Droit international général

In [2018] EWHC 1041 (Ch) MX1 and SES v Fardad Farahzad (defendant’s appeal for summary judgment) claimants are domiciled in Israel and Luxembourg respectively. Their action results from some 57 tweets published by a Twitter account going under the title “@MX1 Leaker”. The Tweets make various allegations of bribery and corruption against the First Claimant. Claimants suggest a conspiracy between the defendant and former employees (for the Tweet seemed furnished with internal information which the defendant would not have had access to).

Defendant’s domicile is not specified but for the purposes of the litigation is not relevant: for jurisdiction is seemingly undisputed and even if this were not based on the Brussels I Recast, the English courts have to apply Rome II to determine applicable law.

Defendant’s request for summary dismissal is based inter alia on the argument that if and to the extent the Claimants or either of them have suffered loss or damage as a result of the Conspiracy, the place of that loss or damage was not England. The applicable law identified by the Rome II Regulation – according to the Defendant: Israeli law – did not recognize the ‘lawful means conspiracy’ pleaded by the Claimants as a cause of action.

Arguments centred around Article 4(1) Rome II: neither 4(2) or (3) were engaged by counsel. Damage pleaded by the Claimants is as follows: (paras refer to the Particulars of Claim)

“23. Unless restrained by the court, the Defendant will cause damage to the business of the Claimants in England and Wales and elsewhere by publishing or facilitating the publication of harmful tweets pursuant to the Conspiracy.

24. Further, unless the Defendant is ordered by the court to delete the Tweets, the Claimants will suffer damage to its business in the future by reason of the continued public existence of the Tweets.

25. By reason of the matters aforesaid, the Claimants have suffered loss and damage. The best particulars which the Claimants can currently give are that: (a) The Claimants have incurred the costs of investigating the Conspiracy in approximately the sum of US$350,000 including costs of at least £100,000 incurred in England in respect of the services of Kroll and of the Claimants’ lawyers which are not recoverable as part of the costs of this claim; (b) The Claimants have also incurred additional costs investigating the allegations made in the Tweets.”

It is the £100K which Smith J at 39 ff applies Article 4(1) to, and he does so with harmonious interpretation (‘resonance’) between Brussels I Recast’s Article 7(2) and Rome II in mind.

Smith J held that the costs of investigating the conspiracy were incurred when the claimants entered into the agreements with investigators and lawyers to have the conspiracy investigated, and therefore in England. It is irrelevant that those costs were not the claimants’ predominant loss (paras 40, 46). The case will undoubtedly lead to Mozaik (‘fragmentation’), but that too is resonant with Brussels I Recast (Shevill).

A good starter introduction to Rome II.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.4.

The International Conference “Pluralism or Universalism in International Copyright Law” is to be held in May 31-June 1, 2018 at the University of Cyprus. The conference is organized by Associate Professor Tatiana Eleni Synodinou.

You can check the programme and the speakers here and here. More information available here.

This call for papers can also be found on the TDM website here
https://www.transnational-dispute-management.com/news.asp?key=1707

We are pleased to announce a forthcoming Transnational Dispute Management (TDM, ISSN 1875-4120, www.transnational-dispute-management.com) Special Issue on “Cybersecurity in International Arbitration.”

International arbitration has the advantage over litigation of allowing parties to resolve their disputes privately and confidentially if desired.  In our increasingly digitized world, attention to cybersecurity in individual arbitration matters is required in order to maintain that advantage and the confidence of parties in the integrity of the arbitral process.

International arbitration typically involves multiple participants in multiple locations, the storage and transmission of significant amounts of confidential, sensitive and commercially valuable digital data and numerous electronic communications.   Even where the proceeding is public or non-confidential in part, certain aspects, such as arbitrator deliberations and party internal communications and work product, almost always must remain confidential to protect the integrity of the process.

In a world where businesses, law firms, government entities, educational institutions and other large data custodians are under threat or already have been breached, international arbitration obviously is not immune.  There are already a few documented instances where the process has been compromised and anecdotal evidence of attempted intrusion into proceedings and data held by various participants.

There is a manifest need for the international arbitration community to begin to develop a shared understanding of the scope of the threat and the appropriate response.  There is an emerging consensus that cybersecurity is an important consideration that should be addressed early in the international arbitration process and that reasonable cybersecurity measures should be adopted.  Nonetheless, questions abound, including, to cite just a few examples, the specific responsibilities of the various participants in the process, the scope of measures that should be adopted, the scope of party autonomy to determine such measures, the availability of resources and concerns that cybersecurity requirements may increase the expense of arbitration and create a resource gap that could disadvantage less-resourced participants.

