Droit international général

Thank you Dentons for flagging 2016 ONCA 836 Cook v 1293037 Alberta Ltd, on the application of the forum of necessity or forum necessitatis doctrine in the Canadian courts. A doctrine which in some way or another allows a court to be used as court of last resort, should no other court be reasonably be available to plaintiff. Those States which do have it (Belgium, for instance: In Article 11 of its Statute; readers of the blog will also remember the EC suggested its introduction in the Brussels I Recast (Article 26 of COM(2010)748), but failed) all insist the jurisdictional trigger can only be exercised in the most exceptional of circumstance.

Cook v 129…Alberta is a good illustration of this exceptional nature. The Canadian Supreme Court set out the conditions in 2012 SCC 17 Van Breda v Village Resorts Ltd. Appellants had made a tactical decision not to bring their action in Alberta, the natural forum of the case. The limitation period for bringing the action in Alberta has now expired. They should under the circumstance not be allowed to bring the action in Ontario.

Does someone somewhere have an (undoubtedly slim) catalogue of those forum necessitatis actions which did succeed?

Geert.

(Handbook of) European private international law, 2nd ed.2016, Chapter 2, Heading 2.2.4 (p.68.)

Professor Francisco Javier Zamora Cabot has just published an article on The Rule of Law and Access to Justice in Recent and Key Decisions of the UK Courts

The English abstract reads:

Following an Introduction that points out the current significance of transnational human rights litigations, and their implications arising out of the recent stance taken by the United Kingdom Supreme Court in the case Belhaj v. Straw, the present study underlines throughout Section II the approach to this case, linked with the “Extraordinary Renditions Programme”, of the United States, and with tortures as well as unlawful detention suffered by the plaintiffs, in which the British Government is denounced as an accomplice.

This Section also reflects decisions of the High and Appeal Courts, giving way all along Section III to the Supreme Court judgment, in the same direction of the one of the Court of Appeal as far as immunity of jurisdiction and the Act of State are concerned, and that afterwards it is scrutinized by the author of the present study in a positive way to the extent that access to justice by victims of serious violations of HHRR prevails. And that is so above all through the inactivation in the case of State of Act for the english public policy, allowing such an access and largely in agreement with a great deal of initiatives emerging from the international community and at the same time widespread doctrinal opinions.

This study comes to an end with some Conclusive Reflections (Section IV), bringing to light the way the Supreme Court has come to find a path in order to respond to a question involving sensitive edges, enhancing the rule of law, the access to justice and the defense of HHRR as foundations that cannot be waived in the course of its performance.

The full article (in Spanish) is available in the Papeles el Tiempo de los Derechos (open access): https://redtiempodelosderechos.files.wordpress.com/2015/01/wp-3-17.pdf 

and on SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2960256

More than many other legal disciplines Private International Law draws its inspiration from its history. The complexity, the technicality characterizing it, but also a continuity that no euphoria of legislation has succeeded in compromising, urge to exploit the treasure of a past gathering both the constructive efforts of an untiring doctrinal reflection and the lessons of a constantly renewed experience of concrete cases. The understanding of the problems that the plurality of legal orders poses to private law relationships, and of the methods and solutions employed to address them, comes at this price.
This book is conceived to meet this need, to which it responds nevertheless with modesty. It would have been too daring to aim at an exhaustive account of the innumerable hesitations and temerities of a doctrine and a practice experienced through an abundant casuistry. With the hope of providing useful guidance in the understanding of today’s Private International Law, this monograph endeavors to present elements constituting the milestones that marked and shaped a rich and complex evolution.

Bertrand Ancel is Professor Emeritus of the University of Paris II Panthéon-Assas where he taught civil law, comparative private law and private international law, and where some fifteen years ago he set up the teaching of the history of Private International Law. The book Éléments d’histoire du droit international privé has just been published by LGDJ.

The recent report by the German newspaper Frankfurter Allgemeine Sonntagszeitung (FAS) on Jean-Claude Juncker’s dinner with British PM Theresa May has already triggered a lively political debate on both sides of the channel. For those not fluent in German, it is perhaps welcome that the FAS has taken the rather unusual step of publishing the article again in an English translation on its website here. For readers interested in the legal aspects of future negotiations on Brexit, it is probably most interesting that, in the course of the dinner, May alluded to British opt-in rights under Protocol 36 to the TFEU as a blueprint for “a mutually beneficial reciprocal agreement, which on paper changed much, but in reality, changed little”. It is not reported, though, whether the British Government would suggest a similar strategy with regard to Protocol 21 which deals with opt-in rights of the UK concerning the EU’s legislative acts on private international law as well. It is difficult to imagine how such an approach could be reconciled with the UK Government’s desire to be freed from the judicial surveillance by the CJEU, however. Anyway, the article states that the head of the Commission resolutely rejected any kind of legal window-dressing. So, it seems that Brexit will actually mean Brexit.

The following report has been kindly provided by Dr. Susanne Gössl, LL.M. (Tulane) and Daniela Schröder.

On April 6th and 7th, 2017, the first German conference for young scholars interested in Private International Law took place at the University of Bonn. The general topic was “Politics and Private International Law (?)”.

The conference was organized by Susanne Gössl, Bonn, and a group of doctoral or postdoctoral students from different universities. It was supported by the Institute for German, European and International Family Law, the Institute for Commercial and Economic Law and the Institute for Private International Law and Comparative Law of the University of Bonn the German Research Foundation (DFG), the German Society of International Law (DGIR), the Dr. Otto-Schmidt-Stiftung zur Förderung der Internationalisierung und der Europäisierung des Rechts, the Studienstiftung Ius Vivum, the Verein zur Förderung des Deutschen, Europäischen und Vergleichenden Wirtschaftsrechts e.V., and the publisher Mohr Siebeck.

