Droit international général

On 7 November 2023, less than three weeks after the judgment in Limbu v Dyson Technology Ltd (reported here), where the High Court of England and Wales applied the forum non conveniens doctrine to a business and human rights claim, the Inner House of the Scottish Court of Session (Scotland’s supreme civil court) directed around 5,000 Kenyan tea pickers in Campbell v James Finlay (Kenya) Ltd to pursue their claims for occupational injuries in Kenya (previous judgments in this case included [2022] CSIH 29, which addressed the certification of group proceedings, and [2022] CSOH 57, which concerned a motion for anti-suit interdict).

The case and the Inner House’s judgment are notably unusual for several reasons.

Let’s begin with the facts. The claimants, Kenyan tea pickers, brought proceedings against James Finlay (Kenya) Ltd, a Scottish company, in Scotland. Unusually for a transnational business and human rights dispute, the defendant directly employed the claimants in Kenya. No Kenyan subsidiary or supplier was involved in the alleged wrongs. This enabled the claimants to advance relatively straightforward negligence claims for breach of employer’s duty of care.

Everyone agreed that prima facie the court had jurisdiction under rule 1 in Schedule 8 to the Civil Jurisdiction and Judgments Act 1982, which is a rule of general jurisdiction based on the defendant’s domicile. The defendant challenged the court’s jurisdiction on two grounds: the existence of an exclusive Kenyan choice-of-court agreement and forum non conveniens.

The defendant relied on rule 6 in Schedule 8 to the 1982 Act to argue that the Scottish courts had no jurisdiction due to an exclusive Kenyan choice-of-court agreement. This is an unusual argument as this provision deals with the prorogation, not derogation, of jurisdiction of the Scottish courts, and a foreign jurisdiction agreement does not take away jurisdiction from an otherwise competent Scottish court but serves as a significant factor when deciding whether jurisdiction should be exercised. The court did not engage with these subtleties of Scottish private international law. It promptly dismissed this jurisdictional challenge by concluding, quite rightly, that the contract clause in question (“9. Industrial Sickness: The terms of the relevant national legislation shall apply.”) was not a choice-of-court agreement.

A glaring omission in the judgment is the court’s failure to acknowledge that in employment disputes the jurisdiction of the UK courts depends on sections 15A and C-E of the 1982 Act. These provisions transpose the jurisdictional rules for employment matters from the Brussels I bis Regulation into UK law. Consequently, the Scottish courts had jurisdiction over the Scottish-domiciled defendant (section 15C(2)(a)) and a choice-of-court clause in the employment contract could not deprive the claimants of this forum. The protective jurisdictional rules may be departed from only by an agreement made ex post or expanding the available forums for the employee (section 15C(6)). In other words, there was no need to even look at the dispute resolution clause for the purposes of addressing the first jurisdictional challenge.

The court then proceeded to consider forum non conveniens. The defendant contended that a no-fault compensation scheme established by the Work Injury Benefits Act 2007 in Kenya barred claims for damages, insisting that the claimants should pursue compensation under this scheme.

A preliminary question remained unaddressed: is forum non conveniens available when a UK court has jurisdiction over an employment dispute under section 15C?

The primary aim of sections 15A and C-E was, as articulated in the Explanatory Memorandum accompanying a statutory instrument which was used to transpose the jurisdictional rules for employment matters from Brussels I bis into UK law, “to ensure employees are not disadvantaged by EU exit”. Prior to Brexit, jurisdiction under Brussels I bis was mandatory (Owusu). There are other reasons against the availability of forum non conveniens in this context. It may be inconsistent with the objective of employee protection (for the strength of this objective under sections 15A and C-E, see, for example, Gagliari v Evolution Capital Management). If a foreign choice-of-court agreement can only be effective if made ex post or if it expands the available forums for the employee, allowing forum non conveniens, which is normally a less strong reason for staying proceedings, might seem contradictory. Sections 15A and C-E allow the employee to serve the claim form on the employer as of right in England, eliminating the need to seek permission to serve the claim form out of the jurisdiction. It appears inconsistent not to require the claimant to show that the forum is forum conveniens in service out cases, but to allow the defendant to plead forum non conveniens. Consequently, it is unsurprising that leading scholars (A Briggs, Private International Law in English Courts (2nd edn, OUP 2022) 194 and L Merrett, Employment Contracts and Private International Law (2nd edn), OUP 2022) 165) suggest that forum non conveniens might not be available in this context.

On the other hand, section 49 of the 1982 Act unequivocally provides that “Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 2005 Hague Convention.” Additionally, there is the authority of Dicey, Morris and Collins, who, in para 12-012, adopt a tentative view that forum non conveniens is available when a UK court has jurisdiction over an employment dispute under section 15C.

It is a shame that the court did not address this preliminary question of the availability of forum non conveniens.

The Lord Ordinary (first instance judge) decided, relying on expert evidence, that the Kenyan Work Injury Benefits Act 2007 did not apply to the claimants because it did not list back injury as a condition for the no-fault compensation scheme. Although the Act did allow for the possibility of the responsible official listing new conditions, no such decision had been made. He further rejected the plea of forum non conveniens because he decided that the claimants would not obtain justice in the Kenyan courts.

The Inner House disagreed. It found that the Act applied to the claimant’s occupational injuries. It further noted that the no-fault compensation scheme “is said to work well and is cost and lawyer free” ([67]). On the basis of all of this, the court held, at [69], that:

Having regard to the court’s construction of the WIBA, the appropriate manner of proceeding is to sist these proceedings pending resolution of the claims under the WIBA, including any appeals to the [Employment and Labour Relations Court], in Kenya. If the court’s construction, or its understanding of the practical operation of the WIBA, turn out to be ill-founded, or if the WIBA claims were not determined in accordance with the scheme, or if there were to be excessive delay, the court may have to revisit the question of substantial justice and consider whether the sist should be recalled. However, the court cannot determine, as matters presently stand, that the WIBA, if it operates as its terms suggest, is not capable of providing substantial justice. The concept of such justice applies to both parties and envelops the general public interest.

Leaving aside the point that the court invoked here a public interest factor, which sits uneasily with the House of Lords decision in Lubbe v Cape Plc, one gains the impression from this paragraph that the court applied a kind of conditional forum non conveniens doctrine.

But then one reads the next paragraph, where the court said that it was not applying forum non conveniens:

The court will recall the interlocutor of the Lord Ordinary dated 11 July 2023 in so far as it repels the defenders’ second plea-in-law (on forum non conveniens). It will allow the reclaiming motion and sist the group proceedings (GP1/22) pending resolution of the group members’ claims in Kenya under the WIBA scheme. It will not determine the plea of forum non conveniens at present.

One is at a loss what to make of this. The court evidently exercised a form of inherent power to sist the proceedings. But there is no attempt to explain the origin or nature of this power or its interaction with forum non conveniens.

All of this amounts to a very confusing (and confused) judgment. Hopefully, the case will find its way to the Supreme Court. The case is just too important to be decided in this way.

 

— I am grateful to Professor Adrian Briggs and Professor Louise Merrett for sharing their insights regarding the availability of forum non conveniens when a UK court has jurisdiction over an employment dispute under section 15C of the 1982 Act. Additionally, I extend my gratitude to Dr Bobby Lindsay for explaining specific points of Scottish law and for sharing a case note on the first instance judgment in this case, which will be published in the January edition of the Edinburgh Law Review. Finally, I thank Andrew Smith KC and Cameron Smith, who clarified some aspects of this litigation and offered thoughts on the likelihood of obtaining permission to appeal to the UK Supreme Court. Any mistakes or omissions in this post are solely mine.

The American Branch of the International Law Association (ABILA) invites applications for the recently-created position of Chief Operating Officer (COO).

This is a part-time remote position that requires about 60-75 hours per month (more in October for International Law Weekend) and offers a lot of flexibility and exciting experience at a 101-year old U.S.-based international law NGO, famous for organizing the annual International Law Weekend conference in New York. The compensation is in the range of $32 per hour (approximately $25k per year). If interested, please submit a cover letter, CV, and list of three references using the upload link on our website. We will begin reviewing applications immediately and conducting Zoom interviews on a rolling basis. To learn more and apply, visit our website here: https://www.ila-americanbranch.org/call-for-applicants-abila-chief-operating-officer/ Find our Twitter announcement here: https://twitter.com/ABILA_official/status/1729616334491926906?s=20 Find our LinkedIn announcement here: https://www.linkedin.com/feed/update/urn:li:activity:7135382017805885440/ Find our Facebook announcement here: https://www.facebook.com/permalink.php?story_fbid=pfbid02NqZNxEh8fyuJPFYkmv7DHi5x8GnUJQq7x9HxPcXrt9fPE5Gnr9HMwm17XMtsZFeZl&id=100089266272856

Call for Papers for the European Central Bank Legal Research Programme (LRP) scholarship 2024, which can be found on the ECB website via this link: https://www.ecb.europa.eu/pub/economic-research/programmes/legal_research/html/index.en.html.