It is hoped that papers submitted for the Special Issue will advance the conversation by addressing some of the questions described here and potentially identifying issues the international arbitration community will need to consider.

Suggestions for possible paper topics include:

• Commentary on the Draft ICCA-CPR-New York City Bar Association Protocol for Cybersecurity in Arbitration (available here)
• Cybersecurity best practices for different participants in the arbitral process, including institutions, counsel, arbitrators, parties, and experts, and suggestions as to model language to be used in procedural orders, stipulations, expert engagement letters, etc. For example, what factors should parties considering using a third-party platform to share and store arbitration-related information take into account? An article on the arbitrator’s responsibility to protect the integrity of the process is linked here and here.
• What can and should be done on a systemic basis to address cybersecurity in international arbitration? Should cybersecurity be the subject of soft law, for instance? If so, in what form and who should lead?
• How should tribunals resolve party conflicts about reasonable security measures, breach notification obligations, and related costs?
• How should cybersecurity breaches or failures to implement required cybersecurity measures in the arbitral process be addressed? For example, should there be a default presumption regarding the admissibility of evidence attained from a data breach? Should arbitrators entertain applications for damages and/or sanctions?
• Are there limits to party autonomy to determine the cybersecurity measures to be applied in individual matters?  Are there institutional or tribunal interests that may in some circumstances override the parties’ agreement? If so, how are these interests defined and where does the power derive to apply them?
• What is the correct liability standard for cybersecurity breaches? Should there be a safe harbor?
• What is the correct standard to test the adequacy of cybersecurity measures? Is a reasonableness standard adequate to protect the process?
• Comparative analysis of ethical rules and obligations governing the conduct of lawyers around the globe in relation to cybersecurity and conclusions as to implications for international arbitration proceedings and the existence of either transnational norms or conflicts
• How do considerations of fairness and equality relate to the implementation of cybersecurity measures in international arbitrations? For instance, how should differences in infrastructure and party resources be taken into account in assessing the appropriate level of cybersecurity measures in individual matters?  Is there a minimum level of security required to protect the integrity of arbitration process that should be implemented in all arbitrations?
• How do data privacy regimes relate to cybersecurity and what are the implications for international arbitration proceedings?
• Arbitration of business-to-business data breaches

This special issue will be edited by independent arbitrators Stephanie Cohen and Mark Morril.

The Mexican Academy of Private International and Comparative Law (AMEDIP) will be hosting its XLI Seminar entitled “Towards the Unification of Private International Law Principles in Mexican Procedural Law” at the Universidad Autónoma de Querétaro (Mexico) from 14 to 16 November 2018.

The seminar will focus in particular on the New National Code of Civil and Family Procedure, which will contain PIL provisions. This is a significant development given that at present each Mexican state (32) has its own procedural law.

Potential speakers are invited to submit a paper in Spanish, English, or Portuguese by 17 September 2018. Papers must comply with the criteria established by AMEDIP and will be evaluated accordingly. Selected speakers will be required to give their presentations preferably in Spanish as there will be no interpretation services but some exceptions may be made by the organisers upon request.

The final programme of the seminar will be made available at the end of October.

For more detailed information (incl. convocation), see www.amedip.org.  Any queries, as well as registration requests, may be directed to asistencia@amedip.org.

The 60th Seminar of Comparative and European Law in Urbino (Italy) has already been announced. It will take place from August 20, to September 1. The program includes presentations on many different topics, some of them of direct interest for private international lawyers and scholars.  The whole program is available here, together with information on  enrollment, accommodation, and how to get to Urbino.

The latest issue of the Zeitschrift für Europäische Privatrecht has just been released. It contains the following articles:

Dagmar Coester-Waltjen, Die Einführung der gleichgeschlechtlichen Ehe in ausgewählten Rechtsordnungen

The introduction of same-sex marriage in German law has given rise to many discussions in society and politics. However, since the beginning of this millennium many states have accepted marriage as a union of two persons of different or of the same sex. Frequently these reforms have caused discussion on constitutional issues, especially on the prominent features of marriage and on the avoidance of any discrimination.

