Droit international général

This book brings together the contributions made at the 6th AEPDIRI Seminar on current issues in Private International Law, held at the Faculty of Law of the University of Seville, which was entitled “De los retos a las oportunidades en el derecho de familia y sucesiones internacional” (From challenges to opportunities in international family and succession law), Campuzano Díaz, B., Diago Diago, P., Rodríguez Vázquez, Mª.A. (dirs.). An English translation of the blurb is provided by the directors:

The book is structured in four thematic sections. The first one is dedicated to Regulation 2019/1111 and its application in Spain, analysing important issues related to international child abduction and divorce before non-judicial authorities and its recognition. The second thematic section is dedicated to the economic regime of marriage and the couple, inheritance and the organisation of family assets, with reflections on the impact of the principle of equality between spouses and the protection of assets through international estate planning institutions, among other issues. The third section deals with questions of civil status and the solutions provided by the Spanish Civil Registry Law, with special attention to filiation in Private International Law from the perspective of the protection of fundamental rights and the respect for family life. The fourth section includes studies about current realities, such as situations of domestic violence in cases of international child abduction, negotiable institutions and their place in the succession Regulations and the interpretation of private international family law in different High Courts (CJEU and ECtHR).

It is a book of great interest, not only because of the importance and diversity of the subjects dealt with, but also because of the important group of specialists in international family and succession law who have participated in its drafting.

The book is published in digital and open access format:

https://open.tirant.com/cloudLibrary/ebook/info/9788411978248

https://www.aepdiri.org/index.php/las-publicaciones/otras-publicaciones/2170-campuzano-diaz-b-diago-diago-p-rodriguez-vazquez-m-a-dirs-de-los-retos-a-las-oportunidades-en-el-derecho-de-familia-y-sucesiones-internacional

The seventh edition of the French leading treatise on the European law of jurisdiction and foreign judgments in civil and commercial matters (Compétence et exécution des jugements en Europe – Règlements 44/2001 et 1215/2012 – Conventions de Bruxelles (1968) et de Lugano (1988 et 2007)) has just been published.

It is authored by Emeritus Prof. Hélène Gaudemet-Tallon and Prof. Marie-Elodie Ancel (both Paris II University).

The blurb reads:

Les textes étudiés dans cet ouvrage – Convention de Bruxelles du 27 septembre 1968, règlements 44/2001 et 1215/2012 – portent sur la compétence directe ainsi que sur la reconnaissance et l’exécution des décisions ; ils doivent assurer la réalisation d’un véritable « espace judiciaire européen » en matière civile et commerciale. Le règlement 1215/2012 (dit Bruxelles I bis) a apporté des modifications substantielles au règlement 44/2001. L’application de ces textes est guidée par une riche jurisprudence de la Cour de justice de l’Union européenne.

Dans le cadre de l’AELE, les Conventions de Lugano de 1988, puis de 2007, ont adopté des systèmes « parallèles », d’abord à la Convention de Bruxelles de 1968 puis au règlement 44/2001. La Convention de 2007 est en vigueur entre tous les États de l’Union européenne, la Norvège, l’Islande et la Suisse.

Cette septième édition, tenant compte de l’évolution des textes et de la jurisprudence ainsi que de la sortie du Royaume-Uni de l’Union européenne, a pour ambition d’être utile non seulement aux universitaires (étudiants et enseignants) s’intéressant au droit international privé européen, mais aussi aux praticiens (magistrats, avocats, notaires) qui appliquent ces textes.

More details are available here.

By Poomintr Sooksripaisarnkit

Lecturer in Maritime Law, Australian Maritime College, University of Tasmania

Introduction

On 14th February 2024, the High Court of Australia handed down its judgment in Carmichael Rail Network Pty Ltd v BBC Chartering Carriers GmbH & Co KG [2024] HCA 4. The case has ramifications on whether a foreign arbitration clause (in this case, the London arbitration clause) would be null and void under the scheme of the Carriage of Goods by Sea Act 1991 (Cth) which makes effective an amended version of the International Convention on the Unification of Certain Rules of Law relating to Bills of Lading, Brussels, 25 August 1924 (the “Hague Rules”). The argument focused on the potential effect of Article 3(8) of the Amended Hague Rules, which, like the original version, provides:

“Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to, or in connection with, goods arising from negligent, fault, or failure in the duties and obligations provided in this article or lessening such liability otherwise than as provided in these Rules, shall be null and void and of no effect. A benefit of insurance in favour of the carrier or similar clause shall be deemed to be a clause relieving the carrier from liability”.

BRIEF FACTS OF THE CASE

The case involved a carriage of head-hardened steel rails from Port of Whyalla in South Australia to the Port of Mackay in Queensland. When the goods arrived at the Port of Mackay, it was discovered that goods were in damaged conditions to the extent that they could not be used, and they had to be sold for scrap. A bill of lading issued by the carrier, BBC, containing the following clauses:

“3. Liability under the Contract

• Unless otherwise provided herein, the Hague Rules contained in the International Convention for the Unification of Certain Rules Relating to Bills of Lading, dated Brussels the 25th August 1924 as enacted in the country of shipment shall apply to this Contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply. In respect of shipments to which there are no such enactments compulsorily applicable, the terms of Articles I-VIII inclusive of said Convention shall apply….”

4. Law and Jurisdiction

Except as provided elsewhere herein, any dispute arising under or in connection with this Bill of Lading shall be referred to arbitration in London. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) terms. The arbitration Tribunal is to consist of three arbitrators, one arbitrator to be appointed by each party and the two so appointed to appoint a third arbitrator. English law is to apply”.

The carrier, BBC, commenced arbitration in London according to Clause 4 of the bill of lading. Carmichael, on the other hand, commenced proceeding before the Federal Court of Australia to claim damages. Carmichael sought an anti-suit injunction to restrain the arbitration proceeding. BBC, on the other hand, sought a stay of the Australian proceeding.

ARGUMENTS IN THE HIGH COURT OF AUSTRALIA

Carmichael contended that Clause 4 should be null and void because of Article 3(8) of the Amended Hague Rules. First, there is a risk that London arbitrators will follow the position of the English law in Jindal Iron and Steel Co Ltd and Others v Islamic Solidarity Shipping Co. Jordan Inc (The “Jordan II”) [2004] UKHL 49 and found the carrier’s duty to properly stow and care for the cargo under Article 3(2) of the Hague Rules to be a delegable duty, as opposed to an inclination of the court in Australia, as shown in the New South Wales Court of Appeal decision in Nikolay Malakhov Shipping Co Ltd v SEAS Sapfor Ltd (1998) 44 NSWLR 371. Secondly, there is a risk that the London arbitrators would construe Clause 3 as incorporating Article I-III of the Hague Rules, instead of the Amended Hague Rules of Australia. This would result in reducing the package limitation defence. Thirdly, there would be more expenses and burdens on the part of Carmichael to have to pursue its claim against BBC in London.

REASONING OF THE HIGH COURT OF AUSTRALIA

Whether Article 3(8) is applicable, the High Court of Australia found as a matter of principle that the court must consider all circumstances (being past, present, or future) whether a contractual clause relieves or lessen the carrier’s liability. The standard of proof to be applied in considering such circumstances is the civil standard of the balance of probability. The court drew support from section 7(2) and section 7(5) of the International Arbitration Act 1974 (Cth), as the parties relied on this piece of legislation in seeking an anti-suit injunction or a stay of the proceeding. In section 7(2), the language is that the court “shall” stay the proceedings if a matter is capable of settlement by arbitration. In section 7(5), again, there is a word “shall” in that the court shall not stay the proceedings under subsection (2) if the court finds the arbitration agreement to be null and void. As the High Court of Australia emphasised in paragraph 25 of its judgment: “For an Australian court to ‘find’ an arbitration agreement null and void … it must be able to do so as a matter of law based on agreed, admitted, or proved fact”. Such proof is on the balance of probabilities pursuant to the Evidence Act 1995 (Cth). Moreover, the Amended Hague Rules in Australia ultimately has the nature of an international convention. The interpretation of which must be done within the framework of the Vienna Convention on the Law of Treaties 1969 which requires that relevant rules of international law must be considered. The burden of proof which international tribunals usually adopt is that of “preponderance of evidence”, which is no less stringent than that of the balance of probabilities. This supports what the High Court of Australia found in paragraph 32 of its judgment that “references to a clause ‘relieving’ a carrier from liability or ‘lessening such liability’ are to be understood as referring to facts able to be found in accordance with the requisite degree of confidence…” Also, the High Court of Australia found the overall purpose of the Hague Rules is to provide a set of rules which are certain and predictable. Any attempt to apply Article 3(8) to the circumstances or facts which are not agreed or admitted or proved would run against the overall objective of the Hague Rules.

A reference was also made to an undertaking made by BBC before the Full Court of the Federal Court of Australia that it would admit in the arbitration in London that the Amended Hague Rules would be applicable to the dispute and BBC did consent to the Full Court of the Federal Court of Australia to make declaration to the same effect. It was argued by Carmichael that the undertaking and the subsequent declaration should not be considered because they came after BBC had commenced the arbitration pursuant to Clause 4. However, the High Court of Australia, emphasised in paragraph 59 that the agreed or admitted or proved facts at the time the court is deciding whether to engage Article 3(8) are what the courts consider. The effect of the undertaking and the declaration are that it should be amounted to the choice of law chosen by the parties within the meaning of section 46(1)(a) of the Arbitration Act 1996 and should effectively supersede the choice of the English law in Clause 4 of the bills of lading.

All the risks pointed out by Carmichael are unreal. First, the indication of the New South Wales Court of Appeal in the Nikolay Malakhov case in respect of Article 3(2) of the Hague Rules was not conclusive as it was obiter only. There is no clear legal position on this in Australia. Secondly, the language of Clause 3 is that Article I-VIII are to be applied if there are “no such enactments”. But the country of shipment in this case (namely Australia) enacts the Hague-Rules. Moreover, there is no ground for any concern in light of the undertaking and the declaration. Lastly, Article 3(8) of the Amended Hague Rules concerns with the carrier’s liability. It is not about the costs or burdens in the enforcement process. Hence, the Australian proceeding is to be stayed.

COMMENT

As the High Court of Australia emphasised, whether Article 3(8) of the Amended Hague Rules is to be engaged depending upon facts or circumstances at the time the court is deciding the question. This case was pretty much confined to its facts, as could be seen from the earlier undertaking and the declaration which the High Court of Australia heavily relied upon. Nevertheless, the door is not fully closed. There is a possibility that the foreign arbitration and the choice of law clause can be found to be null and void pursuant to Article 3(8) if the facts or circumstances are established on the balance of probabilities that the tribunals will apply the foreign law which has the effect of relieving or lessening the carrier’s liabilities.

In Various parties obo minors v Anglo-American South Africa Limited and Others (2020/32777) [2023] ZAGPJHC 1474, the High Court of South Africa has refused to certify two class actions against Anglo American South Africa Limited (‘Anglo’). The proposed class action seeks monetary compensation for two classes from the Kabwe district in Zambia, who have been injured by lead exposure: children and women of childbearing age.

