Flux des sites DIP

We all know that the 3rd Nuremberg law banned marriages between Jews and Non-Jews. But did you know that it was first applied not by a German but by a Dutch court, as the law applicable under private international law? Didier Boden presents fifteen years of research – not just of court decisions, but also of administrative practice, with a focus on the personal fates of the couples involved. He combines this with a plea for a private international law that goes beyond doctrine and focuses on individual humans.

Talk (in German) on April 27, 5 pm CET.
More information and sign-up here.

 

Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (O19/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 4th CPLJ Webinar on 7 May 2021, 3:00 – 5:15 pm (CET).

The programme reads as follows:

Chair   Margaret Woo (Northeastern University and CPLJ Editor)

3:00 PM          Judith Resnik (Yale University)

            Puzzling about Trans-procedural Substantive Norms across Time and Domains

3:30 PM          Discussion

4:00 PM          Intermission

4:15 PM          Marie-Claire Foblets (Max Planck Institute for Social Anthropology)

            Extrajudicial Dispute Resolution in Europe: Anthropological Insights on the Impact of Religion and Tradition

4:45 PM          Discussion

5:15 PM          End of conference

The full programme is available here.

Participation is free of charge, but registration is required by 4 May 2021 via a short e-mail to events@mpi.lu.

(Image credits:  Rijksmuseum, Amsterdam)

 

In WWRT Ltd v Tyshchenko & Anor [2021] EWHC 939 (Ch) and following an earlier Worldwide Freezing Order, Bacon J engages with Article 34 Brussels Ia’s forum non conveniens ‘light’ regime.

The proceedings are brought by WWRT ltd against Mr Serhiy Tyshchenko and his ex-wife, Mrs Olena Tyshchenko. The claim is founded on an allegation that the Defendants carried out an extensive fraud on the Ukrainian bank, JSC Fortuna Bank during which time the bank was (it is claimed) ultimately owned by Mr Tyshchenko. The bank was subsequently declared insolvent and was liquidated, in the course of which a package of its assets, including the disputed loans, was sold to Ukrainian company Star Investment One LLC.  Star in turn sold those rights and assets to WWRT in March 2020. WWRT’s case is that following those two assignments it has now acquired the rights to bring the claim relied upon in the present proceedings, which is one in tort under Article 1166 of the Ukrainian Civil Code.

In current proceedings, defendants contest jurisdiction, on the basis of 3 alternative grounds:

Firstly, the principle of ‘modified universalism’ (which I have discussed ia here) which should ground a stay under common law so as to prevent WWRT from bypassing the Ukrainian insolvency proceedings. The suggestion is that CJEU Owusu did not deal with a potential stay to allow the judge in one EU Member State to stay proceedings so as to support insolvency proceedings in another Member State. Bacon J held [57], in my view justifiably, that even if indeed the CJEU in Owusu did not specifically deal with this issue, its reasoning (particularly the insistence on predictability and legal certainty) extends to the current scenario. Insolvency proceedings may well (and indeed clearly) fall outside BIa’s scope, however the claim at issue is one in tort, which falls squarely within it. At 62 ff he discusses obiter that even if such stay would have been theoretically possible, he would not have exercised his discretion to grant it.

Secondly, at 89 ff, a stay by analogy with A34 BIa. It is seemingly common ground between the parties and the judge that the bankruptcy exclusion in A1 BIa precludes the express application of A34 if the pending action in the third State is in the nature of bankruptcy or insolvency proceedings. Support is found in Baker J’s views in BB Energy. This is not a settled issue. Neither is much discussion, pro or contra, of the in my view unjustifiable finding of reflexive application of A28 Lugano in JSC Commercial Bank v Kolomoisky [2019] EWCA Civ 1708. The more sound rejection of an A34 stay in the case at issue  in my view lies in the judge’s obiter finding at 95 that the proceedings in E&W are not ‘related’ to those in the Ukraine.

Thirdly, a more straightforward argument of lack of domicile of one of the defendants in the UK, hence room for a forum non conveniens stay. This argument was in fact dealt with first, at 38 ff, with Bacon J  holding on the basis of a pattern of settled residence that domicile was in fact established. At 98 ff he holds obiter that even if A4 hence BIa had not been engaged, he would not have allowed a stay on forum non grounds.

In conclusion, the freezing orders were continued.

Geert.

EU Private International Law, 3rd ed 2021, para 2.539 ff

WWRT v Tyshchenko aor [2021] EWHC 939 (Ch)
Principle of modified universalism should not be used to circumvent A4 BIa, Owuso; A34 held not to apply viz foreign #insolvency proceedings
More on the blog soonhttps://t.co/nt2vDo9BFN pic.twitter.com/p54PKkBH2Y

— Geert Van Calster (@GAVClaw) April 23, 2021

I apologise I could not find a snappier title to this post however Richard de la Tour AG’s Opinion in C-30/20 Volvo Trucks yesterday (no English version had been published at the time of writing) does cover a lot of issues.

Applicant ‘RH’ brings a follow-on action, based on the EC finding of a cartel in the truck manufacturers market. Volvo contest Spain as the locus delicti commissi under A7(2) BIa, however that element is neither referred to the CJEU nor picked up by the AG. That is unfortunate for there is in my view most certainly scope for clarification as I discuss here.

There is also discussion whether A7(2) assigns international jurisdiction only, or also territorial jurisdiction. The referral decision in the end only refers the latter question to the Court. The Advocate General engages with quite a few more and I am not sure the CJEU itself will be inclined to entertain them all.

On that issue of territorial jurisdiction, the AG refers in particular to CJEU Wikingerhof to confirm with some force that A7(2) assigns both international and territorial jurisdiction. Other cases (and in particular AG Opinions) eg in CJEU Löber v Barclays already suggested the same and the overwhelming majority of scholarship has the same view, even if not always explicitly expressed. The AG in current Opinion refers ia to ratio legis, and the clear contrast in formulation between eg A4 and A7.