Juan Pablo Murga Fernández, Payment of descedents´ debts in succession law: “effects” and “defects” of the German and Spanish legal systems

The transfer of the deceased’s debts is a common consequence that arises from the phenomenon of succession in both Civil and Common Law legal systems. In this respect, a number of conflicting interests are at stake: namely, the interest of the heir that needs to be balanced against the interest of the different groups of creditors. This paper analyses the legal solutions given to these matters under the Spanish and German legal systems, pointing out their common and particular effects and defects.

Dirk Heirbaut, The sleeping beauty awakens: Belgium’s new law of inheritance as a first step in the greatest recent recodification program in Western Europe

In the summer of 2017 the Belgian parliament voted a new law of inheritance, which is only a small part of larger program of recodification, announced on 6 December 2016 by minister of justice Koen Geens, and which includes, inter alia, a new civil code. This article explains why, after Napoleon, drafts of new codes failed in Belgium and why this may actually be one of the reasons, which make it possible that the recent recodification efforts may bear fruit very soon.

Martin Zwickel, Die Einführung der obligatorischen Schlichtung in Frankreich

In the context of the major judicial reform, France introduced mandatory conciliation as of 18 November 2016. In certain cases, it is now necessary to undertake a prior effort at finding agreement with a court-ordered conciliator. This article explains and evaluates this requirement

Ross Denton at Baker & McKenzie has a gem of a briefing on the EU’s ‘blocking Regulation’ and what it would mean in light of the US’ mooted sanctions on Iran. Steptoe had earlier also pondered the impact of the US withdrawal from the ‘Joint Comprehensive Plan of Action’ or JCPOA, on the Regulation.

Regulation 2271/96 provides essentially for protection against, and counteracts the effects of the extra-territorial application of the laws of third States. WTO lawyers will remember it mostly from the days of Helms-Burton. As Ross points out, the European Commission now have delegated power to populate the Annex to the list (which details the sanctions the Regulation acts against).

Potentially extra-territorial are in particular US ‘secondary’ sanctions: i.e. those against non-US individuals (or companies) for actions undertaken outside the US.

Of particular interest to readers of the blog – including researchers I would imagine, are Articles 4, 5 and 6, which I have copy-pasted in full below. They deal with recognition and enforcement, co-operation with foreign courts, and recovery of expenses. These Articles are a rare instance where the EU adopt a harmonised approach to recognition and enforcement of judgments originating ex-EU (awaiting the potential Hague Judgments project). [Update 22 May 11:30 AM. As Enio Piovezani comments below, the GDPR, too, includes a relevant rule: See Article 48: ‘Transfers or disclosures not authorised by Union law. Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.’]

As Ross points out, however, the proverbial US rock is harder than the equally proverbial EU stone, hence in practice many companies choose to abide by the US sanctions, anyways.

My fingers are itching to launch yet another interesting PhD topic on this issue…Takers?

Geert.

Article 4

No judgment of a court or tribunal and no decision of an administrative authority located outside the Community giving effect, directly or indirectly, to the laws specified in the Annex or to actions based thereon or resulting there from, shall be recognized or be enforceable in any manner.

Article 5

No person referred to in Article 11 shall comply, whether directly or through a subsidiary or other intermediary person, actively or by deliberate omission, with any requirement or prohibition, including requests of foreign courts, based on or resulting, directly or indirectly, from the laws specified in the Annex or from actions based thereon or resulting therefrom.

Persons may be authorized, in accordance with the procedures provided in Articles 7 and 8, to comply fully or partially to the extent that non-compliance would seriously damage their interests or those of the Community. The criteria for the application of this provision shall be established in accordance with the procedure set out in Article 8. When there is sufficient evidence that non-compliance would cause serious damage to a natural or legal person, the Commission shall expeditiously submit to the committee referred to in Article 8 a draft of the appropriate measures to be taken under the terms of the Regulation.

Article 6

Any person referred to in Article 11, who is engaging in an activity referred to in Article 1 shall be entitled to recover any damages, including legal costs, caused to that person by the application of the laws specified in the Annex or by actions based thereon or resulting therefrom.

Such recovery may be obtained from the natural or legal person or any other entity causing the damages or from any person acting on its behalf or intermediary.

The Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters shall apply to proceedings brought and judgments given under this Article. Recovery may be obtained on the basis of the provisions of Sections 2 to 6 of Title II of that Convention, as well as, in accordance with Article 57 (3) of that Convention, through judicial proceedings instituted in the Courts of any Member State where that person, entity, person acting on its behalf or intermediary holds assets.

Without prejudice to other means available and in accordance with applicable law, the recovery could take the form of seizure and sale of assets held by those persons, entities, persons acting on their behalf or intermediaries within the Community, including shares held in a legal person incorporated within the Community.