Kabwe is the capital of the Zambian Central Province and home to 225 000 people. Members of the proposed classes are estimated to make up approximately 140 000 members of this population. Kabwe is one of the most lead-polluted locations on the planet.

If forum non conveniens is now a classic hurdle for these kinds of cases in England and Wales (watch this space however for Lugano developments), then class certification presents itself in this judgment as a hurdle to an issue that in my view certainly should go to trial.

Windell J sets the scene [12]: (all footnotes in the quotes from the judgment have been omitted)

The application is unique. The applicants, who are citizens of Zambia and peregrini of this court (i.e, people neither domiciled nor resident in South Africa), are seeking redress in a South African Court, for a wrong committed in Zambia. They seek to hold Anglo liable for lead pollution that occurred during its involvement in the Mine from 1925 to 1974, beginning and ending 97 and 47 years ago respectively (the relevant period). The applicants’ cause of action is based on the tort of negligence. The parties agree that Zambian law will govern the substantive issues (the lex causae) and procedural matters will be governed by South African Law — the lex fori (the domestic law of the country in which proceedings are instituted).

[13] the main points of enquiry under Zambian law are laid out (and agreed)

The Zambian law mirrors the relevant English common law principles, which is part of Zambian law by virtue of section 2(a) of the English Law (Extent of Application) (Amendment Act 2011, Chapter 11). This means that English common law principles form part of Zambian law and are binding on Zambian courts, whereas the decisions of English courts are highly persuasive, even though not absolutely binding. Mr Musa Mwenye SC, the former Attorney General of Zambia, and the applicants’ Zambian law expert, opines that in deserving cases, Zambian courts may depart from English decisions if there are good and compelling reasons to do so but will not depart from established principles. The elements of the tort of negligence are therefore well-established. The Zambian Supreme Court has held that it requires proof of a duty of care; a breach of that duty through negligent conduct; actionable harm; a causal connection between the negligent conduct and the harm, involving both factual and legal causation; and damages.

[15] the criteria for the class action enquiry under South African law are listed:

In determining whether a class action is the appropriate procedural vehicle for the claims, the overarching requirement is the interest of justice (See Mukkadam v Pioneer Foods (Pty) Ltd. In Trustees for the time being of Children’s Resource Centre Trust and Others v Pioneer Foods (Pty) Ltd and Others (CRC Trust) the Supreme Court of Appeal (SCA) identified certain factors to be considered. First, there is a class or classes which are identifiable by objective criteria; Second, a cause of action raising a triable issue; Third, the right to relief depends upon the determination of issues of fact, or law, or both, common to all members of the class; Fourth, the relief sought, or damages claimed, must flow from the cause of action and be determinable and ascertainable; Fifth, if the claim is for damages, there is a suitable procedure for allocating the damages to members of the class; Sixth, the proposed representatives of the classes are suitable to be permitted to conduct the action and represent the class; Seventh, a class action is the most appropriate means of determining the claims of class members, given the composition of the class and the nature of the proposed action.

[19] the conclusion is summarised:

Anglo opposes the application on various grounds. Some of the grounds are valid, while others are not. Hence, I will commence with the three issues that do not pose an insurmountable obstacle to the certification of the class action. They are:  Suitability of the class representatives; Commonality and the Funding Agreements. Following that, I will then determine whether there is a cause of action raising a triable issue, which aspect, in my view, is fatal to the application. Finally, I shall discuss ‘Anglo’s alternative case’ which includes the damages claims, the suitability of an opt-out procedure and the class definitions.

In this blog post, in line with the blog’s general interests (here: the business and human rights angle), I will focus on the ‘triable issue’ analysis seeing as it engages with quite a few cases previously reported on the blog.

I do however also want to draw readers’ attention to the discussion [44] ff of the funding arrangements in light of my research grant (and also here) (research now conducted by Charlotte de Meeûs), with as conclusion

[81] As remarked in the interlocutory application, this court, ‘as the guardian of the child’s best interests, has a heightened duty to scrutinise the funding arrangements. Because the purported claims of thousands of Zambian children may be rendered res judicata by an action in a foreign jurisdiction, it is the duty of the court to ensure that these claims are adequately pursued by way of funding arrangements that are not only sufficient, but that do not deliver extortionate profits for third party funders at the cost of the children and that insulates the classes and their lawyers from undue influence from Kabwe Finance.

[82] Anglo’s concerns are without merit because the necessary safeguards developed by our class action jurisprudence have been built into the proposed funding arrangements. First, the applicants have provided detailed disclosure of the funding arrangements, which is without a doubt among the most detailed and transparent disclosures of any class certification proceeding to date. Second, the terms of the relevant funding agreements are explicit that neither the funder nor LD will exercise control over the case, which is to be conducted by MM on the instructions of the class representatives. Third, the applicants are represented by experienced attorneys and independent advocates who are bound by ethical rules to represent the interests of their clients.

[83] Fourth, the funder is part of the Augusta Group, a leading third-party litigation funder with a well-established track record and reputation. That reputation creates its own safeguard. Abuses and underhanded dealings, of the kind that Anglo alleges, would be disastrous to its professional standing and credibility with the courts. Fifth, the funder is bound by the Association of Litigation Funders’ Code (ALF), which explicitly prohibits funder control of litigation and other abuses. AVL is a member of the ALF and the Code’s requirements have been explicitly incorporated in the Claim Funding Agreement, thereby making them contractually binding on the funder.

[84]       Anglo’s attempt to characterise the Code as inadequate protection ignores the history and significance of the Code, as well as the weight it has been given by courts in England and Wales. The significance of the Code was recently explained in Akhmedova:….

[85]       Sixth, the applicants are protected by the provisions of the CFA, particularly s 5 which gives them the right to seek the review of any terms of the contingency fee agreement and the fees. Seventh, in response to Anglo’s repeated claims that the settlement will be hijacked by funders and lawyers to the detriment of the class, applicants and prospective class members are afforded two critical layers of protection: If the class representatives object to any settlement proposal, they may refer a dispute to an independent senior counsel, in terms of the dispute resolution mechanisms in the Claim Funding Agreement. And the applicants and class members are further protected by the court, as the parties would have to seek judicial approval of any settlement, in terms of the procedures approved in the Nkala settlement judgment

On the applicants’ case for there being a ‘triable issue’, [86] ff

applicants seek redress in a South African court on the basis that Anglo was the parent company and head office of the Anglo group that oversaw, managed and/or advised the Mine from its headquarters in Johannesburg, within the jurisdiction of this court, during the relevant period. It is asserted that Anglo exercised control over the Mine through an ever-changing set of subsidiaries, and although its organisational structure is quite complex, the Mine was firmly a part of Anglo’s ‘group system’….

applicants contend that the question of whether and when a multinational parent company owes a duty of care in respect of the actions of a foreign subsidiary is well-settled in English law, and they are confident that there is sufficient evidence to prove that Anglo owed a duty of care to the members of the classes.

Applicants refer ia to Vedanta and Okpabi.

[89] even Anglo’s expert on English law is of the opinion that ‘an English court would likely determine that the duty of care alleged in the draft POC together with its supporting affidavit raises a real issue to be tried’. He further stated that ‘[I]t will be a question of fact and degree whether or not the evidence adduced demonstrates a sufficient level of knowledge, control, supervision and intervention for the purposes of attaching legal responsibility.’

[90] ff the case for the applicants is further explained: that over the course of its almost 50-year involvement in the Mine’s affairs, Anglo negligently breached its duty of care by, inter alia, failing to conduct the necessary investigations on the impact of lead pollution on the surrounding communities by taking common sense measures, such as long-term sampling of air, water, soil and vegetation and monitoring the health impacts on the local communities in Kabwe [91]; Anglo’s negligence therefore caused or materially contributed to the existing levels of lead pollution in Kabwe and the resulting actionable harm. It is alleged that Anglo acted negligently in at least five material respects: it failed to investigate; it failed to protect; it failed to cease and relocate; it failed to remediate; and it failed to warn [92].

The judge however sides with Anglo’s arguments, outlined [98] ff. In effect Anglo lays all blame with ZCCM, ‘the obvious culprit’ [100], a Zambian state-owned entity and its predecessors in title who it is said at all times from 1905 to 1994 owned and operated the Mine.

Anglo also refer to the Zambia state-controlled Nchanga Consolidated Copper Mines Ltd (NCCM), established January 1970. It argues [105] that following the closure of the Mine in 1994, and in accordance with Zambian legislation enacted in 2000, ZCCM retained all historical liabilities associated with the Mine. It held the legal responsibility to address the environmental and health impacts on Kabwe residents and became responsible for the remediation and rehabilitation of the Mine. In the 2000s, the World Bank and the Zambian government attempted on multiple occasions to assist ZCCM in remediating the Mine’s surroundings. These efforts it is said are ongoing, but they have been largely unsuccessful to date.

[106] Anglo argue that ZCCM’s negligence and omissions is an unforeseeable intervening event (novus actus interveniens), that absolves Anglo of all liability.

The test at certification stage is “not a difficult hurdle to cross” ([113], with reference to authority) yet Windell J concludes the case is both factually and legally hopeless.

“Factually hopeless” 

[117] ff the judge takes issue with applicants’ so-called ‘Broken Hill attitude’ in support of their argument against Anglo. In doing she, she focuses it seems on the much troubled history of Broken Hill, NSW. Australian readers and students of mine sadly will be very familiar with that name and with the 1893 report.

In essence, the judge dismisses relevance of the 1893 Report [120] referring to the unlikelihood, in her view, of Anglo’s knowledge of the report:

Anglo was only established in 1917. There is not any evidence that the Report came to the attention of Anglo at any point (including between 1925 and 1974). The applicants do not explain how an entity, established 24 years after the Report was published, located in a different country and on a different continent, and in an age of basic forms of communication technology, came to know of this Report. In these circumstances, it cannot be suggested that Anglo had knowledge of the harms set out in the Report.

And [121] the judge refers to alleged levels of nuance in the report.

Applicants’ suggestion [119] that Anglo knowing of the issues will be further established following discovery and further research is not further entertained. That would seem an extraordinary lack of engagement with the evidence. All the more so as it would seem that applicants’ reference to a ‘Broken Hill attitude’, which the judge dismisses, is not their shorthand for a particular safety attitude linked to the NSW mine and the 1890s reporting. Rather a reference to an internal Anglo document commissioned in the 1970s with the very title ‘Broken Hill attitude’, that is: Broken Hill, Kabwe. The ‘attitude’ of lack of regard, and of neglect, is one that is signalled in an internal Anglo document, not catch phrased by applicants.

Anglo’s novus actus interveniens argument referred to above, prima facie sits uneasy with the material contribution element of the law of causation and simply cannot be dealt with at this interlocutory stage.

The judge moreover arguably overlooks applicants ‘modicum of common sense’ [119]. It is, with respect, absurd to suggest there is no prima facie proof of Anglo’s historic knowledge of the harm of lead and more specifically knowledge of harm to the historical Kabwe community. Knowledge of the “adit to alloy” so to speak harm associated with all aspects of lead is historically exceedingly well established. Anglo’s approach to it at a mine in which it was clearly involved for a long period, cannot be readily dealt with at certification stage.

