Droit international général

The University of Sydney Law School is hosting a conference on Commercial Issues in Private International Law on 16 February 2018.

The organisers have provided the following information about the conference’s theme:

‘As people, business, and information cross borders, so too do legal disputes. Globalisation means that courts need to invoke principles of private international law with increasing frequency. Thus, as the Law Society of New South Wales recognised in its 2017 report on the Future of Law and Innovation in the Profession, knowledge of private international law is increasingly important to the practice of law.

This conference will bring together members of the judiciary, the profession, academia, and government to discuss private international law as it relates to commercial law. The conversation will be timely. In late 2016, the Uniform Civil Procedure Rules were amended in respect of service outside of the jurisdiction. In 2017, Australia is likely to accede to the Hague Convention on Choice of Court Agreements, and to implement the Hague Principles on Choice of Law in International Commercial Contracts.

The extraterritorial application of the Australian Consumer Law is under consideration by the Full Court of the Federal Court of Australia. While Brexit and the rise of Trump may have signalled a retreat from globalism, arguably, that is not the experience of private international law in Australia.’

Further details are available here: http://sydney.edu.au/news/law/457.html?eventcategoryid=39&eventid=11728

Registration will open and the full conference programme will be released later in 2017.

I do not habitually report on the week ahead at the CJEU. I do frequently tweet and Link one specific cases where a Hearing or Opinion AG is planned. This week however offers a great tableau of core issues of EU law: one could hinge an entire course simply on the cases this week: thank you Stefaan Van der Jeught for collating:

C-409/16 Kalliri considers minimum height requirements for police officers: acceptable discrimination? (Judgment WED). C-65/16 Istanbul Lojistik: Hungarian toll on HGVs in transit: compatible with the EU-Turkey Association Agreement? (Judgment Thurs). C-383/16 Vion Livestock: Which rules for transport of life animals ex-EU (also judgment Thurs; one or two recent precedents here). C-522/16 A is particularly intriguing and relevant: can a company with constant exposure to customs law, hide behind (and escape additional duties) its having obtained the green (tax and customs law) light from customs law experts, when a corporate structure turns out to be questionable? This judgment (also due on Thursday) may have considerable relevance for EU law generally, and corporate due diligence in compliance. Also for Thursday: C-281/16 Vereniging Hoekschewaards Landschap, on the classification of a habitat site and finally C-598/16 P Yanukovych, Ukraine’s former president who opposes the freezing of his assets in the EU.

Have a good week! Geert.

The first ruling on Regulation (EU) No 650/2012 was rendered on Thursday 12. These are the facts of the case as summarized by the Court:

Ms Kubicka, a Polish national resident in Frankfurt an der Oder (Germany), is married to a German national. Two children, who are still minors, were born from that marriage. The spouses are joint owners, each with a 50% share, of land in Frankfurt an der Oder on which their family home is built. In order to make her will, Aleksandra Kubicka approached a notary practising in Slubice (Poland).

Ms Kubicka wishes to include in her will a legacy ‘by vindication’, which is allowed by Polish law, in favour of her husband, concerning her share of ownership of the jointly-owned immovable property in Frankfurt an der Oder. She wishes to leave the remainder of the assets that comprise her estate in accordance with the statutory order of inheritance, whereby her husband and children would inherit it in equal shares.

She expressly ruled out recourse to an ordinary legacy (legacy ‘by damnation’), as provided for by Article 968 of the Civil Code, since such a legacy would entail difficulties in relation to the representation of her minor children, who will inherit, as well as additional costs.

On 4 November 2015, the notary’s assistant refused to draw up a will containing the legacy ‘by vindication’ stipulated by Aleksandra Kubicka on the ground that creation of a will containing such a legacy is contrary to German legislation and case-law relating to rights in rem and land registration, which must be taken into consideration under Article 1(2)(k) and (l) and Article 31 of Regulation No 650/2012 and that, as a result, such an act is unlawful.

The notary’s assistant stated that, in Germany, a legatee may be entered in the land register only by means of a notarial instrument containing an agreement between the heirs and the legatee to transfer ownership of the immovable property. Foreign legacies ‘by vindication’ will, by means of ‘adaptation’, be considered to be legacies ‘by damnation’ in Germany, under Article 31 of Regulation No 650/2012. This interpretation is clear from the explanatory memorandum of the German law which amended national law in accordance with the provisions of Regulation No 650/2012 (Internationales Erbrechtsverfahrensgesetz (Law on international succession proceedings), of 29 June 2015, BGBl. I p. 1042).

On 16 November 2015, Aleksandra Kubicka submitted to the notary an appeal pursuant to Article 83 of the Law on notaries against the decision refusing to draw up a will containing such a legacy ‘by vindication’. She claimed that the provisions of Regulation No 650/2012 should be interpreted independently and, in essence, that none of those provisions justify restricting the provisions of succession law by depriving a legacy ‘by vindication’ of material effects.

Since her appeal to the notary was not upheld, Aleksandra Kubicka brought an appeal before the Sad Okregowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland).

The referring court considers that, pursuant to Article 23(2)(b) and (e) and Article 68(m) of Regulation No 650/2012, legacies ‘by vindication’ fall within the scope of succession law. However, it is uncertain to what extent the law in force in the place where the asset to which the legacy relates is located can limit the material effects of a legacy ‘by vindication’ as provided for in the succession law that was chosen.

