Droit international général

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

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

Geert.

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

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

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

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

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

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

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

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

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

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

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

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

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

Pitt Law’s CILE will once more be co-sponsoring the Summer School in Transnational Commercial Agreements, Litigation, and Arbitration in Vicenza, Italy, beginning June 4 and ending June 8, 2018.

All classes will be in English, and as in prior years we expect to have the School approved for up to 24 hours of Pennsylvania Continuing Legal Education credit (22 substantive and 2 ethics). The instructors include Ronald A. Brand (Professor, University of Pittsburgh), Serena Corongiu (Lawyer, AIGA Representative), Francesco Cortesi (Judge, Italian Supreme Court), Aldo Frignani (Professor, University of Turin), Paul Herrup (Department of State, United States of America), Luca Radicati di Brozolo (Professor, Catholic University, Milan; Fountain Court Chambers, London), Francesca Ragno (Professor, University of Veorna), Marco Torsello (Professor, University of Verona), Matteo Winkler (Professor, HEC Paris).

The program is available here

Teemu Juutilainen from the University of Helsinki has just published an interesting book on “Secured Credit in Europe: From Conflicts to Compatibility” (Hart Publishing, 2018). It sets out to to develop an optimal division of labour between private international law and substantive unification or harmonisation in the area of security rights over tangible movables and receivables:

This monograph seeks the optimal way to promote compatibility between systems of proprietary security rights in Europe, focusing on security rights over tangible movables and receivables. Based on comparative research, it proposes how best to tackle cross-border problems impeding trade and finance, notably uncertainty of enforceability and unexpected loss of security rights. It offers an extensive analysis of the academic literature of more recent years that has appeared in English, German, the Scandinavian languages and Finnish. The author organises the concrete means of promoting compatibility into a centralised substantive approach, a centralised conflicts-approach, a local conflicts-approach and a local substantive approach. The centralised approaches develop EU law, and the local approaches Member State laws. The substantive approaches unify or harmonise substantive law, while the conflicts approaches rely on private international law. The author proposes determining the optimal way to promote compatibility by objective-based division of labour between the four approaches. The objectives developed for that purpose are derived from the economic functions of security rights, the conditions for legal evolution and a transnational conception of justice.

For more information visit the publisher’s website.

The UK Supreme Court held in [2018] UKSC 19 JSC BTA Bank v Khrapunov late March. Defendant is based in Switzerland, hence triggering the Lugano Convention. Addleshaw Goddard have the history of the case and I am happy to refer for those facts. Suffice to say that at the core is a claim in tort of conspiracy, alleging that Mr Khrapunov and his father in-law Mr Ablyazov conspired to injure the Bank by preventing it from enforcing its judgments against Mr Ablyazov’s assets.

First let’s have a look at was not discussed at the SC: domicile and locus damni. As for the former, domicile once held but now fleed from was correctly rejected by Teare J as establishing domicile under Lugano (or indeed Brussels). The argument that jurisdiction should, nevertheless, be taken still to be domiciled in England because defendant was in breach of an obligation under the worldwide freezing order prohibiting him from leaving the jurisdiction, was likewise rejected. An interesting proposition though.

Now, for the location of the locus damni. At 29 the SC refers to the Bank’s argument at the High Court and Court of Appeal stage. The Bank’s argument was that the damage occurred in England. This was based on the contention that its worldwide freezing order and its judgments against Mr Ablyazov were located here and had been reduced in value by the alleged conduct in relation to assets in other jurisdictions. The High Court and Court of Appeal considered that the element of damage proximate to the harmful event was the Bank’s inability or reduced ability to execute against those assets in the places where they were located.  Another fine example of the difficult implications of Bier and not one which the CJEU has hitherto had the occasion to review. (But current case will not reach it).

As for locus delicti commissi, the Bank submit that the event giving rise to the damage was the conspiracy itself, which was hatched in England. At the High Court Teare J rejected this submission, because he considered that the cause of the damage was not the conspiracy but its implementation: a suggestion I like in the context of competition law, as readers of the blog will be aware. Teare J was not followed by the Court of Appeal though, which identified the place where the conspiratorial agreement was made as the place of the event which gives rise to and is at the origin of the damage.

