Droit international général

The Court held in C-102/15 Siemens just before mine and their summer break. It had escaped my attention. At issue was whether debt arising from the unjustified repayment of a fine for infringement of competition law falls within the scope of application of the Brussels I Recast. It does not. The Court distinguished flyLAL: while private actions brought to ensure compliance with competition law fall within the scope of the Regulation, a penalty imposed by an administrative authority in the exercise of the regulatory powers conferred upon it under national legislation comes within the concept of ‘administrative matters’, excluded from the scope of Regulation No 44/2001 in accordance with Article 1(1) thereof.(at 35).

An action in unjust enrichment related to the interest due, following to and fro, imposition and rescinding, ending finally in confirmation of the fine, is intimately bound up with that fine and therefore follows it in the exclusion.

A judgment of note for those who wish to keep complete overview.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2 ff.

By Baiba Rudevska

On 23 October 2014 the European Court of Justice (hereinafter referred to as the “ECJ”) delivered its judgment in the case “flyLAL Lithuanian Airlines AS v. Starptautiska lidosta Riga VAS (Riga International Airport)” (C-302/13). The request for a preliminary ruling was made by the Supreme Court of Latvia (Latvijas Republikas Augstaka tiesa) in proceedings concerning recognition and enforcement of a Lithuanian court’s judgment (ordering provisional and protective measures) in the territory of Latvia. This request concerned the interpretation of Articles 1, 22(2), 34(1) and 35(1) of the Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation).

The ECJ answered the questions in the following way:

• Article 1(1) of the Brussels I Regulation must be interpreted as meaning that an action seeking legal redress for damage resulting from alleged infringements for EU competition law, comes within the notion of “civil and commercial matters”;
• Article 22(1) must be interpreted as meaning that an action seeking legal redress for damage resulting from alleged infringements of EU competition law, does not constitute proceedings having as their object the validity of the decisions of organs of companies within the meaning of that provision;
• Article 34(1) must be interpreted as meaning that neither the detailed rules for determining the amount of the sums which are the subject of the provisional and protective measures granted by a judgment in respect of which recognition and enforcement are requested, nor the mere invocation of serious economic consequences constitute grounds for refusal of recognition and enforcement of a judgment based on public policy of the Member State in which recognition is sought.

On 20 October 2015 the Supreme Court of Latvia delivered its decision (which is final) in this case (No SKC 5/2015) deciding neither to recognise nor to enforce the judgment of the Lithuanian court in Latvia (two lower courts of Latvia had previously decided to recognise and to enforce the judgment). The legal ground for the non-recognition was the public policy clause of Article 34(1) of the Regulation.

Let us look at the main reasoning of the Supreme Court of Latvia in this case.

Reasoning No 1 (Article 1 of the Constitution of the Republic of Latvia): State security. The defendant, “Starptautiska lidosta Riga” (“Riga International Airport”), also owns a property which is necessary for the purpose of the Latvian state security. If the judgment of the Lithuanian court is recognised and enforced in Latvia, then the preventive attachment order regarding this property will probably be enforced. From Article 1 of the Constitution of the Republic of Latvia it follows that property which is necessary for the state security interests cannot be transferred or subject to a private law burden that might, even hypothetically, hinder, weaken or otherwise threaten the fulfilment of the State functions in guaranteeing the security of the State and the society.

Reasoning No 2 (Article 91 and 105 of the Constitution of the Republic of Latvia): the insolvent Lithuanian company. The Lithuanian company “flyLAL Lithuanian Airlines” is an insolvent company which has lodged a claim for an amount of EUR 58,003,824. This company has no property or assets to compensate the defendant’s possible losses in the case if the claim later appears to be unsubstantiated. This creates an important disproportion of rights and of the provisional and protective measures applied in the case. Such possible damages sustained by the defendant may seriously endanger not only its economic activities but even its existence as a company.

Additional reasoning (Article 91 and 105 of the Constitution of the Republic of Latvia): the length of the main proceedings before the Lithuanian court. The Lithuanian court had issued an order for sequestration, on a provisional and protective basis, of the movable/immovable assets and property rights of “Air Baltic” and “Starptautiska lidosta Riga” (“Riga International Airport”) seven years ago; until now the case has not yet been resolved and there is no further information about when this case could be resolved. For the provisional and protective measures this period of time is too long and might aggravate the violation of the defendant’s property rights in this case. As the Lithuanian company is insolvent, there cannot be an adequate protective measure to secure the payment of damages. It can be considered as a potentially disproportionate interference with the defendant’s property rights within the meaning of Articles 91 and 105 of the Latvian Constitution

In this case, the Supreme Court of Latvia has established that, firstly, state security constitutes one of the most important elements of the public policy of Latvia (Article 1 of the Constitution); secondly, fundamental rights laid down in the Constitution of the Republic of Latvia also is a part of the Latvian public policy. In this case these were the equal rights of the parties before the law and the courts (Articles 91 and 105 of the Constitution). For this reason such a judgment of the Lithuanian court is manifestly contrary to the Latvian public policy. Therefore the recognition and enforcement of the Lithuanian judgment in Latvia must be denied on the basis of Article 34(1) of the Brussels I Regulation.