The LRP is an interesting opportunity for researchers as it fosters analysis of areas of law relevant to the ECB’s statutory tasks and establishes closer contacts of the ECB with academia by granting a scholarship to established or early-career researchers, who will publish a paper supported by colleagues of the ECB legal services.

The Call for Papers is open until 18 February 2024.

The seven research topics contained in the Call for Papers are:

1. Climate-related risk: scenario planning for banks and supervisors
2. The ECB and climate transition plans
3. Extraterritorial scope and effect of ECB law
4. Banking supervision meets public international law – Cross-border on-site inspections
5. Taxes on banks’ windfall profits as anti-inflationary measure
6. ECB Banking Supervision powers & AI Act implementation
7. The ECB’s role as a fiscal agent and potential impacts on institutional balance

The third issue of the Revue critique de droit international privé of 2023 will be released shortly. It contains a thematic dossier of five articles, as well as several case notes.

The doctrinal part of the volume is entirely devoted to the reflections arising from the symposium held at Université de Tours on January 6, 2023 about notarial practice in international in family property law in the Ukrainian context. Under the direction of Dr. Fabienne Labelle (Université de Tours), it explores the role of the notarial profession in the development of private international law during the Ukrainian crisis

This issue offers very valuable insights for all those who, in France or elsewhere, will encounter the broad consequences of the Ukrainian war in their practice of private international law. It also gives a compelling account of the role of the discipline in the ordinary management of a state of exception and its effort to bring together cultures with sometimes very different values; as well as an overview of the potential transformations generated by the war.

Following a short introduction by Dr. Labelle, the dossier articulates five equally interesting topics.

The first article authored by Dr. Pierre Boisseau (Université de Tours) is entitled Du droit d’asile classique à l’accueil des déplacés ukrainiens : réflexion sur la complémentarité des dispositifs de protection des réfugiés (From traditional asylum to the reception of Ukrainian displaced persons: reflections on the complementarity of refugee protection schemes). Its abstract reads as follows:

In Europe in general, and in France in particular, the reception of refugees is based on three complementary systems. In addition to the traditional right of asylum and subsidiary protection, there is now temporary protection. In very simplified terms, political asylum concerns those fighting for freedom; subsidiary protection protects people who have been victims of abuse by non- state groups; and temporary protection, which stems from the geopolitical context in Europe, is currently used to receive and protect Ukrainians fleeing the fighting. Many have benefited from this, although part of them have now returned to Ukraine. But this surge of generosity towards Europeans does not seem to inspire the draft Pact on Asylum and Immigration of Thursday 8 June 2023 concerning refugees from other continents.

The second study on Les pouvoirs des époux sur leurs biens : quelles problématiques pour les déplacés d’Ukraine ? Regards issus d’une comparaison franco-ukrainienne (Spouses’ powers over their property: what are the issues for displaced persons in Ukraine? Insights from a Franco-Ukrainian comparison) is presented by Dr. Ambra Marignani (Université de Tours) and Prof. Svitlana Yaroslavovna Fursa (Director of the Center for Legal Research in Kyiv). The abstract reads as follows:

Displaced spouses from Ukraine may not imagine that, in some cases, French law is applicable to their rights to own, manage, enjoy and dispose of property. Notaries will be in the front line in containing this risk by informing and advising them. This work will be essential, particularly with regard to the rights that differ in content between French and Ukrainian law, as highlighted by the comparison of laws.

The next paper by Dr. Audrey Damiens (Université de Tours) and Prof. Fursa is devoted to La pratique notariale et les divorces en droit international privé : réflexion entre la France et l’Ukraine en temps de guerre (Notarial practice and divorces in private international law: reflections between France and Ukraine in wartime). The abstract reads as follows:

The situation in Ukraine has led to population movements, particularly towards France. Married couples or one of their members now find themselves in a situation that comes under private international law. In their practice, French notaries are and will be faced with an increasing number of international situations relating to Ukraine, including divorce. This article looks at the practical difficulties that French notaries may encounter in divorce cases in Ukraine, and suggests some possible solutions. On the one hand, it looks at divorces in Ukraine that would come before a French notary. On the other, it considers divorce by mutual consent in France in an international situation linked to Ukraine.

The fourth article on Dévolution successorale et réserve héréditaire : comparaison entre la France et l’Ukraine (Heirship and reserved share : comparison between France and Ukraine) is co-authored by Prof. Alina Goncharova (State University of Soumy and Université de Tours) and Dr. Labelle. They gave the following abstract:

The purpose of this study is to compare French and Ukrainian inheritance law. This study is particularly interesting in the event that Ukrainian law is applicable to the succession submitted to the French notary, as it provides some useful benchmarks in Ukrainian law. By studying the hypotheses of shares reserved for certain heirs, it also highlights significant differences in the internal public policy of each country. These differences could give rise to practical difficulties and discussions in both doctrine and case law.

Last but not least, Prof. Goncharova and Dr. Labelle submitted the final study on Le testament, outil de planification de la succession internationale. Le cas des Ukrainiens protégés temporairement en France (The will as an instrument for international succession planning. The case of Ukrainians under temporary protection in France). Its abstract reads as follows:

Estate planning by means of a will for displaced Ukrainians poses difficulties both from the point of view of the formal and substantial validity of the deed and from the point of view of the strategies to be put in place. Extra-patrimonial and patrimonial provisions are tested by the unpredictability of Ukrainian law and certain French civil and tax rules.

The full table of contents will be available shortly.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

The virtual book launch of The Elgar Companion to UNCITRAL will take place on 14 December 2023 at 1:00 pm (CET) as a video conference via Zoom under the aegis of the Max Planck Institute for Comparative and Private International Law.

Co-edited by Rishi Gulati (University of East Anglia and Barrister, Victorian Bar, Australia), Thomas John (MCIArb, Independent Mediator, Arbitrator and Legal Consultant, the Netherlands) and Ben Köhler (Max Planck Institute for Comparative and International Private Law), this comprehensive Companion delineates the range of issues considered at UNCITRAL, as well as assessing the potential for future work and reforms.

The book will be virtually launched by the Secretary of UNCITRAL Anna Joubin-Bret followed by an informative panel discussion will be included.

See here for registration to the book launch.

The Official Journal of the European Union of 9 June 2023 reports anout the following request for a preliminary ruling from the Sofiyski rayonen sad (Sofia District Court – case C-222/23):

Is Article 62(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as precluding the concept of a natural person’s ‘domicile’ from being derived from national legislation which provides that the permanent address of nationals of the forum State is always situated in that State and cannot be transferred to another place in the European Union?

Is Article 5(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as permitting national legislation and national case-law under which a court of a State may not refuse to issue an order for payment against a debtor who is a national of that State and in respect of whom there is a reasonable presumption that the court lacks international jurisdiction because the debtor is likely to be domiciled in another EU State, which is apparent from the debtor’s declaration to the competent authority that he has a registered address in that State? In such a case, is the date on which that declaration was made relevant?

Where the international jurisdiction of the court seised is derived from a provision other than Article 5(1) of [the Brussels I bis Regulation], must Article 18(1) TFEU, read in conjunction with Article 47(2) of the Charter of Fundamental Rights, be interpreted as precluding national legislation and national case-law under which an order for payment may be issued only against a natural person who is habitually resident in the forum State, but a finding that the debtor, if a national of that State, has established that he is resident in another State cannot be based solely on the fact that he has given the first State a registered address (‘current’ address) that is in another State of the European Union, if the debtor is unable to demonstrate that he has entirely moved to that other State and has no address in the territory of the forum State? In this case, is the date on which the declaration concerning the current address was made relevant?

If the answer to the first part of the third question is that the issue of an order for payment is permissible, is it permissible under Article 4(1) of [the Brussels I bis Regulation], read in conjunction with Article 22(1) and (2) of Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, as interpreted in the judgment in Case C-325/11, Alder, and in conjunction with the principle of effective application of EU law in the exercise of national procedural autonomy, for a national court of a State in which nationals cannot give up their registered addresses in the territory of that State and cannot transfer them to another State, when it receives an application for an order for payment in proceedings in which the debtor is not involved, to obtain information in accordance with Article 7 of Regulation (EU) 2020/1784 from the authorities of the State in which the debtor has a registered address about the debtor’s address in that State and the date of registration there, in order to determine the debtor’s actual habitual residence before the final decision is given in the case?

In the case at hand, ‘Toplofikatsia Sofia’ EAD, a company registered under Bulgarian law, applied to the Sofia District Court for an order for payment against V.Z.A., the debtor, for a pecuniary claim. V.Z.A. is not yet a party to the proceedings, because the order has not yet been issued. The claim arose from the fact that V.Z.A., who owns an apartment heated by the district heating network, had not paid for energy supplied between 15 September 2020 and 22 February 2023. In order to determine its international jurisdiction, the Sofia court requested of its own motion information on the address of the debtor from the population register in March 2023. According to this information, V.Z.A. has a permanent address registered in 2000 in Sofia (Bulgaria) and, since 6 March 2010, has had a current address registered with the Bulgarian authorities that is in another Member State of the European Union. Bulgarian law does not provide for the possibility of registering a particular current address abroad but merely for indicating the other State in which it is located.