Next the AG discusses at length locus damni. CDC and Tibor-Trans (markets affected) are the core judgments which the discussion is anchored upon. The discussion here is  rounded up at 94 with the suggestion by the AG that in principle it is the location where the goods (here: the trucks) are purchased, which qualifies as the locus damni. He then revisits the awkward (see my handbook at 2.458) identification of registered office as locus damni, as it has been put forward by the CJEU in CDC. flyLAL further picked up on that discussion and the AG here, too, reviews that judgment. He concludes in the case at issue at 110 that the place of registered office of the claimant should be a fall-back option in case the locus damni does not correspond to the place where that claimant carries out its activities. None of this makes the application of A7(2) any more straightforward, of course.

Finally, the AG concurs with the view expressed by a number of Member States and the EC that the Member States should be able to employ their internal CPR rules to vary the principled territorial consequence of A7(2), which could to lead to a specialised court in the specific case of competition law. Here I disagree, despite the suggested limitation of not endangering effet utile (ia per CJEU Joined Cases C‑400/13 and C‑408/13 Sanders and Huber) and I do not think the justification (at 127 ff) for competition law specifically, justifies special treatment different from say intellectual property law, consumer law, environmental law etc. Claimants will be encouraged to dress up claims as relating to competition law if the centralised court is their court of choice, which will further endanger predictability.

A most rich Opinion and as noted I wonder how much of it the CJEU will be happy to engage with.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.8.

Opinion Richard de la Tour this morning. Volvo Trucks. Brussels Ia, determining locus delicti commissi, locus damni in #cartel cases.
Room for national CPR rules to concentrate A7(2) jurisdiction.https://t.co/TZZxPUBJzu

— Geert Van Calster (@GAVClaw) April 22, 2021

In C-73/20 Oeltrans Befrachtungsgesellschaft v Frerichs the CJEU held yesterday – no AG Opinion had been requested.

Applicant ZM has been the liquidator in the insolvency of Oeltrans Befrachtungsgesellschaft, established in Germany. Insolvency proceedings had been opened in April 2011. The Oeltrans group includes Tankfracht GmbH, also established in Germany. An inland waterway contract (a charter party) existed between Tankfracht and Frerich, established in the Netherlands, under which Tankfracht owed Frerich EUR 8 259.30. Frerich was to transport goods by vessel for Tankfracht from the Netherlands to Germany. In November 2010, Oeltrans paid Frerich the sum owed by Tankfracht,  ‘on the order of Tankfracht’. The application does not give any detail as to the circumstances of that ‘order’.

The liquidator seeks the repayment of that sum on the basis of the lex concurcus’, German law, insolvency pauliana. Frerichs contend that on the basis of A16 European Insolvency Regulation (‘EIR’) 2015 (in fact, the A13 almost identical version of the EIR 2000), such as applied ia in C-54/16 Vinyls Italia), Dutch law, the charter party’s lex contractus per the Rome I Regulation, shields it from the German Pauliana.

The core question is whether the impact of that lex contractus extends to payments made by third parties. In technical terms: whether effective contractual performance by third parties, is part of A12(1)b Rome I’s concept of ‘performance’ of the contract being within the scope of the lex contractus.

The CJEU, referring to Lutz and Nike, confirms the restrictive scope of A16 EIR. At 31-32 however it upholds the effet utile of A16, which as ia confirmed in Vinyls Italia, is to protect the legitimate expectations of a party contracting with a counterparty who subsequently enters insolvency proceedings, that the contract will continue to be governed by the lex contractus, not the lex concursus. ‘Performance’ per A12 Rome I is held to include performance by a third party. Many scholarly sources support the same conclusion, and e.g. Plender and Wilderspin, as well as McParland refer in support to the Guiliano-Lagarde report to the Rome Convention. I realise the CJEU does not refer to scholarly sources yet surely it could have referred to the Giuliano-Lagarde report to shore up its conclusions so succinctly formulated.

Geert.

EU Private International Law, 3rd ed. 2021, para 3.98, paras 5.132 ff.

Challenge to acts that are detrimental to creditors – applicable law – interplay between Rome I/Insolvency Regulation https://t.co/xWSg8rFCWl

— Michiel Poesen (@Poesen_m) April 22, 2021

In Vestel Elektronik Sanayi Ve Ticaret A.S. & Anor v Access Advance LLC & Anor [2021] EWCA Civ 440 – also known as Vestel v Philips, the Court of Appeal has rejected an attempt to establish jurisdiction for the Courts of England and Wales in a stand-alone competition law damages case.

Hacon J had earlier rejected jurisdiction in the claim which at first instance was formulated as an abuse of dominance claim. That claim was now reformulated with Birss LJ’s permission [30], with the relevant tort being the tort of patent infringement, and in effect the claim a negative declaration relating to that patent. That a claim for declaration of non-liability in tort (‘a ‘negative declaration’) may be covered by A7(2) BIa, was confirmed by the CJEU in C-133/11 Folien Fischer. In the case art issue, it would require Vestel to show it had not infringed a valid IP right. However Birss LJ holds that Vestel’s claim, aimed at obtaining a FRAND declaration for the patented technology (Vestel needs a licence for the technology patented by Philips, and wants it at FRAND terms: Fair, Reasonable and Non-Discriminatory).

The declarations sought by Vestel, after dropping the abuse of dominance plea, are in this form [49]: i) A declaration that the terms offered are not FRAND; ii) A declaration that the terms of Vestel’s counter-offer are FRAND; and  iii) Alternatively, a declaration as to the terms which would be FRAND. these, is it held, are not declarations of non-liability in tort. Vestel have not been given right to access the IPRs. They seek that right in specified terms. They cannot claim that a hypothetical right of entry can proactively ground jurisdiction on the ground that the non-existing access has not been transgressed. As Birss LJ puts it: ‘Vestel’s position is like that of a trespasser with no right to enter the property claiming that if they had permission then it would not be a trespass.’

This was a creative jurisdictional attempt. I think it justifiably failed.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.198; para 2.454.

Vestel v Philips
CA rejects attempt to ground E&W jurisdiction, unsuccessfully argued as an A7(2) abuse of dominance before the High Court (see https://t.co/5uMH0fbZrY as a negative declaration of #patent infringement per CJEU Folien Fischerhttps://t.co/R1S3Eu3iwn

— Geert Van Calster (@GAVClaw) April 19, 2021

Lin v Gudmundsson & Ors [2021 EWHC 820 (Ch) is an application to annul the bankruptcy of Mr Gudmundsson by his ex-wife. She argues inter alia that the bankruptcy order should not have been made because England was not Mr Gudmundsson’s COMI.