Professor Dagmar Coester-Walten, LL.M. (Michigan), Göttingen, gave the opening speech. She emphasized that the relation between politics and conflict of laws has always been controversial. Even the “classic” conflict of laws approach (Savigny etc.) was never free from political and other substantive values, as seen in the discussion about international mandatory law and the use of the public policy exception. She outlined the controversy around the “political” Private International Law in the 20th century, resulting in new theories of Private International Law such as Currie’s “governmental interest analysis” and counter-reactions in continental Europe. Even after a review of the more political conflict of laws rules of the EU, Professor Coester-Waltjen came to the conclusion that the changes of the last decades were less a revolution than a careful reform in continuance of earlier tendencies.

The first day was devoted to international procedural law. First, Iina Tornberg, Helsinki, evaluated more than 20 arbitration awards from the International Chamber of Commerce (ICC). Her focus was on the use of the concept ordre public transnational. She came to the result that there is no reference to truly transnational values. Instead, domestic values are read into the concept of the ordre public transnational. Masut Ulfat, Marburg, claimed that the Rome I Regulation should mandatorily determine the applicable law in arbitration proceedings to ensure a high level of consumer protection and enhance EU law harmonization. In his responsio Reinmar Wolff, Marburg, to the contrary, had the opinion that this last statement contradicts the fundamental principles of international arbitration as a private proceeding and its dogmatic basis in party autonomy. In addition, he did not regard the application of Rome I as necessary: the level of consumer protection could be reviewed at the stage of recognition and enforcement of the arbitration award.

In the second panel Dominik Düsterhaus, Luxemburg, dealt with the question to what extend EU law and the interpretation through the CJEU lead to a “constitutinalisation” of Private International Law and International Procedure Law. He showed clear tendencies of such a charge with legal policy considerations of apparently objective procedural regulations. He criticized the legal uncertainty, arising from the fact that the CJEU does not always disclose his political considerations. Furthermore, only 4% of the referred cases include questions of Private International Law. Thus, the CJEU has only few possibilities to concretize his considerations. Jennifer Lee Antomo, Mainz, dedicated herself to the question whether an agreement of exclusive international jurisdiction is also a contractual agreement with the effect that it is possible to claim compensation for breach of contract. She answered generally in the affirmative in the case a claimant brings a suit in a derogated court. Nevertheless, court authority to adjudicate can be limited, especially within the EU due to the EU concept of res iudicata.

The second day was dedicated to conflict of laws. Friederike Pförtner, Konstanz, analysed human rights abuses by companies in third countries. She objected a broad use of “escape devices” such as the public policy exception or loi de police. As exceptions they should be applied restrictively. Reka Fuglinsky, Budapest, investigated the problem of cross-border emissions with a focus on the CJEU case law and the new Hungarian Private International Law Act. She scrutinized, inter alia, under which conditions a foreign emission protection permission has effects on the application or interpretation of national (tort) law. Another more factual problem is the later enforcement of domestic decisions in third countries.
Finally, Martina Melcher, Graz, analysed the relation between Private International Law and the EU General Data Protection Regulation, which is combining a private international law approach with a public international one. A separate conflict of laws rule should be introduced in the Rome II Regulation, following the lex loci solutionis instead of the territoriality principle. Tamas Szabados, Budapest, talked about the enforcement of economic sanctions by Private International Law. He characterized economic sanctions as overriding mandatory provisions (Article 9 (1) Rome I). In cases of third state (e.g. US) sanctions, an application was only possible as “being considered” in the sense of Article 9 (3) Rome I. A clear decision by the CJEU is necessary to ensure a transparent approach and a unitary EU foreign policy.

The conference concluded with the unanimous decision to organize further conferences for young scholars in Private International Law, probably every two years. The next conference will be held in Würzburg, Germany, in spring 2019.

The full texts of the presentations will be published in a forthcoming book by Mohr Siebeck. The presentations of the conference are available here (all in German).

It is one of the pinnacle theories of conflict of laws and when first introducing students to it, they almost invariably respond glassy-eyed. Renvoi has an unlimited ability to surprise parties and courts alike. It is best excluded, either by Statute, or by the parties, but frankly to be on the safe side: always and everywhere best by both. (Lest there are well considered arguments not to do so in a specific instance. As readers of my book now, the Brussels I Recast provisions on renvoi for choice of court (complicating less fori prorogati) is not such an instance: Handbook 2016, p.128-129, Heading 2.2.9.4.2).

At issue in Dankor [Dancor Construction, Inc. v. FXR Construction, Inc., 2016 IL App (2d) 150839] was the choice of court and governing law clause cited by the court at 44:

“The parties agree that this agreement was executed in Kane County, Illinois and shall be governed by the law of the State of Illinois. Any claims, lawsuits, disputes or claims arising out of or relating to this agreement shall be litigated in Kane County, Illinois.”

This clause could be a boilerplate or midnight clause except those routinely do exclude renvoi. ‘The law of the State of Illinois’ in the clause would then be followed by ‘excluding its choice of law rules’ or something of the kind. Why it was dropped here is entirely unclear. As Clifford Shapiro writes ‘So what happens when an Illinois general contractor fires a New York subcontractor who was working on a New York project under a subcontract that required Illinois law to apply and litigation to take place in Illinois? Unfortunately for litigants, what can happen is nearly three years of jurisdictional litigation in both New York and Illinois, and then dismissal of the Illinois case less than 60 days before trial with an order directing the case to be re-filed in New York.’

