Flux des sites DIP

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.

Published by Hart/Bloomsbury as a part of their Asia-Private International Law Series, this provides an authoritative account of the evolution and application of private international law principles in India in civil, commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India’s BRICS partners – Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal.

Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of ‘Sharia’ in the conflict-of-law framework.

The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments.

The book’s international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India’s private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.

 

Dr Stellina Jolly is a Senior Assistant Professor at the Faculty of Legal Studies, South Asian University (SAU), an international organisation established by the regional group of the South Asian nations (SAARC). A Fulbright Scholar with the University of San Francisco and a recipient of the International Visitors Leadership Program (IVLP), she researches on International Environmental Law and Conflict of Laws. Dr Saloni Khanderia is presently a Professor of Law at the Jindal Global Law School, India and an Alexander von Humboldt Fellow (Experienced Researcher) at the Chair for Civil Law, International Private Law and Comparative Law, Ludwig Maximilians Universität, München.

 

Back in September, AG Rantos presented his Opinion in the case TOTO, C-581/20. As reported previously, at the request of the Court, the Opinion confined itself solely to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation.

In its judgment delivered today, the Court addresses all three preliminary questions of the referring court. These questions concern the concept of “civil and commercial matters” in the sense of Article 1(1) of the Brussels I bis Regulation (first preliminary question), subsequent application for provision/protective measures lodged before a court not having jurisdiction as to the substance of the matter (second preliminary question) and EU law- or purely national law- dependent modalities for ordering such measures (third preliminary question).

 

Factual background and context of preliminary questions

The questions referred for a preliminary ruling are raised in the context of a contract concluded between two Italian companies and the Director of a Polish central authority for road management/construction, acting in the name and on the behalf of the Polish State Treasury (in essence, the State itself; hereinafter referred to as “the public authority”). Under the said contract, concluded following a public procurement procedure, the companies are supposed to construct a public road in Poland.

The contract itself provides for some contractual penalties, in particular for its late performance by the companies. Guarantees are provided by a Bulgarian insurance company in order to cover the potential (non-)fulfillment of the obligations assumed by these companies.

Before a Polish court, the companies bring an action against the public authority for a negative declaration that, in substance, aims to oblige the defendant not to make use of the guarantees. The companies also request provisional/protective measures. Their request is rejected.

In parallel with the procedures pending before the Polish court, they apply for analogous measures before a Bulgarian court. The first instance court rejects the application. The second instance court orders the measures and the public authority brings an administrative appeal before the referring court, the Supreme Court of Cassation of Bulgaria.

In its administrative appeal, the public authority contests, in particular, the applicability of the Brussels I bis Regulation in the interim proceedings pending in Bulgaria. It argues that these proceedings do not fall within the scope of the concept of “civil and commercial matters” in the sense of Article 1(1) of the Regulation (first preliminary question). In its request for a preliminary ruling, the referring court also asks the Court to provide guidance as to the interpretation of Article 35 (second and third preliminary questions).

 

Concept of “civil and commercial matters” and its interplay with immunity from jurisdiction

Echoing the inquires of the public authority, by its first question the referring court seeks to establish whether the proceedings pending before the Bulgarian courts fall within the scope of the concept of “civil and commercial matters” and, as a consequence, within the scope of the Brussels I bis Regulation.

The Court answers this question in the affirmative: in particular, the Court reaffirms the finding made in its judgments in Rina, C-641/18 and Supreme Site, C-186/19, according to which a public purpose of certain activities (here, it seems: the conclusion of the contract for a construction of a public road and potentially its performance) does not, in itself, suffice to exclude a case from the scope of application of the Brussels I bis Regulation (paragraphs 39 and 41).

In its answer to the first preliminary question, the Court also clarifies further the interplay between that concept of “civil and commercial matters” and the immunity from jurisdiction.

In fact, under Article 393 of the Bulgarian Code of Civil Procedure (BCCP), the interim measures for securing a pecuniary claim brought against, inter alia, the State and public bodies are not permissible. For the Court, that provision seems to establish an immunity from jurisdiction in favour of some defendants: States and public authorities. However, referring the judgment in Supreme Site, C-186/19 on the immunity from execution (more precisely, its point 62, which refers to point 72 of the Opinion in that case), the Court indicates, in essence, that the immunity from jurisdiction does not automatically exclude an action brought before a national court from the scope of the concept of “civil and commercial matters” (paragraph 44).

(on a side note: conversely, if this is not the case and the Bulgarian provision does not provide for an immunity from jurisdiction, the provision in question may be potentially read as providing for a material immunity, on the level of substantive law; see also the third preliminary question outlined below; other residual interpretation could view the Bulgarian provision as providing for an immunity from jurisdiction departing from what is required under public international law, nothing, however, supports that reading of the provision at hand).

 

Subsequent application for provisional/protective measures

By its second preliminary question, the referring court seeks to establish whether a Bulgarian court not having jurisdiction as to the substance of the matter is precluded from pronouncing provisional/protective measures under Article 35 of the Brussels I bis Regulation in a situation where a Polish court having jurisdiction as to the substance of the matter has already given a ruling on an application for identical provisional/protective measures and rejected the application.