In a nutshell, the legal issues at stake are two: first, the compatibility with Union Law of the assimilation, as per national law, of the permanent address to the notion of domicile, independently of the existence of a current address in another Member State; second, the possibility of resorting to the provisions of Regulation No. 2020/1784 in order to identify the current address of a debtor.

The request is remarkable in that, to the best of my knowledge, it will be the first one on the new Service Regulation, which applies as of 1 July 2022.

If the fourth question is taken up by the Court of Justice in its exact terms, the ruling will involve Article 7 on assistance on address enquiries, i.e., a provision non-existing under the previous Service Regulation, and the only one applicable where the address of the person to be served with a document is not known (see Article 1, paragraph 2 of the Regulation). As noted by B. Hess in his commentary to Article 7 in A. Anthimos, M. Requejo (eds), The European Service Regulation. A Commentary, Edward Elgar Publishing, 2023, the rule introduces a new mechanism aiming at facilitating address research in other EU Member States, without, nevertheless, establishing a self-standing European procedure, unlike Articles 51 (2), 61 – 63 of the Maintenance Regulation, or (for the purposes of obtaining information on accounts of the debtor) under Article 14 of the European Bank Account Preservation Order Regulation. The assistance given in the framework of Article 7 remains a matter of the national law of the requested EU Member State – some information thereto related can be found at the e-justice portal.

Updates will follow.

The Paris Court of Appeal will celebrate the fifth anniversary of the establishment of its chamber dedicated to international disputes in a symposium on December 13th, 2023 (4-7 pm).

This will be an opportunity to take stock of its achievements by reviewing progress made since 2018, the modus operandi, the perception of the Chamber’s users, its strengths and areas for improvement, and to consider the future.

Four round tables will discuss the specific procedural framework established for handling international disputes, whether the international chamber has developed a specific caselaw, the international attractiveness of French commercial justice and future reforms.

The programme can be found here.

Speakers will include judges from the court, academics, lawyers practising in Paris and abroad and officials from the French Ministry of Justice.

The symposium will be held in French with simultaneous translation.

Attendance is free, but registration is required at colloque.ca-paris@justice.fr

In Lott & Ors v PSA Automobiles SA & Ors [2023] EWHC 2568 (KB), Fontaine SM deals with an evidential /discovery issue in one of the dieselgate cases, where the car manufacturers intend to contest the extent of the binding nature of CJEU judgments finding relevant software to constitute cheating devices within the meaning of European standardisation laws.

[22] The French Defendants are found to have submitted to the jurisdiction of the E&W courts at least in relation to the Claimants’ application for further information and specific disclosure. [26] ff discusses the relevant French ‘blocking statute’ which prohibits French nationals and certain others from providing documents and information of an economic, commercial, industrial, financial or technical nature to foreign public authorities or for the purposes of establishing evidence for foreign judicial or administrative proceedings. Relevant authority on the effect of the French statute is listed [28], with [29] emphasis on

Orders for production and inspection are matters of procedural law, governed by the lex fori, here English law. Local rules apply; foreign law cannot be permitted to override this Court’s ability to conduct proceedings here in accordance with English procedures and law.

and [30] a proposal by the French defendants, asking that the application be provided only pursuant to a letter of request under the Hague Taking of Evidence Convention (as cover for the French statute, refused however [81]:

i) I have no real means of assessing how real is the risk of prosecution if the documents so ordered were provided directly by the French Defendants to the Claimants, even if protected by a confidentiality order or confidentiality ring. That might have been provided by expert evidence of French law, but I have given reasons why that was not permitted at this stage. However, I do take into account both the letter from SISSE which explains the French authority’s position, and the interests of international comity, which support the use of the Hague Convention route.

ii) The French Defendants were well aware of the difficulties caused by the FBS at the hearing on 9 February 2022, and assured the court that once their legal representatives and an engineer had been able to take instructions in France from their clients they would seek the relevant documents via the Hague Convention themselves, but that has not been done, and no explanation provided. If it had been done by the French Defendants solicitors within a reasonable time after that hearing the relevant information and documents would have been available some time ago. It was also not explained why the FBS would prohibit the French Defendants from providing information and documents to their own clients other than through the Hague Convention. It is not a reasonable approach for the French Defendants to come back to court some 17 months after that hearing and now insist that the Claimants make a Hague Convention request, without any explanation for the change of stance, and the substantial delay.

iii) The prejudice to the Claimants that will inevitably be caused to provision of information and documents by reason of that delay if these have to be provided via the Hague Convention, that is likely to impact their ability to provide a fully pleaded draft GPOC and/or GLO issues which in turn may cause delay to the hearing of the GLO application.

iv) I take account of the fact that this is group litigation where there is, as in Cavallari, “an asymmetry of information” between the parties, and the relevant technical information is held by the Defendants, primarily by the French Defendants.

An interesting judgment on evidential forum shopping.

Geert.

#Dieselgate class action, discovery
Impact of French 'blocking' statute (preventing FR defendants from handing over documents) and Hague Evidence Convention viz English lex fori as procedural law

Lott & Ors v PSA Automobiles SA & Ors [2023] EWHC 2568 (KB)https://t.co/FQken9cGG1

— Geert Van Calster (@GAVClaw) October 17, 2023

In Clifford Chance LLP v Societe Generale SA [2023] EWHC 2682 (Comm), Henshaw J has held on a jurisdiction challenge in a claim for professional negligence claim brought by SocGen against Clifford Chance alleging that they negligently handled a dispute between SocGen and Goldas Kuyumculuk Sanayi Ithalat Ihracat AS and other companies in the same group.

Clifford Chance’s claim is one for negative declaration of contractual liability: it seeks declarations that they are not liable to SocGen in professional negligence, and that CC Europe was not retained by SocGen at all. SocGen has subsequently commenced proceedings against CC LLP and CC Europe in the High Court of Paris, seeking damages in excess of €140 million. The first hearing in that court is due to take place in March 2024.

SocGen challenged the jurisdiction of the E&W courts with reference to its framework agreement with Clifford Chance, which includes French choice of court and French choice of law. As was to be expected, Clifford Chance argue that that agreement does not apply to the work at issue (given the interference of various Clifford Chance legal entities, it was inevitable that issues of privity would arise; see also the discussion [103] ff on agency). The judge, applying French principes of contractual interpretation, holds [90] ff that on the facts, the framework agreement does not apply to the retainer at issue. As a result of the Rome Convention (as discussed at [67], Rome I not applying ratione temporis), English law applies to that retainer as a result of E&W being the habitual residence of the service provider.

[112] ff deal succinctly with (and reject)  the subsidiary issue of forum non conveniens: [120] it is not shown

that the courts of France are clearly and distinctly the more appropriate forum. To the contrary, this court is that forum.

I wonder whether Clifford Chance in the French proceedings will now be arguing Article 33-34 lis pendens, seeing as the English proceedings were instituted first, however that would depend on the exact parties to the proceedings and the basis for jurisdiction against them: if the French courts find there is a legally binding choice of court in the claim, Articles 33-34 cannot apply and we will find ourselves in an interesting post-Brexit competition between courts.

Geert.

Judgment now here. Jurisdiction challenge fails, choice of court held not to apply to specific retainer. Interestingly, will CC argue A33, 34 in FR given the alleged invalidity of choice of court?
Clifford Chance v Societe Generale [2023] EWHC 2682 (Comm)https://t.co/YCRVwiE3hL https://t.co/v58xuSXo7C

— Geert Van Calster (@GAVClaw) October 29, 2023

The third issue of the Revue critique de droit international privé of 2023 will be released shortly. It focuses on notarial practice in international family property law in the Ukrainian context, but contains also numerous case notes on private international law.

In the first article, Pierre Boisseau (University of Tours) examines the contours of the legal framework applied to receive and protect Ukrainians fleeing the fighting in their country of origin (Du droit d’asile classique à l’accueil des déplacés ukrainiens: réflexion sur la complémentarité des dispositifs de protection des réfugiés).

The abstract reads:

In Europe in general, and in France in particular, the reception of refugees is based on three complementary systems. In addition to the traditional right of asylum and subsidiary protection, there is now temporary protection. In very simplified terms, political asylum concerns those fighting for freedom; subsidiary protection protects people who have been victims of abuse by nonstate groups; and temporary protection, which stems from the geopolitical context in Europe, is currently used to receive and protect Ukrainians fleeing the fighting. Many have benefited from this, although part of them have now returned to Ukraine. But this surge of generosity towards Europeans does not seem to inspire the draft Pact on Asylum and Immigration of Thursday 8 June 2023 concerning refugees from other continents.

In the second article, Ambra Marignani (University of Tours) and Svitlana Yaroslavovna Fursa (Honored Lawyer of Ukraine & Center for Legal Research of Kyiv) study the question of property rights for couples displaced from Ukraine, under a conflict-of-laws perspective (Les pouvoirs des époux sur leurs biens : quelles problématiques pour les déplacés d’Ukraine ? Regards issus d’une comparaison franco-ukrainienne).