For information:

Constitution of the Republic of Latvia:

Article 1 – “Latvia is an independent democratic republic”.

Article 91 – “All human beings in Latvia shall be equal before the law and the courts. Human rights shall be realised without discrimination of any kind”.

Article 105 – “Everyone has the right to own property. Property shall not be used contrary to the interests of the public. Property rights may be restricted only in accordance with law. Expropriation of property for public purposes shall be allowed only in exceptional cases on the basis of a specific law and in return for fair compensation”.

Anyone with an interest in mutual recognition, risk and trade, and the exhaustive effect of EU food law should consult the Opinion of Advocate General Bobek in Case C-672/15 Noria Distribution, which was released last week.

Noria Distribution SARL (‘Noria’) is being prosecuted for having sold in France food supplements containing vitamins and minerals in quantities exceeding maxima set under French law. Noria does not deny doing so. However, it argues in response that those maxima are not valid because they were set in breach of EU law. Noria adds that it produces and sells the same products lawfully in other Member States.

The Advocate General suggests EU law on the issue is not exhaustive. Member States can set their own limits. An issue under discussion in the national proceeding is the origin (national or international) of the science underpinning the limits. The AG justifiably advises that the origin of the data is irrelevant. EU law concern is not about the details of bibliographies. It is rather that restrictions be justified on the basis of solid science demonstrating real risk or at least the inability to exclude risk: whether this is the case is for the national court to determine. The precautionary principle can be invoked by the Member States in setting their limits.

The AG’s approach is very sensible. Without losing himself in lengthy discussion, he reminds the national courts and authorities of the benchmarks for risk management.

Geert.

Ulrich G. Schroeter, Professor of Law at the University of Mannheim (Germany) and Heinrich Nemeczek, Research Fellow at the University of Mannheim (Germany) and an Academic Visitor at the Law Faculty of the University of Oxford, have authored an article on “’The (Uncertain) Impact of Brexit on the United Kingdom’s Membership in the European Economic Area”. Published in issue 7 [2016] of Kluwer’s European Business Law Review, pp. 921–958, the authors analyze how the UK’s withdrawal from the EU will affect the UK’s status as Contracting Party to the EEA Agreement.

The authors have kindly provided us with the following abstract:

Until recently, most legal analyses of Brexit have assumed that the UK’s EEA membership will be terminated ipso iure should the UK decide to withdraw from the EU. According to this view, the UK subsequently could (re-)apply for EEA membership should its government so choose – an option commonly referred to as the ‘Norway option’.

Our article challenges the assumption that the UK’s withdrawal from the EU will automatically result in its withdrawal from the EEA. In short, we reach the conclusion that the UK’s EEA membership will continue despite of Brexit unless the UK government chooses to also unilaterally withdraw from the EEA in accordance with Article 127(1) of the EEA Agreement – a step it is not obliged to take. Its continuing EEA membership would mean that many rules of EU law would continue to apply in form of EEA law, including (subject to certain conditions) the much-discussed rules about the ‘European passport’ for UK financial institutions. In contrast, the Court of Justice of the EU would have no jurisdiction over the interpretation of EEA law in the UK. At the same time, the rules governing the free movement of workers are more flexible under EEA law than under EU law, potentially allowing the UK to limit this freedom by way of unilaterally imposed ‘safeguard measures’.

In summary, ‘Brexit’ and ‘rEEAmain’ are in no way irreconcilable. The result may affect the negotiation positions during the upcoming Brexit negotiations in accordance with Article 50 of the TEU, as a continuing EEA membership could be viewed as an attractive alternative to a ‘hard Brexit’, for both businesses in the UK and the rest of the EEA.

The EEA Agreement as a ‘mixed agreement’

It is an important feature of the EEA Agreement that, on the ‘EU side’, it neither comprises only the EU nor only its Member States as Contracting Parties, but rather the EU and each of its individual Member States, including the UK. The UK is, therefore, not merely an EEA Member because of its membership in the EU, but because the EEA Agreement’s Preamble explicitly lists the UK as a separate Contracting Party. Any modification or termination of this Contracting Party status would require a basis in treaty law.

In this regard, a source of uncertainty is that the EEA Agreement does not contain any specific provision addressing the effect, if any, of a EU Member State leaving the EU. Article 50 of the TEU fails to indicate that a withdrawal from the EU would have any consequence for the withdrawing State’s membership in the EEA. As we demonstrate in detail in our article, a ‘Brexit’ notification in accordance with Article 50 of the TEU can also not be interpreted as also resulting in a withdrawal from the EEA, inter alia because such a result would affect treaty rights of the three EFTA States within the EEA – Iceland, Liechtenstein and Norway – that are not parties to the TEU.

