Agrégateur de flux

On Wednesday, 16 November 2022, Professor Philippa Webb and Associate Professor Rishi Gulati will host a (hybrid) conference on “Accountability of Transnational ORgnisations” at King’s College London.

The conference will bring together academics, practitioners, and international organisation officials to discuss key developments around the legal accountability of transnational institutions.

The use of the term ‘transnational’ is deliberate. The aim is not just to consider accountability concerns relating to public international organisations (IOs), but also ones relevant to multinational corporations (MNCs) and non-governmental organisations (NGOs). The focus is on legal accountability, including the notion of access to justice for alleged victims of institutional conduct and due diligence obligations increasingly imposed on transnational institutions.

If interested, please register below:

https://www.eventbrite.co.uk/e/accountability-of-transnational-organisations-conference-tickets-441537238767?aff=ebdssbdestsearch

Kingdom of Sweden v Serwin & Ors [2022] EWHC 2706 (Comm) concerns an attempt by Sweden to gain compensation of a number of defendants whom it alleges were parties to a substantial fraud.  The fraud resulted in the misappropriation of in excess of €115m from the pension saving accounts of some 46,222 Swedish pension savers.

I may have to think one or two things through however I wanted to collect my initial thoughts at any rate.

Of note is that the application was one for summary judgment and that quite a few of the respondents did not file an acknowledgment of service or a defence. However, Sweden obtained permission from the court to obtain summary judgment on the merits even against them, rather than entering judgment in default (ia because that makes enforcement more straightforward). Other defendants are serving prison sentences in Sweden and they did enter a defence.

I do not want to turn this post into a banking and finance one however some background is required: [20] ff

The Swedish pension system has various types of pension provision, including a compulsory premium pension (PPM), in which a percentage of a pension saver’s earnings is put into an account, which is invested in investment funds selected by the pension saver from an online platform that the Swedish Pension Authority (SPA) maintains. Each pension saver has a PPM account. Among the investments which might be made were investments in so-called UCITS funds where these had been approved by the Swedish Financial Supervisory Authority (SFSA). UCITS funds are those meeting the requirements of the Undertakings for Collective Investment in Transferable Securities Directive 209/65/EC.

A company that wished to participate in the PPM was required to
enter into a cooperation agreement with the SPA. This case arises from two UCITS funds which were listed on the PPM online platform:

i)            the Optimus High Yield Fund (Optimus), managed by Optimus Fonder which entered into a co-operation agreement with the SPA on 26 March 2012; and

ii)          the Falcon Funds SICA V plc (Falcon) which entered into a co-operation agreement with the SPA in relation to three funders under its management.

The events concerning these two separate funds have been described in the evidence as the Optimus phase and the Falcon phase..

There was consensus ([38]) that the law applicable to the Swedish claims so far as they concerned the Optimus phase was Swedish law, whether by virtue of Article 4(1) or (3) Rome II. That Sweden’s claims relating to the Optimus phase were barred by the doctrine of res judicata, merger, cause of action estoppel or the allied doctrine in Henderson v Henderson, was dismissed by Foxton J [44].

Falcon then was incorporated and authorised by the Maltese Financial Services Authority as a UCITS fund on 22 November 2013. Sweden’s summary judgment claim in relation to the Falcon phase argued that its claims in delict and for breach of fiduciary duty relating to that phase are governed by Maltese law and not Swedish law.

As far as the delict issue is concerned (misappropriation), application of A4(2)  to some of the defendants was clear, and Sweden argued application of A4(1) for the remainder, seemingly arguing (judgment is a bit unclear on this point) that the damage was suffered in Malta when funds held in Falcon were applied to the various classes of loss-making investments.  Reference was made by counsel and judge to Dicey 16th ed. 35-027: “in misappropriation cases … it seems appropriate to locate damage at the place where an asset … is taken from the control of the claimant or another person with whom the claimant has a relationship” – the judge held that it is strongly arguable that this happened when Sweden’s funds became subject to the control of Falcon and the powers of its directors or those operating behind the scenes; the judge seems to locate this in Sweden, not Malta, and to some degree it does not matter for with reference ia to Avonwick and reasons listed [81] it is held that A4(3) arguably is engaged to make the lex causae Swedish law.

[86] reference is again made to Dicey for the applicable law issue as far as breach of fiduciary duties is concerned: Dicey, Morris & Collins [36-069]-[36-070]:

i)                 If equitable obligations of a fiduciary character arise in the context of a contractual relationship, there is a strong argument that the law applicable to the parties’ contractual relationship under Rome I determines whether a fiduciary relationship exists and the nature and content of the duties imposed.

ii)               If, however, the equitable obligations are characterised as incidents of a company law relationship rather than as “contractual”, common law principles determine the applicable law ( company law matters are excluded from Rome I and Rome II).

iii)             If a fiduciary duty arises where the parties were not in a prior relationship, such as in the case of a recipient of trust property, then the “better view” is that the obligation is non- contractual in nature and falls within the ambit of Rome II.

Unlike Sweden, the judge holds there are strong arguments that Swedish law applies, by reference it seems to Dicey, above, i) and with the ‘anchor’ agreement being the one by which Falcon becomes eligible to received PPM funds. Rule ii) seems to be moved aside by the judge here, and at any rate the extent of that rule is not clear-cut (see the CJEU itself recently). It is clear and it was correct to hold that the discussion is not one for summary judgment material.

An interesting final, obiter point comes [91] ff re the ‘reflective loss’ rule (a shareholder (and some others) cannot claim for a fall in the value of their holdings due to loss suffered by the company, if and when the company has a cause of action against the same wrongdoer) under Maltese law. Falcon itself is currently asserting claims against some of the alleged wrongdoers in relation to those same misappropriations, however Sweden argues an exception to that rule on the basis of Maltese expert evidence that was not considered to be robust enough for the summary judgment stage.

I wonder though whether the suggested relevance of the reflective loss rule, does not serve as ammunition for the suggestion that Rome I and II’s corporate carve-out is engaged viz the breach of fiduciary duties claim. For is the DNA of the rule not one of clear lex incorporationis?

To be further pondered.

Geert.

Partially successful application for summary judgment
Some of the implications of lex causae under Rome II for breach of fiduciary duty have to go to trial

Kingdom of Sweden v Serwin & Ors [2022] EWHC 2706 (Comm) https://t.co/JgLAba8zI2
via @legalstyleblog

— Geert Van Calster (@GAVClaw) October 27, 2022

The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)“ features the following articles:

(These abstracts can also be found at the IPRax-website under the following link: https://www.iprax.de/en/contents/)

 

U. Janzen/R. Wagner: The German implementing rules for the Brussels II ter Regulation

When the original version of the Brussels II Regulation was adopted in 2000, it was not certain whether this regulation would be such a success. In the meantime, the regulation has become one of the most important legal instruments for judicial cooperation in civil matters. The regulation has recently been revised for the second time. The following article presents the German implementing rules for this recast.

