Droit international général

The Dickson Poon School of Law at King’s College London is holding an inaugural Memorial Lecture to honour the memory of Professor Robin Morse, who died last year. He was widely admired both within King’s (where he served as Dean of the School of Law) and beyond it for his scholarship and dedication to teaching, especially of the conflict of laws.   The lecture will be given by Lord Collins of Mapesbury on “Justiciability and the Conflict of Laws” on Wednesday 7 November 2018 in the Safra Lecture Theatre on KCL’s Strand Campus, and will begin promptly at 6.30pm. It will be followed by a reception.   Attendance is free, but numbers are limited and registration is required. You can sign up here.

The latest volume of the Yearbook of Private International Law has just been released; the full table of contents can be found here.

The following teaser has been kindly provided by Ilaria Pretelli:

This XIX Yearbook revisits classical questions such as forum non conveniens and exception clauses, foreign overriding mandatory provisions, reciprocity etc., at the same time presenting contributions discussing very specific and technical problems, as that of the law applicable to the right of recourse in the field of liability insurance law, that of the recognition of punitive damages in the EU or international insolvency in the banking sector.

A special section is devoted to some of the difficult questions addressed by the European regulations on matrimonial property and the property effects of registered partnerships that will soon enter into force.

A juicy special section is devoted to cultural property and heritage, including obstacles to claims for the restitution of looted art and new mechanisms leading to the proper resolution of cultural property-related disputes. Both contributions forming this section observe a gradual transition in the judicial practice and the slow but steady development of a body of transnational rules forming a true lex culturalis.

One of the truly first codifications of the latter is offered by the new Hungarian Private International Law Act, presented in the National Reports Section.

The need to adapt private international law legislation has led to a sectorial reform in New Zealand, where the traditional, and indeed discriminatory, double actionability rule has now disappeared in favour of a more modern solution, clearly inspired by European Union regulations.

The National Reports further include an essay on how Russian authorities implement both the 1996 Hague Children’s Convention and the 1980 Hague Abduction Convention, with a detailed review of Russian case-law grappling with such notions as a child’s residence, removal and retention, or the legitimate reasons to refuse return of the child.

Another paper features the first English-language contribution on Mongolian private international law – trade, commerce, family and people-to-people relationships between Mongolians and other State communities being constantly on the rise. Turkish law is once again present through a meticolous account of jurisdiction agreements and the favour they increasingly enjoy both in Turkish adjudication and academia.

Two papers on international surrogacy offer French and Italian perspectives, as these countries were involved in the Mennesson, Labassée and Paradiso ECtHR cases.

Those who are curious as to “What’s new” in terms of work-in-progress of The Hague Convention on Judgments will devour the section devoted to relevant contributions with articles on the exclusion of privacy and the relationship with other existing multilateral instruments, in particular certain instruments in force in Latin America.

The Center for Transnational Litigation, Arbitration and Commercial Law at the New York University School of Law will host a conference, on 15 and 16 November 2018, titled The Continuing Relevance of Private International Law and Its Challenges.

The conveners are Franco Ferrari (New York University, Executive Director of the Center for Transnational Litigation, Arbitration and Commercial Law) and Diego P. Fernández Arroyo (Science Po, Paris).

Speakers include George A. Bermann (Columbia University), Andrea Bonomi (Lausanne University), Ronald A. Brand (University of Pittsburgh), Hannah L. Buxbaum (Indiana University, Bloomington), Giuditta Cordero-Moss (Oslo University), Horacio Grigera Naón (Director, Center on International Commercial Arbitration, Washington College of Law, American University, Washington DC), Burkhard Hess (Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law), Matthias Lehmann (Bonn University), Hans van Loon (Former Secretary-General, Hague Conference on Private International Law), Ralf Michaels (Duke University), Yuko Nishitani (Kyoto University), Francesca Ragno (Verona University), Mathias W. Reiman (University of Michigan), Kermit Roosevelt (University of Pennsylvania), Verónica Ruiz Abou-Nigm (University of Edinburgh), Linda J. Silberman (New York University), Symeon C. Symeonides (Willamette University) and Louise Ellen Teitz (Roger Williams University).