As far as some provisions in the EEA Agreement only refer to ‘EC Member States’ and/or ‘EFTA States’, we argue in some detail that these terms are to be interpreted as referring to EU States and non-EU States within the EEA in accordance with both the EEA Agreement’s purpose and past treaty practice under the Agreement.

No Right of Other EEA Contracting Parties to Suspend Operation or Terminate the EEA Agreement in Relation to the UK

The UK’s withdrawal from the EU does not entitle other EEA Contracting Parties to suspend operation or terminate the EEA Agreement in relation UK, neither under the EEA Agreement nor under customary public international law. Under customary treaty law as codified in the 1969 Vienna Convention on the Law of Treaties (VCLT), the UK for once has committed no ‘material breach’ of the EEA Agreement (Article 60 of the VCLT), as Brexit is merely the use of a right explicitly granted to the UK by a different treaty, namely Article 50 of the TEU. Also, Brexit does not constitute a fundamental change according to the clausula rebus sic stantibus doctrine enshrined in Article 62 of the VCLT as the EEA Agreement’s core elements can still be performed. Although the UK’s withdrawal from the EU will create certain difficulties because the country’s representation in organs like the EFTA Court or the EFTA Surveillance Authority requires clarification, these changes neither radically modify the obligations still to be performed under the EEA Agreement nor imperil the existence or vital development of other EEA Contracting Parties.

Post-Brexit situation (‘rEEAmain’)

In our article, we further outline the consequences that Brexit would have for the future application of the EEA Agreement. Because the UK’s Contracting Party status would remain unaffected, UK companies would still have access to the EEA internal market. Inter alia, the legal capacity of UK companies with their ‘real seat’ elsewhere within the EEA would continue to be recognised in all other EEA States under the EEA Agreement’s freedom of establishment. The same would, of course, apply in the ‘opposite direction’, giving continued freedom of establishment in the UK for companies from elsewhere in the EEA.

The freedom of movement for workers under Article 28 of the EEA Agreement may be unilaterally limited by the UK by way of appropriate safeguard measures in accordance with Article 112 of the EEA Agreement (e.g. a quota system), if ‘serious economic, societal or environmental difficulties’ are arising – a possibility that does not exist under EU law. (It is foreseeable that the interpretation of the legal prerequisites will give rise to disputes.) In any case, safeguard measures taken by the UK may come at a price, as other EEA Contracting Parties would be authorized to take proportionate ‘rebalancing measures’ in order to remedy any imbalance between rights and obligations under the EEA Agreement created by the safeguard measures.

Our interpretation should not be misunderstood as indicating that no difficulties would arise under a ‘rEEAmain’ scenario. Such difficulties would indeed appear, primarily because certain institutional arrangements in the EEA Agreement and related agreements do not explicitly envisage an EEA Contracting Party that is neither a member state of the EU nor of the EFTA. If the UK does not accede to the EFTA Agreement and the Surveillance and Court Agreement, EEA law within the UK would have to be supervised and interpreted solely by British domestic courts and authorities. Also, the issue of financial contributions by the UK would arguably necessitate a renegotiation of protocols to the EEA Agreement: After Brexit, the UK will no longer contribute to the EU budget, but neither Article 116 of the EEA Agreement nor Protocols 38–38c explicitly provide for an obligation of the UK to contribute to the EEA Financial Mechanism. As it is difficult to argue that the UK would profit from its continuing EEA membership without contributing to the connected Financial Mechanism, the exact amount of the UK’s contribution would need to be fixed through an adjustment of the Protocols 38–38c.

Do the newly negotiated EU rules on endocrine disruptors illustrate regulatory chill /the ‘freezing effect’ of international trade law?

The new European Commission proposals on endoctrine disruptors are, of course’ ‘science based’. It has been reported (EurActiv, 12 December 2016 and last consulted by me on 13 December) that publication of the proposals was followed by a closed door meeting (minutes of which were released only after a freedom of information request) between the EC and a select number of countries (US, Canada, Argentina, Brazil and Uruguay on 13 July this year). Discussion centered around the potential WTO incompatibility of parts of the EC proposal, particularly those surrounding the tolerance levels for endocrine disruptors present in imported substances (food and feed in particularly). The EC reportedly are prepared to replace “negligible exposure” with “negligible risk from exposure”. The EC defend the latter, arguing it might even ban more, rather than less imported substances: for even if there is only negligible exposure, that exposure may still be a risk. Opponents suggest that the insertion of a risk approach has sacrified precaution on the altar of science.

A few comments.

Firstly, the report (and potentially even the EC itself) repeats the misleading assertion that the debate concerns either science or precaution. Precaution is NOT unscientific. The very trigger of the precautionary approach is science.

