Droit international général

Sharia divorce and Rome III. The CJEU in Sahyouni.

GAVC - lun, 01/08/2018 - 12:15

I reviewed the AG’s Opinion in Case C-372/16 here. The Court held late December. Like the AG, it held that  Rome III does not cover divorces which are declared without a constitutive decision of a court or other public authority: it squarely uses the Regulation itself to come tho this view, without any assessment of whether the foreign State’s courts in private sharia divorces, has any impact on that conclusion.

With the first question answered in the negative, the other, very interesting issues covered by AG, became without subject. A judgment not with a bang, but with a whimper.

Geert.

 

 

 

Out now: Recognition and Enforcement of Foreign Judgments in Asia

Conflictoflaws - lun, 01/08/2018 - 05:45

A compendium of country reports on the law on the recognition and enforcement of foreign judgments in ASEAN, Australia, China, India, Japan and South Korea has been published by the Asian Business Law Institute, a research institute based in Singapore. The list of contributors are as follows:

  1. Professor Elizabeth Aguiling-Pangalangan of the University of the Philippines;
  2. Dr Andrew Bell, SC of Eleven Wentworth Chambers, Australia;
  3. Dr Bich Du Ngoc of Ho Chi Minh City Open University;
  4. Mr Youdy Bun of Bun & Associates, Cambodia;
  5. Xaynari Chanthala and Mr. Kongphanh Santivong of LS Horizon (Lao) Limited;
  6. Associate Professor Adeline Chong of Singapore Management University;
  7. Professor Choong Yeow Choy of the University of Malaya;
  8. Professor Guo Yujun of Wuhan University, China;
  9. Professor Toshiyuki Kono of Kyushu University;
  10. Mr Minn Naing Oo of Allen & Gledhill (Myanmar) Co Ltd;
  11. Dr Colin Ong, QC of Dr Colin Ong Legal Services, Brunei;
  12. Dr Yu Un Oppusunggu of the University of Indonesia;
  13. Mr Narinder Singh of the Indian Society of International Law;
  14. Dr Poomintr Sooksripaisarnkit of the University of Tasmania; and
  15. Professor Suk Kwang Hyun of Seoul National University.

You can download the compendium at: http://abli.asia/PROJECTS/Foreign-Judgments-Project.

Further information may be found in the publisher’s blurb:

Out Now: Recognition and Enforcement of Foreign Judgments in Asia

The Asian Business Law Institute’s (ABLI)* first publication in its ABLI Legal Convergence Series has been released, a compendium of country reports entitled “Recognition & Enforcement of Foreign Judgments in Asia”.  This new publication has been edited by Associate Professor Adeline Chong of the School of Law, Singapore Management University, who is leading ABLI’s Foreign Judgments Project.

The compendium is the output of the first part of ABLI’s project to promote the convergence of the law on the recognition and enforcement of foreign judgments in Asia.

The compendium consists of 15 short and concise country reports which provide lawyers and businesses with an overview of how foreign judgments in civil and commercial matters are recognised in different jurisdictions in Asia and the requirements which would need to be fulfilled for a foreign judgment to be enforced in these jurisdictions.

This is the first time such a study is made covering the laws of the ten ASEAN countries and the major Asian economies of Australia, China, India, Japan and South Korea. The reports are written by legal academics and practitioners from the 15 countries covered by the project and the compendium is freely available on ABLI’s website at: http://abli.asia/PROJECTS/Foreign-Judgments-Project.

The compendium will also act as a springboard for the next phase of ABLI’s Foreign Judgments Project which will consider whether sufficient areas of commonality exist for convergence in this area of the law and how convergence may best be achieved. The convergence of the foreign judgment rules in Asia is essential as Asia moves rapidly towards a borderless trading environment, as the greater portability of judgments within Asia will facilitate cross-border transactions by lowering transaction costs and associated legal friction among jurisdictions.

* The Asian Business Law Institute was launched in January 2016. It is a permanent institute based in Singapore that initiates, conducts and facilitates research with a view to providing practical guidance in the field of Asian legal development and promoting the convergence of Asian business laws. Its mission is to remove unnecessary or undesirable differences between Asian legal systems that pose obstacles to free and seamless trade. ABLI’s long-term strategic direction in accordance with its aims is set by its Board of Governors chaired by The Honourable the Chief Justice Sundaresh Menon of the Supreme Court of Singapore. The Board comprises representatives from Australia, China, India and Singapore and other internationally renowned legal experts.

International and Comparative Law Quarterly 67 (2018), Issue 1

Conflictoflaws - sam, 01/06/2018 - 13:30

The most recent issue of the International and Comparative Law Quarterly (ICLQ) features two articles relating to private international law:

Louise Merrett, The Future Enforcement of Asymmetric Jurisdiction Agreements, ICLQ 67 (2018), pp. 37-71:

Asymmetric jurisdiction clauses are clauses which contain different provisions regarding jurisdiction for each party. They are widely used in international financial markets. However, the validity of this form of agreement has been called into doubt in several European jurisdictions. Furthermore, following Brexit, there may well be an increasing focus on alternative methods of enforcement under the Hague Convention and at common law, claims for damages and anti-suit injunctions. As well as considering recent developments in the case law and the implications of Brexit, this article will emphasize that all of these questions can only be answered after the individual promises contained in any particular agreement are properly identified and construed. Once that is done, there is no reason why the asymmetric nature of a clause should be a bar to its enforcement.