As the court notes (at 69) choice of court and choice of governing law are separate issues (for that reason they are als best deal with in clearly separated contractual clauses). Relevant precedent for the validity of the former is Rieker 378 Ill. App. 3d 77, 86 (2007). Applying Rieker, and following Section 187(2) of the Restatement (Second) of Conflict of Laws, the Court held (reference is best made to Clifford’s summary or to the judgment itself) that New York law applied to the validity of the clause, leading to its being void: New York law mandatorily prohibits application of another State’s law or litigation outside of the State for New York construction projects (Illinois incidentally has a mirror provision).

Need one say more? Renvoi is always best excluded. It would not necessarily have made this clause enforceable: ordre public discussions could always still be raised. However it sure as anything would have made the validity of the clause much more likely.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 1, Heading 1.4).

The latest issue of the “Praxis des Internationalen Privat- und Verfahrensrechts (IPRax)” features the following articles:

C. Thole: The recast of the European Insolvency Regulation

On 26 June 2017, the recast of the European Insolvency Regulation (reg. 2015/848) will enter into force. Although the recast does not entail radical changes, it is not confined to minor editorial amendments either, but adds some distinct new features to the EIR. This article sketches the corner points of the recast and attempts to identify new legal questions brought up by the new regulation.

M.-P. Weller: The Recast of the Brussels II bis Regulation

On 6/30/2016 the European Commission presented its draft of a revised version of the Brussels II bis Regulation. The proposals for reform primarily affect proceedings in matters of paternal responsibility. The article provides an outline and a discussion of the benefits and shortcomings of the essential changes proposed by the draft. In addition, the article critically reviews the Commission’s opinion on the lack of a need for a reform of the rules on matrimonial matters.

B. Heiderhoff: The Adjustment of German Law to the Matrimonial Property Regulations

Before the EU regulations on matrimonial property regimes (2016/ 1103) and on property consequences of registered partnerships (2016/1104) come into force on 29th January 2019, the national law must be adjusted. This contribution makes suggestions for the alignment of the conflict of laws rules as well as the introduction of the necessary procedural complements. In essence, it recommends adopting the same conflict of laws rules contained in the regulations also for those general effects of marriage that are not covered by the regulation. The procedural implementation should be effected in a separate new law and structured as parallel as possible to the law implementing the EU Succession Regulation.

M. Rohls/M. C. Mekat: The interplay between the provisions of the EU Service Regulation and the German Regulation on Judicial Assistance in Civil Matters (ZRHO) concerning the service of judicial documents to foreign States

The authors examine the interplay between the provisions of the EU Service Regulation and the German Regulation on Judicial Assistance in Civil Matters (Rechtshilfeordnung für Zivilsachen, abbreviated “ZRHO”) in the field of service of judicial documents to foreign states. The authors conclude that the options of service of documents as granted by the EU Service Regulation – within their scope – cannot be restricted by the ZRHO’s character as domestic administrative guidelines. Against this background, the authors call for a primary application of the provisions on the service of documents as foreseen in the EU Service Regulation, insofar as contrary national provisions in Germany (and other Member States of the EU) restrict a service of documents to foreign states.

G. Kühne: Some Observations on the 1986 German Reform of Private International Law

The German Private International Law Reform of 1986 has recently been the subject of discussions and contributions to this Review by various authors. The author of this article has contributed to the 1986 reform by a separate Draft, the so-called “Kühne-Entwurf” of 1980. In the following article he adds some supplementary observations on a few specific aspects concerning his Draft, in particular party autonomy in international matrimonial and succession law, where his proposals differed from those put forward by the German Council for Private International Law.

O. L. Knöfel: Public policy – The Concept of Extrajudicial Documents – Does the European Service Regulation Apply to Private Documents?

The article reviews a decision of the European Court of Justice (Case C-223/14 – Tecom Mican SL, José Arias Domínguez), dealing with the question whether the concept of “extrajudicial documents” (Art. 16 of the European Service Regulation of 13 November 2007) covers private documents. The Court answered this question in the affirmative, which is not convincing, as the notion of “extrajudicial documents” is habitually considered to encompass only documents emanating from authorities and judicial officers of a State. The author analyses the background of the notion of “extrajudicial documents” in the Hague Conventions on civil procedure and in other international legal instruments, and discusses the consequences of the decision of the ECJ for international legal assistance in civil and commercial matters.

S. Burrer: The question of cautio judicatum solvi in the case of German claimants domiciled outside of Germany and the Hague Convention on Civil Procedure

Following the amendment in 1998 to § 110 German Code of Civil Procedure to abolish the obligation on foreign claimants to furnish cautio judicatum solvi and the implementation of a new obligation on all claimants who are not residents in the EU/the EEA to provide security for costs, a question arose as to how German claimants domiciled outside of the EU/the EEA but domiciled in one of the signatory states of the Hague Convention on Civil Procedure (HCCP) should be treated. This question was neither discussed nor solved for several years. Initial views in both jurisprudence and literature refused an exemption of such expatriate German claimants as compared to nationals from other contracting states. Dissenting with these views, the Higher Regional Court of Munich decided in 2014 that such expatriate German claimants also enjoy exemption from the obligation to provide security where they are domiciled within the area of application of the HCCP due to the general principle of equality in Art. 3 para. 1 German Basic Law. This article critically discusses both the opposing view as well as the reasoning of the Higher Regional Court of Munich and shows by way of an analysis of the historic sources, a comparison with the legal situation in Switzerland and by purposive interpretation of the HCCP, that freedom from the security requirement within the scope of the convention is the correct outcome. This is not justified by applying the exemption in Art. 17 HCCP in conjunction with § 110 para. 2 no. 1 Code of Civil Procedure, but solely as a result of the commitment of enforcement in Art. 18 HCCP in conjunction with § 110 para. 2 no. 2 Code of Civil Procedure.