In his Opinion, AG Rantos argued that in a situation described in the preliminary question the court not having jurisdiction as to the substance of the matter should not pronounce the provisional/protective measures and must decline jurisdiction.

By contrast, for the Court, a court of a Member State not having jurisdiction as to the substance of the matter, seized with a subsequent application for provisional/protective measures, is not obliged to declare that it lacks jurisdiction to rule on the application for the measures in question (paragraph 60).

 

Provisional/protective measures as a matter of procedural autonomy ?

By its third preliminary question the referring court seeks to establish whether the application for provisional/protective measures has to be examined in the light of EU law or purely in the light of the national law of the court seized with the application.

Interestingly, also this question is inspired by Article 393 of the BCCP, under which interim measures for securing a pecuniary claim brought against, inter alia, the State and public bodies are not permissible. Thus, applied in the proceedings before the Bulgarian courts, this provision has the potential of barring any application for interim measures against the public authority.

However, the referring court considers that examining the application for provisional/protective measures in the light of EU law would mandate it to benchmark the national provisions on such measures against the principle of effectiveness and, potentially, to disapply Article 393 of the BCCP (paragraph 25).

In other terms, the referring court seems to frame the question as one on the procedural autonomy and its limitations. If this assumption is correct, the provisions of the BCCP would govern the exercise of the right provided for in Article 35 of the Brussels I bis Regulation. Logically, it seems that the assumption is based on a consideration that the role of Article 35 of the Regulation goes beyond providing for an alternative forum before which an application for provisional/protective measures can be made: it provides an alternative “effective” forum or, if one would wish to go even further, it provides a right to request (and obtain) some minimal provisional/protective measures before a court not having jurisdiction as to the substance of the matter.

For the Court, this does not seem to be the case. Under Article 35 of the Regulation a court of a Member State not having jurisdiction as to the substance of the matter may order measures “available under the law of that Member State”. This provision ensures the availability of an alternative forum to the applicant, without guarantying that provisional/protective measures themselves will be also available to him/her (paragraph 64).

Before drawing a final conclusion on the merits of the aforementioned assumptions/consideration: while the issue pertaining to the principle of effectiveness (“principe d’effectivité”) has been directly invoked by the referring court, it is true that in the present case the Court has not been expressly called to pronounce itself on the effectiveness (“effet utile”) of Article 35 or on the right to effective judicial protection guaranteed under Article 47 of the Charter. Thus, at least for some it may be still a question of debate whether “effet utile” of Article 35 confines itself to the pure availability of an alternative forum. Either way, that debate could benefit from taking into account point 20 of the judgment in Bier, C-21/76 and point 49 of the judgment in AMS Neve e.a., where the Court considered that the effectiveness (“effet utile”) of these provision calls for their interpretation under which they do provide the alternative fora, that do not coincide with those available for the claimants under general rules of jurisdiction.

 

The judgment is available here (no English version so far).

 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 (019/13946847), 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 7th CPLJ Webinar on 21 October 2021, 3:00 – 5:30 pm (CEST)

The programme reads as follows:

Chair, Enrique Vallines (Max Planck Institute Luxembourg)

3:00 pm Shahla Ali (University of Hong Kong)

Transcending Generalisations in Comparative Law Research – East Asian Perspectives in a Global Context

3:30 pm Discussion

4:00 pm Intermission

4:15 pm Eduardo Oteiza (National University of La Plata)

Who knew only his Bible knew not his Bible: Thoughts from Latin America

4:45 pm Discussion

5:30 pm Closing of the event

The full programme is available here.

For more information and to register, see here.

(Image credits:  Rijksmuseum, Amsterdam)

 

This post was contributed by Thomas Mastrullo, who is an Associate Professor at the University of Luxembourg.

In a judgment of 3 March 2021, the French Court of Cassation allowed an appeal against the judgment of a court of appeal which had refused to declare the enforceability in France of a foreign decision rendered in insolvency proceedings by simply invoking a previous decision of the foreign court without analysing its content, nor finding that it was irreconcilable with the decision the enforcement of which was sought in France.

Decisions of the Court of Cassation on the enforcement of foreign decisions in insolvency proceedings are not frequent, which makes this decision interesting.

Background

In this case, the insolvency practitioner of insolvency proceedings opened in Germany had requested that a decision of the bankruptcy court of Ansbach – ordering the payment of a certain sum of money to the former manager of the debtor company – be declared enforceable in France. The application for enforceability was accepted by a declaration of the registrar, but rejected by the Court of Appeal. The insolvency practitioner appealed to the Court of Cassation. In particular, he criticised the Court of Appeal for refusing to declare the enforceability by simply referring – without any analysis – to an earlier decision of the Ansbsach District Court.

Irreconcilability of Decisions under the Brussels I Regulation

It is true that the enforcement of a decision can sometimes be excluded because of the existence of an earlier decision. But some conditions must be fulfilled.

