Droit international général

Riga Graduate School of Law (RGSL) will be hosting the Erasmus+ Jean Monnet conference titled “Consumer Protection and Fundamental Rights” on 18-19 June.

The idea of the RGSL Jean Monnet Project is to conduct a multidisciplinary exploration of Fundamental Rights including their philosophical, geographic, technological, political, cultural, societal and economic dimensions. The project is designed for researchers, public administrators, professional groups and civil society representatives. There are four conferences envisaged with the first conference focusing on consumer protection.

The conference programme is available here.

For more info on the project click here.

In common law Canada there is a clear separation between the question of a court having jurisdiction (jurisdiction simpliciter) and the question of a court choosing whether to exercise or stay its jurisdiction.  One issue discussed in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) is the extent of that separation.  Does this separation mean that a particular fact cannot be used in both the analysis of jurisdiction and of forum non conveniens?  On its face that seems wrong.  A fact could play a role in two separate analyses, being relevant to each in different ways.

Justice Cote, with whom Justices Brown and Rowe agreed, held that “applicable law, as determined by the lex loci delicti principle, should be accorded little weight in the forum non conveniens analysis in cases where jurisdiction is established on the basis of the situs of the tort” (para 90).  She indicated that this conclusion was mandated by the separation of jurisdiction and staying proceedings, which extends to each being “based on different factors”.  So if the place of the tort has been used as the basis for assuming jurisdiction, the same factor (the place of the tort) should not play a role in analyzing the most appropriate forum when considering a stay.  And since the applicable law is one of the factors considered in that analysis, if the applicable law is to be identified based on the connecting factor of the place of the tort, which is the rule in common law Canada, then the applicable law as a factor “should be accorded little weight”.

In separate concurring reasons, Justice Karakatsanis agreed that the applicable law “holds little weight here, where jurisdiction and applicable law are both established on the basis of where the tort was committed” (para 100).  In contrast, the three dissenting judges rejected this reason for reducing the weight of the applicable law (para 208).  The two other judges did not address this issue, so the tally was 4-3 for Justice Cote’s view.

As Vaughan Black has pointed out in discussions about the decision, the majority approach, taken to its logical conclusion, would mean that if jurisdiction is based on the defendant’s residence in the forum then the defendant’s residence is not a relevant factor in assessing which forum is more appropriate.  That contradicts a great many decisions on forum non conveniens.  Indeed, the court did not offer any supporting authorities in which the “double counting” of a fact was said to be inappropriate.

The majority approach has taken analytical separation too far.  There is no good reason for excluding or under-weighing a fact relevant to the forum non conveniens analysis simply because that same fact was relevant at the jurisdiction stage.  Admittedly the court in Club Resorts narrowed the range of facts that are relevant to jurisdiction in part to reduce overlap between the two questions.  But that narrowing was of jurisdiction.  Forum non conveniens remains a broad doctrine that should be based on a wide, open-end range of factors.  The applicable law, however identified, has to be one of them.

The University of Milan-Bicocca – School of Law has issued a call for papers for the Academic Conference “Waiting for Brexit: open issues in the internal market and in the area of freedom, security and justice”. The Conference represents the closing event of the Jean Monnet course “The EU Court of Justice: techniques and instruments” and will be held at the University of Milan-Bicocca on Friday 19 October 2018.

Prof. Antonio Tizzano (Vice-President of the Court of Justice of the European Union) will chair the morning session and Prof. Fausto Pocar (Emeritus of International Law at the University of Milan) will chair the afternoon session.

The result of the 2016 Brexit referendum was not only a political shock, but also and foremost a symbolic turning point in the history of the EU. The United Kingdom’s foreseen withdrawal from the Union has given rise to many political, legal, economic and social debates.

The main aim of the Conference is to contribute to analyse the impact and effects of Brexit on both EU Law and Italian law in practice. The “Waiting for Brexit” Conference – after a short overview of the main institutional aspects – will offer the audience with an insight into the changes that the withdrawal from the EU of a Member State will have on specific socio-economic areas. In particular, national and international experts (scholars, public officials, legal practitioners, industry representatives) will analyse and discuss topics such as banking and investment law, the transfer of personal data outside the EU, competition law, as well as certain aspects of judicial cooperation in civil and criminal matters.

In this context, the present Call aims to provide young researchers (i.e., PhD students and fellow researchers) of all disciplines with the opportunity to present their views on specific topics such as company law, IP law, consumer law, insolvency law, family law, labour law, tax law and customs union, air and maritime transport, relocation of EU agencies, etc. Nevertheless, the Organising Committee welcomes innovative and original contributions that cover topics already analysed by the expert speakers.

Interested applicants should submit a short CV and a paper abstract in Italian or English of no more than 700 words (in .doc, .docx or .pdf format) to the attention of the Organising Committee (via e-mail at convegnobrexit.unimib@gmail.com).

The deadline for submission is 15 July 2018. Applications will be selected on the basis of the submitted abstracts and successful applicants will be informed by 6 August 2018.

Afterwards, successful applicants should send the draft papers to the Organising Committee by 15 September 2018. The final versions of the papers should be no longer than 40,000 characters (footnotes and spaces included). The Organising Committee will provide opportunity for publication of the best papers in a top-tier peer-reviewed European law journal.

The Organising Committee is composed of Costanza Honorati (Full Professor of EU Law and Private International Law, University of Milan-Bicocca), Serena Crespi (Aggregate Professor of EU Law, University of Milan-Bicocca) and Paolo Iannuccelli (Référandaire at the Court of Justice of the European Union).