U. P. Gruber: Die Überleitung eines europäischen Mahnverfahrens in ein Erkenntnisverfahren

Pursuant to Art. 17 of the Regulation (EC) No 1896/2006, when the defendant lodges a statement of opposition to the European order for payment, the proceedings shall continue before the competent courts of the Member State of origin in accordance with the rules of ordinary civil procedure. In its decision C-94/14, the ECJ emphasizes that the transfer to ordinary civil proceedings is governed by the national laws of the Member States. The laws of the Member States also govern the extent of the verification obligations to which national courts are subject when determining their international jurisdiction. European law only sets certain minimum standards that must be observed, i.e. the rights of the defence and the effectiveness of European regulations. German law meets these standards; in the author’s opinion, also the claimant’s obligation to designate the competent court (§ 1090 ZPO) is in accordance with European law.

B. Rentsch/M.-P. Weller: Recognition of judgments in International Family Law – regulatory levels in Brussels IIbis vs. leveled balancing of public policy

The Brussels IIbis Regulation is unique in its intertwinement with both European and International Family Law instruments. Despite its independence both from International treaties on child protection and neighboring EU instruments, all regimes of child protection tend to coincide in International family law litigation. In its judgment P ./. Q, the ECJ makes an effort to distinguish, namely, protection mechanisms of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, and the return regime provided by Art. 10 Brussels IIbis-Regulation. Given its advocacy for a clear-cut separation, the judgment still evidences how both regimes may end up converging on the level of public policy.

P. F. Schlosser: Standard Forms and unclearly drafted choice of law stipulations

Regarding private international law the court makes three statements of general interest.
1. The issue whether the applicability of a national legal system has validly been agreed is to be dealt with according to the law possibly designated.
2. This rule includes the inference of unclear drafting which, according to § 305c (German) BGB, leads to the solution, and hence in the case of choice of law stipulations, to the law most favorable for the partner of the user of general trade terms.
3. In this specific case the judgment relied on the common view of both parties that German law was the most favorable for the co-contracting partner. By arguing in this way the court could not reach the more general issue, which solution should be “more favorable” for the co-contracting party if the unclear stipulation refers to a complex multitude of terms or to a national legal system encompassing both, elements favorable as well as unfavorable for the co-contracting party. The author’s proposition is: to grant an option to the co-contracting party; but only to choose between the respective entirety of the standard terms or of the dispositions of a national legal system.

P. Huber: CISG: traditional analysis on the right to avoid and a new approach to set off (note on a judgment by the German Bundesgerichtshof)

The article discusses a judgment by the German Bundesgerichtshof on the Convention for the International Sale of Goods (CISG). The main issues covered are the buyer’s right to avoid the contract for non-conforming delivery by the seller and the issue of set off in a CISG contract. With regard to avoidance, the court mainly affirms the prevailing opinion. A rather new aspect, however, is that the court requires the seller who wishes to cure the non-conformity to give notice of that intention to the buyer. The author agrees with this part of the decision. With regard to set off, the court explores new ground by assuming that set off is governed by (general principles underlying) the CISG in cases where both claims are based on the same contractual relationship and where this contract is governed by the CISG. The author criticizes this part of the judgment and argues that set off should be left to the applicable (national) law.

A. Reinisch: On the Scope of Immunity of the Swiss National Bank before Austrian Courts and Central Banks in General. Case Comment on Austrian Supreme Court, 17 August 2016 – 8 Ob 68/16g.

The Austrian Supreme Court had an opportunity to rule on a novel issue of immunity from jurisdiction enjoyed by foreign central banks. It decided that public statements formulated by central bank officials supporting and explaining its foreign exchange policy were so closely connected to the bank’s sovereign tasks that they also qualified as non-commercial, iure imperii activities justifying their exemption from judicial scrutiny as a result of sovereign immunity principles. It thereby also confirmed the settled Austrian jurisprudence that foreign states enjoyed a limited, restrictive immunity for iure imperii acts only and that this standard was specifically relevant for foreign central banks where the 1972 Council of Europe Convention on State Immunity was applicable.

S. Corneloup: Validity and Third-Party Effect of Choice of Court Agreements. The Cour de cassation between European and national interpretation

The national courts of the Member States are often torn between, on the one hand, the necessity to respect the autonomous interpretation of EU law given by the ECJ and, on the other hand, the temptation to translate their own visions based on national particularities. This tension has become particularly obvious in the recent case-law of the French Cour de cassation with respect to the validity and third-party effect of choice of court agreements. In the matter of third-party effect of choice of court agreements, the Cour de cassation implements the restrictive rulings of the ECJ regarding international chains of contracts even though they are in contradiction with French civil law. In contrast, for asymmetric choice of court agreements the court lays down its own conditions of validity without concern for European harmonization. On both topics the current French case-law is subject to critical analysis.

S. Krebber: Jurisprudence for suits of an employee against the third person in tripartite constellations of employment law.

The decision of the chambre sociale of the Cour de cassation deals with jurisdiction under the regime of the Brussels Ibis regulation for suits of an employee against the third person in tripartite constellations. In such tripartite constellations, employment law may be applicable against the third party either because the third party is considered as an employer or because rights and duties also vis-à-vis the third party are vested in the employment relationship between the employer and his employee. Art. 20 et seq. Brussels Ibis regulation are applicable to such suits even though Art. 20 requires an employment contract.