Given that, under Article 1(2)(k) of Regulation No 650/2012, the ‘nature of rights in rem’ is excluded from the scope of the regulation, legacies ‘by vindication’, as provided for by succession law, cannot create for an asset rights which are not recognised by the lex rei sitae of the asset to which the legacy relates. However, it is necessary to determine whether that same provision also excludes from the scope of the regulation possible grounds for acquiring rights in rem. In that regard, the referring court considers that the acquisition of rights in rem by means of a legacy ‘by vindication’ is governed exclusively by succession law. Polish legal literature on the matter takes the same position, while the explanatory memorandum of the German draft law on international succession law and amending the provisions governing the certificate of succession and other provisions (Gesetzesentwurf der Bundesregierung, BT-Drs. 17/5451 of 4 March 2015) provides that it is not obligatory, in the context of Regulation No 650/2012, for German law to recognise a legacy ‘by vindication’ on the basis of a will drawn up according to the law of another Member State.

Referring to Article 1(2)(l) of Regulation No 650/2012, the referring court also wonders whether the law governing registers of rights in immoveable or moveable property may have an impact on the effect of a legacy under succession law. In that regard, it states that if the legacy is recognised as producing material effects in matters relating to succession, the law of the Member State in which such a register is kept would govern only the means by which the acquisition of an asset under succession law is proven and could not affect the acquisition itself.

As a result, the referring court considers that the interpretation of Article 31 of Regulation No 650/2012 also depends on whether or not the Member State in which the asset to which the legacy relates is located has the authority to question the material effect of that legacy, which arises under the succession law that has been chosen.

In those circumstances the Sad Okregowy w Gorzowie Wielkopolskim (Regional Court, Gorzów Wielkopolski, Poland) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:

 ‘Must Article 1(2)(k) and (l), and Article 31 of Regulation (EU) [No 650/2012] be interpreted as permitting refusal to recognise the material effects of a legacy ‘by vindication’ (legatum per vindicationem), as provided for by succession law, if that legacy concerns the right of ownership of immovable property located in a Member State the law of which does not provide for legacies having direct material effect?’

 

The CJEU answer is:

Article 1(2)(k) and (l) and Article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession must be interpreted as precluding refusal, by an authority of a Member State, to recognise the material effects of a legacy ‘by vindication’, provided for by the law governing succession chosen by the testator in accordance with Article 22(1) of that regulation, where that refusal is based on the ground that the legacy concerns the right of ownership of immovable property located in that Member State, whose law does not provide for legacies with direct material effect when succession takes place.

Conclusions were written by Advocate General Y. Bot and delivered on May 17, 2017; C. Toader acted as Rapporteur.

Litigación international en la Unión Europea II- Ley aplicable a los contratos internacionales. Comentario al reglamento Roma I (International litigation in the European Union II. The law applicable to international contracts. Commentary to the Rome I Regulation) represents the second issue of a collection of treatises on European private international law.

The first part discusses the role and impact of the New Lex Mercatoria in international trade, with a comprehensive study of the Rome I Regulation on the law applicable to contractual obligations.

In the second part an analysis of more than one hundred international trade contracts is undertaken, with special attention to the structure of each contract and the applicable law. International sale of goods, countertrade, donations, international loan, agency contracts, factoring, confirming, crowdfunding, consulting, due diligence, leasing, supply, construction, deposit, management, outsourcing, catering, cash-pooling, engineering, guarantee contracts, timesharing, fiduciary contracts, franchising, distribution contracts, bank contracts, stock contracts, company contracts, joint venture and many others contracts are examined from a private international law perspective. The book also incorporates specific chapters on international consumer contracts and international labor contracts. Besides, special attention is paid to international insurance contracts.

The third part of the book addresses the international contracts drafting techniques with a focus on clauses which are usually included therein.

Several annexes with the best case-law in the field of international contracts and the most commonly used clauses complement the book.

Publishers: Thomson Reuters Aranzadi, 2017, 897 pages.

This posting is really addressed to those with more of a full-time interest in competition law than yours truly. Particularly in the extraterritorial effect of same. In  [2017] EWHC 2420 (Ch) Emerald Supplies et al v British Airways defendants contend that as a matter of law there can be no claim for damages arising from the cartel at issue insofar as it affected freight charges between the EU and third countries on flights before 1 May 2004. That was the date on which air transport between the EU and third countries was brought within the regime implementing the EU competition rules set out in Regulation 1/2003.

Rose J after careful analysis sides with the defendants and rejects reference to the CJEU, citing acte clair (enough analysis of the CJEU on the same and related issues- I believe she is right). Happy reading.

Geert.

 

The third issue of 2017 of the Dutch Journal on Private International Law, Nederlands Internationaal Privaatrecht, contains contributions on the consequences of Brexit for the future of private international law in the UK and the EU27, the ex post evaluations of legislative actions in the European Union, the Recast of the Brussels IIa Regulation, and cross-border evidence preservation mesures under Brussels I-bis.

Xandra Kramer, ‘Editorial: NIPR: over Nederlands, Europees en wereldwijd IPR/NIPR: on Dutch, European, and global
PIL’, p. 407-410.

Jonathan Fitchen, ‘The PIL consequences of Brexit’, p. 411-432.