 

R. Magnus: A new Private International Law and new Procedural Rules for Adoptions in Germany

As a result of two recent reforms the German private international and procedural laws applicable to adoptions have changed quite substantively. Article 22 (1) sentence 1 of the Introductory Act to the German Civil Code (EG-BGB) now refers to the lex fori as the law applicable for all domestic procedures, and section 1 (2) of the Adoption effects Act (AdWirkG) introduces an obligatory recognition procedure for many foreign adoptions. The effects of these and other innovations are examined and evaluated in detail in this article.

 

H.-P. Mansel: Liberalization of the Private International Law of Marriage and Registered Civil Partnership: Remarks on the Place of Marriage and Registration as Connecting Factors

According to the new proposal of the German Council for Private International Law, the law of the “place of marriage” is to govern the establishment of a marriage or registered civil partnership. The article deals with this proposal and explores the question of how this place is to be determined in the case of an online marriage. It argues for the application of the law of the state where the register is kept.

 

B. Laukemann: Protecting procedural confidence against the insolvency estate?

According to Union law, the effects of insolvency proceedings on a pending lawsuit are governed by the lex fori – and thus not by the law of the opening Member State (s. Art. 18 European Insolvency Regulation [EIR], Art. 292 Directive 2009/138, Art. 32 Directive 2001/24). At first glance, the distinction between the lex fori and the lex concursus raised here does not cause any major problems of interpretation. But can the lex fori and its regulatory purpose, which is to guarantee protection of confidence and legal certainty in civil proceedings, also be brought into position against the liability regime of foreign insolvency proceedings? A look at Art. 7(2)(c) EIR, which, in turn, allocates procedural powers of a debtor and insolvency practitioner to the lex fori concursus, reveals the difficulties of a clear-cut demarcation between the law of the forum and the law governing insolvency proceedings. The present contribution seeks to pursue this classification problem, equally relevant in legal and practical terms, for the relevant pieces of secondary EU legislation. Recently, this legal question was submitted to the CJEU – due to the liquidation of an insurance company within the scope of the Solvency II Directive. The decision gives rise to critically examine the delimitation approach of the CJEU and to ask in general how the protection of procedural confidence, on the one hand, and insolvency-related liability interests of the creditors, on the other, can be brought into an appropriate balance.

 

J. Kondring: International Service by WhatsApp: Reflections on the Hague Service Convention and the 1928 Anglo-German Convention in Judgement and Recognition Proceedings

In times of electronic communication, the question arises whether cross-border service by means of electronic communication is possible. The Higher Regional Court (OLG) of Frankfurt a.M. had to decide this question in recognition proceedings for a Canadian-German service by WhatsApp. Neither the Hague Service Convention nor bilateral agreements such as the Anglo-German Convention of 1928 allow service by WhatsApp. In this respect, the article also ex-amines the interaction of section 189 German Code of Civil Procedure (ZPO) and Art. 15 of the Hague Service Convention in both judgment and recognition proceedings, including the relationship to the parallel Anglo-German Convention of 1928. In certain cases, Art. 15 of the Hague Service Convention moves aside and “neutralises” section 189 German Code of Civil Procedure and its legal consequences. For the recognition proceedings, Art. 15 of the Hague Service Convention will also have to be taken into account in the context of the examination of the regularity of service of the document instituting the proceedings.

 

S. Arnold: Applicability of Article 15(1)(c) Lugano II in cases of subsequent relocation of consumers

In its judgment (C-296/20), the ECJ follows the consumer-friendly course already taken in the mBank decision. It interpreted Article 15(1)(c) Lugano II (and by doing so also the corresponding Article 17(1)(c) Brussels Ibis Regulation). The court clarified that the provision governs the jurisdiction of a court also in such cases where a consumer who has contracted with a professional counterparty subsequently relocates to another contracting State. Thus, it is not necessary for the cross-border activities of the professional party to have already existed at the time the contract was concluded. Rather, the subsequent move of the consumer also constitutes the “pursuit” of the professional or commercial activity in the consumer’s member state. Consequently, the court strengthens the position of consumers. Even in the event of a subsequent move, they can rely on the (passive) forum of protection of Article 16(2) Lugano II and the (active) forum of Article 16(1) Lugano II at their place of residence. The burden that this decision places on the professional counterparty – the risk of foreign litigation even if the matter was purely domestic at the time the contract was concluded – seems reasonable, as choice of forum agreements (Art. 17 No. 3 Lugano II) remain possible as a means of protection.

 

A. Staudinger/F. Scharnetzki: The applicable law for the internal settlement between two liability insurances of a tractor-trailer combination – Karlsruhe locuta, causa non finita.

If in a tractor-trailer combination the owners of the tractor unit and the trailer are not the same person and two different liability insurers cover the respective operating risk, the question arises as to the internal settlement between the two liability insurances. Here, first the conflict-of-law issue to be dealt with is the source of law that is to be used to determine the relevant statute for recourse. In its decision of 3 March 2021, the Federal Court of Justice endorsed an alternative approach based on Article 19 of the Rome II Regulation and Article 7 para. 4 lit. b) of the Rome I Regulation in conjunction with Article 46d para. 2 of the Introductory Act to the German Civil Code (EGBGB) for a situation in which a German liability insurer of the tractor seeks half compensation from a Czech trailer insurer. In the opinion of the authors, the IV. Civil Senate had, in light of the European Court of Justice’s decision of 21 January 2016 in the joined cases C-359/14 and C-475/14, an obligation to refer to the Court in Luxembourg under Article 267 para. 1 lit. b), para. 3 TFEU. So, the solution via Art. 19 Rome II Regulation seems hardly convincing, at most a special rule on conflict of laws like Art. 7 para. 4 lit. b) Rome I Regulation. Whether and to what extent Article 7 para. 4 lit. b) Rome I Regulation can be instrumentalized to enforce § 78 para. 2 VVG old version via Article 46d para. 2 EGBGB, however, should have been finally clarified by the European Court of Justice. In particular, it seems doubtful whether Article 46d para. 2 EGBGB as a national rule, which goes back to Art. 7 para. 4 lit. b) Rome I Regulation, allows a provision such as § 78 para. 2 VVG old version to be applied as a mere recourse rule between two insurers. This applies all the more since no special public interests or interests of injured parties worthy of protection are affected here.

 

C. Mayer: Relevance of the place of marriage for determining the applicable law in relation to the formal requirements of proxy marriage and online marriage

The decisions of the Federal Court of Justice and the Düsseldorf Administrative Court concern a double proxy marriage in Mexico and an online marriage via live video conference with an official from the US state of Utah. In both cases, the spouses were themselves in Germany. Both decisions focus on the conflict of law determination of the applicable law in relation to the formal requirements of marriage. Due to the German conflict of law rules in Art. 11 and Art. 13 Para. 4 EGBGB, the place of marriage is decisive. The Federal Court of Justice concludes that the double proxy marriage took place in Mexico, which is why the marriage was formally valid under the applicable local law. The Dusseldorf Administrative Court rules that the online marriage was concluded in Germany, so that only German law is applicable and the marriage is therefore formally invalid due to the lack of participation of a registrar. Both cases reveal inconsistencies in German conflict of laws.