Next, the case is reported at a time a lot of people are getting jittery about the regulatory co-operation mechanisms in free trade agreements such as CETA and TTIP. The meeting and the subsequent EC reaction to our trading partners’ comments, would then represent an example of the ‘freezing effect’ in international trade: with our trading partners flying the flag of WTO incompatibility, the EU would then have caved in to threats of litigation in Geneva. Yet in reality WTO input by fellow WTO Members is at least as old as the WTO itself, indeed it predates it. The 1978 Tokyo Standards Code already obliged the then GATT Contracting Parties to notify their draft standards to the GATT Secretariat. The very point of notification and transparency is that the issues raised are being discussed and may indeed lead to the draft standard being adopted. Changes made to REACH, to name but one example, reflected concerns of fellow WTO Members and REACH can hardly be said to pander to industry’s demands.

However there needs to be one core appreciation in this process: just as notification serves transparency (anyone can consult the TBT notification gateway to review draft measures that have been notified), so too should the process of review after reception of the comments, be conducted in a transparent manner. This clearly has not happened here. By conducting these meetings in private, and by refusing to release the minutes until prompted to do so, EC services have given the impression that there is more than meets the eye. In times where even CETA has not yet been ratified, that is most definitely the wrong approach.

Geert.

On 29 and 30 May 2017, the University of Milan will host an international conference under the title Business and Human Rights: International Law Challenges and European Responses. Scholars are encouraged to submit their proposals for papers, not exceeding 600 words, before 31 January 2017, to the following email address: EUlawbusinesshumanrights@unimi.it. More information is available here.

I giorni 29 e 30 maggio 2017, l’Università di Milano ospiterà un convegno dal titolo Business and Human Rights: International Law Challenges and European Responses. Gli interessati sono invitati a trasmettere un paper, che non superi le 600 parole, entro il 31 gennaio 2017, a questo indirizzo email: EUlawbusinesshumanrights@unimi.it. Maggiori informazioni sono disponibili qui.

It is my pleasure to announce this conference, to be held on February 24th 2017 at the University of Edinburgh, to celebrate Private International Law as ethics of engaging the other. Exploring a variety of private international law themes, this one-day conference will bring together world-renowned academics and experienced private international lawyers from a wide range of jurisdictions and institutions. The experts will discuss topics such as international jurisdiction, international judicial cooperation, cross-border family issues, cross-border consumer protection, private international law of succession and labour migration, from a range of national and regional perspectives; and reflect on the role of international treaties, international institutions and national courts in the efficient management of legal diversity.

Click here for the programme, and here for registration details.

On 10 November 2016, the French MEP Joëlle Bergeron submitted to the Committee on Legal Affairs of the European Parliament a draft report regarding the protection of vulnerable adults.

The draft report comes with a set of recommendations to the European Commission. Under the draft, the European Parliament, among other things, ‘deplores the fact that the Commission has failed to act on Parliament’s call that it should submit … a report setting out details of the problems encountered and the best practices noted in connection with the application of the Hague Convention [of 13 January 2000 on the international protection of adults], and ‘calls on the Commission to submit … before 31 March 2018, pursuant to Article 81(2) of the Treaty on the Functioning of the European Union, a proposal for a regulation designed to improve cooperation among the Member States and the automatic recognition and enforcement of decisions on the protection of vulnerable adults and mandates in anticipation of incapacity’.

A document annexed to the draft report lists the ‘principles and aims’ of the proposal that the Parliament expects to receive from the Commission.

In particular, following the suggestions illustrated in a study by the European Parliamentary Service, the regulation should, inter alia, ‘grant any person who is given responsibility for protecting the person or the property of a vulnerable adult the right to obtain within a reasonable period a certificate specifying his or her status and the powers which have been conferred on him or her’, and ‘foster the enforcement in the other Member States of protection measures taken by the authorities of a Member State, without a declaration establishing the enforceability of these measures being required’. The envisaged regulation should also ‘introduce single mandate in anticipation of incapacity forms in order to facilitate the use of such mandates by the persons concerned, and the circulation, recognition and enforcement of mandates’.

In the meanwhile, on 15 December 2016, Latvia signed the Hague Convention of 2000 on the international protection of adults. According to the press release circulated by the Permanent Bureau of the Hague Conference on Private International Law, the Convention is anticipated to be ratified by Latvia in 2017.

Il 10 novembre 2016, la deputata europea Joëlle Bergeron ha presentato alla Commissione giuridica del Parlamento europeo un progetto di relazione sulla protezione degli adulti.