The judge concludes [128] that before the early 1970s, there is no evidence to imply that Anglo was specifically aware of the risks that lead pollution posed to the historical Kabwe community.

The contentions and counterarguments about what ought to have taken place from an engineering point of view to mitigate the risk, in my view are to be discussed at trial, not at certification stage, and the judge’s suggestions [134] ff that at trial applicants would not fair better would seem to exceed the prima facie level required at certification stage (as well as sitting uneasily with the Supreme Court finding in Okpabi).

“Legally hopeless”

[145] ff the applicants’ legal arguments, too, are held not to be sufficient in most succinct manner. In essence, the judge dismisses the relevance of ‘current’ authorities such as Vedanta etc. She distinguishes it as follows [148]

to establish that Anglo owed a duty of care 50 years and more ago to the proposed class members currently living in the Kabwe district, this court must be satisfied that there is prima facie evidence to find that between almost 100 and nearly 50 years ago, Anglo must have foreseen that the current community, not the historical community, would suffer harm from lead released into the environment by the Mine during the relevant period.

Relevant authority in the judge’s view is rather Cambridge Water [1994] 2 A.C. 264.

One imagines English tort lawyers will have a lot to say on the most concise (8 paras) discussion of the common law duty of care authority, that leads the judge to her finding that the case is legally untenable.

I understand permission to appeal is being sought, as it should.

Geert.

The judgment denying class certification in claim against Anglo American on behalf of Zambian claimants re lead pollution in Kabwe, Zambia is now here https://t.co/N9m9HEZZih

Appeal likely

Held [117] ff case is factually and legally flawed
More on the blog soon (eg re funding) pic.twitter.com/tF9kojek7A

— Geert Van Calster (@GAVClaw) January 31, 2024

Pursuant to Article 9 of the Rome II Regulation on the law applicable to non-contractual obligations, the law applicable to an industrial action is the law of the country where the action has been taken.

In a judgment of 5 February 2024, the Norwegian Labour Court relied on the  conflict-of-law rule enshrined in the above provision in a case concerning an industrial action taken by employees conducting work for the Norwegian oil drilling industry on the Norwegian continental shelf on international waters in the North Sea. Relying on Norwegian law instead of UK law, the Norwegian Labour Court held that the industrial action had been lawful.

At the very centre of the North Sea, close to where the continental shelves of the UK, Norway, Denmark, Germany and the Netherlands almost intersect, a collective labour dispute arose regarding the employment conditions for oil workers. The concerned oil workers, all UK citizens living in the UK, were employed by a UK company to conduct well stimulation for an oil drilling platform located at the Ekofisk field on the Norwegian continental shelf from a Norwegian-registered ship operating out of Esbjerg, Denmark. When collective agreement negotiations between the UK company and the Norwegian trade union – in which the employees are members – broke down in 2023, the trade union called a strike.

To support the Norwegian trade union’s claim for a collective agreement, the Norwegian Confederation of Trade Unions (Landsorganisasjonen i Norge) called a sympathy action. In collective labour law, sympathy actions are taken to support fellow organizations, but may also be directed at a collective agreement party. It must here be noted that taking industrial actions toward a collective agreement party is an exception to the normally very strong peace obligation that follows a collective agreement. In the case at hand, the dispute was regarding whether sympathy actions were allowed under the collective agreement. Under the collective agreement, a sympathy action is allowed if it ‘supports a legal industrial action in Norway’. Hence, the task for the Norwegian Labour Court was to interpret whether the industrial action taken in the North Sea was to be considered a legal industrial action in Norway under the collective agreement.

To interpret if the industrial action took place in Norway, the Norwegian Labour Court first held that the localization in the sense of the collective agreement was dependent on the industrial action’s connections to Norway. Here, the Labour Court found that the connecting factors relating to the employment conditions should be given priority. Decisive connecting factors were noted to be both that work was conducted only on the Norwegian continental shelf and that the employees claimed a Norwegian collective agreement.

The next issue for the Labour Court was whether the industrial action was ‘lawful’ in Norway. Here, the private international choice of law rules played a crucial role for the court’s argumentation. In Norway, which is not an EU member state, the EU choice of law regulations are not applicable. However, Norway’s close cooperation with the EU justifies the strong presumption set out by the Norwegian Supreme Court stating that Norwegian choice of law rules shall be consistent with EU choice of law rules unless Norwegian rules clearly deviate from the EU choice of law rules. First, the Norwegian Labour Court noted that collective agreement parties enjoy party autonomy, both under uncodified Norwegian private international law and under the Rome I Regulation on the law applicable to contractual obligations. Consequently, it would have been possible for the collective agreement parties to choose the law that would govern the legality of industrial actions for which sympathy actions are allowed. However, the collective agreement clause’s expression ‘in Norway’, was – in the view of the parties – not a choice of law clause but a referral to Norwegian choice of law rules.

The implicit contractual reference to Norwegian choice of law rules caused the Labour Court to take a preliminary stance on the law applicable to the primary industrial action. This choice of law issue is uncodified in Norwegian private international law, which has historically relied on an individualizing method to point out the applicable law. However, as was mentioned above, modern Norwegian private international law is strongly influenced by EU private international law. Therefore, the Norwegian Labour Court also in this matter consulted the EU conflict-of-law rule for industrial actions in Article 9 of the Rome II Regulation to establish the law applicable to the industrial action.

Article 9 of the Rome II Regulation prescribes that the law applicable to an industrial action shall be the law of the country where the industrial action is taken (lex loci delicti). This is an exception to the general rule in Article 4 that points out the law in the country where the damages occurs as applicable (lex loci damni). According to Recital 27, the reason for the industrial action exception is to protect employees’ and employers’ rights. Noting this, the Labour Court dealt with the delicate issue of localizing the industrial action that was taken at international sea. Here, the Labour Court noted that the industrial action in question was a strike. Holding that a strike under Article 9 of the Rome II Regulation must be located to the place where the work would have been conducted, the Norwegian Labour Court concluded that Norwegian law was applicable.

As an obiter dictum, the court further stated that also if article 9 had not been applicable due to the fact that the industrial actions were taken at international sea, the alternative solutions would give the same conclusion. Under Article 4(3) of the Rome II Regulation, the law of a country to which the tort ‘is manifestly more closely connected’ shall be applied. Applying the escape rule to the facts of the case, the Labour Court held that the industrial action was manifestly more closely connected to Norway than to the UK. Lastly, the Labour Court held that it would make no difference for the conclusion if the connecting factors were weighed under Article 4(3) of the Rome I Regulation or under the Norwegian individualizing method. Norwegian law would apply in either case.

As the primary industrial action was lawful under Norwegian law, the sympathy action was allowed.

Article 9 of the Rome II Regulation has never been applied by the Court of Justice. National case law is also scarce. In legal literature, different interpretations of Article 9 have been suggested. The above factors have resulted in a situation of uncertainty regarding the this provision. For a party that intends to take industrial action in an international context, this unclarity is detrimental. If the applicable law is not foreseeable, it is hard to predict whether an industrial action would be lawful. Therefore, the Norwegian judgment is important, as it stresses the role of the law applicable to an industrial action for the regulation of collective agreements in a certain labour market.

In the Lafarge case (Cass. Crim., 16 janvier 2024, n°22-83.681, available here), the French Cour de cassation (chambre criminelle) recently rendered a ruling on some criminal charges against the French major cement manufacturer for its activities in Syria during the civil war. The decision addresses several key aspects of private international law in transnational criminal lawsuits and labour law.

From 2012 to September 2014, through a local subsidiary it indirectly controlled, the French company kept a cement plant operating in a Syrian territory exposed to the civil war. During the operation, the local employees were at risk of extortion and kidnapping by armed groups, notably the Islamic State. On these facts, in 2016, two French NGOs and 11 former Syrian employees of Lafarge’s Syrian subsidiary pressed criminal charges in French courts against the French mother company. Charges contend financing a terrorist group, complicity in war crimes and crimes against humanity, abusive exploitation of the labour of others as well as endangering the lives of others.

After lengthy procedural contortions, the chambre d’instruction of the Cour d’appel de Paris (the investigating judge) confirmed the indictments in a ruling dated May 18th, 2022.  Here, the part of the decision of most direct relevance to private international law concerns the last incrimination of endangering the lives of others. The charge, set out in Article 223-1 of the French Criminal Code, implicates the act of directly exposing another person to an immediate risk of death or injury likely to result in permanent mutilation or infirmity through the manifestly deliberate violation of a particular obligation of prudence or safety imposed by law or regulation. The chambre d’instruction found that the relationship between Lafarge and the Syrian workers was subject to French law, which integrates the obligations of establishing a single risk assessment report for workers’ health and safety (Articles R4121-1 and R4121-2 of the French Labour Code) and a mandatory safety training related to working conditions (Article R4141-13 of the French Labour Code). On this basis, it upheld the mother company’s indictment for violating the aforementioned prudence and safety obligations of the French Labour Code. Following this ruling, the Defendants petitioned to the French Supreme Court to have the charges annulled, arguing that French law did not apply to the litigious employment relationship.

By its decision of January 16, 2024, the French Cour de cassation (chambre criminelle) ruled partly in favour of the petitioner. By applying Article 8 of the Rome I regulation, it decided that the employment relationship between Lafarge and the Syrian workers was governed by Syrian law, so that, French law not being applicable, the conditions for application of Article 223-1 of the French Criminal Code were not met. Thus, the Cour de cassation quashed Lafarge’s indictment for endangering the lives of others, while upholding the remaining charges of complicity in war crimes and crimes against humanity.

The Lafarge case highlights the stakes of transnational criminal law and its interplay with private international law.

Because of the solidarity between criminal jurisdiction and legislative competence, the field is in principle exclusive of conflict of laws. However, this clear-cut frontier is often blurred.

In Lafarge, a conflict appeared incidentally via the specific incrimination of endangering the lives of others. In a transnational context, the key legal issue concerns the scope of the legal and regulatory obligations covered by the incrimination. A flexible interpretation including foreign law would lead to a (too) broad extension of French courts’ criminal jurisdiction. In the present decision, the Cour de cassation logically ruled, notably on the basis of the principle of strict interpretation of criminal law, that an obligation of prudence or safety within the meaning of Article 223-1 “necessarily refers to provisions of French law”.

Far from exhausting issues of private international law, this conclusion opens the door wide to conflict of laws. Indeed, the court then had to determine whether such French prudence or safety provisions applied to the case.

Under Article 8§2 of the Rome I regulation, absent an employment contract, the law applicable to the employment relationship between Lafarge and the Syrian workers should be the law of the country in which the employees habitually carry out their work –i.e. Syrian law. However, French law could be applicable in two situations: either if it appears that the employment relationships have a closer connection with France (article 8§4 Rome I), or because French law imposes overriding mandatory provisions (article 9 Rome I).