 

S. Deuring: The Purchase of Trees Growing in Brazil: Not a Contract Relating to a Right in rem in Immovable Property or a Tenancy of Immovable Property

ShareWood, a company established in Switzerland, and a consumer resident in Austria had entered into a framework agreement and four purchase contracts for the acquisition of teak and balsa trees in Brazil. When the consumer demanded the termination of the purchase contracts, the question arose of whether this demand could be based on Austrian law, even though the parties had agreed that Swiss law should apply. Siding with the consumer, the ECJ ruled that contractual arrangements such as the present one cannot be considered contracts relating to a right in rem in immovable property or tenancy of immovable property pursuant to Art. 6(4)(c) of the Rome I Regulation. The non-applicability of this provision entails the applicability of Art. 6(2) cl. 2 of the Rome I Regulation. According to the latter, a choice of law may not have the result of depriving consumers of the protection afforded to them by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his habitual residence. In consequence, the consumer could, in fact, base his action on Austrian law.

 

C. Benicke/N. Suchocki: Judicial approval for disclaimer of interests given by parents for their minor children – Polish cases of succession at German courts and the role of the special escape clause in Art. 15 (2) CPC 1996

Polish probate courts demand for judicial approval of any disclaimer of interest given by parents for their minor children, even if such an approval is not required under the law applicable according to Art. 17 of the Child Protection Convention 1996. If German law is applicable due to Art. 17 CPC 1996, in most cases a judicial approval for the disclaimer of interest is not required according to § 1643 (2) p. 2 BGB. As a consequence, German family courts having jurisdiction to issue a judicial approval according to Art. 5 (1) CPC 1996 cannot do so, because under German law, applicable according to Art. 15 (1) CPC 1996 no judicial approval can be issued if not required by the substantive law applicable according to Art. 17 CPC 1996. This leads to the situation that no valid disclaimer of interest can be made, even though both jurisdictions would allow it in a purely domestic case. Therefore, the question arises as to whether in such cases a German family court may issue a judicial approval due to Art. 15 (2) CPC 1996, which exceptionally allows to apply or take into consideration the law of another State with which the situation has a substantial connection. One of the various regulatory purposes of the special escape clause in Art. 15 (2) CPC 1996 consists in allowing the court to adjust the lex fori in order to solve an adaptation problem as it is in this case. The Higher Regional Court Hamm issued such a judicial approval in taking into consideration that the Polish law requires a judicial approval for the disclaimer of interest. We agree with the OLG Hamm in the result, but not in the justification. As Art. 15 (2) CPC 1996 refers only to Art. 15 (1) CPC 1996 the taking into consideration of Polish law cannot overrule that the law applicable according to Art. 17 CPC 1996 does not require a judicial approval. To solve the adaptation problem, it suffices that German law applicable according to Art. 15 (1) CPC 1996 is modified in so far that it allows the formal issuance of a judicial approval even though such an approval is not required by the substantive law applicable according to Art. 17 CPC 1996.

 

R. Hüßtege: German procedural law for obtaining a decision that the removal or retention of a child was wrongful – present and future

Art. 15 of the Hague Convention on the civil aspects of international child abduction requests that the applicant should obtain from the authorities of the State of the habitual residence of the child a decision that the removal or retention was wrongful within the meaning of Article 3 of the Convention. The procedure for obtaining the decision is regulated incomplete in the German implementation law. Most of the problems raised will, however, be remedied by the reform of the German implementing act.

 

P. Schlosser: Recognition even if service of the document initiating the proceedings had not taken place?

The author is submitting that Art. 22 of the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance provides only one alternative for refusing recognition to a maintenance Judgment (“may be refused”) and that, therefore, more liberal provisions in national Law are upheld. The German code of civil procedure, § 328, seems not to be more liberal, but must be seen in the light of the overwhelming principle of safeguarding the right to be heard in court. Yet, this principle is well safeguarded, if the proposed victim in the subsequent proceedings of exequatur gets a chance to assert what he would have asserted in the original litigation but, thereby, he had no chance to achieve a different result. Under these circumstances the contrary solution would amount to a refusal of justice to the other party.

 

B. Heiderhoff: Refugees and the Hague Child Abduction Convention:

The ECJ held that the removal of a child cannot be wrong ful in the sense of Article 2(11) of Regulation No 2201/2003 (now Article 2 sec 2(11) of Regulation No 2019/1111), if the parent has complied with a decision to transfer under Regulation (EU) No 604/2013 by leaving the country. This decision makes a valid point, but seems too general and reaches too far. The contribution shows that the integration of family law and migration law is insufficient and urges better coordination between the actors to achieve better protection of the child.

 

T. Frantzen: Norwegian International Law of Inheritance

Norway adopted a new act on inheritance and the administration of estates in 2019. The act came into force on 1 January 2021. The new act is based on the principles of the act on inheritance from 1972 and the act on administration of estates from 1930. This means that descendants may claim a forced share of 2/3 of the estate, however with a limitation of approximately 150,000 Euro. With the new act the amount has been increased, and it is regulated each year. A surviving spouse may, as before, claim a legal share. The spouse may alternatively choose to take over the so-called undivided estate. This means that the division of the estate is postponed.

Until the new succession act was adopted, Norwegian choice of law rules on succession were based on customary law. The general principle was that succession was governed by the law of the State in which the deceased had her/his last domicile, and that there was no, or a very limited space, for party autonomy.

The new act decides that the administration of estates may take place in Norway if the deceased had her/his last habitual residence in Norway. When it comes to succession, the main rule is that succession is governed by the law of the State where the deceased had her/his last habitual residence. Party autonomy is introduced in the new act, as a person may choose that succession shall be governed by the law of a State of which he or she was a national. The decision on the choice of law is however not valid if the person was a Norwegian citizen by the time of death. The few provisions on choice of law are based on the EuErbVO.

 

C. Jessel-Holst: Private international law reform in North Macedonia

In 2020, North Macedonia adopted a new Private International Law Act which replaces the 2007 Act of the same name and applies from 18.2.2021. The new Act amounts to a fundamental reform which is mainly inspired by the Acquis communautaire. It also refers to a number of Hague Conventions. The Act contains conflict-of-law rules as well as rules on procedure. Many issues are regulated for the first time. The concept of renvoi is maintained but the scope of application has been significantly reduced. As a requirement for the recognition of foreign judgments the Act introduces the mirror principle. As was previously the case, reciprocity does not constitute a prerequisite for recognition and enforcement.

