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La chambre sociale se prononce sur la portée de l’immunité de juridiction des États étrangers en présence d’un litige de travail, en se référant à l’article 6 de la Convention européenne des droits de l’homme et au droit international coutumier.

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Practice shows that we’re far away from a perfect world of cooperation between state authorities in the field of cross-border service of process. This post is not about a judgment dealing with the matter (yet). It is what we call a ‘true story’, and serves as a kind of case study, to understand the variety of unprecedented situations with which courts may have to deal with.

A Greek company filed an action against a foreign company, situated in an EU Member State. The claim, its translation, and an application pursuant to Article 4 of the Service Regulation were duly sent by the Transmitting to the Receiving Agency. The latter forwarded the claim to a process server for the purpose of serving the action to its recipient. Following fruitless efforts, the bailiff returned the documents to the court of the state of destination, stating that the respondent was not found in the given address. In particular, so his report, there was no indication that the company had its office there, and no person representing the company or any employee was found in the building. In accordance with domestic law on civil procedure, a hearing took place in camera on the request for service. The court stated that, following official information received, the respondent’s registered seat and postal address was in fact the same with the one stated in the claim form. As a result, and pursuant to Article 50(2) of the Code of Civil Procedure, the documents must be attached to the file, and service shall be deemed as duly made.

On the basis of the above conclusions, the court ordered that a certificate of service in accordance with Article 10 Service Regulation be issued, which should be delivered to the Transmitting Agency, with a true copy of the process server report attached.

The Receiving Agency abided by the order, and issued the above certificate, by making use of the standardized version in Greek. The person in charge filled in the following data: The date and address of service [12.1] in the language of the State of destination, and the method of service [12.2.1.3], i.e. pursuant to Article 50(2) of the Code of Civil Procedure, again in the language of the State of destination. The above person ticked also the box under 12.3, which demonstrates that the recipient was informed in writing that he may refuse to accept the document if it is not translated in a language he understands or the official language of the place of service. Finally, the place, name and capacity under which the above person drafted and signed the document were again written in the language of the state of destination. No court stamp is visible in the certificate.

As I mentioned before, the case is still pending, and the claimant’s lawyer is seriously apprehended whether the documents aforementioned suffice for proving that service has taken place in accordance with the Service Regulation.

There are a number of critical points to be discussed in this case.

1. Is the Greek court entitled to return the certificate, because it was not completed in the languages accepted by the Hellenic Republic (Greek / English / French)? It is true that the receiving Agency made use of the standardized document in its Greek version; however, the crucial data were completed in the language of the State addressed, which is different from the languages declared by Greece).

2. Is the Greek court entitled to challenge the service of process, even if the document was served by a method prescribed by the internal law of the Member State addressed for the service of documents in domestic actions upon persons who are within its territory? According to Greek law, if the process server does not find anything or anyone related to the recipient in the given address, service by publication must follow.

3. Is the Greek court entitled to ask at this stage for a particular method of service, because the one chosen by the foreign court is violating the rights of the defendant? Article 7(1) of the Service Regulation does not give a clear answer in this respect.

4. Is the Greek court entitled to ask at this stage for further scrutiny by the Receiving Agency, so that the document is actually served to the defendant or one of its representatives? I fear that this won’t be accepted by the Receiving Agency, simply because service has taken place in accordance with its domestic rules.

5. If the Greek court considers that service was proper, because it was served by a method prescribed by the internal law of the Member State addressed: was it effected in sufficient time to enable the defendant to defend? I anticipate that the Greek court will consider that service was not timely, and therefore order a stay of proceedings.

Finally, an additional and purely domestic problem comes to the surface for the claimant. According to Greek law, and with respect to cases tried in the so called ordinary proceedings, service of process abroad has to be completed within 60 calendar days following filing of the claim. Failure to do so leads to dismissal of the claim as inadmissible. Filing and service has to be repeated. In the case at hand, the claimant passed already through this ordeal, because service of the first claim was not timely completed, i.e. not within the 60-days term. Now comes the second challenge and the claimant’s lawyer is at a loss…

In Colouroz Investment et al [2020] EWHC 1864 (Ch.), Snowden J at 59 ff considers the classic issues (see ia Lecta Paper) on the jurisdictional issue: no cover under the Insolvency Regulation; cover under Brussels Ia (future Brexit alert: ditto under Lugano) left hanging and assumed arguendo. At 62 Snowden J summarises the position excllently:

‘(T)he court has usually adopted the practice of assuming that Chapter II of the Recast Judgments Regulation applies to schemes of arrangement on the basis that the scheme proposal is to be regarded as a “dispute” concerning the variation of the existing relationship between the company and its creditors under which the company “sues” the scheme creditors as “defendants” seeking an order binding them to the scheme.  If, on the basis of that underlying assumption, the court has jurisdiction over the scheme creditors pursuant to Chapter II of the Recast Judgment Regulation, then there is no need for the Court to determine whether that assumption is correct.

At 64: ‘Credit Agreements and the ICA (Intercreditor Agreement, GAVC) were originally governed by New York law and were subject to the exclusive jurisdiction of the New York Court. However, as a result of the amendments made on 2 June 2020 with the consent of the requisite majority of the lenders under the contractual amendment regime, the governing law and jurisdiction provisions have now been changed to English governing law and English exclusive jurisdiction.’ At 65: expert evidence on NY law suggests amendments made on 2 June 2020 are valid and binding as a matter of New York law.

