Droit international général

The e-Codex Plus project and the ERC project team Building EU Civil Justice of the Erasmus School of Law are jointly organising the conference ‘e’ meets justice: building bridges in cross-border procedures. On 2 and 3 May 2019, academics, IT and legal professionals will meet in Lisbon to discuss how to improve the collaboration between these communities in cross-border civil procedures. The aim of the conference is to offer a platform for different stakeholders to meet, engage in discussions and exchange ideas in order to find a meeting point between the legal world and the digital world, arriving at ‘e-justice’. Focusing on e-CODEX as a potential tool to improve the current situation, participants will be encouraged to propose ideas, engage in discussions and develop a mind-set to foster the future of e-Justice in the EU.

In recent years, cross-border (e-)commerce has increased rapidly. In particular, e-commerce enabled consumers to engage in online transactions with traders from outside their jurisdictions. This development resulted in a growing number of cross-border (online) disputes. While the number of disputes surges, there is a lack of suitable redress mechanisms for consumers, posing challenges to access justice. Consumers encounter obstacles to find a remedy for their cross-border claims, due to differences in language, increased costs, longer procedures, and various diverging legal procedures. It is important that justice embraces technology in order to support online and offline consumers. For a smooth functioning of the Internal Market, it is essential that the consumer has trust and confidence to make (online) cross-border purchases. Therefore, the European Union has been active in creating consumer protection legislation, both in substantive law and more recently in procedural law. Cross-border procedures exist, but their accurate functioning requires that infrastructure must be interlinked and coherent, and should enable more dialogue between stakeholders. In this regard, e-CODEX can be a valuable tool to provide the digital exchange of case related data, connecting parties and courts in a single interface.

You can find more information on the programme on: https://www.e-codex.eu/e-meets-justice-conference. Do you want to be part of this lively and thought-provoking dialogue? You can register now by sending an email to: aanmelden@minvenj.nl.

On 15 April 2019 eleven international publishing will host an event on “Choice of Law in International Contracts” to honor the publication of Dr Gustavo Moser’s book Rethinking Choice of Law in Cross-Border Sales. The event will take place from 1 to 5 pm in the  Salon Franz Josef, Hotel Regina, Rooseveltplatz 15, 1090 Vienna, Austria. Topics will include:

• Choice of Law and Brexit
• Drafting Choice of Law Clauses
• CISG Status and Prospects 

1:00 pm – 3:00 pm| Roundtable Lunch with the Stakeholders

Speakers: Professor Ingeborg Schwenzer; Louise Barrington; Dr Patricia Shaughnessy; Michael McIlwrath; Luca Castellani; Dr Florian Mohs; and Dr Sabrina Strassburger

Moderator: Dr Gustavo Moser

3:30 pm – 5:00 pm| Coffee & Tea Talk

Speakers: Professor Ingeborg Schwenzer; Professor Petra Butler; Professor Andrea Bjorklund; and Dr Lisa Spagnolo

Moderator: Dr Gustavo Moser

An interesting comparison may be made between [2019] SGHC 53 Re Zetta Jet Pte Ltd and [2018] EWHC 2186 (Ch) Videology on which I reported here. Both concern recognition of foreign main (or not) proceeding under of the UNCITRAL Model Law on Cross-Border Insolvency (“the Model Law”). Zetta Jet came to me courtesy of my former student Filbert Lam, and has now also been analysed to great effect by Tan Meiyen and colleagues here.

The judgment is a master class on COMI determination, but also on comparative legal analysis re time of filing etc.: best read judgment and Tan’s note for oneself. Of particular note are

• the expression of sympathy by Aedit Abdullah J for forum shopping in insolvency law; compare also with Ocean Rig, and Kekhman; here this took the particular form of following the US approach to selecting the date on which the application for recognition is filed, as relevant to COMI determination (friendlier to forum shopping than te EU’s and England’s date of commencement of the foreign insolvency proceedings);
• the emphasis on the basket of criteria required to identify COMI;
• the narrow approach to ordre public despite Singaporean court order having been defied; yet also the relevance of the fact that these orders post defiance had been varied.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1 et al.

Prof. Dr. Marc-Philippe Weller and Markus Lieberknecht, Heidelberg University, have kindly provided us with the following blog post which is a condensed abstract of the authors’ article in the Juristenzeitung (JZ) 2019, p. 317 et seqq. which explores the topic in greater detail and includes comprehensive references to the relevant case law and literature.

In one of the most controversial German judgments of 2018, the Higher Regional Court of Frankfurt held that the air carrier Kuwait Airways could refuse transportation to an Israeli citizen living in Germany because fulfilling the contract would violate an anti-Israel boycott statute enacted by Kuwait in 1964. The Israeli citizen had validly booked a flight from Frankfurt to Bangkok with a layover in Kuwait City. However, Kuwait Airways hindered the Israeli passenger from boarding the aircraft in Frankfurt. According to the judgment of the Frankfurt Court, Kuwait Airways acted in line with the German legal framework: specific performance of the contract of carriage was deemed to be impossible because of the Kuwait boycott statute.

This judgment is wrong. Hence, it is not surprising that the decision sparked reactions in German media outlets which ranged from mere disbelief to sheer outrage.

The case demonstrates that the seemingly ‘neutral’ domain of Private International Law is not exempt from having to deal with delicate political matters such as the current global rise in anti-Israel and anti-Semitic sentiments. However, Private International Law is not as ill-equipped as the Frankfurt judgment seems to suggest. In fact, both Private International Law and (German) substantive law offer a wide range of instruments to respond to anti-Semitic discrimination.

First, the article explores the term anti-Semitism in order to carve out a workable definition for legal purposes. Based on this concept and on the available empirical data, we identify three scenarios which appear particularly relevant from a private law perspective: these include, first, encroachment on the personal honor and dignity of Jewish persons; second, attempts to alienate Jewish persons economically, one example being the Kuwait Airways case; third, physical attacks on Jewish persons or their property.

When addressing such behavior, private law operates under the influence of a superseding framework of anti-discriminatory provisions contained in international Law, European Law and constitutional law. We attempt to show that the protection of Jewish identity constitutes an overarching paradigm of Germany’s post-war legal order, a notion which finds support in the Jurisprudence of the German Federal Constitutional Court.

