Droit international général

The Permanent Bureau of the HCCH has just announced that the programme for the first global conference on the newly adopted HCCH Judgments Convention is now available via: <http://www.hcchjudgmentshk.org/programme.php> with registrations are now also open.

As previously posted, the conference will take place on 9 September 2019 in Hong Kong SAR, People’s Republic of China. It is open to interested experts with participation free of charge. However, advance registration is required as the number of participants is limited. Registrations are handled on a first come, first served basis.

The deadline for registration is Saturday 31 August 2019.

Additional information relating to the Conference (incl. venue, accommodation, transportation, visa requirements, and other practical information) is also now available on the Conference website. Interested experts may consult this site regularly for more updates as they become available.

Dr Burcu Yüksel (University of Aberdeen, Scotland) and Dr Florian Heindler (Sigmund Freud University, Austria) have written a post for the Aberdeen Law School’s blog exploring what blockchain/distributed ledger technology can offer to enhance cross-border legal cooperation, particularly in the context of the Hague conventions. The full text is available here.

Benedikt Windau, Judge at the Oldenburg District Court (Landgericht Oldenburg), runs a very interesting blog (in German), focusing on German Civil Procedure. In one of his recent postings, he presented a very interesting judgment of the Frankfurt CoA, related to the Service Regulation. Upon my request, he prepared an English version of his post for our blog.

Benedikt Windau, Judge at the Oldenburg District Court (Landgericht Oldenburg),

author of the German zpoblog

A recent ruling of the Frankfurt Court of Appeals (Docket No. 13 U 210/17) will potentially shake up the (German) law of cross-border service quite a bit, as it imposes new, hence unknown obligations on the plaintiff – and its legal counsel accordingly.

THE FACTS

The plaintiff, a German insolvency administrator, sued the defendant, who is located in France, before the Darmstadt district court (Landgericht). The statement of claim arrived at the court on December 15, 2015; the period of limitation ended on December 31, 2015 (at least that is what the district court and the court of appeals assumed).

In the statement of claim he asked for it to be translated by the court on his costs into French before being served upon the defendant. Yet the court could not find a translator for quite a period of time (yes, that French quite frequently spoken in the EU…) and thus the statement of claim was not translated before October 24, 2016. It was finally served on December 9, 2016.

German law provides, that the limitation period is suspended by inter alia the bringing of an action for performance (Sec. 204 (1) No. 1 German Civil Code). It furthermore provides that if service is made in order to have the period of limitations suspended in this respect, the receipt of the corresponding application or declaration by the court shall already have this effect provided service is made “demnächst” (Sec. 167 Code of Civil Procedure). “Demnächst” (which means something like “soon” or “in the near future”), in this respect is roughly understood as “not with undue delay caused by the plaintiff”.

The district court considered the service to be “demnächst”, as the court, not the plaintiff was to be blamed for the delay. It thus held that the service in December 2016 suspended the period of limitations despite the fact that almost a year passed between the ending of the period of limitation and the service.

THE RULING

On the defendant’s appeal, the Frankfurt Court of Appeal held that the period of limitations was not suspended retroactively and thus dismissed the claim.

It first discusses whether there is an absolute time limit to “demnächst” that might have been exceeded in this case. But according to the court, this need not be decided, as there was undue delay caused by the plaintiff.

The court states, that under the Service Regulation (Regulation (EC) No. 1393/2007) documents do not have to be translated before being served. Without translation the addressee is protected by its right to refuse acceptance of the document (Art. 5, 8 Service Regulation). Furthermore, a translation under the Service Regulation need not comply with any requirements regarding its form and thus could be provided by the parties.

It then argues that according to Art. 5 (1) Service Regulation it had been upon the plaintiff to decide whether the statement of claim would be translated prior to service. So, if the plaintiff here chose the statement of claim to be translated, it would have been upon him to provide a translation along with the statement of claim. Had he done so, the statement would probably have been served within six weeks, thus not later than February 2016. Under these circumstances, the service in December 2016 could not be seen as “demnächst”.

COMMENTS

1. The Court of Appeals is absolutely right in stating the obvious (but widely quite unknown), that  a) documents do not have to be translated under the Service Regulation, and  b) the translation can be provided by the plaintiff as there is no certain form required (just as under the Hague Service Convention).

The defendant is sufficiently protected by his right to refuse acceptance of service (Art. 8 Service Regulation) – and by Art. 45 (1) lit. (b) of the Brussels I bis Regulation, if the quality of the translation is insufficient.

2. Thus the plaintiff could (and maybe should) have chosen the statement of claims to be served without translation in the first place, which would have been faster and probably cheaper. Had the defendant then refused to accept the service, he could still have provided a translation (or asked the court to provide a translation) and this service would still have suspended the period of limitations (see Art. 8 (3) Service Regulation). Alternatively, he could have proven that the defendant does in fact understand the language of the document and therefore the refusal of acceptance was without justification. That would make the statement of claim deemed to be served under German Law (see Sec. 179 Code of Civil Procedure).

3. However I’m not convinced, that under German Law a plaintiff is obliged to provide a translation himself for purposes of cross-border-service, even more so without an explicit request by the court (cf. Sec. 139 Code of Civil Procedure). Such an obligation is neither provided for in the ZRHO (“Rechtshilfeordnung für Zivilsachen”, the German administrative regulation governing inter alia cross-border-service), nor can such an obligation be found in the Service Regulation, especially in light of the wording in Art. 5 (2).

4. Plaintiffs’ counsel will now often find themselves “lost in translation”: On the one hand the Frankfurt Court of Appeals‘ judgment requires the parties to provide translations themselves. On the other hand, the parties‘ right to provide translations themselves may be unkonwn to some courts and therefore require some discussions. A little help in these discussions may be an article by Dr. Philine Fabig (and myself) in the Neue Juristische Wochenschrift (NJW 2017, 2502 et seq.).

OUTLOOK

The only good news is that the plaintiff appealed the judgement; the case is now pending before the Federal Court of Justice (Bundesgerichtshof) under Docket-No. IX ZR 156/19. So maybe the Bundesgerichtshof will find some final and fog-lifting words on the subject.