By Guillaume Croisant (Université Libre de Bruxelles)

In October 2017, as already reported in a previous post, the Belgian Government announced its intention to set up a specialised English-speaking court with jurisdiction over international commercial disputes, the Brussels International Business Court (“BIBC”). An update versionof the text has finally been submitted to Parliament on 15 May 2018, after that the Government’s initial draft faced criticisms from the High Council of Justice (relating to the BIBC’s independence and impartiality, its source of funding and its impact on the ordinary courts) and was subject to the review of the Conseil d’Etat.

In the wake of Brexit, the Belgian Government aims at establishing a specialised business court able to position Brussels as a new hub for international commercial disputes, in line with its international status as de factocapital of the EU and seat of many international institutions and companies. Similar projects are ongoing in several jurisdictions throughout the EU, including France, the Netherlands and Germany (see previous post).

The BIBC will have jurisdiction over disputes:

• which are international in nature, i.e. where (i) the parties have their establishment in different jurisdictions, (ii) a substantial part of the commercial relationship must be performed in a third country, or (iii) the applicable law to the dispute is a foreign law. In addition, another language than French, Dutch or German (Belgium’s official languages, which are already used before ordinary courts) must have been used frequently by the parties during their commercial relationship;
• among “enterprises” (i.e. every entity pursuing an economic purpose, including public enterprises which provide goods and services on a market basis); and
• provided that the parties have agreed to the BIBC’s jurisdiction before or after the crystallisation of their dispute.

Subject to potential amendments in Parliament, the main procedural hallmarks of the BIBC can be summarised as follows:

• the procedure will be conducted in English (notices and submissions, evidence, hearings, judgments, etc.);
• while the BIBC remains a State court, the procedure will be based on the UNCITRAL Model Law on international arbitration, which means that the parties will be offered greater flexibility and room to organise the conduct of the proceedings;
• the cases will be heard by ad hocchambers of three judges, one professional and two lay judges (appointed by the president of the BIBC on the basis of a panel of Belgian and international experts in international business law), with the assistance of the Registrar of the Brussels Court of Appeal;
• the BIBC will be granted the power to issue provisional and protective measures (including upon ex parterequests);
• no appeal will be open against the BIBC’s decision (with the exception of an opposition/tierce opposition before the BIBC for absent parties/interested third parties, and a pourvoi en cassation on points of law before the Supreme Court);
• the BIBC should be self-financing and the court fees are therefore going to be significantly increased (to around € 20,000/case).

The Belgian Government aims to have the BIBC up and running by 1 January 2020.

The most recent issue of the Osgoode Hall Law Journal (available here) is a special issue, guest edited by Janet Walker, Gerard Kennedy and Sagi Peari, considering the Court Jurisdiction and Proceedings Transfer Act.  This statute governs the taking of jurisdiction and both staying and transferring proceedings in civil and commercial matters in three Canadian provinces: British Columbia, Nova Scotia and Saskatchewan.

The abstract to the introductory article states: “In 2016, the Court Jurisdiction and Proceedings Transfer Act (“CJPTA”) marked its tenth year in force.  Promulgated by the Uniform Law Conference of Canada, and adopted in British Columbia, Saskatchewan and Nova Scotia, the CJPTA was developed to clarify and advance the law of judicial jurisdiction.  In a symposium hosted by Osgoode Hall Law School, ten leading scholars were invited to present papers on specific questions in order to assess the promise of the CJPTA to meet the needs of Canadians in the years ahead and to provide leadership for the law in other parts of Canada.  This article provides an overview of the issues discussed in the symposium; it places the papers that were presented in the larger context of developments in the law of judicial jurisdiction in Canada and internationally; and it summarizes in an appendix the drafting reforms that might be made to the Act.”

The articles about the CJPTA are:

Judicial Jurisdiction in Canada: The CJPTA—A Decade of Progress (Janet Walker)

Six of One, Half a Dozen of the Other? Jurisdiction in Common Law Canada (Stephen G.A. Pitel)

Jurisdiction Motions and Access to Justice: An Ontario Tale (Gerard J. Kennedy)

Has the CJPTA readied Canada for the Hague Choice of Court Convention? (Geneviève Saumier)

General Jurisdiction over Corporate Defendants under the CJPTA: Consistent with International Standards? (Catherine Walsh)

Residual Discretion: The Concept of Forum of Necessity under the Court Jurisdiction and Proceedings Transfer Act (Michael Sobkin)