On a Private International Law level, this basic value of Germany’s post-war legal order shapes the domestic public policy (ordre public). Moreover, it translates into a twofold use of overriding mandatory provisions. First, under Art. 9(3) Rome I Regulation German courts are precluded from applying foreign overriding mandatory provisions with an anti-Semitic objective, such as Kuwait’s boycott statute. Although the ECJ’s reading of Art. 9(3) Rome I Regulation in Nikiforidis does leave room to take such provisions, or their effects, into account within the applicable substantive law as purely factual circumstances or as foreign data, we argue that the result of this process must not be that provisions which violate the ordre public are inadvertently given effect through the ‘back door’ of substantive law.

Applying our findings to the case, we conclude that Kuwait Airways lacked grounds to invoke both legal and factual impossibility. Whereas the former is precluded under Art. 9(3) Rome I Regulation for constituting a normative application of the Kuwaiti law, the latter requires a more intricate reasoning: We argue that the passenger’s right to specific performance had to be upheld under German contract law, while any purported intrusion of the Kuwaiti authorities into the performance is best dealt with at the enforcement stage. This approach is in line both with the result-driven desire to avoid granting the Kuwaiti law any effect within the German legal order and with the doctrinal structures of German law. One could reach the same conclusion by relying on a fact pointed out by Jan von Hein (Freiburg University): Kuwait Airways is a state enterprise owned by Kuwait, i.e. the very creator of the legal impediment (the boycott statute). Hence, it should not be allowed to rely on a self-created obstacle to refuse performance.

Conversely, overriding mandatory provisions contained in German law, e.g. anti-discrimination statutes, can be used to ward off or modify anti-Semitic effects of a foreign lex causae governing the legal relation in question. We then go on to discuss the necessity, or lack thereof, of adopting a Blocking Statute specifically designed to subvert the effectiveness of foreign legislation with an anti-Semitic agenda.

Lastly, we demonstrate that, in addition to securing the right to specific performance of Israeli citizens, the substantive law provides a host of legal grounds which can serve to empower victims of anti-Semitic discrimination. These instruments range from contractual damages to possible claims based on anti-discrimination law and the law of torts, addressing all of the relevant scenarios outlined above.

Kindly shared by Marta Pertegás Sender, Professor at the University of Maastricht

The University of Maastricht Law Faculty is offering two post-doc positions in the area of private law (including private international law), with focus on digital legal studies and globalisation respectively. The job descriptions and requirements are available hereunder:

– Assistant Professor Digital Legal Studies

– Assistant Professor Private Law and Globalization

The SC this morning held in [2019] UKSC 20 Vedanta and Konkola v Lungowe, confirming jurisdiction in England for a human rights /environmental claim against a Zambia-based defendant, Konkola Copper Mines or ‘KCM’, anchored unto an EU-based defendant, Vedanta resources, the ultimate parent company of KCM. Both High Court and Court of Appeal had upheld such jurisdiction (the links lead to my blog post on both).

Of note are (excuse the small font, there is a lot to report here; I am generally hoping to find some time at some point to convert the blog to a more modern setting. Simply increase font size with your keyboard shortcuts should you find the below difficult to read)

• First of all Lord Briggs’ emphatic rebuke of parties (and courts, one assumes) having disproportionately engaged with the issue of jurisdiction. With reference to ia VTB Capital he underlines that jurisdictional dispute should be settled in summary judgment alone, and should not lead to a mini trial. Reference is made to the size of the bundles etc. A bit of an unfair comment perhaps given that clearly there was a need for SC intervention. At any rate, one imagines that current judgment settles a number of issues and that in future litigation therefore these at least will have to be met with less arguments; lest, as his lordship notes at 14, the Supreme Court’ will find itself in the unenviable position of beating its head against a brick wall.’
• As noted by Coulson J at 57 in the High Court judgment, neither Vedanta nor KCM pursue an Article 34 Brussels Ia argument of lis alibi pendens with proceedings in Zambia. As I signalled in my succinct review of recent study for the EP yesterday, the A34 defence is likely to be important in future litigation.
• Applicants’ arguments that pursuing the case against them is an abuse of EU law, were advanced and equally rejected at both the High Court and the Court of Appeal stage. They are pursued again with the SC (at the latter’s express instruction).
  • At 29 Lord Briggs agrees with the HC and the CA and decides that the point that there has been no such abuse of EU law, is acte clair – no reference to the CJEU therefore.
  • At 31 ff he discusses the limited authority (all of it discussed at the HC and the CA) on abuse of Brussels I (a), particularly abuse of the anchor defendant mechanism of (now) Article 8(1), including of course CDC and at 37 raises the interesting issue of remedy: if abuse is found, is it to be disciplined under a European remedy or rather using the common law instrument of forum non conveniens?
  • And at 39: appellants argue that in CSR cases like these, Owusu has the almost inevitable effect that, providing a minimum level of triable issue can be identified against an English incorporated parent, then litigation about environmental harm all around the world can be carried on in England, wherever the immediate cause of the damage arises from the operations of one of that group’s overseas subsidiaries. With the case against the England-based defendant going ahead at any rate, per Owusu, the risk or irreconcilable judgments should jurisdiction against the subsidiaries be vacated, simply becomes to great. Not so hands tied behind the back, appellants argue, but forum non paralysis.
  • At 40 Lord Briggs suggests an adjustment of the English forum non conveniens doctrine for cases like these: namely to instruct claimants of the need to avoid irreconcilable judgments, where the anchor defendant is prepared to submit to the jurisdiction of the domicile of the foreign defendant in a case where, as here, the foreign jurisdiction would plainly be the proper place, leaving aside the risk of irreconcilable judgments.
• Despite Owusu, the English courts are still within their rights to reject the case in summary judgment if there is no ‘real issue’ to be tried against the anchor defendant. Here, discussion turned at 42 ff as to whether one should merely apply Chandler v Cape [2012] EWCA Civ 525, or whether this case involves the assertion of a new category of common law negligence liability.
  • This was rejected, like it was by Sales LJ in AAA v Unilever plc [2018] EWCA Civ 1532, which I review here.
  • Lord Briggs 54 concludes that viz the common law of liability there is neither anything special nor conclusive about the parent /subsidiary relationship, and
  • at 53 flags what instantly has become a favourite among commentators on the case: ‘Even where group-wide policies do not of themselves give rise to such a duty of care to third parties, they may do so if the parent does not merely proclaim them, but takes active steps, by training, supervision and enforcement, to see that they are implemented by relevant subsidiaries. Similarly, it seems to me that the parent may incur the relevant responsibility to third parties if, in published materials, it holds itself out as exercising that degree of supervision and control of its subsidiaries, even if it does not in fact do so. In such circumstances its very omission may constitute the abdication of a responsibility which it has publicly undertaken.’
  • This part of course inevitably may give parent companies a means to prevent such liability (do not proclaim group-wide policies, let alone train or enforce them – as Gabrielle Holly also immediately noted here). However a variety of mechanisms may prevent this becoming a cheap trick to avoid liability: such compliance programs are often required under competition law, financial law etc., too; are relevant for directors’ liability; and of course may already (such as in the French devoir de vigilance) or in future (as mooted ia by the EC and the EP) be statutorily prescribed.
  • At 60: in the case at issue, the SC finds that the High Court with sufficient care examined and upheld the essence of the claimants’ case against Vedanta, that it exercised a sufficiently high level of supervision and control of the activities at the Mine, with sufficient knowledge of the propensity of those activities to cause toxic escapes into surrounding watercourses, as to incur a duty of care to the claimants. At 61 Lord Briggs adds obiter that not all the material (particularly services agreements) would have persuaded him as much as they did the HC or the CA, however at 62 he emphasis again that the HC and CA’s judgment on same was not vitiated by any error of law.
• At 66 ff then follows the final issue to be determined: forum non conveniens and the further advancement of the issue already signalled above: it troubles Lord Briggs at 75 that the trial judges did not focus upon the fact that, in this case, the anchor defendant, Vedanta, had by the time of the hearing offered to submit to the jurisdiction of the Zambian courts, so that the whole case could be tried there. (An argument which was considered by Leggatt J in VTB).
  • Evidently the A4 BruIa case would have had to continue per Owusu, yet the reason why the parallel pursuit of a claim in England against Vedanta and in Zambia against KCM would give rise to a risk of irreconcilable judgments is because the claimants have chosen to exercise that right to continue against Vedanta in England, rather than because Zambia is not an available forum for the pursuit of the claim against both defendants: claimant-inflicted forum non.
  • Why, at 75 in fine, (it may be asked) should the risk of irreconcilable judgments be a decisive factor in the identification of the proper place, when it is a factor which the claimants, having a choice, have brought upon themselves?
  • Lord Briggs’ argument here is complex and I need to cross-refer more to the various authorities cited however the conclusion seems to be that Lord Briggs rejects the argument of Leggatt J in VTB and he finds that ! provided the ex-EU forum is a suitable forum, under English private international law claimants do have to make a choice: either only sue the A4 defendant in the EU but not the ex-EU subsidiaries; or sue all in the forum where they may all be sued (if there is such a forum), here by virtue of submission to the non-EU forum. The alternative would allow claimant to profit from self-inflicted risks of irreconcilable judgments.
  • In the end the rule is of no impact in the case for Zambia was found not to be an appropriate forum, for reasons of ‘substantial justice’: among others because of the absence of Conditional Fee Agreements, and given the unavoidable scale and complexity of this case (wherever litigated), the trial judge was right that it could not be undertaken at all with the limited funding and legal resources which the evidence led him to conclude were available within Zambia.