A half-day Conference at the Max Planck Institute in Hamburg, jointly convened by Ralf Michaels (Max Planck) and Verónica Ruiz Abou-Nigm (Edinburgh) will look at the (renewed) role of academia in Latin American Private International Law. Participants will come from several Latin American countries, as well as from the Institute.
More information and the program are here. The conference takes place on September 10, 13:00-17:30. Registrations by email at veranstaltungen@mpipriv.de

i reviewed [2017] EWCA Civ 1609 Koza v Akcil in my post here. The case concerns the application of Article 24(2) of the Brussels I Recast Regulation, which assigns exclusive jurisdiction to the Courts of the Member State of the seat in matters relating to the life and death of companies and of the validity of decisions made by their organs:

in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

Referring particularly to C-144/10 BVG and to C-372/07 Hassett, the Court of Appeal found that the case as a whole fundamentally concerns one and the same issue of the validity of decisions of the organs of the company, Koza Ltd, an English subsidiary of a Turkish company.

At 33, Lord Sales writes for the consensus opinion:

the Court of Appeal held that article 24(2) of the Recast Regulation required the court to “form an overall evaluative judgment as to what the proceedings are principally concerned with” (para 46). But this approach had the effect of expanding the application of article 24(2) (ex article 22(2) of Regulation No 44/2001), contrary to the guidance in the Hassett case and the BVG case, rather than narrowing its application, as the Court of Justice had been at pains to do in its judgments in those cases.

At 34:

it is the guidance in paras 22-25 of the Hassett judgment which is relevant, to the effect that a mere link between a claim which engages article 24(2) and one which does not is not sufficient to bring the latter within the scope of that provision

Further authority was sought in particular from Schmidt v Schmidt (C-417/15) which I reviewed here, and EON Czech Holding AG v Dědouch (C-560/16), my review here. Acte clair – no reference to the CJEU required. Conclusion, at 43: ‘the English courts cannot assert jurisdiction over Koza Altin [Turkey] and the trustees in relation to that claim in the present proceedings on the basis of  [A24(2)], and their appeal in that regard should be allowed.’ However: at 44: given that Turkey is not an EU Member State, the English courts may be able to assert jurisdiction over them by means of a provision in residual English PIL.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.6.5.

Carlos Santaló Goris, researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, and Ph.D. candidate at the University of Luxembourg, offers a summary and an analysis of AG Spuznar’s Opinion on the Case C-555/18, K.H.K. v. B.A.C., E.E.K.

I. Introduction

Less than three years after Regulation 655/2014 establishing a European Account Preservation Order (“the EAPO Regulation”) entered into force, the Court of Justice of the European Union (“CJEU”) released its first Opinion on this instrument. This regulation established a uniform provisional measure at the European level, which permits creditors the attachment of bank accounts in cross-border pecuniary claims. In many senses, the EAPO regulation represents a huge step forward, particularly in comparison to the ex-ante scenario regarding civil provisional measures in the Area of Freedom, Security and Justice.  It is no accident that in the first line of the Opinion, AG Szpunar refers to the landmark case Denilauler.  Besides the concrete assessment of the preliminary reference, he found a chance in this case to broadly analyse the EAPO Regulation as such, contextualizing it within the general framework of the Brussels system.

II. Facts of case

The main facts of this case were substantiated before the First Instance Court of Sofia (Bulgaria). Upon the request of a creditor, this court granted a national order for payment against two debtors. The order for payment was sent to the debtors’ domicile as it appeared in the national population register. Since the notification was returned without an acknowledgment of receipt, the debtors were also informed by the posting of a public notice on the door of their “official” domicile. They did not respond to this notification either. In accordance with Bulgarian law, in such occasions, if the creditor does not initiate  declaratory proceedings on the substance of the case to ascertain the existence of a debt, any order for payment would be annulled o. In the present case, before proceeding in that manner, the creditor requested an European Account Preservation Order  (“EAPO“)  before the First Instance Court of Sofia, to freeze the debtors’ bank accounts in Sweden. This court informed the creditor that he must initiate declaratory proceedings in order to avoid the nullification of the payment order. In the court’s view, since the order for payment was not yet enforceable, it could not be considered an authentic instrument. Therefore, based on Article 5(1) of the EAPO, the creditor had to initiate the declaratory proceedings on which he would rely on when applying for the EAPO. Conversely, the President of Second Civil Section of the same court considered that the non-enforceable order for payment was an authentic instrument pursuant to Article 4(10), and thus there was no need for separate proceedings. These different understandings of the regulation led the First Instance Court of Sofia  to refer the following questions to the CJEU:

1. Is a payment order for a monetary claim under Article 410 of the Grazhdanski protsesualen kodeks (Bulgarian Civil Procedure Code; GPK) which has not yet acquired the force of res judicata an authentic instrument within the meaning of Article 4(10) of Regulation (EU) No 655/2014 1 of the European Parliament and of the Council of 15 May 2014?

2. If a payment order under Article 410 GPK is not an authentic instrument, must separate proceedings in accordance with Article 5(a) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 be initiated by application outside the proceedings under Article 410 GPK?

3. If a payment order under Article 410 GPK is an authentic instrument, must the court issue its decision within the period laid down in Article 18(1) of Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 if a provision of national law states that periods are suspended during judicial vacations?

III. “Fitting in” in the autonomous concept of authentic instrument

Firstly, AG Szpunar examined if the payment order fell within the autonomous concept of ‘authentic instrument’. Article 4(10) of the EAPO Regulation establish three prerequisites that a document has to satisfy in order to be considered an authentic instrument: (1) it has to be an authentic instrument in a Member State; (2) the authenticity relates to the signature and the content of the instrument; (3) the authenticity has been established by a public authority or other authority empowered for that purpose.

The AG stated that, whereas the first and the third prerequisites were duly satisfied, the second condition, concerning the authenticity of the content, was not fulfilled. Under Bulgarian law, when creditors apply for a payment order, they do not have to provide the court with any documentary evidence, they simply indicate the basis of their claim and the amount  due. Therefore, the judge who grants a  preservation order is merely confirming the obligation to pay a debt, but without “authenticating” the content of that obligation. Consequently, in the  AG’s view, the order for payment would not be an authentic instrument under the regulation. Obiter dictum, he considered the payment order to be a judgment under the EAPO Regulation (at para. 46).