Generalstaatsanwaltschaft München (Extradition et ne bis in idem)
Citoyenneté européenne
Les autorités d’un État membre ne peuvent pas extrader un ressortissant d’un État tiers vers un autre État tiers lorsque ce ressortissant a été définitivement condamné dans un autre État membre pour les mêmes faits que ceux visés dans la demande d’extradition et a subi la peine qui y a été prononcée

Diego Zambrano, Mariah Mastrodimos and Sergio Valente (Stanford Law School) have posted The Full Faith and Credit Clause and the Puzzle of Abortion Laws on SSRN.

The abstract reads:

Even before Dobbs overturned Roe v. Wade, states and legal observers were debating the constitutionality of another abortion-related law: Texas SB8. In mid-2021, Texas adopted a powerful new anti-abortion bill that barred anyone from performing abortions in the state of Texas starting at six weeks of pregnancy. But instead of empowering government officials to enforce its provisions, SB8 relied entirely on private lawsuits. The Texas abortion law triggered a discussion over the use of private enforcement actions to attack federal constitutional rights. Critics argued that Texas indirectly nullified the then-established constitutional right to abortion, that the Supreme Court surrendered traditional tools to review state legislation, and that SB8’s private enforcement regime was a procedural Frankenstein that violated due process norms. These discussions remain relevant even after the Supreme Court’s overturning of Roe because blue counties with elected prosecutors may refuse to enforce state criminal abortion laws, and states will continue to consider private enforcement schemes to regulate abortion, interstate travel, and other individual rights. Indeed, California recently adopted a gun control statute that is modeled on SB8’s private enforcement scheme.

Most importantly, for our purposes, some states like California have countered SB8 with legal provisions that seek to shield in-state residents from out-of-state claims and even prohibit the enforcement of SB8 awards. The question, then, is not only whether new private enforcement schemes can survive constitutional challenges but whether other states can respond by shielding their own residents.

In this essay we focus on the constitutionality of one legislative response to SB8 adopted by California—AB 1666, a law that seeks to shield in-state medical providers from SB8-style actions by prohibiting California courts from serving as a venue for SB8 claims and barring enforcement of Texas SB8 judgments. California’s main concern was that California doctors could face crippling liability under SB8 for prescribing abortion pills via telemedicine to patients in Texas. The Constitutional problem, however, is that AB1666’s provisions will face challenges under the Full Faith and Credit Clause of Article IV (the “FFC”). This raises a wealth of questions about conflict of laws, interstate relations, horizontal federalism, and the federal Constitution.

In a sense, the FFC is the unheralded workhorse of the original constitution, single-handedly maintaining a system of federalism in which states are obligated to recognize and enforce other states’ laws and judgments. Without it, states would be free to ignore each other’s’ laws, weakening any semblance of a national union and lending a hand to political polarization. Indeed, growing polarization will increase pressure on the FFC, as states seek ways to battle each other over topics like abortion, guns, and LGBTQ related laws.

Focusing specifically on the interaction of California’s AB1666, Texas SB8, and the FFC, we argue that California will probably be able to take advantage of exceptions to the FFC to defend its pro-choice laws. An analysis of recent doctrine demonstrates that California’s venue bar is likely constitutional. The judgment enforcement provision, however, will face trickier challenges and its constitutionality under the FFC is too close to call. The central question going forward is whether courts will interpret the FFC in a flexible and pragmatic manner—allowing for capacious exceptions—or will, by contrast, apply a tight leash on state legislative schemes.

La rédaction de Dalloz actualité fait une petite pause la semaine du 31 octobre.

en lire plus

Minister for Justice and Equality (Levée du sursis)
Espace de liberté, sécurité et justice
Mandat d’arrêt européen : l’avocate générale Ćapeta propose que l’expression « procès qui a mené à la décision » soit interprétée en ce sens qu’elle vise toute étape de la procédure qui a une incidence déterminante sur la privation de liberté d’une personne

Confédération paysanne e.a. (Mutagenèse aléatoire in vitro)
Rapprochement des législations
Variétés végétales modifiées génétiquement : selon le Premier avocat général Szpunar, la mutagenèse aléatoire appliquée in vitro doit être exclue du champ d’application du droit de l’Union en matière de dissémination volontaire d’OGM dans l’environnement

La Quadrature du Net e.a. (Données personnelles et lutte contre la contrefaçon)
Rapprochement des législations
Premier avocat général Szpunar : une autorité nationale devrait pouvoir accéder à des données d’identité civile couplées à des adresses IP lorsque ces données constituent le seul moyen d’investigation permettant d’identifier les titulaires de ces adresses soupçonnés d’atteintes aux droits d’auteur sur Internet

Proximus (Annuaires électroniques publics)
Rapprochement des législations
Le responsable du traitement de données personnelles est tenu de prendre des mesures raisonnables afin d’informer les moteurs de recherche sur Internet d’une demande d’effacement par la personne concernée

Our editor Mayela Celis has on 21 October 2022 defended her PhD thesis “El Convenio de La Haya de 1980 sobre los aspectos civiles de la sustracción internacional de menores: cuatro décadas de interpretación evolutiva – Una selección y análisis de los aspectos clave del Convenio de La Haya a la luz de la jurisprudencia de los Estados contratantes” in Madrid (UNED).

Congratulations!

Prompted by a kind invitation to participate in the International Weekend  of ABILA (American Branch of the International Law Association, NY, 20-22 October 2022), I took a moment to reflect about past achievements and future challenges for private international law (PIL) in the European Union.

We were three speakers in the panel (Karin Kizer and David W. Rivkin  also took part), introduced and moderated by Ronald A. Brand, Michael S. Coffee and Louise Ellen Teitz. The description of the panel read:

This panel will focus on the institutions, players, and issues that are important in the global development of rules of private international law. The panelists will include a global representation of institutional and practitioner perspectives. The discussion will be built around a set of questions dealing with both current practical issues raised by private international law developments and projections for the future.

We were asked to include arbitration in the presentations.

The assignment proved not easy. I confess I got stuck at the very first stage, i.e., how to define ‘achievements’ and ‘challenges’ in PIL: are they different when the ‘PIL’ under examination is of European source?  I guess the answer is that, indeed, EU instruments and case law (of the Court of Justice) in PIL exist as part of a bigger plan: they serve European integration. By way of consequence, assessing PIL developments requires evaluating whether they promote integration or, on the contrary, act as a hindrance to it.

The next question would then be what ‘integration’ entails, how to measure recent PIL contributions of the EU legislature and of the Court thereto, and what future challenges to integration, posed specifically in the area of judicial cooperation in civil and judicial matters, can be predicted at this stage.

As fascinating as (for instance) the impact on mutual trust of the threats to courts and judges’ independence in some EU countries may be, or whether imposing informational obligations to the Member States creates more transparency or is rather counterproductive, upon reflection a pure ‘European-integration’ approach seemed unfit for the purposes of the ABILA invitation. I gave it up; the topic may still be worth for further thought in another context. Considering the likely (American) audience attending the ILW of ABILA, a walk through the latest developments in EU law and the case law of the Court of Justice looked more appropriate – and already proved too much for the time I had .