By way of my conclusion so far: the group policy direction, enforcement, compliance and communication of same -issue is an important take away from this case. Particularly as it may be expected that holding companies will not find it that straightforward simply to do away with such policies. Of great impact too will be the choice now put upon claimants in the forum non conveniens issue: suing nondom companies by virtue of anchoring unto the A4 mother company in England at least will be less straightforward (many usual suspects among the competing jurisdictions do have CFAs, allow for third party funding  etc.). Yet the two in my view dovetail: the reason for bringing in the ex-EU subsidiaries often is because the substantial case against them tends to serve the case against the mother. With a tighter common law neglicence liability the need to serve the daughter may be less urgent.

Geert.

European private international law, second ed. 2016, Chapter 8, Headings 8.3.1.1., 8.3.2

On April 30, 2019, the Université de Montréal, in collaboration with the Department of Justice Canada, organises a conference on the topic of the “Unidroit Convention on International Interests in Mobile Equipment”. The conference will cover the Aircraft Protocol, which is in force with respect to Canada, as well as the draft MAC Protocol dealing with the asset-based financing of agricultural, mining and construction equipment.  The aim of the conference is to share experience and to foster discussions on the application of the Convention in the Canadian legal system.  What are the challenges?  What are the benefits to users?  Is the draft MAC Protocol relevant to Canada?

The full program will be available shortly on the Université de Montréal website. For further information and registration see here.

A little bit of factual background (and imagination; I shall let readers’ imagination run their course) is needed to appreciate Tanchev AG’s Opinion last week in C‑722/17 Reitbauer, which engages Articles 24(1) and (5), and Article 7(1).

It is alleged in the ‘opposition proceedings’ at issue that the claim of creditor A (the defendant in the CJEU proceeding, Mr Casamassima), which arises from a loan agreement secured by a pledge, and which competes with a counterclaim of creditors B (the applicants at the CJEU: Reitbauer and Others) is invalid due to the (wrongful) preferential treatment of creditor A. This objection is similar to what is known under Austrian law as an action for avoidance (Anfechtungsklage).

The defendant, Mr Casamassima and Isabel C. (‘the debtor’) are resident in Rome and lived together, at least until the spring of 2014. In 2010, they purchased a house in Villach, Austria; and the debtor, Isabel C, was registered in the land register as being the sole owner.

Contracts for extensive renovation work of the house were entered into between Isabel and the CJEU applicants, contracts which were entered into with the ‘participation’ of Mr Casamassima.  Because the costs of the renovation work far exceeded the original budget, payments to Reitbauer et al were suspended. From 2013 onwards, Reitbauer et al were therefore involved in judicial proceedings in Austria against Isabel. Early 2014, the first judgment was handed down in favour of the applicants, and others followed. Isabel appealed against those judgments.

On 7 May 2014 before a court in Rome, the Isabel acknowledged Mr Casamassima’s claim against her with respect to a loan agreement, amounting to EUR 349 772.95. She undertook to pay this amount to the latter within five years under a court settlement. In addition, Isabel undertook to have a mortgage registered on the house in Villach (Austria) in order to secure Mr Casamassima’s claim [the amount of the claim is the result of compensation between the original claim and a counterclaim. Isabel requested Mr C to pay her for overtime work. Mr C requested approximately EUR 380 000 for the purchase of the house and the works. According to him the house belonged formally only to the debtor, who was registered as the sole owner, but the funds were provided by the defendant. Finally, the two parties reached an agreement, leading to the sum at issue].