On the one hand, the Cour de cassation dismissed the argument that the employment relationship had a closer connection with France. Previously, the chambre d’instruction considered that the parent company’s permanent interference (“immixtion”) in the management of its Syrian subsidiary (based on a body of corroborating evidence, in particular, the subsidiary’s financial and operational dependence on the parent company, from which it was deduced that the latter was responsible for the plant’s safety) resulted in a closer connection between France and the employment contracts of the Syrian employees. Referring to the ECJ case law, which requires such connection to be assessed on the basis of the circumstances “as a whole”, the Supreme Court conversely held that considerations relating solely to the relationship between the parent company and its subsidiary were not sufficient to rule out the application of Syrian law. Ultimately, the Cour de cassation found that none of the alleged facts was such as to characterize closer links with France than with Syria.

On the other hand, the Cour de cassation rejected the characterization of Articles R4121-1, R4121-2 and R4141-13 of the French Labour Code as overriding mandatory provisions (“lois de police”). Here, the Criminal division of the Cour is adopting the solution set out by the Labour disputes division (chambre sociale) in an opinion issued on the present Lafarge case. In its opinion, the Social division noted that, while the above-mentioned provisions do indeed pursue a public interest objective of protecting the health and safety of workers, the conflict of laws rules set out in Article 8 Rome I are sufficient to ensure that the protection guaranteed by these provisions applies to workers whose contracts have enough connection with France -a questionable utterance in the light of the reasoning of the Cour de cassation in the decision under comment and its strict interpretation of the escape clause.

As a result, the employment relationship between Lafarge and the Syrian workers was governed by Syrian law, with French law not imposing any obligation of prudence or safety to the case. The Supreme court thereby concluded that the conditions for application of Article 223-1 of the French Criminal Code were not met.

The Lafarge decision will have broad implications for transnational litigations.

Firstly, the Cour de cassation confirms the strict interpretation of the escape clause in Article 8§4 of the Rome I regulation. Making extensive reference to the ECJ case law, the Court recalled that when applying Article 8§4, courts must take account of all the elements which define the employment relationship and single out one or more as being, in its view, the most significant (among them: the country in which the employee pays taxes on the income from his activity; the country in which he is covered by a social security scheme and pension, sickness insurance and invalidity schemes; as well as the parameters relating to salary determination and other working conditions).

More importantly, the French Supreme Court limits the consequences of parent companies’ interference (immixtion) in international labour relations and value chain governance. The criterion of interference is commonly used to try to lift the corporate veil for imputing obligations and liability directly to a parent company. By establishing that the parent company’s interference was insufficient to characterize the existence of a closer connection with France, the Cour de cassation circumscribes the spatial scope of French labour law and maintains the territorial compartmentalization of global value chains. It is regrettable, in that respect, that the Supreme court did not precisely discuss the nature of the relationship between Lafarge and the Syrian workers. This solution is nevertheless consistent with the similarly restrictive approach to co-employment adopted by the French courts, which requires a “permanent interference” by the parent company leading to a “total loss of autonomy of action” on the part of the subsidiary. Coincidentally, in the absence of overriding mandatory provisions, the ruling empties of all effectiveness similar transnational criminal actions based on Article 223-1 of the French Criminal Code.

While the Cour de cassation closed the door of criminal courts, French law on corporate duty of care (Loi n° 2017-399 du 27 mars 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d’ordre) offers an effective alternative in the field of civil liability. The aim of this text is precisely to impose on lead companies a series of obligations purported to identify risks and prevent serious violations of human rights and fundamental freedoms, human health and safety, and the environment, throughout the value chain. The facts of the Lafarge case are prior to the enactment of this law. Nevertheless, future litigations will likely prosper on this ground, all the more so with the forthcoming adoption of a European directive on mandatory corporate sustainability due diligence.

By Professor András Osztovits*

I. Introduction

The heart of European economic integration is the Single Market, which can only function properly and provide economic growth and thus social welfare if effective competition rules ensure a level playing field for market players. The real breakthrough in the development of EU competition policy in this area came with Regulation 1/2003/EC, and then with Directive 2014/104/EU which complemented the public law rules with private law instruments and made the possibility to bring actions for damages for infringement of competition law easier.

It is not an exaggeration to say that the CJEU has consistently sought in its case-law to make this private enforcement as effective as possible, overcoming the procedural and substantive problems that hinder it. It was the CJEU which, in the course of its case law, developed the concept of the economic unit, allowing victims to bring an action against the whole of the undertaking affected by the cartel infringement or against certain of its subsidiaries or to seek their joint liability.

The concept of an economic unit is generally understood to mean that a parent company and its subsidiary form an economic unit where the latter is essentially under the dominant influence of the former. The CJEU has reached the conclusion in its case law that an infringement of competition law entails the joint and several liability of the economic unit as a whole, which means that one member can be held liable for the acts of another member.

II. The question referred by the Hungarian Supreme Court

However, there is still no clear guidance from the CJEU as to whether the principle of economic unit can be interpreted and applied in the reverse case, i.e. whether a parent company can rely on this concept in order to establish the jurisdiction of the courts where it has its registered seat to hear and determine its claim for damages for the harm suffered by its subsidiaries. This was the question raised by the Hungarian Supreme Court (Kúria) in a preliminary ruling procedure, in which this issue was raised as a question of jurisdiction. More precisely Article 7 (2) of the Brussels Ia Regulation had to be interpreted, according to which a person domiciled in a Member State may be sued in another Member State, ‘in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur’.

The facts of the case were well suitable for framing and answering this question. The applicant is a company established in Hungary. It is either the majority shareholder or holds another form of exclusive controlling power over a number of companies established in other EU Member States. During the infringement period identified by the Commission in its decision of 19 July 2016, those subsidiaries purchased indirectly, either as owners or under a financial leasing arrangement, 71 trucks from the defendant in several Member States.

The applicant requested, before the Hungarian first-instance court, that the defendant be ordered to pay EUR 530 851 with interest and costs, arguing that this was the amount that its subsidiaries had overpaid as a consequence of the anticompetitive conduct established in the Commission Decision. Relying on the concept of an economic unit, it asserted the subsidiaries’ claims for damages against the defendant. For that purpose, it sought to establish the jurisdiction of the Hungarian courts based on Article 7(2) of Regulation No 1215/2012, claiming that its registered office, as the centre of the group’s economic and financial interests, was the place where the harmful event, within the meaning of that provision, had ultimately occurred. The defendant objected on the ground that the Hungarian courts lacked jurisdiction. The courts of first and second instance found that they lacked jurisdiction, but the Curia, which had been asked to review the case, had doubts about the interpretation of Article 7(2) of the Regulation and referred the case to the CJEU.

III. The Opinion of Advocate General

In his Opinion delivered on 8 February 2024, Advocate General Nicholas Emiliou concluded that the term ‘the place where the harmful event occurred’, within the meaning of Article 7(2) of Regulation No 1215/2012, does not cover the registered office of the parent company that brings an action for damages for the harm caused solely to that parent company’s subsidiaries by the anticompetitive conduct of a third party.

In his analysis, the Advocate General first examined the jurisdictional regime of the Brussels Ia Regulation, then the connecting factors in the context of actions for damages for infringements of Article 101 TFEU, and finally the question of whether the place of the parent company’s seat can be the place where the damage occurred in the case of damage suffered by a subsidiary. He recalled that, according to the relevant case-law of the CJEU, rules of jurisdiction other than the general rule must be interpreted restrictively, including Article 7. He pointed out that ‘the place where the harmful event occurred’ within the meaning of that provision does not cover the place where the assets of an indirect victim are affected. In the Dumez case, two French companies, having their registered offices in Paris (France), set up subsidiaries in Germany in order to pursue a property development project. However, German banks withdrew their financing, which lead to those subsidiaries becoming insolvent. The French parent companies sought to sue the German banks in Paris, arguing that this was the place where they experienced the resulting financial loss. According to the Advocate General, the applicant in the present action is also acting as an indirect victim, since it is seeking compensation for damage which first affected another legal person.

Recalling the connecting factors in actions for damages for infringement of Article 101 TFEU, the Advocate General pointed out that there were inconsistencies in the case law of the CJEU, which needed to be clarified in a forthcoming judgment. Both types of specific connecting factors (place of purchase and the victim’s registered seat) could justify the application of the rule of jurisdiction under Article 7(2) of the Regulation. The Advocate General referred to the Volvo judgment, where the CJEU qualified ‘the place where the damage occurred’ is the place, within the affected market, where the goods subject to the cartel were purchased. The Court has simultaneously reaffirmed, in the same judgment, the ongoing relevance of the alleged victim’s registered office, in cases where multiple purchases were made in different places. According to the Advocate General, the applicant seeks to extend the application of that connecting factor to establish jurisdiction in relation to its claim in which it seeks compensation for harm suffered solely by other members of its economic unit.

The Advocate General referred to the need for predictability in the determination of the forum in cartel proceedings, although he acknowledged that when it comes to determining the specific place ‘where the harm occurred’, the pursuit of the predictability of the forum becomes to some extent illusory in the context of a pan-European cartel.

In examining the Brussels Ia Regulation, the Advocate General recalled that it only provides additional protection for the interests of the weaker party in consumer, insurance and individual contracts of employment, but that cartel victims are not specifically mentioned in the Regulation, and therefore, in its interpretation, the interests of the claimants and defendants must be considered equivalent. Even so, the parent company has a wide range of options for claiming, the victim can initiate the action not only against the parent company that is the addressee of the respective Commission decision establishing an infringement but also against a subsidiary within that parent company’s economic unit. That creates the possibility of an additional forum and may therefore further facilitate enforcement. The victim also has the option of bringing proceedings before the court of the defendant’s domicile under the general rule of jurisdiction, which, while suffering the disadvantages of travel, allows him to claim the full damages in one proceeding. In these circumstences, the Advocate General failed to see in what way the current jurisdictional rules fundamentally prevent the alleged victims of anticompetitive conduct from asserting their rights.

IV. In the concept of economic unit we (don’t) trust?

Contrary to the Advocate General’s opinion, several difficulties can be seen which may prevent the victim parent companies from enforcing their rights if they cannot rely on Article 7(2) of the Brussels Ia Regulation. The additional costs arising from geographical distances and different national procedural systems may in themselves constitute a non-negligible handicap to the enforcement of rights, although this is true for both parties to the litigation. However, the aim must be to minimise the procedural and substantive obstacles to these types of litigation, whose economic and regulatory background makes them inherently more difficult and thus longer in time. It is also true that the real issue at stake in this case is the substantive law underlying the jurisdictional element: whether the parent company can claim in its own name for the damage caused to its subsidiaries on the basis of the principle of economic unit. If so, then Article 7(2) of the Brussels Ia Regulation applies and it can bring these claims in the court of its own registered office. Needless to say, having a single action for damages in several Member States is much better and more efficient from a procedural point of view, and is therefore an appropriate outcome from the point of view of EU competition policy and a more desirable outcome for the functioning of the Single Market. The opportunity is there for the CJEU to move forward and further improve the effectiveness of competition law, even if this means softening somewhat the relevant jurisprudence of the Brussels Ia Regulation, which has interpreted the special jurisdictional grounds more restrictive than the general jurisdiction rules. The EU legislator should also consider introducing a special rule of jurisdiction for cartel damages in the next revision of the Brussels Ia Regulation at the latest.

