Flux des sites DIP

I reviewed the AG’s Opinion in C-269/20 Commerzbank here. The CJEU held a few weeks back, rejecting the AG’s main proposal and instead following him on the subsidiary argument. For the consumer section, it suffices the international element surfaces only after the contract has been concluded, provided of course the contract at issue meets with the Pammer Alpenhof criteria: the business concerned need not necessarily actively pursue a commercial activity in the State in which the consumer is now domiciled, yet its organisation of operations and marketing is such as to meet the ‘directed at’ criteria of the consumer section.

It is to be assumed that the Court’s flexible interpretation (with reliance to a large degree on mBank) of the international element to this far-reaching extent, only applies given the protective intent of Lugano’s (and Brussels Ia’s) consumer, potentially employees’ and insurance title.

Geert.

EU Private International Law, 3rd ed. 2021, 2.222 ff.

On 12 October 2021, the European Court of Human Rights (ECtHR) delivered its judgment in J.C. and Others v. Belgium (only available in French, so far).

The case has been widely reported in the general media, as it is concerned with the immunity of the Holy See in a sexual abuse case brought in Belgian courts.

The ECtHR reiterates that it does not consider that the current state of public international law supports the proposition that sovereign immunities would not apply to severe violations of human rights. The Court confirms that it does not see itself as a progressive force in the field of sovereign immunities, but rather as an authority which will follow the development of public international law.

In this context, the claim against the Holy See was unlikely to succeed. There was no allegation that officials of the Vatican had perpetrated acts of sexual abuse themselves. Rather, it was argued that they should be responsible for failing to supervise adequately the Belgian Catholic Church. If the immunity would stand for the direct perpetrator, why would it not for an indirect one?

Background

The applicants were 24 Belgian, French and Dutch nationals. They allege that they were victims of sexual abuse by Catholic priests when they were children.

In July 2011 the applicants filed a class action in a Belgian first instance court, complaining of the structurally deficient way in which the Church had dealt with the known problem of sexual abuse within it. The action was brought against the Holy See as well as an archbishop of the Catholic Church in Belgium and his two predecessors, several bishops and two associations of religious
orders.

Basing their action on general tort law provisons (Articles 1382 and 1384 of the Civil Code), the applicants requested primarily that the defendants be held jointly and severally liable for the damage they claimed to have sustained as a result of the alleged sexual abuse by Catholic priests or members of religious orders. They also claimed that the defendants should be jointly and severally liable to pay compensation of EUR 10,000 to each of them because of the Catholic Church’s policy of silence on the issue of sexual abuse.

In October 2013 the Belgian court declined jurisdiction in respect of the Holy See. In February 2016 a Belgian Court of Appeal upheld the judgment. It found, in particular, that it did not have a sufficient jurisdictional basis to rule on the claimants’ action because of the Holy See’s immunity from legal proceedings. It also stated that Belgium’s recognition of the Holy See as a foreign sovereign with the same rights and obligations as a State was conclusively established. This recognition resulted from a series of commonly agreed elements of customary international law, foremost among which were the conclusion of treaties and diplomatic representation. The Holy See therefore enjoyed diplomatic immunity and all State privileges under international law, including jurisdictional immunity. The Court of Appeal also noted that the dispute did not fall within any of the exceptions to the principle of State immunity from jurisdiction.

In August 2016 a lawyer at the Court of Cassation gave a negative opinion on the chances of success of a possible appeal to the Court of Cassation.

Subsequently, all but four claimants who did not apply were able to obtain compensation through the arbitration centre for sexual abuse claims set up within the Catholic Church. Relying on Article 6 § 1 (right of access to a court), the applicants complained that the application to the Holy See of the principle of State immunity from jurisdiction had prevented them from asserting their civil claims against it.

Judgment

The Court noted that the Court of Appeal had found that the Holy See was recognised internationally as having the common attributes of a foreign sovereign, with the same rights and obligations as a State. The Court of Appeal had noted in particular that the Holy See was a party to some major international treaties, that it had signed agreements with other sovereign entities and that it enjoyed diplomatic relations with some 185 States worldwide. As regards Belgium, more specifically, diplomatic relations with the Holy See dated back to 1832 and it was recognised as a State.

The Court did not find anything unreasonable or arbitrary in the detailed reasoning which led the Court of Appeal to reach that conclusion. It pointed out that it had itself previously characterised agreements between the Holy See and other States as international treaties. Therefore the Holy See could be recognised as having characteristics comparable to those of a State. The Court of Appeal had thus been justified in inferring from those characteristics that it was a sovereign power with the same rights and obligations as a State.

The Court pointed out that it had also accepted that the granting of State immunity in civil proceedings pursued the legitimate aim of observing international law for the sake of comity and good relations between States, by ensuring respect for the sovereignty of another State.

As to the proportionality of the limitation sustained by the applicants in their right of access to a court, the Court found that the Court of Appeal’s approach corresponded to international practice in such matters. It had not noted anything arbitrary or unreasonable in the Court of Appeal’s interpretation of the applicable legal principles, or in the way it had applied them to the facts of the case, taking account of the basis of the applicants’ action.

The Court also noted that the question whether the case could fall within one of the exceptions to the application of the jurisdictional immunity of States had also been discussed before the Court of Appeal. The exception invoked by the applicants applied to proceedings relating to “an action for pecuniary compensation in the event of the death or physical injury of a person, or in the event of damage to or loss of tangible property”. The Court of Appeal had rejected this exception on the grounds, among others, that the misconduct of which the Belgian bishops were accused could not be attributed to the Holy See, as the Pope was not the principal in relation to the bishops; that the misconduct attributed directly to the Holy See had not been committed on Belgian territory but in Rome; and that neither the Pope nor the Holy See had been present on Belgian territory when the misconduct attributed to the leaders of the Church in Belgium had been committed. It was not for the Court to substitute its own assessment for that of the national courts, since their assessment on this point had not been arbitrary or manifestly unreasonable.

The Court also noted that the proceedings brought by the applicants in the Ghent Court of First  Instance had not been directed solely against the Holy See, but also against officials of the Catholic Church in Belgium whom the applicants had identified. However, the applicants’ claim on this ground was unsuccessful owing to the applicants’ failure to comply with procedural rules laid down in the Judicial Code and substantive rules concerning civil liability in summoning the other defendants. The reason why the applicants’ action had been totally unsuccessful had thus been the result of procedural choices that they failed to cure in the course of the proceedings in order to specify and individualise the facts submitted in support of their claims.

Consequently, the Court found that the dismissal of the proceedings by the Belgian courts in declining jurisdiction to hear the tort case brought by the applicants against the Holy See had not departed from the generally recognised principles of international law in matters of State immunity and the restriction on the right of access to a court could not therefore be regarded as disproportionate to the legitimate aims pursued. There had therefore been no violation of Article 6 § 1 of the Convention.

Written by Marco Farina, Italian lawyer, PhD in Civil Procedural Law at the University La Sapienza of Rome – Adjunct Professor of Civil Procedural Law at the University LUISS of Rome

In a judgment rendered on 16 September 2021, the Italian Supreme Court (Corte di Cassazione) reversed a decision from the Court of Appeal of Rome, which had denied recognition and enforcement of a monetary judgment issued by the Royal Court of Guernsey, due to a breach of the fundamental rights of defence allegedly occurred in the proceedings.

The Court of Appeal of Rome reasoned under Article 64 (b), of the Italian Act on Private International Law (Law 31 May 1995 no. 218), which provides, inter alia, that a foreign judgment may be not recognized and enforced if fundamental rights of defence have been breached in the foreign proceedings.

The Court of Appeal found that a relevant breach of the fundamental rights of defence had occurred because, at the outset of the proceedings, a worldwide freezing injunction (associated with a disclosure order) had been issued against the defendant. In the Court of Appeal’s opinion, the injunction and its effects altered the procedural equality of the parties before the foreign court, since it was a “highly coercive measure against the defendant who is not only severely affected in the free disposal of his assets, but is also exposed to the risk of even being deprived of his personal freedom, if he does not cooperate with his counterpart in the identification of his assets to be seized” (English translation).

This relevant alteration of the procedural equality of the parties existed, according to the Court of Appeal, because, whilst the defendant was impacted by this order, the plaintiff was not.

In the end, the Court of Appeal held that the injunction issued against the defendant had “the concrete ability – in the absence of any conduct of the defendant indicating that he intended to harm the claimant’s rights – to limit, restrict, diminish the defendant’s ability to defend itself, both in imposing significant limitations on the free disposal of his assets and in constraining him to collaborate with the claimant before of preparing its own defence. All this, while nothing of the same kind affected the assets or the defensive opportunities of the claimant. The defendant, therefore, found himself in a much weaker defensive position than his counterpart” (English translation).