All questions and inquiries should be addressed to convegnobrexit.unimib@gmail.com. The Organising Committee is committed to answer at its earliest convenience.

• 15 July 2018 – Deadline for the submission of abstracts
• 6 August 2018 – Notifications sent to the successful applicants
• 15 September 2018 – Deadline for the submission of the draft papers
• 19 October 2018 – “Waiting for Brexit” Conference

When I reported the first salvos in Goldhar v Haaretz I flagged that the follow-up to the case would provide for good comparative conflicts materials. I have summarised the facts in that original article. The Ontario Court of Appeal in majority dismissed Haaretz’ appeal in 2016, 2016 ONCA 515. In Haaretz.com v. Goldhar, 2018 SCC 28, the Canadian Supreme Court has now held in majority for a stay on forum non conveniens grounds. Both the lead opinion, the supporting opinions and the dissents include interesting arguments on forum non conveniens. Many of these, as Stephen Pitel notes, include analysis of the relevance of obstacles in enforcement proceedings.

If ever I were to get round to compiling that published reader on comparative conflicts, this case would certainly feature.

Have a good start to the working-week (lest is started yesterday in which case: bonne continuation).

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.

Prof. Zamora Cabot has just made available on SSRN his contribution to the collective book Implementing the UN Principles on Business and Human Rights. Private International Law Perspectives (F. Zamora, L. Heckendorn, S. de Dycker, eds.), Shulthess Verlag, Zurich, 2017. The abstract reads as follows:

“For some time, the changing concept of extraterritoriality has been associated in a variety of ways with the international protection of Human Rights. It is, for example, linked to efforts to make the reparation mechanisms of the UN’s Guiding Principles accessible. Similarly, the notion is relevant to the States’ formal Extraterritorial Obligations (ETOS), which pressure States to fulfil the framework established in the International Covenant on Economic, Social and Cultural Rights. In both cases, the volume and quality of the technical contributions that have been produced are remarkable and worth taking into consideration.

In the context of this contribution and its focus on private international law, I will however limit my remarks to this particular field. In Section I, I will address questions that are arising in the United States following the US Supreme Court’s decision in the Kiobel case. Following that, in Section II, I will introduce a cross section of extraterritorial laws that particularly impact the fields under consideration here – corporations and human rights – before summing up with some concluding remarks.”

 (You can access to the ToC of the book itself here)

Another issue in the recent Supreme Court of Canada decision in Haaretz.com v Goldhar (available here) involves the applicable law as a factor in the forum non conveniens analysis.  It is clear that one of the factors in determining the most appropriate forum is the applicable law.  This is because it is quite easy for the forum to apply its own law and rather more difficult for it to apply the law of another jurisdiction.

So if the defendant can show that the forum would apply not its own law but rather the law of another jurisdiction, that points to a stay of proceedings in favour of that other jurisdiction.  In contrast, if the plaintiff can show that the forum would apply its own law, that points against a stay of proceedings.  In Haaretz.com the plaintiff was able to show that the Ontario court would apply Ontario law, not Israeli law.  So the applicable law factor favoured Ontario.

Not so, argued the defendant, because an Israeli court would apply Israeli law (see para 88).  So as between the two jurisdictions neither was any more convenient than the other!

In the Supreme Court of Canada, four of the judges rejected the defendant’s rejoinder.  The dissenting judges held that “[i]t is entirely appropriate, in our view, for courts to only look at the chosen forum in determining the applicable law.  Requiring courts to assess the choice of law rules of a foreign jurisdiction may require extensive evidence, needlessly complicating the pre-trial motion stage of the proceedings” (para 207).  In separate concurring reasons, Justice Karakatsanis agreed with the dissent on this point (para 100).  So because Ontario would apply Ontario law, this factor favours proceedings in Ontario rather than proceedings in Israel.

In contrast, Justice Cote, with whom Justices Brown and Rowe agreed, stated that “I am concerned that disregarding the applicable law in the alternative forum is inconsistent with the comparative nature of the forum non conveniens analysis” (para 89).  She cited in support an article by Brandon Kain, Elder C. Marques and Byron Shaw (2012).  The other two judges did not comment on this issue, so the court split 4-3 against looking at the applicable law in the alternative forum.

There is force to the practical concern raised by the dissent, and even with the assistance of the parties in many cases the court will be unable to form a sufficiently strong view as to what law the foreign forum would apply.  But conceptually it does seem that if it is established that the foreign forum will apply its own law, that should go to negate the benefits of the plaintiff’s chosen forum applying its own law.  Neither is any more convenient where compared against the other.

Perhaps because of the novelty of the approach, Justice Cote’s application of it may have missed the mark.  She held that “[a]s each forum would apply its own law, the applicable law factor cannot aid Haaretz in showing that it would be fairer and more efficient to proceed in the alternative forum” (para 88).  But the true point flowing from establishing that Israel would apply Israeli law, it would seem, should be that the applicable law factor cannot aid Goldhar (the plaintiff) in showing that it would be fairer and more efficient to proceed in Ontario.  If it cannot aid Haaretz.com that Israel would apply its own law, then how is the factor relevant and why is the court indicating a willingness to consider it?  It surely could not aid Haaretz.com that Israel would apply some other law.