For the enforcement of judgments, Regulation (EC) No 1346/2000 on insolvency proceedings refers to Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regl. No 1346/2000, Art. 25. – Regulation No 1346/2000 actually refers to the Brussels Convention, the provisions of which are reproduced identically in Regulation (EC) No 44/2001). And Article 34(4) of Regulation (EC) No 44/2001 provides that a judgment shall not be recognised – and thus shall not be enforceable – only if “it is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed”. As a consequence, a national judge cannot refuse to recognise and enforce a judgment merely by noting the existence of an earlier judgment: such a refusal demands that the earlier judgment was given “between the same parties” in a dispute “involving the same cause of action” as the judgment for which recognition is sought, that it is able of being recognised in the Member State concerned and that the two judgments are irreconcilable.

Therefore, by merely referring to the judgment of the Ansbach District Court, the Court of Appeal “deprived its judgment of a legal basis”, i.e. did not examine fully whether the requirements of the applicable provision were fulfilled. As the Court of Cassation states, under Article 25 of Regulation (EC) No 1346/2000 and Article 34(4) of Regulation (EC) No 44/2001, the Court of Appeal could not simply refer to the earlier decision without “analysing” its content or “establishing its irreconcilability” with the decision the enforceability of which was sought in France.

Even if it seems self-evident, this reminder of the national judge’s role in the recognition and enforcement of decisions related to insolvency proceedings is welcome.

In any case, one can wonder if the existence of an earlier irreconcilable judgment from the same Member State as the judgment the recognition and enforceability of which is sought, as in the present case, is effectively able to prevent such recognition. Indeed, in the Salzgitter judgment of 26 September 2013, the Court of Justice ruled that Article 34 (4) of the Brussels I Regulation doesn’t cover irreconcilable judgments given by courts of the same Member State.

The long-awaited Rome II Study commissioned by the European Commission, evaluating the first ten years of the application of the Rome II Regulation on the applicable law to non-contractual obligations, has been published. It is available here. The Study was coordinated by BIICL and Civic and relies on legal analysis, data collection, a consultation of academics and practitioners, and national reports by rapporteurs from the Member States. The extensive study which also includes the national reports, discusses the scope of the Regulation and the functioning of the main rules, including the location of damages under Art. 4 Rome II, which is problematic in particular in cases of prospectus liability and financial market torts. As many of our readers will know, one of the issues that triggered debate when the Rome II Regulation was negotiated was the infringement of privacy and personality rights, including defamation, which topic was eventually excluded from the Regulation. While it has been simmering in the background and caught the attention of the Parliament earlier on, this topic is definitely back on the agenda with the majority opinion being that an EU conflict of laws rule is necessary.

Three topics that the European Commission had singled out as areas of special interest are: (1) the application of Rome II in cases involving Artificial Intelligence; (2) business and human rights infringements and the application of Art. 4 and – for environmental cases – Art 7; and (3) Strategic Lawsuits against Public Participation (SLAPPs). For the latter topic, which is currently also studied by an expert group installed by the European Commission, the inclusion of a rule on privacy and personality rights is also pivotal.

The ball is now in the court of the Commission.

To be continued.

On 4 October 2021, the Judicial Committee of the Privy Council held in Convoy Collateral Ltd (Appellant) v Broad Idea (Respondent) (British Virgin Islands) that the House of Lords’ decision in Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210 (“The Siskina”) and the Privy Council decision in Mercedes Benz AG v Leiduck [1996] AC 284 were wrongly decided.

The first few sentences of Lord Leggatt in Convoy say it all:

1. In his dissenting judgment in Mercedes Benz AG v Leiduck [1996] AC 284 at p 314D, Lord Nicholls of Birkenhead said:

“The law took a wrong turning in The Siskina, and the sooner it returns to the proper path the better.”

The Siskina

In The Siskina, the House of Lords held that English courts have no power to grant freezing orders (Mareva injunctions, at the time) unless it is ancillary to a cause of action, in the sense of a claim for final, substantive relief which the court has jurisdiction to grant.

In other words, English courts, and courts of common law jurisdictions following the English common law, would only grant freezing injunctions if they had jurisdiction on the merits.

In contrast, the mere presence of assets within the jurisdiction was not an autonomous ground for granting freezing injunctions. Despite scholarly opinions to the contrary, such as the comments of Lord Collins in a case note in the Law Quarterly Review:

“Common sense would suggest that if proceedings are pending in one country, and the defendant’s assets are situate in another country, the plaintiff ought to be able to obtain protective or interim relief by way of attachment in the latter country. That is indeed the law in most countries …” L. Collins, “The Siskina again: an opportunity missed” (1996) 112 LQR 8

Convoy

Broad Idea is a company incorporated in the BVI. Dr. Cho is a shareholder and director of Broad Idea. In February 2018, Convoy applied to the BVI court for freezing orders against Broad Idea and Dr. Cho in support of anticipated proceedings against Dr Cho in Hong Kong. Convoy also sought permission to serve Dr. Cho out of the jurisdiction. Following a hearing held without notice to Broad Idea and Dr. Cho, the BVI court granted freezing orders restraining them from disposing of or diminishing the value of certain of their respective assets and gave permission to serve Dr. Cho out of the jurisdiction. Convoy commenced proceedings against Dr. Cho (but not Broad Idea) in Hong Kong shortly thereafter. The freezing orders issued against Dr. Cho by the BVI court and the order granting permission to serve Dr Cho out of the jurisdiction were subsequently set aside in April 2019 on the basis that the court did not have jurisdiction to make them. In the meantime, Convoy had made a further application for a freezing order against Broad Idea in support of the Hong Kong proceedings against Dr. Cho.