The Supreme Court found several flaws in this reasoning.

Firstly, the Supreme Court held that if, in principle, it could not be denied that a relevant alteration of the procedural equality might amount to a breach of the fundamental rights of defence, the mere fact that the judgment to be recognized and enforced in Italy had been preceded by a provisional order – in the form of an injunction (associated with a disclosure order) – could not, in any case, lead to such a breach.

Regarding the functioning of a freezing injunction issued by a common law court, the Supreme Court asserted that (i) the injunction is sought to preserve the defendant’s assets until judgment can be obtained or satisfied, (ii) the injunction may be rendered when the claimant has shown a good arguable case and a risk of dissipation exists, (iii) it operates in personam; therefore, its effectiveness depends on the threat of punishment for contempt of court, and (iv) it is usually associated with other orders, which are aimed at rendering the freezing injunction more effective, thus constraining the affected party to identify its assets and their location (disclosure order) under the threat of being excluded (debarred) from the proceedings (unless order).

Having said that, the Supreme Court went on to state that, in the case at hand, the injunction was associated with a disclosure order but not with an unless order. So, even if the defendant were not to comply with the injunction and the disclosure order, he remained fully entitled to participate in the proceedings defending himself as no exclusion and/or debarring was pronounced against him.

In the light of the above, the Supreme Court had good reason to observe that the Court of Appeal should not have found any breach in the fundamental rights of defence (in terms of the alteration of the procedural equality of the parties) since – as the same Italian Supreme Court held in its previous judgment (judgment no. 11021 rendered on 9 May 2013 in the well-known Gambazzi case, following the decision from CJEU in Case C-394/07, 2 April 2009, Gambazzi) – the right to a fair trial should be considered breached in the event of “manifest and disproportionate infringement of the defendant’s right to be heard” (English translation).

Thus, the Supreme Court noted that, if a judgment rendered against a defendant who – due to his failure to comply with a disclosure order associated with a freezing injunction – had been excluded and/or debarred from the proceedings, must be recognized and enforced in Italy (see again judgment no. 11021 of 9 May 2013 in the Gambazzi case), a fortiori a monetary judgment rendered against the defendant whose participation in the proceedings had not been prevented notwithstanding its failure to comply with the disclosure order associated with the freezing injunction, ought to be recognized and enforced in Italy.

The validity of this line of reasoning must be inferred, according to the Supreme Court, from the injunction (and the disclosure order which was associated with it) being a provisional and protective measure aimed at preserving the claimant’s right to enforce the judgment which might be rendered in its favour at the end of the proceedings on the merits. Therefore, such measures are as much an essential part of the common law procedural system as the attachment and/or preservation orders are in Italy (sequestro conservativo, Article 671 of Italian Code of Civil Procedure).

Hence, asserting that – as the Court of Appeal did – the mere fact that a freezing injunction has been issued and enforced against a defendant (and not against the claimant) amounts to a breach of the right to a fair trial (in terms of the alteration of the procedural equality of the parties), would insinuate that a breach of the fundamental right of defence occurs in Italy every time a claimant succeeds in obtaining a protective measure against the defendant, when the former is not addressed with the same measure.

This is not an alteration of the procedural equality of the parties. On the contrary, this is the essence of litigation between two parties in an adversarial system.

It is natural in contentious civil proceedings that the party against whom a claim is brought may be affected by measures which result in finding itself in a different situation from that of the claimant. This cannot, by definition, give rise to any relevant breach of the fundamental rights of defence in terms of violation of the principle of the so-called ‘equality of arms’. For example, in the ordinary proceedings instituted by the debtor for opposing an enforceable order of payment obtained by the creditor, the debtor finds himself in different position from that of the creditor; a defendant, in ordinary civil proceedings, finds himself in a different situation from that of the claimant who has obtained – before or during the proceedings – an attachment order for the defendant’s assets.

Accordingly, provided that both parties are granted equal chances to obtain and enforce a protective and/or provisional measure, is part of the ordinary functioning of a civil proceeding that a party will succeed in obtaining it and the other will not.

In the case at hand – the Supreme Court noted – both parties were granted equal and fair chances of defence as, (i) the freezing injunction and the disclosure order were given ex parte but the defendant was given the right to apply to the court to vary or reverse the order, and (ii) the claimant had assumed the obligation of complying, under the same threat of the “contempt of court”, with any subsequent order of the Court condemning the claimant for any loss suffered by the defendant.

Moreover, the Supreme Court asserted that nothing to the contrary may be inferred from the fact that the injunction and the disclosure order operate in personam and that the infringement thereof triggered the consequences of a “contempt of court”. The Cassazione did not see any violation of the fundamental rights of defence, all the more because the Italian legal system features cases in which a failure to comply with a judicial order could amount to a criminal offence.

The judgment of the Italian Supreme Court can be read here (in Italian).

Aldricus – Rambut lepek dan tidak bervolume merupakan masalah kebanyakan perempuan yang berhijab. Kondisi ini terjadi karena kurangnya perawatan atau perawatan yang tidak tepat pada rambut. Bagi Anda yang berhijab, Anda harus tahu cara membuat rambut bervolume dan tidak lepek.

Terlebih lagi kita ini tinggal di negara tropis yang mana membuat kita mudah berkeringat. JIka tidak cepat diatasi, masalah ini bisa mengurangi semangat dan rasa percaya diri Anda.

Cara Membuat Rambut Bervolume

Untuk membua rambut Anda menjadi lebat dan bervolume, ada beberapa cara yang bisa lakukan. Apa saja itu? Silahkan simak daftar caranya berikut ini:

1. Konsumsi Makanan Berprotein

Cara pertama adalah dengan mengonsumsi makanan yang mengandung banyak protein dan antioksidan. Alasannya karena rambut membutuhkan protein yang juga disebut dengan nama keratin. Jika rambut kekurangan protein, rambut menjadi mudah rontok dan menipis.

2. Keringkan Rambut Sebelum Berhijab

Rambut yang lepek karena hijab bisa Anda atasi dengan memastikan rambut sudah  kering sebelum memakainya. Rambut yang basah dan langsung menggunakan hijab akan membuat rambut cepat rusak. Anda bisa menepuk halus rambut dengan handuk atau diangin-anginkan supaya cepat kering.

3. Ubah Belahan Rambut

Selain membuat tampilan Anda menjadi lebih fresh, mengubah belahan rambut juga bisa membuat volume rambut Anda bertambah. Jadi silahkan Anda  ubah arah belahan rambut saat kondisinya masih basah atau setelah keramas, setelah itu keringkan secara alami.

4. Longgarkan Ikatan Rambut

Mengikat rambut terlalu kencang bisa menyebabkan maslah, salah satunya adalah membuat rambut lepek. Selain itu, hindari mengikat menggunakan karet gelang karena rambut bisa rusak akibat gesekan. Sebaiknya ikat rambut dengan bahan kain, jangan lupa untuk melepas ikatan ketika sedang tidak berhijab.

5. Jangan Gunakan Hijab Bertumpuk

Hijab dengan bahan katun biasanya mempunyai pori-pori yang bisa memperlancar udara yang masuk ke rambut. Jadi cara untuk membuat rambut bervolume adalah dengan menghidari penggunaan hijab model bertumpuk supaya kulit kepala tidak mudah berkeringan dan lepek.

6. Gunakan Shampo yang Tepat

Cara terakhir untuk membuat rambut bervolume adalah dengan menggunakan produk yang tepat. Beberapa produk yang bisa Anda gunakan adalah Sunsilk Hijab Refresh & Volume yang bisa membuat rambut Anda mengembang dan tidak lepek.

Demikianlah beberapa tips cara untuk membuat rambut bervolume, semoga bermanfaat.

The post 6 Cara Membuat Rambut Bervolume dan Tidak Lepek appeared first on Aldri Blog.

By Julian Henrique Dias Rodrigues

 

The Brazilian Superior Court of Justice reinforced the understanding that a foreign judgment that sets the amount of child support must be enforced even if the high economic-financial standard of the country of origin gives rise to an excessive amount, when compared to the national standards.

 

The case concerns the enforcement in Brazil of a decision from the District Court of Bludenz, in the Republic of Austria, against a debtor residing in Brazil.

The Austrian court set the monthly amount of maintenance at EUR 290.00 and determined that the amounts in arrears totaled EUR 35,090.00.