The UK’s triggering of Article 50 TEU poses problems for the future of private international law in the UK and in the EU27. The UK’s departure from the EU will end the mutual application of European private international law within the UK’s legal systems and will affect the application of that EU law by the EU27 in matters concerning the UK as a new third State. After setting the problem in context, this article provides a political background to the events that led to the Brexit referendum of 2016 and to the UK’s June 2017 general election; thereafter it illustrates certain problems posed by the threat of ‘cliff-edges’ arising as a consequence of a ‘disorderly’ UK exit from the European Union, finally it offers various possibilities concerning the future of private international law in the UK and in the EU. It is argued that if the beneficial aspects of the progress achieved for all European citizens by European private international law are to be salvaged from the Brexit process, both the UK and the EU must each consider most urgently the need for a realistic and undogmatic policy on the future of each other’s private international law that reflects the political reality that, though the UK will soon be a third State relative to the EU27, many natural and legal persons will remain connected with the EU27 despite Brexit. It is argued that each side might usefully consider the unifying goals underlying private international law.

Giesela Rühl, ‘(Ex post) Evaluation of legislative actions in the European Union: the example of private international law’, p. 433-461.

Over the last decades systematic ex post evaluations of legislative actions have become an integral part of the European law making process. The present article analyses the European Commission’s evaluation practice in the field of private international law and offers recommendations for its improvement.

Thalia Kruger, ‘Brussels IIa Recast moving forward’, p. 462-476.

The Brussels IIa Regulation (EC 2201/2003) is currently subject to revision. This is a long and cumbersome process. The European Commission published its report on the Regulation’s operation in April 2014 and its Proposal for a Recast in June 2016. The European Parliament and the Council are currently discussing the proposed amendments. In order for the Recast to be enacted, unanimity in the Council is required. This article discusses some of the issues currently on the table. These include children’s rights, matters of jurisdiction and parallel proceedings in parental responsibility disputes, international child abduction, the abolition of exequatur, the coordination with the 1996 Hague Child Protection Convention, mediation, and information on foreign law.

Tess Bens, ‘Grensoverschrijdend bewijsbeslag’, p. 477-494.

This article analyses whether the revised Brussels I Regulation (‘Recast’) allows the Dutch courts to order provisional measures intended to obtain or preserve evidence located in another Member State. Recital 25 of the Recast explicitly states that the notion of provisional measures includes these type of orders. The author discusses whether Dutch measures to preserve evidence qualify as provisional measures under the Recast. Possible substantive barriers to granting these measures, such as the Evidence Regulation and territorial limitations, are taken into account in making this assessment. The author further argues that there are – in principle – no obstacles for the Dutch courts to order provisional measures aimed at obtaining or preserving evidence located in another Member State. The problems seem to begin at the enforcement stage. To illustrate this point, the author discusses the possibility of coordinating the moment of serving the order and the moment of enforcing the measure in order to retain the element of surprise and the adaptation of the measure for enforcement in France and Germany. As yet there is not a clear answer as to how the enforcement of these kind of measures in a different Member State will function in practice. Moreover, the problems described equally apply to the enforcement of other provisional measures under the Recast and can be expected to give rise to more questions in the future.

Readers of our blog will recall that Prof. Dr. Andreas Schwartze from the University of Innsbruck will host the final conference of the EU-project “unalex – multilingual information for the uniform interpretation of the instruments of judicial cooperation in civil matters“ in Innsbruck on 24 November  (see our earlier post).

The full and final programme (including information as regards registration and accommodation) is now available here, here, and here.

The precise application of the Brussels I Recast’s exclusive jurisdictional rules, remains a balancing exercise. Being an exception to the Regulation’s’ overall preference for the domicile of the defendant, they have to be given a narrow reading. On the other hand, they serve what the Regulation sees as being important purposes of preference of one particular jurisdiction over another, hence the exception cannot be so narrowly construed as to lose purpose. In C-341/16 Hanssen, the CJEU held last week and confirmed Saugmansgaard ØE AG’s Opinion of the summer.

Does an action seeking an order requiring the person formally registered as proprietor of a Benelux mark to make a declaration to the OBPI that she has no entitlement to the mark and that she waives registration as the proprietor of that mark, fall within the scope of Article 24(4) of Brussels I Recast? No, it does not:  the main proceedings in this case do not relate to the validity, existence or lapse of the trade mark or an alleged right of priority by reason of an earlier deposit. They are solely concerned with whether the proprietor of the contested mark is Ms Prast-Knipping or Hanssen Beleggingen, which must be determined on the basis of the legal relationship existing between the parties concerned: Hanssen Beleggingen submits that, as a result of a chain of transfers of the contested mark, it has become the actual proprietor of the rights to the contested mark. Existence etc. of the trademark is not at issue.

The question of the individual estate to which an intellectual property right belongs is not, generally, closely linked in fact and law to the place where that right has been registered (at 37): hence the raison d’être of Article 24(4) is not engaged.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6, Heading 2.2.6.7

 

I have often argued that the European Commission and by extension the EU’s Insolvency Regulation is wrong in taking as a starting point that forum shopping in insolvency matters as a rule needs to be discouraged. This aversion towards forum shopping is one of the main reasons for the UK and other Member States to keep Schemes of Arrangement and other restructuring devises well out off the reach of the Regulation. (The Brussels I recast for instance allows for much more strategic choice of court use).

Thank you Debra Dandeneau for flagging the US Bankruptcy Court, Southern District of New York’s decision in Ocean Rig. The Court essentially argues that to use forum shopping in a restructuring /insolvency case is absolutely acceptable provided it is done in good faith, particularly with a view to maximizing chances of survival and /or maximal recovery by the creditors. Note that the Court, in determining COMI for the various companies in the group, pays specific attention to the ascertainability, by third parties, of COMI.