From this point of departure, I was happy to report that the political attention to judicial cooperation in civil and commercial matters has not declined in the last years. The legislature has obliged adopting new regulations (Regulation 2016/1103 on matrimonial property regimes; Regulation 2016/1104 on the property consequences of registered partnerships), amending  existing ones (Regulation 2015/2421 amending the Regulations on the small claims and the order for payment procedures), and also recasting some (Regulation 2015/848 on insolvency proceedings; Regulation 2019/1111 on matrimonial matters and matters of parental responsibility; Regulation 2020/1783 on taking of evidence; Regulation 2020/1784 of the European Parliament on service of documents).

Indeed, most of the legislative activity of the last decade in the field of PIL is inward-looking. It focuses on strengthening judicial cooperation in the ‘inner circle’ composed of Member States: the task is far from being complete.

From a purely legal (as opposed to political) standpoint, a little bit more surprising is that in some legal instruments a concern for the EU-citizens is made explicit, even where the rules at hand would apply almost equally to non-EU-rooted claimants or defendants: see recital 1 of Regulation 2019/1111; or recitals 8, 32 or 35 of Regulation 2016/1103.

In comparison, the outward-looking activity of the EU lawmaker remains restricted. That is not to say that it has not progressed, both in quantity (meaning, accession to international conventions on PIL, as well as decisions on acceptance of accession of other countries), and in approach. When adopting new legal acts, in addition to resorting to laconic compatibility clauses, the EU legislature keeps an eye on being consistent with existing international conventions: Regulation 2019/1111 is a proof. A wish for judicial cooperation in civil and commercial matters appears in (some) agreements of a general scope, such as the Framework Agreement between the European Union and its member States, of the one part, and Australia, of the other part, in force since 22 October 2022: see its Article 32, comprising a specific mention to facilitating and encouraging the arbitral resolution of international civil and private commercial disputes.

That attention has been given to the civil prong of the European area of justice must be taken as good news.

Visiting the EU Parliament Legislative Train Schedule, the future looks not so promising. And yet there is much to do. There is definitely no PIL legislative overproduction in the Union; however, already with what exist it is easy to get lost.

One of the greatest difficulties in presenting European PIL as a true system to a third-State audience derives from the asymmetries of the instruments as regards geographical scope. The fact that there are several ‘Europes’ in Europe does not only impact on the practical manageability of the rules; it also jeopardizes declared valuable objectives, such as the concentration of closely related claims before the courts of a single Member State. This puzzling situation resulting from a variety of political motives affects above all family matters (in a large sense), but not only. The state of affairs is not likely to change any soon. For the future, the lawmaker should at least take care of making it visible. Sometimes he already does: because of the particular position of Denmark, Article 122, para 3, of the 2017 EU Trademark Regulation clarifies that reference to the Brussels regulation shall include, where appropriate, the Agreement between the European Community and the Kingdom of Denmark. Sometimes he does not: a provision similar to the one just referred to is missing in the GDPR.

Moving to the rules themselves, the newest ones on jurisdiction show an increasing degree of sophistication.

To ABILA I mentioned, by way of example, the provisions allowing for the limitation of proceedings (ad. ex., Article 13 of Regulation 2016/1103), which I see as a ‘distant cousin’ of the forum non conveniens doctrine. I also described the EU fora as being predictable, an assertion which was met with some skepticism in the panel. It is understandable. On paper, all grounds for jurisdiction in the European instruments obey to typical values (certainty, proximity) and reflect the outcome of balances (between the right of access to court of the claimant, and the right to a due process of defendant, with the necessary bias to protect one of the parties or to promote a particular substantive policy, as the case may be). In practice, reality beats the imagination of the legislator and puts the system continuously to a test.

Faced with a problem common to all legal systems, what still makes the European Union unique is the preliminary ruling mechanism (beyond the rightness or wrongfulness of the rulings: the Court can’t please everyone). Its very existence opens up the possibility of reacting to changes uniformly and in a relative short time. When requested by a national jurisdiction, no matter whether first instance, first or second appeal, the Court of Justice’s intervention to adjust the written rules or to shed light on their limits is not a choice – no certiorari.

In civil and commercial matters, the prototypical example of a need for constant adaptation are torts in the internet. Strings of requests for preliminary rulings get to Luxembourg based on variations of very similar facts, pushing the task of the Court of Justice to the verge of the distinction between interpretation and application of the European rules (see C-172/18, AMS Neve, and C-104/22, Lännen, as an example). That the workload of the Court does not decrease, but just the opposite, is to me a sign of trust and of good health of the system, thus an achievement.

In the area of enforcement there is much pending. The big European accomplishments in the last years remain confined to the free movement of titles from and to Member States. The (partial) abolition of exequatur, the possibility to ask for a European account preservation order, the availability of certificates and standards forms to  ease and speed the application for enforcement in a country other than that of delivery of the judgement… benefit Member States’ decisions.

Creditors should be aware that the recent ruling of the Court of Justice in C-568/20, H Limited, does not open wide a door to titles from third States. In my reading of the Court’s decision (which may be wrong), the Brussels I bis Regulation is still limited to the recognition and enforcement in a Member State of decisions of other Member States. It applies, after a foreign judgement has been recognized, to the steps following said recognition, such as an order for payment (if adopted in full compliance with the conditions set forth in the EU regime). The entry into force of the 2019 Hague Convention, when it takes place, will ease the enforcement of non-European titles only to some extent. No doubt there is room for improvement.

Finally, there was, of course, arbitration. In the panel, the discussion revolved around arbitration in the aftermath of the Achmea (C-284/16) and Komstroy (C-741/19) rulings.

I fail to see a difference for commercial arbitration in the pre- and post-Achmea scenarios (in this line, para 54 of C-284/16, resumed in C-741/19): at least, in theory. In any event, decisions such as C-700/20, London Steam-Ship Owners’ Mutual Insurance Association and earlier ones indicate that the main game is played elsewhere.

Among the many doctrinal suggestions for the recast of the Brussels I bis Regulation some focus on arbitration. Personally, I doubt the Commission wants to engage once again in the debate. Whatever the outcome of the ongoing revision of the Regulation, I presume Article 73, para 2, will remain. If this is so, a general line of reasoning of the Court regarding compatibility clauses is worth recalling: said clauses ‘cannot have a purport that conflicts with the principles underlying the legislation of which [they are] part’ (C‑533/08, TNT Express Nederland, at 51, and C- 452/12, Nipponkoa, at 37, on the relationship of the Brussels regime and the Convention on the Contract for the International Carriage of Goods by Road (CMR)). Difficult to imagine that Article 73 could constitute an exception in this regard, or the reasons why.

I did not have the time to present these thoughts in detail, nor other reflections regarding, among other, conflict of law rules. In exchange, I had the pleasure to listen to my two co-panelists on developments in the US and, quite intensively, in the already mentioned concerns of the arbitration world. A summary by S. Labi can be found in Oil-Gas-Energy-Mining-Infrastructure Dispute Management (OGEMID).