Last year the New Zealand singer Lorde cancelled a concert in Tel Aviv following an open letter by two New Zealand-based activists urging her to take a stand on Israel’s illegal occupation of Palestine. A few weeks later, the two activists found themselves the subject of a civil claim brought in the Israeli court. The claim was brought by the Israeli law group Shurat HaDin, on behalf of three minors who had bought tickets to the concert, pursuant to Israel’s so-called Anti-Boycott Law (the Law for the Prevention of Damage to the State of Israel through Boycott). The Israeli court has now released a judgment upholding the claim and ordering the activists to pay NZ$18,000 in damages (plus costs).

Readers who are interested in a New Zealand perspective on the decision may wish to visit The Conflict of Laws in New Zealand, where I offer some preliminary thoughts on the conflict of laws issues raised by the judgment. In particular, the post addresses – from a perspective of the New Zealand conflict of laws – the concern that the judgment represents some kind of jurisdictional overreach, before discussing the enforceability of the judgment in New Zealand (and elsewhere).

The Permanent Bureau of the Hague Conference on Private International Law has made available two reports for the attention of its governance Council (i.e. the Council on General Affairs and Policy): the Report of the Experts’ Group on the Parentage / Surrogacy Project and the Report of the Experts’ Group on the Co-operation and Access to Justice for International Tourists.

The Group on Parentage/Surrogacy Project will need to meet one more time early next year to reach final Conclusions on future work. In particular, the Group established possible methods to ensure cross-border continuity of legal parentage both established by and in the absence of a judicial decision.

Importantly,  “[t]he Group recalled that the absence of uniform PIL rules on legal parentage can lead to limping parentage across borders in a number of cases and can create significant problems for children and families. The Group further recalled that uniform PIL rules can assist States in resolving these conflicts and can introduce safeguards for the prevention of fraud involving public documents, while ensuring that the diverse substantive rules on legal parentage of States are respected. Any new instrument should aim to provide predictability, certainty and continuity of legal parentage in international situations for all persons involved, taking into account their fundamental rights, the UN Convention on the Rights of the Child and in particular the best interests of children. The Group agreed that any international instrument would need to be developed with a view to complementing the existing Hague Family Conventions and to attracting as many States as possible.”

Regarding the Group on the Tourism Project, it should be noted that it is currently exploring the need for an international instrument on the co-operation and provision of access to justice for international tourists. The Group concluded that “[t]he Experts’ Group recommends to the CGAP that it mandates the Experts’ Group to continue its work, with a view to assessing the need for, the nature (soft law and hard law options) and the key elements of, a possible new instrument. The composition of the Experts’ Group should remain open, and, if possible, also include representatives of Stakeholders, such as the UNWTO, as well as representatives of relevant organisations and private international law experts.” It was noted that the Consultant will finalise his draft (substantive) Report, which will be circulated at the end of this year.

The aide-mémoire of the Chair of the Tourism Project noted: “[i]f a new instrument were to be developed, the Experts identified a number of possible expected values such instrument might add. These included that tourists might be able to obtain appropriate information, including in a language they understand, to ascertain and understand their rights, and the potentially available options to seek redress. It might also provide co-operation mechanisms among suitable bodies that can work in a concerted manner to facilitate the resolution of complaints, with a view to guaranteeing access to justice in the broadest sense, including through alternative dispute resolution, in a non- discriminatory way. The instrument might also have a preventive effect. Finally, it might create an official record of the complaint, including for subsequent use abroad.”

In March 2019, the HCCH governance Council will determine whether work on these two subjects will go forward.

For the second time, the Society of Legal Scholars (SLS) conference, held this September at Queen Mary University of London, ran a conflict of laws section (more papers on conflict of laws given in other sections here, look for “conflict of laws”). Michael Douglas provides a charming report. Hopefully this is a sign of increased appreciation of conflict of laws as a scholarly discipline.

The latest issue of Cuadernos de Derecho Internacional, a journal published half-yearly and chiefly devoted to private international law, is now available on-line here.

It includes more than forty articles, written in Spanish, English and Italian, on topics such as actions for damages resulting from acts restricting free competition, the law applicable to divorce, dispute settlement clauses in maritime contracts and party autonomy under the EU regulations on matrimonial property regimes and the property consequences of registered partnerships.

Csongor István Nagy (University of Szeged, Faculty of Law) has posted on SSRN a paper titled Intra-EU Bilateral Investment Treaties and EU Law after Achmea: ‘Know Well What Leads You Forward and What Holds You Back’, which appeared in 19(4) German Law Journal 2017, pp. 981-1016.