A judgment to be applauded. And this posting, incidentally, is the 500th on this blog. To 1000 and beyond!

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.1, Heading 5.4.6.

Twitter injunctions – Twinjunctions if you like, rather like Facebook or Google Removal orders, provide classic scenarios for the consideration of the territorial scope of injunctive and enforcement proceedings. Michael Douglas has great review of [2017] NSWSC 1300 X v Twitter. On 28 September 2017, the Supreme Court of New South Wales awarded its final injunction with global reach, directed towards Twitter Inc (based at CAL) and its Irish counterpart, Twitter International Company.

Plaintiff requested removal of tweets and accounts, and also requested ia that Twitter disclose information relating to the identity of a troll, flagging a potential action against that person for breach of confidence. Twitter refused, appealing to its privacy policy. The eventual injunction went very far indeed, as Michael details. Of the issues under discussion, of interest to this post are the jurisdiction to grant injunctive relief against foreign defendants who do not appear; and the appropriateness of injunctions expressed to operate ‘everywhere in the world’.

Now, what is refreshing about Pembroke J’s review of the issues is his non-doctrinal analysis of the issue of jurisdiction. He emphasises that there is a long history of courts of equity making in personam orders that are intended to operate extra-territorially (the Court’s jurisdiction is one in equity); (at 40) that Twitter unlike other defendants may disagree with the ruling but will not seek to avoid its social responsibility; that there is a public interest in issuing the worldwide order (and in enforcing it: Pembroke J flags that there are Australia-based assets against which enforcement may be sought); and that given his experience with Twitter, it can be expected to use its best endeavours to give effect to the proposed orders, despite its objection that it is not feasible to pro-actively monitor user content.

Eventually of course the trouble with such an assessment, without consideration of wider issues of public and private international law, is that the issuing, or not, of orders of this kind by the courts, depends on the defendant’s attitude towards compliance. That is hardly a solution serving equal access to the law or indeed equity.

Geert.

 

 

Cuadernos de Derecho Transnacional, vol. 9, nr. 2, has just been released. Cuadernos is a bi-annual electronic law journal specialized in International Private Law, Uniform Law and Private Comparative Law, open to contributions in different languages. It is edited by the Private International Law Department of the University Carlos III, Madrid.

All contents can be freely downloaded. Here is the index of the section “Estudios”:

Miguel Gómez Jene, El convenio arbitral: statu quo (The arbitration agreement: statu quo)

Hilda Aguilar Grieder, Problemas de Derecho Internacional Privado en la contratación de seguros: especial referencia a la reciente directiva (UE) 2016/97 sobre la distribución de seguros (Private International Law problems of the international insurance contracts: the new directive (UE) 2016/1997 about distribution of insurance)

Isabel Antón Juárez, La oposición del régimen económico matrimonial y la protección del tercero en Derecho Internacional Privado (The opposition of the matrimonial property regime and the protection of the third party in Private International Law)

Ilaria Aquironi, L’addebito della separazione nel diritto internazionale privato dell’Unione Europea (Judicial decisions as to the causes of separation under EU private international law)

Naiara Arriola Echaniz, La Unión Europea y la Organización Mundial del Comercio: comenzando un diálogo proto- constitucional (The European Union and the World Trade Organization: a budding proto-constitutional dialogue)

Irene Blázquez Rodríguez, Libre circulación de personas y Derecho Internacional Privado: un análisis a la luz de la jurisprudencia del Tribunal de Justicia de la Unión Europea (Free movement of persons and International Private Law: an analysis in the light of the case law of the European Court of Justice)

María Asunción Cebrián Salvat, La competencia judicial internacional residual en materia contractual en España (The Spanish rules of residual jurisdiction in matters related to contract)

Silvia Pilar Badiola Coca, Algunas consideraciones sobre el régimen de la responsabilidad civil del porteador en la legislación marítima de Emiratos Árabes Unidos (Some considerations regarding the maritime carrier liability under the United Arab Emirates maritime law)

Clara Isabel Cordero Álvarez, Incidencia de las normas imperativas en los contratos internacionales: especial referencia a las normas de terceros estados desde una aproximación europea (Overriding mandatory provisions in international contracts: a special reference to foreign overriding mandatory provisions from a European approach)

Eva de Götzen, Recognition of same-sex marriages, overcoming gender barriers in Italy and the Italian law no. 76/2016 on civil unions. First remarks (Riconoscimento dei matrimoni omosessuali, superamento delle barriere di genere in Italia e legge n. 76/2016 sulle unioni civili. Prime riflessioni)

Carlos Manuel Díez Soto, Algunas cuestiones a propósito del derecho de participación del autor de una obra de arte original sobre el precio de reventa (droit de suite) (Some questions concerning the artist’s resale right (droit de suite)

Dorothy Estrada Tanck, Protección de las personas migrantes indocumentadas en España con arreglo al Derecho Internacional y Europeo de los derechos humanos (Protection of undocumented migrant persons in Spain under international and European human rights law)

Ádám Fuglinszky, Hungarian law and practice of civil partnerships with special regard to same-sex couples (Das Ungarische Recht und praxis von lebenspartnerschaften mit besonderer rücksicht auf gleichgeschlechtliche pare)