The debtor claimed that the decision could not be enforced since such amount would be totally unreasonable in relation to the economic reality of the defendant, characterizing the foreign decision as violating human dignity and the basic principles of the Brazilian legal system by ignoring the socioeconomic reality of Brazil and of the defendant in particular.

However, the Court emphasized that the enforcement of a foreign decision is a merely formal act, whereby is not possible to enter into the merits of the original dispute, nor investigating any injustice of the foreign decision. This enforcement, therefore, has the sole and exclusive purpose of transferring into the Brazilian legal system a decision handed down abroad, provided the formal requirements required by Brazilian law are met.

With this, the enforcement does not deprive the debtor of the possibility of filing a suit to review the amount of the child support, in view of the alleged disparity between the economic realities in Brazil and in the country where the amount was fixed.

The decision was rendered in Application HDE n.º 4.289 (Special Section of the STJ) and took into consideration the requirements under Brazilian law for enforcement of a foreign decision.

Brazilian legal framework on enforcement of foreign decisions

The Brazilian Federal Constitution states that the enforcement of foreign judgements is a competence of the Superior Court of Justice (STJ). The Brazilian legal instrument, therefore, for the recognition of foreign decisions is, in Portuguese, the Ação Especial de Homologação de Decisão Estrangeira (HDE).

The requirements for the enforcement of a foreign judgment through HDE are foreseen in Article 963 of Código de Processo Civil (CPC) and in Articles 216-C and 216-D of the Internal Rules of the STJ. In this regard, it is worth remembering that neither Brazil nor Austria ratified the Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations.

The article 216-D states that the foreign decision must:

1. have been rendered by a competent authority,
2. contain evidence that the parties have been duly summoned or that a default judgement has been legally issued, and

• have become effective or res judicata in the country in which it was rendered.

According to Article 216-F a foreign decision shall not be enforced if that offends national sovereignty, human dignity and/or public order.

In short, the debtor argued that the economic disparity and the lack of analysis by the Austrian Court about his financial condition in particular would imply a violation of human dignity and the Brazilian legal order, but the Brazilian Court found that these issues would be a question of merit, and not of formal requirements. Whereas related to the merit of the suit filed before the foreign Court, these questions cannot be analyzed before the Court in the exercise of its competence merely to enforce the decision rendered abroad.

Click here to access the full decision (in Portuguese)

 

 

Thomas Pfeiffer/Quincy C. Lobach/Tobias Rapp (Eds.), “Facilitating Cross-Border Family Life – Towards a Common European Understanding”, Heidelberg University Publishing 2021 (link)

The EUFams II consortium has just released the project’s Final Study. The volume contains the papers presented at the project’s Final Conference. The contributors were invited to present historical developments, discuss the status quo, and draw the lines along which European family and succession law may develop. The authors hope to inspire the readership and the scientific community at large to engage in further research along and across these lines.

The book is available both online (open access) as well as in print (link). Its contributors are (in alphabetical order): Marlene Brosch, Laura Carballo Pineiro, Diletta Danieli, Rosario Espinosa Calabuig, Ivana Kunda, Quincy C. Lobach, Cristina M. Mariottini, Ulf Maunsbach, Nicolo Nisi, Cinzia Peraro, Thomas Pfeiffer, Paula Poretti, Tobias Rapp, Lenka Valkova, Ilaria Viarengo, Francesca Villata, Marcel Zühlsdorff, and Mirela Zupan.

The EUFams II project (2018-2020) was coordinated by the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University. Project partners were the Universities of Lund, Milan, Osijek, Valencia, and Verona as well as the MPI Luxembourg. This blog has previously reported on some of the project’s research outputs, including the Final Conference.

This project was funded by the European Union’s Justice Programme (2014-2020). The content of this study represents the views of the authors only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains.

In the last decades, Spanish academia has seen a growing number of journals devoted, exclusively or not, to PIL issues. The editorial principles of them all have also quickly evolved and may are open access and downloadable from the very moment of publication, or only some months afterwards. Most of them follow a strict double-blind peer-review, almost all provide for a summary of the contributions in English, and some accept to publish in languages other than Spanish.

Cuadernos de Derecho Transnacional, of the University Carlos III of Madrid, has already a place in the EAPIL blog. In this and following entries I will present other relevant current Spanish PIL journals, starting with those belonging to the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI): the Spanish Yearbook of International Law (SYbIL), the Revista Electrónica de Estudios Internacionales (REEI) and the Revista Española de Derecho Internacional (REDI).

The SYbIL, founded in 1991, provides an annual report on new developments in international law. From 1991 to 2012 (vols. 1-17), the Yearbook was published by Martinus Nijhoff/Brill. From vol. 18 onwards, the Editor decided to go entirely on-line under a complete open-access philosophy. The contents of volumes 1-17 in PDF format have been kindly made freely accessible by Brill to all readers, thus all them can be freely downloaded too.

Since its first volume, the Yearbook has endeavoured to make a significant academic contribution to the on-going development of international law, with a particular focus on Spanish doctrine and practice. The SYbIL is the only publication edited by AEPDIRI completely written in English in order to reach the largest possible international audience. Its rules of governance have been adopted by AEPDIRI (a résumé may be found here, in Spanish).

In 2013, with the election of a new Editorial Board, a new editorial plan was adopted and the SYbIL changed its purpose, structure and editorial model. This new website tries to offer the contents of this new epoch of the Yearbook. This editorial decision will enable the Yearbook to be accessible to the entire international readership, offering current research in Spanish academic institutions but other research of what Oscar Schachter labelled as the “invisible college of international law” as well.

Fully aware of the paramount importance of international practice, the Spanish Yearbook publishes contributions from active practitioners of international law on a regular basis. The Yearbook also includes critical comments on Spanish State practice relating to international and EU law, as well as international reactions to that practice.

The last issue of the SYbIL can be access here. The next one will be published in January 2022. Contributions for each forthcoming issue need to be sent by July 31 of the previous year at the latest to editor@sybil.es following the editorial guidelines.

Volume 415 of the Collected Courses of the Hague Academy of International Law published with Brill is dedicated to Mr. Trooboff’s Hague Academy general course lectures on ‘Globalization, Personal Jurisdiction and the Internet’.

The author reviews how courts in the United States, the European Union and a number of countries such as Canada, Japan, India and Latin America have responded to the challenge of adapting settled principles and precedents to cases arising from Internet usage. Trooboff examines the recent U.S. Supreme Court cases addressing general and specific personal jurisdiction and how U.S. appellate courts have applied the Court’s holdings in disputes arising out of the use of the Internet in Chapter 2. Eleven decisions of the European Union Court of Justice and related scholarship that interpret the jurisdictional provisions of Brussels I Regulation and its successor in the context of Internet usage and that arise from tort and contract claims (including infringement of intellectual property and related rights) are discussed in Chapter 3. Similarly selected decisions and scholarship addressing analogous personal jurisdiction issues in decisions of courts of Canada, Japan, China, Latin America and India are analysed in Chapter 4. The last part of the volume – Chapter 5 – is dedicated to an overview of the important projects that incorporate the principles emerging from the many judicial decisions and that have been undertaken by Hague Conference on Private International Law, the American Law Institute, the European Max Planck Group on Conflict of Laws in Intellectual Property, the International Law Association and the International Law Institute.

Further details about the volume are available here.

 

This week the European Union has given notice to all stakeholders that is preparing an initiative relating to justice and fundamental rights, the purpose of which is to enact the implementing acts establishing the decentralised IT system to be used for cross-border service of documents and cross-border taking of evidence. Click here and here.

This is in accordance with the Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast) and the Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast).

As stated in the notifications, the implementing acts will set out the technical specifications of the methods of communication and communication protocols, security objectives and relevant technical measures, minimum availability objectives and the establishment of a steering committee.

It is planned for the first quarter of 2022.

A new version of the Insolvency Registers Interconnection search interface is now available on the e-Justice Portal.

Background

The EU-wide interconnection of national insolvency registers (IRI 2.0) has been developed in accordance with article 25 of the Regulation (EU) 2015/848 on insolvency proceedings across EU borders. EU Member States are required to publish relevant information on cross-border insolvency cases in a publicly accessible online register (see here) and these registers shall be interconnected via the European e-Justice Portal.

The decentralised system allows searches for insolvent debtors, either natural or legal persons, within the EU Member States registers that completed the implementation according to the Insolvency Regulation. It aims at ensuring that creditors and national courts receive relevant information and at preventing parallel proceedings to be opened within the EU.

New Version

Since 1 September 2021, the new system has replaced the current version based on voluntary participation under the insolvency Registers Interconnection search (IRI 1.0) and applicable in the following Member States: Austria, the Czech Republic, Estonia, Germany, Italy, Latvia, the Netherlands, Slovenia and Romania (see here).