At 54, Briggs J (presumably so led by counsel) oddly holds that the EU Insolvency Regulation (‘EIR’) 2015/848 only defines COMI in its recital 13. Odd, for that was the case under the previous Regulation, 1346/2000, not the current one which does define COMI in the text of the Regulation proper (Article 3(1) – see Heading 4 of my overview here). However that issue is of minor importance for the real hesitation I have with the judgment is

that the judge despite the EIR’s specific instruction that COMI needs to be determined proprio motu, retreats to the default adversarial nature of common law proceedings and defers to the claimant’s concession ‘that even if the court were to find that Mr Gudmundsson did not have his COMI in England and Wales it should not exercise its discretion to annul the bankruptcy order’ [57]; and

that the judge resorts to section 265(2) of the Insolvency Act 1986’s jurisdictional anchor (“in the period of three years ending with the day on which the petition is presented …a place of residence in England and Wales”) instead of the autonomous concept of ‘habitual residence’ in the Regulation. The meaning of that concept was recently discussed by the CJEU in C-253/19 Novo Banco.

Geert.

EU Private International Law, 3rd ed 2021, Chapter 5, para 5.95.

Lin v Gudmundsson & Ors [2021 EWHC 820 (Ch)
Failed application to annul bankruptcy finding
Includes not altogether convincing COMI determination on the basis of the EU #insolvency Regulationhttps://t.co/uonkiljhuP

— Geert Van Calster (@GAVClaw) April 19, 2021

Singapore-based Asian Business Law Institute (ABLI) is jointly holding a webinar with the Permanent Bureau of the Hague Conference on Private International Law (HCCH) on the HCCH 1970 Evidence Convention and Remote Taking of Evidence by Video-link on Tuesday, 1 June 2021 from 4pm to 5:15pm (SGT) or 10am to 11:15 am (CEST).

This event, organised in the context of the ongoing celebrations of the golden anniversary of the 1970 Evidence Convention, will discuss the practical challenges of the cross-border taking of evidence, as well as possible solutions to further facilitate cross-border proceedings in the coming years, including the use of video-link technology for the taking of evidence abroad under the 1970 Evidence Convention. A short introduction of the HCCH 1965 Service Convention will be provided at the end of the session.

Invited speakers include, in alphabetical order, Alexander Blumrosen, Partner at Polaris Law, Edmund J. Kronenburg, Managing Partner at Braddell Brothers LLP and Justice Anselmo Reyes, International Judge of the Singapore International Commercial Court. Dr João Ribeiro-Bidaoui, First Secretary at the HCCH, and the Representative for the Regional Office for Asia and the Pacific (ROAP) of the HCCH, Professor Yun Zhao, will also speak at the session.

More details about the programme can be found here.

Readers of this blog can enter promo code ABLISG and select ticket category ABLI Founding Partners when registering online to enjoy 10% discount.

Inquiries about the programme or how to register can be directed to Catherine at catherine_shen@abli.asia.

On 20 April 2021 the Commercial Court number 17 of Madrid granted provisional measures forbidding FIFA and UEFA (and any other associated football body) to adopt, for the duration of the main proceedings any type of determination against the Super League or against the teams or players participating in the projected new European competition.

The day before, the Super League backers had sent a 6 page letter to FIFA and UEFA calling for cooperation, but also warning that they had taken legal action to prevent any efforts to block their project.

The Mirror reported that the letter reads as follows:

We are concerned that FIFA and UEFA may respond to this invitation letter by seeking to take punitive measures to exclude any participating club or player from their respective competitions.

We hope that is not your response to this letter and that, like us, your organisations will recognise the immediate benefits of the competition established by SLCo.

We also seek your cooperation and support on how the competition can be brought within the football ecosystem and work with us to achieve that objective.

Your formal statement does, however, compel us to take protective steps to secure ourselves against such an adverse reaction, which would not only jeopardise the funding commitment under the grant but, significantly, would be unlawful.

For this reason, SLCo has filed a motion before the relevant courts in order to ensure the seamless establishment and operation of the competition in accordance with applicable laws.

We invite you to attend on an urgent basis discussion with us regarding the details of the competition and how it can best be accommodated within the football ecosystem.

The Spanish Order

The decision orders the aforementioned bodies to refrain from any action that may affect the launch of the competition or supposes a veto to the participation of the founding clubs in the competitions in which they are currently playing, until the court has fully considered the case. In the event that, prior to the decision on the precautionary measures, any such action has already been carried out, FIFA and UEFA shall take the necessary steps to remove it and to leave it immediately without effect.

While the latest developments – the announcement of the  suspension of the activities of the Super League, triggered by the opposition the initiative has met – have likely rendered the judicial order moot, it is still worth having a look into its background and reasoning. Just like it does, I will use the present tense to report.

The Parties

The applicant is European Super League Company S.L. (in what follows, ‘ESLC’), a limited liability company whose members are: Real Madrid club de fútbol ; Associazione Calcio Milan ; Fútbol Club Barcelona ; Club Atlético de Madrid; Manchester United Football Club ; Football Club Internazionale de Milano S.P.A. ; Juventus Football club; The Liverpool Football Club and Athletic Grounds Limited ; Tottenham Hostpur Football Club;  Arsenal Football Club ; Manchester City Football Club ; and Chelsea FC Plc.

ESLC is the sole owner of the Super League, and the parent company of three other companies in charge of the management and supervision of the ELSC. The Super League aims to become the first European competition outside of UEFA, to be held annually with the aim of maximizing the chances of competing for footballers and clubs of the highest sporting level. Such competition would not prevent participating clubs from participating in their respective national competitions and domestic leagues.

The American investment banking JPMorgan Chase is the major financial backer of the Super League.