The case of the Pax Moot Court Peter Nygh round 2023 is out.

The Pax case involves an oil sale, with concerns about the quality of the oil. It concerns various aspects of civil and commercial law as well as insolvency.

The oral rounds of the competition will take place in Antwerp on 3 to 5 May 2023. The full schedule and further information are available on www.paxmoot.eu.

Whether orders for penalty payment my constitute a ‘judgment’ is an issue under Brussels Ia (A55, see also below). It is also under the EU account preservation order Regulation 655/2014 (the ‘APO’ Regulation or simply ‘APO’) and it is on the latter that Szpunar AG opined last week in C‑291/21 Starkinvest (no English version is as yet available).

Per A7 APO, confirmed in CJEU C-555/18 H.K., when the applicant for an APO  (the creditor) does not (yet) have a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim, creditor must submit sufficient evidence to satisfy the court that he is likely to succeed on the substance of his claim against the debtor: that is the ‘fumus boni juris’ (literally ‘the smoke of a solid right’) requirement.

Under Belgian civil procedure rules, a creditor need not return to the court to have the final amount of a periodic penalty payment confirmed before being able to seize assets commensurate to the amount due: the judgment itself, which for that reason must clearly detail the parameters for the payment’s calculation, serves as enforceable title; the bailiff seizes following her /his own calculation, and the attachment judge confirms the final amount. The point of the exercise is to guarantee sufficient asset seizure, pending the final confirmation of the amount due.

In essence the question is whether this security also works in an international context. The discussion of course triggered discussion of A55 Brussels Ia and its relationship with APO: ‘A judgment given in a Member State which orders a payment by way of a penalty shall be enforceable in the Member State addressed only if the amount of the payment has been finally determined by the court of origin.’

The AG (and with him, the EC and the Member States that intervened) zooms in on the A7(2( APO condition: the debtor must have obtained ‘a judgment, court settlement or authentic instrument requiring the debtor to pay the creditor’s claim‘  (emphasis added): not just ‘a judgment’ as defined in A4(8) APO: “‘judgment’ means any judgment given by a court of a Member State, whatever the judgment may be called, including a decision on the determination of costs or expenses by an officer of the court”. This focus is then followed by a discussion of the word ‘claim’, for which reference is made to the relevant forms prescribed by Commission Implementing Regulation 2016/1823 . This form refers to an amount ‘awarded’ and an ‘amount set out in’ the judgment.

The AG ends his Opinion with the suggestion that the judgment which imposed the penalty payment, together with confirmation eg by a bailiff that the debtor did not meet with the requirements to escape the payment, form a sound basis for the A7(2) APO route of fumus boni iuris.

It is clear that penalty payments could have done with more specific consideration in APO, and  the spirit of the APO Regulation could in my view support a different conclusion. However the textual anchors for the AG’s Opinion would seem strong.

Geert.

Opinion Szpunar AG this morning, whether order to pay periodic penalty payment without determination of the final amount, is a judgment viz the European Account Preservation Order

Starkinvest SRLhttps://t.co/t5a7rPGnzy

— Geert Van Calster (@GAVClaw) October 20, 2022

The author of this post is Lydia Lundstedt, who is a Senior Lecturer at the Stockholm University.

On 20 October 2022, Advocate General Szpunar delivered his opinion (not yet available in English) in Grand Production (C-423/21) on the interpretation of Article 3(1) of Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society.

Marta Requejo Isidro reported on the questions referred by Oberster Gerichtshof (Austria) here.

In essence, the first question in the case is whether a streaming platform operator that retransmits tv broadcasts can be said to communicate works contained in those broadcast to the public in the meaning of Article 3(1) when internet users circumvent geo-blocking measures that the operator put into place to block access to the EU territory. Article 3(1) reads:

Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

Background

The plaintiff, Grand Production d.o.o., a company incorporated under Serbian law, produces audio-visual entertainment programmes which are broadcast on Serbian territory by a Serbian broadcaster. The third defendant, GO4YU d.o.o Beograd (hereinafter GO4YU), also incorporated under Serbian law, has an agreement with the Serbian broadcaster to retransmit the broadcasts on its streaming platform. GO4YU Belgrade does not have the right however to retransmit Grand Production’s programmes outside Serbia and Montenegro and must block access to these programmes outside these territories. GO4YU’s platform is otherwise available both inside and outside Serbia. The first and fourth defendants are Austrian companies related to GO4YO that market the platform and conclude contracts with subscribers of the platform and the second defendant is a chairman of the board and sole shareholder of one of these related companies.

Grand Production claims that the defendants are infringing its copyright because its programmes are accessible on GO4YU’s platform to users worldwide. It claims that users can circumvent GO4YO’s geo-blocking measures and that GO4YO is aware of this. Grand Production applied to the Austrian courts for world-wide interlocutory measures against all defendants but only succeeded in obtaining an order against GO4YU Belgrade limited to the territory of Austria. Grand Production appealed to the referring court.

Platform Operator Infringes if Works are Accessible in the EU …

AG Szpunar opined that concept of ‘communication to the public’ within the meaning of Article 3(1) applies to a situation where the operator of a streaming platform retransmits works contained in a television broadcast originally made outside the EU, when the works are accessible without restriction within the EU (paras 22-26).  Szpunar explained that the CJEU’s decision in ITV Broadcasting (C-607/11) made clear that Article 3(1) covers a retransmission of works in a television broadcast where the retransmission is made by an organisation other than the original broadcaster, over the internet, even though the other organization’s subscribers are within the reception area of the television broadcast and may lawfully receive the broadcast on their televisions (para 22).

Szpunar explained that the fact that the subscribers in the ITV case were in the reception area of the television broadcast did not mean that the ITV case did not apply in a situation where the subscribers were not in reception area of the television broadcast. Szpunar noted that the CJEU made this clarification to respond to the argument that there was no “new public”, that is, a public different from the public to which the original television broadcast was directed. The CJEU held that the new public criterion was not relevant where the internet retransmission was made by different technical means from the original television broadcast.

The AG concluded that if an internet retransmission is also available outside the territory in which the original television broadcast was received, it is necessarily addressed to a wider audience than that of the television broadcast in question and therefore a fortiori constitutes a communication to the public within the meaning of Article 3(1) (para 23).

Szpunar also explained that the fact that the original television broadcast is directed at a territory outside the EU does not preclude a retransmission of that broadcast on the internet from being regarded as a communication to the public within the meaning of Article 3(1), ‘in so far as that retransmission is available in the territory to which the [Infosoc] directive applies.’ (para 25).

… unless the Operator Uses Geo-blocking Measures

AG Szpunar opined however that if an operator of a streaming platform that retransmits television broadcasts containing works uses geo-blocking measures, it does not infringe the communication to the public right in Article 3(1), even though users circumvent these measures to access the works on the territory of the EU (para 45).