Natividad Goñi Urriza, El sometimiento de las adquisiciones minoritarias que no otorgan el control a las normas sobre el control de las concentraciones (The control under merger rules of acquisitions of non-controlling minority shareholdings)

Luis Ignacio Gordillo Pérez, El TJUE y el Derecho Internacional: la defensa de su propia autonomía como principio constitucional básico (The CJEU and International Law: the defence of its own autonomy as a basic constitutional principle)

Thais Guerrero Padrón, Sobre los funcionarios de la Unión Europea y su régimen de seguridad social: los tributos como cotizaciones sociales a efectos del TJUE (Issues about officials of the European Union and its social security regime: taxes as social contributions to the effects of the CJEU)

Carlos María López Espadafor, Lagunas en el Derecho Tributario de la Unión Europea (Gaps in the tax law of the European Union)

Isabel Lorente Martínez, Brexit y cláusulas de sumisión en los contratos internacionales (Brexit and prorrogation clauses in international contracts)

Diana Marín Consarnau, Las uniones registradas en España como beneficiarias del derecho de la UE a propósito de la Directiva 2004/38/CE y del Reglamento (UE) 2016/1104 (Spanish “registered partnerships” as beneficiaries of EU law according to the Directive 2004/38 (EC) and the Regulation (EU) 2016/1104)

Fabrizio Marongiu Buonaiuti, La disciplina della giurisdizione nel Regolamento (UE) n. 2016/679 concernente il trattamento dei dati personali e il suo coordinamento con la disciplina contenuta nel regolamento “Bruxelles I-bis” (Jurisdiction under Regulation (EU) no. 2016/679 concerning the processing of personal data and its coordination with the “Brussels I-bis” regulation)

Alfonso Ortega Giménez, El fenómeno de la inmigración y el problema de los denominados “matrimonios de conveniencia” en España (The phenomenon of immigration and the problem of the denominated “convenience marriages” in Spain)

Marta Requejo Isidro, La protección del menor no acompañado solicitante de asilo: entre Estado competente y Estado responsable (The protection of unaccompanied minors asylum-seekers: between competent state and responsible state)

Mercedes Sánchez Ruiz, La regulación europea actual sobre emplazamiento de producto y la propuesta de reforma de la directiva de servicios de comunicación audiovisual (The current European rules governing product placement and the new legislative proposal amending the audiovisual media services directive)

Stella Solernou Sanz, Los límites a la autonomía privada en el marco del contrato de transporte de mercancías por carretera (Limits on private autonomy in the framework of the contract for carriage of goods by road)

Lenka Válková, The interplay between jurisdictional rules established in the EU legal instruments in the field of family law: testing functionality through simultaneous application with domestic law (L’interazione tra le regole di giurisdizione all’interno degli strumenti giuridici dell’UE nell’ambito del diritto di famiglia: la prova del funzionamento attraverso l’applicazione simultanea del diritto nazionale)

This intriguing book examines the fundamental juridical nature, classification and enforcement of choice of court agreements in international commercial litigation. It integrates the comparative and doctrinal analysis of choice of court agreements under the Brussels I Recast Regulation, the Hague Convention on Choice of Court Agreements (‘Hague Convention’) and the English common law jurisdictional regime into a theoretical framework. In this regard, the book analyses the impact of a multilateral and regulatory conception of private international law on the private law enforcement of choice of court agreements before the English courts – highly recommendable for all who are interested in choice of court agreements!

For more information see here.

Thank you Stephen Pittel for alerting me to 2017 SCC 34 Google Inc. v Equustek Solutions Inc. – alternative review ia here, and apologies for my late reporting: the case came to my attention late June. I have of course posted before on various aspects of worldwide removal and other orders, particularly in the context of the EU’s ‘right to be forgotten’.

Equustek sued Datalink for various intellectual property violations and found alleged insufficient co-operation from Google in making it difficult for users to come across Datalink’s offerings. Google seemingly did not resist jurisdiction, but did resist the injunction and any ex-Canada effect of same.

The majority in the case however essentially applied an effet utile consideration: if as it found it did, it has in personam jurisdiction over defendant, an extraterritorial reach is not problematic if that is the only way to make the order effective. An order limited to searches or websites in Canada would not have addressed the harm: see Stephen’s verbatim comment (referring to para 38 of the judgment).  Google was ordered to de-index globally.

Dissenting opinions suggested Datalink could be sued in France, too, however this I suppose does not address the effet utile consideration of the majority.

Geert.

 

 

 

Prof. Fabrizio Marrella, Chair of International Law (“Cà Foscari” University of Venice & LUISS University of Rome) has recently published “Manuale di diritto del commercio internazionale” (CEDAM, 2017). A presentation has been kindly provided by the author (the complete TOC is available on the publisher’s website):

Following the success of previous publication by the same Author, this book provides the first University textbook of International Business Law in Italian designed to introduce students and practitioners to this fundamental field of law. It classifies different sources of law affecting trasnational business operations according to their origin and legal system (National – i.e. Italian, European Union, Intergovernmental and non national – i.e. new lex mercatoria and the Unidroit Principles for international Commercial Contracts, as well as identifies the different actors in the field (companies, States, Intergovernmental Organizations, Non Governmental Organizations).

