Droit international général

Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm) (05 November 2021) concerns an alleged cartel between several Brazilian companies which produce orange juice, including Sucocítrico Cutrale: 3rd defendant. The other two defendants, Mr Cutrale Sr and Mr Cutrale Jr,  are natural persons Claimants are orange farmers who are all domiciled in Brazil.  The claim relates to alleged antitrust infringements committed in Brazil and said to have restricted competition in markets in Brazil, causing harm to the Claimants there.

Claimants claim to be entitled to maintain proceedings in England and Wales on the bases that:

i)                   although Sucocítrico Cutrale is a Brazilian company, it has its central administration in London and is therefore domiciled in the UK pursuant to A63(1)(b) Brussels Ia;

ii)                 alternatively, the Claimants were entitled to serve Sucocítrico Cutrale, pursuant to CPR 6.3(c)/6.9(2) at a “place within the jurisdiction where [it] carries on its activities; or any place of business of the company within the jurisdiction”.

iii)               Cutrale Snr is domiciled in England; and

iv)               Cutrale Jnr is domiciled in Switzerland and the claims against him are so closely connected with the claims against Sucocítrico Cutrale and Cutrale Snr that it is expedient to hear and determine them together so as to avoid the risk of irreconcilable judgments, pursuant to Article 6 Lugano Convention.

The Defendants’ position is in outline as follows:

Sucocítrico Cutrale

i)                   Sucocítrico Cutrale has its “central administration” in Brazil and is therefore not domiciled in the UK for the purpose of A63(1)(b) BIa.  There is therefore no right to bring proceedings against the company in England under Article 4(1). The court must apply common law principles to determine jurisdiction.

ii)                 Alternatively, the claims against Sucocítrico Cutrale should be stayed under A33 and/or 34 BIa because of ongoing proceedings in Brazil concerning the alleged cartel.

iii)               The Claimants were not entitled to serve Sucocítrico Cutrale at an address within the jurisdiction, and so the company has not been validly served.

iv)               Alternatively, applying common law forum non conveniens principles, Brazil is the proper place for the claims against Sucocítrico Cutrale and the court should not exercise jurisdiction against it.  The claims against Sucocítrico Cutrale should be stayed even if (contrary to the Defendants’ primary case) Cutrale Snr is domiciled in England. Cutrale Snr has confirmed that he would submit to the jurisdiction of the Brazilian court. The risk of inconsistent judgments in England and Brazil therefore carries little weight because it would be caused by the Claimants’ unnecessary pursuit of litigation in England. In such circumstances, the court may stay the claims against the foreign defendant notwithstanding the presence of a UK domiciled anchor defendant (reference is made to Vedanta Resources plc v Lungowe [2020] AC 1045 . I flagged the ‘submission to foreign jurisdiction’ issue in my review of Vedanta).

Cutrale Snr

v)                  Cutrale Snr is not domiciled in the UK. There is therefore no right to bring proceedings against him under A4(1) BIa.

vi)               Further or alternatively, the court should stay the claims against Cutrale Snr pursuant to A34 BIa because of the ongoing proceedings in Brazil.

vii)             Although Cutrale Snr was served in the jurisdiction, applying common law forum non conveniens principles Brazil is the proper place for the claim.  Accordingly, the court should decline jurisdiction.

Cutrale Jnr

viii)           If neither Sucocítrico Cutrale nor Cutrale Snr is English domiciled there is no basis to assume jurisdiction against Cutrale Jnr.

ix)               If Cutrale Snr is English domiciled but the claims against Sucocítrico Cutrale are to proceed in Brazil, the criteria under A6 Lugano are not met because it would be more expedient for the claims against Cutrale Jnr to be heard in Brazil alongside the claims against Sucocítrico Cutrale.

x)                  Further or alternatively, the court should stay the claims pursuant to a reflexive application of A28 Lugano Convention because of the ongoing proceedings in Brazil.

Henshaw J held that the court lacks jurisdiction over Sucocítrico Cutrale however that it does have jurisdiction over Cutrale Snr and Cutrale Jnr and  that there is no proper basis on which to stay the claims against them.

Domicile of Sucocítrico Cutrale (‘SuCu’)

A63 BIa determines corporate domicile as the place where the corporation has its (a) statutory seat; (b) central administration; or (c) principal place of business. Claimants suggest place of central administration as being in London. Anglo American came to my mind as indeed it did to counsel and judge in current case. At 31 ff a concise look into the travaux is offered as are references to CJEU case-law under freedom of establishment (including Uberseering). I would be cautious however with too much emphasis on those cases, which are judged in quite a different context to the one in a jurisdictional assessment.

SuCu are in in essence a family-run business [55]. This is also emphasised in the witness statement of Cutrale Sr himself. SuCu refer extensively to its internal by-laws and the role in same for the ‘Executive Board’ which is made up of professionals. However there is also a, by-laws sanctioned, Family Board (in which Cutrale Sr until recently had a 99% stake). The Executive Board, by defendant’s own admission [55], runs the company on a day to day basis. The Family Board seemingly meets at various places worldwide, and the role of London in the family Board’s direction is not small, given that Cutrale Sr has secretarial assistance for his business interests there, and that his daughter (who also sits on the Family Board) conducts all her business interests there [57].

In Anglo American, the CA held

 ‘the correct interpretation of “central administration” in Article 60(1)(b), when applied to a company, is that it is the place where the company concerned, through its relevant organs according to its own constitutional provisions, takes the decisions that are essential for that company’s operations. That is, to my mind, the same thing as saying it is the place where the company, through its relevant organs, conducts its entrepreneurial management; for that management must involve making decisions that are essential for that company’s operation’

[75] ff the judge does not see London as that place where the entrepreneurial management takes place. This is to some degree a factual appraisal however I I am minded to see quite strong arguments in favour of London. I do not think for instance that BIa’s DNA of predictability for the defendant knowing where it might be sued, carries too much weight here seeing as the complex structure and the diverse effective location of the Family Board’s meetings is of its own making. By failing clearly to implement one centre of entrepreneurial management, visible to outsiders, the defendant in my view brings the risk of positive conflicts of jurisdiction upon itself.  All the more so in my view in cases where, such as here, the accusation is involvement in a cartel, which is unlikely to have happened with the firm controller of the Family Board having been kept in the dark.

Alternative serving under CPR 6.9.(2) [“Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.”] is also dismissed: [104] ff.

[112] ff the judge discusses the domicile of Cutrale Sr which, per A62(1) BIa is to be determined under English law. This [129] ff is held to be England.

Cutrale Jr being undisputably domiciled in Switserland, the question arises whether the claim against him may be anchored upon the claim against his father, per A6(2) Lugano. The judge is reminded of his own judgment in PIS v Al Rajaan. Defendants submit that if the claims against Sucocítrico Cutrale must be pursued in Brazil, it is more expedient for the claims against Cutrale Jnr to be pursued in that jurisdiction, even if the Claimants are entitled to sue Cutrale Snr as of right in England. However [142] the judge agrees with Claimants’ point that somewhat different policy considerations arise when considering the risk of inconsistent judgments within the EU (or between Lugano States), compared to the position vis-à-vis so-called ‘third States’, and that the latter context does not involve the same particular impetus to remove obstacles to the single market and observe the principle of ‘mutual trust’ between the courts of different Member States.

Whilst the claims against Cutrale Jnr are of course connected with those against Sucocitrico, they are also bound to involve important issues in common with the claims against Cutrale Snr which (subject to the issue of an A34 stay, see below) are to be pursued in England  [143].

[144] In conclusion the expediency threshold under A6 Lugano is held to have been reached.