IV. Enforceable or not enforceable, that is the question

Retaking and reformulating the original question, AG Szpunar proceeded to analyse if  titles other than authentic instruments (e.g. judgments and court settlements), are enforceable for the purposes of the EAPO Regulation (at para. 59). This question is not superfluous. As AG Szpunar remarked, the EAPO Regulation establishes two different regimes: one for creditors without a title, and one for creditors with a title. Creditors who lack a title are subject to stricter conditions when they apply for an EAPO (at para. 53). They have to prove their likelihood of success on the substance of the claim (art. 7.2), and the provision of a security becomes mandatory, unless the court decides to dispense of this requirement if it finds it inappropriate in the particular circumstances of the case (art. 12.1).  Furthermore, the court has ten days to render the decision on the EAPO application (art. 18.1), instead of the five working days when the creditor has a title (art. 18.2).

Regarding  this question, the European Commission suggested examining whether “enforceability” as a prerequisite for other titles is present under different European civil procedural instruments, particularly in regards to the European Enforcement Order Regulation (“EEO Regulation”), the Maintenance Regulation, and the Brussels I bis Regulation (at para. 51).  AG Szpunar declined  drawing any comparisons with  other regulations due to the “provisional” nature of the EAPO Regulation. These other instruments are mainly focus on facilitating the enforcement of final decisions on the substance of a  claim, thus, the concept of title would have a different understanding (at para.  51). On this basis, AG Szpunar considered  it  more appropriate to elaborate an “individualized” analysis of the EAPO Regulation and proceeded with a literal, systemic,  historical and teleological interpretation of this instrument:

• In the literal and systemic analysis, AG Szpunar found several provisions referring to the different types of title. In particular, he referred to Article 6 (jurisdiction); Article 7 (material prerequisites); Article 12 (security); Article 14 (information mechanism); and Article 18 (time-limits to render the decision on the EAPO application) (at paras. 55 – 59).  None of these provisions, except Article 14(1),  specify whether the title has to be enforceable or not. Article 14(1) is the sole provision which distinguishes between enforceable and non-enforceable titles. This provision contains the prerequisites that creditors have to satisfy if they want to request information on debtors’ bank accounts. Creditors with a non-enforceable title can apply for bank account information, but under a stricter regime than those who have an enforceable title (at para. 64). AG Szpunar considered that this is an exception, in which creditors without an enforceable title are recognized. For the other cases, these creditors would be placed under the same status as creditors without any kind of title (at para. 66).
• The historical interpretation was based on the Commission Proposal of the EAPO Regulation (at paras. 74 -79). This text still operated under an exequatur Unlike the current version of the EAPO Regulation, it systematically distinguished between two different regimes, one applied to creditors without an enforceable title or a title enforceable in the Member State of origin; another applied to creditors whose titles were already declared enforceable in the Member State of enforcement. Within the first regime, there were also differences between creditors with an enforceable title and creditors without. Creditors with an enforceable title did not have to prove the boni fumus iuris. After the Council reviewed the Commission Proposal, the exequatur was removed along with the distinction between enforceable title in the Member State of origin and in the Member State of enforcement. In AG Szpunar’s view, both “enforceable” titles would then have been subsumed into the more generic term of “title”, which did not expressly refer to the enforceability (at para. 79).
• Perhaps the strongest point of the AG’s Opinion was the teleological argument. In AG Szpunar’s view, including non-enforceable titles within the concept of title would impair the balance between the claimants’ and defendants’ rights (at para. 68). As  stated above, creditors with a title do not have to prove the existence of the boni fumus iuri. This barrier is also a prevention against fraudulent requests of an EAPO. An enlargement of the concept of title would facilitate access to the EAPO, undermining one of the protections against abusive behaviour.

Based on the above reasoning, AG Szpunar concluded that any title for the purposes of the EAPO has to be enforceable.

V. Beyond the preliminary reference: casting light on the EAPO Regulation

The preliminary reference made by the Bulgarian court is a good example of the problems that might arise out of the intersection between domestic procedural law and the uniform procedural rules of the EAPO Regulation. Indeed, observing the questions, they implicitly require a certain analysis (and interpretation) of the domestic procedural system, an inquiry that is not for the CJEU to carry out. This might also be  one the reasons why AG Szpunar opted for a more general interpretation of the EAPO Regulation, especially in the second part of the Opinion. It is in this more general overview where we can find the most interesting insights of his analysis. There are three relevant points that I would like to highlight:

• The first one is the distinction made between the EAPO Regulation and other civil procedural instruments based on its provisional nature. Indeed, this is the very first uniform provisional measure at European level, whereas the other instruments to which AG Szpunar referred are mainly focused on the recognition and enforcement decisions of the merits of a claim (with the exception of some jurisdictional rules on provisional measures). One might speculate that, eventually, the CJEU might adopt a different interpretation of the EAPO Regulation, taking into account elements that it shares with other civil procedural instruments.
• The second point is on the dividing line between the two regimes existing within the EAPO Regulation. The bulk of AG Szpunar’s analysis focused on the distinction between the two different regimes implicitly reflected in the EAPO Regulation. This question is fundamental, not only for creditors who might have to satisfy different prerequisites when they apply for an EAPO, but also for the debtors. Neither the systemic nor the literal interpretation of the regulation seem conclusive. Only in the Spanish version is it mentioned that the authentic instruments have to be enforceable (“documento público con fuerza ejecutiva”). Nonetheless, it seems to have been erroneously transposed from the EEO Regulation. The historical interpretation could lead to different conclusions. The suppression of an express reference to the “enforceability” of the title in the final version of the EAPO Regulation could also be understood as the willingness of the European legislator to include non-enforceable titles. Thus, it seems that the only decisive interpretative tool was the teleological one, which leads to the third and final point.
• The last point relates to a pro-defendant interpretation of the EAPO Regulation. By restricting the most lenient regime to those creditors with an enforceable title, the regulation indirectly protects the defendant’s position or at least, maintains the status quo between both parties. From the debtor’s perspective, the EAPO Regulation could be perceived as too “aggressive”. Some authors have labelled it as too “creditor-friendly” and this was one of the grounds raised by the United Kingdom when they refused to opt-in to the EAPO Regulation. Despite all the safeguards given to the debtor, this criticism does not come without reason. The regulation operates inaudita altera parte, so debtors can only contest the EAPO once it is already enforced. The fumus boni iuris discourages abusive and fraudulent behaviour. For that reason, a broad interpretation of “title”, encompassing those that are non-enforceable, would allow more creditors to circumvent this prerequisite. In this respect, the AG’s approach attempts to maintain the existing fragile equilibrium between both parties.