The fullt text of the opinion is available here (original language: English)

*Dr. András Osztovits, Professor at Károli Gáspár University, Budapest, Hungary, osztovits.andras@kre.hu.  He was member of the chamber of the Hungarian Supreme Court (Kúria) that initiated this preliminary procedure. Here, the author is presenting his own personal views only.

The third issue of the Journal of Private International Law for 2023 has just been published. It contains the following articles:

Chukwuma Samuel Adesina Okoli & Abubakri Yekini, “Implied jurisdiction agreements in international commercial contracts: a global comparative perspective”

This article examines the principles of implied jurisdiction agreements and their validity on a global scale. While the existing scholarly literature primarily focuses on express jurisdiction agreements, this study addresses the evident lack of scholarly research works on implied jurisdiction agreements. As such, it contributes to an understanding of implied jurisdiction agreements, providing valuable insights into their practical implications for international commercial contracts. The paper’s central question is whether implied jurisdiction agreements are globally valid and should be enforced. To answer this question, the article explores primary and secondary sources from various jurisdictions around the world, including common law, civil law, and mixed legal systems, together with insights from experts in commercial conflict of laws. The paper argues for a cautious approach to the validity of implied jurisdiction agreements, highlighting their potential complexities and uncertainties. It contends that such agreements may lead to needless jurisdictional controversies and distract from the emerging global consensus on international jurisdiction grounds. Given these considerations, the paper concludes that promoting clear and explicit jurisdiction agreements, as supported by the extant international legal frameworks, such as the Hague Conventions of 2005 and 2019, the EU Brussels Ia Regulation, and the Lugano Convention, would provide a more predictable basis for resolving cross-border disputes.

Veena Srirangam,  “The governing law of contribution claims: looking beyond Roberts v SSAFA”

The governing law of claims for contribution, where the applicable law of the underlying claim is a foreign law, has long posed a knotty problem in English private international law. The Supreme Court’s decision in Roberts v Soldiers, Sailors, Airmen and Families Association considered this issue in the context of the common law choice of law rules. This article considers the decision in Roberts and claims for contribution falling within the scope of the Rome II Regulation, the Rome I Regulation as well as the Hague Trusts Convention. It is argued here that claims for contribution arising out of the same liability should be considered as “parasitic” on the underlying claim and should prima facie be governed by the applicable law of the underlying claim.

Weitao Wong, “A principled conflict of laws characterisation of fraud in letters of credit”

This article examines how the issue of fraud in letters of credit (which constitutes a critical exception to the autonomy principle) should be characterised in a conflict of laws analysis; and consequently, which law should apply to determine if fraud has been established. It argues that the fraud issue has thus far been incorrectly subsumed within the letter of credit contract, rather than being correctly characterised as a separate and independent issue. On the basis of fundamental conflict of laws principles and policies, this article advocates that the fraud issue should be characterised separately as a tortious/delictual issue. It then discusses how some of the difficulties of such a conflicts characterisation may be adequately addressed.

Zlatan Meški, Anita Durakovi, Jasmina Alihodži, Shafiqul Hassan & Šejla Handali?, “Recognition of talaq in European states – in search of a uniform approach”

The paper aims to answer the question if and under which conditions a talaq performed in an Islamic state may be recognised in European states. The authors provide an analysis of various forms of talaq performed in different Islamic states and reach conclusions on the effects that may be recognised in Europe, with an outlook towards a possible uniform approach. The recognition of talaqs in England and Wales, Germany and Bosnia and Herzegovina are used as examples for different solutions to similar problems before European courts. The EU legislator has not adopted a uniform approach to the application and recognition of talaqs in the EU. The CJEU got it wrong in Sahyouni II and missed the opportunity to contribute to a uniform EU policy but its subsequent decision in TB opens the door for the CJEU to overturn Sahyouni II if another case concerning a non-EU talaq divorce comes before them. The Hague Divorce Convention of 1970 is an international instrument that provides for appropriate solutions. Ratification by more states in which a talaq is a legally effective form of divorce and by more European states would provide the much-needed security for families moving from Islamic states to Europe.

Sharon Shakargy, “Capacitating personal capacity: cross-border regulation of guardianship alternatives for adults”

Increasing global mobility of people with disabilities, changes in the measures employed to protect them, and growing awareness of their human rights significantly challenge the existing cross-border protection of adults around the world. National legislations are slow to react to this challenge, and the existing solutions are often insufficient. While the Hague Convention on the Protection of Adults (2000) is imperfect, it offers a solution to this problem. This article discusses the changing approach towards people with disabilities and their rights and demonstrates the incompatibility of the local protection of adults with their cross-border protection. The article further explores possible solutions to this problem. It then explains why the Hague Adults Convention is the best solution to this problem and what changes should and could be made in order to improve the solution offered by the Convention even further.

Anna Natalia Schulz, “The principle of the best interests of the child and the principle of mutual trust in the justice systems of EU Member States – Return of a child in cross-border cases within the EU in the light of EU Council Regulation 2019/1111 and the situation in Poland”

The suspension of the enforcement of a return order under the Hague Convention on the Civil Aspects of International Child Abduction and EU law, as well as the admissibility of modifying such an order, remains one of the most sensitive matters in cross-border family disputes. The article analyses EU Council Regulations 2201/2003 (Brussels IIa) and 2019/1111 (Brussels IIb) in terms of the objectives set by the EU legislator: strengthening the protection of the interests of the child and mutual trust of Member States in their justice systems. The text also refers to Polish law as an example of the evolution of the approach to the analysed issues. It presents its development, highlights the solutions concerning the competences of the Ombudsman for Children, and provides an assessment of the current legal situation in the context of Brussels IIb.

Bich Ngoc Du, “Practical application of the reciprocity principle in the recognition and enforcement of foreign judgments in civil and commercial matters in Vietnam”

The reciprocity principle was first introduced in Vietnam by Decree 83/1998 to allow for the recognition of foreign non-executionary judgments, decisions on family and marriage matters in Vietnam. It was then adapted in the first Civil Procedure Code in 2004 and was later modified in the current Civil Procedure Code for the purpose of recognition and enforcement of foreign judgments from non-treaty countries. This article examines the practical application of this reciprocity principle in Vietnamese courts by analysing cases in which they have recognised or denied recognition to foreign judgments in civil and commercial matters (that is, non-family matters), as well as a recent development in the Supreme Court’s Resolution Draft on guidance on the recognition and enforcement of foreign judgments, which adopts a presumed reciprocity approach. The article concludes that the courts have not applied the reciprocity principle in a consistent manner. The resolution for this current problem is for the presumed reciprocity approach to be promulgated soon to facilitate a uniform application in the local courts.

Meltem Ece Oba, “Procedural issues in international bankruptcy under Turkish law”

This article examines the procedural issues in a bankruptcy lawsuit with a foreign element from a Turkish private international law perspective. The article begins with a brief overview of the bankruptcy procedure under Turkish domestic law. It then explores the jurisdiction of Turkish courts in an international bankruptcy lawsuit in detail. The effects of a foreign choice of court agreement and parallel proceedings are also addressed in discussing the international jurisdiction of Turkish courts. The article also touches upon the debates on the possible legal grounds for the inclusion of assets located abroad to the bankruptcy estate established before Turkish courts considering the approaches of universalism and territorialism. Finally, problems related to the recognition of foreign bankruptcy decisions are examined.

Review Article:

Uglješa Grušic?, “Transboundary pollution at the intersection of private and public international law”

This article reviews Guillaume Laganière’s Liability for Transboundary Pollution at the Intersection of Public and Private International Law (Bloomsbury Publishing, 2022). This book makes a valuable contribution to private international law scholarship by exploring the relationship between public and private international law and the regulatory function of private international law in relation to transboundary pollution. The book’s focus on transboundary pollution, however, is narrow. A comprehensive and nuanced regulatory response to contemporary environmental challenges in private international law must also address cases where transnational corporations and global value chains are sued in their home states for environmental damage caused in developing states

The following announcement has been shared with us by the Child Support Forum.

The Child Support Forum is pleased to invite every interested stakeholder to an open conference deepening the topic of cross-border maintenance recovery by public bodies.

Due to the increase in international mobility of families, the need for immediate child support in case of default of maintenance payment is growing. This support often consists of advance maintenance payments granted by public authorities, which then must be reimbursed by the debtor. The enormous sums of money that states spend on these benefits make the cross-border enforcement of maintenance by public bodies an important political issue.

The first three meetings of the Child Support Forum showed that there is a great need for exchange between the public bodies. On the one hand, they face different hurdles in enforcing their claims due to the diversity of the maintenance support systems. On the other hand, common problems were also identified. The results of this work will be presented.

In a future perspective, it is clear that the tension between the need for more support for children, for an effective recovery of maintenance against debtors, and debtor protection is growing. It will be interesting to discuss to what extent the States make the grant of benefits dependent on the legal possibilities for reimbursement. For example, in the light of the text of the 2007 Convention and of the EU-Maintenance Regulation, public bodies currently have less support from Central Authorities when they seek reimbursement of maintenance support than children do when they claim child maintenance. Thus, the question arises as to whether debtor protection still justifies this legal situation and how maintenance debtors can be protected from double claims when it is no longer the child alone but a public body that seeks the recovery of maintenance payments.

The conference will mark the end of a series of three seminars on the topic of maintenance recovery by public bodies and is intended to provide insight into its socio-political and legal aspects as well as a unique opportunity for exchange with experts from different fields (academics, Central Authorities, public bodies from different countries).

The conference program can be downloaded here.
To register, please click here

As announced in a previous post, a seminar series on the recast of Brussels I bis Regulation, is taking place during the 2023-2024 academic year, both in Paris at the Cour de cassation and online (in French), under the scientific coordination of Marie-Elodie Ancel (University of Paris-Panthéon-Assas) and Pascal de Vareilles-Sommières (University of Paris 1 Panthéon-Sorbonne).

The third seminar will take place on 26 February 2024 from 16.00 to 18.00 (UTC+1).

It will be devoted to “emerging litigation” in civil and commercial matters, in the context of Brussels I bis Regulation recast. The main topics to be discussed deal with infringements of human rights and the environment as well as class actions.

The list of speakers includes Olivera Boskovic (Paris Cité University), Sabine Corneloup (University of Paris Panthéon Assas), Sandrine Clavel (Paris-Saclay University) and François Mailhé (Picardie-Jules Verne University).

The programme, as well as registration and access details can be found here.

The recording of the previous seminars are available online here and here.

The other seminars will take place from 16.00 to 18.00 (UTC+1) 18 March, 22 April, 30 May and 24 June 2024.

The seminar series is organised by the Research Centre for Private International Law and International Trade (CRDI, University of Paris Panthéon Assas) and the Sorbonne Department Study of International Private Relationships (SERPI, University of Paris 1 Panthéon-Sorbonne), together with the Société de Législation Comparée (SLC), the French national school for the judiciary (ENM) and the French Supreme Court for civil and criminal matters (Cour de cassation).