Giesela Rühl, Judicial Cooperation in Civil and Commercial Matters after Brexit: Which Way Forward? ICLQ 67 (2018), pp. 99-128:

Judicial cooperation in civil and commercial matters is generally perceived to be of a rather ‘specialist and technical nature’. However, for the many UK and EU citizens, families and businesses who work, live, travel and do business abroad, the current European framework for choice of law, jurisdiction and recognition and enforcement is of paramount importance. The article, therefore, explores how that framework might look like after Brexit and discusses the merits and demerits of the various ways forward.

Full texts are available via Cambridge Core.

 

The RBS rights issue litigation: A missed opportunity for choice of law re privilege to go up to the UKSC.

GAVC - jeu, 01/04/2018 - 13:01

Welcome to this end of 2018.

Thank you Kate Wilford for flagging [2016] EWHC 3161 (Ch) The RBS Rights issue litigation. The litigation concerns a rights issue of shares in the Royal Bank of Scotland (“RBS”) which was taken up in 2008. By the various actions, shareholders in RBS seek to invoke statutory remedies against RBS under the Financial Services and Markets Act 2000 (“FSMA”) whereby to recover substantial investment losses incurred further to the collapse of RBS shares. The prospectus for the Rights Issue was argued not be to accurate or complete.

The case at issue was held December 2016 but has only now come to my attention. Of note to this blog is one of the three issues that were sub judice: whether RBS is entitled to rely on the federal law of the USA as the law applicable to the particular issue, and if so, whether under that law the claim of privilege is maintainable: Hildyard J referred to this as “the Applicable Law Point”. It is discussed under 129 ff.

As Kate notes, the issue was concerned with the availability of legal advice privilege over records of interviews conducted by US lawyers in a fact-gathering investigation. RBS contended that the English court should have applied US privilege rules, which would have afforded the interview records a much broader degree of protection against disclosure.

I reviewed privilege and applicable law in my post on  People of State of New York v. PriceWaterhouseCoopersalbeit that in that case the toss-up was between different States’ law, not federal law. Hildyard J discusses the English 1859 authority Lawrence v Campbell: lex fori applies. Particular attention is paid to the in my view rather convincing arguments of Adam Johnson (who has since taken silk) as to why this 1859 authority should no longer hold, see 145-147.  Yet his arguments were all rejected, fairly summarily. RBS’ lawyers proposed an alternative rule (at 137): “Save where to do so would be contrary to English public policy, the English court should apply the law of the jurisdiction with which the engagement or instructions, pursuant to which the documents came into existence or the communications arose, are most closely connected.”

Rome I or II did not feature at all in the analysis – wrongly I believe for there could have been some useful clues there and at any rate the applicable law rules of the Regulations certainly apply to the litigation at issue and should have been considered.

Now, there seems to have been consensus that the case was Supreme Court material – however RBS did not pursue the point. We’ll have to wait therefore until another suitable case comes along which I imagine should not be too long in the making.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 1.

Third IAPL-MPI Luxembourg Summer School – Reminder

Conflictoflaws - mer, 01/03/2018 - 22:58

A quick reminder regarding the third International Association of Procedural Law (IAPL) – Max Planck Institute Luxembourg Summer-School, which will take place in Luxembourg from the 1st to the 4th of July 2018, on the topic of “Privatizing Dispute Resolution and its Limits”.

The School is mainly addressed to post-doc students at the beginning of their academic career; however PhD candidates may be admitted in case their dissertation is already at an advanced stage, and provided the applicant shows a degree of academic maturity guaranteeing that his/her attendance to the school will be fruitful both for him/her and the School itself.

The selection process entails a two-stage process, based on the written materials submitted by the applicants. A pre-selection is made within the MPI among the applications correctly completed and received in due time on the basis of the candidate’s CV, his/her topic of research and his/her explanation of it (interest, methodological approach, novelty). The final decision lies with the MPI and the IAPL Presidium.

Applicants are requested to apply via the website platform set up to this effect. The application form therein provided for must be filled in with the following information:

An application form therein provided for must be filled up and the following documents upload:

  • A short curriculum vitae indicating the nationality of the candidate, age and home institution; PhD topic, date and place of submission, degree awarded, members of the jury/commission; recent publications; grants and awards; stays abroad; current position
  • A short description of the project of research to be discussed at the School (no more than 1000 words)
  • A letter of recommendation from a renowned Law Professor or Practitioner

Up to 20 places will be available for applicants having procedural law and/or dispute resolution mechanisms as their main field of academic interest. All nationalities are welcome to apply. A good level of English, both orally and in writing, is nevertheless of the essence.

Please follow this link for the online application. Deadline: January 29, 2018.

Out now: Relationship between the Legislature and the Judiciary – Contributions to the 6th Seoul-Freiburg Law Faculties Symposium

Conflictoflaws - mar, 01/02/2018 - 16:50

This volume (2017, 295 pp., € 79.00, ISBN 978-3-8487-3736-9) is a collection of edited papers (all in English) presented on the occasion of the 6th Seoul-Freiburg Law Faculties Symposium held in Freiburg (Germany) in June 2016. Since its inception in 1996, the cooperation and academic exchange between the Law Faculties of the Seoul National University (SNU) and the Albert-Ludwigs-Universität Freiburg has flourished and contributed substantially to the mutual understanding of legal thought and research in the two legal cultures and jurisdictions, keeping alive the old and precious tradition of maintaining a close relationship between Korean and German law. Like previous symposia, the 2016 Symposium on the „Relationship between Legislature and Judiciary“ was devoted to a rather broad and abstract subject which is of fundamental relevance for both countries, covering constitutional law, legal theory, private law (including private international law), criminal law, commercial law, and administrative law. The symposium was supported by the Thyssen Foundation (Cologne).