Now we come to the issues sub judice: at 17 ff (footnotes omitted):

On 13 June 2014 a (further) certificate of indebtedness and pledge certificate was drawn up under Austrian law in Vienna by an Austrian notary to guarantee the above arrangement (pledge 1). With this certificate, the pledge on the house in Villach was created on 18 June 2014.

The judgments in favour of the applicants did not become enforceable until after this date. The pledges on the house of the debtor held by the applicants, obtained by way of legal enforcement proceedings (pledge 2), therefore rank behind the contractual pledge 1 in favour of the defendant.

On 3 September 2015, the court in Rome confirmed that the court settlement of 7 May 2014 constituted a European Enforcement Order.

In order to realise the pledge, the defendant applied in February 2016 to the referring court (Bezirksgericht Villach (District Court, Villach, Austria)) for an order against the debtor, requiring a compulsory auction of the house in Villach. The house was auctioned off in the autumn of 2016 for EUR 280 000. The order of entries in the land register shows that the proceeds would go more or less entirely to the defendant because of pledge 1 (registered under Austrian law in June 2014).

With a view to preventing this, the applicants brought an action for avoidance (Anfechtungsklage) in June 2016 before the Landesgericht Klagenfurt (Regional Court, Klagenfurt, Austria) against the defendant and the debtor. The action was dismissed by that court ‘due to a lack of international jurisdiction in view of the [debtor’s and the defendant’s] domicile’ outside of Austria. In July 2017, that decision became final.

At the same time the applicants filed an opposition before the referring court (Bezirksgericht Villach (District Court, Villach)) at the hearing of 10 May 2017 regarding the distribution of the proceeds from the compulsory auction, and subsequently brought opposition proceedings, as provided for in the EO, against the defendant.

In these opposition proceedings, the applicants seek a declaration that the decision regarding the distribution to the defendant of EUR 279 980.43 was not legally valid in so far as: (i) the debtor had damages claims against the defendant of at least the same amount as the claim arising from the loan agreement, with the result that a claim no longer existed (they claim that the debtor confirmed that the defendant had placed orders with the applicants without her knowledge and consent); and (ii) the certificate of indebtedness and pledge certificate of June 2014 were drawn up merely as a formality and for the purpose of pre-empting and preventing the applicants from bringing any enforcement proceedings in relation to the house.

There we are. In essence applicants are attempting to anchor their pauliana unto A24(5)’s enforcement jurisdiction, in which case Mr C’s enforcement action has acted as a Trojan horse. (Note a similar potential in Kerr v Postnov(a)). Failing that, the anchor might be A24(1)’s locus rei sitae exclusive jurisdictional rule.

Mr C contends in substance that A24(5) B1a does not apply. He argues that the action lacks a direct connection to official enforcement measures: what is being sought is a substantive examination of the pledge entered into in his favour. By its nature, the action lodged is equivalent to an action for avoidance; and in Reichert the CJEU has already ruled that this jurisdiction is not applicable to actions for avoidance. This must therefore also apply if the action for avoidance is exercised by way of an opposition against the distribution and ensuing opposition proceedings. Moreover, he argues A24(1) B1a is not applicable, as in the opposition proceedings the connection with the location of the house at issue is lacking (the opposition proceedings took place only after the immovable property had been auctioned off by the court).

The AG first of all at 39 ff rejects jurisdiction on the basis of Article 24(5). I believe he is right: see my Trojan horse suggestion above. A25(5) must not resurrect merits claims on much wider issues (claim for compensation of applicants’ debt, objections concerning the non-existence of a claim underlying a judicially ordered auction, and concerning the invalidity of the creation of the pledge for that claim under a loan agreement ) for which the enforcement court does not have original jurisdiction. Neither does A24(1) ground jurisdiction: parallel with Reichert is obvious.

Then however the AG, sensing perhaps the suggestions of fraudulent construction, suggests Article 7(1)’s’ forum contractus as a way out – not something which the referring court had enquired about hence quite possible the CJEU might not entertain it. Clearly per Handte there is a contract between applicants and Isabel. However is Mr C involved, too?: the AG draws on Feniks: at 72 ff: in Feniks the CJEU does not require knowledge by the defendant of the first contract, nor does it require an intention to defraud. However in casu it looks like there might be both (subject to factual review by the referring court). At 84: ‘Given the fact that in the judgment in Feniks the jurisdiction in contractual matters in disputes brought against a third party was extended to an actio pauliana even though there was no contractual relationship between the applicant and the defendant, knowledge of a third party should act as a limiting factor: as in the present case, the third party needs to know that the legal act binds the defendant to the debtor and that that causes harm to the contractual rights of another creditor of the debtor (the applicants).’

And at 92: ‘the defendant’s knowledge of the existence of the contract(s) at issue is important.’

The AG is essentially suggesting a limitation of Feniks to cases of fraus – it is unlikely that the CJEU will follow (and vary Feniks so soon). However it is clear that knowledge of the contract between the other parties, particularly where supported by elements of fraus, will increase the potential for application of the (in my view problematic) Feniks route. Note the AG does not discuss the place of performance of the contract (between Reitbauer et al and Mr C – this was exactly one of the sticky points signalled by Bobek AG in Feniks).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1

Written by Dr Rishi Gulati, LSE Fellow in Law, London School of Economics; Barrister, Victorian Bar, Australia

The regulation of public international organisations (IOs) has been brought into sharp focus following the landmark US Supreme Court ruling in Jam v International Finance Corporation586 US (2019) (Jam). Jam is remarkable because the virtually absolute immunities enjoyed by some important IOs have now been limited in the US (where several IOs are based), giving some hope that access to justice for the victims of institutional action may finally become a reality. Jam has no doubt reinvigorated the debate about the regulation of IOs. This post calls for private international law to play its part in that broader debate. After briefly setting out the decision in Jam, a call for a greater role for private international law in the governance of IOs is made.

The Jam decision

The facts giving rise to the Jam litigation and the subsequent decision by the US Supreme Court has already attracted much discussion by public international lawyers, including by this author here. Only a brief summary is presently necessary. The International Finance Corporation (IFC), the private lending arm of the World Bank which is headquartered in the US entered into a loan agreement with Coastal Gujarat Power Limited, a company based in India, to finance the construction of a coal-fired power plant in Gujarat.  The plaintiffs sued the IFC (including in tort) in a US Federal District Court asserting that pollution from the plant harmed the surrounding air, land, and water. The District Court found  that the IFC was absolutely immune under the US International Organisations Immunities Act 1945 (IOIA). The DC Circuit affirmed that decision. For an analysis of those decisions, see previous posts by this author here and here.