AG Szpunar explained that pursuant to CJEU case law, digital rights management tools which include geo-blocking can give rise to legal effects under EU law (para 31). AG Szpunar referred inter alia to the CJEU’s decisions in Svensson (C-466/12) and VG Bild-Kunst (C-392/19), where the CJEU explained that the operator of a website could use access restrictions and anti-embedding measures to limit the public to which the works contained therein are communicated and that anyone circumventing these restrictions would communicate the works to a new public. AG Szpunar maintained that similar reasoning could be applied to geo-blocking measures such as those at issue in the case at hand:

If the copyright owner (or its licensee) has applied such a blocking measure, its transmission is directed only to the circle of persons who access the protected content from the territory defined by the copyright owner (i.e. the territory where access is not blocked). The rightholder therefore does not make any communication to the public in other territories.

If Grand Production’s entertainment programmes on GO4YU Belgrade’s streaming platform are subject to geo-blocking in such a way that access to them can in principle be obtained only from Serbia and Montenegro, GO4YU Belgrade does not carry out any communication of these programmes to the public within the European Union. (para 36-37) (my translation).

AG Szpunar explained that the mere fact that the operator of the platform is aware that users might circumvent the geo-blocking measures is not sufficient for holding the operator responsible, but that the situation would be different if the operator had “deliberately applied ineffective” geo-blocking measures (42-44).

With respect to the second question which concerned whether the related companies could be directly liable for the communication to the public, AG Szpunar opined that companies that have no influence on either the content made available on the platform or on the geo-blocking measures do not themselves communicate the works to the public within the meaning of Article 3(1) (46-53).

Side-steps whether the “Centre of Interests” Basis for Jurisdiction Applies to Copyright Infringements on the Internet

AG Szpunar proposed that the referring court’s third question on the interpretation of Article 7(2) of the Brussels I bis Regulation be dismissed because it was not relevant to the outcome of the dispute in the case at hand.

In essence, the national court asked whether the CJEU’s case law on violations of personality rights on the internet should be applied to copyright infringements on the internet. The referring court noted that the CJEU’s case law on the application of Article 7(2) to copyright infringement on the internet had been criticized. Pursuant to this case law (Pinckney (C-170/12) and  Pez Hejduk (C‑441/13)), the CJEU held that given the territorial nature of copyright protection, a court seised on the basis of the occurrence of damage within its territory has jurisdiction to rule only on the damage caused within its own territory and that the courts of other Member States retain jurisdiction to rule on the damage to copyright caused in their respective territories.

This is in contrast to the Court’s case in Bolagsupplysningen and Ilsjan (C-194/16) and eDate Advertising and others (C-509/09 and C-161/10) on violations of personality right on the internet, where the courts of the Member State where the victim has its centre of interests has jurisdiction to rule on all damage and can hear actions for rectification and removal of unlawful content.

AG Szpunar explained however that Article 7(2) of the Brussels I bis Regulation is not applicable to the case at hand. The third defendant is domiciled outside the EU (in Serbia) so in accordance with Article 6(1) of the Brussels Recast, the Austrian courts are to apply their national rules on jurisdiction. The other three defendants are domiciled in Austria so in accordance with Article 4 of the Brussels Recast, the Austrian courts’ jurisdiction is not territorially limited. Moreover, AG Szpunar noted that there is no indication that Grand Production (the would-be victim) has its centre of interest in Austria.

Comment

I was surprised that AG Szpunar did not refer to the CJEU case law in Football Dataco (C‑173/11) concerning an infringement of a sui generis database right and L’Oréal (C-324/09) concerning trade mark infringement where the Court held that the mere fact that a website containing protected content (e.g. data or a trademark) is accessible in a particular Member State is not sufficient for concluding that the operator of the website is infringing in that Member State (see Football Dataco (C‑173/11), para 36-41 and L’Oréal (C-324/09), para 64-67).

The CJEU explained that if mere accessibility was sufficient, websites, although obviously targeting persons outside the territory of a Member State, but nevertheless technically accessible in that State, would wrongly be subject to the application of that Member State’s laws. The CJEU held that it was up to the national courts to assess on a case-by-case basis whether there is evidence that discloses an intention on the part of the operator to target persons in that Member State (or the EU in the case on an EU trademark).

According to the CJEU, some factors that could disclose such an intention were whether the content of the website was of particular interest to users in the Member State, whether the website operator’s renumeration was based on the number of users from that Member State, whether the Top-Level Domain was a country code of the Member State. I agree with AG Szpunar’s conclusion that an operator that uses effective geo-blocking measures does not disclose an intention to target persons in the blocked Member State. That said, the mere fact that a website operator neglects to use such measures should not automatically lead to the conclusion that the operator infringes in every Member State where the website is technically accessible.

With respect to question about the interpretation of Article 7(2), I think the CJEU’s case law is clear that the centre of interest basis of jurisdiction does not apply to infringements of intellectual property rights due to the territorial nature of protection. This is certainly the case for the economic right associated with copyright. The situation might be different however if an author alleged an infringement of moral rights. This was however not the case here. Moreover, as AG Szpunar rightly explained, Article 7(2) was not applicable to the case.

Dans ses conclusions, l’avocat général Manuel Campos Sánchez-Bordona manque de contribuer à la construction d’un régime autonome et uniforme de responsabilité civile fondé sur l’article 82 du RGPD qui réponde aux enjeux fondamentaux de la protection des données. Cela tient moins à l’absence de présomption du dommage moral qu’à la renationalisation des mesures de réparation susceptibles d’être ordonnées et au refus de réparer les préjudices moraux minimes.

Sur la boutique Dalloz Code de la protection des données personnelles 2023, annoté et commenté Voir la boutique Dalloz

en lire plus

Priskila Pratita Penasthika has recently published her PhD thesis with Eleven titled Unravelling Choice of Law in International Commercial Contracts. Indonesia as an Illustrative Case Study

The abstract reads as follows:

Despite the paramount role of choice of law in international contractual relationships, its implementation in various countries remains disparate. Many countries have acknowledged and given effect to choice of law, but some other countries persist in opposing it. The lingering reluctance in enforcing choice of law remains a challenging impediment to cross-border commercial relationships.

Strict adherence to the territoriality principle, absence of special provisions or clear guidelines of choice of law, and difficulties in confirming the content of the chosen foreign law are among the reasons for the reluctance to give effect to choice of law. These circumstances are encountered by some countries, including Indonesia.

This book not only unravels the reasons for Indonesia’s reluctance and its subsequent lack of advancement on choice of law, but also examines possible solutions to the problem. Building on in-depth doctrinal research, supported by qualitative interviews, this research will serve as an essential point of reference for academics, practitioners, and policymakers interested in private international law and cross-border commercial litigation.

About the author:

Priskila Pratita Penasthika is an Assistant Professor in Private International Law at the Faculty of Law, Universitas Indonesia. She graduated with a doctorate in law from Erasmus University Rotterdam.