On a motion for a stay, if the court did know what law would be applied in both the chosen forum and the alternative forum, we would have four possible situations.  On Justice Cote’s approach, if both forums would apply their own law, this is a neutral factor.  Similarly, if both forums would apply law other than forum law, this is also a neutral factor.  In the other two situations, the applicable law factor favours the forum that would be applying its own law.  With the court splitting 4-3 against looking at the applicable law in the alternative forum, this is not the approach – but should it be?

The doctrine of forum non conveniens, in looking to identify the most appropriate forum for the litigation, considers many factors.  Two of these are (i) a desire to avoid, if possible, a multiplicity of proceedings and (ii) any potential difficulties in enforcing the decision that results from the litigation.  However, it is important to keep these factors analytically separate.

In the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) Justice Abella noted that “enforcement concerns would favour a trial in Israel, in large part because Haaretz’s lack of assets in Ontario would mean that any order made against it would have to be enforced by Israeli courts, thereby raising concerns about a multiplicity of proceedings” (para 142).  Similarly, Justice Cote concluded (paras 82-83) that the fact that an Ontario order would have to be enforced in Israel was a factor that “slightly” favoured trial in Israel.

Justice Abella has arguably conflated the two factors rather than keeping them separate.  The concerns raised by a multiplicity of proceedings tend to focus on substantive proceedings rather than on subsequent procedural steps to enforce a judgment.  Courts rightly try to avoid substantive proceedings in more than one jurisdiction that arise from the same factual matrix, with one of the core concerns being the potential for inconsistent findings of fact.  Of course, enforcement proceedings do involve an additional step that is avoided if the judgment can simply be enforced locally.  But that, in itself, should not be grouped with the kinds of concerns raised by multiple substantive proceedings.  It will be unfortunate if subsequent courts routinely consider contemplated foreign enforcement proceedings as raising a multiplicity of proceedings concern.

Justice Cote (with whom Justices Brown and Rowe agreed) did not conflate enforcement proceedings and the concern about multiplicity.  However, it should be noted that Club Resorts, which she referenced on this point, stated (para 110 that “problems related to the recognition and enforcement of judgments” is a relevant factor for forum non conveniens.  The stress there should be on “problems”.  If it can be anticipated that there may be problems enforcing the judgment where the assets are, that is an important consideration.  But if no such problems are anticipated, the mere fact that enforcement elsewhere is contemplated should not point even “slightly” against the forum as the place for the litigation.  In Haaretz.com the judges who consider the enforcement factor did not identify any reason to believe that enforcement proceedings in Israel would be other than routine.

The dissenting judges (Chief Justice McLachlin and Justices Moldaver and Gascon) properly separated these two factors in their analysis (paras 234-237).  They did not treat enforcement proceedings as part of the analysis of a multiplicity of proceedings.  On enforcement, their view was that in defamation proceedings it is often sufficient just to obtain the judgment, in vindication of the plaintiff’s reputation, and that enforcement can thus be unnecessary or “irrelevant” (para 236).  Justice Cote strongly disagreed (para 83).  Leaving that dispute to one side, the dissent could have also made the point that this was not a case where any “problems” had been raised about enforcement in Israel.

One of the points of interest in the Supreme Court of Canada’s recent decision in Haaretz.com v Goldhar (available here) concerns the appropriateness of the plaintiff’s undertaking to pay the travel and accommodation costs of the defendant’s witnesses, located in Israel, to come to the trial in Ontario.  The defendant had raised the issue of the residence of its witnesses as a factor pointing to Israel being the more appropriate forum.  The plaintiff, one presumes, made a strategic decision to counter this factor by giving the undertaking.

The motions judge and the Court of Appeal for Ontario both considered the undertaking as effective in reducing the difficulties for the defendant in having the litigation in Ontario.  However, the undertaking was viewed quite differently by at least some of the judges of the Supreme Court of Canada.  Justice Cote, joined by Justices Brown and Rowe, stated that “consideration of such an undertaking would allow a wealthy plaintiff to sway the forum non conveniens analysis, which would be inimical to the foundational principles of fairness and efficiency underlying this doctrine” (para 66).  Justice Abella, in separate reasons, stated “I think it would be tantamount to permitting parties with greater resources to tip the scales in their favour by ‘buying’ a forum. … it is their actual circumstances, and not artificially created ones, that should be weighed” (para 140).  The other five judges (two concurring in the result reached by these four; three dissenting) did not comment on the undertaking.

Undertakings by one party in response to concerns raised by the other party on motions to stay are reasonably common.  Many of these do involve some financial commitment.  For example, in response to the concern that various documents will have to be translated into the language of the court, a party could undertake to cover the translation costs.  Similarly, a party might undertake to cover the costs of the other party flowing from more extensive pre-trial discovery procedures in the forum.  Travel and accommodation expenses are perhaps the most common subject for a financial undertaking.  Is the Supreme Court of Canada now holding that these sorts of undertakings are improper?

The more general statement from Justice Abella rejecting artificially created circumstances could have an even broader scope, addressing more than just financial issues.  Is it a criticism of even non-financial undertakings, such as an undertaking by the defendant not to raise a limitation period – otherwise available as a defence – in the foreign forum if the stay is granted?  Is that an artificially-created circumstance?