In July 2019, the judge continued the freezing order against Broad Idea indefinitely on the basis that the principle enunciated in TSB Private Bank International SA v Chabra [1992] 2 All ER 245 applied in the circumstances and that Broad Idea’s assets were at risk of dissipation. Broad Idea’s appeal against the judge’s decision was allowed by the Court of Appeal. Convoy then appealed to the Judicial Committee of the Privy Coucil.

The issues were:

(i) whether the BVI court has jurisdiction and/or power to grant a freezing order where the respondent is a person against whom no cause of action has arisen, and against whom no substantive proceedings are pursued, in the BVI or elsewhere, and if so
(ii) whether any such jurisdiction and/or power extends to the granting of a freezing order in support of proceedings to which that person is not a party.

Lord Leggatt concluded for the majority:

It is necessary to dispel the residual uncertainty emanating from The Siskina and to make it clear that the constraints on the power, and the exercise of the power, to grant freezing and other interim injunctions which were articulated in that case are not merely undesirable in modern day international commerce but legally unsound. The shades of The Siskina have haunted this area of the law for far too long and they should now finally be laid to rest.

Sir Goeffrey Vos wrote a minority opinion.

A Civil Law Perspective

Many lawyers from the civil law tradition found the Siskina quite remarkable. This is because, in most civil law jurisdictions, the proposition that protective measures could produce any extraterritorial effect has always been highly controversial. So, the idea that any other court than the court of the place where the assets might be situated could have jurisdiction to order, or supervise, their freezing, bordered the unthinkable.

True, protective measures in the civil law tradition are typically provisional attachments, which act in rem, while interim injunctions are equitable remedies which act in personam. But I would argue that this is a quite formalistic distinction. There is no fundamental reason why an in rem remedy could not reach assets situated abroad, and be enforced there.

If that is correct, then the issue is how to define the (extra) territorial reach of freezing injunctions/attachements. Jurisdiction on the merits is certainly a very reasonable one.

But, clearly, the location of the assets does also appear as a very reasonable ground for granting jurisdiction to freeze/attach them, if only for efficiency purposes (speed, in particular).

The federal courts of appeal are split over whether state or federal law governs claims brought under the Foreign Sovereign Immunities Act, which waives sovereign immunity for foreign entities in certain cases. Sometimes, this is an outcome-determinative question.

In the case of Cassirer v. Thyssen-Bornemisza Collection Foundation, the heirs of a Holocaust survivor are seeking to recover a painting by French impressionist Camille Pissarro that was stolen by the Nazis in 1939. The 1897 painting is currently on display in the Thyssen-Bornemisza Museum, a Spanish state museum in Madrid. The U.S. Court of Appeals for the Ninth Circuit ruled against the heirs, saying that federal law called for the application of Spanish law, which allows the holder of stolen property to obtain title through the doctrine of adverse possession. The heirs claim California law, which never allows the holder of stolen property to obtain good title, applies. 

Last week, the U.S. Supreme Court agreed to resolve the question. The pleadings are available on SCOTUSBlog here; more coverage of this interesting issue will follow.

Only one judgment on PIL matters, namely the one in C-581/20, TOTO (first chamber: judges Bonichot, Bay Larsen, Safjan, Jääskinen and Toader, the latter as reporting judge) is scheduled so far for publication in October 2021. It will happen next Wednesday. In addition, two opinions are expected towards the end of the month.

Case C-581/20

The Varhoven kasatsionen sad (Bulgaria) referred the following questions to the Court of Justice:

1) Is Article 1 of [the Brussels I bis Regulation] to be interpreted as meaning that a case such as that described in this order for reference must be regarded in whole or in part as a civil or commercial matter within the meaning of Article 1(1) of that regulation?

2) 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 [the Brussels I bis Regulation] 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?

3) If it follows from the answers to the first two questions referred that the court seised of an application under Article 35 of [the Brussels I bis Regulation] has jurisdiction, must the conditions for the ordering of protective measures under Article 35 of [the Brussels I bis Regulation] be interpreted independently? Should a provision which does not allow a protective measure to be ordered against a public body in a case such as the present one be disapplied?

In the case at hand, the State Treasury – Director-General for National Roads, Poland – commissioned the Italian companies Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. to construct the S-5 expressway. Pursuant to clause 20.6 of the contract, the parties agreed on the jurisdiction of the Polish courts. Under the contract, guarantees were provided to ensure the fulfilment of the obligations. Furthermore, another guarantee was issued by an insurance company (ZD ‘Euroins’ AD) to secure payment of a contractual penalty in case of failure to complete the construction works in time.