The abstract reads:

Displaced spouses from Ukraine may not imagine that, in some cases, French law is applicable to their rights to own, manage, enjoy and dispose of property. Notaries will be in the front line in containing this risk by informing and advising them. This work will be essential, particularly with regard to the rights that differ in content between French and Ukrainian law, which has been highlighted by the comparison of laws.

In the third article, Audrey Damiens (University of Tours) and Svitlana Yaroslavovna Fursa (Center for Legal Research of Kyiv) explore the role of notaries in dealing with the sensitive issue of cross-border separation of couples between France and Ukraine (La pratique notariale et les divorces en droit international privé : réflexion entre la France et l’Ukraine en temps de guerre).

The abstract reads:

The situation in Ukraine has led to population movements, particularly towards France. Married couples or one of their members now find themselves in a situation that comes under private international law. In their practice, French notaries are and will be faced with an increasing number of international situations relating to Ukraine, including divorce. This article looks at the practical difficulties that French notaries may encounter in divorce cases in Ukraine, and suggests some possible solutions. On the one hand, it looks at divorces in Ukraine that would come before a French notary. Secondly, it is proposed to consider divorce by mutual consent in France in an international situation linked to Ukraine.

In a fourth article, Alina Goncharova (State University of Soumy, Ukraine & Invited Fellow, University of Tours) and Fabienne Labelle (University of Tours) examine the law applicable to inheritance from a French-Ukrainian comparative perspective (Dévolution successorale et réserve héréditaire: comparaison entre la France et l’Ukraine).

The abstract reads:

The purpose of this study is to compare French and Ukrainian inheritance law. This study is particularly interesting in the event that Ukrainian law is applicable to the succession submitted to the French notary, as it provides some useful benchmarks in Ukrainian law. By studying the hypotheses of shares reserved for certain heirs, it also highlights significant differences in the internal public policy of each country. These differences could give rise to practical difficulties and discussions in both doctrine and case law.

Finally, a fifth article from the same authors, Alina Goncharova & Fabienne Labelle, deals with the question of drawing up wills in international French-Ukrainian context (Le testament, outil de planification de la succession internationale Le cas des Ukrainiens protégés temporairement en France).

The full table of contents is available here.

The Ruby Princess will be remembered by many Australians with disdain as the floating petri dish that kicked off the spread of COVID-19 in Australia. The ship departed Sydney on 8 March 2020, then returned early on 19 March 2020 after an outbreak. Many passengers became sick. Some died. According to the BBC, the ship was ultimately linked to at least 900 infections and 28 deaths.

Ms Susan Karpik was a passenger on that voyage. She and her husband became very sick; he ended up ventilated, intubated and unconscious in hospital for about four weeks.

Ms Karpik commenced representative proceedings—a class action—in the Federal Court of Australia. She asserted claims in tort and under the Australian Consumer Law (ACL) in schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA) against companies behind the ship: Carnival plc and its subsidiary, Princess Cruise Lines Ltd (together, Princess). She sought damages for loss and damage allegedly suffered by either passengers of the ship or their relatives.

The case has an obvious cross-border flavour. The respondents are foreign companies: Princess Cruise Lines Ltd is incorporated in Bermuda and headquartered in California; Carnival plc is a UK company which functions together with a Panama-incorporated US-headquartered company, and is dual listed on the New York Stock Exchange and the London Stock Exchange. The ship is registered in Bermuda. The ~2,600 passengers on the diseased voyage included many Australians but also passengers from overseas. They contracted to travel on the cruise in different parts of the world, and according to Princess, were subject to different terms and conditions subject to different systems of law. The cruise itself departed and returned to Sydney but included time outside of Australia, including in New Zealand.

It is unsurprising then that Princess sought to defend the proceedings at a preliminary stage through litigation over where to litigate.

Princess brought an interlocutory application to stay the proceedings as they related to a Canadian passenger, Mr Patrick Ho, who entered the contract with Princess when he was not in Australia. Princess argued that Mr Ho’s contract was subject to different terms and conditions to those that governed the contracts of other Aussie passengers. These ‘US Terms and Conditions’ included a class action waiver clause, a choice of law clause selecting US maritime law, and an exclusive jurisdiction clause selecting US courts. Mr Ho was identified by Ms Karpik as a sub-group representative of those members of the class action that Princess argued were subject to the US Terms and Conditions.

In contesting the stay application, Ms Karpik relied on section 23 of the ACL, which provides among other things that a term of a consumer contract is void if the term is unfair and the contract is a standard form contract. Princess argued that s 23 did not apply to Mr Ho’s contract, given it was made outside Australia.

The primary judge refused the stay application, which was then reversed by the Full Court of the Federal Court of Australia.

On further appeal, the High Court held that ACL s 23 does apply to Mr Ho’s contract, with the result that the class action waiver clause was void: Karpik v Carnival plc [2023] HCA 39. The Court held that there were strong reasons not to give effect to the exclusive foreign jurisdiction clause. Ms Karpik succeeded, meaning that the case may now continue in Australia, even as regards those members of the class action who are not Australian and contracted overseas.

The decision is significant not just for the litigants. It will be commercially significant for foreign businesses that contract with consumers in respect of services that have connections to Australia. For example, it may have serious implications for travel operators, including those who run cruises that stop in Australia. The decision is significant too for private international law nerds like myself, contemplating how to resolve choice of law questions in our age of statutes.

Procedural history

Princess applied to stay the proceedings relying on terms of Mr Ho’s contract with Princess. A Calgary resident, he booked his ticked on the Ruby Princess via a Canadian travel agent in September 2018. By the time the matter came to the High Court, it was not disputed that when he did so, he became a party to a contract subject to the US Terms and Conditions, which contained three clauses of particular relevance.

First, it included a choice of law clause (cl 1):

‘[A]ny and all disputes between Carrier and any Guest shall be governed exclusively and in every respect by the general maritime law of the United States without regard to its choice of law principles … To the extent such maritime law is not applicable, the laws of the State of California (U.S.A.) shall govern the contract, as well as any other claims or disputes arising out of that relationship. You agree this choice of law provision replaces, supersedes and preempts any provision of law of any state or nation to the contrary.’

Second, it included an exclusive foreign jurisdiction clause (cl 15B(i)):

‘Claims for Injury, Illness or Death: All claims or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever, including without limitation those arising out of or relating to this Passage Contract or Your Cruise, shall be litigated in and before the United States District Courts for the Central District of California in Los Angeles … to the exclusion of the courts of any other country, state, city, municipality, county or locale. You consent to jurisdiction and waive any objection that may be available to any such action being brought in such courts.’

Third, it included a class action waiver clause (cl 15C):

‘WAIVER OF CLASS ACTION: THIS PASSAGE CONTRACT PROVIDES FOR THE EXCLUSIVE RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION ON YOUR OWN BEHALF INSTEAD OF THROUGH ANY CLASS OR REPRESENTATIVE ACTION. EVEN IF THE APPLICABLE LAW PROVIDES OTHERWISE, YOU AGREE THAT ANY ARBITRATION OR LAWSUIT AGAINST CARRIER WHATSOEVER SHALL BE LITIGATED BY YOU INDIVIDUALLY AND NOT AS A MEMBER OF ANY CLASS OR AS PART OF A CLASS OR REPRESENTATIVE ACTION, AND YOU EXPRESSLY AGREE TO WAIVE ANY LAW ENTITLING YOU TO PARTICIPATE IN A CLASS ACTION …’

By its interlocutory application, Princess sought an order that certain questions be heard and determined separately. The questions included whether Mr Ho was bound by the exclusive foreign jurisdiction clause.

At first instance, Ms Karpik argued that Mr Ho was not subject to the US Terms and Conditions, and so denied that the foreign exclusive jurisdiction clause and the class action waiver clause were incorporated into his contract. It was argued in the alternative that those clauses if incorporated were void or otherwise unenforceable.

In July 2021, Stewart J refused the application for a stay as regards Mr Ho on the basis that the US Terms and Conditions were not incorporated into his contract, and held further that if they were incorporated, the class action waiver was void and unenforceable under ACL s 23. Stewart J held there would be strong reasons for not enforcing the exclusive foreign jurisdiction clause even if it were incorporated and enforceable: Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082; (2021) 157 ACSR 1, [331].

In September 2022, by majority, the Full Court of the Federal Court allowed the Princess appeal. The Full Court was comprised of judges who are, with respect, well known for their private international law and maritime law expertise: Allsop CJ, Rares J and Derrington J. All three agreed that the primary judge erred in holding that the exclusive foreign jurisdiction clause and the class action waiver clause were not terms of Mr Ho’s contract. Allsop CJ and Derrington J agreed that the clauses were enforceable and not contrary to the policy of Part IVA of the Federal Court of Australia Act 1976 (Cth) which regulates representative proceedings in the Federal Court. Rares J dissented in holding that it was contrary to public policy to permit contracting out of that class actions regime. The majority did not decide on the extraterritorial application of ACL s 23 but enforced the exclusive foreign jurisdiction clause by staying the proceeding as regards Mr Ho’s claim: Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149; (2022) 294 FCR 524.