Vaughan Black has written the leading analysis of conditional stays of proceedings in Canadian law: “Conditional Forum Non Conveniens in Canadian Courts” (2013) 39 Queen’s Law Journal 41.  Undertakings are closely related to conditions.  The latter are imposed by the court as a condition of its order, while the former are offered in order to influence the decision on the motion.  But both deal with very similar content, and undertakings are sometimes incorporated into the order as conditions.  Black observes that in some cases courts have imposed financial conditions such as paying transportation costs and even living costs during litigation (pages 69-70).  Are these conditions now inappropriate, if undertakings about those expenses are?  Or it is different if imposed by the court?

My view is that the four judges who made these comments in Haaretz.com have put the point too strongly.  Forum non conveniens is about balancing the interests of the parties.  If one party points to a particular financial hardship imposed by proceeding in a forum, it should be generally open for the other party to ameliorate this hardship by means of a financial undertaking.  Only in the most extreme cases should a court consider the undertaking inappropriate.  And perhaps, though the judges do not say so expressly, Haaretz.com is such a case, in that there were potentially 22 witness who would need to travel from Israel to Ontario for a trial.

Thank you  Elias Neocleous & Co  for reporting Andrew Burness v Saipem SpA, in which the Cypriot Supreme Court confirmed jurisdiction over claims related to Cyprus’ Exclusive Economic Zone (under UNCLOS), and rejected application of forum non conveniens. The claims followed an accident on board the vessel Saipem 1000 in the Cyprus EEZ.

The first issue is one under public international law, which I will leave to others. The second is an interesting application of forum non conveniens. Its application had been suggested for none of the parties are Cypriot nationals, neither were the witnesses, or any of the insurance and other companies involved. One assumes the card played was one of convenience, and costs. However the Supreme Court particularly emphasised that the accident had occurred in the process of prospection or exploitation of Cyprus’s natural resources: that makes the Cypriot courts particularly suited to hearing the case, despite the many foreign elements.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.14.5.`

The decision to stay proceedings under the doctrine of forum non conveniens is discretionary, which in part means that appeal courts should be reluctant to reverse the decisions of motions judges on the issue.  It comes as some surprise, therefore, that the Supreme Court of Canada has disagreed with not only the motions judge but also the Court of Appeal for Ontario and overturned two earlier decisions denying a stay.  In Haaretz.com v Goldhar (available here) the court held (in a 6-3 decision) that the plaintiff’s libel proceedings in Ontario should be stayed because Israel is the clearly more appropriate forum.

The decision is complex, in part because the appeal also considered the issue of jurisdiction and in part because the nine judges ended up writing five sets of reasons, four concurring in the result and a fifth in dissent.  That is very unusual for Canada’s highest court.

The case concerned defamation over the internet.  The plaintiff, a resident of Ontario, alleged that an Israeli newspaper defamed him.  Most readers of the story were in Israel but there were over 200 readers in Ontario.

On assumed jurisdiction, the court was asked by the defendant to reconsider its approach as set out in Club Resorts (available here), at least as concerned cases of internet defamation.  Eight of the nine judges refused to do so.  They confirmed that a tort committed in Ontario was a presumptive connecting factor to Ontario, such that it had jurisdiction unless that presumption was rebutted (and they held it was not).  They also confirmed the orthodoxy that the tort of defamation is committed where the statement is read by a third party, and that in internet cases this is the place where the third party downloads and reads the statement (paras 36-38 and 166-167).  Only one judge, Justice Abella, mused that the test for jurisdiction should not focus on that place but instead on “where the plaintiff suffered the most substantial harm to his or her reputation” (para 129).  This borrows heavily (see para 120) from an approach to choice of law (rather than jurisdiction) that uses not the place of the tort (lex loci delicti) but rather the place of most substantial harm to reputation to identify the applicable law.

On the stay of proceedings, six judges concluded that Israel was the most appropriate forum.  Justice Cote wrote reasons with which Justices Brown and Rowe concurred.  Justice Karakatsanis disagreed with two key points made by Justice Cote but agreed with the result.  Justices Abella and Wagner also agreed with the result but, unlike the other seven judges (see paras 91 and 198), they adopted a new choice of law rule for internet defamation.  This was a live issue on the stay motion because the applicable law is a relevant factor in determining the most appropriate forum.  They rejected the lex loci delicti rule from Tolofson (available here) and instead used as the connecting factor the place of the most substantial harm to reputation (paras 109 and 144).  Justice Wagner wrote separately because he rejected (paras 147-148) Justice Abella’s further suggestion (explained above) that the law of jurisdiction should also be changed along similar lines.

The core disagreement between Justice Cote (for the majority) and the dissent (written jointly by Chief Justice McLachlin and Justices Moldaver and Gascon) was that Justice Cote concluded that the motions judge made six errors of law (para 50) in applying the test for forum non conveniens, so that no deference was required and the court could substitute its own view.  In contrast, the dissent held that four of these errors were “merely points where our colleague would have weighed the evidence differently had she been the motions judge” (para 179) which is inappropriate for an appellate court and that the other two errors were quite minor and had no impact on the overall result (para 178).  The dissent held strongly to the orthodox idea that decisions on motions to stay are entitled to “considerable deference” (para 177) lest preliminary motions and appeals over where litigation should occur undermine stability and increase costs (para 180).