The SC refers to CJEU authority to conclude with CDC and at 41 it reiterates the CA’s core reasoning: ‘As Sales LJ explained (at para 76), in entering into the agreement Mr Khrapunov would have encouraged and procured the commission of unlawful acts by agreeing to help Mr Ablyazov to carry the scheme into effect. Thereafter, Mr Khrapunov’s alleged dealing with assets the subject of the freezing and receivership orders would have been undertaken pursuant to and in implementation of that agreement, whether or not he was acting on instructions from Mr Ablyazov.’

The Supreme Court concludes that the making of the agreement in England should be regarded as the harmful event which set the tort in motion. 

The judgment keeps open many issues, however. For starters, to have a sole birthplace of conspiratorial agreement is handy in the case at issue however it is likely not often to be so clearly the case (as Dan and Tom point out, particularly not in a digital context). Moreover, for those instances where Mr Khrapunov were not to be acting on instructions from Mr Ablyazov, questions of ultra vires so to speak and hence of a separate tort would arise.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

A flag simply to lead readers to a recent textbook application of Spiliada forum non conveniens authority: Moulder J in [2018] EWHC 1078 (Comm) KMG v Chipper.

Geert.

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

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

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

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

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

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

For more information see the Call for Papers.

The Conference “Eurolanguage in Private International Law. Legislating, translating and  applying”, which will take place next June 14 in Tarragona, is an interdisciplinary forum for lawyers and scholars in the field of private international law, comparative law and private law to establish fruitful discussions with scholars and practitioners in the areas of legal language and translation, with the personnel from international institutions, academics and professionals.

The aim is to reflect on the possible establishment and impact of a European legal language framed within the area of private international law (PIL). The ground rules of European PIL are enshrined in European regulations, but also directives, which are discussed in the legislative process using, a priori, the 24 official languages in a context of integral multilingualism. As a result, EU rules in 24 language versions are applicable in all 28 Member States.

The analysis will focus on the linguistic issues pertaining to drafting the EU rules; the tools, techniques, and problems in translating the linguistic versions of the rules; whether interlinguistic coherence is achieved; and the legal-linguistic issues the legal operators of Member States face when applying European rules on PIL norms coexisting with other rules of conventional and domestic origin.

Click here to access the PROGRAM .

Venue: Congress will take place at the Sala de Juntes of Universitat Rovira i Virgili Campus Catalunya. (information to get there is provided here)

PAPERS SUBMIT

Topics: The organizers invite proposals on several issues related to the general topic. Check “Call for papers” document on the congress website: http://www.dret-privat.urv.cat/jornades-i-congressos/eurolenguaje/

Formal requirements: 500-600 word-long abstracts and 5 keywords in a MS Word file.

Languages: Spanish and English.

Deadline and address for submissions: Proposals may be submitted until 21 May, 2018. Proposals should be sent to: mireia.eizaguirre@urv.cat, who will confirm reception.

Confirmation of acceptance and oral presentation: All authors will receive an email with the decision by 25 May, 2018: proposals may be accepted to be presented orally (10 minutes); accepted not to be presented orally; or rejected.

Publication: Accepted papers, presented or not, will be published in a collective volume as long as they are positively assessed in the relevant blind review.

REGISTRATION

Registration: authors of accepted proposal should complete registration by 8th June 2018. Registration will be valid after payment on a € 50 fee credited to the account number: BANCO BILBAO VIZCAYA, IBAN: ES9601826035450201605723.

SWIFT: BBVAESMMXXX. Proof of payment should be sent to: mireia.eizaguirre@urv.cat.

Following fierce consultations, deliberations and debates, a new law has been passed by the Hellenic Parliament on improving adoption and foster care procedures. The law introduces a new institution: The National Foster Care & Adoption Council, and contains provisions on the requirements and procedures for foster care, thus, enriching the existing landscape embedded in the Civil Code since 1996. It also establishes two national registries:  The National Registry of adoptive applicants and the National Registry of adoptions.

The bone of contention was however the ‘window’ opened by the new legislation under Article 8, i.e. the right of same-sex partners to become foster parents. After a couple of weeks full of tension in the press and the Parliament, the Government moved on and secured the necessary majority for passing the provision.

This is yet another step towards full equivalence of same-sex with heterosexual couples. It was preceded by the introduction of same-sex partnerships in 2015, as an aftermath of the country’s condemnation by the ECHR in the Vallianatos ruling. Still, same-sex marriage is not, and will seemingly not be allowed for quite some time in the future, given that the Supreme Court has ruled out this possibility end last year.