The volume is edited by Jan von Hein, Hanno Merkt, Sonja Meier, Alexander Bruns, Yuanshi Bu, Silja Vöneky, Michael Pawlik, and Eiji Takahashi. It contains contributions by Un Jong Pak, Matthias Jestaedt, Ralf Poscher, Hong Sik Cho, Kye Joung Lee, Frank Schäfer, Jinsu Yune, Jan von Hein, Sank Won Lee, Ok-Rial Song, Boris Paal, Maximilian Haedicke, Seongwook Heo, and Dongjin Lee.
Further information is available on the publisher’s website here.

Unstunned slaughter and EU law. Wahl AG finds no justification for total ban.

GAVC - ven, 12/29/2017 - 15:03

A post suited to be this year’s last, given the religious context of the current holiday period: Wahl AG advised late November in C-426/16. See my previous posts on the issue. A European Regulation (1099/2009) provides for an unclear, and conditional,  exemption from a requirement of stunning animals for religious slaughter. (Regularly the practise is also called ‘ritual’; including in current Opinion. ‘Religious’ must be the preferred term).

Practised in particular by the Jewish (Shechita; leading to ‘kosher’ meat) and Muslim (Zabihah; with halal meat) faith, a core aspect of the practice is that animals are not stunned prior to slaughter. The science on the effect of stunned or unstunned slaughter is equivocal. What is certain is that neither stunned nor unstunned slaughter, when carried out incorrectly (well documented in the case of stunned slaughter) aids the welfare of the animal.

The Flemish Minister responsible for animal welfare announced that, from 2015 onwards, he would no longer issue approvals for temporary slaughter plants at which religious slaughtering could be practised during the Islamic Feast of the Sacrifice because such approvals in his view were contrary to EU legislation, in particular the provisions of Regulation 1099/2009. The muslim community objects to the discontinuation of temporary slaughter plants.

The Advocate-General’s Opinion is lengthy, and there is a lot to chew on.  There is little point in rehashing all the AG’s points: readers are best referred to the Opinion itself. Of note however is

  • Firstly, the AG’s attempt strictly to delineate the issue.

The case he suggests is simply about what material conditions, in terms of equipment and operating obligations, must accompany unstunned slaughter in order for it to comply with the relevant EU rules. He suggests a rephrasing of the referring court’s questions in that direction. Along these lines he also in substance refuses to entertain the questions as to the validity of Regulation 1099/2009 itself, or the exemption from the duty to use approved slaughterhouses under the Regulation’s ‘cultural’ exception. (See footnote 13). In my view the Regulation is very vulnerable on this issue: sporting and cultural events are entirely excluded from its scope of application; religious rites are subject to a qualified exemption. That to me cannot survive a discrimination test.

The Brussels court had given the case a much wider scope: it suggested that the contested Flemish decision creates a limitation on the exercise of freedom of religion and undermines Belgian customs relating to religious rites, since it obliges Muslims to perform the ritual slaughter of the Islamic Feast of the Sacrifice in slaughterhouses that have been approved in accordance with Regulation No 853/2004. In the opinion of that court, this limitation is neither relevant nor proportionate in order to attain the legitimate objective of protecting the welfare of animals and human health (at 20). The AG however sees no limitation of freedom of religion at all, resulting from the general obligation to use approved slaughterhouses.

  • Despite the attempt at delineation, the background to the case is undeniable and filters through in the Opinion.

If only because the AG has to complete the analysis should the CJEU disagree with his view that freedom of religion is not being limited, he does review the legality of a total ban on slaughtering other than in plants that have been approved in accordance with the rules established in Annex III to Regulation No 853/2004.

First of all he refers to European Commission audits of the previously approved temporary slaughterhouses to make the point that they protected animal welfare sufficiently. He directly criticises the Regulation for its arguably disproportionate criteria in this respect: see in particular at 127.

Religious slaughter falls squarely within the European Convention of Human Rights Article 9’s freedom of religious expression. It is clear that the AG believes that the ban on unstunned slaughter other than in approved abattoirs, in the name of animal welfare or otherwise,  offends freedom of religious expression to such a degree that it simply must not pass: para 133 and the preceding argumentation is very clear.

The AG’s reasoning holds all the more for a total ban un unstunned slaughter full stop. That is the clear implication of this Opinion and one which must be welcomed.

Guten Rutsch ins neue Jahr!

Geert.

Implementation of the EAPO in Greece

Conflictoflaws - mer, 12/27/2017 - 16:44
By virtue of Article 42 Law 4509/2017, a new provision has been added to the Code of Civil Procedure, bearing the title of the EU Regulation. Article 738 A CCP features 6 paragraphs, which are (partially) fulfilling the duty of the Hellenic Republic under Article 50 EAPO. In brief the provision states the following:
  • 1: The competent courts to issue a EAPO are the Justice of the Peace for those disputes falling under its subject matter jurisdiction, and the One Member 1st Instance Court  for the remaining disputes. It is noteworthy that the provision does not refer to the court, but to its respective judge, which implies that no oral hearing is needed.
  • 2: The application is dismissed, if
  1. it does not fulfil the requirements stipulated in the Regulation, or if
  2. the applicant does not state the information provided by Article 8 EAPO, or if
  3. (s)he does not proceed to the requested amendments or corrections of the application within the time limit set by the Judge.