Toto S.p.A Costruzioni Generali and Vianini Lavori S.p.A. brought actions in Poland against the State Treasury, seeking a declaration that the defendant is not entitled to demand payment of the contractual penalty agreed in the contract, since the conditions for such payment are not met. The Italian companies requested as well an interim measure obliging the defendant to refrain, in particular, from making use of guarantee provided by ZD ‘Euroins’ AD.

The Polish court considered the applications for an interim measure unfounded. The companies applied then to the Sofia City Court for an interim measure in connection with the actions brought before the District Court of Warsaw. The Sofia City Court rejected that application. The Sofia Court of Appeal reversed the decision and issued an attachment order against the receivable of the Ministry of Finance, Director-General for National Roads and Motorways, Poland, arising from the guarantees above mentioned.

The State Treasury of Poland appealed against the Supreme Court of Cassation (Bulgaria), which is the referring court in the main proceedings.

AG Rantos was asked to provide an opinion on the second question. It was published the 9th of September and can be consulted here – no English translation so far.

Case C-421/20

AG Szpunar’s opinion in C-421/20, Acacia, is due on 28 October. The request comes from the Oberlandesgericht Düsseldorf (Higher Regional Court Düsseldorf, Germany). It focuses on the interpretation (application?) of Article 82(5) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (CDR), whereby “Proceedings in respect of the actions and claims referred to in Article 81(a) and (d) may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened.”

According to Article 81(a) and (d), “The Community design courts shall have exclusive jurisdiction: (a) for infringement actions and – if they are permitted under national law – actions in respect of threatened infringement of Community designs; … (d) for counterclaims for a declaration of invalidity of a Community design raised in connection with actions under (a)”.

The questions referred read as follows

1) In proceedings for an infringement of Community designs, can the national court dealing with the infringement proceedings having international jurisdiction pursuant to Article 82(5) of the CDR apply the national law of the Member State in which the court dealing with the infringement proceedings is situated (lex fori) to subsequent claims in relation to the territory of its Member State?

2) If Question 1 is answered in the negative: Can the ‘initial place of infringement’ for the purposes of the CJEU judgments in Cases C 24/16, C 25/16 (Nintendo v BigBen) regarding the determination of the law applicable to subsequent claims under Article 8(2) of [the Rome II Regulation] also lie in the Member State where the consumers to whom internet advertising is addressed are located and where goods infringing designs are put on the market within the meaning of Article 19 of the CDR, in so far as only the offering and the putting on the market in that Member State are challenged, even if the internet offers on which the offering and the putting on the market are based were launched in another Member State?

The case concerns a car manufacturer (the claimant in the main proceedings), who is, inter alia, the registered holder of Community design No 001598277-0002 (‘the Registered Design’). The defendant, an Italian company, manufactures rims for motor vehicles in Italy and sells them throughout the European Union. In Germany, it markets rims under the name ‘WSP Italy’, including the ‘Neptune GT’ model. The claimant considers that the distribution of the rims in Germany by the defendant constitutes an infringement of its Registered Design, whereas the defendant invokes the repair clause in Article 110 of the Council Regulation on Community Designs.

The Landgericht (Regional Court) ordered the defendant – geographically limited to the Federal Republic of Germany – to cease and desist, to provide information, to return documents and to surrender items for the purpose of destruction, and established the defendant’s obligation to pay damages. It based its international jurisdiction on Article 82(5) of the Community Design Regulation, assumed that the defendant had infringed the Registered Design, and applied German law to the subsequent claims asserted (damages, information, rendering of accounts, return of documents and surrender of items for the purpose of destruction) in accordance with Article 8(2) of the Rome II Regulation.

The defendant brought an appeal against that judgment. It continues to rely in particular on Article 110 of the CDR. In addition, it takes the view that under Article 8(2) of the Rome II Regulation Italian law is applicable to the subsequent claims asserted by the claimant

The case has been assigned to the fifth chamber (judges Regan, Lenaerts, Ilešič, Jarukaitis, Lycourgos, the latter as judge-rapporteur).

Case C-498/20

The opinion of AG Campos Sánchez-Bordona on C-498/20, BMA Nederland, is expected on the same day. The questions referred concern jurisdiction in tort matters in relation to a Peeters-Gatzen action, with an association defending collective interests intervening. The sixth chamber (Bay Larsen, Jääskinen and Safjan as reporting judge) will adjudicate.

On Tuesday, Oct 5, 2021, the Hamburg Max Planck Institute will host its 14th  monthly virtual workshop Current Research in Private International Law at 11:00-12:30. Jürgen Basedow (Max Planck Institute for Comparative and International Private Law) will speak, in German, about the topic Aufgabe und Methodenvielfalt des Internationalen Privatrechts im Wandel der Gesellschaft

 

The presentation will be followed by open discussion. All are welcome. More information and sign-up here. If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Against the background of “One Belt, One Road” initiative and the construction of Guangdong-Hong Kong-Macau Great Bay Area, after being elevated to be a national free trade zone a few years ago, Henqin Island located in Zhuhai City of Guangdong Province and neighboring Macau was re-labelled as the deeper integration (cooperation) area between Guangdong and Macau days before. To keep up with this political pace, the Zhuhai Court of International Arbitration (ZCIA) now regularly running its business in Henqing Island was established by the Zhuhai Arbitration Commission with the hope that international business people especially those pursuing Sino-Portuguese speaking countries trade could choose Henqin as the seat for their arbitration. In honor of the National Day of the People’s Republic of China, Oct 1st, ZCIA publicized its updated arbitration rules yesterday. However, this time three versions of different languages were provided simultaneously ie Chinese, Portuguese and English, the last of which was translated by myself. For its latest arbitration rules, please see http://www.zhac.org.cn/?cat=3.