The new system applies (for now) in the following Member States: Belgium, Estonia, Spain, Croatia, Cyprus, Latvia, Lithuania, The Netherlands, Portugal, Romania, Slovakia, Finland, Sweden and Germany (see here).

More information here.

Ghent University (Belgium) and its Center for the Future of Dispute Resolution organise an online conference titled Transnational Dispute Resolution in an Increasingly Digitalized World, to be held on 24 March 2022.

A call for abstracts is open through 1 December 2021.

The concept is as follows:

The increased digitalization in the field dispute resolution, which received a boost from the Covid-19 pandemic, raises a number of important questions in terms of privacy, cybersecurity, data protection and artificial intelligence, going from rather practical concerns (how to protect the information exchanged, how to organize the taking of evidence, how to comply with the various obligations, etc.) to more fundamental inquiries (does it scare litigants off, does it foster or rather compromise efficiency, etc.).

The goal of the conference is to bring together academics, practitioners and policy makers with expertise in the field of dispute resolution (arbitration, transnational litigation, mediation, other ADR mechanisms) and technology law. That is why we are particularly (but not exclusively) interested in contributions that focus on :

• Obligations of the actors of justice
• Challenges and opportunities of (partial) online proceedings
• Evidentiary issues related to cybersecurity and data protection
• The (ab)use of these instruments as a dispute resolution strategy

and discuss these forward-looking dispute resolution topics in light of the various privacy, data protection, cybersecurity and AI regulations.

See here for more information.

Aldricus – Pernahkah Anda mendengar tentang scoliosis? Sebelum membahas tentang penanganan scoliosis terbaik, ada bagusnya jika Anda mengenal lebih dulu apa itu scoliosis. Scoliosis merupakan salah satu gangguan pada tulang belakang. Rangka tubuh atau tulang belakang mengalami kelengkungan.

Hal tersebut kerap dikenal dengan scoliosis. Gangguan ini bisa menyerang anak-anak maupun orang dewasa. Kondisi scoliosis parah biasanya memiliki kurva kelengkungan hingga 40 derajat. Ada banyak sekali sebenarnya penanganan yang bisa dilakukan untuk scoliosis.

Penanganan Scoliosis

Seperti yang sekilas dijelaskan di atas, ada beberapa macam cara untuk menangani scoliosis. Berbagai macam cara ini bisa diaplikasikan sesuai dengan tingkat scoliosis yang dialami. Berikut di bawah ini beberapa cara penanganannya:

1. Observasi

 Hal pertama yang harus dilakukan adalah observasi atau proses melihat dan menunggu. Biasanya hal ini dilakukan untuk anak-anak yang terserang scoliosis. Tahap ini dilakukan untuk melihat apakah scoliosis bertumbuh dengan sangat cepat dan parah.

Pada proses ini, harus dilihat bagaimana lengkungan dan perkembangan yang terjadi pada scoliosis. Jika dirasa lengkungannya parah, maka harus ditindak lanjuti dengan cara tepat.

2. Terapi/Latihan Fisik

 Proses penanganan selanjutnya adalah melakukan terapi atau latihan fisik. Tahap ini dilakukan apabila scoliosis yang terjadi, lengkungannya belum parah arau masih bisa diperbaiki tanpa operasi. Tahapan ini biasanya ditangani oleh dokter yang ahli di bidang terapi scoliosis.

Pada tahap ini, Anda akan dikenalkan dengan berbagai pendekatan terapi agar posisi tulang belakang bisa kembali normal. Biasanya hal ini menggunakan alat khusus.

3. Bracing

 Salah satu cara penanganan scoliosis yang cukup populer adalah bracing. Bracing sendiri adalah alat khusus yang dipasang pada bagian tulang belakang.

Bracing ini juga ada beragam, ada yang lunak, dinamis, kaku, hingga yang korektif. Untuk penggunaan bracing ini, Anda bisa langsung konsultasikan pada dokter terpercaya yang ahli dalam bidang ini.

4. Pembedahan

 Scoliosis memang bisa disembuhkan tanpa operasi bedah. Namun hal ini juga tergantung pada kondisi keparahan scoliosis. Jika scoliosis yang dialami sudah sangat parah hingga menimbulkan ketidak seimbangan tulang, maka operasi bedah perlu dilakukan.

Pada beberapa kasus, scoliosis yang menyerang anak-anak, tumbuh lebih cepat. Sehingga akan sangat bahaya jika hanya dibiarkan. Operasi bedah bisa menjadi salah satu alternatif terbaik.

5. Pengobatan Komplementer

 Pada dasarnya, tidak ada berbagai jenis obat yang bisa dikonsumsi untuk menyembuhkan scoliosis. Namun pengobatan komplementer ini hanya berlaku sebagai pelengkap dari terapi penyembuhan. Penggunaannya juga tidak bisa dilakukan secara terus menerus, alias ada batasan.

5 cara penanganan scoliosis di atas bisa jadi acuan untuk Anda yang sedang menderita atau memiliki keluarga yang menderita scoliosis. Mulai dari cara yang ringan hingga cara berat seperti pembedahan, semua bergantung pada tingkat keparahan scoliosis itu sendiri. Pastikan Anda memilih cara yang tepat.

The post Scoliosis dan Penanganannya appeared first on Aldri Blog.

As I noted when I signalled the reference, the French Supreme Court in C-251/20 GtFlix has not referred the question whether Bolagsupplysningen is good authority for acts of unfair competition between competitors. Rather, it queries whether Bolagsupplysningen means that a claimant who requests both rectification /retraction and damages, has to necessarily turn to courts with full jurisdiction or whether they can continue to turn for the damages part, to all courts with locus damni jurisdiction.

Hogan AG in his Opinion a few weeks ago right up to (94) revisits the wisdom of applying Shevill’s Handlungsort/Erfolgort distinction and the possibility of using GtFlix to overturn. I agree that this is not the case to do it. (On the CJEU and overturning its authority, see excellently the departing Bobek AG in C‑205/20).

At 95 he then essentially requalifies and answers the question which the SC had not referred. The action at the French courts is one in dénigrement, which is a form of malicious falsehood which, the AG suggests, does not call into question the Bolagsupplysningen line of cases but rather Tibor Trans and the cases before it.

An action relating to an infringement of unfair competition law may be brought before the courts of any Member State where that act caused or may cause damage within the jurisdiction of the court seised. Where the market affected by the anticompetitive conduct is in the Member State on whose territory the alleged damage is purported to have occurred, that Member State must be regarded as the place where the damage occurred for the purposes of applying Article 7(2) (99).  A final reference at (102) ff is to the applicable law level under (Article 6) Rome II. 

Should the CJEU follow, one of the left-over questions following Bolagsupplysningen will not be answered, yet another issue on falsehoods spread between competitors, will.

Geert.

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

The most recent issue of the Uniform Law Review contains a number of articles that are interesting from a PIL perspective.

The first, authored by Michiel Poesen, has the provocative title Is specific jurisdiction dead and did we murder it? An appraisal of the Brussels Ia Regulation in the globalizing context of the HCCH 2019 Judgments Convention (abstract here). It is basically a critique of the rigid application of Art 7 Brussels I bis Regulation by the CJEU. The author claims that the Hague Judgments Convention would not follow this approach but rather require a more flexible assessment of jurisdiction through its jurisdictional filters. He points in this context to Art 5(1)(g) Hague Judgments Convention, which makes indirect jurisdiction for contractual claims dependent on the caveat that “activities of the defendant in relation to the transaction clearly did not constitute a purposeful and substantial connection to that State”. This formula is indeed clearly inspired by the minimum contacts test under U.S. constitutional law. Still, in Art 5(1)(g) it is combined with a performance-of-the-obligation test, which is strongly reminiscent of Art 7(1) Brussels I bis. Rather than “murdering” special jurisdiction, the Hague Convention thus provides for a compromise of the EU and U.S. approaches, with the former defining the core and the latter the outer limit of contractual jurisdiction.

The second article, written by Garth J Bouwers, is titled Tacit choice of law in international commercial contracts: an analysis of Asian jurisdictions and the Asian Principles of Private International Law (abstract here). He points to an interesting Chinese practice direction which assumes a tacit choice of the lex fori where none of the parties has pleaded foreign law. This reminds of the approach under French law (for recent case-law and analysis see here and here). In the analysis of the other jurisdictions examined (Hong Kong, Japan, South Korea, Singapore), this possibility is not mentioned. It seems that the latter rather rely on an ex officio application of foreign law. The author thankfully describes their methods in detail.