Notice of dismissal may take place by an e-mail sent to the account of the lawyer who filed the application. E-signature and acknowledgment of receipt are pre-requisites for this form of service.

The applicant may lodge an appeal within 30 days following notification. The hearing follows the rule established under Article 11 EAPO. The competent courts are the ones established under the CCP.

  • 3: The debtor enjoys the rights and remedies provided by Articles 33-38 EAPO. Without prejudice to the provisions of the EU Regulation, the special chapter on garnishment proceedings (Articles 712 & 982 et seq. CCP) is to be applied.
  • 4: If the EAPO has been issued prior to the initiation of proceedings to the substance of the matter, the latter shall be initiated within 30 days following service to the third-party.

If the applicant failed to do so, the EAPO shall be revoked ipso iure, unless the applicant has served a payment order within the above term.

  • 5: Upon finality of the judgment issued on the main proceedings or the payment order mentioned under § 4, the successful EAPO applicant acquires full rights to the claim.
  • 6: The liability of the creditor is governed by Article 13 Paras 1 & 2 EAPO. Article 703 CCP (damages against the creditor caused by enforcement against the debtor) is applied analogously.

Some additional remarks related to the Explanatory Report would provide a better insight to the foreign reader.

  1. There is an explicit reference to the German and Austrian model.
  2. The placement of the provision (i.e. within the 5th Book of the CCP, on Interim Measures) clarifies the nature of the EAPO as an interim measure, despite its visible connotations to an order, which is regulated in the 4th chapter of the 4th Book, on Special Proceedings. Nevertheless, the explanatory report acknowledges resemblance of the EAPO to a payment order.
  3. There is no need to provide information on the authority competent to enforce the EAPO, given that the sole person entrusted with execution in Greece is the bailiff.

The initiative taken by the MoJ is more than welcome. However, a follow-up is imperative, given that Article 738 A CCP does not provide all necessary information listed under Article 50 EAPO.

Mutual Recognition and Enforcement of Civil and Commercial Judgments among China (PRC), Japan and South Korea

Conflictoflaws - mar, 12/26/2017 - 11:58

This report is provided by Dr. Wenliang Zhang, who is currently a lecturer in the Law Scool of Renmin U, China (PRC).

Against the lasting global efforts to address the issue of recognition and enforcement of civil and commercial judgments (“REJ”), some scholars from Mainland China, Japan and South Korea echoed from a regional level, and convened for a seminar on “Recognition and Enforcement of Judgments between China, Japan and South Korea in the New Era”. The seminar was held in School of Law of Renmin University of China on December 19, 2017 and the participants were involved in discussing in depth the status quo and the ways out in relation to the enduring REJ dilemma between the three jurisdictions, especially that between China and Japan.

Unfortunately, despite the immense volume of civil and commercial interactions, China and Japan have been stuck in the REJ deadlock ever since China first refused to recognize Japanese judgments in the infamous 1994 case Gomi Akira. After this misfortune, both Chinese and Japanese courts have waged rounds of repeated refusals or revenges, forming a vicious circle in the guise of the so-called reciprocity. The Sino-Japanese REJ stalemate is considered to be illustrative of the most formidable blockades lying on the way to free movement of judgments. Between China and South Korea, the REJ future is promising. Although China refused to recognize, at least in one case, Korean judgments for lack of reciprocity, Korean courts have nevertheless recognized Chinese courts on a reciprocity basis. The positive move by Korean courts may well pave the way for Chinese courts to recognize Korean judgments in the future.

For smooth REJ, understanding must be ensured between the three jurisdictions and mutual trust should also be established. In light of China’s recent positive movement in applying reciprocity, there may exist a way out for the REJ deadlock if the other two jurisdictions could well join the trend. The papers presented for the seminar will appear in a special 2018 issue of Frontiers of Law in China:

1. Yuko Nishitani, Coordination of Legal Systems by Recognition of Judgments ? Rethinking Reciprocity in Sino-Japanese Relationships
2. Kwang Hyun Suk, Recognition and Enforcement of Foreign Judgments among China, Japan and South Korea: Korean Law Perspective
3. Qisheng He, Wuhan University Law School Topic: Judgment Reciprocity among China, Japan and South Korea: Some Thinking for Future Cooperation
4. Wenliang Zhang, To break the Sino-Japanese Recognition Feud – Lessons Learnt As Yet
5. Lei Zhu, The Latest Development on the Principle of Reciprocity in the Recognition and Enforcement of Foreign Judgments in China
6. Yasuhiro Okuda, Unconstitutionality of Reciprocity Requirement for Recognition and Enforcement of Foreign Judgments in Japan.

Trade Relations after Brexit: Impetus for the Negotiation Process – Joint Conference of EURO-CEFG, MaCCI and the University of Mannheim – Thursday, 25 January 2018 and Friday, 26 January 2018 at the Zentrum für Europäische Wirtschaftsforschung (ZEW),...

Conflictoflaws - sam, 12/23/2017 - 09:25

The upcoming negotiations regarding the United Kingdom’s exit from the European Union are of great interest to politicians, economists, the public and academics. The withdrawal agreement will set the course for the economic relations between the EU and the UK, while taking into account that it might have a considerable impact on the binding strengths of the European integration.

In this context, the Mannheim Centre for Competition and Innovation (MaCCI), a joint research initiative of the Faculty of Law of Mannheim University and the ZEW (Centre for European Economic Research) together with the European Research Centre for Economic and Financial Governance (EURO-CEFG) of the Universities of Leiden, Delft and Rotterdam will host an interdisciplinary conference on 25/26 January 2018 in Mannheim to raise crucial questions and challenges with respect to the Brexit negotiations and discuss them from both the legal and economic perspective.