Mrs Karpik obtained special leave. The Attorney-General of the Commonwealth and the Australian Competition and Consumer Commission intervened. The appeal was heard in March 2023.

The High Court was comprised of Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ. The Court unanimously allowed Ms Karpik’s appeal and re-exercised the primary court’s discretion by refusing to stay the proceedings. The decision may be distilled into three key propositions.

1. Section 23 of the ACL had extraterritorial application and applied to the contract between Mr Ho and Princess.
2. The class action waiver clause was void under ACL s 23 because it was unfair.
3. Although the exclusive foreign jurisdiction clause formed part of the contract, there were strong reasons for not enforcing the clause.

The territorial scope of ACL s 23

The first proposition turned on resolution of difficult issues of private international law, or the conflict of laws.

Princess argued that the application of the ACL in a matter with a foreign element depended first on determining that the law of the forum (lex fori) was the applicable law (lex causae) in accordance with the forum’s choice of law rules.

Where a contract selects a system of foreign law as the applicable law, as this contract did in cl 1, the relevant choice of law rule is that generally, the selected system of law supplies the proper law of the contract, which is the applicable law: see Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418.

The High Court held that ‘Princess’ submissions incorrectly invert the inquiry’: [22]. Rather, the application of ACL s 23 to Mr Ho’s contract, a contract made outside Australia, was described as ‘a question of statutory construction’: [18]. So the Court construed the ACL as part of the CCA by holding as follows at [26], [34]ff:

• The ACL applies to the extent provided by CCA pt XI: ACL s 1.
• CCA s 131(1), within CCA pt XI, provides that the ACL applies to the conduct of corporations and in relation to contraventions of certain chapters of the ACL by corporations.
• CCA s 5 extends the application of relevant parts of the ACL to conduct engaged in outside Australia, where the conduct outside Australia was by a corporation carrying on business with Australia.
• ACL s 23, as part of ACL pt 2-3, prescribes a norm of conduct. Section 23 in particular addresses adhesion contracts—that is, contracts in which one of the parties enters into a contract on a take-it-or-leave it basis. ACL s 23 protects consumer contracts and small business contracts but not others.

There was no dispute before the High Court that Princess was carrying on business in Australia. (On the role of that jurisdictional hook in Australian legislation, see Douglas, ‘Long-Arm Jurisdiction over Foreign Tech Companies “Carrying on Business” Online: Facebook Inc v Australian Information Commissioner’ (2023) 45(1) Sydney Law Review 109).

The High Court clarified that ACL s 23 should not be considered a generally worded statutory provision: [43]–[44]. Rather, the statute expressly provided for the territorial scope of the ACL via CCA s 5. The Court held that there was no justification to only apply s 23 to situations where the proper law of the contract is Australian law. The Court considered the CCA’s policy objective of consumer protection (CCA s 2) as supporting a construction which would extend protection to Australian consumers with companies even where the contract was for services wholly or predominantly performed overseas: [47], [49].

The class action waiver clause was an unfair term

The US Terms and Conditions were therefore subject to s 23 of the ACL. Was the class action waiver clause ‘unfair’ for the purposes of s 23(1)(a)? The Court applied the definition in ACL s 24(1), which provides:

‘(1)  A term of a consumer contract or small business contract is unfair if:

(a)  it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

(b)  it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(c)  it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.’

The Court considered that the clause had the effect of preventing or discouraging passengers from vindicating their legal rights where the cost to do so individually and not as part of a class action would be economical. The clause therefore caused a significant imbalance in the parties’ rights and obligations: [54]. The Court held that Princess had not proved that the clause was reasonably necessary in order to protect their interests: [55]–[56]. Further, being denied access to the representative proceedings regime was considered a sufficient detriment: [58].

The Court recognised that courts in the United States have held differently, but considered that the class action waiver clause was unfair, and therefore void under ACL s 23: [60].

The Court further opined in obiter that the class action waiver clause would not be inconsistent with the Federal Court’s representative proceedings regime: [61]–[64].

Strong reasons not to enforce the exclusive foreign jurisdiction clause

Australian courts give effect to the norm of party autonomy by enforcing exclusive foreign jurisdiction clauses in the absence of strong reasons to not enforce such clauses. The primary judge held that there were strong reasons in this case to not enforce the party’s exclusive choice of foreign fora. The High Court agreed.

The Court held that the following ‘strong’ reasons justified denying the application for the stay, as a matter of discretion: first, the class action waiver clause was an unfair term, which corresponded to Mr Ho’s juridical advantage in litigating in Australia in circumstances where he could be denied participation in a class action in the US; and second, the enforcement of the exclusive jurisdiction clause would fracture the litigation: [67]–[69].

Conclusion

The High Court’s decision is significant for its consideration of the territorial scope of ACL s 23. It means that many companies outside of Australia that operate in a way that touches on Australia will have difficulty in contracting out of Australia’s consumer protection regime as regards standard contracts with consumers and small businesses. The decision will be a big deal for businesses like Princess, who operate travel services that involve Australia.

Theoretically, the Australian consumer protection regime could apply to regulate contracts between persons who are not Australian, with limited connection to Australia, and in respect of transactions with subject matter with a closer connection to places other than Australia. But as the High Court recognised at [50], the practical significance of this possibility should not be overstated. Forum non conveniens should operate to limit the prosecution of those kinds of claims.

On the other hand, Australia’s parochial approach to that doctrine via the ‘clearly inappropriate forum’ test could mean that in some cases, it is worth it for foreigners to have a crack in an Australian forum over subject matter with a tenuous connection to Australia. Strong consumer protection may provide the ‘legitimate juridical advantage’ by reference to which a court may decline a stay application in a matter with a foreign element: see generally Garnett, ‘Stay of Proceedings in Australia: A “Clearly Inappropriate” Test?’ (1999) 23(1) Melbourne University Law Review 30.

The case is similarly significant for its treatment of class action waivers within the framework of the ACL. Contracts with consumers are the kind in which such clauses have the most work to do: these are contracting parties who may not sue at all unless they are part of representative proceedings. Australia’s plaintiff-focuses class action lawyers should be licking their lips.

For me, the case is most significant for its approach to choice of law. The High Court has now expressly endorsed an approach that has been applied in a number of cases and described by some as ‘statutist’. I’ve previously argued that the statute-first approach to choice of law should be orthodox in the Australian legal system: Douglas, ‘Does Choice of Law Matter?’ (2021) 28 Australian International Law Journal 1; an approach which now appears right, if I do say so myself. Australian private international law may seem incoherent when viewed within the theoretical framework of multilateralism espoused by the likes of Savigny. But it makes sense when you approach matters with foreign elements with regard to our usual constitutional principles.

In Australian courts, all Australian statutes are ‘mandatory’, even in matters with a foreign element—there is no such thing as ‘mandatory law’. In every case where a forum statute is involved, the question is whether the statute applies. Statutory interpretation is the primary tool to resolve such questions.

Under Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), a court shall refer the parties to arbitration “if a party so requests not later than when submitting his first statement in the substance of the dispute.” This Model Law rule, upon which the equivalent provision of the Norwegian Arbitration Act is based, was the subject of a recent Norwegian Supreme Court decision over a dispute between a Danish and a Norwegian company regarding a distribution contract containing an arbitration clause referring disputes to arbitration in Denmark.

Before the dispute was initiated, the Danish company claimed for preservation of evidence in Norwegian courts, in accordance with the Norwegian Procedural Code. In connection to the claim for preservation of evidence, the Norwegian company stated that the matter was subject to arbitration and the court procedure should therefore be dismissed. This issue – whether the arbitration clause was a procedural impediment to the preservation of evidence – was rejected by the court of first instance. When this decision was appealed, both the court of second instance and the Supreme Court joined the conclusion of the court of first instance.

When evidence had been preserved, the Danish company initiated a procedure for a Norwegian conciliation council. Under Norwegian procedural law, a conciliation council serves as a court of first instance in civil matters but with a limited adjudicative competence. As its name implies, the idea behind the conciliation council is to settle civil disputes through conciliation. However, a conciliation council shall refer complicated matters to the ordinary courts. The conciliation council in the case in question referred the matter to the ordinary district court. Only then, in the procedure at the district court, did the Norwegian defendant state that the matter should be subject to arbitration. The district court dismissed this objection, referring to the decision by the Supreme Court, which had held that the arbitration clause did not impede the preservation of evidence. The court of appeal also came to the conclusion that the arbitration clause was not an impediment for the procedure, albeit with a completely different legal analysis underlying this conclusion. The court of appeal argued that the defendant had based its objection on the substance of the matter before the conciliation council, without invoking the arbitration clause. Hence, the right to invoke the arbitration clause as a procedural impediment was precluded under the Norwegian Arbitration Act.