Next, a stay of the proceedings against Cutrale Snr under A34 BIa is rejected [147] ff. Much of the A34 authority, all of which I have discussed on the blog, is flagged. The judge observes the tension between Kolomoisky and EuroEco Fuels (Poland) as to whether the power to stay depends on there being a procedural means by which the two actions could, in fact, be tried together. At [163] the judge thankfully notes the important distinction between A33-34 and A29-30, despite citing A29-30 authority with some emphasis:

I would observe, however, in disagreement with the Defendants, that despite the similarity of language it may well make a difference whether a stay is sought (a) under Article 28 as such or (b) under Article 34 or under Article 28 as applied reflexively vis a vis proceedings in a third country (see § 238 below).  The observation quoted above that there might be a presumption in favour of a stay seems considerably easier to justify in a case where the intra-EU internal market considerations referred to in § 142 above apply than where the overseas proceedings are in a non-Member State.  On the contrary, a presumption of a stay in favour of a third country state of proceedings prima facie brought as a right against a defendant in his place of domicile may well be hard to square with the fundamental principles underlying the Brussels and Lugano regimes.

At [221], too, and in an in my view important and marked departure from Justice Turner in Municipio, Henshaw J here holds that

whilst recital 24 indicates that the court should consider all the circumstances of the case, it does not follow that the court can grant a stay pursuant to Article 34 which is in substance no more than a forum non conveniens stay.  It follows that the factors listed in § 213.iv) above are relevant only insofar as they support the granting of a stay based on the Favero and Costa claims as related claims.

This puts the horse back before the cart.

At [164] ff the ‘rival’ Brasil claims are discussed, [197] of which only two predate the current E&W claim against Cutrale Sr and a conclusion [210] that these are related in a broad sense to the present claims, but that degree of relationship would be insufficient to make it expedient to stay the present claims by reference to them.

[213] ff the various arguments that a stay would be in the ‘interest of justice’ are rejected: these include in particular [216] suggestions of consolidation or joint case management, whilst theoretically possible, are unrealistic in practice (reference is made ia to the fact that none of the current Brazilian claims have been consolidated); [217] neither rival claim is likely to reach a conclusion in the reasonably foreseeable future: on the contrary, both have been mired in procedural disputes for many years.

Similar arguments are made obiter when considering an A33-34 stay against Sucocitrico (in the event the A4 analysis, above, were to be wrong): [241] ff.

At 237, the possibility of a stay of the proceedings against Cutrale Jr, under a reflexive application of A28 Lugano is rejected with mere reference to the reasons listed viz the A34 stay. The judge has to follow the Court of Appeal’s finding in Kolomoisky, that reflexive application of A28 Lugano is possible. Clearly, I submit, it is not and this will be an important point to clarify when and if the UK accede to Lugano.

The judge concludes [249] ff by obiter upholding a forum non stay. His arguments here are interesting among others for they lead to a different result than the A33-34 application – which serves to confirm the very different nature of both mechanisms.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.3.

1/2 Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm)
Brazilian sugar #cartel. Claimants, represented ia by @RHopkins_Law, fail to establish A4 BIa domicile jurisdiction against one defendant but succeed against another.
Claimants succeed on lis pendens challenges: ….

— Geert Van Calster (@GAVClaw) November 8, 2021

I discussed settlement agreements viz Brussels Ia’s protected categories before, in particular in my review of Yukos v Merinson. Choice of court between consumers and employees one the one hand, and the business and employer on the other, is valid inter alia when the parties ‘enter into’ the (choice of court agreement) ‘after the dispute has arisen’. The assumption is that the consumer will have had an opportunity to consult lawyers and that therefore the inequality of arms has disappeared.

A dispute will have ‘arisen’ for the purposes of these Articles only if two conditions are satisfied: (a) the parties must have disagreed upon a specific point; and (b) legal proceedings in relation to that disagreement must be imminent or contemplated.

Many thanks to Henrik Gisløv who sent me copy of the judgment of the City Court and subsequently the High Court in Thomas Higgins v Saxo Bank. Henrik represented Mr Higgins and I have included Henrik’s English translation of the relevant sections of the High Court’s judgment below – I do not read Danish.

I understand from Henrik that Saxo Bank claimed an amount for “CFD financing charges” of EUR 230,000 accrued in less than one month. Mr Higgins, domiciled at Ireland, disputed the claim, and a settlement agreement was entered into. Mr Higgins had no legal advise when entering the settlement agreement – whether the actual, as opposed to assumed, benefit of legal advice is required for A10 to apply, is not discussed.

In the opinion of Mr Higgins the bank breached the terms of the settlement agreement, and he raised several complaints with the staff of the bank. These complaints went unanswered and Mr Higgins decided to terminate the settlement agreement: ‘Further to my email of Friday March 3rd, I confirm that the live price feeds have not been restored. Accordingly, our Contract is now void. Unless you wish to negotiate terms that address the contractual failings, the only option open to me is to reactivate my original Complaint and refer it for regulatory adjudication.’ This was in March 2017.

The bank then filed a case in the Danish courts, in January 2019 only. It argued  jurisdiction on the basis that a choice of court clause had been part of the  settlement agreement which Mr Higgins had terminated in March 2017. The City Court found first of all that Mr Higgins was a consumer (CJEU Petruchova comes to mind). Secondly, the City Court found that the dispute related to whether or not the terms of the settlement agreement had been breached or not. Therefore that the dispute that is being litigated had only arisen after that settlement agreement had been made and that the choice of court made in the settlement agreement was not a valid agreement after the dispute had arisen. The Eastern High court upon appeal however overturned the decision. Leave to appeal to the Supreme Court was rejected.

Of note in my view is that for there to be valid choice of court within the meaning of A19 BIa, legal proceedings in relation to that disagreement must be imminent or contemplated. From my admittedly half baked, Google translate assisted understanding of the judgments, this condition is not discussed in the judgments (it is clear, from the quote, in English, at the time of Mr Higgins’ cancellation of the agreement, legal proceedings are contemplated at that moment; yet the settlement with the choice of court agreement was formed much earlier). Rather, the High Court unconvincingly focuses on the synergy between the complaints under the original platform agreement and the nature of the subsequent complaints. This could have done with SC insight.

The judgment puts the spotlight on the nature of settlement agreements in the context of protected categories, and the stronger role consumer and employment law might have to play to ensure both the twin goal of settling disputes before they go to court, whilst at the same time not depriving the protected categories of their Regulation-sanctioned protection.

Geert.

EU private international law, 3rd ed. 2021, Heading 2.2.9.2.7, 2.270 ff.

 

____Henrik Gisløv translation of the High Court judgment in relevant part:___

It is undisputed before the High Court that the settlement agreement entered into between Thomas Martin Higgins and Saxo Bank A / S, is a consumer agreement in the sense of the term has applied the Judgment Regulation. Cases against consumers must, according to the Judgment Regulation Article 18, paragraph 2, as a starting point is brought before the courts in the Member State in which the consumer resides.

The main issue in this case is then whether the condition of the judgment Article 19 (1) to derogate from this starting point is met. According to the provision is it decisive whether the settlement agreement, including the agreement’s provision on venue, may be deemed to have been concluded after the dispute has arisen. If the condition is fulfilled, the venue agreement is binding on Thomas Martin Higgins.

It is assumed as undisputed that the settlement agreement of 11 July 2016 was entered into as a result of a disagreement as to whether Thomas Martin Higgins had obligation to pay the fees of 231,320 euros that Saxo Bank A / S had charged for the period from 1 to 29 April 2016.

It appears from clause 1 of the settlement agreement, that Thomas Martin Higgins should withdraw its complaint about the fees that Saxo Bank A / S should separate Thomas Martin Higgins’ two accounts and credit one account with one amount of 115,660 euros, corresponding to half of the fees charged. The other account then had a balance of -87,565.16 euros, which Thomas Martin Higgins undertook to pay to Saxo Bank A / S in 12 instalments.

Thomas Martin Higgins paid six instalments until February 2017, after which he by letter dated 6 March 2017, terminated the settlement agreement.

The question then is whether the lawsuit relates to the dispute that was tried resolved by the settlement agreement, or whether it relates to subsequent matters.