Banca Intesa Sanpaolo SPA & Anor v Comune Di Venezia [2022] EWHC 2586 (Comm) is an excellent illustration of the relevance of characterisation and of the international harmonisation of same. It also discusses the application of the ‘purely domestic contracts’ rule of Article 3(3) Rome Convention, carried over into the Rome Regulation.

Background is long-running litigation involving derivative transactions used by Italian municipalities to hedge their interest rate risk, as Sarah Ott summarises the context here (she discusses Dexia Crediop SpA v Provincia di Pesaro e Urbino [2022] EWHC 2410 (Comm), a case with many similar issues).

Venice contends that, for various reasons, it lacked the substantive power to enter into the Transactions as a matter of Italian law, and that, applying English conflict of law principles, that means that it did not have capacity to enter into the Transactions and that they are not valid. It also contends that the Transactions breached various rules of Italian law which have the status of “mandatory rules of law” for the purposes of A3(3) Rome Convention 1980 (which is applicable and not the Rome I Regulation) and that as a result the Transactions are void and/or unenforceable.

The Banks deny that the entry into the Transactions contravened any provisions of Italian law, on the basis of arguments as to the effect of Italian law and its application to the facts of this case, and further deny that any such contravention would deprive Venice of capacity to contract as a matter of English conflict of laws principles in any event.

Capacity to enter into contractual relationship itself is not caught by the Rome Convention as a result of the Convention’s carve-out of Article 1(2) c (most legal systems make such capacity subject to the lex incorporationis, and [115] is determined by reference to the law in force when the Transactions were entered into). Foxton J refers as authority to Credit Suisse International v Stichting Vestia Groep [2014] EWHC 3103 (Comm) [185].

Who then is to decide whether a particular issue of Italian law raises a question of capacity, or authority, or some other kind of legal challenge to the validity and efficacy of the Transactions? Here Foxton J wrongly in my view simply refers to lex fori, English law. In reality of course it is the Rome Convention that does so, although as I have pointed out before, neither the Rome Convention nor Rome I excels at clarifying.

[129] ff then follows lengthy analysis of the issues of capacity under Italian law as the lex causae, with the conclusion being that Venice did indeed so lack capacity under Italian law.

The issue of mandatory Italian law replacing the English lex contractus as a result of Article 3(3) Rome Convention’s ‘purely domestic contracts’ rule, is dealt with obiter. It fails at the first hurdle with Foxton J holding [341] that the scenario is not purely domestic. He does not much entertain the issue of whether under Italian law (lack of) a theory of contractual consideration might be of mandatory nature, referring [356] to the similar issues of consideration and privity of contracts under English law (which in effect might subsequently become relevant under the overriding mandatory rules of the forum).

An interesting judgment.

Geert.

Capacity under IT law to enter into financial transactions; Qualification whether 'capacity' is at stake is subject to lex fori, EN law
(Non)application of A3(3) Rome Convention purely domestic contracts rule

Banca Intesa Sanpaolo ea v Comune Di Venezia https://t.co/lrSv1v4E5b

— Geert Van Calster (@GAVClaw) October 14, 2022

This post was written by Hans van Loon.

As reported in this blog before the European Commission on 23 February 2022 adopted a proposal for a directive on corporate sustainability due diligence.

At its annual meeting in 2021, the European Group for Private International Law (GEDIP) had adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability. The EAPIL blog covered this development, too.

While some of the recommendations proposed by GEDIP are reflected in the Draft Directive, the Draft fails to take into account several crucial recommendations concerning judicial jurisdiction and applicable law. This will detract from its effectiveness.

In particular:

• The Proposal, while extending to third country companies lacks a provision on judicial jurisdiction in respect of such companies;
• The Proposal, while extending a company’s liability to the activities of its subsidiaries and to value chain co-operations carried out by entities “with which the company has a well-established business relationship”, lacks a provision dealing with the limitation of the provision on co-defendants in the Brussels I bis Regulation (Article 8(1)) to those domiciled in the EU;
• The Proposal lacks a provision allowing a victim of a violation of human rights to invoke, similar to a victim of a violation of environmental damage under Article 7 of Regulation 864/2007 (Rome II), also the law of the country in which the event giving rise to the damage occurred, and does not prevent companies from invoking a less strict rule of safety or conduct within the meaning of Article 17 of Rome II;
• The provision of the Proposal on the mandatory nature of the provisions of national law transposing the Directive (Article 22 (5)) is insufficient because (1) the words “in cases where the law applicable to actions for damages to this effect is not that of a Member State” are redundant and (2) all these provisions of national law transposing the Directive should apply irrespective of the law applicable to companies, contractual obligations or non-contractual obligations.

GEDIP therefore, on the occasion of its meeting in Oslo, 9-11 September 2022 adopted a Recommendation concerning the Proposal for a directive of 23 February 2022 on Corporate Sustainability Due Diligence, following up on its Recommendation to the Commission of 8 October 2021. The text of the Recommendation can be found here.

China’s Foreign Exchange Regulations and Illegality in Private International Law 

About this event

When: Wednesday, 23rd November 4pm

Where: Room 3.1, Third Floor, Centre for Commercial Law Studies, 67-69 Lincoln’s Inn Fields London WC2A

Format: In-person

This event is jointly hosted by QM Criminal Justice Centre and the Centre for Financial Law, Regulation & Compliance (FinReg) at the Institute of Advanced Legal Studies.

Abstract

China is one of the countries in the world enforcing the tightest foreign exchange regulations. However, it is controversial whether a commercial contract that is performed partly in China and partly in a commonwealth country would be unenforceable merely because it violates China’s foreign exchange regulations. Based on Australian and English jurisprudence, this talk will explore the intersection between China’s foreign exchange regulations and illegality in private international law. It discusses:

1. Disguised foreign exchange trading, underground banking, and fund splitting;

2. Under-invoicing in trade in goods to evade import tax and over-invoicing in trade in service to claim income tax refund in an importing country; and

3. Illegality in private international law.

Speaker Bio

Dr. Jie (Jeanne) Huang is an Associate Professor at the University of Sydney Law School in Australia. Her prize-winning research focuses on conflict of laws (private international law), especially comparative studies between the USA, the EU, Australia, and China.

She is the Co-chair of the American Society of International Law Private International Law Interest Group. She also serves as an Australian government expert on mission to the United Nations Centre for Trade Facilitation and Electronic Business (UN/CEFACT). She is on the executive committee of the International Law Association (ILA) Australia branch, and she serves as an editor for the Asian Journal of Law and Society. At the University of Sydney, she is the inaugural director for the LLM program and the co-director of the Centre for Asian and Pacific Law. Beyond the academic, Jeanne is an Arbitrator at the Hong Kong International Arbitration Centre and Shanghai International Economic and Trade Arbitration Commission (Shanghai International Arbitration Centre).

To reserve your spot, please see here.