As this decision was also appealed, the issue for the Norwegian Supreme Court was whether the right to invoke the arbitration clause was precluded. In its decision, the Supreme Court first held that a Norwegian conciliation council, despite its limited competence, is a national court for the purposes of the Norwegian Arbitration Act. Consequently, the next issue for the court to ponder was whether the defendant had requested the conciliation council to refer the parties to arbitration in the way that Article 8 of the Model Law requires. Under this article, a request shall be made “not later than when submitting [the] first statement on the substance of the dispute.” Holding that the wording of Article 8 is ambiguous and that there seems to be no clear international case law on the issue, the Supreme Court made its own interpretation of the critical point in Article 8. Here, the Court held that the Norwegian Procedural Act requires that a defendant party in a dispute before a conciliation council gives notice on whether it accepts or contests the claim. Norwegian law does not require the defendant to justify its position on the plaintiff’s claim. Taking a stance on whether a claim is accepted or contested is, regardless of whether this is justified, a statement on the substance of the dispute, according to the Supreme Court’s decision. Further, the court held that the opposite interpretation would risk creating unnecessary procedural delays. The right of the defendant to invoke the arbitration agreement was therefore precluded.

In summary, a party that wants to invoke an arbitration agreement as a procedural impediment must do so no later than at the first occasion when the party has a chance to submit a statement on the substance of the dispute.

Below in simple format and here in easier lay-out, is the program for our conference on the Tangier Statute Centenary Conference, 18 December next in Tanger.

We are very excited.

 

The Tangier Statute Centenary Conference, 18th December 2023

Colloque international à l’occasion du centenaire du Statut de Tanger, 18 décembre 2018

 

Programme

 

Local time/heure locale : UTC+1 (= Central European Time/Heure normale d’Europe Centrale)

Morning/Matinée: Faculté des Sciences Juridiques, Économiques et Sociales de Tanger

09:00-09:30:         Registration/Inscriptions

09:30-10:30:         Welcome speeches/Discours de bienvenue

• Welcoming words by the organizers/Mots de bienvenue des organisateurs
• Address by Mr Mounir Lymmouri, President of the Tangier City Council/Allocution de M. Mounir Lymmouri, Président du Conseil de la Ville de Tanger
• Address by a Representative of the Presidence of Abdelmalek Essaâdi University/Allocution d’un.e représentant.e de la présidence de l’Université Abdelmalek Essaâdi
• Address by Prof. Toufik Essaid, Dean of the Tangier Faculty of Legal, Economic, and Social Sciences/Allocution de M. le Professeur Toufik Essaid, Doyen de la Faculté des sciences juridiques, économiques et sociales de Tanger.

 

10:30-10:45: Keynote speech by Prof. Hamid Aboulas, Vice-Dean of the Tangier Faculty of Legal, Economic, and Social Sciences/Discours d’ouverture de M. le Professeur Hamid Aboulas, Vice-Doyen de la Faculté des sciences juridiques, économiques et sociales de Tanger

• Quelques aspects de la transformation de la ville de Tanger de 1923 à après l’indépendance

10:45-11:00:         Coffee break/Pause café

 

11:00-12:00:         Panel 1: Between Internationalism and Colonialism: Contextualizing the Tangier Statute/Entre internationalisme et colonialisme : le Statut de Tanger dans son contexte (Chair/Présidence: Fouzi Rherrousse)

• Ambivalences de la souveraineté, impérialisme et droit international : réflexion à partir du statut spécial de la Ville de Tanger (1923-1956) (Oumar Kourouma)
• La souveraineté marocaine à l’épreuve du statut international de Tanger de 1923 (Antoine Perrier)
• The International Situation of the City of Tangier During the Protectorate (Adil Rajaa)

 

12:00-13:00:         Panel 2: The International City as a Product and a Precedent: Connecting Tangier to Other International Spaces/La Ville internationale comme produit et comme précédent : les liens entre Tanger et d’autres espaces internationaux (Chair/Présidence: Michel Erpelding)

• The theory and practice of international administration: Comparison between Tangier and territories administered by the League of Nations (Philip Burton)
• The Statute of Tangier as the inspiration for the Draft Statute for the City of Jerusalem (Fulvio Bontempo and Alessia Tortolini)
• The International Zone of Tangier, 1924-1956: the European Union’s Accidental Incubator? (Willem Theus)

 

13:00-15:00:       Lunch break/Pause déjeuner

 

Afternoon/après-midi : Palace of Italian Institutions/Palais des Institutions Italiennes

15:00-15:20:       Welcome speeches/Discours de bienvenue

• Adress by Mr Marco Silvi, Consul General of Italy in Casablanca/Allocution par M. Marco Silvi, Consul général d’Italie à Casablanca
• Address by Mr Riccardo Finozzi, representative of the association Dimore Storiche del Mediterraneo/Allocution par M. Riccardo Finozzi, représentant de l’association Dimore Storiche del Mediterraneo

 

15:20-16:20:       Panel 3: Implementing the Tangier Statute: The Administration of the International City in Practice/La mise en œuvre du Statut de Tanger : Enjeux pratiques de l’administration de la Ville Internationale (Chair/Présidence: Rachid El Moussaoui)

 

• Tanger : la dimension méditerranéenne de l’économie marocaine (Sersar El Mahdi)
• Structuration et évolution de l’enseignement dans Ville de Tanger (Faiza El Alaoui)
• Les enjeux politiques et juridiques de la planification urbaine et architecturale de la zone internationale de Tanger (1925-1956) (Romain Micalef)

 

16:20-17:20:       Panel 4: Administering Justice in the International City: The Mixed Court of Tangier/Rendre la justice dans la Ville internationale : le Tribunal mixte de Tanger (Chair/Présidence : Geert van Calster)

 

• Capitalism as Juridical Creed: The Uneasy Relationship of the Tangier Mixed Court with Public International Law (Dimitrios A. Kourtis) (online/en ligne)
• Divergence et convergence juridiques: analyse de deux décisions des Tribunaux mixtes de Tanger et du Caire (Aya Bejermi and Adam Belkadi) (online/en ligne)
• Jewish Law in the Mixed Court of Tangier, 1925-1956 (Jessica M. Marglin)

 

17:20-17:40:       Coffee break/Pause café

 

17:40-18:20: Panel 5: Lawyering in the International City: Selected Portraits of ‘Mixed Lawyers’/Pratiquer le droit dans la Ville internationale : Portraits choisis de « juristes mixtes » (Chair/Présidence : Francesco Tamburini)

• Le fabuleux destin de deux bâtonniers tangérois : Alphonse Ménard et Daniel Saurin (Fouzi Rherrousse)
• Incunable d’Europe : Nicola Catalano et la Zone internationale de Tanger (Marco Fioravanti)

 

18:20-19:20:       Panel 6: Flooding the Airwaves from the International City: Tangier as a Broadcasting Platform/Remplir les ondes à partir de la Ville internationale : Tanger comme plate-forme de radiodiffusion (Chair/Présidence : Willem Theus)

• A Case of Strategic Litigation: the 1938-1939 ‘Radio-Tanger’ Case and the Liberalization of Tangier’s Airwaves (Michel Erpelding)
• The Italian Radiotelegraphic Service in the International Zone, 1931-1956: Shattered Dreams for a Mediterranean Power (Francesco Tamburini)
• Radio Frontier: Tangier as the Mediterranean’s Radio Hub, 1939-1963 (Arthur Asseraf) (online/en ligne)

 

19:20-19:30:       Closing remarks/Conclusions

 

Caroline Sophie Rapatz, Professor at the Christian-Albrecht University of Kiel, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Das Internationale Privatrecht der EU – Vorbild oder Vormacht? Abgrenzungen und Wirkungen im Verhältnis zum nationalen und völkerrechtlichen Kollisionsrecht’ (European Union Private International Law – Role Model or Hegemony? Delimitations and Effects in Relation to National and International Conflict of Laws), published by Mohr Siebeck.

The relationship between the EU Regulations on private international law and the conflict-of-laws rules and instruments of other regulatory levels – national traditions and codifications on the one hand, bilateral treaties and multilateral conventions on the other – is at first glance a straightforward one. Within their scope of application, European rules take precedence with regard to national ones; the continued application of pre-existing treaties is guaranteed by exceptions in the EU Regulations. In fact, however, the interplay between the different regulatory levels is much more complicated.

This is evidenced by the increasing number of ECJ decisions which have to deal with the exact scope of application the EU Regulations and their delineation vis-à-vis national and international PIL rules. At the borderline between European and Member States’ PIL, characterisation issues are frequently solved in favour of the EU Regulations’ far-reaching application, displacing national conflicts rules (e.g. ECJ 12 October 2017 – C-218/16 (Kubicka); ECJ 1 March 2018 – C-558/16 (Mahnkopf)). However, when it comes to politically sensitive issues – for example, non-judicial divorces or non-heterosexual marriages – there is a remarkable tendency to leave more or less clearly defined gaps in the European instruments (e.g. ECJ 20 December 2017 – C-372/16 (Sahyouni)) and require the Member States to provide their own solutions. As a recent ECJ decision has demonstrated, questions of the EU Regulations’ scope of application are becoming virulent also with regard to treaty PIL (ECJ 12 October 2023 – C-21/22 (OP)). Naturally, such decisions on the scope of the European instruments can only be taken on the European level – but they leave the other regulatory level with the burden of adapting to them and solving the resulting coordination problems.