It is unlikely that in the final judgement the CJEU will reproduce AG Szpunar’s extensive analysis of the EAPO Regulation. Nevertheless, this is a good starting point for an instrument that provokes plenty of inquiries and, for the time being, has seen little application by domestic courts.  This will not be the last time that an Advocate General confronts a preliminary reference concerning the EAPO Regulation.

The Nyrstar business was created on 31 August 2007 by combining the zinc and lead
smelting and alloying operations of Zinifex Limited and Umicore NV/SA. Nyrstar is a global multi-metals business, with a market leading position in zinc and lead, and growing positions in other base and precious metals. It is one of the world’s largest zinc smelting companies based on production levels. The Nyrstar business has mining, smelting and other operations located in Europe, the Americas and Australia and employs approximately 4,200 people. The ultimate group Parent is incorporated in Belgium and has corporate offices in Zurich, Switzerland.

Its debt is now being restructured using an English scheme of arrangement, with a variety of new companies being formed as corporate vehicles for same. Readers of the blog will not be surprised: this is a classic example of regulatory (restructuring) competition, which I regularly report on the blog (most recently: New Look, with further references there).

In [2019] EWHC 1917 (Ch) re NN2 Newco limited and Politus BV, Norris J applies the now estblished jurisdictional test, with one or two points of attention. Against the scheme company jurisdiction is straightforward: this is England incorporated. Against the scheme creditors, English courts apply the jurisdictional test viz the Brussels Ia Regulation arguendo: if it were to apply (which the English Courts have taken no definitive stance on), would an English court have jurisdiction?

At 11: viz the Notes:

They are now governed by English law (in place of New York law). Clause 12.06 of the governing Indenture now reads:- “The courts of England and Wales shall have jurisdiction to settle any disputes that arise out of or in connection with the Indenture, the Notes and the Guarantees, and accordingly any legal action or proceedings arising out of or in connection with the Indenture the Notes and the Guarantees (“Proceedings”) may be brought in such courts. The courts of England and Wales shall have exclusive jurisdiction to settle any Proceedings instituted by [NNH or NN2]… in relation to any Holder or the Trustee on behalf of the Holders (“Issuer Proceedings”). [NNH and NN2], each of the Guarantors, the Trustee and each Holder (each, “a Party”) irrevocably submit to the jurisdiction of such courts and agree that the courts of England and Wales are the most appropriate and the most convenient courts to settle Issuer Proceedings and accordingly no party shall argue to the contrary. Notwithstanding the foregoing, this section 12.06 shall not limit the rights of… each of the Holders to institute any Proceedings against [NNH and NN2] in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of proceedings in any other jurisdiction….”

This is an asymmetric jurisdiction clause. The English Courts have jurisdiction over all disputes and the parties agree that they are the most convenient forum and submit to the jurisdiction of the English courts. NNH and NN2 are bound to use the English courts if they sue the Holder of a Note, because the English courts have exclusive jurisdiction in such a case. But the Holder of a Note can also sue NNH and NN2 in any Court that otherwise has jurisdiction, so the English courts have a non-exclusive jurisdiction in such a case.

At 13:

The original governing law of the Existing Bonds was English law. But the holders voted to amend the jurisdiction clause in the Trust Deed to provide: “The courts of England and Wales shall have exclusive jurisdiction to settle any disputes that arise out of or in connection with the Trust Deed and the Bonds, and accordingly any legal action or proceedings arising out of or in connection with the Trust Deed and the Bonds (“Proceedings”) may be brought in such courts. [NNV and NN2] and the Trustee (in its own capacity as such and on behalf of the Bondholders) irrevocably submit to the jurisdiction of such courts and waive any objection to Proceedings in such courts whether on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. Notwithstanding the foregoing, Belgian courts have exclusive jurisdiction over matters concerning the validity of decisions of the Board of Directors of NNV of the general meeting of shareholders of NNV and of the general meeting of Bondholders.”

This is a symmetrical jurisdiction clause with a “carve out” for specific proceedings.”

At 18 ff the details of the scheme are outlined. It involves Trafigura financial instruments, Trafigura now being Nyrstar’s controlling shareholder. At 31 ff jurisdiction is discussed. There is no abusive forum shopping (per Codere; which I reference here). The usual Article 8 and Article 25 routes are discussed. With respect to Article 25, the English jurisdiction clauses in the Existing Notes and the Politus Facility are asymmetric; however Norris J at 41 (with reference to authority) does not see that as an obstacle seeing as Article 25 covers both symmetric and asymmetric choice of court.

A final hurdle is whether any order sanctioning the scheme is likely to be effective or whether it is apparent even at this stage that the scheme will not be recognised in other relevant jurisdictions even if sanctioned: this will eventually be settled at the sanctioning hearing however Norris J already indicates that it is unlikely that expert evidence will yield surprising (objectionable) results.

Scheme meetings may therefore be convened.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

The Permanent Bureau is seeking a qualified person to fill a full-time position (40 hours) as Administrative Assistant (legal). For more information, see here.

As indicated in the announcement, “the successful applicant will provide administrative support in English and French, including drafting, formatting, and reviewing legal and other documents as well as day-to-day correspondence, assisting with the co-ordination and advancement of various HCCH projects, updating the HCCH’s databases, answering the telephone and door, and providing general assistance during international meetings held by the HCCH,” among other things.

The Permanent Bureau offers a two-year contract with the possibility of renewal.  This is a local recruitment.

The deadline for applications is 19 August 2019.

While this is not strictly a legal job, it may be of interest to some of our readers.

In [2019] EWHC 1661 (Comm) ED&F Man Capital Markets v Come Harvest Holding et al claimant, MCM, entered into a Master Commodities Sale and Purchase Agreements with two Hong Kong companies, Come Harvest and Mega Wealth. The Master Agreements contained English exclusive jurisdiction agreements. Subsequent agreements were then entered into for the sale and purchase of nickel. The dispute between the parties turned on whether payments had been made by MCM to Come Harvest and Mega Wealth based on forged warehouse receipts. Those receipts had been issued by a warehouse operator, Access World, to the initial order, in most cases, of a Singaporean company, Straits.

In May 2017, MCM commenced pre-action disclosure proceedings in Singapore against Straits and in December 2017 it commenced English proceedings against Come Harvest and Mega Wealth. In September 2018 MCM sought to join Straits to the English proceedings and obtained an order granting permission to serve Straits out of the jurisdiction in Singapore. Straits challenged the jurisdiction of the English court.