However, in its landmark ruling in Jam, the US Supreme Court reversed the decision of the court below, significantly affecting the potential scope of IO immunities. The IOIA, which applies to the IFC, grants international organizations the ‘same immunity from suit…as is enjoyed by foreign governments’ (22 U. S. C. §288a(b). The main issue in Jam concerned how the IOIA standard of immunity is to be interpreted. Should it be equated with the virtually absolute immunity that states enjoyed when the IOIA was enacted? Or should the IOIA standard of immunity be interpreted by reference to the restrictive immunity standard (immunity exists only with respect to non-commercial or public acts)? This latter standard is now enshrined in the US Foreign Sovereign Immunities Act 1976 (s 1605(a)(2), FSIA). By seven votes to one (with Breyer J dissenting) the US Supreme Court has now given a definitive answer. The majority of the court concluded that the IOIA grants immunity with reference to the FSIA standard of immunity, stating:

In granting international organizations the “same immunity” from suit “as is enjoyed by foreign governments,” the Act seems to continuously link the immunity of international organizations to that of foreign governments, so as to ensure ongoing parity between the two. The statute could otherwise have simply stated that international organizations “shall enjoy absolute immunity from suit,” or specified some other fixed level of immunity. Other provisions of the IOIA, such as the one making the property and assets of international organizations “immune from search,” use such noncomparative language to define immunities in a static way…Or the statute could have specified that it was incorporating the law of foreign sovereign immunity as it existed on a particular date…Because the IOIA does neither of those things, we think the “same as” formulation is best understood to make international organization immunity and foreign sovereign immunity continuously equivalent (Jam, pp. 9-10).

The result is that the IFC (and similarly situated organisations) only possess immunities in respect of their non-commercial or public transactions. While the limiting of IO immunities is to be welcomed for it can only go towards enhancing access to justice for the victims of institutional conduct, the decision in Jam raises more questions than it perhaps answers.

Firstly, how can the decision in Jam be accommodated with the international law notion of IO immunities that finds its basis in the theory of ‘functionalism’? The idea being that IOs need immunities to avoid an intrusion into their independence by host states/national courts. Instead of clarifying what this functional standard actually means and how it interacts with the commercial v non-commercial distinction, in Jam, the Supreme Court chose to simply engage in an exercise of statutory interpretation taking a parochial approach (Jam, p. 12). So, there now exists a schism in the international and national (at least in the US) law on IO immunities (see here). Other commentators have tried to provide some indications on how functionalism can be translated to the commercial v non-commercial distinction for the purposes of determining IO immunities, without however providing an answer that will generate any certainty. For the moment, it is simply noted that a transaction that may be within the scope of functional immunities may also be a classically commercial transaction making it difficult to precisely determine what ought to be immune.

Secondly, leaving to one side the schism between the international and national understanding of IO immunities now created, the difficulty in distinguishing between commercial and non-commercial activity itself must not be understated. Webb and  Milneshave stated that ‘IOs with links to the US like the World Bank face the daunting prospect of litigation in the US Courts exploring the extent and limits of what is “commercial”. In state immunity law, this exception has been broadly defined, essentially as comprising the type of activity in which private actors can engage (in contradistinction to the exercise of public power), and its outer boundaries remain unmarked.‘ Just like the distinction has given significant challenges in the state immunity context (whether the focus should be on the nature of the transaction or its purpose), the difficulty will be even greater in the IO context only creating further uncertainties. As Breyer J pointed out in his dissent:

As a result of the majority’s interpretation, many of the international organizations to which the United States belongs will discover that they are now exposed to civil lawsuits based on their (U. S.-law-defined) commercial activity. And because “commercial activity” may well have a broad definition, today’s holding will at the very least create uncertainty for organizations involved in finance, such as the World Bank, the Inter-American Development Bank, and the Multilateral Investment Guarantee Agency. The core functions of these organizations are at least arguably “commercial” in nature; the organizations exist to promote international development by investing in foreign companies and projects across the world…The World Bank, for example, encourages development either by guaranteeing private loans or by providing financing from its own funds if private capital is not available (Jam, p. 29).

The justifiable concerns pointed to by Breyer J require a comprehensive response falling nothing short of treaty reform. In fact, the majority of the Supreme Court in Jam observed that treaty amendment was one method to resolve any real or perceived difficulties for IOs in so far as the scope of their immunities is concerned. In rejecting IFC’s argument that most of its work of entering into loan agreements with private corporations was likely commercial activity; and the very grant of immunities becomes meaningless if it can be sued in respect of claims arising out of its core lending activities (Jam, p. 15), the court said:

The IFC’s concerns are inflated. To begin, the privileges and immunities accorded by the IOIA are only default rules. If the work of a given international organization would be impaired by restrictive immunity, the organization’s charter can always specify a different level of immunity. The charters of many international organizations do just that…Notably, the IFC’s own charter does not state that the IFC is absolutely immune from suit (Jam, pp. 17-8).

Treaty reform is obviously demanding and time-consuming. Jam nevertheless provides the impetus to pursue it with vigour. Such reform is required not only for organisations such as the IFC, but also IOs more generally.

The need for real and meaningful reform: a role for private international law

Clearly, Jam demonstrates the particular difficulties in assessing the scope of the IFC’s immunities. In answering questions of IO immunities, the tension is between two values: maintaining an IO’s functional independence and securing access to justice for the victims of IO action. This tension is not only manifest vis-à-vis the IFC in particular, but exists for all IOs in general. As this author discussed in another work, regardless of the subject matter of a dispute or the gravity of harm, the location of the affected party or the identity of the IO, the public visibility of a dispute or its inconspicuousness, we live in a ‘denial of justice age’ when it comes to the pursuit of justice against IOs. The victims (including families of the more than 9000 individuals who lost their lives) of cholera introduced in Haiti by UN peacekeepers in 2010 are still awaiting effective justice. The victims of the Srebrenica genocide of 1995 for which the UN assumed moral responsibility have not yet been compensated, with no such compensation in sight. When hundreds of Roma suffered serious harm due to lead poisoning caused by the apparent negligence of the UN Mission in Kosovo in placing vulnerable communities next to toxic mines, the UN belatedly set up a Human Rights Advisory Panel; its adverse findings have gone unenforced to this day. There are countless other disputes, including, contractual, tortious, employment and administrative, where a denial of justice is much too common.