The precautionary measures are requested against FIFA and UEFA, two private bodies enjoying a monopoly over the authorisation and organisation of international professional football competitions. The following provisions of the FIFA Statutes are quoted:

Article 22, which requires regional confederations to ensure that international leagues or other similar organisations of clubs or leagues are not formed without FIFA’s consent or approval

Article 61 : FIFA, its member associations and the confederations are the original owners of all of the rights emanating from competitions and other events coming under their respective jurisdiction, without any restrictions as to content, time, place and law. These rights include, among others, every kind of financial rights, audiovisual and radio recording, reproduction and broadcasting rights, multimedia rights, marketing and promotional rights and incorporeal rights such as emblems and rights arising under copyright law

Article 68 : FIFA, its member associations and the confederations are exclusively responsible for authorising the distribution of image and sound and other data carriers of football matches and events coming under their respective jurisdiction, without any restrictions as to content, time, place and technical and legal aspects

Article 71 : FIFA, the confederations and the national federations, enjoy exclusive competence to issue prior authorisation to organise international competitions and expressly prohibits the possibility of holding matches and competitions which are not previously authorised by FIFA, the member national federations or by confederations

Article 72 : Players and teams affiliated to member associations or provisional members of the confederations may not play matches or make sporting contacts with players or teams that are not affiliated to member associations or provisional members of the confederations without the approval of FIFA.

Those provisions are taken up in Articles 49 to 51 of UEFA’s Articles of Association. As a consequence, UEFA is conferred a monopoly on the organisation of international competitions in Europe; international competitions in Europe which have not previously been authorised by UEFA are not allowed.

The monopoly for the organisation and authorisation of international competitions was ratified by FIFA and UEFA on a Declaration of 21 January 2021.

The Claims

Based on Article 102 TFEU, the applicant seeks a declaration of abuse of a dominant position by FIFA and UEFA on the internal football market. Under Article 101 TFEU, it requests a declaration related to the violation of free competition in the internal football market, carried out by UEFA and FIFA through the imposition of unjustified and disproportionate restrictions. It asks as well for injunctive relief: the anti-competitive behaviour of FIFA and UEFA and its future repetition shall be prohibited. Finally, it applies for the removal of the effects of any measure or action that the defendants may have carried out already, directly or indirectly.

The Facts

From the documents accompanying the request for precautionary measures, the Commercial Court infers (among other) that:

.- Several professional football clubs have set up a new professional football competition called “Super League”. They have communicated the creation of said competition to FIFA and UEFA, organizations that until now exclusively organized international professional football competitions.

.- Following that communication FIFA and UEFA made a statement expressing their refusal to recognise the creation of a European Super League restricted to certain clubs. According to the declaration, any player or club participating in that competition would be foreclosed from competitions organised by FIFA and the confederations; all competitions must be organised or recognised by the competent body. The statement was confirmed by another one of 18 April 2021 issued by UEFA, the English Football Association and Premier League, the Real Federación Española de Fútbol, the Italian Federation of football and the Italian league Serie A. A warning regarding the adoption of disciplinary measures in respect of clubs and players participating in the creation of the European Super League accompanied the statement.

.- The European association of professional football leagues published a declaration of unanimous support to FIFA and UEFA in order to coordinate the necessary measures preventing the start-up of the new “Super League” competition and / or to adopt the announced disciplinary measures by FIFA and UEFA. Should those measures be adopted, the clubs and / or players that participated in the Super League would be prevented from participating in the soccer Eurocup of June 2021, the Olympic Games in July 2021, and the World Cup in 2022.

In light of the foregoing, the applicant submits that the monopoly exercised by FIFA and UEFA regarding the organization and management of national and international soccer competitions, as well as the exclusivity in the management of economic returns derived from said competitions, together with the sanctions announced by those private organizations, prevent the existence of free competition in the market of sports competitions. Should FIFA and UEFA implement said measures, the European Super League project would fail due to the impossibility of fulfilling the aforementioned condition of compatibility. In addition, the investments and financial contributions by J.P. Morgan would be lost.

It is also submitted that said measures would affect trade between Member States and constitute an infringement of the following community freedoms:

.- The freedom to provide services regulated in article 56 TFEU by preventing the provision of services by the ESLC.

.- The free movement of workers under Article 45 TFEU, by preventing players from providing their services through participation in the European Super League.

.- The freedom of establishment of Article 49 TFEU, by preventing the creation of the three companies that would be in charge of the management and supervision of the ELSC.

.-The freedom of movement of capital and payments regulated in Article 63 TFEU, preventing intra-community movements of payment and capital linked to the European Super League.

Analysis and Findings of the Court

The conditions required to grant provisional measures are satisfied: Article 728 of the Spanish Civil Procedure Code (LEC) – fumus boni iuris ; periculum in mora ; Article 733.2 of said Code – conditions to grant provisional measures inaudita parte.

Article 101 and 102 TFUE apply to the merits.

Fumus boni iuris

It is established (for the purposes of grounding provisional relief) that FIFA and UEFA have abused their dominant position. FIFA and UEFA Statutes subject the creation of alternative sports competitions to the authorization of said private bodies, and allow disciplinary measures to be applied against football clubs that do not request such permission. The prior authorization is not dependent on any type of limit or objective and transparent procedure; it relies on the discretionary power of both private bodies, which, due to the monopoly in the organization of competitions and the exclusive management of the economic returns derived from sports competitions, have a clear interest in rejecting the organization of the aforementioned competitions.

De facto, such actions by FIFA and UEFA imply unjustified and disproportionate restrictions to competition in the internal market. The statutory rules of FIFA and UEFA do not include provisions guaranteeing objectives of general interest in granting prior authorization to the organization of football competitions. Nor do they contain objective and transparent criteria to avoid discriminatory effects, or conflicts of interest, with FIFA and UEFA in the denial of authorization to organize alternative sports competitions by the clubs integrated in the federations affiliated with said private bodies.

Moreover, an abuse of dominance position can be inferred from Articles 67 and 68 of the Statutes of FIFA, in that they oblige the clubs to assign the commercial rights of the sports competitions in which they participate.