Three Objections to Forum of Necessity: Global Access to Justice, International Criminal Law, and Proper Party (Sagi Peari)

Cross-Border Transfers of Court Proceedings (Vaughan Black)

The Court Jurisdiction and Proceedings Transfer Act and the Hague Conference’s Judgments and Jurisdiction Projects (Joost Blom)

The workshop Cross-Border Debt Recovery in the EU. Application of the “second generation” regulations in France and Luxembourg, taking place at the MPI Luxembourg on June 8th, is organised in the framework of the IC2BE research project “Informed Choices in Cross-Border Enforcement” (JUST-AG-2016-02). Funded by the Justice Programme (2014-2020) of the European Commission, this project aims at assessing the working in practice of the “second generation” of EU regulations on procedural law for cross-border cases – the European Enforcement Order, Order for Payment, Small Claims (as amended by Regulation (EU) 2015/2421) and the Account Preservation Order Regulations. The project is carried out by a European consortium comprising the MPI Luxembourg and the universities of Antwerp, Complutense of Madrid, Milan, Rotterdam and Wroclaw, under the coordination of Prof. Jan von Hein, from the University of Freiburg.

Experts and practitioners from different countries, mainly France and Luxembourg, will get together on the 8th of June to address the application in practice of the above-mentioned regulations in both Member States. Presentations will be given by Prof. Cyril Nourissat, Mr. Marc Cagniart, Prof. Agnieszka Frackowiak-Adamska, Mr. Max Mailliet, Dr. Alina Ontanu, Ms. Julie Jasson, Dr. Katharina Raffelsieper, Ms. Katrien Baetens, Ms. Alice Canet, Mr. Grégory Minne and Ms. Clara Mara-Marhuenda. A panel discussion will follow, with the presence of, i.a., Prof. Gilles Cuniberti, Dr. Justus Froehlich, Mr. Patrick Gielen, Prof. Olivier Hance, Mr. Jona van Leeuwen, Dr. Stephan Lesage-Mathieu, Dr. Carl Friedrich Nordmeier, Dr. Herbert Woopen. The program is available here.

The spoken languages will be English and French.

The workshop is conceived as a closed event. However, people having a special interest on the topic are invited to apply for admission upon condition they provide a short explanation for their interest.

Contact address: veerle.vandeneeckhout@mpi.lu

The conference titled Pride and Prejudice in Cross-Border Cases will take place at the University of Rijeka, Faculty of Law on Tuesday 22 May 2018. It is intended to serve as an open forum for scholars and practitioners to address current issues pertaining to private international law. The programme offers selection of topics by speakers from both sides of the Atlantic. Conference fee is not charged, but prior registration is required at zeup@pravri.hr.

Sebastian Mock (University of Hamburg), Kristian Csach (Pavol Jozef Šafárik University in Košice) and Bohumil Havel (Institute of Law, Czech Academy of Science, Prague) have published an “International Handbook on Shareholders’ Agreements – Regulation, Practice and Comparative Analysis” addressing various issues of shareholders’ agreements. The book includes general remarks on specific topics related to shareholders’ agreements and numerous country reports. One chapter also specifically deals with cross-border shareholders’ agreements and private international law. More information is available on the website of the publisher (here).

Not just my blog posts on both cases follow each other closely. Tanchev AG in his Opinion in C-88/17 Zurich Insurance v Metso, takes inspiration from the Court’s findings in flightright (which I reported this morning). He emphasises the objective of predictability of the Brussels I Recast Regulation.

The case concerns multimodal transport of goods from one Member State to another. Pursuant to an agreement entered into with a Finnish undertaking, a British haulier undertook to carry goods from Finland to the United Kingdom. After the goods concerned were lost while being transported in the United Kingdom, the Finnish undertaking and the insurer of the goods sued for damages before a Finnish court. Does that court have jurisdiction per Article 7(1)b, second indent ?: in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided.

ALS concluded a contract for the carriage of goods with Metso Minerals Oy (‘Metso’), a Finnish manufacturer of equipment for the mining and construction industries. A cylindroconical crusher was to be transported from Pori in Finland to Sheffield in the United Kingdom. The crusher was insured by Zurich Insurance plc (‘Zurich’). Both Metso and Zurich are the plaintiffs in the main proceedings.