There is sometimes an advantage to not immediately follow-up a Tweet with a blog post: the two preceding paras are the summary of the factual and procedural background by Herbert Smith.

Of particular note is the discussion at 43 ff on the impact of the UKSC’s Vedanta ruling: particularly, the ‘multiplicity’ issue which in my review of Vedanta, I discuss at 5. At 45:

Straits contended that MCM should not be able to rely as a “trump card” on the multiplicity point and the risk of irreconcilable judgments so as to create a single forum for all claims against all parties in England, in circumstances where that outcome was the result of choices which MCM had made along the way. Straits claims that MCM exercised a choice at the outset to commence the OS 533 action against Straits in Singapore and thereby intended that any substantive proceedings would be brought there too. Straits says that MCM should be held to this choice which it says exerted and continues to exert a “gravitational pull” towards Singapore. Straits also says that MCM could have attempted to engineer a single composite forum for all claims against all parties in Singapore by requesting that Come Harvest and Mega Wealth did not insist on their rights under the English court exclusive jurisdiction clauses in the Master Agreements or by commencing proceedings against those parties in Singapore in breach of the exclusive jurisdiction clauses and then contending that strong reasons existed as to why no anti-suit injunction should be imposed against the continuation of those proceedings.

At 46 Teledano DJ dismisses the suggestion.

In Vedanta, and leaving aside the substantial justice issue, the claimants had a straightforward choice between Zambia and England for all claims against all parties. The dispute was overwhelmingly Zambian in focus and nature. Yet the claimants chose to pursue their claims in England. In the present case, MCM has never had a straightforward choice of this kind that would have enabled it to sue all parties in Singapore (or some other jurisdiction apart from England). MCM has at all material times been bound by the exclusive jurisdiction clauses in the Master Agreements to sue Come Harvest and Mega Wealth in England. There is no evidence to suggest that, had either of these parties been approached, they would have been willing to give up their rights under those exclusive jurisdiction clauses. Nor do I accept that the concept of choice as referred to by the Supreme Court can be stretched so as to require a party to act in breach of contractual promises as to jurisdiction and then to fall on the mercy of the Court so as to avoid the grant of an anti-suit injunction. MCM is entitled to say that it had no choice but to sue Come Harvest and Mega Wealth in England. Having done so, there is real force in the submission made by MCM that England is the proper place for all claims against all parties because it is the only jurisdiction where a single composite forum can be achieved.

Turning then at 59 ff to applicable law, the issue is particularly how to define ‘direct damage’ (Article 4 Rome II) in the case of unlawful means conspiracy. Straits contends that the direct damage occurred where MCM was unable to obtain the metal it had purchased. That would be at the warehouses in Singapore, Malaysia and South Korea. By contrast, MCM contends that the direct damage occurred in England. This was the place from which MCM paid out funds to purchase the metal and it is also the place in which MCM received the Receipts that it alleges were forged. Teledano DJ at 62:

The key to ascertaining where the direct damage occurred in the present case is to keep in mind that, under the Master Agreements, MCM was only required to make payment upon receipt of the Receipts. MCM suffered direct damage when it made payment upon receipt of what are alleged to have been forged Receipts. Both the payment out, and the obtaining of the Receipts, occurred in England. If the Receipts were forged, the warehouse operators will not have been required to hand over metal from the warehouses upon presentation of the Receipts. However, it seems to me that this is a consequence of the damage that on MCM’s case it had already suffered rather than the direct damage itself.

English law, therefore, applies, as it does (at 70 ff) to the knowing receipt and equitable proprietary claims (see discussion re Article 4 cq 10 (unjust enrichment) Rome II, at 70 ff).

Geert.

(Handbook of) European private international law, second ed. 2016, Chapter 8, Headings 8.3.1.1., 8.3.2; Chapter 4, Heading 4.4.

Forty-six countries have signed up to the United Nations Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) today. The signatory countries included Singapore, China, India, South Korea and the USA. The Convention, which was adopted by the UN General Assembly in December 2018, facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation. It complements existing international dispute resolution enforcement frameworks in arbitration (the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and litigation (the Hague Convention on Choice of Court Agreements and the recently concluded Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters).  Article 1(3) of the Singapore Convention carves out settlement agreements which may fall within the scope of these other instruments to avoid an overlap. The Convention does not prescribe the mode of enforcement, but leaves it to each Contracting State to do so “in accordance with its rules of procedure and under the conditions laid down in this Convention” (Article 3(1)). Formal requirements to evidence the settlement agreement are specified although the competent authority in the state of enforcement is also granted flexibility to accept any other evidence acceptable to it (Article 4). The settlement agreement may only be refused enforcement under one of the grounds listed in Article 5. These grounds include the incapacity of a party to the settlement agreement, the settlement agreement is null and void under its applicable law and breaches of mediation standards. Only two reservations are permitted: one relating to settlement agreements to which a government entity is a party and the other relating to opt-in agreements whereby the Convention applies only to the extent that the parties to the settlement agreement have agreed to the application of the Convention (Article 8).

While mediation currently commands a much smaller slice of the international dispute resolution mode pie compared to arbitration or litigation, some countries are making concerted efforts to promote mediation. To that end, the Singapore Convention will assist to increase mediation’s popularity among litigants in international commercial disputes.

When I reported [2019] EWHC 466 (Fam) V v M, I suggested that forum non considerations there, moot given that eventually jurisdiction of the English courts was upheld, would resurface in further cases. They have. [2019] EWHC 1995 (Fam) W v L eventually went much the same way as V v M.

The Brussels BIIa Regulation applies when determining the question of jurisdiction regardless of whether there is an alternative jurisdiction in a non-member state (Re A (Jurisdiction: Return of Child) [2014] 1 AC 1 , later confirmed in CJEU UD v XB C-393/18 PPU [2019] 1 WLR 3083 ). Brussels IIa has an intra-EU forum non conveniens regime (applied in C‑428/15, Child and Family Agency, on which I report here).

Art 8(1) of BIIa provides that the courts of a Member State shall have jurisdiction in matters of parental responsibility over a child who is habitually resident in that Member State at the time the court is seised.

MacDonald J at 30 posits that where the English court does have jurisdiction under Art 8 BIIa but there are proceedings also in a third party non-member state (here: Jordan) the issue becomes one of forum conveniens – which he subsequently discusses following the Spiliada criteria. In V v M to which current judgment refers at 34, Williams J reflected on whether forum non at all has calling following (he held it does; not convincingly). MacDonald J in current case first at 30 simply seems to accept such application. Then at 38 holds he need not decide this issue here (counsel had suggested the issue was in fact covered by Brussels Ia and the precedent value of Owusu therefor clear) for even if forum non conveniens has to be decided, it clearly points to England.