Furthermore, the influence of European PIL is not limited to the European instruments’ actual – and often broadly interpreted – scope of application. Although formally unaffected, national and international PIL rules increasingly have to adjust to the ever-growing domination of European regulatory concepts and values. Apart from the practical need for the Member States to adapt their remaining national PIL rules to their new European context in order to keep them functional, the demands of EU primary law put further pressure on the Member States. Again, the ECJ plays a central role, especially when questions of cross-border (status) recognition are at stake and national values are confronted with the fundamental freedoms (e.g. ECJ 2 June 2016 – C-438/14 (Bogendorff von Wolfersdorff); ECJ 5 June 2018 – C-673/16 (Coman)). In the interaction of treaty and convention conflict-of-laws rules with the EU Regulations, deviations from the European model prove to be practically and conceptually detrimental; combined with the political power of the EU, the development of treaty PIL is threatening to become dangerously dysbalanced.

As a German Habilitationsschrift, the monograph provides an in-depth analysis of the current state of the European harmonisation of PIL and shows that the approach to Europeanisation by individual EU Regulations has failed. EU PIL needs to reorient itself – either through self-constraint in a continued multi-level system, or through the courageous step towards a complete European Conflict-of-Laws Code.

The New Zealand High Court recently granted a permanent anti-enforcement injunction in relation to a default judgment from Kentucky in Kea Investments Ltd v Wikeley Family Trustee Limited [2023] NZHC 3260. The plaintiff, a British Virgin Islands company, claimed that the defendants had committed a tortious conspiracy against it because the Kentucky default judgment was based on fabricated claims intended to defraud it. The defendants were a New Zealand company, Wikeley Family Trustee Ltd (WFTL), and persons associated with the company.

In an undefended judgment, the High Court granted the injunction, awarded damages for the costs incurred in the foreign proceedings (referring to cases such as Union Discount Co Ltd v Zoller [2001] EWCA Civ 1755, [2002] 1 WLR 1517 by analogy), and issued a declaration that the Kentucky judgment would not be recognised or enforceable in New Zealand. As noted previously on this blog (see here), the case is an interesting example of “the fraud exception to the principles of comity” (Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215 at [192]).

In this post, I want to focus on the trans-Tasman element of the case – and, in particular, the interpretation of s 26(1)(b) of the Australian Trans-Tasman Proceedings Act 2010. One of the defendants was Mr Wikeley, a Queensland resident, who apparently sought to evade or contravene the New Zealand Court’s interim orders by purporting to assign the Kentucky judgment from WTFL to a new (Kentucky) company. The New Zealand Court responded by placing WFTL under the control of a provisional liquidator. However, because Mr Wikeley was located in Queensland, the Court had limited powers to make its restraining orders effective against him.

Kea therefore applied to the Supreme Court of Queensland under s 25 of the Trans-Tasman Proceedings Act 2010. Under this section, a party to a New Zealand proceeding may apply to the Australian courts for interim relief in support of the New Zealand proceeding. More specifically, the Australian court may give interim relief if “the court considers it appropriate” to do so (s 26(1)(a)). The court must be satisfied that, “if a proceeding similar to the New Zealand proceeding had been commenced in the court”, it would have had power to give – and would have given – the interim relief in that similar proceeding (s 26(1)(b)(i) and (ii)). The equivalent provisions in the New Zealand Act are ss 31 and 32.

Following an ex parte hearing, the Queensland Court granted the application and made an order restraining Mr Wikeley from leaving Australia (Kea Investments Ltd v Wikeley [2023] QSC 79). The Court accepted that the assistance sought was “consistent with the beneficial nature of the Act” (at [32]). It was also satisfied that it would have had power to grant the relief if Kea had commenced a similar proceeding in Queensland, and that it would have granted the relief, satisfying s 26(1)(b)(i) and (ii) (at [39]-[60]). This decision was largely confirmed in Kea Investments Ltd v Wikeley (No 2) [2023] QSC 215.

The case provides a good example of the value of ss 25 and 26 (and its New Zealand equivalents): the power to provide prompt and effective support of the other country’s proceedings, in circumstances where the court asked to grant the support will not – and should not – be taking jurisdiction over the merits. However, the jurisdictional requirements for granting interim relief under these provisions appear to be causing some confusion.

• In its first decision, the Queensland Court noted that it had “reservations” about “transposing relevant facts, including the respondents’ connections with the jurisdiction to a Queensland setting” when determining whether it would have given relief in the hypothetical similar proceeding (at [43]-[44]). The Court’s preference seemed to be to assess the question of jurisdiction on the basis of the facts as they were. Either way, it was clear that the Court would have had jurisdiction (at [44]). The Court “plainly” had jurisdiction over Mr Wikeley, due to his presence in Queensland. Moreover, Mr Wikeley’s conduct to avoid or contravene the New Zealand orders took place in Queensland, with the result that Queensland would have been “an appropriate forum if a similar proceeding had been brought in this court” (at [45]).
• In its second decision, the Court considered that it also had to be satisfied that the Australian court would have been the clearly appropriate forum for the hypothetical similar proceeding (at [85]). It rejected a submission from Kea that the question of appropriate forum did not arise in the context of ss 25 and 26 (at [84]). The Court was satisfied that it had personal jurisdiction over Mr Wikeley, that it had subject-matter jurisdiction over the issues raised by Kea’s proceeding by virtue of the steps taken by Mr Wikeley in Australia to obtain or enforce the Kentucky judgment, and that it was not – or would not have been – a clearly inappropriate forum.

It is not clear why the supporting court should ask itself whether it could – and would – have exercised jurisdiction over the substantive proceeding, especially where this question is determined without transposing the relevant geographical facts. The whole point of the power to provide interim relief in support of the foreign proceeding is that the supporting forum may not be the right place to determine the proceeding, albeit that it is a place where (interim) orders can be made effective.

This does not necessarily mean that the relevant geographical connections ought to be transposed. When followed strictly, this approach could render ss 25 and 26 unavailable in circumstances where they would be most useful because the original court does not have the jurisdiction to make the necessary orders. Here, the New Zealand Court did not have enforcement jurisdiction over Mr Wikeley, in the sense that it could not make an order preventing him from leaving Australia or an order for his arrest.

In most cases, a straightforward interpretation of s 26(1)(b) is that it is concerned with the court’s jurisdiction in a hypothetical domestic case (see Reid Mortensen “A trans-Tasman judicial area: civil jurisdiction and judgments in the single economic market” (2010) 16 Canterbury Law Review 61 at 71). In other words, the question of jurisdiction (in an international sense) is determined mainly on the basis whether the court considers “it appropriate to give the interim relief in support of the [substantive] proceeding” (s 26(1)(a)). But in the context of anti-suit or anti-enforcement injunctions, it is impossible to shoehorn the cross-border implications of the relief into a hypothetical proceeding that is purely domestic. The case is inherently international. This may explain the Queensland Court’s decision to play it safe by asking, effectively, whether Kea could have brought the proceeding in Queensland. Ultimately, the Court thought that it would have been inappropriate for the Australian court “to simply replicate injunctive orders granted by a New Zealand court in order to secure compliance with the New Zealand orders” (at [260]).

It is likely that future courts will continue to grapple with this issue. The legislative history of s 26 suggests that the section was not intended to be weighed down by jurisdictional considerations, and that Cooper J’s approach may have been unduly restrictive. The original version of the section provided, in subs (2), that an Australian court may refuse to give the interim relief if it considered that it had no jurisdiction, apart from s 26, in relation to the subject matter of the New Zealand proceeding and for that reason it would be inexpedient to give the interim relief (see [84]). The Explanatory Memorandum to the Trans-Tasman Proceedings Amendment and Other Measures Bill 2011 (Cth), which repealed subs (2), noted that “[a]n unintended consequence of subsection 26(2) may be to give greater significance to issues of jurisdiction and expediency than is necessary, resulting in applicants for interim relief facing an unintended additional hurdle” (at [21]). The proper place to consider “issues of jurisdiction and expediency” was when assessing whether it was appropriate to grant relief under s 26(1)(a). Section 26(2) was borrowed from s 25(2) of the Civil Jurisdiction and Judgments Act 1982 (UK), which apparently responded “to the jurisdictional conditions of the Brussels I Regulation” (see Mortensen, cited above, at 71).

In the context of freezing injunctions, an explicit rationale for granting interim relief in aid of foreign proceedings has been that the relief preserves the assisting court’s ability to enforce the foreign court’s final judgment (see Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24, [2023] AC 389). This is consistent with the function of freezing injunctions more generally, which are designed to facilitate the enforcement of a judgment for the payment of a sum of money by preventing the dissipation of assets against which the judgment could potentially be enforced. Interim anti-suit injunctions are not, of course, the same as freezing injunctions. But there may be value here, too, in looking ahead to the enforcement stage. Under the TPPA, any final judgment from the New Zealand court was likely to be registrable in Australia, including a judgment for a final injunction. In a way, it might be ironic, therefore, if the jurisdictional requirements of s 26 somehow prevented the Australian court from preserving its ability to give meaningful relief at the enforcement stage.