Periculum in mora

In the course of the proceedings FIFA and UEFA could adopt disciplinary measures as announced in the statement referred to above, which the consequence that the European Football Super League could not be implemented. This would cause irreparable harm to clubs and players called upon to participate in the Super League ; it would also prevent the enforcement of any judgment on the merits for the claimants. Moreover, the imposition of some of the disciplinary sanctions announced by FIFA and UEFA would seriously compromise the financing of the Super League, having regard to the conditions laid down in the shareholders’ and investment agreement of the founding clubs of the European Football Super League.

Proportionality and suitability

The provisional measures requested are proportionate and suitable to guarantee the protection sought. They prevent actions on the side of FIFA and UEFA that could render ineffective any protection granted in a future judgment. The measures requested are intended to protect free competition in the relevant market, and to impede the adoption of measures by FIFA and UEFA, such as those already announced, which for the reasons already explained would definitively thwart the implementation of the European Football Super League project.

Inaudita parte

The interim relief requested must be adopted inaudita parte. The defendants having publicly announced the imminent adoption of measures restricting free competition; it is therefore urgent to adopt the relief applied for without hearing the other parties. Regard should be paid to the next celebration of the semi-finals of the competition organized by UEFA, the “UEFA Champions League”, where up to three of the founding clubs of the European Football Super League participate. The adoption of the disciplinary measures announced by FIFA and UEFA could compromise the participation of those football clubs in the competition; the negative impact on free competition, latent in the provisions of the FIFA and UEFA Statutes above mentioned would thus crystalize, causing irreparable damage of an economic and sporting nature to the clubs and players affected.

The fact that FIFA and UEFA have their domiciles abroad and the need to seek legal assistance to serve the present proceeding, with the consequent greater delay in the summons of the parties to a hearing in a near period of time, further evidence the need to grant the measures inaudita parte.

Caution under Article 728.3, para 2 LEC

For the measure to be granted, the applicant has to provide a bank guarantee of 1,000,000 euros.

 

Final note : No appeal is possible against the decision.

AG De La Tour delivered today his opinion in case C‑30/20, which is about Article 7.2 Brussels I bis and Article 101 TFEU. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

“L’article 7, point 2, du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale, doit être interprété en ce sens :

–        qu’il désigne la juridiction compétente de l’État membre dans le ressort de laquelle, notamment, le dommage direct s’est matérialisé ;

–        que, dans le cadre d’une action en réparation du préjudice causé par une infraction au titre de l’article 101 TFUE consistant notamment en des arrangements collusoires sur la fixation et l’augmentation des prix de biens, le lieu de la matérialisation du dommage se situe dans l’État membre du marché affecté par cette infraction au sein duquel des surcoûts ont été subis. La juridiction territorialement compétente est, en principe, celle dans le ressort de laquelle se trouve le lieu de l’acquisition de ces biens, par l’entreprise exerçant son activité dans le même État membre, laquelle doit être déterminée en fonction de critères économiques. À défaut de concordance entre le lieu de la matérialisation du dommage et celui de l’activité de la personne lésée, l’action peut être introduite devant la juridiction dans le ressort de laquelle la personne lésée est établie, et

–        que les États membres ont la faculté de choisir de concentrer le traitement des litiges devant certaines juridictions, dans le cadre de leur organisation juridictionnelle, sous réserve du respect des principes d’équivalence et d’effectivité. En particulier, dans le domaine du droit de la concurrence, les États membres doivent veiller à ce que les règles qu’ils établissent ou qu’ils appliquent ne portent pas atteinte à l’application effective des articles 101 et 102 TFUE ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240225&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4884262

The Court of Justice delivered today its judgment in case C‑73/20, which is about the Insolvency Regulation and Rome I:

“Article 13 of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings and Article 12(1)(b) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) must be interpreted as meaning that the law applicable to the contract under the latter regulation also governs the payment made by a third party in performance of a contracting party’s contractual payment obligation where, in insolvency proceedings, that payment is challenged as an act detrimental to all the creditors”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240225&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4884262

Advocate General Campos Sánchez-Bordona delivered today his opinion in joint cases C‑152/20 and C‑218/20, which is about Rome I. The opinion is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« 1) L’article 8 du règlement (CE) no 593/2008 […] doit être interprété en ce sens que, lorsque la loi régissant le contrat individuel de travail a été choisie, il y a lieu d’exclure les autres lois qui, à défaut de choix, auraient été applicables en vertu des paragraphes 2, 3 ou 4 de cet article, pourvu que la première offre au travailleur un niveau de protection égal ou supérieur à celui assuré par les dispositions auxquelles il ne peut être dérogé par accord de la loi qui aurait été appliquée en l’absence de choix.

2) Les règles relatives au salaire minimal du pays où le travailleur salarié a exercé habituellement son activité peuvent, en principe, être qualifiées de « dispositions auxquelles il ne peut être dérogé par accord en vertu de la loi qui, à défaut de choix, aurait été applicable », au sens de l’article 8, paragraphe 1, seconde phrase, du règlement no 593/2008. La primauté de ces règles dépendra de leur configuration dans l’ordre juridique de référence, ce qu’il appartient à la juridiction de renvoi de vérifier.

3) Les articles 3 et 8 du règlement no 593/2008 doivent être interprétés en ce sens que le choix, explicite ou implicite, de la loi applicable à un contrat individuel de travail doit être libre pour les deux parties, ce qui n‘est pas le cas lorsqu’une disposition nationale impose d’insérer dans ce contrat une clause de choix de la loi. Ces articles n’empêchent toutefois pas qu’une telle clause soit préalablement rédigée dans le contrat par décision de l’employeur, à laquelle le travailleur donne son consentement ».

Source : https://curia.europa.eu/juris/document/document.jsf?text=&docid=240242&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=4884308

By its preliminary question referred to the Court of Justice in the case Volvo, C-30/20, the referring court was indenting to clarify whether Article 7(2) of the Brussels I bis Regulation has to be interpreted as establishing only the international jurisdiction of the courts of the Member State for the ‘place where the harmful event occurred or may occur’ or establishing also national territorial jurisdiction. This question arose in the context of the proceedings on a follow-on action, based on the Commission’s decision, by which the applicant claims damages for loss and damage caused by certain anticompetitive practices.

In his Opinion delivered this Thursday, Advocate General Richard de la Tour not only answers the preliminary question in the affirmative (points 35 to 48) but also addresses other issues pertaining to the jurisdictional side of the private enforcement of EU competition law.