In conclusion, therefore: the issue still has not been settled and will, again, return.

Geert.

On 31 July 2019, the United Kingdom of Great Britain and Northern Ireland (UK) extended the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (Child Support Convention) and the HCCH Convention of 30 June 2005 on Choice of Court Agreements (Choice of Court Convention) to Gibraltar in the event the Withdrawal Agreement is not ratified and approved.

As indicated in the UK Notes: “[t]he United Kingdom is responsible for the international relations of Gibraltar and wishes to ensure that Gibraltar continues to be covered by the Agreement[s] in the event that the Withdrawal Agreement is not approved.” If the Withdrawal Agreement is indeed signed, ratified and approved by the UK and the European Union, the UK will withdraw its instrument of ratification to the Child Support Convention and its instrument of accession to the Choice of Court Convention and its declarations of territorial extent (incl. reservations) to Gibraltar. The Depositary of the HCCH Conventions is the Ministry of Foreign Affairs of the Netherlands.

The UK has made a number of declarations and reservations under these Conventions for Gibraltar. For more information, please click here (Child Support Convention) and here (Choice of Court Convention).

The European Union, as a Regional Economic Integration Organisation, approved both the Child Support Convention and the Choice of Court Convention on 9 April 2014 and 11 June 2015, respectively.

In [2019] EWHC 1793 (Ch) Paul Holgate v Addleshaw Goddard (Scotland) the claim is for damages for breach of contract, negligence and/or breach of fiduciary duty in connection with and arising out of the defendant’s acceptance and performance (and/or non-performance) of instructions to act as solicitor for and to advise Arthur Holgate & Son Limited (then in administration, now in liquidation) in relation to a dispute between the Company and Barclays Bank.

The application concerns the allocation of jurisdiction within the UK. The rival forums are England and Scotland. The claim is not time-barred in England, but may, at least in part, be time-barred in Scotland, where the relevant period of ‘prescription’ (the Scottish equivalent of ‘limitation’) is 5 years.

The Civil Jurisdiction and Judgments Act 1982 allocates jurisdiction within the devolved regions of the UK and, for civil and commercial matters, has opted to apply the (now) Brussels I Recast Regulation mutatis mutandis. At issue is first of all the insolvency exception of Brussels Ia (extended here as noted to the UK Act) interpreted per CJEU C-133/78 Gourdain: at 4:””[I]t is necessary, if decisions relating to bankruptcy and winding-up are to be excluded from the scope of the [Brussels] Convention, that they must derive directly from the bankruptcy or winding-up, and be closely connected with the proceedings for the liquidation des biens or the règlement judiciaire .” (Reference to the French procedure given the French origins of the case). This provision of course in the meantime has a mirror image in the Insolvency Regulation known as the vis attractiva concursus: the forum concursus can hear not just the very insolvency action but also those closely connected to it. CJEU C-111/08 SCT Industri v Alpenblume also features heavily in the discussion.

(Note Clark M makes the oft-repeated mistake of suggesting Brussels Ia and Insolvency Regulation dovetail. I have emphasised on various occasions that they do not).

Following discussion, at 50 Clark M holds that the claim does not relate to the internal management, of the administration or the conduct of the Joint Administrators (JAs) of the insolvency: the defendant’s purely advisory role meant it was not responsible for either of these. This is insufficient for the claim to be “closely linked” to the administration.

Next is the application of the anchor proceedings: these, too, follow EU language and precedent entirely and at 79ff Clark M discusses the interesting question whether a claim providing the anchor, issued after the claim which anchors unto it, is capable of conferring jurisdiction. He held that it does, provided the other requirements of the anchor provisions are satisfied: in particular the desirability of avoiding irreconcilable judgments. The sequence of claims did lead to some procedural oddity which could however be rectified and there was no suggestion of abuse. 

At 89 ff follows discussion of the forum contractus: ‘place of performance of the obligation in question’. At 129 Master Clark concedes that the relevant statutory instrument deliberately did not instruct this part of the UK’s residual rules to be interpreted in line with EU rules, however given the exact same wording, there is no reason for not doing so. At 132 follows then the oddity of the consequences of CJEU De Bloos (and now the language of the Regulation) with respect to ‘the obligation in question’: the determination of the principal obligation is carried out by analysing the particulars of claim. He finds at 136 that the Company’s complaints flow essentially from the primary complaint that the defendant was in breach of its fiduciary duty by continuing to advise and act for the Company (and not advising it that it could not properly do so), thereby putting the Bank’s interests (and its interests) before those of the Company. At 139: the place of performance of that obligation, is held to be in England.

Finally, forum non conveniens is briefly discussed and the right forum held to be England.

Quite a jurisdictional goodie bag.

Geert.

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

The latest issue of the Revista Electrónica de Estudios Internacionales (REEI), the on-line open-access journal of the Association of Spanish Professors of international law and international relations, is out (issue 37, 2019).

Some of the articles in this issue address topics in the area of private international law.

All articles are in Spanish but come with an abstract in English.

The latest issue of RabelsZ has just been released. It contains the following articles (English abstracts are available only for articles in German):

Lord Thomas of Cwmgiedd, The Common Law in Private Dispute Resolution’s Shadow, pp. 487 et seq

Fleischer, Holger and Horn, Konstantin, Berühmte Gesellschaftsverträge unter dem Brennglas: Das Standard Oil Trust Agreement von 1882 (A Closer Look at Prominent Corporate Charters: The Standard Oil Trust Agreement of 1882), pp. 507 et seq

The charter shapes the life of the corporation. This crucial role notwithstanding, corporate contracts have received but scarce scholarly attention. Apart from a few exceptions, little is known about the charters of notable business entities. A new research program at the Max Planck Institute in Hamburg has set out to fill that void. The first test case, which is explored in this paper, is the Standard Oil Trust Agreement of 1882 – a seminal governance framework for corporate groups that spread quickly through different industries and became eponymous for the anti-trust legislation of the United States. The remarkable success of this agreement illustrates how innovative legal design can be just as vital to the survival and success of a company as managerial or technical innovation.