Finally, it should be noted that Greece has recently enacted  legislation allowing the out of court dissolution of marriage in mutual consent, and abolished the compulsory application of Sharia law for Greek Muslims.

The IACPIL (Interdisciplinary Association of Private International and Comparative Law) and the University of Vienna invite to a lecture by Prof. Budzikiewicz (in German).

Whereas private divorces were mostly executed outside Europe, nowadays Italian, French as well as Spanish law allow a contractual divorce. The lecture addresses to what extent private divorces can be valid outside the enforcing state. The recognition can be relevant in different cases, e.g. another marriage is aspired or legal questions concerning the right of maintenance, tax law as well as law of succession arise.
The CJEU recently ruled that the Rome III regulation is not applicable to a marriage divorced by a spiritual court in a third country. In this respect the lecture focuses on how private divorces are to be treated with regard to private international law and international procedural law.

The flyer can be found here

Where: University of Vienna, Juridicum, Schottenbastei 10-16, 1010 Vienna, SEM 20
When: 17 May 2018, 6 p.m.
The event is free but registration is required (office@igkk.org).

In [2018] EWHC 380 (Comm) UCP Plc v Nectrus Limited Cockerill J takes the same conclusion on the new lis alibi pendens rule ex-EU in the Brussels I Recast, which I had suggested in the Handbook (p.182). A court in a Member State seized of an action other than those based on Articles 4, 7, 8 or 9 cannot refuse jurisdiction in favour of a court based ex-EU.

From Herbert Smith’s summary of the case: Nectrus, a Cypriot company, commenced proceedings in the Isle of Man seeking payment of sums withheld by UCP, an Isle of Man company, on the sale of a company, Candor. UCP then commenced proceedings in England claiming that Nectrus was in breach of an Investment Management Agreement (IMA), the loss being the amount by which the sale consideration of Candor had been reduced, hence the amount withheld on its sale.

The IMA contained a non-exclusive jurisdiction agreement in favour of the English courts. UCP disputed the jurisdiction of the Manx court, but in the event the proceedings continued, indicated they would raise the cause of action relied on in the English proceedings by way of equitable set off. Nectrus disputed their right to do so.

Nectrus disputed the jurisdiction of the English court on the basis that the Manx courts were the most appropriate forum to determine the dispute and were first in time.

Other than for the articles listed above, the CJEU’s findings in Owusu continue to apply. That includes English jurisdiction on the basis of non-exclusive choice of court, covered by Article 25 of the Recast Regulation. Justice Cockerill is entirely correct in unhesitatingly (at 39) rejecting forum non conveniens.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.4 (International impact of the Brussels I Recast Regulation), Heading 2.2.14.5.2.

Bobek AG opined about a little while ago in C-27/17 flyLAL. (Readers may also find my recent posting on NBK useful, re Article 7(5)).

AB flyLAL — Lithuanian Airlines (‘flyLAL’) operated flights from Vilnius airport in Lithuania until it was put into liquidation. According to flyLAL, its demise was caused by predatory (that is, below cost) pricing by the Latvian airline Air Baltic Corporation A/S (‘Air Baltic’). That predatory pricing was, it is alleged, part of an anticompetitive strategy agreed between Air Baltic and the operator of Starptautiskā lidosta Rīga (Riga international airport in Latvia, ‘Riga Airport’). Thus, Riga Airport and Air Baltic agreed to drastically reduce the prices paid by Air Baltic for services at Riga airport. The savings were then used by Air Baltic to finance the predatory pricing that drove flyLAL out of the market in Vilnius, Lithuania.

Can Air Baltic and Riga Airport for damages before the courts in Vilnius? The national court and parties refer to three alleged infringements of competition law: (i) abuse of dominance consisting in the system of reductions implemented by Riga Airport; (ii) an anticompetitive agreement between Riga Airport and Air Baltic; and (iii) abuse of dominance in the form of predatory pricing by Air Baltic. Those infringements, it is argued, were interrelated, forming part of a strategy to oust flyLAL from the market in Vilnius and move passengers to Riga airport to the benefit of both Riga Airport and Air Baltic.