ALS, with the help of subcontractors, transported the crusher as follows. It was first transported from Pori to Rauma in Finland by a lorry with a low loader. At Rauma, it was unloaded from the lorry and driven on to a ship under its own power. After transport by sea to the United Kingdom, the crusher was again driven under its own power off the ship in the port of Hull and loaded onto another lorry. As Metso’s consignee did not have sufficient or adequate storage capacity, it asked a sub-contractor of ALS to drive the crusher to its own warehouse and keep it there temporarily for a couple of days. However, the crusher was stored there for a longer period, and disappeared before it could be delivered to the consignee in Sheffield.

ALS argues that only the place of unloading may be deemed to be the place of performance, claiming that the place of performance can only be one single place and that the place of final destination is of considerably greater importance than the place of dispatch. This, according to ALS, is consistent with the determination of the applicable law in respect of contracts for the carriage of goods under Rome I, which gives a degree of preference to the place of delivery and is to be interpreted taking into account the Brussels I Regulation.

The Commission, referring to CJEU predecent Rehder, Wood Floor Solutions Andreas Domberger and Color Drack, acknowledges that, in any event, the place of arrival is a place of performance, as it is the final place in the chain of transportation. The Commission further argues, however, that, bearing in mind the requirements of proximity, foreseeability and legal certainty, it would be appropriate to recognise in addition the place of dispatch as a place of performance.

The question of international jurisdiction arises in the main proceedings because the case has connections not only with Finland but also with other countries: Finland is the country in which the goods were dispatched and the consignor has its seat, whereas the destination of the goods being carried and the location of the haulier’s seat is in the United Kingdom, where, moreover, the goods were ultimately lost. Finally, in order to convey the crusher from Finland to the United Kingdom, it had to be transported through the waters of other Member States or waters under the sovereignty of no State. In ordinary language, the AG suggests (at 28) all these territories and waters are places where the contract was performed.

According to their wording, both sections (a) and (b) of Article 5(1) of the Brussels I Regulation refer to ‘the place of performance’ and, in the case of section (b), additionally to ‘the place in a Member State’. In consideration of the singular form employed, it seems,  the AG suggests at 30, that only one single place can be regarded as having special jurisdiction in respect of contractual matters. However, this conclusion is not borne out by the case-law.

In color Drack the Court ruled that, if it is not possible to determine one single principal place of performance, each of the places of performance has a sufficiently close link of proximity to the material elements of the dispute and, accordingly, a significant link as regards jurisdiction. In a dispute concerning the sale of goods, the Court has held that, in such a case, the plaintiff may sue the defendant at one of the places of performance — at his choice.

In flightright, as far as delayed flights are concerned, the Court considers both the place of departure and the place of the final destination to be equally significant under the contract, thereby establishing a sufficient territorial link between these places and any proceedings arising from the contractual situation.

(At 59) In the present situation, where the means used to transport the goods change as the journey progresses, particularly in harbours, the fact that the goods are carried in a number of different stages is also an inevitable feature of such transport. In the AG’s view, however, even the fact that it was necessary to unload heavy and bulky goods such as the crusher in question and transfer it across land under its own power, with the dangers in terms of loss or damage inherent in a procedure of that kind (including the possibility of theft), does not alter the situation in such a way as to give the places of reloading or transhipping an importance equal to that of the place of dispatch. Therefore, recognising the latter place, along with the place of destination, as one of two ‘places of performance’ does not enhance the number of available fora in a way as to give reason for concerns of forum shopping.

The AG clearly struggles between limiting forum shopping and enhancing predictability, and suitability of various places to assess the litigation at issue. The AG (at 60) finds support for his view that the intermediate stages should not so be given jurisdiction, in the fact that it is common practice not to mention the places of reloading or reshipping in contracts of the kind in issue in the main proceedings.

The AG concludes therefore that the place of dispatch and the place of destination are thus both ‘main places of performance’ under the second indent of Article 7(1)(b), whereas the loading places in general are not.

A good case to further complete analysis under Article 7(1).

Geert.