Singapore acceded to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (‘Service Convention’) on 16 May 2023. It has now entered into force in Singapore on 1 December 2023. Two declarations were lodged: first, against Article 8(1) objecting to the direct service of judicial documents upon persons in Singapore through foreign diplomatic or consular agents unless the documents are to be served upon a national of the State from which the documents originate; and secondly, objecting to service of judicial and extrajudicial documents in Singapore by the methods of transmission set out in Article 10. These methods are:

‘a) the freedom to send judicial documents, by postal channels, directly to persons abroad,

b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination,

c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination.’

The enactment was accompanied by amendments to the Rules of Court 2021, Singapore International Commercial Court Rules 2021 and Family Justice Rules 2014.

Service of Singapore process through the Convention will help ease the procedure in civil law countries, which may view service of foreign process as raising sovereignty issues. It will also ensure that enforcement of the resulting Singapore judgment in that country may not be challenged on the ground that process was served in a manner which breached that country’s fundamental principles on service of documents (eg, Art 9(b)(ii) of the Hague Choice of Court Agreements Convention).

In other aspects though, the procedure is now more cumbersome under the Convention. Parties may agree on service by post in most common law countries, including Singapore. Thus, it is unclear why the declaration of objection against postal service was lodged. Now, service of process of a Contracting State in Singapore will all have to be channelled through the Central Authority.

 

The last month of 2023 will be a quiet one at the Court of Justice (in PIL terms). As of today, just a hearing and the delivery of an opinion are scheduled.

The hearing in the German case C-35/23, Greislzel, will take place on Thursday 7 December at 9.30 am. The request for a preliminary ruling, lodged in January 2023, addresses the interpretation of Articles 10 and 11 of Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). The Oberlandesgericht Frankfurt am Main (Higher Regional Court, Frankfurt am Main, Germany) is asking:

To what extent is the regulatory mechanism provided for in Article 10 and Article 11 of the Brussels IIa Regulation limited to proceedings conducted in the context of relations between EU Member States? More specifically:

1. 1. Does Article 10 of the Brussels IIa Regulation apply, with the effect that the jurisdiction of the courts in the former State of residence is retained, if the child had his or her habitual residence in an EU Member State (Germany) before his or her removal and the return proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (‘the HCAC’) were conducted between an EU Member State (Poland) and a third State (Switzerland) and, in those proceedings, the return of the child was refused?

If question 1 is answered in the affirmative:

1. 2. In the context of Article 10(b)(i) of the Brussels IIa Regulation, what requirements are to be imposed for the purposes of establishing continuing jurisdiction?
   3. Does Article 11 (6) to (8) of the Brussels IIa Regulation also apply in the case of return proceedings implemented under the HCAC in the context of relations between a third State and an EU Member State, as a State of refuge, in so far as the child had his or her habitual residence in another EU member state before the removal?

In the case at hand, a child, born to a German-Polish couple in Switzerland, had been living in Germany with her mother since she was some months old before the two moved to Poland. The father, who remained in Switzerland, had consented to the relocation, but (so he claims) only for some time. Afterwards he applied via the Swiss Central Authority (Federal Office of Justice in Bern) for the return of the child to Switzerland under the 1980 Hague Convention. The District Court for Krakow-Nowa Huta in Krakow, Poland, rejected the application. At a later stage, he lodged a new claim for the return of the child to Switzerland with the German Federal Office of Justice in Bonn, although he did not continue to pursue it. Finally, he applied in Germany for the transfer of sole parental custody of the child and, in the alternative, for the right to determine the place of residence. He also requested that the mother be ordered to return the child to him in Switzerland as of the effective date of the decision.

The request has been allocated to a chamber of five judges, with Mme L.S. Rossi reporting. AG M. Campos Sánchez-Bordona will deliver an opinion beginning of next year.

In addition, AG N. Emilou’s opinion in C-90/22, Gjensidige, expected some time ago, will most probably be published on 14 December.

On Wednesday, 13 December 2023, the comité de redaction of the Revue de droit international et de droit comparé will be hosting a webinar to celebrate the 100th issue of the journal. It will be dedicated to Les relations entre le droit comparé, l’identité nationale et le colonialisme and have the following programme:

• 17h30 : Accueil, par Guy Keutgen, directeur de la Revue 
• 17h40 : Présentation du numéro spécial et des orateurs, par Wim Decock et Henri Culot, coordinateurs du numéro spécial
• 17h50 :  « Pour un droit comparé décolonial », par Lena Salaymeh, professeure, University of Oxford et École Pratique des Hautes Études (Paris Sciences et Lettres)
• 18h10 : « L’ethnoconstitutionnalisme : signification et limites », par Éric M. Ngango Youmbi, professeur, Université de Garoua (Cameroun)
• 18h30 : Conclusion, par Henri Culot, rédacteur en chef de la Revue

The event will be open to all participants and free of charge, but registration is required.

Each year, the European Centre for Judges and Lawyers – EIPA Luxembourg hosts a conference on ‘Recent Trends in the Case Law of the Court of Justice of the EU’. The next edition will take place on 18 and 19 January 2024. The hosts have kindly shared the following information with us, which can also be found here.

Conference description

During this annual event, we will bring together leading specialists to review and comment on a number of key judgements that the Court of Justice of the European Union (CJEU) delivered in the past 12 months. The 2024 edition of the ‘Recent Trends in the Case Law of the Court of Justice of the European Union’ will be the occasion to celebrate EIPA’s longstanding contribution to the dissemination, understanding and application of EU law among legal professionals and to shed light on contemporary legal challenges, in particular those stemming from the EU’s digital transition.

As in every year, the conference will encourage interaction and will be an informative and pleasant networking opportunity for all participants. The conference is addressed to academics, legal practitioners from the EU institutions, legal professionals working for the Member States or as advocates, but also judges, lawyers and civil servants coming from candidate countries.

This 2024 edition will feature three panels. The first will discuss some prominent cases on the specific effects of the EU values and the relations between the EU and the national legal orders. The second panel will focus on judgements that shape the action and functioning of the EU in selected and varied policy areas such as competition, consumer protection and restrictive measures. The last panel will be dedicated to decisions that pertain to our 2024 topic: the EU’s digital transition. The variety of fields covered and the expertise of our speakers will provide a clear overview of the most important trends in the recent case law of the CJEU and will lead to informed discussions on contemporary legal questions.

Finally, the 2024 edition of this conference will give the floor to eminent guests to provide insights on the possible interactions between the European Public Prosecutors Office (EPPO) and the CJEU as well as on the specific role of the Advocate Generals of the Court of justice.

The methodology of the conference

The commentaries and analyses of the rulings discussed during the conference will be conducted by prominent specialists in EU law, including Members of the CJEU, the European Chief Prosecutor, EU officials, academics and CJEU legal secretaries.

Each session will be followed by discussions aimed at addressing specific questions and further clarifying key ideas. Participants will have the opportunity to exchange relevant professional experiences during these discussions. Additionally, breaks will offer excellent networking opportunities, allowing legal professionals to socialise and engage on matters related to EU law.

Speakers

Claudio Matera, Senior Lecturer and Director of EIPA Luxembourg – European Centre for Judges and Lawyers

Panagiotis Zinonos, Lecturer at EIPA Luxembourg – European Centre for Judges and Lawyers

Sara Iglesias Sánchez, Professor at the Universidad Complutense of Madrid

Matthieu Chavrier, Senior Legal Adviser, Legal Service of the Council of the EU

Daniel Sarmiento, Professor at the Universidad Complutense of Madrid and Editor-in-Chief of EU Law Live

Catherine Warin, Lecturer, Director of the Master of European Legal Studies (MELS), EIPA Luxembourg – European Centre for Judges and Lawyers

Elise Poillot, Professor at the University of Luxembourg

Godefroy de Moncuit de Boiscuillé, Associate Professor at the Université Nice Sophia Antipolis

Eleftheria Neframi, Professor at the University of Luxembourg

Panayotis Voyatzis, Legal Secretary at the General Court of the European Union

Andreas Scordamaglia-Tousis, Legal Secretary at the Court of Justice of the European Union

Katalin Ligeti, Professor at the University of Luxembourg, Dean of the Faculty of Law, Economics and Finance

Reminder: on 6 December from 13-14.00 GMT the University of Aberdeen,’s Centre for Private International Law is organising the second online seminar in their series . The topic of the day is Reciprocating the return of abducted children Under The 1980 Hague Child Abduction Convention with Muslim (Islamic Law) States. The speaker is Nazia Yaqub, who wrote her phd on this topic. The phd has been converted into a book in the Hart Private International Law series.

The focus of the seminar is the practical application and the challenges of the 1980 Hague Child Abduction Convention and the results of Nazia Yaqub’s empirical study, for which she interviewed young people in the abduction situations.

See more information about the seminar on the Centre of Private International Law’s website.