Thomas Martin Higgins has argued that Saxo Bank A / S on several points has breached the settlement agreement and that it is these breaches of agreement that are the background for the present case. He has during his explanation to the city court alone referred to the one concrete example that he during his continued trading on the bank’s platform continued to lose so-called live prices (real-time prices).

On the other hand, it is undisputed that Thomas Martin Higgins under the settlement agreement concluded continued to trade on the platform provided by Saxo Bank A / S available to him. Saxo Bank A / S has in accordance with the settlement agreement written down its fee claim to half, and the settlement agreement does not contain detailed terms for the continued trading on the platform, including on live prices.

In view of this and the fact that the amount of 41,297.28 euros that Saxo Bank A / S has withdrawn subpoena for, constitutes the difference between the amount paid by Thomas Martin Higgins had to pay after the settlement and the instalments paid of 45,412.41 euros plus the deposit on account 176283INET / DK4011490100705836, the High Court finds that the present dispute does not concern one which arose after the conclusion of the settlement agreement [and is a, GAVC] disagreement on the interpretation of the agreement, but that the dispute had already arisen when settlement agreement including the venue agreement, was entered into.

…0Saxo bank A / S can bring the case before the bank’s venue at the Court in Lyngby, …and the High Court therefore accepts Saxo Bank A / S ‘claim that the judgment of the district court be set aside and that the case be remanded for consideration at the Court in Lyngby, as a result.”

Written by Hans van Loon, a member of GEDIP and former Secretary General of the Hague Conference on Private International Law (HCCH).  This post was previously published by the EAPIL blog.

The European Group for Private International Law (GEDIP) at its annual – virtual – meeting in September 2021 adopted a Recommendation to the EU Commission concerning the PIL aspects of corporate due diligence and corporate accountability.

The GEDIP adopted this Recommendation although the Commission has not yet published its legislative initiative on mandatory human rights and environmental due diligence obligations for companies, to which EU Commissioner for Justice, Didier Reynders, committed on 19 April 2019[1]. Meanwhile, however, on 10 March 2021 the European Parliament adopted a Resolution “with recommendations to the Commission on corporate due diligence and corporate accountability”[2].  As the Commission will likely draw inspiration from this document, the GEDIP considered the EP Resolution when drafting its Recommendation. The GEDIP also took into account various legislative initiatives taken by Member States such as the 2017 French Loi sur le devoir de vigilance and the 2021 German legislative proposal for a Sorgfaltsplichtengesetz[3], as well as recent case law in the UK and the Netherlands[4]

The Recommendation starts from the premise that the future EU Instrument (whether a Regulation or a Directive) will have a broad, cross-sectoral scope, and will apply both to companies established in the EU and those in a third State when operating in the internal market. In order to accomplish its aim, the Instrument, in addition to a public law monitoring and enforcement system, should create civil law duties for the relevant companies. Since such duties may extend beyond Member States’ territories, they will give rise to issues of private international law. To be effective, the Instrument should not leave their regulation to the differing PIL systems of the Member States. Ultimately, the proposed rules may find their place in revised texts of EU regulations, including Brussels I recast, Rome I and Rome II. But since revisions of those regulations are unlikely to take place before the adoption of the Instrument, and as these rules are indispensable for its proper operation, the proposal is to include them in the Instrument itself.

The Recommendation therefore proposes that the Instrument extends the current provision on connected claims (Art. 8 (1) Brussels I) to cases where the defendant is not domiciled in a Member State, creates a forum necessitatis where no jurisdiction is available within the EU, determines that the Instrument’s provisions have overriding mandatory effect whatever law may apply to contractual and non-contractual obligations and companies, and extends the rule of Art. 7 of Rome II to claims resulting from non-compliance in respect of all matters covered by the Instrument, while excluding the possibility of invoking Art. 17 of Rome II by way of exoneration[5]

[1] European Commission promises mandatory due diligence legislation in 2021 – RBC (responsiblebusinessconduct.eu).

[2] https://www.europarl.europa.eu/doceo/document/TA-9-2021-0073_EN.html.

[3] See II Background to the Proposal, 3.

[4] See II Background to the Proposal 2.

[5] The Annex to the Proposal  contains suggestions concerning the form and the substantive scope of the future EU instrument.

A new issue of the online Belgian Revue de droit international prive / Tijdschrift voor internationaal privaatrecht is now available.

The issue features a rich selection of case law. It includes rulings given by the European Court of Human Rights (on family matters and surrogacy), the Court of Justice of the European Union (on succession, the taking of evidence, parental responsibility, employment contracts and torts matters).

Also included are rulings of the Belgian Constitutional Court and Court of Cassation, as well as the Court of Appeal of Antwerp and the Council for Immigration Disputes. The topics covered include matters of citizenship, rectification of birth certificate, service of judicial decisions, choice of jurisdiction clause in the context of the Lugano Convention, marriage, cross-border insolvency, and international protection of minors requesting humanitarian visa.

The section dedicated to doctrinal views contains a scholarly article by Annekatrien Lenaerts analysing a decision of the Belgian Court of Cassation issued on 18 June 2021 dealing with the communication of a court decision following the service of another judicial document on the basis of national procedural law and the European Service Regulation.

The decision has a particular importance according to the author as it is the first decision ruling that the addition of a copy of a judicial decision to the documents to be communicated to the party after service of one or more procedural documents does not amount to a valid service in accordance with the provisions of the Service Regulation, nor does it lead to the running of the appeal period according to Article 1051(1) of the Belgian Judicial Code.

The Court held that a judicial decision is only validly served at national level if it is expressly mentioned in the bailiff’s writ as the subject of the service. Further, it clarifies that a legally valid service at EU level requires that the decision to be mentioned as the document to be served, both in the application for service by the transmitting agency on the receiving agency using the standard form provided for that purpose and in the receiving agency’s notice of service, as well as in the form for the addressee stating that he has the right to refuse to receive this document.

The author concludes that although this solution may seem strict or formalistic at first glance, it is the only appropriate option in view of the protection of the addressee’s rights of defence. Only if a document is actually and expressly brought to the defendant’s attention in a way that allows the party to truly understand its content and purport, can the addressee effectively know his rights with regard to that document and institute a useful legal remedy against it.

Finally, the last part of the review is dedicated to legislative developments in the area of private international law.

The previous issues of the journal may be freely accessed here.

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The post Rekomendasi By U Paket Hemat Untuk Dicoba appeared first on Aldri Blog.

Posted at the request of Aastha Asthana, Managing Editor of Trade Law and Development

Trade, Law and Development

Call for Submissions

Special Issue

“Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”

Issue 14.1 | Summer ’22

Founded in 2009, the philosophy of Trade, Law and Development has been to generate and sustain a constructive and democratic debate on emergent issues in international economic law and to serve as a forum for the discussion and distribution of ideas. Towards these ends, the Journal has published works by noted scholars such as the WTO DDG Yonov F. Agah, Dr. (Prof.) Ernst Ulrich Petersmann, Prof. Steve Charnovitz, Prof. Petros Mavroidis, Prof. Mitsuo Matsuhita, Prof. Raj Bhala, Prof. Joel Trachtman, Dr. (Prof.) Gabrielle Marceau, Prof. Simon Lester, Prof. Bryan Mercurio, and Prof. M. Sornarajah among others. TL&D also has the distinction of being ranked the best journal in India across all fields of law for seven consecutive years by Washington and Lee University, School of Law.

 

Pursuant to this philosophy, the Board of Editors of Trade, Law and Development is pleased to announce “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime” as the theme for its next Special Issue (Vol. XIV, No. 1).

 

With the “crown jewel of the WTO” in crisis and the deadlock between developing and developed States in various negotiations at the WTO, Members’ confidence in the multilateral trading system is at an all-time low. This is evidenced by the rising number of FTAs around the globe, and States preferring regionalism over the multilateral framework. In turn, this has also severally impacted the WTO’s ability to provide a forum for negotiations to liberalise trade and establish new rules; to oversee and administer multilateral trade rules; and to resolve trade disputes amongst members. Furthermore, the disruption caused by the COVID-19 pandemic, has exacerbated the stress.  Resultantly, WTO Member States are adopting a more protectionist approach.