Hille, Christian Peter, Die Legitimation des Markenschutzes aus ökonomischer und juristischer Sicht- Ein Beitrag insbesondere zur Search Cost Theory des US-Markenrechts (Justifying Trademark Protection – An Economic and Legal Approach with Special Reference to the Search Cost Theory of US Trademark Law), pp. 544 et seq

Whereas trademark protection in the 19th century was justified by the theory of natural law, such concepts are generally considered to be outdated in secular law, even if the underlying values are still embedded in positive law. The law and economics approach, however, is focused solely on allocative efficiency as defined by Pareto optimality and the Coase theorem. US theory justifies trademark protection with the dual rationales of reducing consumer search costs and creating an incentive to improve the quality of products. While some authors criticize this view, they mostly do not propose a different approach, instead arguing that the search cost theory neglects certain social costs. Still, whereas the qualification of a trademark as a public good leads to completely different conclusions, it has been without significant influence on legal theory. Based on the search cost theory, the efficiency of German trademark law may be enhanced, e.g. by requiring a bona fide intention to use the trademark and by obliging the trademark owner to produce evidence of use. Requiring quality control in cases where a license is granted would also improve efficiency, and a mark should be invalidated if the sign becomes generic without this development being attributable to the owner. However, in order to evaluate the search costs as well as other social costs related to the trademark system, further research needs to be conducted with respect to the modes of action of trademarks (in particular in the context of famous trademarks and new technologies). The economic analysis of trademark law and the associated findings may be considered by judges in their interpretation of the law as long as their rulings do not serve to amend the statutory provisions establishing German trademark law (or the applicable European directives). Amendments of this nature would need to be carried out by lawmakers (see Art. 20 para. 3 of the German Constitution).

Makowsky, Mark, Die „Minderjährigenehe“ im deutschen IPR- Ein Beitrag zur Dogmatik des neuen Art. 13 Abs. 3 EGBGB (The “Marriage of Minors” in German Private International Law – The Legal Structure of the New Article 13 para. 3 EGBGB), pp. 577 et seq

The migration crisis has sparked a debate on how to deal with minor migrants who married in their home country or during their flight to Europe. In response to this problem, in 2017 the German legislature passed the Act Combatting Child Marriage. The paper analyses the new and highly controversial conflict-of-laws rules. Pursuant to the public policy clause of Art. 13 para. 3 EGBGB, a marriage is invalid under German law if a fiancé was under the age of 16 at the time of the marriage. If a fiancé had already turned 16 by the time of the marriage but was not yet 18, the marriage has to be annulled pursuant to German law. This strict approach allows for only few exceptions. The invalidity rule has a limited temporal scope and is not applicable when the minor fiancé had already turned 18 by the time of the law’s entry into force. Another exception to the invalidity rule exists if the marriage was “led” by the spouses up until the minor spouse’s reaching the age of majority and if no spouse had his or her habitual residence in Germany during the time between the marriage and the minor spouse’s attaining the age of majority. Due to the limited scope of these exception clauses, most child marriages are rendered void in Germany. This leads to the question whether the invalid marriage can nonetheless have some legal consequences, especially when the spouses relied on its validity. The exception clauses of the annulment rule are similarly very limited. An annulment is ruled out only if the minor spouse has turned 18 and wants to uphold the marriage or if the annulment would constitute an undue hardship for him or her. It is disputed whether this is in conformity with European law because the annulment rule also applies to marriages which were contracted and registered in another EU Member State. The paper argues that the law can be interpreted in accordance with Art. 21 TFEU.

Biemans, Jan, and Schreurs, Sits, Insolvent Cross-Border Estates of Deceased Persons – Concurrence of the Succession and Recast Insolvency Regulations, pp. 612 et seq

Infantino, Marta, and Zervogianni, Eleni, Unravelling Causation in European Tort Laws- Three Commonplaces through the Lens of Comparative Law, pp. 647 et seq

A short update on the innovation principle‘s continued (corporate-sponsored, let’s be frank) journey.

Thank you first of all prof Maria Lee for signalling the UK’s planned introduction of an ‘innovation test’, to be piloted as part of industrial strategy. Its goal is expressed as ‘We will create an outcome-focused, flexible regulatory system that enables innovation to thrive while protecting citizens and the environment.’ Not much more detail is given. Formulated as such, it does nothing that the current EU regulatory model does not already address – its true goal undoubtedly is a post-Brexit libertarian regulatory environment.

Further, Nina Holland observed with eagle eyes the link between Nafta 2.0 (USMCA) and innovation, in particular Article 12-A-4 ‘parties’ “recognize the importance of developing and implementing measures in a manner that achieves their respective level of protection without creating unnecessary economic barriers or impediments to technological innovation’ (like the UK initiative: meaningless for already addressed by current international trade agreements; the real intention actually is deregulation). American industry has been arguing that the US should ‘build on’ the new NAFTA when negotiating with the EU (should TTIP ever be resuscitated).

Geert.

Many thanks to Gustavo Cerqueira for this post:

The Société de législation comparée and the International Commission on Civil Status organize in partnership with the universities of Strasbourg and Reims an international symposium dedicated to the establishment of the content of foreign law and the need to consider appropriate instruments for cooperation.
The importance of the subject is major. On the one hand, the place nowadays given to foreign law in the settlement of disputes is growing. On the other hand, the intensified role of the various legal professions in the application of foreign law is indisputable. While judges and civil registrars were more traditionally exposed to such an office, nowadays it is notaries and lawyers in their dual role of advising and drafting documents who are called upon to take into account or implement foreign law.
In this context, while European Union law is often at the root of the involvement of these various actors in the application of foreign law, another, more recent phenomenon further increases the occurrences of how the law is handled: the extensive jurisdictional competition between European States as a result of Brexit. Indeed, Paris, Amsterdam, Brussels and other capitals establish courts and chambers specializing in international litigation and the application of foreign law.
The stakes are high. The search for appropriate cooperation instruments for a good knowledge of foreign law is necessary in the face of rapidly evolving national laws and case law. These changes, which are specific to each system, therefore reinforce the need for access to reliable foreign law content in order to guarantee legal certainty for litigants, as well as to avoid the civil liability of legal service providers and even fraud in the manipulation of foreign solutions.
The research envisaged takes place in an environment in which there are formal and informal cooperation mechanisms whose effectiveness is only partial in view of the complexity of the phenomena that covers the application of foreign law. Indeed, they were designed to deal with a foreign law that is supposed to be stable and not plural in its sources. These mechanisms, which are not very visible, are also unknown by the practitioners themselves. The current discussions at European (EU) and international level (Hague Conference) attest to the urgent need to consider responses in this area through one or more relevant and effective instruments.
This is the purpose of the symposium. After having established a large inventory, it will be necessary to discuss solutions adapted to the different requirements revealed by both the type of situation to be dealt with and the type of professional involved.
The symposium will be held on 28 November 2019 at the French Court of Cassation (Chambre Criminelle, 5, Quai de l’Horloge, 75001 – Paris).