K. Bälz: DIFC Court of Appeal, Urteil vom 25. Februar 2016 in Sachen DNB Bank ASA v (1) Gulf Eyadah Corporation (2) Gulf Navigations Holdings PSJC

A recent decision of the DIFC Court of Appeals opens up the possibility to recognize and enforce German court decisions in civil matters in the UAE by using the courts of the financial free zone DIFC as a conduit jurisdiction. In view thereof, there is now reciprocal enforcement in relation to the Emirate of Dubai within the meaning of sec. 328 of the German Code of Civil Procedure (ZPO).

Recognition of Foreign Administrative Acts, edited by / a cura di J. Rodríguez-Arana Munoz, M. Garcìa Pérez, J.J. Perna Garcìa, C. Aymerich Cano, Springer, 2016, ISBN 9783319189741, pp. 388, EUR 135,19.

This book presents an analysis of the concept of the administrative act and its classification as ‘foreign’, and studies the administrative procedure for adopting administrative acts in a range of countries in and outside Europe. While focusing on the recognition and execution of foreign administrative acts, the book examines the validity, efficacy and enforceability of foreign administrative acts at national level. The book starts with a general analysis of the issue, offering general conclusions about the experiences in different countries. It then analyses the aforementioned themes from the perspective of the domestic law of different European nations and a number of international organisations (European Union, MERCOSUR, and Andean Community). In addition, the book studies the role of the European Union in the progress towards the recognition and execution of foreign administrative acts, where the principle of mutual recognition plays a vital part. Finally, the book analyses the international conventions on the recognition and execution of administrative acts and on the legalisation of public documents.

Gerard McCormack, Andrew Keay, Sarah Brown, European Insolvency Law – Reform and Harmonization, Edward Elgar, 2017, ISBN: 9781786433305, 512 pp, GBP 95

Critically analysing the substantive law of insolvency in the EU countries as a whole, this book carries out horizontal cross-cutting analysis of the data gathered from a study of national insolvency laws. It selects particular areas for detailed discussion and considers the pros and cons of particular legislative solutions. Using the US and Norway as comparator countries, the expert authors identify areas where disparities in national laws produce problems that have impacts outside national boundaries. They analyse these against key policy goals including: improving economic performance throughout the EU; promoting a more competitive business environment; efficient asset allocation; and building more stable and sustainable human capital in terms of support for entrepreneurs and responses to consumer over-indebtedness. The book also considers possible reform and harmonization measures situated against the wider contextual background of the Capital Markets Union and the Europe 2020 agenda of promoting jobs and growth. Discerning and practical, European Insolvency Law will appeal to academics in both insolvency and finance as well as insolvency practitioners and lawyers. Its reform suggestions will be of interest to EU Member States’ government departments, while also providing a useful reference for consumer associations and debt charities.

A quick note to tickle the interest of the BIT community out there: I have come across a suggestion that recent initiatives on supply chain liability (for the notion see my earlier reblog of Penelope Bergkamp’s piece) may run counter the protection of foreign investment under Bilateral investment treaties. The analysis at issue is directed at Queensland’s chain of responsibility laws. While it is clearly a law firm’s marketing pitch (heyho, we all have to make rain somehow), the issue is real: supply chain liability laws can I suppose under circumstances qualify as regulatory takings just as any other new law.

Or can they?

Geert.

The LSE Law and Financial Markets Project will host a workshop on “International Finance, Party
Autonomy and Public Interest” on 18 May 2017. Speakers include Philipp Paech (LSE), Stéphanie Francq (Louvain-la-Neuve), Jan Kleinheisterkamp (LSE)  and Matthias Lehmann (University of Bonn).

Details are available here.

L’11 e il 12 maggio 2017 il Dipartimento di Giurisprudenza dell’Università Roma Tre ospita la nuova edizione dell’annuale incontro fra i giovani cultori del diritto internazionale. Il tema di quest’anno è Frontiere, spazi giuridici e territorio.

Le relazioni toccano, fra gli altri, anche temi di diritto internazionale privato.

Il programma completo dell’incontro è disponibile a questo indirizzo.

On 19 April 2017, Professor Cyril Nourissat and the lawyers Alexandre Boiché, Delphine Eskenazi, Alice Meier-Bourdeau and Gregory Thuan filed a complaint with the European Commission against France for a violation of several obligations arising from the European Rome III and Brussels IIbis Regulations, as a result of the divorce legislation reform entered into force on 1 January this year. The following summary has been kindly provided by Dr. Boiché.

“Indeed, since January the 1st, in the event of a global settlement between the spouses, the divorce agreement is no longer reviewed and approved in Court by a French judge. The agreement is merely recorded in a private contract, signed by the spouses and their respective lawyers. Such agreement is subsequently registered by a French notaire, which allows the divorce agreement to be an enforceable document under French law. From a judicial divorce, the French divorce, in the event of an agreement between the spouses, has become a purely administrative divorce. The judge only intervenes if a minor child requests to be heard.

The implications and consequences of this reform in an international environment were deliberately ignored by the French legislator, with a blatant disregard for the high proportion of divorce with an international component in France. The main violations arising from this reform are the following.

First of all, as there will be no control of the jurisdiction, anyone will be able to get a divorce by mutual consent in France, even though they have absolutely no connection with France whatsoever. For instance, a couple of German spouses living in Spain will now be able to use this new method of divorce, in breach of the provisions of the Brussels IIbis Regulation. The new divorce legislation is also problematic in so far as it remains silent on the law applicable to the divorce.

Moreover, the Brussels IIbis Regulation states that the judge, when he grants the divorce (and therefore rules on the visitation rights upon the children, or issues a support order, for instance) provides the spouses with certificates, that grant direct enforceability to his decision in the other member states. Yet, the new divorce legislation only authorizes the notary to deliver the certificate granting enforceability to the dissolution of the marriage itself, but not the certificate related to the visitation rights, nor the support order. This omission is problematic insofar as it will force the spouses who seek to enforce their agreement in another member state to seize the local Courts.