 

While the WTO’s role in helping economies recover from decreasing trade volumes has increased multi-fold, it remains to be seen how the organization will grapple with each of these challenges individually. Since TL&D’s objective is to provide a forum of exchange of ideas and constructive debate on legal and policy issues, the above-mentioned factors arguably constitute some of the biggest issues for international trade discourse this year. Through this theme, the Journal aims to encourage discussion particularly on how to protect the multilateral rules-based trading system and in turn, prevent the march towards a pre-WTO power-based trading system.

 

While the theme is broad enough to cover a wide range of issues, an indicative list of specific areas is as follows:

• Appellate Body Crisis and the Multi Party Interim Appeal Arrangement (MPIA)
• Transparency and Notification/ Transparency and Consensus-Building within the WTO
• Status of Developing Countries at the WTO
• China and the WTO
• Agriculture and Development vis-à-vis the WTO Agreement on Agriculture
• Environmental Sustainability
• Linking Trade and Non-Trade Issues
• COVID-19 and Reorganization of Global Supply Chains
• Increasing Reliance on the National Security Exception by WTO Members
• Increase in Barriers to Cross-Border Investments/ Protectionism
• USA and the WTO
• Stagnancy in Multilateral Trade Liberalisation
• Mega-Regional Trade Agreements as an Alternative to the WTO

 

These sub-issues are not exhaustive, and the Journal is open to receiving submissions on all aspects related to the challenges faced by the international trade regime and its impact on the global trading system.

 

Accordingly, the Board of Editors of Trade, Law and Development is pleased to invite original, unpublished manuscripts for publication in the Special Issue of the Journal (Vol. XIV, No. 1) in the form of ‘Articles’, ‘Notes’, ‘Comments’ and ‘Book Reviews’, focusing on the theme “Looking Ahead: Addressing the Challenges Faced by the International Trade Regime”.

 

Manuscripts received by March 15th, 2022, pertaining to any sub-theme within the purview of challenges faced by international trade will be reviewed for publication in the Summer ’22 issue.

 

Manuscripts may be submitted via e-mail. For further information about the Journal, please click here. For submission guidelines, please click here.

 

In case of any queries, please feel free to contact us at: editors[at]tradelawdevelopment[dot]com.

 

LAST DATE FOR SUBMISSIONS: 15 March, 2022

 

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Written by Stephen G.A. Pitel, Western University

The court’s decision in HMB Holdings Ltd v Antigua and Barbuda, 2021 SCC 44 (available here) is interesting for at least two reasons. First, it adds to the understanding of the meaning of “carrying on business” as a test for being present in a jurisdiction. Second, it casts doubt on the application of statutory registration schemes for foreign judgments to judgments that themselves recognize a foreign judgment (the so-called ricochet).

In this litigation HMB obtained a Privy Council judgment and then sued to enforce it in British Columbia. Antigua did not defend and so HMB obtained a default judgment. HMB then sought to register the British Columbia judgment in Ontario under Ontario’s statutory scheme for the registration of judgments (known as REJA). An important threshold issue was whether the statutory scheme applied to judgments like the British Columbia one (a recognition judgment). In part this is a matter of statutory interpretation but in part it requires thinking through the aim and objectives of the scheme.

Regrettably for academics and others, the litigants conducted the proceedings on the basis that the scheme DID apply to the British Columbia judgment. Within the scheme, Antigua relied on one of the statutory defences to registration. The defence, found in section 3(b), requires that “the judgment debtor, being a person who was neither carrying on business nor ordinarily resident within the jurisdiction of the original court, did not voluntarily appear or otherwise submit during the proceedings to the jurisdiction of that court”. Three of the elements of this defence were easily established by Antigua, leaving only the issue of whether Antigua could be said to have been carrying on business in British Columbia. If not, the decision could not be registered in Ontario.

On the facts, Antigua had very little connection to British Columbia. What it did have was “contracts with four ‘Authorized Representatives’ with businesses, premises and employees in British Columbia for the purposes of its Citizenship by Investment Program  [which] … aims to encourage investments in Antigua’s real estate, businesses and National Development Fund by granting citizenship to investors and their families in exchange for such investments” (para 7). HMB argued this was sufficient to be carrying on business in British Columbia. The courts below had disagreed, as did all five judges of the Supreme Court of Canada (paras 47-49, 52).

Confirming this result on these facts is not overly significant. What is of more interest is the court, in its decision written by Chief Justice Wagner, offering some comments on the relationship between how the meaning of carrying on business in the context of taking jurisdiction relates to the meaning of that same phrase in the context of determining whether to recognize or register a foreign judgment. Below, one judge of the Court of Appeal for Ontario had held the meanings to be quite different in those different contexts, with a much lower threshold for carrying on business in the latter (para 18). The Supreme Court of Canada rejects this view. When considering presence in a jurisdiction by means of carrying on business there, the analysis is the same whether the court is assessing taking jurisdiction on that basis or is determining whether to give effect to a foreign judgment (and so engaging with the defence in section 3(b)) (paras 35, 41). This is welcome clarification and guidance.

One smaller wrinkle remains, not germane to this dispute. At common law the phrase “carrying on business” is used for two distinct aspects of taking jurisdiction: presence, where it grounds jurisdiction (see Chevron), and assumed jurisdiction, where it gives rise to a “presumptive connecting factor” linking the dispute to the forum (see Club Resorts). If you think that distinction seems odd, you are not alone (see para 39). Anyway, does the phrase also have the same meaning in these two contexts? The court expressly leaves that issue for another day, noting only that if there is a difference, the threshold for carrying on business would be lower in the assumed jurisdiction cases than the presence cases (para 40).

Returning to the issue not pursued by the parties: the status of ricochet judgments under registration schemes. The court could have said nothing on this given the position of the parties and the conclusion under section 3(b). However, Chief Justice Wagner and three of his colleagues expressly note that this is an “open question” and leave it for the future (paras 25-26). Saying the question is open is significant because there is obiter dicta in Chevron that these judgments are caught by the schemes (para 25). Indeed, Justice Cote writes separate reasons (despite concurring on all of the section 3(b) analysis) in order to set out her view that a recognition decision is caught by the scheme, and she points specifically to Chevron as having already made that clear (para 54). Her analysis of the issue is welcome, in part because it is a reasonably detailed treatment. Yet the other judges are not persuaded and, as noted, leave the matter open.

I find powerful the argument that the drafters of these statutory schemes did not contemplate that they would cover recognition judgments, and so despite their literal wording they should be read as though they do not. This would avoid subverting the purpose of the schemes (see para 25). On this see the approach of the Court of Appeal for England and Wales in 2020 in Strategic Technologies Pte Ltd, a decision Justice Cote criticizes for being “unduly focused” on what the statutory scheme truly intended to achieve and lacking fidelity to the actual language it uses (paras 67-68). I also find Justice Cote’s distinctions (paras 60-64) between foreign recognition judgments (which she would include) and foreign statutory registrations (which she would not include) unpersuasive on issues such as comity and judicial control.

In any event, unless this issue gets resolved by amendments to the statutory schemes to clarify their scope, this issue will require a conclusive resolution.

I am catching up a little on recent case-law and am focussing it seems on the consumer section (see also yesterday’s post). This Court Amsterdam judgment published on 8 September caught my eye for it discusses choice of court, applicable law for the substantive validity of same, and ‘consumers’ in the context of buying yachts (now that I write that, in my exams I often have consumers buying yachts). Thank you Haco van der Houven van Oordt for signalling the case.