The abstract reads as follows.

This paper analyzes the compatibility of intra-EU bilateral investment treaties – intra-EU BITs – with EU law. The status and validity of intra-EU BITs gave rise to a heated debate in Europe, which culminated in the CJEU’s recent controversial judgment in Achmea. This Article demonstrates that although the CJEU approached intra-EU BITs from the angle of federalism – where they are both redundant and illegitimate – the reality is that EU law does not provide for the kind of protection afforded by BITs. The paper gives both a positivist and a critical assessment of the Achmea ruling. It argues that the judgment should be construed in the context of the underlying facts and, hence, notwithstanding the CJEU’s apparently anti-arbitration attitude, its holding is rather narrow. It gives an alternative theory on intra-EU BITs’ fit in the EU internal market – based on European reality – showing that the complete invalidation of intra-EU BITs is flawed because the overlap between BITs and EU law is merely partial: BITs address a subject EU law does not. This Article’s central argument is that intra-EU BITs accelerate the internal market and, hence, their suppression does not lead the European integration further, but holds it back. Finally, this Article argues that the prevailing pattern of investment protection is a global scheme that cannot be arrested through regional unilateralism as essayed by the CJEU.

The last issue of the “Revue critique de droit international privé” will shortly be released.

This is a special edition for the celebration of the fiftieth anniversary of the Brussels Convention of 1968, composed of fourteen articles from all over Europe.

The articles are authored by Hélène Gaudemet-Tallon (“La convention de Bruxelles du 27 septembre 1968: 50 ans”); Jürgen Basedow (“L’espace judiciaire européen et ses voisins”); Paul Beaumont, (“Forum non conveniens and the EU rules on Conflicts of Jurisdiction: A Possible Global Solution”); Andrea Bonomi (“50 ans de Convention de Bruxelles: ce n’est qu’un début, continuons le combat!”); Francisco Garcimartín (“Brussels I instruments: past, present and… future”); Trevor C. Hartley (“The Brussels Convention in International Perspective”); Alex Mills (“The Brussels Convention 1968: A Code and a Concept”); Rui Manuel Moura Ramos (“La Convention de Bruxelles, un demi-siècle après”); Charalambos Pamboukis, “La Convention de Bruxelles: une convention constituante et un système de conflit de juridictions fédéral?”); Monika Pauknerová (“Reflections on the Brussels Convention from the Czech perspective”); Fausto Pocar (“La longue marche de Bruxelles I: un parcours encore inachevé?”); Peter Schlosser (“Observations autour du cinquantième anniversaire de la Convention de Bruxelles”); Symeon C. Symeonides (“The Brussels Convention Fifty Years Later: A View from Across the Atlantic”); and Maciej Szpunar (“Droit international privé de l’Union: cohérence des champs d’application et/ou des solutions?”).

A full table of contents is available here.

On 26-27 November, a Conference entitled From Transnational Principles to European Rules of Civil Procedure will be held in Trier (Germany). This conference is being organised by the European Law Institute (ELI) and the International Institute for the Unification of Private Law (UNIDROIT), in cooperation with the Academy of European Law (ERA). Please click here for more information, including the programme of the conference.

As some of you may know, ELI and UNIDROIT are currently working on a joint project entitled “From Transnational Principles to European Rules of Civil Procedure.” It builds upon an instrument produced jointly by the ALI (American Law Institute) and UNIDROIT entitled “Principles of Transnational Civil Procedure” and aims at the regional development of those Principles.

There are currently 8 working groups on different aspects of civil procedure, in addition to an overarching working group dealing with structure. For further information about the background of this project, click here.

As indicated on the conference’s website: “[t]his public Conference aims at presenting the advanced results achieved by the project’s current and former working groups. Participants of the Conference will have a chance to get a sense of the whole project as the work is drawing to an end with an estimated date in spring 2019. Members of the project as well as other esteemed experts in the field of civil procedure will present the achievements and challenges of the work of the respective working groups and stimulate a discussion on selected pressing legal issues in the area of civil procedure.”

Warby J in  [2018] EWHC 2599 (QB) Lloyd v Google (a class action suit with third party financing) considers, and rejects, jurisdiction against Google Inc (domiciled in the US) following careful consideration (and distinction) of the Vidal Hall (‘Safari users) precedent.