Last but not least, article 24 of the Charter of Fundamental Rights of the European Union makes it imperative for the child’s best interests to be taken into consideration above all else, and article 41 of the Brussels IIbis Regulation provides that the child must be heard every time a decision is taken regarding his residency and/or visitation rights, unless a neutral third party deems it unnecessary. Yet, under the new legislation, it is only the parents of the child who are supposed to inform him that he can be heard, which hardly meets the European requirements. Moreover, article 12 of the Brussels IIbis Regulation provides that, when a Court is seized whereas it isn’t the Court of the child’s habitual residence, it can only accept its jurisdiction if it matches the child’s best interests. Once again, the absence of any judicial control will allow divorces to be granted in France about children who never lived there, without any consideration for their interests. This might be the main violation of the European legislation issued by this reform.

For all those reasons, the plaintiffs recommend that the Union invites France to undertake the necessary changes, in order for this new legislation to fit harmoniously in the European legal space. In particular, they suggest a mandatory reviewal by the judge in the presence of an international component, such as the foreign citizenship of one of the spouses, or a foreign habitual residence. They would also like this new divorce to be prohibited in the presence of a minor child, an opinion shared by the French ‘Défenseur des Droits’“

The full text of the complaint (in French) is available here.

Saugmandsgaard ØE this morning Opined in Joined Cases C‑168/16 and C‑169/16, Nogueira et al and Osacar v Ryanair. Reference in the case was made by the Court of Appeal at Mons /Bergen in the Ryanair case I reported on in first instance. The weakest part of that judgment, I noted, was that it looked to the employer’s organisation as the most relevant criterion when deciding upon place of habitual employment. That clearly went against the favor laboris inherent in Article 19 of the Brussels I Recast Regulation.

The Advocate General at 100 in particular agrees with that view. Regular readers will know that I do not tend to paraphrase for the sake of it hence reference is best made to the AG’s Opinion as a whole. In summary:  Saugmandsgaard ØE recalls that CJEU case-law on the matter essentially requires the courts to either identify the ‘place where’ the employee principally carries out his obligations vis-à-vis his employer, or the ‘place from which’ he principally carries out those obligations. The workers at issue were employed as cabin crew on aircraft operated by Ryanair. Those employees performed their work in more than one Member State, namely in Belgium, where the airport of departure (Charleroi) was situated, the Member State of the airport of arrival and any other Member States crossed during the flight.  The AG suggests (at 92) that it is not possible, in such circumstances, to identify a ‘place where’ those employees principally carried out their obligations vis-à-vis their employers, for it is difficult to attach greater weight to the tasks carried out by those employees in the airport of departure, on board the aircraft or in the airport of arrival.

A ‘place from which’ those employees principally carried out their obligations vis-à-vis their employers, however, can be identified.  The referring court had listed a number of factual considerations among which the AG suggests the following as being highly relevant: (97 ff)

First, appellants started and ended their working day at Charleroi Airport. To the AG’s mind, that fact is of overriding importance, which he suggests is confirmed by the Court’s consistent case-law in particular Koelzch and Voogsgeerd.

Second, appellants received the instructions relating to their tasks and organised their work at Charleroi Airport, by consulting their employers’ intranet. (It is on this point that the AG rejects any relevance of the location of organisation of the work schedule by the employer).

Third, the aircraft operated by Ryanair, and on board which appellants worked as cabin staff, were based at Charleroi. Here the AG refers to CJEU case-law that, in the international transport sector, the place where the work tools are located constitutes a relevant indicium for the purposes of determining the place from which the worker principally fulfils his obligations vis-à-vis his employer.

Fourth, appellants were contractually required to live less than one hour from Charleroi Airport. It is noteworthy that this indication refers not to the worker’s actual place of residence but rather to the place of work near which he lives, namely Charleroi Airport in the main proceedings (at 103).

Fifth, the referring court noted that Ryanair and Crewlink jointly had a ‘crew room’ at Charleroi Airport. The existence of an office made available by the employer is another factor the relevance of which has been emphasised in the Court’s case-law. That this is not formally a ‘branch’ of either company, is irrelevant.

Finally, appellants were required to attend Charleroi Airport if they were unfit for work and in the event of disciplinary problems.

The AG points out that on the basis of the criteria, the Court at Mons formally will have to complete the analysis, however he concludes (at 107) that on the basis of the findings of fact communicated by that court in its request for a preliminary ruling, those six indicia unequivocally designate the courts of the place where Charleroi Airport is situated.

A few other issues are worth mentioning. Firstly (at 108) whether the worker is directly employed by Ryanair (Case C‑169/16) or assigned to Ryanair by Crewlink (Case C‑168/16) is irrelevant for the purposes of identifying the place where the work is habitually carried out, within the meaning of Article 19(2)(a) of Regulation No 44/2001. That place, the AG suggests, is independent of the legal link between the worker and the person who benefits from the work done.

Further, the AG suggests not to have the concept of ‘home base’ infiltrate the analysis: this is a term used in relevant EU civil aviation law. At 109 ff: ‘place where the employee habitually carries out his work’, used in Article 19(2) of Regulation No 44/2001, should not have to depend on a concept in an act of Union law which belongs to a quite different area, namely that of the harmonisation of rules in the civil aviation sector. At 116: the relevance of the home base, for the purposes of identifying the place where the contract of employment is habitually carried out, is only indirect. Indeed, it should be taken into account only in so far as it supports the indicia mentioned above as relevant for the purposes of identifying that place.