Another fundamental disagreement between Justice Cote and the dissent was their respective view of the scope of the plaintiff’s claim.  During the motion and appeals, the plaintiff made it clear that he was only seeking a remedy in respect of damage to his reputation in Ontario (as opposed to anywhere else) and that he was not going to sue elsewhere.  The dissent accepted that this undertaking to the court limited the scope of the claim (paras 162-163) and ultimately it pointed to Ontario as the most appropriate forum.  In contrast, Justice Cote held that the plaintiff’s undertaking “should not be allowed to narrow the scope of his pleadings” (para 23).  It is very hard to accept that this is correct, and indeed on this point Justice Karakatsanis broke with Justice Cote (para 101) and agreed with the dissent.  Why should the court not accept such an undertaking as akin to an amendment of the pleadings?  Justice Cote claimed that “[n]either Goldhar nor my colleagues … may now redefine Goldhar’s action so that it better responds to Haaretz’s motion to stay” (para 24).  But why should the plaintiff not be able to alter the scope of his claim in the face of objections to that scope from the defendant?

There are many other points of clash in the reasons, too many to engage with fully here.  How important, at a preliminary stage, is examination of what particular witnesses who have to travel might say?  What role does the applicable law play in the weighing of the more appropriate forum when it appears that each forum might apply its own law?  Does a subsequent proceeding to enforce a foreign judgment count toward a multiplicity of proceedings (which is to be avoided) or do only substantive proceedings (on the merits) count?  Is it acceptable for a court to rely on an undertaking from the plaintiff to pay the travel and accommodation costs for the defendant’s witnesses or is this allowing a plaintiff to “buy” a forum?

It might be tempting to treat the decision as very much a product of its specific facts, so that it does not offer much for future cases.  There could, however, be cause for concern.  As a theme, the majority lauded “a robust and careful” assessment of forum non conveniens motions (para 3).  If this robust and careful assessment is to be performed by appellate courts, is this consistent with deference to motions judges in their discretionary, fact-specific analysis?  The dissent did not think so (para 177).

Choices, choices. I will continue to follow the GDPR for jurisdictional purposes, including territorial scope. (And I have a paper coming up on conflict of laws issues in the private enforcement of same). But for much of the GDPR enforcement debate, I am handing over to others. Johannes Marosi, for instance, who reviews the CJEU judgment this week in Fansites, over at Verfassungsblog. I reviewed the AG’s Opinion here.

Judgment in Grand Chamber but with small room for cheering.

As Johannes’ post explains, there are many loose ends in the judgment, and little reference to the GDPR (technically correct but from a compliance point of view wanting). (As an aside: have a look at Merlin Gömann’s paper, in CMLREv, on the territorial scope of the GDPR).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.5.

[2017] EWHC 3012 (QB) Spring v MDO and Evengelisches Krankenhaus Bielefeld is unreported as far as I can tell (and I have checked repeatedly). Thank you Max Archer for flagging the case and for sending me copy of judgment a few months back. (I am still chipping away at that queue).

In 1997, Claimant was stationed in Germany with the British Army. The Claimant very seriously fractured his right leg and ankle whilst off duty in Germany (the off duty element evidently having an impact – on duty injuries arguably might not have been ‘civil and commercial’). He was then treated at the Second Defendant’s hospital under an established arrangement for the treatment of UK service personnel between the First (the Ministry of Defence) and Second Defendants (the German hospital). Various complications later led to amputation.

The Brussels I Recast Regulation applies for claimant did not introduce the claim against the second defendant until after its entry into force: 18 years in fact after the surgery. This was the result of medical reports not suggesting until after July 2015 that the German hospital’s treatment has been substandard. Rome II ratione temporis does not apply given the timing of the events (alleged wrongful treatment leading to damage).

Yoxall M held that Article 8(1)’s conditions for anchoring /joinder were fulfilled, because of the risk of irreconcilable judgments (at 35). Even if the claim against the First Defendant is a claim based on employer’s liability whereas the claim against the Hospital is based on clinical negligence. Should the proceedings be separate there is a risk of the English and German courts reaching irreconcilable judgments on causation of loss. At 35: ‘It would be expedient for the claims to be heard together – so that all the factual evidence and expert evidence is heard by one court. In this way the real risk of irreconcilable judgments can be avoided.’

With reference to precedent, Master Yoxall emphasised that ‘in considering Article 8(1) and irreconcilable judgments a broad common sense approach is justified rather than an over-sophisticated analysis’ (at 36).

Yoxal M is entirely correct when he states at 37 that Article 8(1) does not include a requirement that the action brought against the different defendants have identical legal bases. For decisions to be regarded as contradictory the divergence must arise in the context of the same situation of law and fact (reference is made to C-98/06 Freeport).

Next however the court considers as a preliminary issue, the limitation period applying between claimant and the German defendant and holds that the Hospital have an arguable case that the claim is statute barred in German law (German expert evidence on the issue being divided). The latter is the lex causae for the material dispute (on  the basis of English residual private international law), extending to limitation periods per Section 1(3) of the Foreign Limitations Period Act 1984 (nota bene partially as a result of the 1980 input by the Law Commission, and not entirely in line with traditional (or indeed US) interpretations of same). This ultmately sinks the joinder.

As a way forward for plaintiff, the Court suggests [2005] EWCA Civ 1436 Masri. In this case the Court of Appeal essentially held that joinder on the basis of Article 8(1) may proceed even if litigation against the England-based defendants are not the same proceedings, but rather take place in separate action. Masri has not been backed up as far as I know, by European precedent: Clarke MR held it on the basis of the spirit of C-189/87 Kalfelis, not its letter. Moreover, how the German limitation periods would then apply is not an obvious issue, either.

An interesting case and I am pleased Max signalled it.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.12.1.

On Friday, 15 June, ELTE Eötvös Loránd University, Budapest, will host a workshop on ‘Perspectives of Unification of Private International Law in the European Union’. The programme will be as follows.