Of note is that the jurisdictional gateway used is the one in tort, which requires among others an indication of damage. In Vidal Hall, Warby J emphasises, that damage consisted of specific material loss or emotional harm which claimants had detailed in confidential court findings (all related to Google’s former Safari turnaround, which enabled Google to set the DoubleClick Ad cookie on a device, without the user’s knowledge or consent, immediately, whenever the user visited a website that contained DoubleClick Ad content.

In essence, Warby J suggests that both EU law (reference is made to CJEU precedent under Directive 90/314) and national law tends to suggest that “damage” has been extended in various contexts to cover “non-material damage” but only on the proviso that “genuine quantifiable damage has occurred”.

Wrapping up, at 74: “Not everything that happens to a person without their prior consent causes significant or any distress. Not all such events are even objectionable, or unwelcome. Some people enjoy a surprise party. Not everybody objects to every non-consensual disclosure or use of private information about them. Lasting relationships can be formed on the basis of contact first made via a phone number disclosed by a mutual friend, without asking first. Some are quite happy to have their personal information collected online, and to receive advertising or marketing or other information as a result. Others are indifferent. Neither category suffers from “loss of control” in the same way as someone who objects to such use of their information, and neither in my judgment suffers any, or any material, diminution in the value of their right to control the use of their information. Both classes would have consented if asked. In short, the question of whether or not damage has been sustained by an individual as a result of the non-consensual use of personal data about them must depend on the facts of the case. The bare facts pleaded in this case, which are in no way individualised, do not in my judgment assert any case of harm to the value of any claimant’s right of autonomy that amounts to “damage”…”

The judgment does not mean that misuse of personal data cannot be disciplined under data protection laws (typically: by the data protection authorities) or other relevant national courses of action. But where it entails a non-EU domiciled party, and the jurisdictional gateway of ‘tort’ is to be followed, ‘damage’ has to be shown.

Geert.

 

The Max Planck Institute Luxembourg for Procedural Law is offering three full-time positions at the Research Department of European and Comparative Procedural Law, two for Research Fellows in EU Procedural Law (PhD candidate) and one for a Senior Research Fellow. The contracts are on a fixed-term basis for 24 months with the possibility of a contract extension.

Positions:

The Institute is looking for a highly motivated Senior Research Fellow who would join the Department of European and Comparative Procedural Law led by Prof. Dr. Dres. h.c. Hess and composed by a team of five senior research fellows and 15 research fellows. The Department conducts scientific research in three areas: European civil procedural law, comparative procedural law and dispute resolution in the cross-roads between private and public international law.

The Research Fellow will conduct legal research and cooperate at the Max Planck Institute Luxembourg within the Project “EUFam’s II – Facilitating cross-border family life: towards a common European understanding)” which aims (i) at assessing the effectiveness of the functioning ‘in concreto’ of the EU Regulations in family matters, as well as the most relevant Hague instruments in this field of law along with Regulation (EU) 2016/1191 on public documents; and (ii) at identifying the paths that lead to further improvement of such effectiveness. Moreover, the Project will focus on the impact of the arrival of refugees in Europe as well as of the Brexit phenomenon in the field of European Family Law.

The successful candidate will have the great opportunity to contribute to the development of the Department of European Comparative Procedural Law led by Prof. Dr. Dres. h. c. Burkhard Hess and, in parallel, work on her/his PhD project.

The Research Fellow is expected to assist in the achievement of the objectives of the Project on a part-time basis during the two years of duration of the project, namely by carrying out and developing legal research with a view to contributing to the drafting of the Project’s Final Study and by participating in the presentation of the scientific outcomes of the Project.

In addition, the successful candidate is expected to write her/his PhD thesis and perform the major part of her/his PhD research work in the premises of the institute in Luxembourg, but also in close collaboration with her/his external supervisor and with the university or institution delivering her/his PhD diploma. A supervision of a PhD-thesis by Professor Hess will also be possible.

Profiles:

Senior Research Fellow: Applicants must have earned a degree in law and hold a PhD degree by the time they join the MPI, preferably in a topic falling within the scope of European Procedural Law in civil and commercial matters. The successful candidate shall possess a strong interest and aptitude for legal research and have a high potential to develop excellence in academic research.