Further and convincingly, the AG emphatically suggests that the nationality of the aircraft is entirely irrelevant for the discussion (118 ff).

Finally, at 73 ff the AG suggests that there ought to be parallel interpretation of the findings on jurisdiction, and the rules on applicable law, among others in the Rome I Regulation. Those rules were not included in the referring court’s request for preliminary ruling.

We have to await the Court’s judgment, of course. However all in al this is a convincing Opinion which, as specifically flagged by the AG (at 101), is instrumental in addressing forum shopping by employers and consequently will be extremely helpful in addressing social dumping in the EU.

Geert.

Handbook of) EU Private International Law, 2nd ed 2016, Chapter 2, Heading , Chapter 3, Heading 3.2.5.

The first issue of a new periodical, called Freedom, Security & Justice: European Legal Studies, is now on-line.

In addition to the inaugural editorial by Angela Di Stasi, the issue hosts contributions (some written in Italian, others in English) by Maria Caterina Baruffi (on international child abduction), Dominik Düsterhaus (on mutual trust), Caterina Fratea (on the labour mobility), Angela Maria Romito (on cross-border debt recovery), Valentina Faggiani (on fundamental guarantees in criminal proceedings), Maria Font i Mas (on the movement of public documents across borders), Sílvia Morgades-Gil (on forced migration) and Alfredo Rizzo (on the external dimension of the European area of freedom, security and justice).

The University of Ferrara will host on 5 May 2017 a seminar titled ‘Universal Civil Jurisdiction – Which Way Forward?‘, in cooperation with the Interest Groups on International and European Human Rights Law and Private International Law of the Italian Society of International and EU Law (ISIL).

The seminar will be chaired by Judge Giorgio Gaja (International Court of Justice). Speakers and discussants include Beatrice Bonafè (University of Rome ‘La Sapienza’), Francesco Costamagna (University of Turin), Malgosia Fitzmaurice (Queen Mary University of London), Serena Forlati (University of Ferrara), Pietro Franzina (University of Ferrara), Patrick Kinsch (University of Luxembourg), Fabrizio Marongiu Buonaiuti (University of Macerata), Makane Moïse Mbengue (University of Geneva), Cesare Pitea (University of Parma), Chiara Ragni (University of Milan), Cedric Ryngaert (University of Utrecht), Andrea Saccucci (University of Campania ‘Luigi Vanvitelli’). 

Si svolgerà a Ferrara, il 5 maggio 2017, un seminario intitolato “Universal Civil Jurisdiction – Which Way Forward?”, organizzato in cooperazione con i Gruppi di interesse sul Diritto internazionale ed europeo dei diritti umani e sul Diritto internazionale privato e processuale della Società italiana di diritto internazionale e diritto dell’Unione europea (SIDI).

I lavori saranno coordinati dal Giudice Giorgio Gaja (Corte internazionale di giustizia). Interverranno: Beatrice Bonafè (Università di Roma‘La Sapienza’), Francesco Costamagna (Università di Torino), Malgosia Fitzmaurice (Queen Mary University di Londra), Serena Forlati (Università di Ferrara), Pietro Franzina (University di Ferrara), Patrick Kinsch (Università di Lussemburgo), Fabrizio Marongiu Buonaiuti (Università di Macerata), Makane Moïse Mbengue (Università di Ginevra), Cesare Pitea (Università di Parma), Chiara Ragni (Università di Milano), Cedric Ryngaert (Università di Utrecht), Andrea Saccucci (Università della Campania ‘Luigi Vanvitelli’).

Charles Oellermann has excellent analysis of Spizz v. Goldfarb Seligman & Co. (In re Ampal-Am. Israel Corp. 562 B.R. 601 (Bankr. S.D.N.Y. 2017). The U.S. Bankruptcy Court for the Southern District of New York ruled that the avoidance provisions of the Bankruptcy Code do not apply outside the U.S. because, on the basis of the language and context of the provisions, Congress did not intend for them to apply extraterritorially. In so holding, it applied the Morrison test which was central to the United States’ Supreme Court ruling in Kiobel, which of course has been the subject of repeated analysis on this blog.

Whether an avoidance action (which in civil law jurisdictions would be tackled by an actio pauliana) is extraterritorial in and of itself, is not easily ascertained. In his review, Charles has superb overview of case-law applying a centre of gravity test: depending on the facts of the case, parties’ action does or does not take place outside the US in relation to the parties’ domicile, the subject of the transaction, etc.  He also rightfully highlights that courts are aware that even if one were to apply the provisions extraterritorially, a US judgment might not be easily enforced against foreign debtors.

Case-law is evidently not settled and one imagines that the extraterritoriality of bankruptcy laws will in some form further end up at the USSC.

Geert.

Silvia Pfeiff,  La portabilité du statut personnel dans l’espace européen, Bruylant, 2017, ISBN 9782802757429, pp. 718, EUR 150

Opposer un refus de reconnaissance au statut personnel d’un individu revient à renier une partie de son identité. Le fait que des citoyens européens puissent subir les inconvénients liés, par exemple, à un refus de reconnaissance de leur mariage, de leur partenariat ou de leur filiation lors de l’exercice de leur liberté de circulation est-il compatible avec les droits et libertés garantis par la Convention européenne des droits de l’homme et les traités européens ? Cette question a mené l’auteur à s’interroger sur l’étendue des droits et libertés européens, tels qu’ils découlent de la jurisprudence de la Cour européenne des droits de l’homme et de la Cour de justice de l’Union européenne, et à explorer les pistes de solutions que recèle aujourd’hui le droit européen en tant que cadre supranational pour l’ensemble des États membres. Sur base de cet acquis européen est élaborée une méthode européenne de la reconnaissance. Celle-ci impose aux autorités nationales d’intégrer la logique européenne dans leur raisonnement lorsqu’elles sont saisies de la question de la reconnaissance d’un élément du statut personnel cristallisé par l’intervention d’une autorité publique d’un État membre. Ce faisant, elle ambitionne de réduire la survenance de statuts personnels boiteux et de contribuer ainsi à faciliter la circulation des citoyens. Cet ouvrage s’inscrit dès lors à la croisée du droit de la famille, du droit international privé, du droit européen et des droits fondamentaux.