Membership

On 9 September 2021, Honduras deposited its instrument of acceptance of the Statute, becoming the 90th Member of the HCCH. More information is available here.

Conventions & Instruments

On 1 September 2021, the HCCH 1993 Adoption Convention entered into force for Niger. The Convention currently has 104 Contracting Parties. More information is available here.

On 16 September 2021, Costa Rica signed the HCCH 2019 Judgments Convention. Although the 2019 Judgments Convention is not yet in force, Costa Rica is its fourth signatory. More information is available here.

On 16 September 2021, the HCCH 1961 Apostille Convention entered into force for Singapore. The Convention currently has 120 Contracting Parties. More information is available here.

Meetings & Events

On 14 and 15 September 2021, the Experts’ Group on Family Agreements met for the fifth time, via videoconference. The Group discussed the most recent revision of the draft Practical Guide on cross-border recognition and enforcement of agreements reached in the course of family matters involving children. More information is available here.

From 28 to 30 September 2021, the Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met via videoconference. The Group continued to work on the development of a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the HCCH 1993 Adoption Convention.

On 28 September 2021, the HCCH Regional Office for Asia and the Pacific hosted the webinar “HCCH|Approach: Twenty-Five Years of the HCCH 1996 Child Protection Convention in the Asia and Pacific Region: Present, Development and Future”. More information is available here.

Publications & Documentation

On 23 September 2021, the Permanent Bureau announced the publication of translations of 19 new translations of the Guide to Good Practice under the Child Abduction Convention: Part VI – Article 13(1)(b). With these new translations, the Guide to Good Practice is now available in 23 European Union (EU) languages. More information is available here.

Other

On 22 September 2021, the Permanent Bureau announced the successful outcome of a new EU Action Grant application for iSupport. This new project will be called iSupport ITMF (International Transfer of Maintenance Funds), as it will aim at establishing a link between the iSupport software and bank accounts held by Central Authorities. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

The University of Strasbourg will host a conference on Mutual Trust in the Area of Justice, Freedom and Security (La confiance mutuelle dans l’Espace de liberté, de sécurité et de justice : crise(s) et perspectives) on 7-8 October 2021.

The conference will include sessions on European integration, the right to cross internal and external borders and cross border investments. It will also include several sessions more specifically dedicated to judicial cooperation, both with respect to Member States and Third States.

Speakers will include numerous PIL specialists, including some of the organisers of the conference (E. Farnoux, S. Fulli-Lemaire), and a number of external speakers (F. Marchadier, A. Marzal, E. Galland, J. Heymann, G.P. Romano, K. Parrot).

The full programme is available here. For registration, please write to jnyobe@unistra.fr.

The HCCH is pleased to announce that registration for the HCCH|Approach Global Event is now open!

Join us online on Tuesday, 19 October for a day of panel discussions and talks by global experts on occasion of the 25th anniversary of the HCCH 1996 Child Protection Convention.

How does the Convention impact children on the move? What is its significance to the implementation of the UN Convention on the Rights of the Child? How does it apply to matters of relocation, custody and contact? Hear more about these and other topics on 19 October!

For more information, please visit the HCCH|Approach webpage.

To attend, please fill out the registration form.

Is the international (foreign) element required at the outset, at the time of conclusion of the contract, in order to trigger the applicability of the rules on jurisdiction of the Lugano II Convention on jurisdiction over consumer contracts and to protect the consumer from being sued outside of the State of his (her) domicile?

This is the question that the Court of Justice addresses in its judgments delivered this Thursday in the case Commerzbank, C-296/20.

Factual background

A consumer domiciled in Germany concludes a contract, through a branch in the same State, with a company whose head office is also situated in the said State.

Fast-forward a few years, the consumer relocates to Switzerland. Few months later, the professional brings an action against the consumer before a German court.

The first instance court declares the action inadmissible on the ground that it lacks jurisdiction. The appeal brought by the professional before the second instance court is unsuccessful. Ultimately, the case is brought before the Bundesgerichtshof, which refers the case to the Court of Justice.

 

Outline of the preliminary questions…

In its request for a preliminary ruling, the Bundesgerichtshof acknowledges that the sole possible basis for the international jurisdiction of the German courts lies within Article 5(1) of the Lugano II Convention (jurisdiction in matters relating to contract: place of performance of the contractual obligation; supposedly in Germany). In fact, the consumer was domiciled in Switzerland at the time when proceedings were brought and thus the German courts have no international jurisdiction either under Article 2(1) of the Convention (domicile of the defendant) or under its Article 16(2) (jurisdiction for the proceedings brought against a consumer: domicile of the defendant).