On the one hand, Advocate General explains how one should precisely determine the place where the damage occurred in order to identify the court having jurisdiction under Article 7(2) of the Brussels I bis Regulation (points 49 to 111). As he acknowledges at point 70 of the Opinion, the finding that the damage occurred within the market affected by the anticompetitive practices, is not, on its own, sufficient to identify the court having territorial jurisdiction to hear an action pertaining to these practices. For this very reason, the Opinion provides a detailed guidance on how to identify a competent court.

On the other hand, AG Richard de la Tour examines whether and to what extent the Member States are authorized to concentrate jurisdiction for the actions on anticompetitive practices (points 112 to 130).

The Opinion can be consulted here (so far the English version is not available).

The latest edition of the Spanish journal La Ley (No 90 March 2021) contains an interesting article about the contract concluded by the European Commission with AstraZeneca for the provision of COVID-19 vaccines. It is authored by Sixto Sánchez Lorenzo, the renowned expert on private international law at the University of Granada. The author deals with the liability of AstraZeneca for the failure to deliver enough jabs, leaving aside possible tortious and product liability suits for the vaccines alleged side effects.

The author argues that the agreement is a binding contract subject to the condition that a vaccine will be developed by the pharmaceutical company. In his view, the Commission acted both as a party and as an agent for (“on behalf of”) the Member States, which are therefore also parties to the contract. This will give them standing in court should they intend to sue the company. According to Sixto Sánchez Lorenzo, the Member States could bring claims individually and need not necessarily act together.

As for jurisdiction, he notes the contract’s jurisdiction clause in favour of the Belgian courts. The author considers this clause to be binding under Art 25 Brussels Ibis Regulation. He puts emphasis on the civil and commercial nature of the agreement, which clearly brings it within the Regulation’s scope. The Commission Implementing Regulation, which allows Member States under certain conditions to restrict the export of vaccines, does not change this characterisation.

In case the choice-of-court agreement would be inexistent or invalid, the courts of the state of incorporation and headquarters (in this case: Sweden) would have general jurisdiction for any claim against the company (Art 4, 63 Brussels Ibis Regulation). The author also points to the jurisdiction of the courts at the place of contractual performance (Art 7(1)(b) Brussels Ibis Regulation). In the event of a collective action brought by the Commission and the Member States, he discusses a possible parallel to the Color Drack case, where the CJEU ruled that in case of multiple places of performance jurisdiction lies with the courts at the “principal place of delivery”. These questions are however merely speculative given the contract’s jurisdiction clause in favour of the Belgian courts.

Regarding the applicable law, the contract stipulates a choice of Belgian law, which the author considers binding according to Art 3 Rome I Regulation. By virtue of this choice-of-law clause, the Vienna Sales Convention (CISG) would govern the entire contractual relation (Art 1(1)(b) CISG), including with those States that have not signed the CISG (Malta and Ireland).

With respect to the substantive law, the crucial question of course is whether AstraZeneca is liable under the contract with the Commission and the Member States, or whether it can invoke the priority of other contracts it has entered into with other parties, such as the UK. Sixto Sánchez Lorenzo refers to Art 28 CISG and the Belgian lex fori for a solution. As he underlines, Belgian law allows a claim for specific performance, contrary to the general position of the Common law.

But what if the company cannot deliver because it cannot produce enough quantities of the vaccine? Sixto Sánchez Lorenzo outrightly discards the exception to liability under Art 79 CISG because the shortage of vaccine would be the result of the dealings of AstraZeneca and not of a force majeure. Rather, the likely solution would be a proportional or “pro rata” condemnation.

This is an insightful article written by one of the masters of the profession. It is possible that the question of liability for non-performance will remain theoretical given the recent banning of AstraZeneca in various Member States. But nevertheless, other suits may arise, for which the article provides useful information.

 

 

 

 

 

This Thursday, the Court of Justice delivered its judgment in the case Oeltrans Befrachtungsgesellschaft, C-73/20, on the interpretation of the Insolvency Regulation and the law applicable to detrimental acts. This judgment, pertaining to Articles 4(2)(m) and 13 of the Regulation No 1346/2000, completes therefore the case law constituted most notably by the judgment in the case Vinyls Italia, C-54/16.

Despite the fact that the recent judgment concerns the Regulation No 1346/200, which has been repealed by Regulation 2015/848, it is and will remain of relevance: the latter Regulation contains provisions that are equivalent to the aforementioned Articles 4(2)(m) and 13.

 

Legal and factual context

Oeltrans Befrachtungsgesellschaft and Tankfracht GmbH are both established in Germany and belong to the same group of companies.

An inland waterway contract exists between Tankfracht and E.A. Frerichs, established in the Netherlands. Under this contract, Tankfracht owes a payment of a fixed amount to E.A. Frerichs.

By the end of 2010, Oeltrans Befrachtungsgesellschaft pays to E.A. Frerichs, ‘on the order of Tankfracht’, the sum owed by this company under the inland waterway contract.

Following the opening in Germany of the insolvency proceedings in relation to Oeltrans Befrachtungsgesellschaft, its liquidator brings an application for repayment on that amount with interests, on the ground that the transaction should be set aside by virtue of insolvency.

After a lapse of a certain amount of time, the regional court finds against E.A. Frerichs under German law, in accordance with the form of order sought by the liquidator. Next, deciding on appeal brought by E.A. Frerichs, the second instance court, also on the basis of German law, varies the decision of the regional court and dismisses the application on the basis of the plea that it was timebarred. Finally, by its appeal on a point of law (Revision), Oeltrans Befrachtungsgesellschaft seeks to have the decision of the regional court reinstated by the referring court.

 

Questions/issues raised by the request for a preliminary ruling

At the outset, the referring court explains that, under German insolvency law, the payment made by Oeltrans Befrachtungsgesellschaft is voidable.

However, under Article 13 of the Regulation No 1346/2000, its Article 4(2)(m) does not apply where the person who benefited from an act detrimental to all the creditors provides proof that the said act is subject to the law of a Member State other than that of the State of the opening of proceedings and that law does not allow any means of challenging that act in the relevant case.