By Madeleine Petersen Weiner, Research Fellow and Doctoral Candidate at Heidelberg University

Introduction

On 8 February 2024, Advocate General (AG) Szpunar delivered his Opinion on C-633/22 (AG Opinion), submitting that disproportionate damages for reputational harm may go against the freedom of expression as enshrined in Art. 11 Charter of Fundamental Rights of the European Union (CFR). The enforcement of these damages therefore may (and at times will) constitute a violation of public policy in the enforcing state within the meaning of Art. 34 Nr. 1 Brussels I Regulation. The AG places particular emphasis on the severe deterring effect these sums of damages may have – not only on the defendant newspaper and journalist in the case at hand but other media outlets in general (AG Opinion, paras. 161-171). The decision of the Court of Justice of the European Union (CJEU) will be of particular topical interest not least in light of the EU’s efforts to combat so-called “Strategic Lawsuits Against Public Participation” (SLAPPs) within the EU in which typically financially potent plaintiffs initiate unfounded claims for excessive sums of damages against public watchdogs (see COM(2022) 177 final).

The Facts of the Case and Procedural History

Soccer clubs Real Madrid and FC Barcelona, two unlikely friends, suffered the same fate when both became the targets of negative reporting: The French newspaper Le Monde in a piece titled “Doping: First cycling, now soccer” had covered a story alleging that the soccer clubs had retained the services of a doctor linked to a blood-doping ring. Many Spanish media outlets subsequently shared the article. Le Monde later published Real Madrid’s letter of denial without further comment. Real Madrid then brought actions before Spanish courts for reputational damage against the newspaper company and the journalist who authored the article. The Spanish courts ordered the defendants to pay 390.000 euros in damages to Real Madrid, and 33.000 euros to the member of the club’s medical team. When the creditors sought enforcement in France, the competent authorities were disputed as to whether the orders were compatible with French international public policy due to their potentially interfering with freedom of expression.

The Cour de Cassation referred the question to the CJEU with a request for a preliminary ruling under Art. 267 TFEU, submitting no less than seven questions. Conveniently, the AG summarized these questions into just one, namely essentially: whether Art. 45(1) read in conjunction with Arts. 34 Nr. 1 and 45(2) Brussels I Regulation and Art. 11 CFR are to be interpreted as meaning that a Member State may refuse to enforce another Member State’s judgment against a newspaper company and a journalist based on the grounds that it would lead to a manifest infringement of the freedom of expression as guaranteed by Art. 11 CFR.

Discussion

The case raises a considerable diversity of issues, ranging from the relationship between the European Convention on Human Rights (ECHR), the CFR, and the Brussels I Regulation, to public policy, and the prohibition of révision au fond. I will focus on whether and if so, under what circumstances, a breach of freedom of expression under Art. 11 CFR may lead to a public policy violation in the enforcing state if damages against a newspaper company and a journalist are sought.

Due to the Regulation’s objective to enable free circulation of judgments, recognition and enforcement can only be refused based on limited grounds – public policy being one of them. Against this high standard (see as held recently in C-590/21 Charles Taylor Adjusting, ECLI:EU:C:2023:633 para. 32), AG Szpunar submits first (while slightly circular in reasoning) that in light of the importance of the press in a democracy, the freedom of the press as guaranteed by Art. 11 CFR constitutes a fundamental principle in the EU legal order worthy of protection by way of public policy (AG Opinion, para. 113). The AG rests this conclusion on the methodological observation that Art. 11(2)CFR covers the freedom and plurality of the press to the same extent as Art. 10 ECHR (ECtHR, Appl. No. 38433/09 – Centro Europa and Di Stefano/Italy, para. 129).

Under the principle of mutual trust, the Regulation contains a prohibition of révision au fond, Art. 45(2) Brussels I Regulation, i.e., prevents the enforcing court from reviewing the decision as to its substance. Since the assessment of balancing the interests between the enforcement creditors and the enforcement debtors had already been carried out by the Spanish court, the AG argues that the balancing required in terms of public policy is limited to the freedom of the press against the interest in enforcing the judgment.

Since the Spanish court had ordered the defendants to pay a sum for damages it deemed to be compensatory in nature, in light of Art. 45(2) Brussels I Regulation, the enforcing court could not come to the opposing view that the damages were in fact punitive. With respect to punitive damages, the law on enforcement is more permitting in that non-compensatory damages may potentially be at variance, in particular, with the legal order of continental states (cf. Recital 32 of the Rome II Regulation). In a laudable overview of current trends in conflict of laws, taking into account Art. 10(1) of the 2019 Hague Judgments Convention, the Résolution de L’Institut de Droit International (IDI) on infringements of personality rights via the internet (which refers to the Judgments Convention), and the case law of the CJEU and the ECtHR (AG Opinion, paras. 142-158), AG Szpunar concludes that, while generally bound by the compensatory nature these damages are deemed to have, the enforcing court may only resort to public policy as regards compensatory damages in exceptional cases if further reasons in the public policy of the enforcing Member State so require.

The crux of this case lies in the fact that the damages in question could potentially have a deterring effect on the defendants and ultimately prevent them from investigating or reporting on an issue of public interest, thus hindering them from carrying out their essential work in a functioning democracy. Yet, while frequently referred to by scholars, the CJEU (see e.g., in C-590/21 Charles Taylor Adjusting, ECLI:EU:C:2023:633 para. 27), and e.g., in the preparatory work for the Anti-SLAPP Directive (see the explanatory memorandum, COM(2022) 177 final; see also Recital 11 of the Anti-SLAPP Recommendation, C(2022) 2428 final), it is unclear what a deterring effect actually consists of. Indeed, the terms “deterring effect” and “chilling effect” have been used interchangeably (AG Opinion, para. 163-166). In order to arrive at a more tangible definition, the AG makes use of the ECtHR’s case law on the deterring effect in relation to a topic of public interest. In doing so, the deterring effect is convincingly characterized both by its direct effect on the defendant newspaper company and the journalist, and the indirect effect on the freedom of information on society in the enforcing state as a whole (AG Opinion, para. 170). Furthermore, in the opinion of the AG it suffices if the enforcement is likely to have a deterring effect on press freedom in the enforcing Member State (AG Opinion, para. 170: “susceptible d’engendrer un effet dissuasif”).

As to the appropriateness of the amount of damages which could lead to a manifest breach of the freedom of the press, there is a need to differentiate: The newspaper company would be subject to a severe (and therefore disproportionate) deterring effect, if the amount of damages could jeopardize its economic basis. For natural persons like the journalist, damages would be disproportionate if the person would have to labor for years based on his or her or an average salary in order to pay the damages in full. It is convincing that the AG referred to the ECtHR’s case law and therefore applied a gradual assessment of the proportionality, depending on the financial circumstances of the company or the natural person. As a result, in case of a thus defined deterring effect on both the defendants and other media outlets, enforcing the decision would be at variance with public policy and the enforcing state would have to refuse enforcement in light of the manifest breach of Art. 11 CFR (AG Opinion, para. 191).

Conclusion

The case will bring more clarity on public policy in relation to freedom of expression and the press. It is worth highlighting that the AG relies heavily on principles as established by the ECtHR. This exhibits a desirable level of cooperation between the courts, while showing sufficient deference to the ECtHR’s competence when needed (see e.g., AG Opinion, para. 173). These joint efforts to elaborate on criteria such as “public participation” or issues of “public interest” – which will soon become more relevant if the Anti-SLAPP Directive employs these terms –, will help bring legal certainty when interpreting these (otherwise partially ambiguous) terms. It remains to be seen whether the CJEU will adopt the AG’s position. This is recommended in view of the deterrent effect of the claims for damages in dispute – not only on the defendants, but society at large.

Litigating in England is expensive. That is why the number of international family law cases is relatively small in this country. However, when an international family law dispute does end up before an English court, it tends to involve very wealthy individuals and can be quite spectacular. One such case is Potanina v Potanin, which concerns a maintenance claim brought by Natalia Potanina against her ex-husband, Vladimir Potanin, “Russia’s richest man” according to Bloomberg.

On 31 January 2024, the UK Supreme Court (Lord Leggatt, Lord Lloyd-Jones and Lady Rose; Lord Briggs and Lord Stephens dissenting) gave a judgment in this case, essentially removing an obscure procedure that had previously precluded respondents from properly arguing their case at the initial stage of deciding whether the applicant should be permitted to make an application for financial relief.

The parties were born in Russia and are both Russian citizens. They married in Russia in 1983 and lived there throughout their marriage. In the 1990s, the husband accumulated vast wealth, estimated to amount to USD20 billion, primarily comprising an ultimate beneficial interest in the shares of a Russian metal and mining company. The parties divorced in 2014, prompting extensive litigation in Russia, the USA and Cyprus, in which the wife unsuccessfully sought to obtain half of the assets beneficially owned by the husband. Following the divorce, the wife relocated to London, becoming habitually resident in England in 2017. In 2018, she applied for permission to seek maintenance.

Part III of the Matrimonial and Family Proceedings Act 1984 gives English courts the power to order financial relief after an overseas divorce. The court has jurisdiction to do so if either party was habitually resident in England throughout the period of one year before the commencement of proceedings or before the overseas divorce. Before making an order for financial relief, the court must consider whether it would be appropriate for an English court to do so, taking account various factors such as the parties’ connections with England, the country in which they were divorced and any other country. If the court is satisfied that it would be appropriate for it to make an order for financial relief, it has the power to make any order it could make in cases of divorce in England. Section 13 of the Act protects respondents by providing that no application under Part III may be made without the court’s permission, obtained in accordance with rules of court. The court may only grant permission if it considers that there is a “substantial ground” for making an application for financial relief.

The judge initially granted permission at a without notice (previously called ex parte) hearing. However, the judge subsequently allowed the husband’s application to set aside the order granting permission on the basis that he had been materially misled. The Court of Appeal allowed the wife’s appeal adopting a strict test for when the power to set aside an order granting permission could be exercised: there had to be some “compelling reason” to do so and in practice only where a decisive authority had been overlooked or the court had been misled; furthermore, it had to be be possible to demonstrate such a compelling reason by a “knockout blow”. This test was derived from Lord Collins’s obiter dictum at [33] of Agbaje v Agbaje.

The Supreme Court held that “If this is indeed how the law presently stands, then I would feel bound to say that, in the eloquent words of Mr Bumble, “the law is an ass.” [30].

This is because the test for when the power to set aside an order granting permission could be exercised violated fundamental principles of procedural fairness. If the husband could not demonstrate by a “knockout blow” that the judge had been misled at the initial without notice hearing, the judge was not entitled to hear any argument from the husband regarding whether the test for granting permission under Section 13 was met or to set aside the permission granted after the without notice hearing. In Potanina, this led to what the court described as a “dystopian” [5], “patently unfair” [31] and “foolish” [32] result that the judge’s initial order granting permission was restored, despite the judge’s later conclusion, after hearing argument from both parties, that the test for granting permission had not been met.

The Supreme Court clarified that there was no requirement to demonstrate a “compelling reason” or that the court had been misled or to deliver a “knockout blow”.

The correct position is that if a court makes an order granting permission under Section 13 after a without notice hearing, the respondent has an absolute unfettered right to apply to set aside the order. At the hearing of such an application, the burden still lies on the applicant to demonstrate a “substantial ground” for making the application for financial relief in England. In this context, the word “substantial” means “solid”.