A purchase agreement for a yacht worth €5.4 million was signed in Singapore between buyer, an Australian living in Australia, and a Dutch shipyard. Seller’s GTCs mention

‘Article 17 – Settlement of disputes 1. Each agreement between [claimant] and the other party is subject exclusively to the laws of the Netherlands. 2. Any disputes which arise between the other party and [claimant], including disputes relating to the interpretation of these terms and conditions, will be put exclusively before the competent judicial body in Amsterdam.’

Pre-delivery was scheduled for December 2018 in Italy. Buyer changes his mind a week after signature, saying he will not be able to honour the agreed price. Vendor pursues the contractual penalty clause of 25% of the sale price. 

The judge finds the consent to choice of court to have been validly expressed on the basis of A25 BIa, under the classic Colzani formula. References to the GTCs had been properly made in the written contract. A duly diligent contracting party could and should have read these GTCs. Defendant’s argument that the choice of court clause in the GTCs should have been the subject of specific negotiation, is rejected [4.3.3].

As for the substantive validity of choice of court, the Dutch court (unlike eg the Belgian Supreme Court in Happy Flights) does add renvoi to the mix per recital 20 BIa. Dutch private international law (like the BE rules, nota bene) makes Rome I applicable to contracts even for the subject-matter excluded of its scope of application, among which choice of court agreements. Lex voluntatis therefore rules and the court holds that the choice of law for Dutch law for the contract as a whole, extends to choice of law for the forum clause [4.3.7].

The defendant finally alleges invalidity of the choice of court agreement on the basis of the lex fori prorogati’s rules on ‘potestative’ (unreasonably onerous) clauses. On this point, the defence succeeds: [4.3.9]: the defendant has to be qualified as a consumer under Dutch law, despite his high net value and the object of purchase, and the GTCs per article 6.236 n BW should have included a clause giving the consumer the option to opt for the default court with jurisdiction (which one that would be is not clear to me and the judgment does not specify it).

Seeing as the choice of court agreement is held to be invalid, that the defendant is domiciled in Australia, and in the absence of a relevant bilateral agreement between the two countries, Dutch residual rules are applied to assess alternative grounds for jurisdiction. There is no Dutch forum contractus, given delivery in Italy [4.5.1, with reference ia to CJEU Car Trim] and no other jurisdictional grounds have any traction.

Conclusion: no jurisdiction for the Dutch courts. The case is good material for the lex fori prorogati rule and for the realisation that even outside the context of the consumer title of Brussels Ia (defendant not being domiciled in the EU, that title was not triggered), consumer law plays an important role in choice of court.

Geert.

Court Amsterdam on choice of court, applicable law for the substantive validity of same, 'consumers' (buying yachts) and onerous clauseshttps://t.co/VSjhYqMIGY @akd_law https://t.co/M4IBF38x3v pic.twitter.com/W9tLdstFzF

— Geert Van Calster (@GAVClaw) October 14, 2021

by Aline Beltrame de Moura, Professor at the Federal University of Santa Catarina, in Brazil

On November 9, 2021, at 4 pm (BR time – GMT -03:00), the Faculty of Law of the Federal University of Santa Catarina will hold a virtual conference, called II Jean Monnet Network Seminar – BRIDGE “Migration and Citizenship in the European Union and Latin America”.

Participants in the event include the Member of the European Parliament, Margarida Marques; the Deputy Head of the European Union Delegation in Brazil, Ana Beatriz Martins; the Regional Policy and Coordination Officer of the International Organization for Migration (IOM – South America), Ezequiel Texidó; the Deputy Representative of the United Nations High Commission for Refugees (UNHCR) in Brazil, Federico Martinez; the Immigration Legal Adviser of Unión Sindical Obrera in Spain, Max Adam Romero; and former employee of Argentina’s Dirección de Migraciones and professor at the Universidad Abierta Interamericana, Emiliano Bursese.

In addition to the Seminar, the event will also feature the presentation of sixteen articles selected through Call for Papers. The two best articles will be awarded the value of EUR 250 each. The Workshop presentations will take place on November 9 from 8:40 am to 12:00 pm (BR time – GMT -03:00), in a virtual mode.

The conference is part of the Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, which is part of the Federal University of Santa Catarina (Brazil); the Faculty of Law of the University of Lisbon; the University of Seville (Spain); the University of Milan (Italy); the National Autonomous University (Mexico); the University of Buenos Aires (Argentina) and the University of Rosario (Colombia).

The seminar will be held in Portuguese and Spanish. Registration is free and must be made through the link https://www.even3.com.br/2seminariobridge

Check out the full schedule at: https://eurolatinstudies.com/laces/announcement/view/85

 

Guest post by Priskila P. Penasthika, Ph.D. Researcher at Erasmus School of Law – Rotterdam and Lecturer in Private International Law at Universitas Indonesia.

Indonesian Accession to the HCCH 1961 Apostille Convention

After almost a decade of discussions, negotiations, and preparations, Indonesia has finally acceded to the HCCH 1961 Apostille Convention. In early January this year, Indonesia enacted Presidential Regulation Number 2 of 2021, signed by President Joko Widodo, as the instrument of accession to the HCCH 1961 Apostille Convention. The HCCH 1961 Apostille Convention is the first HCCH Convention to which Indonesia became a Contracting Party.

In its accession to the HCCH 1961 Apostille Convention, Indonesia made a declaration to exclude documents issued by the Prosecutor Office, the prosecuting body in Indonesia, from the definition of public documents whose requirements of legalisation have been abolished in accordance with Article 1(a) of the HCCH 1961 Apostille Convention.

In accordance with Article 12 of the Convention, Indonesia deposited its instrument of accession to the HCCH 1961 Apostille Convention with the Ministry of Foreign Affairs of the Netherlands on 5 October 2021. The ceremony was a very special occasion because it coincided with the celebration of the 60th anniversary of the Convention. Therefore, the ceremony was part of the Fifth Meeting of the Special Commission on the practical operation of the HCCH 1961 Apostille Convention and witnessed by all Contracting Parties of the Convention.

The Minister of Law and Human Rights of the Republic of Indonesia, Yasonna H. Laoly, joined the ceremony and delivered a speech virtually via videoconference from Jakarta. Minister Laoly voiced the importance of the HCCH 1961 Apostille Convention for Indonesia and underlined Indonesia’s commitment to continue cooperating with the HCCH.

Indonesia’s accession to the HCCH 1961 Apostille Convention brings good news for the many parties concerned. The current process of public document legalisation in Indonesia still follows a traditional method that is highly complex, involves various institutions, and is time-consuming and costly. Because of the accession to the Convention, the complicated and lengthy procedure will be simplified to a single step and will involve only one institution – the designated Competent Authority in Indonesia. Referring to Article 6 of the HCCH 1961 Apostille Convention, in its accession to the Convention, Indonesia designated the Ministry of Law and Human Rights as the Competent Authority. When the HCCH 1961 Apostille Convention enters into force for Indonesia, this Ministry will be responsible for issuing the Apostille certificate to authenticate public documents in Indonesia for use in other Contracting Parties to the Convention.

A Reception Celebrating the 60th Anniversary of the HCCH 1961 Apostille Convention and Indonesian Accession

To celebrate the 60th anniversary of the HCCH 1961 Apostille Convention and Indonesia’s accession to it, an evening reception was held on 5 October 2021 at the residence of the Swiss ambassador to the Kingdom of the Netherlands in The Hague. The reception was organised at the invitation of His Excellency Heinz Walker-Nederkoorn, Swiss Ambassador to the Kingdom of the Netherlands, His Excellency Mayerfas, Indonesian Ambassador to the Kingdom of the Netherlands, and Dr Christophe Bernasconi, Secretary-General of the HCCH. Representatives of some Contracting Parties to the HCCH 1961 Apostille Convention attended the reception; among other attendees were the representatives from recent Contracting Parties such as the Philippines and Singapore, as well as some of the earliest signatories, including Greece, Luxembourg, and Germany.