Invoking that provision, E.A. Frerichs contends that the contested payment is to be assessed under Netherlands law. Under this law, the payment is said not to be voidable.

Faced with this contention, the referring court indicates that, under the Rome I Regulation, the inland waterway contract is governed by Netherlands law. For the referring court, the issue to be determined is thus whether the law applicable to a contract under this Regulation also governs, in the context of Article 13 of the Regulation No 1346/2000, the payment made by a third party in performance of a contracting party’s contractual payment obligation.

The referring court considers that it is facing a question on the scope of the lex contractus in the context of insolvency proceedings: under Article 12(1)(b) of the Rome I, the law applicable to the contract also governs the performance of the obligations laid down in that contract. The question remains whether this is still the case in the context of insolvency proceedings. If the creditor’s claim is satisfied not by the other party to the contract but, as in the present case, by a third party, the question arises all the more as to whether the lex contractus applies.

Additionally, the referring recognizes the existence of a doctrinal debate as to whether the law applicable to the performance of a contractual obligation is determined by reference to the contract or separately to the act of performance.

Ultimately, the referring court addresses a following question to the Court of Justice: are Article 13 the Regulation No 1346/2000 and Article 12(1)(b) of the Rome I Regulation to be interpreted as meaning that the law applicable to a contract under the latter Regulation also governs the payment made by a third party in performance of a contracting party’s contractual payment obligation?

 

The judgment and the reasoning of the Court

In this case, decided without an Opinion from the Advocate General, the Court answered in affirmative the question of the referring court.

To reach that answer, the Court referenced its case law according to which Articles 4 and 13 of the Regulation No 1346/2000 constitute a lex specialis in relation to the Rome I Regulation and must be interpreted in the light of the objectives pursued by the former Regulation (paragraphs 25, 26 and 30).

Having set such starting point for its reasoning, the Court proceeded to interpret the Regulation No 1346/2000 in order to address the question whether a payment made in performance of a contractual obligation is governed by the law applicable to that contract. At paragraphs 31 to 34, it based its finding according to which a payment made (also by a third party) in performance of a contracting party’s contractual obligations is governed by the lex contractus by the considerations on the (legitimate) expectations of the party to the contract having received the payment.

At paragraphs 35 to 38, the Court explained that this finding is corroborated by Article 12(1)(b) of the Rome I Regulation.

Ultimately, the Court ruled that the answer to the preliminary question is that Article 13 of the Regulation No 1346/2000 and Article 12(1)(b) of the Rome I Regulation must be interpreted to the effect that the law applicable to the contract on the basis of the latter Regulation governs also the payment made by a third party in performance of a contracting party’s contractual obligations where, in the context of insolvency proceedings, this payment is contested as an act detrimental to all the creditors.

A cursory first reading of the judgment might lead some to conclude that the Court drew a finding of a general nature from Article 12(1)(b) of the Rome I Regulation, according to which the performance of a contractual obligation is generally (and in EU private international law in particular) governed by the law applicable to the contract that constitutes the base of this obligation. Thus, the reference to Article 12(1)(b) of the Rome I Regulation in the Court’s answer would simply mirror the preliminary question, as formulated by the referring court (both Article 13 of the Regulation No 1346/2000 and Article 12(1)(b) of the Rome I Regulation being invoked in this question). Others may see this reference as implying that the conflict of laws rules of the latter Regulation are still of relevance in the context of insolvency proceedings. It is yet to be seen which alternative will be supported by a more refined lecture of the judgment.

The judgment can be consulted here.

23 teams from al over the globe are participating in the Pax Moot that is currently ongoing (from 21 to 23 April). The case concerns private international law aspects of the race to a Covid vaccine. It involves the application of various EU and international instruments.

Spectators are welcome at the semifinals and finals on Friday 23 April. You can join by first logging into your own Zoom account and then clicking the link on the schedule to the relevant session. After the final round Ms Pia Lindholm of the European Commission will address the students. Then the winners of the written rounds, the oral rounds and the best pleader will be announced.

Guest Post by Diego A. Zambrano, Assistant Professor of Law, Stanford Law School

For years now, the concept of a “Brussels Effect” on global companies has become widely accepted. A simple version of the story goes as follows: the European Union sets global standards across a range of areas simply by virtue of its large market size and willingness to construct systematic regulatory regimes. That is true, for instance, in technology where European privacy regulations force American companies (including Facebook, Google, and Apple) to comply worldwide, lest they segment their markets. As Anu Bradford has expertly argued, it is also true in environmental protection, food safety, antitrust, and other areas. When companies decide to comply with European regulations across markets, the European Union effectively “exports” its regulatory regimes abroad, even to the United States.

In a forthcoming article, How Litigation Imports Foreign Regulation, I argue that foreign regulators not only shape the behavior of American companies—they also influence American litigation. From the French Ministry of Health to the Japanese Fair Trade Commission and the European Commission, I uncover how foreign agencies can have a profound impact on U.S. litigation. In this sense, the “Brussels Effect” is a subset of broader foreign regulatory influence on the American legal system.

The intersections are rich and varied. For instance, plaintiffs in dozens of pharmaceutical cases in U.S. court are requesting that multinational defendants disclose documents previously produced to foreign regulators. These plaintiffs base their legal cases around findings by, say, the French Ministry of Health rather than the American Food and Drug Administration (FDA). Similarly, plaintiffs in antitrust cases keep close tabs on enforcement actions by the European Commission, piggybacking on the work of foreign regulators, borrowing foreign theories and documents, and even arguing that foreign regulatory action should bolster cases in U.S. courts. And foreign regulators even submit letters to U.S. district courts, advocating for a particular outcome or objecting to the production of confidential documents.

Take a recent case, In re Zofran, involving allegations that GlaxoSmithKline (GSK) sold the drug Zofran while knowing it caused severe birth defects.  GSK argued that “plaintiffs could offer no evidence that the drug caused birth defects” and that “even the FDA had rejected similar claims.” Plaintiffs’ case was headed for an adverse summary judgment until a key piece of evidence emerged—documents that GSK had produced to the “Japanese Ministry of Health and Welfare, including a series of studies showing potential birth defects that defendants had ‘performed specifically to satisfy Japanese regulatory requirements.’”  These documents allowed plaintiffs to dodge FDA findings and defeat a motion for summary judgment.