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

One of my PhD students, Michiel Poesen, has an extensive case-note coming up on C-274/16 flightright – when it is out I shall include a link here. For the time being therefore I shall be very brief. In summary, the Court held

• first of all that the special jurisdictional rules of the Brussels I Recast do not apply to defendants domiciled outside of the EU. That was as such an obvious finding: these suits are subject to residual national rules on jurisdiction. However the Court makes a point, at 54, to emphasise that in accordance with the principle of effectiveness (effet utile), rules under national law cannot make it impossible or excessively difficult to exercise the rights conferred by EU law. Here: the rights of passengers under the flight delay compensation rules, Regulation 261/2004. Is that CJEU shorthand for suggesting that if a Member State were not to allow claimants based in the EU, to claim compensation against third-country defendants, it would contravene EU law?
• second, where an operating air carrier which has no contract with the passenger performs obligations under Regulation 261/2004, it is to be regarded as doing so on behalf of the person having a contract with that passenger. (At 64) that carrier must be regarded as fulfilling the freely consented obligations (a reference to the Handte formula) vis-à-vis the contracting partner of the passengers concerned. Those obligations arise under the contract for carriage by air. Consequently,  an application for compensation for the long delay of a flight carried out by an operating air carrier such as (here) Air Nostrum, with which the passengers concerned do not have contractual relations, must be considered to have been introduced in respect of contracts for carriage by air concluded between those passengers and the carrier with whom they bought tickets. (Per the first bullet-point above, provided that carrier does have domicile in the EU). Of note is that this finding of a jurisdictional trigger under the rule of contracts (7(1), does not necessarily imply that at the substantive level, the court with jurisdiction will eventually decide that there is a contract on the basis of the lex causae.
• finally, to determine per Article 7(1)b second -, the court of ‘the place in a Member State where, under the contract, the goods were delivered or should have been delivered’, a contract for carriage by air, such as the contracts at issue in the cases in the main proceedings consisting of a single booking for the entire journey, establishes the obligation, for an air carrier, to carry a passenger from a point A to a point C. Such a carriage operation constitutes a service of which one of the principal places of provision is at point C. That finding is not called into question by the fact that the operating operates only the carriage on a flight which does not finish at the place of arrival of the second leg of a connecting flight in so far as the contract for carriage by air relating to the connecting flight covers the carriage of those passengers to the place of arrival of the second leg.

Geert.

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

Clearing up my backlog.

In [2017] EWCH 2208 (Comm)  Zavod Ekran v Magneco the Blair J held in September 2017 that a company must not hide behind documents initiating arbitration being drafted in Russian, when a properly observant litigant should have known that arbitration proceedings were being commenced. The most important point from a practical perspective was found to be that the heading of a letter, in English, states that it comes from the Moscow arbitration body—the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation. From that alone it should have been obvious that an arbitration was being commenced. There was no other reason for ICAC to be writing to the company.

An utterly practical approach.

Geert.

I reported earlier on the Aldi abuse of process principle: a party who intends to bring a subsequent action against existing parties or their privies must raise the issue with the court, which on case-management grounds may hold that all claims must be brought simultaneously.

Chivers J has now held that the principle applies in the British Virgin Islands. Harneys have the report here. I have pondered before whether there ought not to be an Aldi rule in EU conflicts law, however one can see the difficulty particularly as in the EU context an Aldi principle might favour the actor sequitur forum rei rule to the detriment of special jurisdictional rules: not an outcome supported by the current rules.

Geert.

This post has been written by Cristián Giménez Corte, Editor of the ASIL Commentaries on PIL.

We are pleased to present the third issue of Commentaries on Private International Law, the newsletter of the American Society of International Law (ASIL) Private International Law Interest Group (PILIG). As readers of the newsletter know, the name of our newsletter, Commentaries, represents a modest tribute to one of the founding fathers of modern PIL, Joseph Story, by borrowing the name of his seminal book “Commentaries on the Conflict of Laws, foreign and domestic,” and only replacing “Conflict of Laws” with “Private International Law” to better reflect the broader object of our discipline today.

The primary purpose of our newsletter is to communicate news on PIL. Accordingly, the newsletter attempts to transmit information on new developments on PIL rather than provide substantive analysis, with a view to providing specific and concise raw information that our readers can then use in their daily work. These new developments on PIL may include information on new laws, rules and regulations; new judicial and arbitral decisions; new treaties and conventions; new scholarly work; new conferences; proposed new pieces of legislation; and the like.

Commentaries aims to be a truly global newsletter, by reporting news from all major legal systems of the world, which may have different conceptions of PIL. Thus, the PILIG newsletter is framed in a rather broad sense, comprising all types of situations generating potential conflicts of laws and/or jurisdictions, regardless of the “international” or “internal,” or “public” or “private” nature of those conflicting regulations.

