Universal, Case C-12/15. Szpunar AG opined today, 11 March (the English text of the Opinion is not yet available at the time I write this post) and suggests (at 37) that the Court not apply its Erfolgort /Handlungsort distinction per Case 21/76  Bier /Minnes de Potasse. He reminds the Court of Bier’s rationale: a special link between the Erfolgort and the case at hand, so as to make that place, the locus damni, the place where the damage arises, well suited to address the substantive issues raised by the claim. (He also reminds the Court, at 30, that the language of what is now Article 7(2) only refers to the harmful event; not in the slightest to damage).

In cases where the only damage that arises is purely economic damage, the locus damni is a pure coincidence (in the case of a corporation suffering damage: the seat of that corporation), bearing no relation to the facts of the case at all (lest it be entirely coincidental). The Advocate General skilfully distinguishes all relevant CJEU precedent and in succinct yet complete style comes to his conclusion.

The Court itself embraces its Bier ruling more emphatically than its AGs do (see the similar experience of Cruz Villalon AG in Hejduk).  That Universal Music is quite clearly distinguishable from other cases may sway it to follow the AG in the case at issue. However its fondness of Bier (judgment in 1976; it had been a hot summer that year) may I fear lead it to stick to its fundamental twin track of Erfolg /Handlungsort no matter the circumstances of the case.

Geert.

Pourvoi c/ Cour d'appel de Rennes, 16 septembre 2015

Pouvoir c/ Cour d'appel de Paris, pôle 2, chambre 1, 11 décembre 2014

Juridiction de proximité d'Angoulême, 9 février 2016

Pourvoi c/ Cour d'appel de Montpellier, 3e chambre correctionnelle, 22 avril 2014

Conseil de Prud'hommes de Toulouse, 17 février 2016

Irrecevabilité

Irrecevabilité

Irrecevabilité

Irrecevabilité

By a ruling of 8 March 2016, the German Federal Supreme Court declared that claims brought by German holders of Greek bonds against Greece, for damages suffered as a result of the Greek debt restructuring, were barred on grounds of State immunity (a press release may be found here, pending the publication of the full text of the decision).

The following is an excerpt of the report posted by Peter Bert at Dispute Resolution in Germany.

The bonds that the claimants had acquired – in Germany and through German Banks – where governed by Greek law. They did not contain collective action clauses. This notwithstanding, the terms of the bonds were subsequently amended by a majority vote of the bondholders and these amendments were declared binding upon all bondholders by laws passed by the Greek parliament. The measures that were implemented contained both a 53.5% haircut and an extension of the duration of the bonds.

Today, the Federal Supreme Court dismissed the actions as inadmissible (unzulässig). The Hellenic Republic was protected by the principle of sovereign immunity against these lawsuits in Germany. The international public law concept of sovereign immunity is recognized in German law (Sec. 20 para. 2 Courts Constitution Act; Art. 25 Basic Law; GG)

Raising capital by issuing bonds, according to the court, is per se not itself an sovereign act (nicht-hoheitliches Handeln; acta iure gestionis). However, whether the Hellenic Republic was protected by sovereign immunity was not only determined by the legal nature of the relationship between the parties, but also by the nature of the acts of state which are in dispute between the parties.

Accordingly, in the case at hand, it is not the issuance of bonds or the contractual relationship between the bondholders and Greece which is relevant for decision on immunity, but the legal nature of the acts that Greece took in order to restructure its debt. In particular, the dispute between the parties centred on the validity of the Greek law 4050/2012 of February 23, 2012 and the decisions of the Greek Council of Ministers dated March 9, 2012. These were the legal acts that declared the majority vote of the bondholders binding on all bondholders, and they clearly were sovereign acts (acta iure imperii).

In the words of the court, the very idea behind the concept of sovereign immunity is to prevent one state from ruling on the legality of sovereign acts of another state (“Der Grundsatz der Staatenimmunität will gerade Entscheidungen eines Staates über die Rechtmäßigkeit der hier maßgeblichen hoheitlichen Maßnahmen eines anderen Staates verhindern.”). But this is exactly what the German courts would have to do, were they to decide these disputes on the merits.

Thanks to Peter Bert for giving permission for the reproduction of his post.

Our co-editor Tanja Domej from University of Zurich has authored a monograph entitled “Internationale Zwangsvollstreckung und Haftungsverwirklichung am Beispiel der Forderungspfändung” (International Execution and the Implementation of Liability). The volume has been published by Mohr Siebeck. It is written in German.

The official abstract reads as follows:

Tanja Domej retraces the debates over the relevancy and meaning of the principle of territoriality for the cross-border attachment of debts from a comparative perspective. On the basis of an interest analysis, she presents perspectives for an appropriate approach to dealing with issues of cross-border attachment of incorporeal assets.

More information is available on the publisher’s website.

 

Granted, the (bad) pun in the title would have worked better around the end of year, which is when I had originally planned this posting, before I got sidetracked. Bob Wessels has excellent overview here (including admirably swift and exact translation of core parts of the judgment). OOO PROMNEFTSTROY v Yukos at the Dutch Supreme Court is but one instalment in running litigation literally taking place across the globe.

Of particular interest to the blog is the court’s finding (at 3.4.2) that the existence of a corporation is subject to the lex incorporationis not, as the Court of Appeal had held, the lex concursus in the event of insolvency. The EU’s Insolvency Regulation does not apply for COMI is not within the EU. The Insolvency Regulation does not in so many words say the same as the Dutch Supreme Court however it is likely that under the EIR, too, this issue falls under lex societatis /lex incorporationis (see e.g. Miguel Virgos & Francisco Garcimartin, The European Insolvency Regulation: Law and Practice, Kluwer, 2004, p.82 (par 123, f: dissolution of the company).

One can imagine of course the one or two complications arising out of the seizure of assets of a company which no longer exists.

Geert.

Moss, Fletcher and Isaacs on the EU Regulation on Insolvency Proceedings, 3a ed., Oxford University Press, 2016, ISBN 9780199687800, GBP 175.

[Dal sito dell’editore] – This practical book provides complete analysis of the revised EU
Regulation on Insolvency Proceedings (EIR), the main Regulation on cross-border insolvencies in the EU. This is an essential work for anyone who requires knowledge of insolvency law in the UK or in any of the other 26 EU countries to which the Regulation is directly applicable. Timed to take into account the final amended version of the EIR, this third edition of the leading work contains detailed analysis and opinion on the effect of the changes to Regulation in practice. It also considers the numerous ECJ and relevant national cases which have been decided since the last edition. 

Ulteriori informazioni sul volume, che tiene conto del regolamento 2015/848, recante la rifusione del regolamento n. 1346/2000, sono disponibili a questo indirizzo.