Il progetto reca una serie di raccomandazioni rivolte alla Commissione europea. Si dice nel testo, fra le altre cose, che il Parlamento “deplora che la Commissione non abbia dato seguito alla richiesta del Parlamento di presentare a tempo debito … una relazione che identifichi i problemi incontrati e le migliori pratiche per l’attuazione della Convenzione dell’Aia [del 13 gennaio 2000 sulla protezione degli adulti]”, e “chiede alla Commissione di presentare …, anteriormente al 31 marzo 2018, sulla base dell’articolo 81, paragrafo 2, del trattato sul funzionamento dell’Unione europea, una proposta di regolamento volto a rafforzare la cooperazione tra gli Stati membri nonché a migliorare il riconoscimento con pieno diritto e l’esecuzione delle decisioni relative alla protezione degli adulti vulnerabili e dei mandati di inidoneità [sic], secondo le raccomandazioni particolareggiate figuranti in allegato”. La proposta dovrebbe altresì “introdurre moduli unici di mandato di inidoneità al fine di promuovere l’uso di tali mandati da parte delle persone interessate, nonché la circolazione, il riconoscimento e l’attuazione di tali mandati”.

Un documento allegato alla proposta di relazione elenca i “principi” e gli “obiettivi” che dovrebbero caratterizzare la proposta che il Parlamento si attende di ricevere dalla Commissione.

In particolare, conformandosi in larga parte alle indicazioni emerse da uno studio predisposto dal Servizio Ricerca del Parlamento europeo, la proposta di regolamento dovrebbe includere, fra le altre, delle regole volte a “riconoscere a qualsiasi persona che assicura la protezione della persona o dei beni di un adulto vulnerabile il diritto di ottenere dalle autorità competenti, entro un termine ragionevole, un certificato attestante la sua qualità e i poteri che le sono conferiti”, nonché delle regole che favoriscano “l’esecuzione delle misure di protezione adottate dalle autorità di uno Stato membro negli altri Stati membri senza che sia necessaria una dichiarazione [di] esecutiva di tali misure”.

Nel frattempo, il 15 dicembre 2016, la Lettonia ha firmato la Convenzione dell’Aja del 2000 sulla protezione internazionale degli adulti. Stando al comunicato stampa diffuso dal Permanent Bureau della Conferenza dell’Aja di diritto internazionale privato, ci si attende che la Convenzione venga ratificata dalla Lettonia nel corso del 2017.

On 10 November 2016, the French MEP Joëlle Bergeron submitted to the Committee on Legal Affairs of the European Parliament a draft report regarding the protection of vulnerable adults.

The draft report comes with a set of recommendations to the European Commission. Under the draft, the European Parliament, among other things, ‘deplores the fact that the Commission has failed to act on Parliament’s call that it should submit … a report setting out details of the problems encountered and the best practices noted in connection with the application of the Hague Convention [of 13 January 2000 on the international protection of adults], and ‘calls on the Commission to submit … before 31 March 2018, pursuant to Article 81(2) of the Treaty on the Functioning of the European Union, a proposal for a regulation designed to improve cooperation among the Member States and the automatic recognition and enforcement of decisions on the protection of vulnerable adults and mandates in anticipation of incapacity’.

A document annexed to the report lists the ‘principles and aims’ of the proposal that the Parliament expects to receive from the Commission.

In particular, following the suggestions illustrated in a study by the European Parliamentary Service, the regulation should, inter alia, ‘grant any person who is given responsibility for protecting the person or the property of a vulnerable adult the right to obtain within a reasonable period a certificate specifying his or her status and the powers which have been conferred on him or her’, and ‘foster the enforcement in the other Member States of protection measures taken by the authorities of a Member State, without a declaration establishing the enforceability of these measures being required’. The envisaged regulation should also ‘introduce single mandate in anticipation of incapacity forms in order to facilitate the use of such mandates by the persons concerned, and the circulation, recognition and enforcement of mandates’.

In the meanwhile, on 15 December 2016, Latvia signed the Hague Convention of 2000 on the international protection of adults. According to the press release circulated by the Permanent Bureau of the Hague Conference on Private International Law, the Convention is anticipated to be ratified by Latvia in 2017.

In JEB Recoveries v Binstock, [2016] EWCA Civ 1008, the Court of Appeal (on appeal from the High Court, 2015] EWHC 1063 (Ch)) exhaustively reviewed relevant EU precedent for the determination of the ‘place of performance’ of a contract under Article 5(1) (now 7(1)) of the Brussels I (Recast) Regulation. Kitchin LJ first of all refuses to deal with the alleged submission to jurisdiction by Mr Binstock. The argument was made that,  by making and pursuing an application for security for costs, Mr Binstock had submitted to the jurisdiction. The issue was however not raised before the High Court and therefore not sub judice at the Court of Appeal.

Mr Binstock (of casino fame) argued that the contracts at issue were not performed in England, for he himself was domiciled in Spain  and the claimant in the case at issue (for most of the relevant contracts, jurisdiction was dismissed at hand) had arguably carried out his contractual arrangements largely from Paris.