However, in the light of Articles 15(1)(c) and 16(2) of the Lugano II Convention, the consumer can be sued before the courts of the State in which he or she is domiciled, if – as the former provision puts it – “the contract has been concluded with a person who pursues commercial or professional activities in the State bound by this Convention of the consumer’s domicile or, by any means, directs such activities to that State or to several States including that State, and the contract falls within the scope of such activities”.

It may seem that, for the Bundesgerichtshof, Article 15(1)(c) presupposes that the other party to the contract is a person who pursues commercial or professional activities abroad, in the State bound by the Convention of the consumer’s domicile or, by any means, directs such activities to that State and the contract comes within the scope of such activities.

Thus, a doubt arises: a contract concluded in a purely national situation, with no international (foreign) element present, is capable of falling within the scope of Article 15(1)(c) of the Lugano II Convention due to the subsequent relocation of one of the parties to the contract to a different State?

In substance, this is the legal issue that lies at the heart of the preliminary questions referred to the Court.

The first preliminary question boils down to the following point: does Article 15(1)(c) of the Lugano II Convention apply also in the situation where the parties were domiciled in the same State bound by the Convention at the time when the contract was concluded and a foreign element to the legal relationship arose only subsequently because the consumer relocated at a later date to another State bound by the Convention.

In the affirmative, by its second question, the Bundesgerichtshof asks whether it also necessary for the activities of the professional to be pursued in or directed to the new State of domicile of the consumer and for the contract to come within the scope of such activities.

 

… and of the Court’s answer

Earlier this month, AG Campos Sánchez-Bordona delivered his Opinion in the case at hand. Geert Van Calster provided a comprehensive summary of its findings and I am happy to refer to his contribution. For some further interesting remarks see also the editors’ post at the EAPIL blog.

As for the judgment itself, the reasoning of the Court is straightforward: referring to the order in mBANK on the Brussels I bis Regulation, the Court hold that also under the Lugano II Convention the concept of “consumer’s domicile” must be interpreted as designating the consumer’s domicile at the date on which the court action is brought (paragraph 36).

The Court observes then, in particular, that Article 15(1)(c) of the Lugano II Convention does not require, neither explicitly nor implicitly, for the activities of the professional to be directed to a State other than the State in which the professional is established (paragraph 42).

Concerning the predictability of the forum for the professional, the Cour observes that actor sequitur forum rei is a principle central for the Convention itself, pursuant to its Article 2(1) (paragraph 54).

In the light of the above, the Court provides an answer according to which a contract falls within the scope of Article 15(1)(c) of the Lugano II Convention also in the event of a  subsequent appearance of the international (foreign) element, due to the relocation of the consumer’s domicile.

The judgment is available here (in French and German, no English version at the time of posting).

CHEP Equipment Pooling BV v ITS Ltd & Ors [2021] EWHC 2485 (Comm) concerns in the main when a claim between two parties who are in a relation of employment, ‘relates to’ that employment contract. (In the case concerned, leading to lack of jurisdiction against one of the defendants).

At issue is whether 3 former senior employees had essentially defrauded claimant by negotiating on its behalf, price-inflated audit and supply agreements with corporations which those employees (in)directly owned and /or controlled. Causes of action are breach of fiduciary duty; dishonest assistance of the breaches of fiduciary duty by the other former employees; and unlawful means conspiracy.

Whether any of these claims engage A22 jurisdiction needs to be assessed viz each claim separately: [44]: Cuneo Resources NV and others v Daskalakis and others [2019] EWHC 87 (Comm).  Among others Bosworth was discussed in the subsequent analysis. After reviewing ia the employment history of defendant with the claimant, and the bond between the alleged dishonesty and the employment contract,  Jacobs J concludes [107]

the claims relate to Mr de Laender’s contract of employment, and also …the connection between Mr de Laender’s contract and the conduct relied upon is material. It cannot be described as tenuous, or a small part of the picture, or simply part of the history. I also consider that the legal basis of the claims can reasonably be regarded as a breach of his contract, so that it is indispensable to consider the contract in order to resolve the matters in dispute.

Obiter the judge reviews locus delicti commissi and locus damni under A7(2). For Handlungsort, Jacobs J holds that the claimant has the better of the argument that that is located in England: particularly seeing as the main alleged conspirator was domiciled in England at the time the various strands of the action materialised. For locus damni – Erfolgort, the conclusion [133] is one of Mozaik per Shevill, particularly in view of a corporate reorganisation (incl a move to England) which occurred midway through the conspiracy.

Geert.

CHEP Equipment Pooling BV v ITS [2021] EWHC 2485 (Comm)
Jurisdiction challenge succeeds on basis of A22 Brussels Ia's employment section
Whether claim 'relates to' contract of employment
E&W obiter held to be locus delicti commissi and locus damni, A7(2)https://t.co/nccwSBrOQE

— Geert Van Calster (@GAVClaw) September 10, 2021

Issue 5 of 2021 IPRax has been published recently. As usual, it contains a number of insightful articles and case comments. Here are the English abstracts.