Her/his CV must portray a consolidated background in EU international procedural law or in comparative procedural law: prior publications in this field of the law shall be highly regarded in the selection process. An interest in Family law is an asset. Full proficiency in English (and other foreign language) is compulsory (written and oral).

Research Fellow: Applicants are required to have obtained at least a Master degree in Law with outstanding results and to have knowledge of domestic procedural and European procedural law, in particular linked to family matters. According to the academic grades already received, candidates must rank within the top 10 %.

The successful candidates should demonstrate a great interest and curiosity for fundamental research and have a high potential to develop excellence in academic research. Proficiency in English is compulsory (in written and oral); further language skills (in French notably) are of advantage.

All applications are to be made online until 30th October 2018 via the following links:

• Senior Research Fellow
• Research Fellow

For further information see here.

The University of Lyon III will host the conference “La circulation des personnes et de leur statut dans un monde globalisé” on 11 and 12 October 2018.

After a short introduction on the stakes and the historical aspects of the law on such movements, the first day will address the principles governing those movements (Human rights, EU rights, party autonomy and the States’ interests) and day two the diverse methods, traditional or in test, to regulate them (Conflict of laws v. Recognition ; Impacts of public order, fraud and abuse of rights; Documents, constitution, absence and effects).

The conference is also remarkable by its panels since more than 60 scholars and professionals (lawyers, notary public, international organizations) from 7 nationalities are announced lead by Profs. Hugues Fulchiron (Lyon III), Hélène Gaudemet-Tallon (Paris II), Jean Foyer (Paris II), Paul Lagarde (Paris I), Hans van Loon (Former Sec. Gen. of the Hague Conference) and Horatia Muir Watt (Science Po.).

Publication of all the interventions is also planned. More information is available here

The Working Group of Young Scholars in Public International Law and the German Society of International Law are pleased to invite the submission of papers for a conference on

Cynical International Law?
Abuse and Circumvention in Public and Private International Law as well as European Law

6 – 7 September 2019, Freie Universität Berlin.

Contributions on public and private international law as well as European law, also from an interdisciplinary perspective, are welcome. The conference seeks to be a forum for dialogue between young and established scholars. Young scholars’ contributions will be commented on by established scholars.

The call for papers is available here.

Anonymized abstracts in German or English (max. 500 words) should be submitted by 31 January 2019 via the application form on the conference website.

Dear Colleague,

We are pleased to invite you to attend the Contractual Issues in Private International Law Conference to be hosted by the University of Marmara, School of Law, Department of Private International Law, Sultanahmet campus in the European side of Istanbul, Turkey on the 11th October 2018.
If you need any further information about the conference, please follow the link below:
http://etkinlik.marmara.edu.tr/contractsinpil

Yours Sincerely,
Assoc. Prof. Dr. Mustafa Erkan
Conference Co-Chair

Popplewell J held in [2018] EWHC 822 (Comm) Reliance v India in April. This post therefore is not a claim to speedy reporting (Allen & Overy have excellent review here). Rather, a quick note on the various implications of the holding in wider context.

The Act of State doctrine (in its narrow sense) essentially holds that courts should not question the validity of acts taken by a foreign government within that government’s territory.

Claimant (at 110) ‘submitted that even if non-justiciable in an English court, (one of the relevant claims, GAVC)…is arbitrable; the basis for the doctrine of foreign act of state, to the extent that it applies, is that one sovereign state should not sit in judgment on the acts of another; unlike a court, an arbitral tribunal is not an organ of a sovereign state; therefore its determination of the validity of the conduct of a sovereign party would not entail one sovereign calling into question the conduct of another; because the rationale for the foreign act of state doctrine does not apply to arbitration, what would in court be a non-justiciable issue can nevertheless be adjudicated upon by arbitrators.’

Popplewell J disagreed in what I understand to be a first formal finding on the subject: at 111 and in discussing relevant authority:

‘whilst some aspects of the foreign act of state doctrine have as their basis the exercise of “judicial self-restraint” (leading to some suggesting it is an expression of comity, GAVC), those are not the aspects of the doctrine which are relevant to the current issue… the principle that the validity and effectiveness of legislative and executive acts of a sovereign state in relation to property within its jurisdiction is not justiciable..is a hard-edged principle of English private international law, and (the majority of authority suggests, GAVC) that its rationale derives from the very concept of sovereignty which recognises the power and right of a state to determine the property rights of those whose property is situate within its territory.’