Registration: emmanuelle.bouvier@legiscompare.com

Conference Directors:
Dr. Gustavo Cerqueira, Agrégé des Facultés de droit, University of Reims (France)
Dr. Nicolas Nord, Deputy Secretary General of the ICCS, Senior Lecturer at the University of Strasbourg (France)

On 12 September 2019, the University of Silesia in Katowice (Poland) will host a  conference on Regulation 650/2012 – the Succession Regulation and on the various issues relating to the succession matters within the European area of freedom, security and justice.

The conference is organized at the occasion of the annual session of the European Group for Private International Law (EGPIL/GEDIP) that will be held at the premises of the University of Silesia in Katowice at the invitation of a member of the Group and a Professor at Silesia – First CJEU Advocate General Maciej Szpunar. Readers of the blog will know that Szpunar AG regularly opines on matters of PIL.

The opening session of the conference will be devoted to the review of Member States’ first experiences with the application of the Succession Regulation. Practitioners undoubtedly are aware that experience with and questions re the application of the Regulation are now coming thick and fast.

This session will be followed by two panel discussions.

Scholars and practitioners speaking include Professor Stefania Bariatti (University of Milan), Professor Andrea Bonomi (University of Lausanne; with prof Patrick Wauthelet author of the standard work on the Regulation), Professor Jürgen Basedow (Max-Planck-Institut), Professor Christian Kohler (University of Saarbrücken), Professor Cristina González Beilfuss (University of Barcelona) Michael Wilderspin (European Commission; a regular agent for the EC in PIL cases at the CJEU); and Professor Paul Lagarde (University of Paris 1 – Panthéon-Sorbonne, Professor emeritus.

Upon the conclusion of the conference, on 13 September, the University of Silesia will award prof Lagarde a Doctorate Honoris Causa and he will deliver a commemorative lecture at this occasion: a good reason to stick around an extra day, I think.

Of note may be the most, most affordable fee of just under Euro 60 for such a stellar conference.

Draft programme of the conference is here. More details are available at the website of the University hosting the conference (scroll down for the English version).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 6.

The last issue of the Revue Critique de Droit International Privé will shortly be released. This is a special edition composed of four articles on Brexit. It also contains several case notes, inter alia, a commentary by Horatia Muir Watt on Vedanta v Lungowe, major decision on the parent company’s duty of care and private international law, rendered by the Supreme Court of the United Kingdom on 10 April 2019 (see also here).

The first article is authored by Paul James Cardwell (“Naviguer en eaux inconnues. Les défis rencontrés par la recherche juridique au Royaume-Uni à l’heure du Brexit”). The abstract reads as follows: “The consequences of the United Kingdom’s decision to leave the European Union (Brexit) remain uncertain still. For legal scholars, Brexit has posed a series of complex legal questions, some of which have not been considered for over 40 years, if at all. This article aims to consider some of the main questions that have arisen during the Brexit process, and some of the potential responses. The article also evaluates the challenges that Brexit represents for researchers and teachers in the various sub-disciplines within legal scholarship, including the fast-paced, ever changing legal landscape. Although only a small number of the questions and challenges can be considered here, it goes without say that Brexit will undoubtedly have significant consequences for the UK, the EU and its Member States as well as for the systems of global governance, in which private international lawyers are inherently linked”.

The second article (“Le Brexit et les conventions de La Haye”) is written by Hans van Loon. The abstract reads as follows: “There are two possible scenarios at present for the immediate future of private international law in the relationship between the United Kingdom and the European Union of Twenty-seven in the event of Brexit. Under the first, the “Withdrawal Agreement” approved by the European Council on 25th November 2018 enters into force; under the second (the “no-deal” scenario) the status quo will end abruptly on 31st October 2019. Both of these hypotheses have important and complex implications. Under the Withdrawal agreement, a transition period is organised and when this period ends, specific transitory provisions take over. In such a regime, the law issuing from the conventions has a significant role to play. But in the event of a no-deal Brexit, all the treaties establishing, and concluded by, the European Union, and, as a result, European Union secondary law, including the regulations on private international law cease immediately to apply to the United Kingdom. The Hague conventions, including the new convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters will fill this gap to a large extent. However, the consequences may nevertheless be brutal for citizens, and in order to mitigate these, the transitory provisions of the Withdrawal agreement should be applied here by analogy”.

The third article, written by Uglješa Grušic (“L’effet du Brexit sur le droit international privé du travail”), describes the likely effect of the withdrawal of the United Kingdom from the European Union on the private international law of employment. “More specifically, it deals with the likely effect of Brexit on employment law, the law of international jurisdiction in employment matters and the law on choice of law for employment matters in the United Kingdom and the European Union, with particular emphasis on private international law in England”.

The fourth article is authored by Louise Merrett (“La reconnaissance et l’exécution en Angleterre des jugements venant des États de l’Union européenne, post-Brexit”). It describes the likely effect of the withdrawal of the United Kingdom from the European Union on the recognition and enforcement of judgments from EU Members States: “If the UK leaves the European Union without any new agreement in place allowing for mutual recognition and enforcement, the recognition and enforcement of judgments from EU Members States will prima facie only be possible under the existing common law rules. This article will describe the common law rules and draw attention to the key differences between them and the rules which currently apply to the enforcement of judgments under the Brussels I Regulation recast”.

A full table of contents is available here.

On 24 July 2019 Nicaragua joined the HCCH Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Service Convention). For more information, click here.

In accordance with Article 28 of the Service Convention, there is a six-month objecting period which will end for Nicaragua on 25 January 2020. If a Contracting State objects, then the Convention will not enter into force at all for Nicaragua. However, an objection has never been made under this Article in practice.

In the absence of any objection, the Service Convention will enter into force for Nicaragua on 1 February 2020.

The latest State to join was Brazil (EIF: 1 June 2019), which signals a growing interest in this Convention in the Latin American region.