Relevant CJEU precedent was C-19/09 Wood Floor Solutions the findings of which Lord Justice Kitchin helpfully summarised as follows:

1. ‘…First, the place of performance must be understood as the place with the closest linking factor between the contract and the court having jurisdiction and, as a general rule, this will be at the place of the main provision of the services.
2. Secondly, the place of the main provision of the services must be deduced, so far as possible, from the provisions of the contract itself.
3. Thirdly, if the provisions of the contract do not enable the place of the main provision of the services to be determined, either because they provide for several places where services are to be provided or because they do not expressly provide for any specific place where services are to be provided, but services have already been provided, it is appropriate, in the alternative, to take account of the place where activities in performance of the contract have for the most part been carried out, provided that the provision of services in that place is not contrary to the parties’ intentions as appears from the contract.
4. Fourthly, if the place of the main provision of the services cannot be determined on the basis of the terms of the contract or its performance, then it must be identified by another means which respects the objectives of predictability and proximity, and this will be the place where the party providing the services is domiciled.’

Based upon the place where the services have for the most part been carried out, the Court of Appeal held that JEB has no good arguable case that the place of the main provision of Mr Wilson’s services was England.

A neat application of Article 7(1) and an improved re-phrasing of the CJEU’s own rules.

Geert.

(Handbook of) EU Private International Law, Chapter 2Heading 2.2.11.1.,

Thank you Steve Peers for alerting me to the relevance of the conflict of laws and the Rome I Regulation in particular in the recent Aslam et al v Uber Employment Tribunal decision. The case essentially revolves around whether claimants are employees – it is a pivotal case determining the immediate regulatory context for this part of the ‘sharing economy’. Para 87 is a particularly delightful expression of scepticism towards the sharing economy’s claims (further highlights are here).

Conflict of laws is addressed at para 103 onwards, a completion of the analysis in case of rejection of the tribunal’s view that the UK company in the Uber group employs claimants, and instead one would have to regard Uber BV (of The Netherlands) as employer. I do not think the tribunal expresses itself entirely clearly on Rome I.

If Uber BV is the employer, reclassification of the contract as one of employment (as opposed to one for the provision of services), makes the choice of law for Dutch law partially inoperable (not, as the tribunal notes at para 105 in fine, replaced with the laws on England and Wales). Next the tribunal (paras 106-109) continues to speak of ’employer’ but reviews application of Article 3 (including the application of Article 3(3)’s ‘purely domestic contracts’. If there is a contract of employment, in my view only Article 3(1) and (2) can have any impact on the analysis: the remainder of Article 3 concerns provisions for which Article 8 itself provides exhaustive rules.

From para 110 onwards, the tribunal does more tidily address Article 8 Rome I and holds, after reference to counsel view, that if indeed the Dutch BV is the employer (for it does not suggest that the contract would have to be qualified as one of services), Dutch law would largely apply, except for a limited number of provisions of English law by way of mandatory rules. (Reference to Article 21’s ordre public is justifiably rejected).

I am assuming Uber are appealing. Expect the conflicts analysis to return.

Geert.

(Handbook of) European private international law, Chapter 3, Heading 3.2.5.

See here for a fascinating post by Professor Marketa Trimble (UNLV Law).  From the post:

Now that conflict of laws has caught up with Silicon Valley and is forcing internet companies to rethink the problems that occupy this fascinating field of law, conflict-of-laws experts should catch up on the internet: they should better educate themselves about internet technology; they should prepare law students for a practice in which the internet is a common, and not a special or unusual, feature; and they should prevent conflict of laws from becoming a fragment of larger trade negotiations in which multifaceted, intricate, and crucial conflict-of-laws policy considerations can easily be overlooked or ignored.

Golden Endurance v RMA, [2016] EWHC 2110 (Comm), illustrates the attraction of having a unified approach to submission (to jurisdiction), otherwise known as voluntary appearance. In current case, the judgment that needs to be recognised is ex-EU (Moroccan) hence the Brussels I Recast does not apply: English law does. This is in fact exactly why The Hague is working hard at its ‘Judgments’ Convention – not an easy project in my view. As helpfully summarised by Sam Goodman, the court held that a Moroccan judgment would not be recognised in England because the claimant had not submitted to the jurisdiction of the Moroccan court. Although the claimant had appeared in the Moroccan proceedings, it had done so in order to ask the court to stay the Moroccan proceedings in favour of arbitration and had only engaged with the merits as it was obliged to do so under Moroccan law.

Of note is that Phillips J points out that under the relevant English statutory rules, the question arises as to when defending a case on its merits, at the same time as contesting jurisdiction, submission applies: a scenario for which the Brussels I Recast provides specifically in Article 26. An English court does not for this exercise rely on civil procedure rules in the country of origin of the judgment: this surely makes sense for otherwise it would encourage forum shopping by unscrupulous claimants. Instead, whether one has submitted is ‘a question of mixed law and fact’ (at 46) which in this case was decided in favour of the claimant in the English court, ‘the claimant, having requested the dismissal of the claim in Morocco in favour of arbitration proceedings and having done so continually and as its primary response, did not voluntarily appear in the Moroccan courts’ (at 47).(The remainder of the judgment relates to transport law: the ‘Hague Rules’).

Geert.

(Handbook of) EU private international law, Chapter 2, Heading 2.2.7.