Or take another example, antitrust cases that piggyback on the foreign agencies. In a recent case alleging a conspiracy by American and foreign banks to fix prices for European sovereign bonds, plaintiffs left no doubt that “they remained ignorant of the conspiracy’s existence until the European Commission’s Statement of Objections put them on notice.”  In other words, a European Commission report triggered a large antitrust case in U.S. court.

Sometimes, plaintiffs draw on foreign regulators precisely because those foreign agencies disagree with U.S. regulators. In one pharmaceutical case, plaintiffs blamed a company for failing to warn of cancer risks, “citing reports from Health Canada, which they argued uncovered ‘new safety information’ that the FDA failed to consider.”

I argue in my article that this phenomenon of private litigation that borrows foreign regulation is widespread and needs more attention. The trend comes, of course, with costs and benefits. On the one hand, drawing on foreign regulators can serve as a “failsafe” when domestic regulators are incompetent or captured. This could audit the work of our underperforming agencies, allowing litigators to compare the FDA with the Taiwanese health agency or the Environmental Protection Agency against European environmental regulators. Moreover, importing regulation can give litigants and courts access to increased expertise and information gathering. And it may even harmonize U.S. and foreign regulations, promoting coherence and regulatory convergence.

Recent litigation involving the Boeing 737 Max crashes demonstrates the promise of imported foreign regulation. Many sources have reported a cozy relationship between Boeing and the Federal Aviation Administration, suggesting a classic case of regulatory capture. Private plaintiffs suing Boeing may thus have difficulty relying on reports from the FAA to support their cases. But Boeing does not wield similar influence over the European Aviation Safety Agency. So, plaintiffs could rely on EASA investigations to establish basic facts against Boeing, allowing the court to leverage the work of a relatively unbiased regulator.

While these benefits seem clear, costs also abound. We may worry, for instance, about empowering foreign regulators that have their own political agendas. Europeans, for one, may be protectionist against American tech companies. This could promote inefficient overregulation of activity that U.S. regulators have deemed appropriate. Foreign regulation could also chill essential domestic innovation. What if the FDA approves a COVID vaccine but private plaintiffs sue the manufacturer based on adverse reports in Japan? In a nightmare scenario, companies in the United States would worry not only about complying with America’s sprawling regulations, but also about litigants trawling foreign countries for regulatory support.

Because it shows both promise but also risks, I recommend a better way to control the use of foreign regulations: Whenever a plaintiff proposes to use a foreign regulatory finding, courts should solicit the opinions of our domestic regulators. These opinions would help courts determine whether foreign regulations are compatible with America’s regulatory regimes. However, agency opinions would not bind courts. Indeed, judges should take these opinions with a grain of salt and be wary of domestic regulatory capture. Even if agencies are unwilling to offer opinions, asking plaintiffs to give notice of their intent to use a foreign regulatory finding would alert domestic regulators of areas where they may be underperforming.

As traditional channels of transnational coordination die out, private parties, courts, and regulators are searching for new ways to promote transnational convergence. Both the Brussels Effect and the phenomenon of regulatory importation are examples of where the legal international order is heading.

Juan J. Garcia-Blesa (Fern University) has posted Indeterminacy, Ideology and Legitimacy in International Investment Arbitration: Controlling International Private Networks of Legal Governance? on SSRN.

This article connects the insights of post-realist scholarship about radical indeterminacy and its consequences for the legitimacy of adjudication to the current legitimacy crisis of the international investment regime. In the past few years, numerous studies have exposed serious shortcomings in investment law and arbitration including procedural problems and the substantive asymmetry of the rights protected. These criticisms have prompted a broad consensus in favor of amending the international investment regime and multiple reform proposals have appeared that appeal to the rule of law ideal as an instrument for increasing the acceptability of the international investment system. This article argues that the reliance of such proposals on jurisprudential approaches that fail to adequately accommodate the post-realist indeterminacy critique and take seriously the role of ideology in adjudication renders reform efforts unable to solve the legitimacy problems of the investment regime. The conclusions suggest the need to abandon implausible claims to depoliticization and face the methodological challenges posed by the promise of ideologically balanced assessments advanced by some rule of law theorists. The article finally points at the urgency to reform traditional approaches to doctrinal work in order to increase awareness of critical challenges and open up doctrinal methods to alternative methodological avenues.

The paper is forthcoming in the International Journal for the Semiotics of Law.

The HCCH Permanent Bureau has released today the Legal Guide to Uniform Instruments in the Area of International Commercial Contracts, with a Focus on Sales, a joint publication of the Secretariats of UNCITRAL, UNIDROIT and the HCCH.

It “offers an overview of the principal legislative texts prepared by each organisation, such as the United Nations Convention on Contracts for the International Sale of Goods, the HCCH Principles on Choice of Law in International Commercial Contracts and the UNIDROIT Principles on International Commercial Contracts”.

It is attached to this post.

legal-guide-uniform-instruments-international-commercial-contractsDownload

Source: https://www.hcch.net/en/news-archive/details/?varevent=796

The Grand Chamber of the CJEU delivered today its judgment in case C‑896/19 (Repubblika v Il-Prim Ministru, intervening party: WY) on the Rule of Law. This important decision is available in all official languages of the European Union (except Irish) as well as in English. Here is the operative part:

“1. The second subparagraph of Article 19(1) TEU must be interpreted as meaning that it may be applied in a case in which a national court is seised of an action provided for by national law and seeking a ruling on the conformity with EU law of national provisions governing the procedure for the appointment of members of the judiciary of the Member State to which that court belongs. Article 47 of the Charter of Fundamental Rights of the European Union must be duly taken into consideration for the purposes of interpreting that provision.

2. The second subparagraph of Article 19(1) TEU must be interpreted as not precluding national provisions which confer on the Prime Minister of the Member State concerned a decisive power in the process for appointing members of the judiciary, while providing for the involvement, in that process, of an independent body responsible for, inter alia, assessing candidates for judicial office and giving an opinion to that Prime Minister”.

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=240084&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=4269763