At 113: ‘there is no good reason why the principle should be any less applicable in arbitration than in litigation before an English court. It does not depend upon the tribunal itself being an organ of a sovereign state or exercising sovereign functions: it depends upon a general principle of English private international law which recognises the sovereignty of nations within recognised spheres, a principle to which arbitration tribunals, no less than courts, are required to give effect when applying English private international law principles.’

The case is an excellent illustration of the now very diverse and not always integrated international dispute resolution landscape. A case like Reliance could have conceivably ended up in BIT arbitration – which as readers will know has its own extensive challenges with domestic regulatory autonomy and the space for investment tribunals to challenge the legality and at the least the proportionate impact of States exercising sovereign regulatory functions.

This leaves two further dispute settlement channels: the use of the courts in ordinary and the use of ‘standard’ commercial arbitration (outside the BIT context), which is what was employed here. As the judgment shows, the former (courts in ordinary) have kept some control over the latter.

Lucia Raimanova and Matej Kosalko signal that classic choice of law rules combined with contractual party autonomy empowers parties to steer the litigation away from issues that a party might wish to avoid: particularly, by opting for the most interesting lex contractus (and, I would add, potentially varying same en parcours de route, to respond to changes in case-law or statutory law), and by having the State concerned sign away its right to invoke the Act of State doctrine (much like the similar contractual surrender of sovereign immunity).

International litigation is seldom confined to singular lines of analysis.

Geert.

 

An essay about the European narrative. A long read – well worth it.

EU Perspectives

KJ Garnett

Brexit and Trump have opened up a new world of understanding that I hitherto grasped but was unable to define. For the past ten years many, myself included, were aware something was amiss. We knew that media coverage of the EU in the UK was based on lies and misleading information. For years euperspectives has been calling for a new European media to counter the underlying current of resentment, mockery, irrational hate and quite frankly downright ignorance towards the EU at the heart of the British media and in influential political circles. I tried in vain to draw a link between negative media coverage and the potential of great harm to the EU and ordinary citizens. Not very successfully. Like a patient who complains of chronic back-pain but who in the absence of a medical diagnosis is told their symptoms are all in the head so too my…

View original post 5,644 more words

I called Bobek AG’s Opinion in C-337/17 ‘solid’ – by which I also implied: convincing.  Is the actio pauliana by a Polish company against a Spanish company, which had bought immovable property from the former’s contracting party, one relating to ‘contract’ within the meaning of Article 7(1) Brussels I Recast?

Bobek AG Opined it is not. The CJEU today held it is. I disagree.

Firstly, the second chamber, at 29 ff, repeats the inaccurate references in Valach and Tunkers, that (at 30) ‘actions which fall outside the scope of [the Insolvency Regulation] fall within the scope of [Brussels I Recast].’ This oft repeated quote suggest dovetailing between the two Regulations, a view which is patently incorrect: readers can use the tag ‘dovetail’ or ‘arrangement’ (for ‘scheme of arrangement’) for my view on same; see e.g. Agrokor.

Having held (this was not seriously in doubt) that Brussels I Recast is engaged, the Court then takes a much wider view of the Handte formula than advocated by Bobek AG. The Court at 37 refers to Granarolo, merely in fact to emphasise the requirement of strict interpretation of the jurisdictional rules which vary Article 4’s actor sequitur forum rei’s rule. At 43 follows the core of its reasoning: ‘By [the pauliana] the creditor seeks a declaration that the transfer of assets by the debtor to a third party has caused detriment to the creditor’s rights deriving from the binding nature of the contract and which correspond with the obligations freely consented to by the debtor. The cause of this action therefore lies essentially in the breach of these obligations towards the creditor to which the debtor agreed.’

The Court does not refer to Ergo, let alone to Sharpston AG’s ‘centre of gravity’ test in same, however it would seem that this may have influenced it. Yet in my view this is way too extensive a stretch of the Handte or Sharpston AG’s Ergo formula. Litigation in the pauliana pitches the creditor against the third party. It would take really quite specific circumstances for Handte to be met in the relation between these two. That a contractual relation features somewhere in the factual matrix is almost always true.

For a comparative benchmark, reference can be made to Refcomp where the Court took a very limiting view on subrogration of choice of court.