If the balance between IO independence and access to justice is to be better and properly struck, fresh thinking is needed that underpins any reform process. Of course, each IO is different from one another, and the shape that any reforms that may take will need to be particularised to the circumstances of the concerned organisation. Nevertheless, IOs constitute international legal persons with significant commonalities, and there ought to be certain foundational reforms that are equally applicable to most if not all organisations. Private international law can play a major role in any such foundational reform process.

Specifically, as I showed elsewhere, there exists a ‘regulatory arbitrage’ in the governance of IOs. This arbitrage results in victims of IO conduct slipping through legal loopholes when seeking to access justice. One manifestation of the regulatory arbitrage is provided by the law on IO immunities, including how it is interpreted and/or applied. As is much too common (see for example the Haiti Cholera Litigation), despite lack of access to justice within the institutional legal order which IOs are required to provide under international law, by and large national courts refuse to limit IO immunities interpreting  functional immunities as de facto absolute. Therefore, (a) immunities that were always intended to be limited by functionalism are overextended; and (b) immunities are not made contingent on the provision of access to justice at the institutional level. The balance between perceived institutional independence and access to justice has leaned towards the former. The result is a denial of justice at multiple levels.

For some victims, Jam may ultimately correct the exploitation of this arbitrage in respect of claims pursued against organisations such as the IFC for lending by that organisation is likely to constitute commercial and therefore non-immune. However, other victims will continue to be denied justice due to ambiguous and broad wording used in constituent instruments providing for IO immunities (such as the immunities of the UN). IOs will continue to exploit the prevailing regulatory arbitrage to avoid liability. Unless the exploitation of the regulatory arbitrage is tackled, the denial of justice age cannot be brought to an end. To address this arbitrage, private international law techniques can be used to balance often competing but legitimate values. For example, conceptualising question of IO immunities in terms of ‘appropriate’ forum can be a useful method to coordinate the exercise of jurisdiction between the IO and national legal orders that co-exist in a pluralist legal space. Here, what should determine whether a national court ought to take jurisdiction over an IO is whether access to justice consistently with fair trial standards is available or can be adequately provided within the IO legal order? This must be determined following a specific and nuanced inquiry as opposed to a tick the box exercise (for employment claims, see a detailed study here).

Further, focusing on the rules on jurisdiction, choice of law and the recognition and enforcement of foreign judgments (the three aspects of private international law), the individual right to access justice can be secured without compromising IO independence   for private international law is perfectly suited to slice regulatory authority across legal orders with much precision. This author has called for the Hague Conference on Private International Law to initiate discussions about the negotiation of a global treaty that enshrines the private international law rules applicable between states and IOs. The regulatory framework that must govern IOs is one which involves public, institutional and  private international law benefiting from each other’s strengths.

As I seem to be in a mopping-up mode this morning, I might as well sneak in late review of Secure Capital SA v Credit Suisse AG, [2015] EWHC 388 (Comm) and at the Court of Appeal [2017] EWCA Civ 1486. Draft post of the latter has been in my ledger since 2017…

The cases essentially are concerned with characterisation; privity of contract, choice of law and dépeçage (bifurcation or severance).

My father-in-law OBE wonderfully sums up the world of international finance as fairy money. Harry (aka Tim Nice But Balding) & Paul express a similar feeling here. I can’t help but think of both when re-reading judgments in both cases.

Allen & Overy have most useful overview here, and RPC add useful analysis here. Claim related to eight longevity notes issued by Credit Suisse in 2008. The Notes were linked to life insurance policies, which meant that the prospect of the holder receiving payments for the Notes depended on mortality rates among a set of “reference lives”.  Secure Capital contended that Credit Suisse failed to disclose that the mortality tables used to generate the estimated life expectancies were shortly to be updated in a way that would significantly increase life expectancies, rendering the Notes effectively worthless. Secure Capital relied on a term in the issuance documentation that stated that Credit Suisse had taken all reasonable care to ensure that information provided in such documentation was accurate and that there were no material facts the omission of which would make any statements contained in those documents misleading.

The Notes were issued by Credit Suisse’s Nassau branch. Under the terms of the transaction documents, the Notes were deposited with the common depositary, Bank of New York Mellon, which held the securities on behalf of the clearing system, in this case Clearstream: which is Luxembourg-based.  The Notes were governed by English law and issued in bearer form.

Secure Capital essentially employ an attractive proposition in Luxembourg law reverse-engineering it either as the proper law of the contract in spite of prima facie clear choice of law, or alternatively as dépeçage: it argues that the provisions of a 2001 Luxembourg law on the Circulation of Securities, being the law that governed the operation of Clearstream through which the Notes were held, gave it an entitlement “to exercise the right of the bearer to bring an action for breach of a term of the…Notes“. In order to succeed, Secure Capital would have to circumvent the English law on privity of contract in respect of a transaction governed by English law.

Allen & Overy’s and RPC’s analysis is most useful for the unsuspected bystander like myself (thankfully I have a researcher, Kim Swerts, starting soon on a PhD in the area of conflict of laws and financial law).

In the High Court Hamblen J at 35 ff discusses the alternative arguments, wich would displace the suggestion that Secura Capital’s claim is a contractual claim. (Tort, as Betson LJ at the appeal stage notes at 24, was not advanced). This included a suggested property right (with discussion on the issue of the lex causae, whether e.g. this might be the lex situs), or, more forcefully, a right sui generis. None of these was upheld. Discussion on relevance of Rome I and /or the Rome Convention took place very succinctly at 53-54 – a touch too succinctly for Hamblen J’s swift reflection is that under both Rome and English conflicts rules, there was no suggestion of displacing the lex contractus. Depending on what counsel discussed, one would have expected some discussion of mandatory law perhaps, or indeed dépeçage – the latter was discussed summarily by Beatson LJ at the Court of Appeal under 54-55.

Geert.

(Handbook of) Private International Law, 2nd ed. 2016, Chapter 3.

A former dean of ours reportedly once suggested that the last thing one should do with something urgent, is tackle it immediately. I have had a draft post on the EC’s assignment proposals in my ledger since 20 March 2018. Colleagues in private law (prof Matthias Storme, too) had already flagged the issues with the applicable law proposal COM(2018) 96 in particular. Now the need for a separate post has been overtaken by Alexander Hewitt’s excellent overview here, following EP first reading.