The host, Ambassador Walker-Nederkoorn, opened the reception with a welcome speech. It was followed by a speech by Ambassador Mayerfas. He echoed the statement of Minister Laoly on the importance of the HCCH 1961 Apostille Convention for Indonesia, especially as a strategy to accomplish the goals of Vision of Indonesia 2045, an ideal that is set to commemorate the centenary of Indonesian independence in 2045. Ambassador Mayerfas also emphasised that Indonesia’s accession to the HCCH 1961 Apostille Convention marked the first important step for future works and cooperation with the HCCH.

Thereafter, Dr Christophe Bernasconi warmly welcomed Indonesia as a Contracting Party to the HCCH 1961 Apostille Convention in his speech at the reception. He also voiced the hope that Indonesia and HCCH continue good cooperation and relations, and invited Indonesia to accede to the other HCCH Conventions considered important by Indonesia.

The Entry into Force of the HCCH 1961 Apostille Convention for Indonesia

Referring to Articles 12 and 15 of the HCCH 1961 Apostille Convention, upon the deposit of the instrument of accession, there is a period of six months for other Contracting Parties to the Convention to raise an objection to the Indonesian accession. The HCCH 1961 Apostille Convention will enter into force for Indonesia on the sixtieth day after the expiration of this six-month period. With great hope that Indonesia’s accession will not meet any objection from the existing Contracting Parties to the Convention, any such objection would affect only the entry into force of the Convention between Indonesia and the objecting Contracting Party.  The HCCH 1961 Apostille Convention will therefore enter into force for Indonesia on 4 June 2022.

A more in-depth analysis (in Indonesian) concerning the present procedure of public document legalisation in Indonesia and the urgency to accede to the HCCH 1961 Apostille Convention can be accessed here. An article reporting the Indonesian accession to the HCCH 1961 Apostille Convention earlier this year can be accessed here.

After Eastern Pacific Chartering Inc v Pola Maritime Ltd, judgment in Dooley & Ors v Castle Trust & Management Services Ltd [2021] EWHC 2682 (Comm) is the second recent case to apply the 1968 Brussels Convention in relations between the UK and Gibraltar. This time it is the consumer section of the Convention which is at the core of the jurisdictional discussion.

Defendant is a company registered in Gibraltar which operates as a professional trustee company. The litigation concerns overseas pension schemes, promoted principally by Montegue Smythe, a Cypriot firm which operated from an English address. The court did not have before it any contractual terms evidencing the relationship between Castle and Montegue Smythe [66].

Common law negligence or breach of regulatory or statutory rules are the claim. Applicable law [15-16] is announced to be a contested issue at trial but not one that featured in the current jurisdictional challenge.

Readers may be aware that prior to the Brussels I Regulation (2001) amendments to the consumer section, requirements to trigger it were quite different. Defendants argue that the consumer section is not engaged for claimants have not shown that the conclusion of the contract was preceded in the consumer’s domicile by a specific invitation addressed to them or by advertising. In support of their case that the requirement of A13.3(b) Brussels Convention was satisfied, claimants plea an extract from Castle’s website which was said to be an act of advertising in the UK.

CJEU Kalfelis, Engler, Gabriel and Pammer (the latter mutatis mutandis and with focus on the CJEU’s view as to its own previous authority under the Convention; for Pammer Alpenhof is a Brussels I case) were the core cases discussed. At [64] Russen J rejects ia Petruchova and Reliantco as relevant authority given their Brussels I(a) context.

The judge emphasises the restrictive interpretation of the consumer section and holds that Castle’s obligations to claimants rested fundamentally upon its trusteeship of the QROPS rather than any separate contract for the provision of financial administration services. There is no plausible evidential basis for saying a contract was concluded for the supply of services outside those which were identified by the Deeds and the Rules which were incorporated by Castle [68].

Any claim against Castle based upon non-performance of services would have to be based upon the Trust Deeds and the Rules incorporated by them. Any such claim would fall within Article 5.6 (equivalent to A7(6) BIa) which would lead to the same court – the Gibraltar court – having jurisdiction as it would under the general rule of A2 Brussels Convention [70].

The judge also held that even on the assumption that a particular claimant read the extract on the website before investing in the QROPS, the fact is that there is no evidence to suggest that the territorial requirement identified in  CJEU Gabriel was satisfied.

The tort gateway under A5(3) Brussels Convention was not much entertained for claimants did not put much weight on it. At [73] the judge located locus delicti commissi in Gibraltar and did not hold on locus damni possibly being in England or the UK (the signing away of the transfer of the funds in the UK potentially qualifying as locus damni. With interesting potential discussion of course of the EU v the E&W approach on same per UKSC Brownlie I and II.

The jurisdictional challenge succeeds.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.1 and 2.2.9.2.2.

Dooley & Ors v Castle Trust & Management Services Ltd [2021] EWHC 2682 (Comm) (13 October 2021)
Another application of Brussels 1968 to a Gibraltar jurisdictional issue
See also https://t.co/EhYxVd532Ohttps://t.co/dYyO187N2I

— Geert Van Calster (@GAVClaw) October 15, 2021

The programme of the XLIV Seminar of the Mexican Academy of Private International and Comparative Law (AMEDIP) is now available here. As previously announced, the XLIV Seminar will take place online from 17 to 19 November 2021.

During this seminar, AMEDIP will pay tribute to the late Mexican professors José Luis Siqueiros Prieto, Rodolfo Cruz Miramontes and María Elena Mansilla y Mejía. Professors Siqueiros Prieto and Mansilla y Mejía were deeply involved in the negotiations – at different stages – of the HCCH Judgments Project and the HCCH 2005 Choice of Court Convention, among other international and regional Conventions.

Among the topics to be discussed are the impact of the pandemic on international family law, legal aspects surrounding vaccines, human rights and private international law, international contracts, arbitration and other selected topics. Speakers come from several Latin American States and a few from Europe: Mexico, Argentina, Brazil, Chile, El Salvador, the Netherlands, Peru, Spain and Uruguay.

Participation is free of charge. The language of the seminar will be Spanish.

The meeting will be held via Zoom. The access details are the following:

https://us02web.zoom.us/j/5554563931?pwd=WE9uemJpeWpXQUo1elRPVjRMV0tvdz09

Meeting ID: 555 456 3931

Password: 00000

For more information, see AMEDIP’s website and its Facebook page

Marco Pasqua, who has been serving as the social media manager of the European Association of Private International Law, is now also an editor of the blog. His first post, on the 2022 Work Programme of the Commission, has just been published and can be found here.

Marco is a PhD student at the Catholic University of Milan.

On 19 October 2021, the European Commission adopted its 2022 Work Programme, setting out its key initiatives and the next steps in the agenda for the year ahead towards a post-COVID-19 Europe greener, fairer, more digital and more resilient.

The Commission Work Programme, by informing how political priorities will be coped to turn them into concrete action, is composed of four Annexes: the first addresses new policy and legislative initiatives; then, the second is in charge of simplifying existing legislation; it follows the third, focused on pending priority legislative files the Commission would the co-legislators to take the swiftest action on; finally, as consequence of the previous ones, the forth, based on intended withdrawals of pending proposals.

Among the new policy initiatives under the Annex I, the one dealing with private international law and having Article 81 TFUE as legal basis to be relied upon relates to the recognition of parenthood between Member States.

While the establishment of this civil status governing the legal relationship between a child and another person is disciplined by the domestic family law, the recognition of the parenthood already established abroad, crucial in cases of acquisition of nationality, residence, EU citizenship, maintenance and succession, is dealt with by private international law rules. Because currently parenthood established in one Member State may not be recognised in another, problems when travelling or moving to another Member State arise, endangering the child’s rights resulting from parenthood.