Because of its conclusion that the judge had not been entitled to reconsider his initial decision, the Court of Appeal failed to address certain grounds of appeal raised by the wife, including the question of applicability and effect of the Maintenance Regulation No 4/2009. As a result, the case was remitted to the Court of Appeal.

Wealthy individuals like Mrs Potanina bring maintenance claims in England because English courts may be more inclined than those of other countries to equally divide the assets, including those beneficially owned by the spouses. Before the Supreme Court judgment, obtaining permission to seek financial relief was relatively easy, as the initial order granting permission was typically granted without notice and the strict test for setting it aside was usually not met. However, the Supreme Court has now decided that this test was wrong in law. The court addressed a procedural issue, not the merits of the claim, in its judgment. While the judgment cannot put an end to “divorce tourism” in England on its own, it will lead to future cases facing greater scrutiny, allowing respondents to properly argue their case at the initial stage of deciding whether the applicant should be permitted to make an application for financial relief.

Over the past two decades, various jurisdictions around the world have created new specialised domestic courts to resolve international commercial disputes. Located in the Gulf region (Abu Dhabi, Dubai, Qatar), in Asia (Singapore, China, Kazakhstan) and in Europe (Germany, France, the Netherlands), these courts enrich the current landscape of the resolution of international commercial disputes. In particular, they present themselves as alternatives to litigation before ordinary courts, on the one hand, and to international commercial arbitration on the other. 

In a recently published book – edited by Man Yip from Singapore Management University and me – we study international commercial courts from a comparative perspective and through various strands of inquiry. First, we offer a detailed analysis of the reasons for the creation of these courts and examine their jurisdictional, institutional and procedural features. Second, we scrutinise the motivations and/or constraints of jurisdictions that have decided against launching their own versions of ‘international commercial courts’. Finally, and most crucially, we systematically review the impact and the success of these courts addressing questions such as: what are the metrics of success, and is success wholly dependent on size of the docket? What role do the courts play in international commercial dispute resolution? What contributions can we expect from them in the future? Are these courts necessary? In addressing these questions, we hope that the book advances our understanding of the role of international commercial courts in the resolution of cross-border disputes.

The book is the result of comparative study prepared for the General Congress of the International Academy of Comparative Law that was held in 2022 in Asunción (Paraguay). It contains 21 national and special reports written by a stellar group of authors:

• Martin Bernet (Bernet Arbitration/ Dispute Management, Switzerland)
• Pamela Bookman (Fordham University, United States)
• Michael Byrne (Dubai International Financial Centre Courts, Dubai),
• Tatiana Cardoso Squeff (Federal University of Rio Grande do Sul, Brazil)
• Gustavo Cerqueira (University of Côte d’Azur, France)
• Edyta Figura-Góralczyk (Cracow University of Economics, Poland),
• David Foxton (High Court of England and Wales, United Kingdom),
• Hoang Thao Anh (University of Law, Hue University, Vietnam),
• Zhengxin Huo (China University of Political Science and Law, People’s Republic of China)
• Saloni Khanderia (OP Jindal Global University, India)
• Kwan Ho Lau (Singapore Management University, Singapore),
• Seipati Lepele (University of Pretoria, South Africa)
• Claudia Lima Marques (Federal University of Rio Grande do Sul, Brazil)
• Chien-Chung Lin (National Yang Ming Chiao Tung University, Taiwan)
• Michele Angelo Lupoi (University of Bologna, Italy)
• María Blanca Noodt Taquela (University of Buenos Aires, Argentina),
• Peter Nørgaard (Danish Ministry of Justice, Denmark)
• Maria Panezi (University of New Brunswick, Canada)
• Thomas Riehm (University of Passau, Germany)
• Clement Salung Petersen (University of Copenhagen, Denmark),
• Elsabe Schoeman (University of Pretoria, South Africa)
• Florian Scholz-Berger (University of Vienna, Austria)
• S.I. Strong (Emory University, United States)
• Willem Theus (KU Leuven and UCLouvain, Belgium)
• Quirin Thomas (University of Passau, Germany)
• Geert Van Calster (KU Leuven, Belgium)
• Vu Thi Huong (University of Law, Hue University, Vietnam)
• Marlene Wethmar-Lemmer (University of South Africa)

More information about the book is available here.

From 8 to 10 May, the University of Zagreb, Croatia, is hosting a conference on Cross-Border Dispute Resolution, organized by Dora Zgrabljic Rotar in cooperation with the Universities of Verona, Italy, and Pittsburgh, USA. The conference will take place in Dubrovnik and is primarily aimed at practising lawyers.

More information can be found on the conference flyer.

I realise Lent has not even kicked off (it does next Wednesday, Valentine’s day) yet the judicial year already has seen a miraculous resurrection. In Skatteforvaltningen v MCML Ltd [2024] EWHC 148 (Comm) (MCML are formerly known as ED&F Man Capital Markets) SKAT did exactly what I suggested they do namely to amend their claim against these defendants to one for deceit.

(I dare say the did not do it upon the blog’s instruction; otherwise a charitable donation might be in order; note here btw for my review of the UKSC judgment in same.)

As Bright J summarises [5], SKAT’s claims at the start of current proceedings were advanced on the basis that the defendants had acted fraudulently. Such claims were, in general (and along with other causes of action), for the tort of deceit. However, in relation to ED&F Man, SKAT did not allege fraud/deceit but only negligent misrepresentation.

[7] On 5 December 2022, SKAT issued fresh proceedings in which ED&F Man was the sole Defendant. SKAT now alleged that ED&F Man knew that the representations in the Tax Vouchers were false or was reckless. SKAT’s claim in these fresh proceedings is for deceit, just as the initial claim against the other defendants which unlike that against ED&F Man, did survive Dicey Rule 3 /the foreign revenue rule.

In my review of the Court of Appeal judgment, under the title “Skat v Solo Capital Partners. When faced with Dicey rule 3, I’ll see your tax claim and raise it to a fraud one.”, I concluded

The title of this piece of course hints at the relevance of claim formulation. It is also exaggerated: SKAT cannot conjure up fraud elements out of nowhere to reinvent a tax claim as one in mere tortious and fraudulent misrepresentation. However it is clear that in cases that are somewhat murky, claim formulation will be crucial to navigate Dicey Rule 3.

I did not suggest that such claim reformulation ought to be tried in the current case for, well, SKAT it would have seemed have spent their powder. Yet this is exactly what SKAT now have done (and given the size of the claim, who can blame them for trying). Yet prima facie the hurdles for such new attempt seem quite formidable:

[33] ff issue estoppel: the arguable identical issue being tried formulated [43]  by defendant’s counsel as “… whether SKAT’s claims for compensation for making tax refunds it was not obliged to make was a foreign revenue claim for the purpose of Dicey Rule 3, now Dicey Rule 20.” That the claim is now in deceit and not negligence arguably does not change that (in light of claimant being the same, and having their cake and eating it).

The judge sees that differently: [48]: “mere similarity and/or a possible inference or deduction is not sufficient to bring into play the doctrine of issue estoppel.”

[50] Henderson v Henderson abuse of process: the fraud claim if it was to be brought at all, could and should have been brought earlier. The discussion on this is lengthy. For their to be abuse, it is necessary both (a) that the claimant could have raised the matter in the earlier proceedings and (b) that the claimant should have done so. A claimant is not lightly to be deprived of the possibility of a genuine claim. Some kind of harassment or serious prejudice is required, and the judge did not find that infringement of the Aldi joinder rule suffices.

The judge adds

1. 1. 1. In reaching this conclusion, I principally have in mind that the court must be cautious about shutting litigants out of their right to justice. The need for caution features prominently in several of the authorities in this area (see paragraph 55 above), and is also required by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
      2. However, it also seems to me relevant that the case SKAT wishes to bring is one of fraud. The general interests of justice, and the wider interests of society as a whole, are not well served if serious financial fraud is not brought to light. If fraud has been committed, the fraudsters should be exposed.

These latter comments of course do not displace the more detailed analysis of the authorities in the previous paras.

The judge refused permission to appeal which the defendants may of course still seek direct from the Court of Appeal. I would have thought there are some unresolved issues of law at stake here.

Geert.

Surprising resurrection of claim earlier dismissed on jurisdictional grounds
New, requalified claim survives estoppel, Aldi, Henderson v Henderson arguments
Background https://t.co/B5DeTbSxqw

Skatteforvaltningen v MCML Ltd [2024] EWHC 148 (Comm)https://t.co/LPY8pd3wzt

— Geert Van Calster (@GAVClaw) February 2, 2024

The latest issue of Lex & Forum, the Greek law review on Private International Law, has been published recently. Paris Arvanitakis, the scientific director of the review, has prepared the following editorial:

Private International Law is fundamental in resolving environmental claims that cross national borders, offering vital legal mechanisms for determining jurisdiction, applicable law, and the recognition and enforcement of judgments. This relationship is particularly significant in an increasingly interconnected world, where environmental issues often transcend geographical boundaries, necessitating a cohesive and robust legal approach to address and resolve such multi-faced transnational disputes effectively. These complicated problems, which constitute the main body of the present issue (Focus), were discussed at a workshop, organized by Lex & Forum on 21.9.2023, chaired and introduced (‘Private international law and environmental disputes’) by Professor at the University of Athens and Director of the Hellenic Institute of International and Foreign Law Mr. Mr. Charis Pamboukis, where presentations were made on ‘Climate justice litigation and private international law’, by Mr. Geert Van Calster , Professor at the Catholic University of Leuven, ‘Collective redress in environmental matters’,  by Lecturer at the University of Malta, Mr. Ioannis Revolidis, ‘Climate litigation: procedural issues’, by Assoc. Professor at the International Hellenic University and member of the the Regulatory Authority for Energy, Mr. Komninos Komnios, ‘Environmental claims in cross-border insolvency’, by Professor at the University of Athens, Ms. Elina Moustaira,  and ‘The impact of third party funding in climate change arbitration: a potential game-changer or too much ado for nothing?’ Ms. by Vasiliki Marazopoulou, Dr.Jur.

Τhis issue includes the Preafatio by Mr. Gilles Cuniberti, Professor at the University of Luxembourg and President of EAPIL, on ‘Mutual Trust Excludes Damages for Suing in other Member States in Breach of Jurisdiction Clause’, which refers to the judgment of the CJEU in the Charles Taylor Adjusting decision case, published also here (commented by Dr. jur. K. Voulgarakis, and Dr. jur. S. Karameros).  The case law section also presents the judgments of the CJEU, 30.3.2023, C-34/21, on the non-infringement of personal data through teaching by videoconferencing due to COVID-19 without the consent of teachers (commented by Dr. jur. R. Tsersidou), CJEU, 30.3.2023, M.Y.M., on the possibility of registering a declaration of renunciation of inheritance in a Bulgarian court before the Registrar of the Athens Magistrate’s Court (commented by Dr. jur. N. Zaprianos), the decision of the Austrian Supreme Court of Cassation, 25.2.2021, on the non-violation of public policy when applying a foreign law of succession that does not provide for a reserved portion on legal succession (commented by Dr. jur. N. Zaprianos), and the domestic decisions Court of Appeal Piraeus 682/2022 on international jurisdiction by joinder of parties of companies that have signed successive shipping contracts (commented by Prof. P. Arvanitakis), and Court of First Instance Athens 922/203 on international jurisdiction and applicable law over the submission of a mentally disabled person under guardianship (commented by Ass. Prof. G.-A. Georgiadis). The issue closes with a special feature on “EU & Global Trade Law”, which features the studies of Professor at Columbia University, Mr. Petros Mavroidis, on “The WTO at Crossroads”, and Professors at the Universities of Gedik/Turkey and Rouen, respectively, K. Bozkurt and Ph. Lombaerde, on “The Cause and Consequences of the Hybrid EU-Turkey Trade Regime”.