To achieve what is perhaps the first comprehensive global approach to PIL, Commentaries includes five sections dealing with regional issues, edited by specialists on the field: Africa, edited by Richard Frimpong Oppong and Justin Monsenepwo Joost; Asia, by Chi Chung, Yao-Ming Hsu and Béligh Elbalti; the Americas by Cristian Giménez Corte and Jeannette Tramhel (Central and South America), and Freddy Sourgens and Mayra Cavazos Calvillo (North America); Europe, by Massimo Benedettelli, Marina Castellaneta, and Antonio Leandro; and Oceania, by Jeanne Huang. We would like to highlight the efforts made by our global editorial team in translating, both linguistically and legally, into English and for a global audience information that was originally in Japanese, Arabic, Portuguese, Spanish, Russian, Italian, French, German, Turkish, Vietnamese, and Chinese.

This third issue of Commentaries covers more countries and includes in greater detail recent developments in our field. Each regional section includes a brief introductory note, and a special chapter devoted to new scholarly work, which is of particular importance for those areas of the world where the dissemination of information on PIL is more difficult. The main developments covered by Commentaries occurred during 2016, including only a few developments occurred in late 2015 and early 2017.

In this third issue, Commentaries continues to develop a section introduced last year. This section is called “Global Conflict of Laws,” edited by Cristián Giménez Corte and Javier Toniollo, presents new developments on PIL that are not necessarily linked to one particular region or country in the world, but that are truly transnational or global.

Commentaries would not have been possible without the tireless support of the PILIG co-chairs, Freddy Sourgens and Kabir Duggal, and the hard and smart work of the section editors mentioned above. In addition, I would like to express our gratitude for the comments, suggestions and help provided by Sheila Ward, Matthew Gomez, and Mitsue Steiner. And I would like also to express our gratitude to Adriana Chiuchquievich, Emilia Gonzalez Cian y Martin Cammarata, for their assistance in the research and edition of the new section “Global Conflict of Laws.”

We would appreciate receiving your suggestions, comments and critiques. We welcome your feedback and participation. Please send me an e-mail at cristiangimenezcorte@gmail.com.

Tanya Monestier (Roger Williams University School of Law) has published an article (available here) addressing the Supreme Court of Canada’s decision in Douez v Facebook, Inc. (available here).

The abstract reads: Every day, billions of people use the online social media platform, Facebook.  Facebook requires, as a condition of use, that users “accept” its terms and conditions — which include a forum selection clause nominating California as the exclusive forum for dispute resolution.  In Douez v. Facebook, the Supreme Court of Canada considered whether this forum selection clause was enforceable, or whether the plaintiff could proceed with her suit in British Columbia.  The Supreme Court of Canada ultimately decided that the forum selection clause was not enforceable.  It held that the plaintiff had established “strong cause” for departing from the forum selection clause.  The Court premised its decision on two primary considerations: the contract involved a consumer and was one of adhesion, and the claim involved the vindication of privacy rights. The Court’s analysis suffers from several major weaknesses that will undoubtedly cause confusion in this area of law.  This Article will examine those weaknesses, and argue that the Supreme Court of Canada actually abandoned the strong cause test that it claimed to be applying.  The consequence of the Douez decision is that many forum selection clauses — at least in the consumer context — will be rendered unenforceable.  While this may be a salutary development from the perspective of consumer protection, it will undoubtedly have an effect on companies choosing to do business in Canada.

Delaware’s governor John Carney signed a bill prohibiting marriage before age 18, making it the first US state to ban all child marriage, on May 9, 2018. Heather Barr from Human Rights Watch has more on that topic here.

The Committee on Women’s Rights and Gender Equality of the European Parliament has, on 18 April 2018, adopted an opinion entitled “Towards an EU external strategy against early and forced marriages – next steps” (2017/2275(INI), PE616.622v03-00). The Committee stresses that “child, early and forced marriage is a violation of the human rights enshrined in international standards such as the Beijing Declaration and Platform of Action, the International Conference on Population and Development Programme of Action and the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages and which form part of the core principles embodied in the European Union as an area of security, freedom, justice and human rights, including women’s and girls’ rights”. Although “child marriage is ingrained in some traditions and cultures, […] no culture or religion can justify such a practice, particularly when human rights and the rights of children are at stake.” The Committee “[n]otes that many parents living in distress and extreme poverty in refugee camps feel the need to protect their daughters from the threat of sexual violence by marrying them to older men; stresses however that the EU and its Member States should be united and consistent in their dismissal of the requests of refugees for legal recognition of marriages where one of the alleged spouses is a child or teenager; underlines that refugee status cannot be used as a legal backdoor to recognition of child marriages in Europe”. The full text of the opinion is available here. For a more detailed report, see here.