In such a framework, rules of International Economic Law (from WTO to the new EU Customs Code, from economic treaties to embargos) provides the setting into which the core contract are operationals. Thus, the main perspective of the book is that of Private International Law by which different rules are applied according to their sphere of application. Among the topics discussed, there are the main transnational business contracts (i.e. sales, transport, payment methods, insurance, agency and distribution contracts, intellectual property, trade finance, bank guarantees, foreign direct investments) and the most prominent dispute resolution mechanisms such as Arbitration and ADRs.

The book takes into proper account, inter alia, the Unidroit Principles for International Commercial Contracts 2016; EU Regulation n. 1215/2012 (Regulation Brussels Ia) and the new ICC Arbitration Rules 2017.

Title: F. Marrella, “Manuale di diritto del commercio internazionale”, Padua, CEDAM, 2017.

ISBN: 978-88-13-36293-5. Price: EUR 55. Pages: XXXII-800. Available at CEDAM.

Internship applications at the Permanent Bureau of the Hague Conference on Private International Law (HCCH – Hague office) are now open for the March-May 2018 period and will close at midnight (Central European Time) on Friday 1st December 2017.

The duration of the internship will be two to three months. Applications must comply with the requirements set out in the following link: https://www.hcch.net/en/recruitment/internships.

Internships offered by the HCCH are not remunerated.

We are pleased to report that Conflict of Laws.net has recently been selected as one of the Top 100 UK Law Blogs on the web. As you can see here, we have been ranked 33th. We thank all our editors and contributors for their commitment and, of course, our readers who have made this success possible.

As Bot AG put it, Joined Cases C-24 and 25/16 Nintendo v Big Ben gave the Court an opportunity to  determine the territorial scope of a decision adopted by a court of a Member State in respect of two co-defendants domiciled in two different Member States concerning claims supplementary to an action for infringement brought before that court.

The case concerns the relation between Brussels I and Regulation 6/2002 – which was last raised in the recent BMW case, particularly as for the former, the application of Article 6(1) (now 8(1))’s rule on anchor defendants. And finally the application of Rome II’s Article 8(2): the identification of the ‘country in which the act of infringement was committed’. In this post I will focus on the impact for Brussels I (Recast) and Rome II.

The Landgericht held that there had been an infringement by BigBen Germany and BigBen France of Nintendo’s registered Community designs. However, it dismissed the actions in so far as they concerned the use of the images of the goods corresponding to those designs by the defendants in the main proceedings.

The Landgericht ordered BigBen Germany to cease using those designs throughout the EU and also upheld, without territorial limitation, Nintendo’s supplementary claims seeking that it be sent various information, accounts and documents held by the defendants in the main proceedings, that they be ordered to pay compensation and that the destruction or recall of the goods at issue, publication of the judgment and reimbursement of the lawyers’ fees incurred by Nintendo be ordered (‘the supplementary claims’).

As regards BigBen France, the Landgericht held that it had international jurisdiction in respect of that company and ordered it to cease using the protected designs at issue throughout the EU. Concerning the supplementary claims, it limited the scope of its judgment to BigBen France’s supplies of the goods at issue to BigBen Germany, but without limiting the territorial scope of its judgment. It considered the applicable law to be that of the place of infringement and took the view that in the present case that was German, Austrian and French law.

BigBen France contends that the German courts lack jurisdiction to adopt orders against it that are applicable throughout the EU: it takes the view that such orders can have merely national territorial scope. Nintendo ia takes the view that German law should be applied to its claims relating to BigBen Germany and French law to those relating to BigBen France.

Taking into account the objective pursued by Article 6(1) of Regulation No 44/2001, which seeks inter alia to avoid the risk of irreconcilable judgments, the existence of the same situation of fact must in such circumstances — if proven, which is for the referring court to verify, and where an application is made to that effect — cover all the activities of the various defendants, including the supplies made by the parent company on its own account, and not be limited to certain aspects or elements of them. If I understand this issue correctly (it is not always easy to see the jurisdictional forest for the many IP trees in the judgment), this means the Court restricts the potential for the use of anchor defendants in Article 8(1).

As for the application of Article 8(2) Rome II, at 98 and following inter alia analysis of the various language versions of the Article, the CJEU equates the notion ‘country n which the act of infringement is committed’ with the locus delicti commissi:  ‘it refers to the country where the event giving rise to the damage occurred, namely the country on whose territory the act of infringement was committed.‘ At 103: ‘…where the same defendant is accused of various acts of infringement falling under the concept of ‘use’ within the meaning of Article 19(1) of Regulation No 6/2002 in various Member States, the correct approach for identifying the event giving rise to the damage is not to refer to each alleged act of infringement, but to make an overall assessment of that defendant’s conduct in order to determine the place where the initial act of infringement at the origin of that conduct was committed or threatened.’

At 108 the Court rules what this means in the case at issue: ‘the place where the event giving rise to the damage occurred within the meaning of Article 8(2) of [Rome II] is the place where the process of putting the offer for sale online by that operator on its website was activated’.

At 99 however it warns expressly that this finding must be distinguished as being issued within the specific context of infringement of intellectual property rights: Regulation 6/2002 as well as Rome II in its specific intention for IP rights, aims to guarantee predictability and unity of a singly connecting factor. This is a very important caveat: for while this approach by the CJEU assists with predictability, it also hands means for applicable law shopping and, where the Court’s approach for locus delicti commissi in IP infringement extended to jurisdiction, for forum shopping, too.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2; Chapter 3.