12:00 Welcome speech
by Prof. Miklós Király (ELTE)

12:10 The Interface Between the Harmonisation of Contract Law and Private International Law
by Prof. Miklós Király (ELTE)
Comments by Dr. Zoltán Nemessányi (Corvinus University)

12:40 Uniform or Diverging Application of EU Instruments in the Field of Private International Law by National Jurisdictions – Preliminary References in the Area of Judicial Cooperation in Civil Matters
by Dr. Réka Somssich (ELTE)
Comments by Dr. Orsolya Szeibert (ELTE)

13:10 Discussion

13:30 Coffee break

13:45 Companies in EU Private International Law – An EU Law Perspective
by Dr. Tamás Szabados (ELTE)
Comments by Dr. Péter Metzinger (Corvinus University)

14:15 Illusion or Reality: the Interrelation of the Conflict of Laws Rules and the Practices of State Courts and Arbitral Tribunals
by Dr. István Erd?s (ELTE)
Comments by Dr. Kinga Tímár (ELTE)

14:45 Discussion

Further information can be found on the conference flyer.

Open your eyes, we may be next.

(Or maybe we are already there?)

Case C- 191/18, KN v Minister for Justice and Equality, is not about PIL; the questions referred to the CJ on March 16, actually relate to the European Arrest warrant (and Brexit). However, PIL decisions are mirroring the same concerns. It has been reported, for instance, that a Polish district court has refused a Hague child return to England on the basis (inter alia) that Brexit makes the mother`s position too uncertain. A recent case before the Court of Appeal of England and Wales shows that English judges are also struggling with this (see “Brexit and Family Law”, published on October 2017 by Resolution, the Family Law Bar Association and the International Academy of Family Lawyers, supplemented by mainland IAFL Fellows, Feb 2018).

And even if it was not the case: can we really afford to stay on the sidelines?

Needless to say, Brexit is just one of the ingredients in the current European Union melting pot. Last Friday’s presentation at the Comité Français de Droit International Privé, entitled « Le Droit international privé en temps de crise », by Prof. B. Hess, provided a good assessment of the main economic, political and human factors explaining European  contemporary mess – by the way, the parliamentary elections in Slovenia on Sunday did nothing but confirm his views. One may not share all that is said on the paper; it’s is legitimate not to agree with its conclusions as to the direction PIL should follow in the near future to meet the ongoing challenges; the author’s global approach, which comes as a follow up to his 2017 Hague Lecture, is nevertheless the right one. Less now than ever before can European PIL be regarded as a “watertight compartment”, an isolated self-contained field of law. Cooperation in criminal and civil matters in the AFSJ follow different patterns and maybe this is how it should be (I am eagerly waiting to read Dr. Agnieszka Frackowiak-Adamska’s opinion on the topic, which seem to disagree with the ones I expressed in Rotterdam in 2015, and published later). The fact remains that systemic deficiencies of the judiciary in a given Member State can hardly be kept restricted to the criminal domain and leave untouched the civil one; doubts hanging over one prong necessarily expand to the other. The Celmer case, C-216/18 PPU, Minister for Justice and Equality v LM, heard last Friday (a commented report of the hearing will soon be released in Verfassungsblog, to the best of my knowledge), with all its political charge, cannot be deemed to be of no interest to us; precisely because a legal systems forms a consistent whole mutual trust cannot be easily, if at all, compartmentalized.

The Paris presentation was of course broader and it is not my intention to address it in all her richness, in the same way that I cannot recall the debate which follow, which will be reproduced in due time at the Travaux. Still, I would like to mention the discussion on asylum and PIL, if only to refer to what Prof. S. Courneloup very correctly pointed out to: asylum matters cannot be left to be dealt with by administrative law alone; on the contrary, PIL has a big say and we – private international lawyers- a wide legal scenario to be alert to (for the record, albeit I played to some extent the dissenting opinion my actual stance on the need to pair up public and private law for asylum matters is clear in CDT, 2017). Last year the JURI Committee of the European Parliament commissioned two studies (here and here; they were also reported in CoL) on the relationship between asylum and PIL, thus suggesting some legislative initiative might be taken. But nothing has happened since.

Written by Duncan Fairgrieve (BIICL;Université de Paris Dauphine) and Solenn Le Tutour (avocat, Barreau de Paris)

When the French Government announced in February this year plans to launch an “English” Commercial court in Paris, eyebrows were raised and, it is fair to say, an element of skepticism expressed in the common law world as to whether such a development would really prove to be a serious competitor to the Commercial Courts on Fetter Lane in London.In what some might say was an uncharacteristically pragmatic fashion, collective judicial sleeves in Paris were pulled up however and the project taken forward with some alacrity. With broad support from the legal and political class given what is seen as re-shuffling of cards post-Brexit, the project was accelerated to such an extent that the first hearing of the new Chamber took place yesterday afternoon. The Court, which is an International Chamber of the Paris Court of Appeal, will hear appeals from the international chamber of the first instance Commercial court in Paris which has been in operation – albeit rather discretely – for almost a decade.

Setting aside the PR and legal spin, the procedural innovations of the new International Chamber are in fact quite radical. The headline-grabbing change is of course the use of English. Proceedings can take place in languages other than French, including English, and indeed it has recently been confirmed by the Court that non-French lawyers will also be granted rights of audience to appear before the International Chamber, as long as accompanied by a lawyer called to the Paris Bar. This is of course a major change in a normally very traditional French institution, though it is interesting to note that written submissions and pleadings as well as the resultant judgments will be in French (and officially translated into English).