The conference will consist of three parts, the first one dealing with the bargaining positions of the EU and the UK. The second part will look into the future relations: which type of trade agreement could serve as a model and what are the respective requirements and economic consequences? Lastly, the third part will focus on specific sectoral issues regarding for instance the future embodiment of cross-border trade and financial services or ensuring the unity of law.

Registration for this conference is possible here.

Find the detailed programme here.

The ECtHR rules on the compatibility with the right to respect for private and family life of the refusal of registration of same-sex marriages contracted abroad

Conflictoflaws - ven, 12/22/2017 - 17:49

 

By a judgment Orlandi and Others v. Italy delivered on December 14 the ECtHR held that the lack of legal recognition of same sex unions in Italy violated the right to respect of private and family life of couples married abroad.

The case concerned the complaint of six same sex-couples married abroad (in Canada, California and the Netherlands). Italian authorities refused to register their marriages on the basis that registration would be contrary to public policy. They also refused to recognize them under any other form of union. The complaints were lodged prior to 2016, at a time when Italy did not have a legislation on same-sex unions.

The couples claimed under articles 8 (right to respect of private and family life) and 14 (prohibition of discrimination) of the Convention, taken in conjunction with article 8 and 12 (right to marry), that the refusal to register their marriages contracted abroad, and the fact that they could not marry or receive any other legal recognition of their family union in Italy, deprived them of any legal protection or associated rights. They also alleged that “the situation was discriminatory and based solely on their sexual orientation” (§137).

Recalling that States are still free to restrict access to marriage to different sex-couples, the Court indicated that nonetheless, since the Oliari and others v. Italy case, States have an obligation to grant same-sex couples “a specific legal framework providing for the recognition and the protection of their same-sex unions” (§192).

The Court noted that the “the crux of the case at hand is precisely that the applicants’ position was not provided for in domestic law, specifically the fact that the applicants could not have their relationship – be it a de facto union or a de jure union recognized under the law of a foreign state – recognized and protected in Italy under any form” (§201).

It pointed out that although legal recognition of same-sex unions had continued to develop rapidly in Europe and beyond, notably in American countries and Australia, the same could not be said about registration of same-sex marriages celebrated abroad. Giving this lack of consensus, the Court considered that the State had “a wide margin of appreciation regarding the decision as the whether to register, as marriage, such marriages contracted abroad” (§204-205).

Thus, the Court admitted that it could “accept that to prevent disorder Italy may wish to deter its nationals from having recourse in other States to particular institutions which are not accepted domestically (such as same-sex marriage) and which the State is not obliged to recognize from a Convention perspective” (§207).

However, the Court considered that the refusal to register the marriages under any form left the applicants in “a legal vacuum”. The State has failed “to take account of the social reality of the situation” (§209). Thus, the Court considered that prior to 2016, applicants were deprived from any recognition or protection. It concluded that, “in the present case, the Italian State could not reasonably disregard the situation of the applicants which correspond to a family life within the meaning of article 8 of the Convention, without offering the applicants a means to safeguard their relationship”. As a result, it ruled that the State “failed to strike a fair balance between any competing interests in so far as they failed to ensure that the applicants had available a specific legal framework providing for the recognition and the protection of their same-sex union” (§ 210).

Thus, the Court considered that there had been a violation of article 8. It considered that, giving the findings under article 8, there was no need to examine the case on the ground of Article 14 in conjunction with article 8 or 12. (§212).

 

 

 

Bot AG in Fansites. No cheers for unified applicable data protection laws.

GAVC - jeu, 12/21/2017 - 10:10

Apologies for late reporting. Bot AG opined end of October in C‑210/16 Fansites. [The official name of the case is Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v Wirtschaftsakademie Schleswig-Holstein GmbH, in the presence of Facebook Ireland Ltd, Vertreter des Bundesinteresses beim Bundesverwaltungsgericht. It’s obvious why one prefers calling it Fansites].

The Advocate-General summarises (para 2-3) the case as involving ‘proceedings between the Wirtschaftsakademie Schleswig-Holstein GmbH, a company governed by private law and specialising in the field of education (‘the Wirtschaftsakademie’), and the Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein, a regional data-protection authority in Schleswig-Holstein (‘ULD’) concerning the lawfulness of an order issued by the latter against the Wirtschaftsakademie requiring it to deactivate a ‘fan page’ hosted on the website of Facebook Ireland Ltd. The reason for that order was the alleged infringement of the provisions of German law transposing Directive 95/46. Specifically, visitors to the fan page were not warned that their personal data are collected by the social network Facebook (‘Facebook’) by means of cookies that are placed on the visitor’s hard disk, the purpose of that data collection being to compile viewing statistics for the administrator of the fan page and to enable Facebook to publish targeted advertisements.’

The case ought to clarify the extent of the powers of intervention of supervisory authorities such as ULD with regard to the processing of personal data which involves the participation of several parties (at 13). I had flagged earlier that this case is relevant to the jurisdictional and applicable law issues involving datr cookies.

Whatever the outcome of the case, its precedent value will be limited by the imminent entry into force of the new General Data Protection Regulation – GDPR. The GDPR clearly introduces a ‘one-stop principle’ with only one lead authority (in FB’s case, Ireland’s data protection agency) having the authority to act (see also the AG’s observation of same in para 103).