 

Hang on a minute. Were not the EU and its Member States supposed to be precaution obsessed? Don’t the EU and its Member States alike adopt bans on all things GMO for no other reason than that they simply do not want them? How then can the CJEU hold in C-111/16 Fidenato that Member States do not have the option of adopting, in accordance with Article 54 of Regulation 178/2002, the EU’s general food safety law, interim emergency measures solely on the basis of the precautionary principle?

The reason lies in pre-emption, aka exhaustion, and in the balance between EU and national risk management which EU law strikes in the specific field of GM cultivation. Of note is that in the meantime most biotech companies have given up on cultivation of GM varieties in the EU.

As extremely well summarised by Bobek AG in his Opinion in the case, the formulation of the relevant EU legislation is such as to provide that post EU authorisation (here: of genetically modified maize MON 810) Member States may only take emergency measures where the continued cultivation of the approved products is ‘likely to constitute a serious risk’. While the precautionary principle may play its role fully at the level of the EU’s risk management preceding authorisation, and indeed post such authorisation, too, Member States are given less leeway in their national emergency measures. In prescribing these rules, the EU safeguards the harmonised approach to the GM varieties at issue.

(Mr Fidenato nb is something of a cause celebre among the GM community). Please note, again, that the case concerns the growing (‘cultivation’) of GM crops. Not the import, export or use of products containing GM.

Finally it is important to point out that the Court does not equate precaution with the absence of science. It is the degree of scientific certainty here which is relevant, not the absence ‘v’ presence thereof.

Geert.

Under the leadership of prof Hess, MPI Luxembourg have collated a treasure chest of data on what, in practice, continues to hold up recognition and enforcement of judgments in the EU Member States. The Study, released last week, was conducted for the European Commission. Its main conclusion suggests that in particular the service of documents could do with streamlining.

That all in all modest recommendation suggests that the very variety of civil procedure rules in the EU Member States in and of itself is not the main obstacle in recognition and enforcement. I insert a big caveat here for I have so far only read the exec summary and the main recommendations, however if they are anything to go by, the study in effect has to serve as a strong argument against more harmonisation of civil procedure rules at the EU level.

Debate no doubt to be continued.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.

(This Report is provided by Guo Yujun, professor, Wuhan University Law School; Liang Wenwen, associate professor, Wuhan University Law School) 

On 22 and 23 September 2017, the “Global Forum on Private International Law & 2017 Annual Meeting of China Society of Private International Law: Cooperation for Common Progress?Evolving Role of Private International Law” was held in Wuhan, China, under the auspices of the Ministry of Foreign Affairs and China Society of Private International Law. The event was held on the 30th anniversary of China’s accession to the Hague Conference on Private International Law (HCCH) and the 30th anniversary of China Society of Private International Law. On the opening ceremony, Mr ZHANG Mingqi, Vice President of China Law Society; LIU Guixiang, Standing Member of the Adjudication Committee of the Supreme People’s Court of the People’s Republic of China; HAN Jin, President of University Council of Wuhan University; Christophe Bernasconi, Secretary-General of the HCCH; HUANG Jin, President of China Society of Private International Law, Professor and President of China University of Political Science and Law, and XU Hong, Director-General, Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China, gave speeches. The event gathered over 400 officials and academics from 18 countries and regions.

Mr ZHANG Mingqi reviewed the work of China Society of Private International Law in facilitating the adoption of China’s first private international law act and in international exchange, and calls for its further contribution to providing the legal safeguards for the Belt and Road Initiative. Mr Liu Guixiang considered the Belt and Road Initiative an opportunity for Chinese private international law and reviewed the work of the Supreme People’s Court in providing the legal safeguards for the Belt and Road Initiative. Mr Han Jin welcomed the participants to Wuhan University, a leading institution in private international law. Mr Christophe Bernasconi recognized that the HCCH conventions can provide the legal safeguards for the Belt and Road Initiative, and China’s contribution to the work of the HCCH. Mr Huang Jin reviewed the achievements of China Society of Private International Law in advising the legislature and the judiciary, and education, and called for building a community of private international law. Mr Xu Hong called for the common progress through private international law and legal safeguards of the Belt and Road Initiative.

On Title I: Common Progress through Private International Law over 30 Years, speakers and topics are as follows: GUO Xiaomei, Deputy Director-General, Department of Treaty and Law, Ministry of Foreign Affairs of the People’s Republic of China, “Retrospect and Prospect on the 30th Anniversary of China’s Membership of the Hague Conference on Private International Law”; Symeon C. Symeonides, Professor, Willamette University College of Law, “Private International Law Codifications: The Last 50 Years”; Hans Van Loon, Former Secretary-General of the HCCH, “Common Progress of Private International Law over the Past 30 Years – China, the Hague Conference, and the World”; LIU Renshan, Professor, Zhongnan University of Economics and Law, “The HCCH and China: the History, Practical Choice and the Future”.

On Title II: The Belt and Road Initiative and International Legal Cooperation, speakers and topics are as follows: Christophe Bernasconi, Secretary-General of the HCCH, “The Belt & Road Initiative and the HCCH”; Mathijs H. ten Wolde, Professor, Department of Private International Law, University of Groningen, “Recognition and Enforcement of Chinese Money Judgments in the Netherland and the EU”; Anselmo Reyes, Professor of Legal Practice at the University of Hong Kong, “Facilitating the Resolution of Cross-Border Commercial Disputes within the Belt and Road Initiative”; Tang Zheng Sophia , Professor, Newcastle University Law School, “The Belt and Road and Cross-Border Judicial Cooperation”; HUO Zhengxin, Professor of Law, Faculty of International Law of the China University of Political Science and Law, “Proof of Foreign Law against the Background of the Belt and Road Initiative”.