There is a lot in the Opinion – among others because as the AG points out, the referring court’s description of the alleged infringement of competition law is not entirely clear. Bobek therefore sets out a set of variables. The Court itself is bound not to distinguish among quite so many. Of note are the AG’s suggestions

• that locus damni here is not place of financial loss, rather the place within the markets affected by the competition law infringement where the claimant alleges loss of sales.That suggestion in my view is helpful for neither the Regulation’s aim of predictability, nor the protection of those damaged by infringement of competition law (the latter not however a stated aim of the Regulation). Put differently: damage located in a Mozaik fashion assists the tortfeasor. The Advocate General reaches this conclusion after a thorough revisit of the initial Bier judgment (and Capotorti AG’s Opinion in same), ditto Marinari and Dumez France. Yet the continuing need to conceptualise the Court’s Bier rule illustrates again in my view the mistake made in that original judgment, to introduce a forum damni despite the utter lack of textual support for same.
• for locus delicti commissi with full jurisdiction, the AG distinguishes between Article 101 TFEU (as regards the alleged anticompetitive agreement between Air Baltic and Riga Airport, the place of the event giving rise to the harm (that is, the loss of sales by flyLAL), is the place of the conclusion of the agreement) and 102 TFEU (alleged predatory pricing by Air Baltic, the place of the event giving rise to the harm is the place where the predatory prices were offered and applied).  With respect to Article 101 TFEU, Bobek AG suggests this is identical to the Court’s judgment in CDC . I am not too sure but I am biased. As I noted above, in my view the Court should steer clear of an application of Article 7(2) which allows those infringing competition law to forum shop by manipulating the place of decision-making. In CDC the Court held that ‘the identification, in the jurisdiction of the court seised of the matter, of a specific event during which either that cartel was definitively concluded or one agreement in particular was made which was the sole causal event giving rise to the loss allegedly inflicted on a buyer’ cannot be ruled out. That implies that in other cases the identification of such singular event can be ruled out and that many places may be consider locus delicti commissi.  
• finally with respect to (now) Article 7(5), the activities of a branch. The AG does not specify what must be meant by a ‘branch’ – for the national court has already concluded there is such branch. The Advocate General here is perhaps unusually deferential to the factual finding. Whether there is a sufficient nexus between the activities of the branch and the dispute, in the case of tort-based claims requires the branch participate in at least some of the actions constituting the tort (at 137). Offering the fixed prices or otherwise having been instrumental in concluding contracts for services at those prices suffices. In such cases, the branch has again participated in the commission of an act that constitutes a necessary precondition for the abuse (at 142).

A lengthy opinion. And it all started with the fairly straightforward facts of Bier…

Geert.

(Handbook of) EU private international law), 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

William J. Moon has published an article titled “Regulating Offshore Finance” on SSRN. It can be accessed @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3153121.

The abstract is reproduced below:

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic scope of federal statutes have created a space for commercial actors to circumvent regulation by incorporating in offshore jurisdictions. Under this jurisprudence, financial transactions completed through offshore commercial entities are often, albeit not categorically, seen as “extraterritorial” transactions beyond the reach of federal statutes. This makes it increasingly difficult for private litigants to bring statutory claims designed to protect the workings of the market, even in cases that are predominantly connected to the United States. After documenting how offshore jurisdictions enable commercial entities to opt out of federal regulatory statutes, this Article critiques the Supreme Court’s recent extraterritoriality jurisprudence that risks breeding a cottage industry of private regulatory evasion.

Once in a while I post on State Immunity, one of my favourites sub-themes in same being waiver of immunity, whether by contractual provision or following submission. [2018] EWHC 385 (Comm) certain underwriters at Lloyds et al v Syrian Arabic Republic et al is a good illustration of the latter. How does one serve a state which is evidently in times of political unrest? And has that State submitted to jurisdiction hence waived immunity?

Claimants’ claim in the United States District Court arose from the 1985 hijacking of EgyptAir flight 648 and the loss to which that gave rise.  Adam Johnson and colleagues at Herbert Smith alerted me to the case and their review is excellent. Henshaw J held the former issue (service) very practically: DHL evidence of documents having been delivered to the relevant ministry suffices, even if acceptance of the documents is refused.

Assessment of submission was relevant for there is no Treaty between the US and the UK on recognition and enforcement – hence common law applies. In the absence of any Convention or other instrument for mutual recognition of judgments, a foreign judgment in personam can be recognised only if it was delivered by a court which had jurisdiction according to English private international law.  That means that the defendant must either have (i) been present in the foreign jurisdiction when proceedings were commenced, (ii) claimed or counterclaimed in those proceedings, (iii) previously agreed to submit to the jurisdiction, or (iv) voluntarily have submitted himself to the overseas court’s jurisdiction (see Rubin and another v Eurofinance SA [2013] 1 AC 236 § 7).