Third, Johanna Hoekstra examines the Political barriers to the ratification of international commercial law conventions (free access to full article here). She takes the Swiss proposal to reform the CISG as an example of the obstacles that legal uniformisation may encounter. To this end, she relies on insights from political science, which she applies to the specific context of legal harmonisation. Her conclusion that “international private law can have low political priority” is sad but probably true. Equally important is her observation that lobbying and interest groups may change this setting.

There are also three articles written in French, one on the liability of an arbitrator for the damages caused by preliminary measures (abstract here), and two on legal harmonisation in West Africa under the auspices of OHADA (here and here).

A further article by the author of the present post is entitled National Blockchain Laws as a Threat to Capital Markets Integration (full free access here). It compares recent private law reforms concerning digital assets in France, Liechtenstein, the UK, the US (U.C.C.) and the (deviating) law of Wyoming. The comparison also encompasses the conflict-of-laws rules for the blockchain in these systems.

Of special interest is a presentation of the new Uruguay Act on PIL (Ley general de derecho internacional privado) (abstract here). The Act allows the choice of non-state law to the extent that it is generally recognised on the international level, neutral and balanced, and emanates from an international organisation to which Uruguay is a member (Article 45). Also of interest is the special place the Act gives to international commercial law (Article 13), which is reminiscent, but not identical to, old musings about the existence of a “lex mercatoria“.

Finally, this rich treasure of PIL insights also informs about new developments in the law of secured transactions in China (abstract here) and UNCITRAL’s 53d Commission session (abstract here).

The Private Side of Transforming our World
UN Sustainable Development Goals 2030and the Role of Private International Law

September 9-11, 2021, Hamburg, Germany,
Max Planck Institute for Comparative and Private International Law

By Madeleine Petersen Weiner and Mai-Lan Tran

The Max Planck Institute for Comparative and Private International Law hosted a hybrid conference on the Institute’s premises, and digitally via Zoom, under the above title from September 9-11, 2021, on the occasion of the publication of the nearly 600-page anthology “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law”.

The Sustainable Development Goals (“SDGs”) include 17 goals for sustainable development. Formulated by the United Nations in 2015, they form the core of the 2030 Agenda and aim to enable people worldwide to live in dignity while respecting the earth’s ecological limit. Fighting poverty and other global ills, improving health and education, reducing inequality and boosting economic growth while combating climate change are the themes of this agenda, also referred to as a “contract for the future of the world”. In Public Law, including International Law, SGDs have already established themselves as a subject of research. This has not been the case for Private Law so far. The project “The Private Side of Transforming our World – UN Sustainable Development Goals 2030 and the Role of Private International Law” addresses this research gap identified by the editors and organizers of the conference, Ralf Michaels, Director of the Max Planck Institute for Comparative and International Private Law (D), Verónica Ruiz Abou-Nigm, Senior Lecturer at Edinburgh Law School , University of Edinburgh (UK) and Hans van Loon, former Secretary General of the Hague Conference on Private International Law (NL). The project‘s aim was to raise awareness that Private International Law („PIL“), with its institutions and methods, can also make a significant contribution to achieving these goals.

The conference was structured around the individual SDGs and was divided into six overarching thematic blocks. Renowned and emerging scholars from around the world presented excerpts from their research for the anthology on the relationship between PIL and each of the SDGs. Following the contributions of the individual speakers, discussants for each thematic block pointed out connecting lines and questions within the respective clusters and stimulated the discussion on the podium with initial questions and sometimes provocative theses. Afterwards, the floor was opened to questions from the audience. Next to the organizers, Maria Mercedes Albornoz, Centro de Investigación y Docencia Económicas (MEX), Duncan French, University of Lincoln (UK), and Marta Pertegás, Maastricht University (NL), took on the role of discussants.

The mix of speakers as well as the audience were very international, also thanks to the hybrid format. The English-language conference was translated simultaneously into Spanish for the audience dialed in via Zoom.

After a warm welcome by the organizers, the conference kicked off with the “Basic Socio-Economic-Rights” cluster. The first speaker, Benyam Dawit Mezmur, University of the Western Cape (ZAF), focused on SDG 1 “No Poverty”. He stated that this was a very ambitious goal and that the COVID-19 pandemic had actually increased poverty in the world. He went on to point out that it was the poverty of refugee children that needed to be addressed. PIL could contribute to this by simplifying the recognition of status.

Jeannette Tramhel, Organization of American States (USA), then commented on SDG 2 “No Hunger”. She talked about an “elephant in the room” in the goal of eliminating world hunger by 2030, referring to the discussion of whether the industrial agri-food system (“Big Ag“) was the solution to the puzzle, or rather its cause. This “elephant” then ran not only proverbially but also figuratively through her presentation. She then addressed harmonized regimes such as the Hague Conference on Private International Law 2005 Choice of Court Convention, which she believes provide an effective contribution to the goal. Avoiding parallel proceedings, she said, would also be beneficial for internationally operating companies in the agricultural and food sectors.

This first set of topics was concluded by the presentation of Anabela Susana de Sousa Gonçalves, University of Minho (PRT), on SDG 3 “Good health and well-being”. She first talked about telemedicine and e-health platforms with cross-border functions. With these resources, universal health coverage and healthcare as such – even in the poorest countries of the world – could be supported by PIL.

After a joint lunch break, the participants turned their attention to the second set of topics, “Energy, Work and Infrastructure.” Nikitas E. Hatzimihail, University of Cyprus (CYP), kicked off the session. He spoke on SDG 7 “Affordable and clean energy”. He advocated using the regulatory function of PIL to help achieve some harmonization of regulatory standards at the global level and thereby contribute to the efficient achievement of regulatory goals.

Ulla Liukkunen, University of Helsinki (FIN), then outlined the main findings from her chapter on SDG 8 “Decent Work and Economic Growth”. In her presentation, she spoke in favor of broadening the perspective on existing regulatory approaches in PIL. Workers’ rights should be placed at the center, and laws as well as legal practices should also be evaluated from this point of view.

In the third and last presentation on the topic, Vivienne Bath, University of Sydney (AUS), dealt with SDG 9 “Industry, Innovation and Infrastructure”. She elaborated on PIL’s fundamental role in infrastructure projects, starting with contractual issues and ending with dispute resolution. Summing up, she argued for an approach that was more concerned with sustainability than with enforcing the commercially based doctrines of choice of law autonomy and the importance of binding parties to their choice of forum.

A short coffee break refreshed the speakers and the audience for the final set of topics of the day, “Education, Gender and Socio-Economic Inequality.” Here, first Klaus D. Beiter, North-West University, Potchefstroom (ZAF), gave an insight into his findings on SDG 4 “Quality Education”. At the outset, he emphasized his difficulties in even recognizing a link to PIL, since education is a central task of the state. However, according to Beiter, the link becomes clear when one observes the progressive privatization of the education sector. He identified as a problem that shortcomings in the education sector on the part of the state in the Global South were being systematically exploited by companies in the global North. PIL thus must be further developed in order to offer more protection to the “weaker” actors in the education sector.

Gülüm Bayraktaro?lu-Özçelik, Bilkent University, Ankara (TUR), followed by highlighting the role of PIL in achieving SGD 5 “Gender Equality”. She showed that gender equality issues can play a role in all traditional areas of PIL (such as applicable law or jurisdiction) as well as specifically in the recognition of marriages. On the one hand, a one-size-fits-all approach would not do justice to all areas. On the other hand, the opportunities of cross-cutting soft law instruments, such as the guiding principles for the realization of gender equality, also in cross-border matters, should not be negated but further explored.

Lastly, Thalia Kruger, University of Antwerp (BEL), spoke on SDG 10 “Reduced inequalities”. Inequality exists on many levels and plays a role in many different places in PIL. In her presentation, she focused on tort law. Inequality could be countered by adequate compensation of the injured parties by the damaging parties. She also expressed her disappointment at the failed attempt to create a new conflict of laws provision in the Rome II Regulation for human rights violations. A draft by the European Parliament’s Legal Affairs Committee had envisaged giving injured parties the right to choose between four possible applicable legal systems. Criticism was voiced that the right of choice would create too much legal uncertainty for companies. Kruger countered that companies would simply have to comply with all and thus the highest standard of the four possible applicable laws.

The first day culminated in the live book launch of the anthology at Intersentia. In order to make it available to as many people as possible worldwide, it was made freely accessible online (open access) at www.intersentiaonline.com – the current preliminary version soon to be replaced by the final text.  A PDF version of the book will also be available for free download on the website, as will print versions of the book.