This book authored by M.E. Ancel, P. Deumier and M. Lazzouzi, and published by Sirey, is the first manual written in French solely devoted to international contracts examined through the lens of judicial litigation and arbitration. It provides a rich and rigorous presentation in light of the legal instruments recently adopted or under discussion in France, as well as at the European and international levels.

After an introduction to  the general principles of the matter, the reader will be able to take cognizance of the regimes of the most frequent contracts in the international order: business contracts (sale of goods and intermediary contracts), contracts relating to specific sectors (insurance, transport), contracts involving a weaker party (labor and consumer contracts) or a public person.

Advanced students, researchers as well as practitioners will find in this volume the tools enabling them to grasp the abundant world of international contracts, to identify the different issues and to master the many sources of the discipline.

The ensemble is backed up by a highly developed set of case law and doctrinal references, updated on August 15, 2016.

Marie-Elodie Ancel is a professor at the University Paris Est Créteil Val de Marne (UPEC), where she heads two programs in International Business Litigation and Arbitration.

Pascale Deumier is a professor at the Jean Moulin University (Lyon 3), where she is a member of the Private Law Team and coordinates the research focus on the Sources of Law.

Malik Laazouzi is a professor at the Jean Moulin University (Lyon 3), where he heads the Master 2 of Private International and Comparative Law.

Aude Fiorini, The Protection of the Best Interests of Migrant Children – Private International Law Perspectives, forthcoming / di prossima pubblicazione in Giacomo Biagioni, Francesca Ippolito (eds), Migrant Children in the XXI Century. Selected Issues of Public and Private International Law, Editoriale Scientifica, available through / disponibile su Social Science Research Network.

Migration news stories have, in recent years, captured the world’s attention almost daily. Migration is not however a new phenomenon. The first wave of globalisation, between 1870 and 1914 saw as much as 10% of the world’s population move permanently to a new country. It is paradoxical therefore that, at the start of the new millennium, migration was still under-researched. The phenomenon may generally be divided into diverse categories: temporary labour migration or highly skilled and business migration; internal or international migration; legal or illegal migration; forced or chosen migration; family reunification migration, return migration… Such typology reflects an approach that largely sees migration as a challenge states and primarily considers it under the angle of international politics and security. Migration can though also be studied from the perspective of the individual migrant. In this whilst it is human rights law which immediately resonates, private international law also has a key role to play. The interface between human rights and private international law as regards issues of migration has not frequently been considered. And this is particularly the case as regards children. Can and do States achieve the protection of the best interests of migrant children in part through the framework of private international law? To answer this question, this article will consider first the relevance of private international law to migrants and migration. It then discusses whether the reliance on private international law rules, methods and approaches, including the increasingly popular connecting factor of habitual residence is adequate as a basis on which to protect the best interests of migrant children.

Following a report issued by the Commission in March 2016, the Council of the European Union adopted on 8 December 2016 its Conclusions on the European Judicial Network in civil and commercial matters.

The Council, among other things, calls on Member States to ‘promote the use of the expertise of other legal practitioners by involving relevant professional associations more closely in the Network’s activities’  and to ‘encourage interaction at national level to share knowledge and gather information on the practical application of the EU instruments in civil and commercial matters’, including, where appropriate, by establishing ‘national networks bringing together the national contact points, Network members and other legal practitioners’.

Facendo seguito a una relazione presentata dalla Commissione nel marzo del 2016, il Consiglio ha adottato, l’8 dicembre 2016, le sue Conclusioni sulla Rete giudiziaria europea in materia civile e commerciale.

Il Consiglio, tra le altre cose, sollecita gli Stati membri a “promuovere l’uso delle conoscenze specialistiche di altri operatori della giustizia coinvolgendo più strettamente i pertinenti ordini professionali nelle attività della rete” e a “incoraggiare l’interazione a livello nazionale per condividere conoscenze e raccogliere informazioni sull’applicazione pratica degli strumenti dell’UE in materia civile e commerciale”, considerando, tal fine, “l’eventualità di istituire, ove opportuno, reti nazionali che riuniscano i punti di contatto nazionali, i membri della rete e altri operatori della giustizia”.

A conference on Parental responsibility and children protection in cross border situations, in the light of the 1996 Hague Convention will take place in Florence on 12 December 2016. The programme is available here. 

Lunedì 12 dicembre 2016, si terrà a Firenze un incontro intitolato Responsabilità genitoriale e protezione dei minori in contesto transfrontaliero anche alla luce dell’entrata in vigore della convenzione dell’Aja 1996. Il programma integrale è consultabile a questo indirizzo.

Apologies for late posting. I had tweeted and linked and done all sorts of other things when the judgment came out but as readers tell me, that is not quite the same as a review on this blog.