No more needs to be said.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 3.

As I turn to preparations for a talk on CSR litigation and conflict of laws, Thursday next (11 April) in Cork, (which incidentally will be a day after the UKSC will deliver its verdict in Vedanta), I was consulting the report made for the European Parliament on the issue of access to legal remedies for the victims of corporate human rights abuses.

A few supplementary thoughts, fed also by an upcoming chapter of mine in an edited volume for OUP.

The report does an excellent job at collating much of the relevant case-law in a variety of countries: there is no better way to appreciate the difficulties than to consider the law in action. Despite the efforts of the team, particularly for the UK a few important cases were not included: Bento Rodriguez, Gemfield, Kalma, Garcia v Total.

The report flags the absence of forum non conveniens in Brussels I but omits the important forum non-type mechanism of Brussels Ia: Articles 33-34. This is likely to be important for the future application of CSR cases in the EU.

Analysis of KIK could have focused on the problematic qualification of statutes of limitation under Rome II. (Particularly as the report seeks to make recommendations to the EP and the EU Institutions as a whole).

The often missed elephant in the conflicts room of lex causae for veil-piercing and /or allocating duty of care. Lex fori? Lex causea? Lex societatis (e.g. for the Shell cases in the UK).

The suggestions under 6.2.2 for a forum necessitatis were in fact discussed in the review of Brussels I and it was Parliament at the time which (not unjustifiably) rejected it.

Ordre public considerations would be served well by final completion and release by the EC of its report on the use of ordre public in the EU: the report would have been a good reminder.

Finally in discussing access to justice issues no mention is made of the role of third party financing: this essentially enables much of this type of litigation yet is often seen by many in the CSR community as suspicious.

All in all the conflicts-related recommendations of the report ought to have been fine-tuned: I hope the above is of some service.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 8.

Written by Matthew S. Erie, Associate Professor of Modern Chinese Studies and Fellow at St. Cross College, University of Oxford

On April 2, 2019, the Government of the Hong Kong Special Administrative Region (“HKSAR”) and the Supreme People’s Court of the People’s Republic of China” (“Supreme People’s Court”) signed an Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the HKSAR (hereinafter, “the Arrangement Concerning Mutual Assistance,” see English translation here). This is a momentous development in the growth of international commercial arbitration in both mainland China (also, the “PRC”) and Hong Kong as it is the first time that such a mechanism has been put in place to allow Chinese courts to render interim relief to support arbitrations seated outside of the PRC.

Historically, non-Chinese parties have been concerned about doing business with Chinese parties given the lack of the ability to ensure that the status quo of the assets of the Chinese party in question is not altered pending the outcome of the arbitration and the tribunal’s issuance of the final award.  As a result of the Arrangement Concerning Mutual Assistance, foreign parties will have more comfort in entering into such agreements with Chinese parties; further, the attractiveness of both Hong Kong as a seat of arbitration and the PRC will be enhanced. More generally, the Arrangement Concerning Mutual Assistance demonstrates the close cooperation between legal, judicial, and arbitral authorities in the PRC and Hong Kong. The Arrangement Concerning Mutual Assistance builds on such soft law sources as the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the HKSAR Pursuant to the Choice of Court Agreements Between Parties Concerned, signed on July 14, 2006, and the Arrangement Concerning Mutual Enforcement of Arbitral Awards Between the Mainland and the HKSAR, signed on June 21, 1999.  These sources of soft law position Hong Kong as a major legal hub for Chinese companies investing outside of mainland China. This is particularly so in the context of the Belt and Road Initiative, a multi-trillion dollar project affecting some two-thirds of the world’s population, announced by PRC President Xi Jinping in 2013, to connect mainland China’s economy with those of states throughout Eurasia.

Mainland China’s soft law agreements with Hong Kong are not surprising given that Hong Kong is a “special administrative region” of the PRC, a relationship often summarized as “one country two systems.” Nor is it surprising that Hong Kong should function as a legal hub for Chinese companies. Yet Hong Kong is just one of many such hubs emerging throughout a number of jurisdictions across the Eurasian landmass that are jockeying to provide legal services, and particularly dispute resolution services, to not just Chinese companies but also Japanese, Indian, and those of GCC and ASEAN states. The diversity of parties notwithstanding, with some of the largest multi-national companies in the world backed by strong central government support, China is the dominant economy of the region. China is not only creating soft law with other jurisdictions but also onshoring disputes by building its own NLHs in Shanghai and Shenzhen. As a consequence, emergent economies in Asia are accounting for an ever-larger number of cross-border commercial disputes, and jurisdictions in Asia are building capacity to handle those disputes. Soft law, international arbitration houses, international commercial courts, business mediation, transplanted English common law procedural rules, English language, and lawtech—these are all constitutive elements of what I call “new legal hubs” (“NLHs”), one-stop shops for cross-border commercial dispute resolution, in financial centers, promoted as an official policy by nondemocratic or hybrid regimes.

Over the course of two years, I conducted ethnographic fieldwork on six NLHs in four countries, including in Hong Kong, Singapore, Dubai, Kazakhstan, and China. The result of my research, “The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution” (see here), is forthcoming in the Virginia Journal of International Law. The article analyses NLHs at two levels: their impact on the host states in which they are embedded and interhub connections as a form of transnational ordering. This article finds that, first, legal hubs are engines of doctrinal, procedural, and technological experimentation, but they have had limited impact on the reform of the wider jurisdictions within which they are embedded. Second, through relationships of competition and complementarity, legal hubs function to enhance normative settlement. However, many of the innovations (e.g., intrahub cross-institutional mechanisms between courts and arbitration institutions and interhub soft law such as memoranda of understanding) are untested, vulnerable to state politics, or even unlawful. Consequently, NLHs demonstrate the potential and fragility of “rule of law” in nondemocratic states that promote globalization against trends in the West.

The article begins with an introduction that defines NLHs, identifies their significance as jurisdictional carve-outs to otherwise weak legal systems of host states, and proposes an anthropology of legal hubs. Part I sets the analysis of NLHs against the backdrop of a partially deglobalizing Euro-American liberal legal order and a globalizing “Inter-Asian” one. Part II describes the methodology of “para-ethnography.” Part III provides a theory of NLHs. Part IV builds on this theory to generate a continuum of NLHs. Part V assesses how NLHs and their host states affect each other, including hubs’ positive spillover effects and host state pushback. Part VI examines the possibilities for interhub ordering.