The second day of the conference began with a presentation by Eduardo Álvarez-Armas, Brunel University of London (UK) and Université catholique de Louvain (BEL), on SDG 13 “Action on Climate Change”. Using the example of the recent lawsuit of the environmental organization Milieudefensie and other environmental associations against Royal Dutch Shell before the District Court of The Hague, which was successful in the first instance, and the lawsuit of the Peruvian farmer Lliuya against RWE AG, which has been pending in the second instance at the Higher Regional Court of Hamm since 2017, Álvarez-Armas attested to the ability of PIL in the form of Private International Law Climate Change Litigation to contribute to the realization of SDG 13.

Tajudeen Sanni, Nelson Mandela University (ZAF), also attested to the discipline’s potential in the context of transnational claims by local communities dependent on the sea and its resources, in light of SDG 14, “Life Below Water”. He advocated further development of PIL principles in light of the SDGs; the choice of applicable law should be made on the basis of which of the possible ones called upon to apply (better) promotes sustainable development.

To conclude this fourth Cluster, “Climate and Planet,” Drossos Stamboulakis, University of the Sunshine Coast (AUS), presented his insights on SDG 15, “Life on Land”. In his view, the necessary redesign of PIL to make it fruitful for sustainable development should avoid stripping PIL of its legitimacy based on technical and dogmatic answers.

Finally, the organizers were able to secure Anita Ramasastry, University of Washington, Member of the U.N. Working Group on Business and Human Rights, as keynote speaker. She was able to identify overarching leitmotifs in the debate and at the same time set her own impulses. PIL could provide guidelines for promoting responsible corporate conduct. However, transnational corporations have so far been understood by the discipline predominantly as a problem but not as (positive) actors. Against this backdrop, her recommendation was to delve deeper into what kind of positive roles business could play in the future.

The remainder of the morning was devoted to the somewhat broader topic „Living Conditions”. Klaas Hendrik Eller, University of Amsterdam (NL), kicked it off with SDG 11 “Sustainable Cities and Communities”. He was guided by the question of how PIL’s rich experience in identifying, delineating, and addressing conflicts could help create an appropriate forum for spatial justice issues in a global city.

Geneviève Saumier, McGill University (CAN), then addressed SDG 12 “Sustainable consumption and production”. In her view, PIL has so far fallen short of its potential. Provisions that ensure access to justice, especially in the case of lawsuits against transnational corporations, as well as choice-of-law rules that provide ex ante incentives for producers to comply with higher standards of potentially applicable laws could change this.

The third presentation of this set of topics was given by Richard Frimpong Oppong, California Western School of Law, San Diego (USA), considering SDG 6 “Clean Water and Sanitation”. He did not deny PIL’s supporting role in the management of water and sanitation resources. Ultimately, however, the problems associated with achieving SDG 6 were too complex and multifaceted to be solved by the traditional methods of PIL and adversarial litigation (alone).

After the lunch break, Sabine Corneloup, University Paris II Panthéon-Assas (FRA), and Jinske Verhellen, Ghent University (BEL), commented on SDG 16 “Peace, Justice and Strong Institutions” in the last Cluster “Rights, Law and Cooperation”. They put their focus on target 16.9 – legal identity in the context of migration. They showed that restrictive migration policies of the Global North counteract one of the fundamental goals of PIL, cross-border continuity. Only when issues of legal identity are separated from migration policy decisions does PIL have the potential to ensure that identity across borders has real value and enable migrants to exercise their rights.

For Fabricio B. Pasquot Polido, Federal University of Minas Gerais (BRA), who was scheduled to be the last speaker of the afternoon on SDG 17 “Partnerships to Achieve the Goals”, but was unfortunately unable to attend at short notice, Hans van Loon stepped in. In light of SDG 17, he shared his practical experience regarding cross-border cooperation between administrations and courts as former Secretary General of the Hague Conference on Private International Law. He reported on the remarkable developments in the organization’s relations with Latin America, and incrementally with the Asia-Pacific region. Looking to the future, he looked at efforts to build appropriate partnerships to Africa as well, and a possible Hague Conference convention on private international law aspects of   environmental and climate change issues.

With heartfelt thanks to all participants, the organizers finally closed the public part of this extremely diverse and inspiring conference, which sees itself rather as the beginning than the end of the joint project under the hashtag #SDG2030_PIL.

On the morning of the last day of the conference, the organizers and speakers met internally to pick up on the impulses of the two previous days, to continue the threads of discussion from bilateral talks in a large group and to develop the future of the project.

The conference set itself ambitious goals in terms of both organization and content. The hybrid format, up till now untested, was a complete success and, as Ralf Michaels already pointed out in his introductory remarks to the conference, excellently reflected the nature of PIL; it united international and local levels.

In terms of content, the conference was in no way inferior to this (technical) success. On the contrary, it not only convinced speakers and discussants, who had shared their initial reservations about the PIL’s power of impact for sustainable development in the sense of the SDGs, but also convinced the audience to acknowledge the private side of the transformation of our world through the diversity and substantive precision of the contributions. It was a great pleasure and honor for the two authors of this summary to witness the contagious commitment of the project’s participants to the discipline’s assumption of responsibility for the realization of the SDGs in beautiful, late-summer Hamburg.

 

Madeleine Petersen Weiner and Mai-Lan Tran are doctoral candidates at the Chair of Prof. Dr. Marc-Philippe Weller at the Institute for Private International Law and International Business Law at Heidelberg University. Madeleine Petersen Weiner also works as a Research Assistant at this institute.

Vacating the interim injunction that was granted earlier this year to prevent CG Corp. Global – a Nepal-based company, registered in India from manufacturing and selling its instant noodles under the name of Wai Wai X-Press Noodles Majedar Masala in a passing-off action by ITC Ltd, the Karnataka High Court formulated detailed guidelines to ascertain the circumstances in which there will be a passing-off of a trademark and an infringement of copyright under Indian law.[1] The Karnataka High Court was exercising its appellate jurisdiction under Section 13(1A) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 (CCA) that authorizes the creation of commercial courts in India. These courts are equally competent to adjudicate domestic and international disputes on matters that fall within the purview of the Act. The scope of the legislation is vast and includes, inter alia, disputes concerning intellectual property rights such as trademarks, copyright, patents, designs or geographical indications – which will be considered of a commercial nature if the value of the subject matter is more than INR 3,00,000. The Act confers jurisdiction over the Commercial Division of the High Courts – as a court of the first instance – whenever the dispute arises within the local limits of Delhi, Bombay, Calcutta, Madras or Himachal Pradesh. In all other States of India, the commercial courts created at the district level will be competent to adjudicate such matters. The legislation has been promulgated to promote trade and commerce in India by fast-tracking the settlement of such disputes. In matters of intellectual property such as these, the Act confers the Commercial Court or the Commercial Division of the High Court in some states with the exclusive jurisdiction to adjudicate such matters, which were initially within the domain of the District Courts.

The Commercial Appellate Division of the Karnataka High Court was faced with the predicament of whether the defendant, CG Corp, had damaged ITC’s goodwill and reputation by incorporating a similar colour scheme of red and orange in packaging its Wai Wai X-Press Noodles Majedar Masala. As a result, ITC claimed that the defendant’s product was deceptively similar to its Sunfeast Yipee! Magic Masala Noodles and, thus, CG Corp’s act constituted passing-off and an infringement of ITC’s copyright under Indian law.

Rejecting ITC’s contentions, the court formulated a two-pronged formula to ascertain the circumstances in which a defendant could be considered to have passed off a product as that of the claimant – to have violated the latter’s registered trademark. In doing so, the court placed emphasis on the position under English law as emphasized in Payton v Snelling,[2] Lampard; Reckitt & Colman v Borden;[3] and Pasquali Cigarette Co Ltd v Diaconicolas & Capsopolus.[4]

The first and foremost factor, as the court stressed, would be to identify the features in the plaintiff’s product that are distinctive to him or her. As the court elaborated, distinctiveness in this context refers to distinctiveness in law as opposed to distinctiveness in fact. Distinctiveness in fact, as the court clarified, are the features of the mark that are distinctive according to the claimant’s perspective. Instead, the claimant must clearly demonstrate whether the hypothetic person or the class of persons constructed and identified by the court are likely to be deceived by the similarities in the product. The identification of the hypothetical persons would essentially depend on a variety of factors and, in particular, the nature of the goods sold, the circumstances of the sale and the class of persons to whom the product is targeted. Drawing an analogy with surgical and pharmaceutical products, the court elaborated that in a product such as this, the hypothetical person would be an ordinary purchaser and one of average intelligence – who being neither too careful nor too careless and knowing more or less the peculiar characteristics of the product, accepts what he or she is given after examining the general appearance of the article. It is unlikely, as the court further substantiated, for the ordinary consumer to mentally capture every minute detail of the packaging of the product – including the colour scheme.