Case management is to be stream-lined as well. Gone will be the rather languorous meandering French appellate procedure and in will be ushered a new highly case-managed equivalent with the parties and judge settling a timetable at the outset with fixed dates for filing written submissions, as well as – strikingly – the actual date of the ultimate judgment being set in stone, usually within 6 months of the first case-management hearing.

A minor revolution has also occurred in terms of the hearing. The approach will mean that the hearings will be more detailed, with the Court placing an emphasis on oral submissions, over and above the traditionally document-based approach where the judicial dossier takes precedence. There is even provision for the cross-examination of witnesses and experts during the hearing, something that rarely occurs in France outside the criminal arena.

Indications are also that there might even be a more fundamental change in the style of judicial judgments handed down by the International Chamber. At a recent seminar at the Paris Bar, the first judge assigned to the Chamber noted that there would be a deliberate attempt to ensure the judgments set out in more detail the reasoning of the Court, and a greater attention to legal certainty in terms of following previous case law – itself a very interesting potential shift in a legal system which has not traditionally adhered to any form of judicial precedent.

Some have also talked of allowing a more expansive approach to the judicially-sanctioned disclosure of documents – a simplified form of discovery where litigating parties are forced to communicate inconvenient files to the other side – which is all the more surprising as often lampooned by French commentators as one of the misdeeds of “American” style litigation.

Whilst this might not all add up to a complete judicial revolution, the changes in France are significant, and along with similar announcements in Amsterdam, Frankfurt, and Brussels, it is clear that there is an attempt across Europe – albeit only an attempt at this stage – to challenge the hegemony of English courts in international commercial litigation.

Mukarrum Ahmed (Lancaster University) has posted an article titled, The Nature and Enforcement of Choice of Law Agreements on SSRN. It can be freely accessed at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3177512.

This is a companion article on choice of law agreements to the author’s recent book titled The Nature and Enforcement of Choice of Court Agreements: A Comparative Study (Oxford, Hart Publishing 2017). The final version of this article will appear in the Journal of Private International Law.

The abstract of the article is reproduced below:

This article seeks to examine the fundamental juridical nature, classification and enforcement of choice of law agreements in international commercial contracts. At the outset, it will be observed that the predominance of jurisdictional disputes in international civil and commercial litigation has pushed choice of law issues to the periphery. The inherent dialectic between the substantive law paradigm and the internationalist paradigm of party autonomy will be harnessed to provide us with the necessary analytical framework to examine the various conceptions of such agreements and aid us in determining the most appropriate classification of a choice of law agreement. A more integrated and sophisticated understanding of the emerging transnationalist paradigm of party autonomy will guide us towards a conception of choice of law agreements as contracts, albeit contracts that do not give rise to promises inter partes. This coherent understanding of both the law of contract and choice of law has significant ramifications for the enforcement of choice of law agreements.

The 2018 Asia Pacific Colloquium of the Journal of Private International Law (JPIL) will be held on Monday 10 December 2018 at the Law Faculty of Doshisha University in Kyoto, Japan.

Scholars, researchers, legal practitioners and other interested persons are now invited to submit abstracts in English of paper proposals for presentation at the Colloquium.  While proposals for papers to be presented at the Colloquium may be on any topic, they must have as their primary focus the private international law aspects of the chosen topic.  Recent PhD graduates in the Asia Pacific region are especially invited to submit proposals.

The Colloquium will be in the form of an all-day roundtable discussion conducted in English.  Persons whose papers have been chosen will deliver their presentations in turn.  Each presentation will run for 20 minutes and be followed by a discussion of 20 minutes in which all participants in the Colloquium (including members of the JPIL’s Editorial Board and specially-invited private international law academics from the Asia-Pacific region) will comment on the presentation. The objective of the Colloquium will be to assist presenters to improve their papers with a view to eventual publication, possibly in the JPIL subject to acceptance by its Editorial Board.

Abstracts are to be submitted by email to ntakasug@mail.doshisha.ac.jp no later than 5 pm (Japan time) on 1 July 2018.  Abstracts should be accompanied by cvs and contact details of the person making the submission.  Persons whose abstracts have been accepted will be informed accordingly by 15 July 2018.  Such persons will be expected to submit their full papers in PDF format by email to ntakasug@mail.doshisha.ac.jp no later than 5 pm (Japan time) on 1 October 2018.  Papers should be in English and between 4,000 and 10,000 words in length (inclusive of footnotes).  Accepted papers will be circulated in advance among those taking part in the Colloquium.  Persons who have not heard from the Colloquium organisers by 15 July 2018 should assume that their submissions have not been accepted.

Persons selected to make presentations should note that they will be wholly responsible for their travel to and from, and their accommodation in, Kyoto for the Colloquium.  Neither the JPIL nor the Faculty of Law Doshisha University are in a position to provide any funding in respect of a selected person’s expenses.  Further inquiries may be addressed to Professor Naoshi Takasugi at ntakasug@mail.doshisha.ac.jp.