The Court’s formulation at 45 is entirely circular: were the creditor not able to sue in the forum contractus, ‘the creditor would be forced to bring proceedings before the court of the place where the defendant is domiciled, that forum, as prescribed by Article 4(1) of Regulation No 1215/2012, possibly having no link to the place of performance of the obligations of the debtor with regard to his creditor.’

The Court then quite forcefully and seemingly without much hesitation identifies a specific forum contractus (unlike the AG who had suggested that that very difficulty supports his view that there simply is no forum contractus to speak of): at 46: ‘the action brought by the creditor aims to preserve its interests in the performance of the obligations derived from the contract concerning construction works, it follows that ‘the place of performance of the obligation in question’ is, according to Article 7(1)(b) of this regulation, the place where, under the contract, the construction services were provided, namely Poland.’

The initial contractual obligation between creditor and debtor therefore creates crucial jurisdictional consequences vis-a-vis third parties whose appearance in the factual matrix presents itself only very downstream. That, I would suggest, does not at all serve the predictability which the Chamber (rightly) emphasises at the very outset of its judgment as being the driving principle behind its interpretation.

I am not convinced by this judgment.

Geert.

 

 

Earlier today, the Court of Justice held that, under certain circumstances, special jurisdiction for an actio pauliana can be based on Art. 7(1) Brussels Ia (Case C-337/17 Feniks).

The actio pauliana is an instrument provided by the national laws of several EU member states that allows the creditor to challenge fraudulent acts by their debtor that have been committed to the creditor’s detriment. The ECJ already had several opportunities to decide on the availability of individual grounds of special jurisdiction for such an action, but has reliably denied their availability. In today’s decision however, the Court confirmed the availability of special jurisdiction for matters relating to contract, contrary to the proposition of AG Bobek (Opinion delivered on 21 June 2018).

Previous Decisions

Many readers of this blog will be aware of the Court of Justice’s earlier decisions on the availability of special or exclusive jurisdiction for a creditor’s actio pauliana.

In Case C-115/88 Reichert I, the question was referred to the Court in the context of a transfer of immovable property from Mr and Mrs Reichert to their son, which had been challenged in the French courts by their creditor, a German bank. The Court held that the actio pauliana did not fall under the head of exclusive jurisdiction for actions concerning rights in rem; accordingly, the French courts did not have jurisdiction based on what is now Art 24(1) Brussels Ia.

Still in the context of this transfer of property, the ECJ held in Case C-261/90 Reichert II that the heads of jurisdiction in what are now Art 7(2) (matters relating to tort, delict or quasi-delict), Art 24(5) (proceedings concerned with the enforcement of judgments) and Art 35 (provisional, including protective, measures) Brussels Ia would be equally unavailable.

The Court has never explicitly excluded the availability of the ground of jurisdiction for matters relating to contract in what is now Art 7(1) Brussels Ia. In his Opinion on Case C-339/07 Deko Marty Belgium, AG Ruiz-Jarabo Colombo still appears to understand the decisions in Reichert I and II as leading to the conclusion that within the framework of the Brussels Ia Regulation, jurisdiction for an actio pauliana ‘lies [only] with the courts in the defendant’s State of domicile.’ (ibid, [32]).

The Decision in Feniks

The case underlying today’s decision involved two Polish companies, Feniks and Coliseum, who were in a contractual relationship relating to a development project. When Coliseum was unable to pay some of its subcontractors, Feniks had to pay them instead (pursuant to Polish law), thus becoming the creditor of Coliseum. Coliseum subsequently sold some immovable property to a Spanish company, a transaction which Feniks now challenges in the Polish courts, relying on the provisions of the Polish Civil Code that provide for the actio pauliana.

While the Court considered the action to be ultimately based on the contract between Feniks and Coliseum (see below), it is not immediately clear to what extent the situation differs from the one in Reichert. Still, it is true that the question of whether such an action could be based on the head of special jurisdiction for contract was raised in neither of the two orders for reference. AG Bobek had nonetheless offered several important arguments for why this head of jurisdiction should not be available. In particular, he had argued that there was no ‘obligation freely assumed’ by the defendant towards the claimant (Opinion, [68]) and the contractual relationships between the claimant and their debtor and between the debtor and the defendant were ‘too tenuous and remote’ or too ‘detached’, respectively, to be considered for the purpose of establishing jurisdiction (Opinion, [65], [67]). More fundamentally, the Advocate General considered the ‘chameleon-like nature’ of the actio pauliana, which allows a creditor to challenge a wide range of legal acts, to prevent it from falling within the scope of any head of special jurisdiction (Opinion, [76]–[87]).