On 7 June 2019, the School of Law at Royal Holloway, University of London and the School of Law at Middlesex University organise a conference on the topic of “Access to Justice and Arbitration”. The conference is hosted at Royal Holloway.

The aim of the conference is to initiate a focused debate about access to justice in arbitration that would enable a larger public discussion about the specific role of access to justice in arbitration.

The full programme will be published shortly. For further information and registration see here and here.

I fear I do not have the time or opportunity for the moment fully to analyse Saugmandsgaard ØE’s Opinion at the end of January in C-689/17 MSC Flaminia (no EN version available) – hence this post is a flag more than a review. The second Opinion of the AG in the same month (see C-634/16 ReFood) on the waste shipments Regulation.

Readers beware: there are two distinct exemptions for ships-related waste in the waste shipments Regulation: are exempt:

the offloading to shore of waste, including waste water and residues, generated by the normal operation of ships and offshore platforms, provided that such waste is subject to the requirements of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto (Marpol 73/78), or other binding international instruments; and

waste generated on board vehicles, trains, aeroplanes and ships, until such waste is offloaded in order to be recovered or disposed of.

In the case at issue: does the latter cover residues from damage to a ship at sea in the form of scrap metal and fire extinguishing water mixed with sludge and cargo residues on board the ship?

Geert.

Handbook of EU Waste Law, 2nd ed. 2015, Oxford, OUP, Chapter 3, 3.27 ff.

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) has announced that the 11th International Forum on the e-APP (electronic Apostille Program) will be held in Fortaleza, Brazil, from 16 to 18 October 2019.

The e-APP promotes the use of technology to further enhance the secure and effective operation of the HCCH Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents Apostille Convention (Apostille Convention).  Among the technologies that will probably be discussed are the use of distributed ledger technologies (such as blockchain) in accordance with the Conclusion & Recommendation No 35 of the HCCH Council.

The working languages of the Forum will be English, Portuguese and Spanish.

Many Contracting Parties have already implemented one or both components of the e-APP. There are already 35 Contracting Parties with an e-Register, many of which are in the Americas. See here.

More information (incl. registration process) will be made available on the Apostille Section of the HCCH website. While the number of participants is limited, registration is free of charge and will be handled on a first come, first served basis.

The HCCH news item is available here. See also the information relating to the 10th e-APP Forum as it compiled all previous Conclusions & Recommendations.

The book titled I Regolamenti europei sui regimi patrimoniali dei coniugi e delle unioni registrate: commento ai Regolamenti (UE) 24 giugno 2016, n.1103 e 1104 applicabili dal 29 gennaio 2019, authored by Paolo Romano, was recently released by the Italian publisher Giuffrè.

The official description (translated from the Italian original) states:

With the adoption of Regulations (EU) Nos. 1103 and 1104 of 2016, applicable from 29 January 2019, the supranational legislator has completed – albeit in the form of enhanced cooperation – the framework of European family law, dictating common rules on jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes and property effects of registered partnerships. After intervening over the course of a decade in the matrimonial matters and parental responsibility, then in terms of maintenance obligations and succession, the Council of the European Union has therefore provided citizens and professionals with the necessary coordinates to reach a complete definition of the property relationships of spouses and partners (between them and third parties) deriving directly from the creation of the family bond or its dissolution. Retracing the structure of the two legislative acts, as supplemented by the Implementing Regulations (EU) No. 1935 and No. 1990 of 7 and 11 December 2018 which adopted the standard forms attached to them, and commenting on the discipline in the light of the most recent rulings of the European Courts, the author examines their compatibility with the relevant institutes of Italian substantive and procedural law – from the reflections on the discipline of legal communion and applicability to registered partnerships and de facto couples, to exploring their practical implications in terms of circulation of agreements on assisted negotiation – in a constantly evolving regulatory and social context.

This book follows Romano’s former book Le controversie familiari dell’Unione Europea published with the same editor in 2018.

Marta Requejo  has published recently an article on the Procedural Harmonization and Private Enforcement in the Area of Personal Data Protection. The article is featured in the latest edition of the Max Planck Institute Luxembourg for Procedural Law Research Paper Series, and may be retrieved here.

Case C-195/18 B.S. v Prokatura et al held mid-March, is great for the week-end. Serious stuff (excise duties and customs classification), but with a fun twist: does beer under excuse duties and customs regulation require the beverage to be made with malt as an ingredient, or does it also include mixtures of beer with non-alcoholic beverages, as long as it has fermented?  Put differently, may an alcoholic product obtained by fermentation of a wort produced from, inter alia, glucose syrup (yikes! yikes! and yikes again) and a small proportion of malt may be classified as ‘beer made from malt’?

The CJEU touches upon important issues: linguistic interpretation, WCO rules, etc. and finally decides that such a product can come under the ‘beer’ heading only on condition that its objective characteristics and properties correspond to those of beer (adding glucose syrup is not prohibited, other than of course under the only proper standard in this regard which is of course the Rheinheitsgebot (as amended)). In this regard, the court holds, account must be taken more particularly of the organoleptic (meaning ‘involving the use of the sense organs’) characteristics of the product in question, which is an exercise the referring court must undertake. No tasting sessions at Kirchberg therefore.

Have a good week-end.

Geert.

I have of course posted regularly on the issues of unstunned slaughter, freedom of religious expression and animal welfare (search tag ‘shechita’ should pull out the relevant postings). The Belgian Constitutional court, to the expectations I assume of counsel in the case, yesterday referred to the CJEU for preliminary reference (cases 52 and 53/2019).

The subject of the litigation is the Flemish decree banning unstunned slaughter outright (for standing reasons the similar Walloon regime is no longer sub judice). The Belgian court requests the CJEU to clarify its judgment in C-426/16, on which I reported here,

Q1: does Regulation 1099/2009 allow Member States to introduce an outright ban; Q2 in the affirmative, is that compatible with the Charter’s right to religious expression; Q3 in the event of an affirmative answer to Q1: the elephant in the Regulation’s room which I flagged years back: is it not discriminatory to allow Member States to restrict religious slaughter, while simply exempting hunting, fishing and ‘sporting and cultural events’ from the Regulation altogether.

Readers will know my answer to these questions.

Geert.