Lex & Forum renews its scientific appointment with its readers for the next, 12th issue, with the central theme “Cross-border insolvency”.

First Advocate General Szpunar today opined in C‑633/22 Real Madrid Club  de Fútbol, AE v EE, Société Éditrice du Monde SA. The case was triggeredy a Le Monde article which claimed that Real Madrid Club de Fútbol had retained the services of Dr. Fuentès, the head of a blood-doping ring previously uncovered in the cycling world.

Le Monde later published Madrid’s reaction of denial but refused to retract the piece. Spanish courts imposed a damages and costs award of close to  €400,000, and a lower award on the journalists involved.

The Court of Appeal at Paris refused to recognise let alone enforce the judgment, referring to French ordre public. It concluded that the orders to pay an exceptional amount made against a journalist and a media organisation could not fail to have a deterrent effect on their involvement in the public discussion of matters of community interest such as to curtail the media’s ability to perform its information and monitoring role, meaning that the recognition or enforcement of the judgments pronouncing those penalties would be at variance to an unacceptable degree with French international public policy by interfering with freedom of expression.

Real Madrid submit, in essence, that a review of the proportionality of damages may only be undertaken where those damages are punitive in nature and not compensatory; that, by substituting its own assessment of the harm for that of the court of origin, the Court of Appeal had reviewed the foreign judgment, in breach of Articles 34(1) and 36 of the Brussels I Regulation; that it did not take account of the seriousness of the wrongs accepted by the Spanish court; that the economic situation of persons on whom a financial penalty is imposed is not a relevant criterion in assessing whether the penalty was disproportionate; that the assessment of proportionality should not be carried out by reference to national standards.

Colleagues with much greater authority on SLAPPs will no doubt have more impactful analysis soon: this post is a heads-up.

CJEU authority includes of course Krombach, Trade Agency, Meroni and Diageo, as well as Charles Taylor Adjusting aka Starlight Shipping, EcoSwiss and Renault. The AG (50) points out that the relevant authorities hitherto have engaged with procedural law ordre public exceptions, rather than substantive rules such as here fundamental rights.

(48) ff he discusses parties’ right under Article 6 ECHR and 47 of the Charter, to have a judgment enforced abroad. (60) ff follows discussion of the principle of mutual trust (which earlier today also featured in Inkreal).

(77) ff he discusses the authorities (see both blog posts referred to above and Handbook 4th ed. 2.619 ff) and highlights the existence of freedom of expression as a fundamental EU, as opposed ‘simply’ national right within the realm of EU ordre public. (142) ff discusses the issue of punitive awards and (159) ff the freezing effect of awards such as the one at issue. He comes to the conclusion that refusal of recognition not just can but must happen where the freezing effect of a libel award endangers participation in the public debate, linked to the financial absorption capacity of both the outlet and journalist concerned:

“un État membre dans lequel est demandée l’exécution d’une décision rendue dans un autre État membre, portant sur une condamnation d’une société éditrice d’un journal et d’un journaliste pour l’atteinte à la réputation d’un club sportif et d’un membre de son équipe médicale par une information publiée dans ce journal, doit refuser ou révoquer une déclaration constatant la force exécutoire de cette décision lorsque l’exécution de celle-ci conduirait à une violation manifeste de la liberté d’expression garantie à l’article 11 de la charte des droits fondamentaux.” (emphasis added)

“Une telle violation existe lorsque l’exécution de ladite décision engendre un effet dissuasif potentiel s’agissant de la participation au débat sur un sujet d’intérêt général tant des personnes visées par la condamnation que d’autres sociétés de presse et journalistes dans l’État membre requis. Un tel effet dissuasif potentiel se manifeste lorsque la somme globale dont le paiement est demandé est manifestement déraisonnable au regard de la nature et de la situation économique de la personne concernée. Dans le cas d’un journaliste, l’effet dissuasif potentiel se présente, en particulier, lorsque cette somme correspond à plusieurs dizaines de salaires minimums standard dans l’État membre requis. Dans le cas d’une société éditrice d’un journal, l’effet dissuasif potentiel doit s’entendre comme une mise en danger manifeste de l’équilibre financier de ce journal. Le juge de l’État membre requis peut tenir compte de la gravité de la faute et de l’étendue du préjudice uniquement pour déterminer si, en dépit du caractère a priori manifestement déraisonnable de la somme globale d’une condamnation, celle-ci est appropriée pour contrecarrer les effets des propos diffamatoires.”

Of much note in the context of the EU’s discussions on a SLAPP Directive.

Geert.

EU Private International Law, 4th ed, 2024, 2.619 ff.

Opinion now here https://t.co/jRgZ6ej23U
citing ia @ProfPech, @CunibertiGilles, @burkhard_hess, @Maxime_Barba https://t.co/KJgqOtk80R

— Geert Van Calster (@GAVClaw) February 8, 2024

As I had half hoped, half predicted, the CJEU today held differently than its AG had opined in C‑566/22 Inkreal aka Inkreal s. r.  v Dúha reality s. r. o..: 

an agreement conferring jurisdiction by which the parties to a contract who are established in the same Member State agree on the jurisdiction of the courts of another Member State to settle disputes arising out of that contract is covered under Article 25 Brussels Ia, even if that contract has no other connection with that other Member State.

The Court cites in support:

[15] ff: statutory wording: [17]: “the wording of [A25(1)] does not preclude an agreement conferring jurisdiction, by which the parties to a contract who are established in the same Member State agree on the jurisdiction of the courts of another Member State to settle disputes arising out of that contract, from being covered under that provision, even if that contract has no other connection with that other Member State.”

[18] ff: context: ‘civil matters having cross-border implications’ (recital 3) and ‘cross-border litigation’ (recital 26) are mentioned yet the ‘international element’ required is not defined. As the CJEU had already held in C-280/20, ZN v Generalno konsulstvo na Republika Bulgaria v grad Valensia, Kralstvo Ispania [the Bulgarian consulate], an equivalent concept must be used as in the order for payments Regulation. That defines the equivalent concept of ‘cross-border litigation’ as ‘one in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court seised’. In current case [23] the parties to that dispute are established in a Member State other than the Member State of the court which was seised on the basis of the agreement conferring jurisdiction at issue. Moreover, [24] a question relating to the determination of international jurisdiction clearly arises in the case, more specifically whether the courts having jurisdiction to settle this dispute are those of the Czech Republic, or those of the Slovak Republic as the Member State in which the two parties are established.

Further, [26], the interpretation of A25 must also be carried out in the light of the objectives of respecting the autonomy of the parties and enhancing the effectiveness of exclusive choice-of-court agreements, as referred to in recitals 15, 19 and 22 BIa.

Moreover, [27] ff, both predictability and legal certainty, core BIa objectives, are served by the inclusion of choice of court such as in the case at issue. [29] jurisdiction can readily be considered and [30] the possibility of concurrent proceedings is minimised. [31] should choice of court in these circumstances not be valid, BIa is likely not to apply and the application of residual national PIL is likely to lead to conflicting decisions. [32] ff for courts to have to consider additional elements capable of demonstrating the cross-border impact of the dispute concerned, would create uncertainty rather than remedy it.

[35] application of BIa here also demonstrates mutual trust and increased access to justice.

Finally [36] a parallel with the Hague Choice of Court Convention clearly was not sought, quite the contrary, BIa expressly not including a similar provision illistrates its diverging intention.

An excellent judgment echoing many of my earlier expressed sentiments on the issue and arguments.

Geert.

EU Private International Law, 4th ed. 2024, 2.30.

In line with my expectation (see https://t.co/rIoSYfk1qS), the CJEU has not followed its AG on the 'international' element required to enable choice of (foreign) court under A25 Brussels Ia
C-566/22 Inkreal https://t.co/k94JgtdT2G

— Geert Van Calster (@GAVClaw) February 8, 2024

The Rovira i Virgili University of Tarragona will host on 4 and 5 April 2024 a conference titled Conflict of Laws on Rights in Rem in the EU: Status Quo and Proposals for the Future.

The event is part of a research project titled Regime of Rights in Rem over Tangible Property in European Private International Law: Issues of International Jurisdiction and Applicable Law, with Georgina Garriga Suau and Maria Font i Mas as principal investigators.

The conference will feature five panels.

The first four, in English, will be respectively devoted to: Private international law of rights in rem in the U.S. and the European Union (with Christofer A. Whytock and Marta Pertegás Sender as speakers); Proposals for an EU Regulation on applicable law in the field of rights in rem (Francisco J. Garcimartín Alférez and Eva-Maria Kieninger); Questions on the law applicable to rights in rem (Gilles Cuniberti, Afonso Patrâo, Pietro Franzina and Ivana Kunda); Challenges of the rights in rem in the digital era (Ilaria Pretelli, Silvana Canales Gutiérrez and Guillermo Palao Moreno).

The fifth panel, in Spanish, will address a selection of issues relating to cryptoassets, goods in transit and in rem securities in connection with cross-border insolvency proceedings, land registries and cultural property, the speakers being Vésela Andreeva, Josep Maria Fontanellas Morell, Iván Heredia Cervantes, Carmen Parra Rodríguez and Rosa Miquel Sala. The full programe van be found here.

The organisers of the conference have issued a call for presentations on any of the thematic areas covered by the panels. Speakers selected based on the call will be invited to make presentations in person during the conference for approximately ten minutes each. The deadline for submission of communications is open until 4 March 2024. Further information is available here.

Those interested in attending the conference are invited to register by e-mail at pilrightsinrem@urv.cat, specifying whether they plan to attend in person or on-line.

On 8 and 9 March 2024 a conference will be held at the University of Augsburg, organized by Tobias Lutzi, to discuss current developments in connection with punitive damages.

In particular, the event aims to critically discuss whether and to what extent the German courts‘ strict refusal to recognize foreign punitive damage awards is still tenable in light of developments both in legal systems that award punitive damages and in legal systems that do not (but may still recognize such awards).

Speakers include Tobias Lutzi, Lukas Rademacher, Jan Lüttringhaus, Phillip Hellwege, Catherine Sharkey, Rachael Mulheron, Eleni Katsampouka, Cedric Vanleenhove, Marko Jovanovic, Leonhard Hübner, André Janssen, Beligh Elbalti, Johannes Ungerer, Wolfgang Wurmnest, Samuel Fulli-Lemaire, Marta Requejo Isidro, Caterina Benini and Min Kyung Kim.

The full programme is available here.

Registration is possible via this link; attendance is free of charge.

Those interested in attending the conference on-line may get in touch with the organisers (tobias.lutzi@jura.uni-augsburg.de) and ask for a video-link.