Walker J decided Peralla v Codere [2016] EWHC 1182 (Comm) at the end of July. His views on Article 25 and exclusivity in the event of asymmetric jurisdiction clauses, are very much dicta. On their neutralising effect under Article 31, he suggested obiter. Let me explain. The jurisdiction clause which Perella alleged to have been breached by Codere comprises a single sentence of a clause of their letter of engagement. That sentence states:

“[Codere] agrees for the benefit of [Perella] that the courts of England wil have non-exclusive jurisdiction to settle any dispute which may arise in connection with this engagement.”

Codere sued in Spain alleging breach of contract. Perella countersues in England. The English proceedings are very much necessitated by one or two awkward consequences of the wording of Article 31 of the Brussels I Recast. This Article was specifically included to neutralise the torpedo which the Court of Justice had armed in its Gasser judgment, C-116/02: following Gasser, lis alibi pendens applies even if there is exclusive choice of court and a court other than the court assigned in that clause, has been seized. The Brussels I Recast neutralises the torpedo but only if there is exclusive court of choice, and if the court designated by that clause has been seized.

The first consideration in the case was whether the clause was exclusive. It was pertinently not. Perella suggested the language indicates that the benefit to be conferred upon Perella is an entitlement to insist that Codere must regard itself as bound by the exclusive jurisdiction of the English courts. Walker J (at 30) rejects this justifiably: it would have been simplicity itself verbatim to indicate exclusivity. As Ken Kaar notes, the inclusion of ‘for the benefit of’ is an old, now redundant boilerplate provision in choice of court: in the original Brussels and Lugano Conventions, ‘If the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.’ This proviso meant there was plenty of discussion in court whether only one party had procured such benefit, lest one state in so many words that it had. The current version of the Brussels I Recast (and the 2001 version before it) and Lugano 2007 have both dropped the provision, and it would be best dropped from the boilerplate clause, too.

Having held that the clause was not exclusive, the Court could have stopped there. Obiter however Walker J offered his view on whether Article 31(2)’s protection extends to asymmetric choice of court clauses – the notion of which I have reported on before. Walker J (at 18) suggests that it does. The party invoking Article 31(2) pointing to an exclusive forum which the counterparty who is suing elsewhere, had committed itself to, need not be itself subject to a symmetric duty only to sue in that court. The point has not been argued before the CJEU yet, but I agree that the High Court’s position is the correct one, with the important caveat of course that such clause needs to be valid in accordance with the lex fori prorogati. This also means that asymmetric clauses where such lex cannot be identified, would have trouble disarming the recalcitrant party’s torpedo.

Well, we are going to miss this type of judgment following Brexit. Better make conflict of laws part of the continuing relations with the UK.

Geert.

Grundfragen des Europäischen Kollisionsrechts, edited by / a cura di Stefan Arnold, Mohr Siebeck, 2016, pp. 167, ISBN 9783161539794, EUR 54.

Das Europäische Kollisionsrecht dient der europäischen Idee eines Raums der Freiheit, der Sicherheit und des Rechts ohne Binnengrenzen. Diese Aufgabe kann es nur erfüllen, wenn sich die Akteure des Rechts immer wieder von Neuem seinen Grundfragen stellen. Sie betreffen zunächst die politischen, ökonomischen und gesellschaftlichen Hintergründe, die für das Europäische Kollisionsrecht von herausragender Bedeutung sind. Dazu zählen der rechtspolitische Kontext seiner Entwicklung ebenso wie der gesellschaftliche Wandel des Familienbegriffs oder die Frage nach dem Verhältnis von Kollisionsrecht und religiösem Recht. Zu den Grundfragen des Europäischen Kollisionsrechts gehören aber auch die Gründe und Grenzen zentraler Institute der kollisionsrechtlichen Dogmatik. Welche Ordnungsaufgabe kommt etwa der Parteiautonomie, dem ordre public oder dem Renvoi im Europäischen Kollisionsrecht zu? Die hier zusammengeführten Beiträge einer Tagung in der Bayerischen Akademie der Wissenschaften nähern sich diesen Grundfragen an.

With contributions by / Con scritti di: Christoph Althammer, Stefan Arnold, Gerald Mäsch, Mathias Rohe, Michael Stürner, Rolf Wagner, Marc-Philippe Weller.

The BIICL is seeking to appoint three Research Assistants on a 0.8 FTE basis for paid internships of four months each, with the possibility of extension for a further month.

Research Assistants are expected to undertake various core tasks, including:

*           Assisting in the coordination and organisation of research activities;

*          Contributing to the production of high quality research in their areas including, where appropriate, assisting with desk-based research, literature reviews, data analysis, drafting of proposals and submissions, report writing and drafting of articles, social media content etc.

*         Assisting in the management and co-ordination of events;

*         Attending meetings with external groups/partners, including government, legal profession and NGOs; and

*         Working as part of a team with other researchers.

Research Assistants will each be assigned to a Supervisor in their legal areas. For this round of applications, we are particularly looking to appoint in the areas of:

*       Public International Law;

*       Private International Law and/or Competition Law; and

*       Rule of Law