On Title III: A Global Look at Recent Developments of Private International Law, speakers and topics are as follows: Michael Dennis, Attorney Adviser, Executive Director of the Department of State Advisory Committee on Private International Law, U.S. Department of State, “Improving Business Environment, Filling the Gaps, Missing Economic Legal Infrastructure in APEC Economies”; Kyung Han Sohn, Professor, Emeritus President, Korea Private International Law Association, Sungkyunkwan University School of Law, “Application of Lex Mercatoria in Asia: Focusing on Developments in Korea”; Tiong Min Yeo, Professor, School of Law Singapore Management University, “Party Autonomy in the Choice of Law for Torts in Asia” ; Yuko Nishitani, Professor, Kyoto University Graduate School of Law, “Enforcement of Choice of Court Agreements”; Elizabeth Aguiling-Pangalangan, Professor, College of Law, University of the Philippines, “The Hague Abduction Convention and Cross Border Family Relations”; CHEN Weizuo, Professor of Law, Tsinghua University School of Law, “The Asian Principles of Private International Law: Objectives, Contents, Structure and Selected Topics on Choice of Law”; Mary Keyes, Professor, Griffith Law School, “Developing Australian Private International Law: the Hague Choice of Court Agreements Convention and the Hague Principles of Choice of Law for International Commercial Contracts” ; Choong Yeow-Choy, Professor, Faculty of Law University of Malaya, “Harmonization of Transnational Dispute Resolution Mechanisms and the Recognition and Enforcement of Decisions in the ASEAN Region”; José Antonio Moreno Rodríguez, Lawyer and Professor, “The Hague Principles and the New Paraguayan Law on International Contracts: Potential Influence on Legal Reform in the Americas and Abroad”; Frank Poon, Representative of the Asia Pacific Regional Office (HCCH), “Recent Development of Private International Law” ; GUO Yujun, Vice President and Secretary-General of China Society of Private International Law, Professor, Wuhan University, “Changing the Law on Recognition and Enforcement of Foreign Judgments in China”.

On Title IV: The Hague Judgments Project, speakers and topics are as follows: Andreas Stein, Head of Unit, DG Justice and Consumers, European Commission, “The Hague Judgments Project: an EU Perspective”; Ronald A. Brand, Professor, Director, Center for International Legal Education, University of Pittsburgh School of Law, “Determining Qualification for the Global Circulation of a Judgment Under a Hague Judgments Convention”; Geert van Calster, Professor, University of Leuven, “The Hague Judgments Project: A powerful Potion or a Cauldron Full of Jurisdictional Spells?”; Richard Garnett, Professor, Law School of University of Melbourne, “The Hague Judgments Project and Increasing Interaction between Australia and China”; Alex Mills, Professor, UCL University Law School, “The Hague Judgments Project: Back to the Future”; Jan von Hein, Professor, Director, Director of the Institute for Comparative and Private International Law, University of Freiburg, “The Guarantee of a Fair Trial as an Obstacle to the Recognition and Enforcement of Judgments: Comparative Perspectives”; Maria Blanca Noodt Taquela, Professor, Universidad de Buenos Aires, “Relationship between the Hague Judgment Project and Other Instruments: The Argentina-China Treaty on Judicial Cooperation on Civil and Commercial Matters Adopted in 2001”; Knut Benjamin Pissler, M.A, Senior Research Fellow, Max Planck Institute for Comparative and International Private Law, “Recognition and Enforcement of Chinese Court Decisions in Germany: Problems and Perspectives”; SUK Kwang Hyun, Professor, Vice President, KOPILA, Seoul National University, “Several Issues of the Hague Choice of Court Convention”; HE Qisheng, Professor, Wuhan University, “Dilemma and Its Way out in Judgments Reciprocity: From Sino-Japan Model to Sino-Singapore Model”.

Chinese scholars gave presentations in Chinese on four titles: Doctrines and Practices of Chinese Private International Law; the Belt and Road Initiative and International Legal Cooperation; the Belt and Road and Innovations in Chinese Arbitration; China and the Hague Choice of Court Convention.

The Closing ceremony was chaired by Ms GUO Yujun. Mr Frank Poon, Representative of HCCH Asia Office, made a speech on behalf of Christophe Bernasconi, Secretary General of the HCCH, appreciating the involvement of China in the HCCH and the potential of the HCCH to the Belt and Road Initiative. Mr XIAO Yongping, Professor, Director of Wuhan University Institute of International Law, Standing Vice President of China Society of Private International Law, made the closing speech, summarizing the discussions and making three points: first, the Asian regional cooperation needs a set of effective dispute settlement mechanisms; secondly, the current international dispute settlement mechanism is dominated by western developed economies. It is the time for Asian countries to establish a dispute resolution body with regional characteristics; thirdly, to construct a more equitable and reasonable regional dispute resolution body should be the ideal choice for all Asian countries to promote regional cooperation. Professor Huo Zhengxin read the Wuhan Declaration, reviewing the development of private international law and the involvement of China in the work of the HCCH over the past thirty years and the current challenges to private international law, and calling for joint contributions to the prosperity of global private international law of all participants.