This to my mind continues to be a fuzy proposition under the Rome I Regulation: change of lex contractus by majority must beg the question on the relevant provisions under Rome I. As far as I am are, this hitherto has not been driven home by anyone at a sanction hearing however it is bound to turn up at some point.

At 66 Snowden J, who gives consent for the sanction hearing, announces that one issue that will have to be discussed there is that if the Schemes are sanctioned, the intention is to have the jurisdiction clauses then changed to asymmetric jurisdiction clauses, detailed in 21-23: lenders will be entitled to bring proceedings against the obligors in any jurisdiction although any proceedings brought by the obligors must be brought in England. At 66 in fine: ‘that question is not for decision at this convening hearing, but should be considered at the sanction hearing.’

That’s a discussion I shall look forward to with interest.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

#Restructuring.
Schemes of arrangement. Involves US, UK, contintental EU corporations.
Convening hearing approved.
Contentious issue of future change to assymetric choice of court deferred to the sanction hearing. https://t.co/OU9MqYdVFX

— Geert Van Calster (@GAVClaw) July 13, 2020

Hamida Begum v Maran UK [2020] EWHC 1846 (QB) engages exactly the kinds of issues that I have just posted about, in court rather than in concept. On 30th March 2018 Mr Mohammed Khalil Mollah fell to his death whilst working on the demolition of a defunct oil tanker in the Zuma Enterprise Shipyar in Chittagong (now Chattogram), Bangladesh. On 11th April 2019 the deceased’s widow issued proceedings claiming damages for negligence under the UK Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976; alternatively, under Bangladeshi law. The scope of the proceedings has subsequently been broadened inasmuch as draft Amended Particulars of Claim advance a cause of action in restitution: more precisely, unjust enrichment.

Application in the current case is for strike-out and /or summary judgment (denying liability) hence the legal issues are dealt with at prima facie instead of full throttle level. One or two of the decisions deserve full assessment at trial. Trial will indeed follow for the application was dismissed.

The case engages with the exact issues in exchanges I had at the w-e.

Proceedings have not been brought against the owner of the yard and/or the deceased’s employer. Both are Bangladeshi entities. Maran (UK) Ltd,  defendant, is a company registered in the UK and, it is alleged, was both factually and legally responsible for the vessel ending up in Bangladesh where working conditions were known to be highly dangerous.

Focus of the oral argument has been whether claim discloses viable claims in English law on the basis of tort of negligence (answer: yes) and in unjust enrichment (answer: no).

The issue of liability in tort is discussed on the basis of English law, which is most odd for Rome II might suggest Bangladeshi law as the lex causae and Justice Jay himself says so much, but only at 76 ff when he discusses Rome II viz the issue of limitation.

On the tort of neglicence claimant argues under English law, with direct relevance to the current debate on environmental and human rights due diligence, that a duty of care required the defendant to take all reasonable steps to ensure that its negotiated and agreed end of life sale and the consequent disposal of the Vessel for demolition would not and did not endanger human health, damage the environment and/or breach international regulations for the protection of human health and the environment. The EU Ship Recycling Regulation 1257/2013 was suggested as playing a role, which is dismissed by Justice Jay at 24 for the Regulation was not applicable ratione temporis.

At 30, claimant’s case on negligence is summarised:

First, the vessel had reached the end of its operating life and a decision was taken (perforce) to dispose of it. Secondly, end-of-life vessels are difficult to dispose of safely. Aside from the evident difficulties inherent in dismantling a large metal structure, a process replete with potential danger, an oil tanker such as this contains numerous hazardous substances such as asbestos, mercury and radio-active components. Although these were listed for Basel Convention purposes and for the attention of the buyer, and the deceased was not injured as a result of exposure to any hazardous substance, the only reasonable inference is that waste such as asbestos is not disposed of safely in Chattogram. Thirdly, the defendant had a choice as to whether to entrust the vessel to a buyer who would convey it to a yard which was either safe or unsafe. Fourthly, the defendant had control and full autonomy over the sale. Fifthly, the defendant knew in all the circumstances that the vessel would end up on Chattogram beach. Sixthly, the defendant knew that the modus operandi at that location entailed scant regard for human life.

The gist of the argument under tort therefore is a classic Donoghue v Stevenson type case of liability arising from a known source of danger.

At 42 ff Justice Jay discusses what to my mind is of great relevance in particular under Article 7 Rome II, should it be engaged, giving claimant a choice between lex locus delicti commissi and lex locus damni for environmental damage, in particular, the issue of ‘control’. One may be aware from my earlier writings (for an overview see my chapter in the 2019 OUP Handbook of Comparative environmental law) that the determination of the lex causae for that issue of control has not been properly discussed by either the CJEU or national courts. This being a prima facie review, the issue is not settled definitively of course however Justice Jay ends by holding that there is no reason to dismiss the case on this issue first hand. This will therefore go to trial.

 As noted Rome II is only discussed towards the end, when the issue of limitation surfaces (logically, it would have come first). Claimant does not convince the judge that the case is manifestly more closely connected with England than with Bangladesh under A4(3) Rome II. Then follows the discussion whether this might be ‘environmental damage’ under Article 7 Rome II, which Justice J at 83 ff holds preliminary and prima facie, it is. That might be an overly broad construction of A7 Rome II, I believe, which shows too much reliance on the context of the litigation.

At 85 a further issue for debate is trial is announced, namely whether the one-year statute of limitation under Bangladeshi law, should be extended under Article 26 Rome II’s allowance for ordre public (compare Roberts and CJEU C-149/18 Martins v DEKRA – that case concerning lois de police and statutes of limitation. 

Plenty of issues to be discussed thoroughly at trial.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.