Having regard to the circumstances of the case, the court asserted that the dominating feature in the claimant’s product remains the verbal as opposed to the visual marks because the ‘striking and most distinguishing feature of the defendant’s wrapper was its-brand name Sunfeast Yipee! Therefore, CG’s act cannot constitute passing-off under Indian law unless ITC can demonstrate that the deception was likely to occur even if the expression Sunfeast Yippee! was missing from the CG’s product which, instead, had its own brand name (Wai Wai X-Press Noodles Majedar Masala). The court’s observation was substantiated on a variety of factors – including the claimant’s marketing strategy and central arguments in past litigation. Consequently, the court took note of a previous dispute that was initiated by the claimant against Nestle on a similar ground, where the plaintiff argued that the latter had led the customers to believe that the Maggi’s Magic Masala Noodles (sold by Nestle) and the plaintiff’s Sunfeast Yippee! Magic Masala Noodles were one and the same. In that case, the claimant, ITC, had argued that the expression ‘Magic Masala’ as distinctive to its mark.

Further, the court noted that the claimant had adopted a similar strategy in its advertising campaigns -whether the striking feature remained its brand name – Sunfeast Yippee! as opposed to the colour combination. Referring to the decisions of the English courts in Payton v Snelling, Lampard and Pasquali Cigarette Co. Ltd. v Diaconicolas & Capsopolus, the court stated that regardless of how ‘novel, original or striking’ the colour scheme may be, it was not a feature that was relied upon by the ordinary purchaser to identify the source of the product. As the court further asserted, the chief question invariably remains: what is the function that the get-up of the product actually serves and not how well that get-up has been designed to serve that purpose.

The second factor would be to discern whether the products being manufactured and sold by the defendant are ‘deceptively similar’ to the one’s being manufactured by the claimant. However, whether the goods were in fact deceptively similar would be assessed only after it has been ascertained whether the goods bearing the mark were distinctive in law according to the criterion indicated above. In order to assess whether the defendant’s product was deceptively similar to the plaintiff’s, not merely the features that bear a resemblance with the plaintiff’s product would be considered – but also the measures that were undertaken by the defendant to eliminate the possibility of confusion would be considered.

Therefore, in situations (such as these) where there has been no direct misrepresentation, whether there has been passing-off as a result of deceptive similarity would, in turn, depend on two factors –

1. a) that the name, mark or distinctive feature had acquired a reputation among a class of persons and
2. b) that the mark or feature, being the same or sufficiently similar, had led those persons to believe that the goods are from the same or a connected source.

The comparison of the marks or features discern whether they are the same or sufficiently similar, must be done by looking at all the surrounding circumstances – and whether it is likely to cause confusion in the minds of the hypothetical customer that has been identified based on the principles to ascertain whether the mark/feature is distinctive in law. Consequently, the manner in which the goods or services were supplied would bear a strong influence in ascertaining whether the consumer is likely to be deceived. Here, the role of the mark or the feature and the various ways in which the product is being sold so as to influence the decisions of the consumers in purchasing the product will play a predominant role. In the present case, the court evaluated the significance and the role that the red and orange colour scheme had to play in the various ways in which the product has been sold – but also the way in which the ordinary hypothetical consumer is likely to behave in its ‘noodle-purchasing decisions’. Consequently, the court concluded that the fact that the defendant’s product similarly incorporated the red and orange colour scheme was of little relevance in confusing the hypothetical consumer – regardless of the way in which the product is being purchased. In digital shopping, the search words ‘Red-Orange Noodles’ did not even result in the display of the products of either of the parties – in turn demonstrating how unlikely it was for the consumers to be deceived merely by the similarities in the colour scheme. Likewise, in brick and mortar stores, it was unlikely for the consumer to ask for red and orange packet noodles instead of providing the shopkeeper with the brand name. Even if, in the very improbable situation, the consumer did ask for red and orange packet noodles, it was unlikely for the shopkeeper to directly reach out for the claimant’s product.

Having regard to the aforementioned factors, the court further noted that ITC’s copyright had not been violated, either chiefly because CG Corp has not copied the essential features of the former’s product. Merely showing some similarity in the non-essential features would not suffice and would not constitute a copyright violation under Section 51 of the Copyright Act, 1957.[5]

Despite being of persuasive value to courts outside Karnataka, by being a judgment of the High Court, the judgment is likely to have far-reaching consequences by providing the much-needed clarity under Indian law and, in particular, the provisions of the Trade Marks Act, 1999, which presently does not substantiate the circumstances that constitute ‘passing off’ under Indian law. Instead, the Act merely indicates the right to relief to the aggrieved party in the form of an injunction when its trademark has been passed off by the defendant. The judgment could also shape the decision of the mediation panel in a suit of a similar nature that was recently initiated by Nestle against the same defendant (CG Corp. Global) on the ground that the latter’s Wai Wai Noodles were deceptively similar to the Swiss-based corporation’s Maggi Noodles. As per the provisions of the CCA, the mediation proceedings would have to be concluded within ten days – failing which the matter would be transferred to the Delhi High Court under Section 7 of the CCA for further hearing.

 

 

[1] See, ITC Ltd v CG Goods (India) Private Limited, Commercial Appeal No. 105/2021 (dated 28 September 2021).

[2] 1901 AC 308.

[3] [1990] 1 All E.R. 873.

[4] 1905 TS 472.

[5] Act No. 14 of 1957.

Routledge published a new book by Johanna Hoekstra (lecturer in Law at the University of Essex, UK) on non-state rules entitled Non-State Rules in International Commercial Law. Contracts, Legal Authority and Application.

The blurb reads as follows:

Through further technological development and increased globalization, conducting business abroad has become easier, especially for Small and Medium Enterprises (SME). However, the legal issues associated with international commerce have not lessened in complexity, including the role of non-state rules.

The book provides a comprehensive analysis of non-state rules in international commercial contracts. Non-state rules have legal authority in the national and international sphere, but the key question is how this legal authority can be understood and established. To answer this question this book examines first what non-state rules are and how their legal authority can be measured, it then analyses how non-state rules are applied in different scenarios, including as the applicable law, as a source of law, or to interpret either the law or the contract. Throughout this analysis three other important questions are also answered: when can non-state rules be applied? when are they applied? and how are they applied? The book concludes with a framework and classification that leads to a deeper understanding of the legal authority of non-state rules.

Providing a transnational perspective on this important topic, this book will appeal to anyone researching international commercial law. It will also be a valuable resource for arbitrators and anyone working in international commercial litigation.

The book begins by giving an overview of non-state rules in international commercial contracts before focusing on the nature of non-state rules and how to assess their legal authority in Part 1. Part 2 analysis the application of non-state rules as governing law of a Contract. This part looks into the principle of party autonomy in international commercial contracts, and the interplay between non-state rules and Private International Law, and arbitration. The last part, Part 3, is dedicated to the application of the non-state rules by courts. The analysis covers various aspects ranging from the influence of non-state rules as sources of domestic law and interpretation of the law to lex mercatoria and ascertaining the legal authority of this type of rules.

Aldricus – Hal penting yang perlu kalian ketahui jika ingin melakukan impor barang dari luar negri adalah menentukan pemasok diluar negri atas dasar apa kalian membayar barang dengan harga sejumlah tersebut. Jika kalian melakukan impor barang dari Korea maka kalian bisa memilih jasa kirim barang terpercaya agar kalian tidak kena tipu saat melakukan pembelian barang impor. Oleh karena itu, penting bagi kalian untuk mengetahui prosedur impro barang yang ada di Indonesia sebelum melakukan pemesanan barang dari luar negriagar sesuai dengan yang ada di Indonesia.

Cara mudah impor barang dari korea

Ada beberapa cara yang bisa kalian lakukan untuk melakukan impor dari Korea. Cara impor ini bisa dilakukan lebih mudah jika kalian mengajak perusahaan penyedia jasa impor yang ada. Selain itu, kalian juga perlu menyiapkan dokumen barang yang masuk ke Indonesia sehingga tidak dicurigai sebagai barang gelap. Setelah memahami prosedur pengiriman maka hal lain yang perlu kalian lakukan adalah dengan menentukan sistem transaksi yang digunakan. Dalam bisnis ekspor impor, setidaknya ada beberapa istilah yang wajib kalian ketahui seperti FOB, CIF, DDP, FAS, dan lain sebagainya.