In the present case (i)-(iii) do not apply, so Claimants must show that the Defendants submitted to the US court’s jurisdiction. Which Henshaw J held they had. Of particular note for this blog is that he (at 59) rejects much authority for CJEU precedent, particularly C-150/80 Elefanten Schuh, held under the Brussels Convention. Even if Elefanten Schuh were to apply, Henshaw J does not believe it would have led to a different outcome. At 66 follows an extensive list of arguments leading to a conclusion of submission, with particular emphasis on Notices of Appeal, each of which included a merit-based objection to the judgment appealed from but contained no assertion that the US courts lacked jurisdiction by reason of, or that the claims were barred by, sovereign immunity.  The simple fact is that Syria at no stage made any such challenge, save very late in the process.

The judgment therefore is interesting firstly for its discussion of CJEU weight in residual conflict of laws; secondly for the Court’s view on submission and sovereign immunity – in my view very much the right one.

Geert.

The Department of Legal Studies of the Central European University (CEU) in Budapest and Jeantet & Partners (Paris) are organising a conference on: “The New Hungarian Arbitration Act – Views from Hungary and Abroad” on 17 May, 2018, 12:30pm – 6:30pm. The conference will be followed by a cocktail reception. This event will bring together arbitration experts from ten jurisdictions and seeks to provide a forum for discussion of the recently enacted new Hungarian Arbitration Act. It aims to inform participants of the most significant legislative changes and their practical implications. Particular emphasis will be put on a comparison of the new Hungarian Act with the arbitration laws of other jurisdictions. The organizing committee consists of Markus Petsche, Associate Professor, Department of Legal Studies, CEU; Ioana Knoll-Tudor, Partner, Jeantet & Partners, Paris; Davor Babic, Professor, Faculty of Law, University of Zagreb; and Csongor István Nagy, Professor, Faculty of Law, University of Szeged. For more detailed information regarding the conference program and registration, please click here.

In [2018] EWHC 887 (Comm) Bankas Snoras v Antonov et al, Eggers DJ considers the extent of the typical undertaking by party having obtained a worldwide freezing order, to seek permission from the English court before enforcing the order outside England and Wales or seeking an order “of a similar nature”. The need for permission underlines the appreciation of the English courts that worldwide freezing orders require some careful handling viz third States.

I am happy to refer to RPC‘s analysis for the general issues. I just wanted to turn the attention of readers of this blog to para 65 of the judgment, which considers lis alibi pendens. The claims in England (based on Article 4 Brussels I Recast – domicile of the defendants) are not the only ones that have been introduced: Lithuanian courts are engaged, too. ‘The English Civil Claim is for the in personam remedy of compensation against Mr Antonov and Mr Baranauskas arising out of an alleged breach of their duties as directors, officers or shareholders of Snoras. By contrast, the Lithuanian Civil Claim is not based on alleged breaches of directors’ duties. Instead, there are two bases of claim in the Lithuanian Civil Claim, namely (1) a claim for in personam relief under the law of unjust enrichment because there was no commercial justification for the various transactions, seeking the reversal of that unjust enrichment; and (2) a claim for a declaration that the various transfer instructions were null and void and that Snoras remains the beneficial owner of the relevant assets; this is said to be a claim for an in rem (or proprietorial) remedy.’ (at 25)

There is partial overlap, nevertheless; it is also clear that the different formulation of the Lithuanian claims is to make them lis alibi pendens-proof. Nevertheless, Eggers DJ holds that the fact remains that there are differences in the formulation of the causes of action underlying the two sets of proceedings and, in addition, the Lithuanian Civil Claim seeks proprietary relief, as well as in personam relief. Article 29 Brussels I Recast is not mentioned but it is this article and analysis of same which is engaged.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.14.

In BDO Cayman v Argyle Funds, reported  by Harneys, the Grand Court of the Cayman Islands followed English and Australian authority in having an anti-suit injunction followed by a cost order against the party that had infringed choice of court. Costs including not just the domestic proceedings (that would be obvious) but also the foreign proceedings (here: in the US).

It is this type of measure which makes jurisdictions stand out and be noticed in civil procedure regulatory competition – not, as I flagged earlier, half-baked attempts to add some gloss via international business courts.

Geert.