As prof Lorna Woods in excellent analysis observes, the issue comes down to the interpretation of the phrase from Art. 4(1)(a), ‘in the context of the activities of an establishment’. Dan Svantesson has most superb analysis of Article 4(1)(a) here, anyone interested in the issue will find his insight most helpful.

Now, the Advocate-General leans heavily on Weltimmo however I would suggest its precedent value for the Fanpages case is constrained. Weltimmo concerned a company set up in Slovakia but with no relevant activities at all in that Member State. Indeed as the Court itself observed (at 16-18) , the company was effectively male fide (my words, not the CJEU’s) moving its servers and creating fog as to its exact whereabouts. In other words a case of blatant abuse. There is no suggestion of abuse in Fanpages. Moreover according to the CJEU in C-230/14 Weltimmo the phrase ‘in the context of the activities of an establishment’ cannot be interpreted restrictively (AG’s reference in para 87), yet that CJEU holding in Weltimmo cross-refers to Google Spain in which the crucial issue was whether EU data protection laws apply at all. That is very different in Weltimmo and in Fanpages. That EU authorities have jurisdiction and that EU privacy law applies is not at issue.

There is sufficient argument to find in the Directive, even before its transformation into the GDPR, that in cases such as these the same processing operation ought to be governed by the laws of just one Member State. It would be good for the CJEU to recognise that even before the entry into force of the GDPR.

Geert.

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

 

 

HCCH 125 — Ways Forward: Challenges and Opportunities in an Increasingly Connected World

Conflictoflaws - mer, 12/20/2017 - 10:47

By the Permanent Bureau of the Hague Conference on Private International Law (HCCH)

Register your interest now at www.HCCH125.org, and receive all the latest information about the global conference “HCCH 125 — Ways Forward: Challenges and Opportunities in an Increasingly Connected World”.

This global conference gathers world-leading experts who will discuss the opportunities for, and challenges to, private international law. Through interactive “Davos Style” sessions, participants will not only hear from these experts, but can also participate actively in each session.

The key note speaker Prof Jürgen Basedow, emeritus at the Max Planck Institute for Comparative and International Private Law, will be joined by a stellar cast of confirmed moderators and speakers, including Sir Lawrence Collins, Lord Collins of Mapesbury; Professor Richard Fentiman; Professor Linda Silberman and many other distinguished authorities, hailing from practice, judiciary and government. The up-to-date list of all experts will be available soon on the website.

The event, which will be held in Hong Kong SAR, China, from 18 -20 April 2018, and is organised by the HCCH with the generous support of the Department of Justice of Hong Kong SAR, will give all participants the unique opportunity to hear from world-leading experts and contribute actively to a discussion of the future of private international law and the evolution of the Hague Conference on Private International Law, which celebrates its 125th Anniversary in 2018.

You can also keep up-to-date with the HCCH in its quasquicentennial year by following the Organisation’s dedicated Facebook (https://www.facebook.com/HCCH125/) and LinkedIn (https://www.linkedin.com/showcase/hcch-125/) pages.

Eli Lilly v Genentech: When does a patent infringement case turn into questions of validity? – and its impact on cost findings.

GAVC - mer, 12/20/2017 - 09:09

I explained the issue in [2017] EWHC 3104 (Pat) Eli Lily v Genentech in my posting on Chugai v UCB. A defendant in a patent infringement case often tries to make the case that the suit is about patent infringement really: for this obliges the court per GAT v Luk to refer (only the) invalidity issue to the court with exclusive jurisdiction under Article 24(4) Brussels I Recast.

Here, Eli Lily seek a declaration of non infringement of a bundle of European patents held by Genentech, a US-incorporated firm.

Birss J in the case summarises all relevant precedent, including Chugai, to reach the conclusion that the suit can stay in the UK.

Of note is his holding on costs. The English courts do not just review whether the case is currently about validity but also what the likelihood is that it will become one on validity. For if it does later on, Birss J suggests ‘this entire exercise will have been something of a charade‘ (at 84). (Which is not quite the case: even if the validity issue needs to be temporarily outsourced to different courts, the infringement issue may later return to the courts of England).

On this point, Eli Lilly refuse to disclose whether they may seek a ruling on the validity of the patents: they would rather wait to see Genentech’s defence. Not an unacceptable position, but one, High Court does warn, which will have an impact on costs. At 87: ‘I am satisfied that these unusual circumstances mean that it would not be fair to pre-empt what each party may decide to do. There are sufficient uncertainties that the right thing to do is wait and see what happens. However in my firm but necessarily provisional view that wait should be at Lilly’s risk as to costs. If Genentech does counterclaim for infringement, and validity of the non-UK patents is put in issue (here or abroad) in response, then it is very likely that Lilly should bear the whole costs of this application even if they win it in its form today.

That latter point is interesting. It’s twice now this week that judgments come to my attention where jurisdictional considerations are clothed in costs implications.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.7.

 

Surveys on Functioning Brussels I-bis Regulation

Conflictoflaws - mar, 12/19/2017 - 14:02

As part of a research, financed by an Action Grant of the European Commission, on the amendments of the Brussels I-bis Regulation and the functioning in legal practice, questionnaire are available. The research is conducted by the Asser Institute (the Hague), Erasmus School of Law and the Leibniz Institute (Amsterdam). The researchers are extremely grateful if you could fill these out or forward these to others that might be interested.

The survey is available in Dutch, English, French and German.