Koray Söğüt and Suha Yılmaz reported recently on Turkish Supreme Court case-law in the area of choice of court. The report is very much worth a read. On choice of court agreements, what the Supreme Court seems to say is that when choice of court is made away from Turkey,  Turkish law will make that choice subject to a de facto forum conveniens assessment: if Turkey is a suitable forum especially when the eventual judgment will be easily enforced against Turkish assets, a defendant’s insistence on exercising the clause must be seen as violating Turkey’s general provision on bad faith (a form of fraus omnia corrumpit).

It is also reported that the Supreme Court accepted a unilateral /asymmetric jurisdiction clause – the issues surrounding these clauses are a regular feature on this blog.

More cases for the comparative law class! (At least if and when I get hold of an English translation).

Geert.

Many of the issues in [2017] EWHC 161 (Comm) Commerzbank v Liquimar Tankers were also raised in Perella v Codere,  albeit there, as I reported, obiter. In current case, they were very much dicta, and they amount to the English courts viewing (properly constructed) asymmetric clauses as being exclusive. As such they fall under the new anti-torpedo provisions of Article 31(2).

Applications of defendants Liquimar Tankers (registered in Liberia but with head office in Athens) are being made in the course of proceedings in London by Commerzbank  in two separate actions in relation to the repayment of loans which the Bank extended for the building of a number of ships. There are ongoing proceedings taken by the defendants against the Bank in Piraeus, Greece concerning the same and/or related issues.

The Liquimar guarantee contained a governing law and an asymmetric jurisdiction clause, which was essentially similar in the other loan agreements. It provided:

“16 Law and Jurisdiction

16.1 This Guarantee and Indemnity shall in all respects be governed by and interpreted in accordance with English law.

16.2 For the exclusive benefit of the Lender, the Guarantor irrevocably agrees that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Guarantee and Indemnity and that any proceedings may be brought in those courts.

16.3 Nothing contained in this Clause shall limit the right of the Lender to commence any proceedings against the Guarantor in any other court of competent jurisdiction nor shall the commencement of any proceedings against the Guarantor in one or more jurisdictions preclude the commencement of any proceedings in any other jurisdiction, whether concurrently or not.

16.4 The Guarantor irrevocably waives any objection which it may now or in the future have to the laying of the venue of any proceedings in any court referred to in this Clause and any claim that those proceedings have been brought in an inconvenient or inappropriate forum, and irrevocably agrees that a judgment in any proceedings commenced in any such court shall be conclusive and binding on it and may be enforced in the courts of any jurisdiction …”.

Article 31(2) of the Brussels I Recast reads:

‘where a court of a Member State on which an agreement as referred to in Article 25 confers exclusive jurisdiction is seized, any court of another Member State shall stay the proceedings until such time as the court seized on the basis of the agreement declares that it has no jurisdiction under the agreement.’

Cranston J held that the concept of ‘exclusivity’ should be autonomously interpreted under the Brussels I (Recast) regime. He did not however refer for preliminary reference to the CJEU: as such, the High Court’s finding continues to be vulnerable until we have precedent from Luxembourg. The judgment as a whole is worth a read – readers in for concise summary, please refer to Herbert Smith’s analysis.

Summing up is done in para 70, with justifiable emphasis on parties’ and the Regulation’s intentions (but as noted with considerable reference to precedent and principles of statutory interpretation): Thus with the asymmetric jurisdiction clauses in the present case, the defendants agreed to sue only in the courts of one EU Member State, England. Instead, they have enabled another court, the Greek court, to be seized of the matter. It would undermine the agreements of the parties, and foster abusive tactics, if the jurisdiction clauses in these agreements were to be treated not as exclusive, but as non-exclusive.’ 

Of note is also the discussion on the role of recitals (eg. at 69; also at 77 ff). Justice Cranston’s arguments are supported by reference to a number of recitals. Defendant in my view has a valid point in principle where they argue at 77 that ‘a recital cannot constitute a rule when it is not reflected in the words of Article 31(2).‘ (Although they were wrong on substance).

A subsidiary argument in the case also merits further attention. Defendants argue that Article 25 requires the parties to have designated the courts of a Member State to enable the law applicable to the substantive validity of a jurisdiction clause to be identified and to provide certainty as to the forum in which a putative defendant can expect to be sued. That, they submit, is not achieved by a clause which designates the courts of all other competent states, including those of non-Member States, outside the territorial competence of the EU, which could mean suits in multiple jurisdictions. Although the argument could be phrased more precisely, I do agree with it: in the absence of a nominatim lex contractus for the choice of court clause specifically, the new lex fori prorogati rule in Article 25 Brussels I Recast, combined with recital 20 (yet again the troublesome habit of EU private international law to include substantive rules in recitals only) does create a vacuum in the case of hybrid, asymmetric or even non-exclusive choice of court.

An important case. Not the last we have heard of the issues.

Geert.

(Handbook of) European Private international law, 2nd ed. 2016, Ch.2, Heading 2.2.9, Heading 2.2.9.4.1, Heading 2.2.9.5.