In today’s decision, the Court very much rejects these arguments. After having established the applicability of the Brussels Ia Regulation – the action not falling into the scope of Regulation No 1346/2000, which would exclude them from the Brussels Ia Regulation (see Art 1(2)(b) Brussels Ia; Case C-339/07 Deko Marty Belgium, [19]) – the ECJ reiterates that the decisive criterion for jurisdiction to be based on Art 7(1) Brussels Ia is the existence of a legal obligation freely entered into by one person towards another on which the claimant’s action is based (Feniks, [39]; see also Joined Cases C-359/14 and C-475/14, ERGO Insurance, [44]); the claimant does not necessarily have to be party to the contract, though (Feniks, [48]; see also Joined Cases C-274/16, C-447/16 and C-448/16 flightright, [61]). According to the Court,

[42] … both the security that Feniks has over the debtor’s estate and the present action regarding the ineffectiveness of the sale concluded by the debtor with a third party originate in the obligations freely consented to by Coliseum with regard to Feniks upon the conclusion of their contract relating to those construction works. [own emphasis]

In such a case, the creditor’s action is based on the breach of a contractual obligation (ibid, [43]).

[44] It follows that the actio pauliana, once it is brought on the basis of the creditor’s rights created upon the conclusion of a contract, falls within ‘matters relating to a contract’ … .

Accordingly, the contract between Feniks and Coliseum being for construction works to be carried out in Poland, the Polish courts would have jurisdiction under Art 7(1)(b) Brussels Ia (ibid, [46]).

Special Jurisdiction under the Brussels Ia Regulation

One of several interesting details of today’s decision is the degree to which the Court’s approach to the grounds for special jurisdiction differs from the Advocate General’s opinion. According to AG Bobek, the actio pauliana might be

[97] … one of the rare examples that only allows for the applicability of the general rule and an equally rare confirmation of the fact that ‘… there is no obvious foundation for the idea that there should always or even often be an alternative to the courts of the defendant’s domicile’.

Importantly, for AG Bobek, requiring the claimant to rely on the general ground of jurisdiction provided in Art. 4(1) Brussels Ia would not be a problem because

[93] … the defendant’s domicile is precisely the key connecting factor for the purpose of application of Regulation No 1215/2012.

– an argument that seems to echo the Court of Justice’s considerations in Case C-256/00 Besix, [50]–[54].

Besides, allowing for special jurisdiction to be based on Art 7(1) Brussels Ia because the defendant must be aware of the fraudulent nature of the transaction for the action to succeed would amount to

[94] … effectively presuming the existence of the awareness of the fraud on the part of the transferee.

Put differently, if the Court could justify the unavailability of special jurisdiction for matters relating to contract for claims brought by a sub-buyer against the manufacturer in Case C-26/91 Jakob Handte by the fact that such jurisdiction would be unforeseeable and ‘therefore incompatible with the principle of legal certainty’ (ibid, [19]), does the mere allegation that the buyer of a plot of land has been aware of the fraudulent character of the transaction really justify its application?

The Court of Justice seems to believe it does. Indeed, it appears to have remained rather unimpressed by the above considerations when arguing that if the claim could not be based on Art 7(1) Brussels Ia, then

[45] … the creditor would be forced to bring proceedings before the court of the place where the defendant is domiciled, that forum, as prescribed by [Art 4(1) Brussels Ia], possibly having no link to the place of performance of the obligations of the debtor with regard to his creditor.

In April 2018  the European Commission presented a proposal for a directive amending Directive 2017/1132 relating to certain aspects of company law as regards cross-border conversions, mergers and divisions (COM(2018) 241 final).

In July 2018 a group of professors of the Universitat Autònoma de Barcelona (Autonomous University of Barcelona) drew up a document to comment on some aspects of the proposal.

The paper was presented at a public hearing organised by the European Economic and Social Committee (EESC) on 10 September 2018, in Thessaloniki (Greece), in the context of the discussion within the EESC leading to the adoption of an opinion on the said proposal.

The paper, in English, can be found here.