The University of Milan (Department of International, Legal, Historical and Political Studies) will host on Thursday 21 and Friday 22 June 2018 the Summer School in International Financial Law. Participation is free of charge, but registration is compulsory at Eventbrite. The sessions will be held in English with simultaneous translation into Italian. Here is the programme (available for download):

Thursday 21 June 2018 – 14h00

14h30 Welcome Address

• Giuseppe De Luca, Deputy-Rector, University of Milan
• Ilaria Viarengo, Director of the Department of International, Legal, Historical and Political Studies

15h00 Cross-Border Company Matters

Chair: Manlio Frigo, University of Milan

• The EU Proposal for a Directive on Cross-Border Conversions, Mergers and Divisions (Bartlomiej Kurcz, DG Justice and Consumers, European Commission)
• A German Perspective (Leonhard Hübner, University of Heidelberg)
• An Italian Private International Law Perspective (Francesca C. Villata, University of Milan)
• Italian and Comparative Corporate Law Perspectives (Marco Ventoruzzo, Bocconi University)

General discussion (with the participation of Maria Vittoria Fuoco, Department on the Functioning of the Judiciary, Italian Ministry of Justice)

– – –

Thursday 21 June 2018 – 17h30

17h30 Taking Security over Shares and Other Financial Securities

Chair: Giovanna Adinolfi, University of Milan

• Investors Rights in Securities and Shareholdings in the Post-CSDR Era (Christina Tarnanidou, University of Athens of Economics and Business, Rokas, Athens)
• Securities settlement through T2S (Aranzazu Ullivarri Royuela, BME Post Trade Services, Madrid)

General discussion

– – –

Friday 22 June 2018 – 9h30

9h30 Financial Collaterals and Bonds

Chair: Giovanna Adinolfi, University of Milan

• Cross-Border Financial Collateral within the Eurosystem (Klaus Loeber, Market Infrastructures and Payments, European Central Bank)
• Bonds Issuance (Matthias Lehmann, Rheinischen Friedrich-Wilhelms-Universität Bonn)

General discussion

10h45 – 13h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Francesca C. Villata, University of Milan

• Presentation of the Proposal (Maria Vilar-Badia, DG Justice and Consumers, European Commission)
• Factoring (Christine Van Gallebaert, Université Paris 2 Panthéon-Assas, Jones Day, Paris)
• Collateralization (Joanna Perkins, Financial Markets Law Committee, London)

General discussion

– – –

Friday 22 June 2018 – 14h00

14h00 – 17h00 The Proposal on the law applicable to the third-party effects of assignments of claims

Chair: Stefania Bariatti, University of Milan

• Securitization (Gilles Cuniberti, University of Luxembourg)
• Selected practical issues (Francisco Garcimartín Alférez, Universidad Autónoma de Madrid, Linklaters, Madrid)
• The Relationship with the EU Regulation on Cross-Border Insolvency (Stefania Bariatti, University of Milan, Chiomenti, Milan)
• The Relationship with the EU Rules on the Cross-Border Insolvency of Banks and Insurances (Matthias Haentjens, University of Leiden)

General discussion – Closing Remarks

(Many thanks to Prof. Francesca Villata for the tip-off)

I post this item mostly as a point of reference for discussions on mandatory law, employment disputes, and the use of arbitral tribunals to circumvent limitations in domestic litigation.

In FC Black Stars Basel 4A_7/2018, the Swiss Supreme Court held in April that mandatory Swiss law on limited arbitrability of domestic employment disputes, cannot be circumvented by submitting dispute to international arbitration. Schellenberg Witmer have succinct analysis here.

Note in particular 2.3.3:

Vor diesem Hintergrund erscheint es zur Vermeidung von Wertungswidersprüchen folgerichtig, den in Art. 341 OR angeordneten Schutz der sozial schwächeren Partei im Rahmen der Beurteilung der freien Verfügbarkeit nach Art. 354 ZPOinsoweit in das Prozessrecht hinein zu verlängern, als Schiedsvereinbarungen nicht uneingeschränkt zugelassen werden

Geert.

Erasmus School of Law (under the ERC project Building EU Civil Justice) in collaboration with the Max Planck Institute for Procedural Law Luxembourg, and the Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University) are hosting the seminar ‘Innovating International Business Courts: A European Outlook’ that will take place in Rotterdam on 10 July 2018.

In relation thereto Erasmus Law Review invites submissions for its upcoming special issue on International Business Courts – a European and Global Perspective on topics relating to court specialization, specifically relating to the development of international business courts in Europe and beyond, and focusing on justice innovation and their relevance for access to justice and the judicial system, including the challenges they may pose for judicial administration, litigants and other stakeholders. Contributions can be theoretical, empirical as well as policy oriented. Interdisciplinary approaches are especially encouraged. The issue will also include papers focusing on the Netherlands, the United Kingdom (England and Wales), France, Germany, and Belgium, and deriving from the seminar.

Authors of selected papers will be exempt from registration fees for the seminar and will have the opportunity to present a poster during the drinks after the seminar.

Please submit an abstract in English of no more than 500 words to Erlis Themeli (themeli@law.eur.nl) and Alexandre Biard (biard@law.eur.nl) before 10 June 2018. Please include your name, affiliation, and a link to your research profile. You will be informed on the outcome on 24 June 2018 at the latest. Responsible issue editors are Xandra Kramer (Erasmus University Rotterdam/Utrecht Utrecht) and John Sorabji (University College, London).

The final paper should be 8,000-12,000 words in length (including footnotes) and must comply with the Erasmus Law Review’s Authors Guidelines. Selected papers will go through the regular double-blind peer review process and publication is subject to the outcome of this review process. The deadline for submission of the paper is 1 October 2018.

For more information see the Call for Papers.