This is why, in the absence of uniform private international law rules on this issue, both on applicable law and on procedures for the recognition of judgments, a Commission Proposal aimed to ensure that parenthood, as established in one Member State, is to be recognised across the EU is expected in the 2022, so that children maintain their rights in cross-border situations, in particular when their families travel or move within the Union. Surely, if this initiative combines the work to ensure that the Union of equality becomes a reality for all and the need for a less bureaucracy, in so far as promoting the free movement of public documents and recognition of the effects of civil status records, the crux of the matter, politically speaking, will relate to the recognition obstacles new forms of parenthood day-by-day face in the EU when exercising their parenthood-based rights. A tough challenge? Yes, but the Union is full of colors and “if you are parent in one country, you are parent in every country” is urgent to come a reality from a legal point of view too.

Another private international law issue pointed out to be dealt with will be to strengthen judicial cooperation on the protection of vulnerable adults in cross-border situations.

The absence of uniform private international law rules on this field of law, the diversity of Member States’ law on jurisdiction, applicable law and the recognition and enforcement of protection measures, and the limited accessions to the key international instrument in this area, mainly represented by the Hague Convention of 13 January 2000 on the international Protection of Adults, raise considerable problems. However, it remains to be discovered how this will be pursued since no specific legislative initiative is expected to be addressed in the 2022, at least at EU level by the European Commission. A missed opportunity? Given the need, it seems so.

Finally, the new policy initiatives across the six headline ambitions put forward by the President von der Leyen in the Political Guidelines, building on her 2021 State of the Union speech (i.e. “The European Green Deal”, “A Europe fit for the digital age”, “An economy that works for people”, “A stronger Europe in the world”, “Promoting our European way of life”, “A new push for European democracy”) will affect lots fields of law, private international law included; on the other, Annexes II, III and IV will not.

Therefore, the European Commission will start discussions with the Parliament and Council to establish a Joint Declaration on the EU’s legislative priorities the co-legislators agree upon to take swift action.

The Research Center on Private International Law (EDIEC – EA 4185) of the University of Lyon III – Jean Moulin (France) will host a three-day conference to understand whether EU Private International Law should be considered as a comprehensive system (Existe-t-il un système de droit international privé de l’Union européenne?), organised by Ludovic Pailler and Cyril Nourissat, on 17 to 19 November 2021.

The presentation of the conference reads as follows:

The ambitious program proposed by the organizers does not only aim to take stock of a vicennial construction of the law of judicial cooperation in civil matters. It should also allow the speakers to assess whether this field of Union law is merely a pile of autonomous texts (at most likely to constitute a few large blocks – family, obligations, etc.) or whether, beyond that, a comprehensive work is taking shape, a true “system” of private international law, in particular thanks to the many judgments handed down by the Court of Justice of the European Union. This event will also be an opportunity to question the necessity of a system of private international law in order to constitute the area of civil justice called for by the European Commission. In order to take up this major scientific challenge, the colloquium brings together eminent European authors, specialists in Private international law and Union law. Their analysis will be usefully completed by a comparative approach from points of view from outside the Union (China, Maghreb, USA) and by the intervention of practitioners (lawyers, bailiffs, notaries), better able to evaluate the usefulness of a system for their daily work.

Speakers include numerous PIL specialists, scholars as well as senior officials and practitioners:

Louis d’Avout (Paris II Panthéon-Assas), Etienne Farnoux (Strasbourg), Marie Vautravers (European Commission), Tania Jewczuk (French Ministry of Justice) Sandrine Clavel (Paris Saclay), Laurence Idot (Paris II Panthéon-Assas), Edouard Treppoz (Paris 1 Panthéon-Sorbonne), Yves El Hage (Lyon 3), Hélène Gaudin (Toulouse 1 Capitole), Bernard Haftel (Sorbonne Paris Nord), Lukas Rass-Masson (Toulouse 1 Capitole), Carine Brière (Rouen), Jean-Baptiste Racine (Paris II Panthéon-Assas), Malik Laazouzi (Paris II Panthéon-Assas), Emmanuelle Bonifay (Aix-Marseille), Mathias Audit (Paris 1 Panthéon-Sorbonne), Johanna Guillaumé (Rouen), Marie-Elodie Ancel (Paris II Panthéon-Assas), Stéphanie Francq (UCLouvain), Samuel Fulli-Lemaire (Strasbourg), Amélie Panet (Lyon 3), Marion Ho-Dac (Artois), Laurence Usunier (Cergy-Pontoise), Kamalia Metiyeha (Paris 1 Panthéon-Sorbonne), Pierre Callé (Paris-Saclay), Fabienne Jault-Seseke (Paris-Saclay), Michael Wilderspin (former administrator, European Commission), Blandine de Clavière (Lyon 3), Sylvaine Poillot Peruzzetto (French Cour de Cassation), Alain Devers (Lyon 3), Marc Cagniart (Notary, Paris), Alice Meier-Bourdeau (Lawyer, Paris Bar), Mathieu Chardon (Baillif), Emmanuel Guinchard (Liverpool), Sami Bostanji (Tunis), Claudia Lima Marques (Porta Alegre), Gustavo Cerqueira (Nîmes), Nicolas Nord (Strasbourg), Fabien Marchadier (Poitiers) and Jérémy Heymann (Lyon 3).

The full programme is available here.

For registration, please write to marie.brossard@univ-lyon3.fr

It had to be anticipated that Brexit would have detrimental consequences for private litigants. Some have nurtured the hope, however, that the UK-EU Trade and Cooperation Agreement would mitigate some of the damage. This idea was dealt a blow by a recent judgment by the Higher Regional Court (Court of Appeal) of Munich. The court dismissed a suit brought by a British Private Limited Company (Ltd.) for the company’s supposed lack of legal personality.

 Facts, Procedure and Holding

A UK Ltd. based in Berlin sought injunctive relief for alleged price fixing against a German competitor before the courts of Munich. While the Munich Regional Court (LG München I), as the lower court, in its decision (LG München I, 37 O 3787/21) ruled on the merits of the case, the Munich Higher Regional Court (OLG München), in a non-appealable ruling at second instance (OLG München, 29 U 2411/21 Kart), squarely denied the capacity of the Ltd. to be a party of the proceedings.

German International Company Law Applied Strictly

The Court of Appeal argued as follows: Since the UK Ltd. as the claimant was not incorporated in an EU Member State, its legal capacity was to be assessed under German international company law using the real seat theory, according to which a company is subject to the law of the place of its headquarters. This was German law since the Ltd. had its basis in Berlin according to the court’s assessment.

After the Munich court had clarified the applicability of German substantive company law to non-EU companies based in Germany, it further ruled that the UK Ltd. would be legally non-existent as such since it does not fulfill the conditions of any of the corporate forms provided by German law. These corporate forms are exhaustive because of the principle of numerus clausus, and they do not include a Ltd.

The court admitted that a Ltd. based in Germany may have to be considered as a partnership under German law (Gesellschaft bürgerlichen Rechts or offene Handelsgesellschaft), or in the case of a single shareholder, as a merchant. Nevertheless, it rejected the action brought by the Ltd. as inadmissible because of its non-existence as a Ltd.

And the UK-EU Trade and Cooperation Agreement?

Some German authors had opined that the Trade and Cooperation Agreement between the EU and the UK would call for a different conclusion.  Particularly the clauses on national and most-favoured-nation treatment therein would require the recognition of companies incorporated under English law.

Not so, said the Munich court. It stressed that Articles 128(b), 129 and 130 of the Trade and Cooperation Agreement merely guarantee the free movement of trade goods and services, capital and investment, but not the freedom of establishment. It also pointed to Annex 20 Headnotes No. 9 of the Agreement, according to which the obligation of national treatment does not extend to legal persons incorporated in the UK and having their seat in the EU (paras. 21-22).

Assessment

The judgment seems particularly stern, rigid, and ultimately misguided. Already the indiscriminate application of the real seat theory to all third countries is debatable: Some German authors rightly question whether the non-recognition of companies incorporated in such evolved legal systems as the Swiss or the British is indeed justified.