 

 

 

New publications on the Hague Conference (HCCH) and the Global Horizon of Private International Law

Conflictoflaws - dim, 12/17/2017 - 11:40

Former Secretary General of the Hague Conference on Private International Law (HCCH), Hans van Loon, has just published an article on the HCCH and a Chinese translation of his inaugural lecture on the global horizon of private international law delivered at the 2015 Session of the Hague Academy:

– Hans van Loon, “At the Cross-roads of Public and Private International Law – The Hague Conference on Private International Law and Its Work”, in Collected Courses of the Xiamen Academy of International Law, Vol. 11, pp. 1-65, (Chia-Jui Cheng, ed.), Brill/Nijhoff, 2017 (available via Brill).

Contents:

  1. Role and Mission of the Hague Conference on Private International Law
  2. Origin and Development of the Hague Conference
  3. The impact of Contemporary Globalisation
  4. Hague Conventions Promoting Global Trade, Investment and Finance
  5. Hague Conventions Promoting Administrative and Judicial Cooperation
  6. Hague Conventions Promoting Personal Security and Protecting Families in Cross Border Situations
  7. Outlook – (Potential) Significance of the Hague Conference and Its work for the Asia-Pacific Region.

– Chinese translation (by Prof. Zhang Meirong and Prof. Wu Yong) of Hans van Loon’s Inaugural Lecture, “The Global Horizon of Private International Law” given at the 2015 Session of the Hague Academy of International Law, Recueil des Cours, Vol. 380, in Chinese Review of International Law 2017, vol. 6, pp. 2-52, vol. 6), for more information see http://www.guojifayanjiu.org/.

Excerpt of table of contents:

Chapter I. The development of private international law against the backdrop of the evolving nation-State

  1. Origins and early development of private international law
  2. Birth of the Hague Conference on private international law
  3. Establishment of the Hague Conference as an international organization – early innovations
  4. Globalization – its effects on the nation-State

Chapter II. The impact of globalization on the development of private international law

  1. Rising profile, proliferation of sources, new approaches
  2. Commerce and trade: party autonomy within limits
  3. Families and children: direct transnational institutional co-operation and interaction with human rights

Chapter III. Global challenges for private international law on the horizon

  1. People on the move
  2. Environment and climate change

Some general conclusions

Japan adopts effects doctrine in antitrust law

Conflictoflaws - sam, 12/16/2017 - 01:01

For a long time, Japan refused to extend application of its antitrust laws to foreign cartels, even those with an impact on the Japanese market. Following a 1990 Study Group Report recommending adoption of the effects doctrine, the Japanese Fair Trade Commission has increasingly applied Japanese antitrust law extraterritorially, as Marek Martyniszyn reports in a helpful recent article. Now the Japanese Supreme Court has upheld a series of judgments from the Tokyo High Court, thereby effectively adopting the effects doctrine. The doctrine appears to go very far: according to the report, the cartel had reached its price-fixing agreement in Southeast Asia, and affected products had been purchased by Southeast Asian units and subcontractors rather than the Japanese companies themselves.
An earlier article, including more detailed comment on the decision by the Tokyo High Court is Tadashi Shiraishi, Customer Location and the International Reach of National Competition Laws, (2016) 59 Japanese Yearbook of International Law, 202-215 (published 2017) (SSRN). The author of the article was involved in the litigation.

Functioning of the ODR Platform: EU Commission Publishes First Results

Conflictoflaws - ven, 12/15/2017 - 18:22

By Emma van Gelder and Alexandre Biard, Erasmus University Rotterdam

(PhD and postdoc researchers ERC project Building EU Civil Justice)

On 13 December 2017, the European Commission published a report on the functioning of the Online Dispute Resolution (ODR) Platform for consumer disputes, and the findings of a web-scraping exercise of EU traders’ websites that investigated traders’ compliance with their information obligations vis-à-vis consumers.

In 2013, two complementary and intertwined legislative instruments – the Consumer ADR Directive (Directive 2013/11/EU) and the ODR Regulation (Regulation 524/2013) – were adopted to facilitate the out-of-court resolution of consumer disputes in the EU. Among other things, the Consumer ADR Directive has promoted a comprehensive landscape of high quality ADR bodies operating across the EU, and the ODR Regulation has established an ODR platform that offers consumers and traders a single point of entry for complaints arising out from online sales and services. The ODR platform is operational since 15 February 2016.

Data about claims lodged between 15 February 2016 and 15 February 2017 reveals:

  • 1,9 million individuals visited the ODR platform, proving the considerable level of coverage and uptake of the platform, as well as a high level of awareness among consumers and traders;
  • Consumers submitted more than 24,000 complaints via the ODR platform. Reasons for complaining included problems with the delivery of goods (21%), non-conformity issues (15%) and defective goods (12%). 1/3 of complaints related to cross-border issues;
  • 85 % of cases were automatically closed within 30 days after submission, which is the deadline for consumers and traders to agree on a competent ADR body. A large number of traders ultimately did not follow through using the ODR platform. However, it appears that 40% of consumers were bilaterally contacted by traders to solve their problems outside the scope of the ODR platform. As the European Commission highlights, the ODR platform has thus behavioural effects on traders and ‘consumers’ mere recourse to the ODR platform has a preventive effect on traders that are more inclined to settle the dispute rapidly without taking the complaint to a dispute resolution body through the ODR platform workflow’;
  • 9 % of complaints were not closed by the system, but refused by the trader. For 4% of them, parties both pulled backed before they reached an agreement with the ADR entity;2% of complaints were submitted to an ADR body. In half of these cases, the ADR body refused to deal with the case on procedural grounds (e.g. lack of competence or consumer’s failure to contact the trader first). In the end, only 1% of the cases reached an outcome via an ADR entity.