Setelah itu selesai, impor barang dari Korea bisa kalian lakukan dengan memilih jasa pengiriman yang tepat. Ada banyak sekali jasa impor barang dari Korea dan umumnya ada 3 cara impor barang yang bisa dilakukan yaitu melalui darat, laut, atau udara. Semua ini bisa dilakukan dan akan mempengaruhi estimasi waktu dan biaya yang harus dikeluarkan dan tentu pengiriman barang melalui laut bisa memakan waktu yang lebih lama dibandingkan dengan udara.  Jika kalian bingung saat melakukan pemilihan jasa pengiriman barang, kalian bisa mengunjungi kami di kilo.id yang merupakan salah satu jasa pengiriman barang di Korea yang paling murah tanpa tambahan biaya untuk kurir dan mampu mengirimkan barang lebih cepat aman, dan terjamin tiba tepat waktu.

Sistem perhitungan impor barang dari Korea

Sebenarnya, peritungan barang pengiriman tidaklah berbeda dengan pengiriman barang lokal. Akan tetapi, penteing bagi kalian untuk mengetahui rumus perhitungan volume untuk mengetahui berat volumentrik ekspedisi internasional. Tentu saja rumusnya adalah panjang x lebar x tinggi : 5000. Semisal kalian memiliki berat barang aktual 50 kg, maka berat volumentrik 40 kg, breat aktual 50 kg lah yang dijadikan dasar biaya kirim. Oleh karena itu, kalian perlu memikirkan hal tersebut sehingga bisa mengurangi biaya kirim paket dari Korea.

Ada banyak keunguglan yang bisa kalian dapatkan di Kilo.Id karena mereka mampu impor barang dari Korea dengan cepat. Hal itu bukan hanya janji pengiriman saja karena memang cukup cepat. Tidak sampai disitu karena disini kalian juga akan lebih mudah saat mengirimkan barang dan lebih m urah serta efisien.

The post Tips Mudah Impor Barang Dari Korea appeared first on Aldri Blog.

The CJEU yesterday held in C-581/20 Toto. I discussed the AG’s Opinion earlier. Gilles Cuniberti in his analysis engages critically with the Court’s replies to the interim measures issues, Krzysztof Pacula’s review looks at the other questions asked, too. All in all, the Court’s engagement with the issues is under par. 

The CJEU first of all holds that despite the instrument of public procurement, the case does not involve acta iure imperii (and notes [42] that the current procedure has been brought entirely under ordinary civil procedure rules). This is simply an ordinary spat between contracting parties on the exercise of a straightforward construction contract. With reference to Rina and in particular Supreme Site Services, the Court [45] confirms that lex fori rules on immunity do not as such exclude the qualification of ‘civil and commercial’. As we have already experienced in the final, national judgment in Kuhn, the CJEU’s approach to see immunity, closely linked to public international law, distinct from the private international law notion of ‘civil and commercial’, quickly becomes nugatory in litigation practice. Neither does that approach answer the referring court’s question whether if the matter does fall within Brussels Ia, the ordinarily applicable Bulgarian rule that no such relief may be ordered against public authorities, must be set aside.

On the issue of provisional measures, the AG saw a plausible way forward by  a fairly standard application of the lis pendens rules (A29 ff) and by assessing the definitiveness of the measure and the impact of that assessment on the recognition, or not, of the decision of the court with subject-matter jurisdiction. The CJEU however merely emphasises the lack of formal hierarchy, in Brussels Ia, between the courts with subject-matter jurisdiction and those with jurisdiction for provisional measures. It concludes [60] that the latter are not bound to dismiss jurisdiction merely because a court with subject-matter jurisdiction has been either seized or has held in interim proceedings. It could certainly have found support in the Regulation’s intention to, and provisions designed for, avoid(ing) conflicting decisions.

Geert.

EU Private International law, 3rd ed 2021, 2.512ff, 2.550 ff, 5.584 ff.

On October 6th, 2021, the Court of Justice of the European Union delivered its ruling in Skarb Państwa Rzeczypospolitej Polskiej reprezentowany przez Generalnego Dyrektora Dróg Krajowych i Autostrad v. TOTO SpA – Costruzioni Generali and Vianini Lavori SpA (Case C‑581/20). The decision is currently only available in French and Bulgarian.

Although three questions were referred for a preliminary ruling, the Court asked the Advocate-General to focus only on one of them, which was concerned with parallel interim litigation under the Brussels Ibis Regulation. This post will also focus on this issue (for the answer of the Court to the other questions, see the post of  Krzysztof Pacula over at Conflictoflaws.net).

Background

In 2015, in order to guarantee obligations assumed under a public contract concluded in Poland for the construction of a section of expressway, the undertakings which had been awarded the contract provided to the Polish contracting authority a number of guarantees underwritten by a Bulgarian insurer.

Some years later, the contractors unsuccessfully applied to a Polish court for provisional, including protective, measures prohibiting the contracting authority from making use of those guarantees. The contractors made a similar application to the Bulgarian courts, which dismissed the application at first instance and granted it on appeal.

The Polish contracting authority appealed to the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria) which referred three questions to the CJEU for a preliminary ruling.

Jurisdiction of the Polish and Bulgarian Courts under the Regulation

The most interesting issue in the case arose out of the fact that the contractors had applied for protective measures in two Member States: Poland, then Bulgaria.

The relevant contract included a jurisdiction clause granting jurisdiction to Polish courts. Polish courts had thus jurisdiction on the merits. As a consequence, they had unlimited jurisdiction to grant any kind of protective measure available under Polish law.

In contrast, Bulgarian courts did not have jurisdiction on the merits. Their jurisdiction to grant provisional, including protective measures, could only be founded in Article 35 of the Brussels I Regulation, and was limited in a number of ways which will be familiar to the readers of this blog. It could be argued that their jurisdiction in this case was justified because the subject matter of the interim measure was the debt of a Bulgarian legal person.

How were then the Polish proceedings and decision to influence the power of Bulgarian courts to grant the interim measures applied for?

Proceedings or Decisions?

To answer this question, an important conceptual distinction was in order.

There are two different rules in the Brussels Ibis Regulation which address parallel litigation.

The first is lis pendens. If the same proceedings are brought in two different courts, the lis pendens doctrine requires that the court seised second decline jurisdiction. The rule, therefore, strips the court seised second from its jurisdiction.

The second is the recognition of foreign decisions. If recognised, foreign decisions are res judicata. They prevent relitigation of the claims. They have no impact on the jurisdiction of the forum. Res judicata makes the claims inadmissible.

So what was this case concerned with? Interim proceedings had been initiated first in Poland, and they had resulted in decisions. From the perspective of Bulgaria, was the issue the jurisdiction of Bulgarian courts, or the admissibility of claims which had been decided by Polish courts?

Unclear Question, Unclear Answer?

The Bulgarian court had formulated its question as follows:

After the right to make an application for provisional/protective measures has been exercised and the court having jurisdiction as to the substance of the matter has already ruled on that application, is the court seised of an application for interim relief on the same basis and under Article 35 of [Regulation No 1215/12] to be regarded as not having jurisdiction from the point at which evidence is produced that the court having jurisdiction as to the substance of the matter has given a ruling on that application?

Was the question concerned with the jurisdiction of Bulgarian courts?

Of course, the CJEU reformulated the question, as it always does. It is unclear whether this is always necessary to do so, but in this case, it would have been good to clarify what the case, or at least the judgment of the CJEU, was about.

Unfortunately, the CJEU did not clarify anything.

It reformulated the question by asking whether an Art 35 court was under the obligation to decline jurisdiction if the foreign court had already decided the same dispute.

It held that there is no hierachy between the two jurisdictional grounds for issuing provisional measures, Art. 35 and jurisdiction on the merits.

It thus concluded that an Art 35 court was under no obligation to decline jurisdiction if the foreign court had already decided the same dispute. It ruled:

L’article 35 du règlement no 1215/2012 doit être interprété en ce sens qu’une juridiction d’un État membre saisie d’une demande de mesures provisoires ou conservatoires au titre de cette disposition n’est pas tenue de se déclarer incompétente lorsque la juridiction d’un autre État membre, compétente pour connaître du fond, a déjà statué sur une demande ayant le même objet et la même cause et formée entre les mêmes parties.

Advocate-General Rantos had done a much better job. In his conclusions, he had distinguished between two hypotheticals: the foreign provisional measure could be recognised, or it could not. He had explained that he had to distinguish, because he could not assess in the present case whether the foreign provisional measure could be recognised.

Conclusion

What is the contribution of the answer of the Court to this question?

I am not sure.