But it is even more wrong to reject such recognition under the EU-UK Trade and Cooperation Agreement. The freedom to provide goods and services explicitly guaranteed in this Agreement is hardly worth anything if the provider will not be legally recognised and cannot assert its rights in court. How should it bring a claim e.g. for an unpaid service?

The fact that the principle of national treatment does not apply to companies based in the EU does not suggest otherwise. It may justify a different treatment for companies incorporated in the UK and based in the EU with regard to the applicable corporate law rules. For example, the liability of shareholders or the rights of management could be subject to the law of the member state in which the company has its seat. But the principle of national treatment certainly does not permit the outright rejection of actions brought by UK companies based in the EU.

The decision of the Munich Higher Regional Court shows the unforeseeable consequences that Brexit may have, even for persons situated within the European Union. The model of operating as a Ltd., which was popular for a while in Germany, especially among small companies, harbours far-reaching dangers and can become a boomerang for many of the companies incorporated in this way, which were supposed to shield the shareholders from personal liability.

It would have been desirable if the Munich Higher Regional Court had removed further uncertainties by departing from the seat theory for British companies and granted these companies legal capacity. At least the Court should have given the Ltd. the chance to correct its corporate denomination in the action and bring the claim as a partnership or merchant. Under German procedural law, the Court is obliged to inform the party about this possibility, and it is unclear whether it has done so.  Outrightly rejecting the claim amounts to barring access to court. Such practice could be questioned under Article 6 of the ECHR.

The third issue of the Lex & Forum is dedicated to the topic of the limits of private autonomy in the EU. The preface was prepared by Professor Emeritus and President of the International Hellenic University Athanassios Kaissis. The central topic of the present issue (Focus) is further elaborated by the contributions of Professor Spyros Tsantinis on the importance of private autonomy in European and international procedural law, and of Dr. Konstantinos Voulgarakis on the protection mechanisms in the case of choice of court agreements. Furthermore, Dr. Stefanos Karameros is analyzing the extension of the choice of court agreements in case of privies in law or privies in blood, after the Kauno Miesto decision.

The Focus of this issue is further enriched by the contributions of Judge Dimitrios Titsias on private autonomy in family law, and of Judge Antonios Vathrakokoilis on the choice of applicable law by the diseased according to the EU Regulation No 650/2012. The Focus also contains the analysis of Professor Komninos Komnios on the execution of judgments on investment arbitration within the EU after the Achmea case and the examination of Dr. Nikolaos Zaprianos on the applicable law in online consumer disputes.

The Focus is further enriched by selected case law and, amongst others, the judgment No 362/2020 of the Herakleion Court of First Instance on the subjection of hotel contract cases under the exclusive jurisdiction of immovable property, with a case note by Anastasia Kalantzi, the judgment No 13.2.2020, n. 3561 by the Italian Cassazione Civile (S.U.), on the relationship between the provisions of the Montreal Convention and a prorogation agreement in case of airplane transport, with a case note by Judge Ioannis Valmantonis, and the case 3 Ob 127-20b of the Oberster Gerichtshof on the scenario of parallel non-exclusive prorogation and arbitration clauses, with a case note by Dr. Ioannis Revolidis. Finally, the Focus is concluded by Dr. Apostolos Anthimos’s case note on the Greek Supreme Court (Areios Pagos) judgment No 767/2019, regarding the execution of an American judgment that lost its validity domestically.

The scientific topics of the present issue consist of the contribution of Professor Paris Arvanitakis on the issue of asymmetrical choice of court agreements.

Lex&Forum is renewing its appointment with its readers in the upcoming issue, dedicated to the latest updates concerning the Hague Convention for the unification of private international law, especially after the EU’s succession.

Robin Cupido (University of Cape Town), Benedikt Schmitz (University of Groningen), and Michiel Poesen (KU Leuven) will be hosting a conference on Taking Stock of Globalisation: the Protection of Economically and Socially Weaker Parties in South African, Dutch, Belgian, and EU Private International Law, which will be held on 16/17 June 2022 in Leuven, Belgium, both in person and online.

The organisers are inviting Dutch- or Afrikaans-speaking junior researchers (PhD candidates, and postdocs/researchers with up to 5 years of experience) to submit an abstract, which should be written in Dutch or Afrikaans and must relate to either South African, Belgian, Dutch, or European Union private international law. Abstracts should not exceed 400 words, and should indicate to which panel they relate most. Applicants whose abstract is selected will be asked to submit a paper in advance of the conference, which they then present in-person or remotely. Abstracts must be submitted to the conference organisers (conference@weakerpartyprotection.com) up until including 27th November 2021. Decisions will be communicated no later than 17th December 2021.

Further information can be found at https://weakerpartyprotection.com/.

In November 2021 the activity of the Court of Justice in the field of Private International Law appears to be limited to two decisions, both expected on the 25.

The first judgement corresponds to the request for a preliminary ruling from the Paris Court of Appeal in C- 289/20, IB, on Article 3 of Regulation Brussels II bis:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of Regulation 2201/2003, that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

AG Campos Sánchez-Bordona’s opinion was published on 8 July 2021. It is not yet available in English. My translation:

Article 3, paragraph 1, letter a), of Council Regulation (EC) No. 2201/2003 (…) must be interpreted in the sense that, for the purposes of the attribution of jurisdiction, only one habitual residence of each spouse can be recognized.

When a spouse shares his life between two or more Member States in such a way that it is not possible, in any way, to identify one of them as that of his habitual residence within the meaning of Article 3 (1) (a) of the Regulation No. 2201/2003, international jurisdiction will have to be determined in accordance with other criteria of the Regulation and, where appropriate, the residuals fora in force in the Member States.

In the same hypothesis, and provided the application of Regulation No. 2201/2003 and the residual fora above-mentioned does not confer international jurisdiction to any Member State, jurisdiction may be exceptionally attributed to the courts of the Member States of a non-habitual residence of a spouse.

The judgement is to be delivered by a chamber of five judges – A. Prechal, J. Passer, F. Biltgen, N. Wahl and S. Rossi, the latter as reporting judge.

The decision on C-25/20, Alpine Bau, corresponds to a request by the Višje sodišče v Ljubljani (Slovenia), on Article 32(2) of the old insolvency regulation:

Is Article 32(2) of Regulation No 1346/2000 to be interpreted as meaning that the rules on the time limits for lodging creditors’ claims, and the consequences of lodging claims out of time under the law of the State in which the secondary proceedings are being conducted, apply to the lodgement of claims in secondary proceedings by the liquidator in the main insolvency proceedings?

Last May, AG Campos Sánchez-Bordona had proposed the following answer:

Article 32(2) of … Regulation (EC) No 1346/2000 … is to be interpreted as meaning that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.

The judgement will be delivered by judges K. Jürimäe (acting as juge rapporteur), S. Rodin and N. Piçarra.

On Tuesday, Nov 2, 2021, the Hamburg Max Planck Institute will host its 15th  monthly virtual workshop Current Research in Private International Law at 11:00-12:30. Verónica Ruiz Abou-Nigm (Edinburgh University and currently a fellow at the  Max Planck Institute for Comparative and International Private Law) will speak, in English, about the topic An Intercultural Paradigm for Private International Law

What does an interculturalist perspective bring to private international law? A dialogical constructivist intercultural paradigm for private international law reflects a post-modern conception of law that embraces cultural diversity and pluralism; strives to invert its technical indifference (‘neutrality’) into technical (pluralist) commitment to normative societal changes; and promotes broader intersectional bottom-up engagement (grounded on freedom and solidarity). This rupturist yet constructive relational (engaging with the concrete other) paradigm, challenges and crosses boundaries between the public and private, mobilises the discipline towards inclusivity and against inequalities, and interlinks the local, the national, the regional and the global spheres, promoting an ethos of fruitful intercultural and inter-systemic communication (fostering deeper dialogues between different modes of thinking, and different knowledge systems), of value to our multicultural societies.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here. If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.