In parallel, the web-scraping exercise of 20,000 traders’ websites was conducted between 1 June and 15 July 2017. It aimed to investigate traders’ compliance with their information obligations, which include in particular the obligation to provide consumers with an easily accessible electronic link to the ODR platform on their websites, and an email address that consumers may use to submit complaint against them on the ODR platform. Key findings of can be summarized as follows:

  • Only 28% of controlled websites included a link to the ODR platform. Compliance ultimately depended on traders’ size (e.g., 42% of large traders included a link vs. 14% of small traders), location (e.g., 66% of online traders located in Germany provided a link vs. 1% in Latvia), and sectors (e.g., 54% in the insurances sector vs. 15% of ‘online reservations of offline leisure’);
  • 85% of investigated traders provided an email address;
  • Accessibility to the ODR link appears still limited: for 82% of websites, the link to the ODR platform was included in the Terms & Conditions, which for consumers might be difficult to retrieve considering the risk of information overload.

The EU Commission now intends to take actions to solve the identified issues. In particular, it will cooperate with national authorities to solve technical issues, and maximize the use of the platform with the view to strengthening its contribution to the development of the Digital Single Market.

Save the Date: Second German Conference for Young PIL Scholars “Private International Law between Tradition and Innovation” on 4/5 April 2019

Conflictoflaws - ven, 12/15/2017 - 11:52

By Stephan Walter, Research Fellow at the Research Center for Transnational Commercial Dispute Resolution (TCDR), EBS Law School, Wiesbaden, Germany.

In light of the success of the first German conference for young PIL scholars, held in April 2017 in Bonn (see the recent announcement of the conference volume as well as the conference report), we would like to continue the academic and personal exchange with a second conference. It will take place on 4 and 5 April 2019 at the University of Würzburg (Germany). The key note will be given by Professor Jürgen Basedow (emeritus director at the Max Planck Institute for Comparative and International Private Law).

The conference theme will be

“Private International Law between Tradition and Innovation”
– German title: “IPR zwischen Tradition und Innovation” –

Today, anyone working on questions of private international law finds an area of law that is highly differentiated, shaped by theory, and characterized by a complex network of legal sources. It is up to young scholars in particular to question these structures, mechanisms and methods, which have been consolidated in over a hundred years of academic discourse and legal evolution. New political, social, and technological developments also provide an opportunity to take a fresh look at established approaches and possibly outdated solutions. In short, the relationship between tradition and innovation in private international law requires close scrutiny.

Against this backdrop, we are inviting contributions that address the tension inherent in the conference theme, that question dated rules and methodological approaches, or that engage with new problems and challenges for PIL, such as mass migration, digitization, gender identities or modern forms of family. For this purpose, we understand PIL in a broad sense that includes questions of conflict of laws, international civil procedure, arbitration and uniform law.

Papers that are selected for presentation will be published in a conference volume by Mohr Siebeck. Presentations should take about 30 minutes and ideally be in German. The call for papers will be published in spring 2018.

Questions may be directed to ipr-nachwuchstagung@jura.uni-wuerzburg.de. For further information, please visit https://www.jura.uni-wuerzburg.de/lehrstuehle/rupp/tagungen/ipr_nachwuchstagung/.

Rulings on costs and their impact on the effet utile of EU civil procedure. The High Court in PABLO STAR re copyright infringement.

GAVC - jeu, 12/14/2017 - 17:05

In [2017] EWHC 2541 (IPEC) Pablo Star Media v Richard Bowen the issue was one over copyright infringement relating to a photograph of Dylan Thomas. Of interest to this blog is not the copyright issue or the height of damages relating to same – I am not a specialist in that area. (As far as the jurisdictional issues are concerned, there is a slightly muddled reference to the Brussels I Recast and various other Regulations including Regulation 542/2014 which I discussed here).

What did trigger my interest, though, is the ruling on costs.

At 33-34 Hacon J quotes the District Judge’s reasoning for obliging claimant (Pablo Star) to pay part of the defendant’s cost, despite having won the case. In that cost award, the District Judge scolds claimant for having initiated proceedings in Ireland as well as the UK, and for considering (or threatening, as the case may be) litigation in the US. The High Court at 38 and 41 leaves aside the proceedings in Ireland as a factor to consider, and now limits the reasoning for the award on cost to the potential proceedings in the US.

Now, costs determination largely is within the realm of national rules of civil procedure. Sometimes, EU and /or international law has a direct impact on cost determination, such as for instance in the case of Aarhus and environmental litigation; or, importantly for the case at issue, Directive 2004/48 on intellectual property rights enforcement (the enforcement Directive). This Directive provides in Article 14 on legal costs

‘Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.’

That Directive was applied in CJEU C-57/15 UVP v Telenet, expressly condemning Belgium’s restrictive regime on cost recovery in intellectual property cases. The High Court’s finding on cost may to my mind be at odds with that ruling.

More generally, the District Judge’s reference to claimant’s Irish proceedings contributing to the judge’s finding on cost, without a doubt is an infringement of the effet utile of the EU’s jurisdictional regimes. Claimant has a certain right to sue in Ireland and that possibility must in no way be disciplined.  Hacon J at the High Court, purposely or not, may have insulated himself from criticism at this point, by leaving the Irish proceedings outside the consideration and only referring to the threat of US proceedings as relevant for partially shifting costs to the plaintiff.

Absolute numbers in the case are not high. Yet the principle to my mind deserves right to appeal at the CA and, from there on, potentially to the CJEU.

Geert.

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