Heiderhoff, International Product Liability 4.0

While the discussion on how liability for damages caused by autonomous systems, or “artificial intelligence”, should be integrated into the substantive law is well advanced, the private international law aspect has, so far, been neglected. In this contribution, it is shown that unilateral approaches – such as the EU Parliament has suggested (P9_TA-PROV(2020)0276) – are unnecessary and detrimental. It is preferable to develop a classical conflict of laws rule with connecting factors, which mirror the assessments of the substantive law. It is shown that a mere reinterpretation of the existing Article 5 Rome II Regulation might lead to legal insecurity, and that an addition of the provision is preferable. In particular, the notion of marketing, and its importance as a connecting factor, should be revised.

Vollmöller, The determination of the law applicable on claims for infringement of trade secrets in contractual relationships

The subject of the article is the determination of the applicable law in cross-border situations when a lawsuit is based on the violation of trade secrets within a contractual relationship. According to German Law, claims for infringement of trade secrets are regulated in the German Trade Secrets Act (Geschäftsgeheimnisgesetz – GeschGehG) that has implemented the European Directive 2016/943 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. The focus is on the question how tort claims are connected if the contracting partners have agreed on confidentiality terms, in particular under a non-disclosure agreement. In case the agreement of the parties is ruled by the laws of a Non-European state, it is doubtful whether the harmonized European trade secret law is applicable. The author comes to the conclusion that a secondary connection to the jurisdiction governing the agreement according to Art. 4 Paragraph 3 Rome II Regulation should be limited to relationships where the parties have assumed further contractual obligations beyond confidentiality. In this case, the law applicable on the contract overrides the harmonized European trade secret law regulations which cannot be considered as mandatory rules either.

Lutzi, Ruth Bader Ginsburg – Internationalist by Conviction

In Ruth Bader Ginsburg, the Supreme Court has not only lost an icon of gender equality and towering figure, but also a great internationalist. Ginsburg’s jurisprudence was characterised by her own academic background as a proceduralist and comparativist, a decidedly international perspective, and a firm belief in a respectful and cooperative coexistence of legal systems. An English version of this text can be found at http://www.iprax.de/de/dokumente/online-veroeffentlichungen/

Kohler, Dismantling the “mosaic principle“: defining jurisdiction for violations of personality rights through the internet

In case C-194/16, Bolagsupplysningen, the ECJ ruled that, according to Article 7(2) of Regulation (EU) No 1215/2012, a legal person claiming that its personality rights have been infringed by the publication of incorrect information on the internet and by a failure to remove comments relating to it can bring an action for rectification of that information, removal of those comments and compensation in respect of all the damage sustained before the courts of the Member State in which its centre of interests is located. On the other hand, an action for rectification of that information and removal of those comments cannot be brought before the courts of each Member State in which the information published on the internet is or was accessible. Thus, the ECJ’s decision in case C-509/09 and C-161/10, eDate Advertising a.o., also applies where the aggrieved party is a legal person. However, the “mosaic principle” defined in that judgment is inapplicable because an action for rectification and removal of information on the internet is “single and indivisible” and can, consequently, only be brought before a court with jurisdiction to rule on the entire damage. The author welcomes this limitation and advocates that the mosaic principle be given up entirely, particularly as it does not find resonance on the international level.

Mankowski, Consumer protection under the Brussels Ibis Regulation and company agreements

Company agreements pose a challenge to Articles 17–19 Brussels I bis Regulation; Articles 15–17 Lugano Convention 2007 since these rules are designed for bipolar contracts whereas the formers typically are multi-party contracts. This generates major problems, amongst them identifying the “other party” or answering how far a quest for equal treatment of shareholders might possibly carry. Arguments from the lack of a full-fledged forum societatis might weigh in, as do arguments from the realm of European private law or possible consequences for jurisdiction clauses in company statutes. The picture is threefold as to scenarios: founding and establishing a company; accession to an already established company; and derivative acquisition of a share in an already established company.

Wurmnest and Grandel, Enforcement of consumer protection rules by public authorities as a “civil and commercial matter“

In case C-73/19 (Belgische Staat ./. Movic) the European Court of Justice once again dealt with the delineation of “civil and commercial matters” (Art. 1(1) of the Brussels Ibis Regulation) when public authorities are involved. The Court correctly classified an action brought by Belgian authorities against Dutch companies seeking a declaration as to the unlawfulness of the defendants’ business practices (selling tickets for events at prices above their original price) and an injunction of these practices as a “civil and commercial matter”, as the position of the authorities was comparable to that of a consumer protection association. Furthermore, the Court clarified its case law on the thorny issue as to what extent evidence obtained by public authorities based on their powers may turn the litigation into a public law dispute. Finally, the judgment dealt with the classification of various ancillary measures requested by the Belgian authorities. Most notably, a request by the authorities to be granted the power to determine future violations of the law simply by means of a report “under oath” issued by an official of the authorities was not a “civil- and commercial matter” as private litigants could not be granted similar powers under Belgian law.

Wagner, Jurisdiction in a dispute with defendants in different member states of the European Union

The article discusses a court ruling of the Higher Regional Court of Hamm on jurisdiction concerning the “Diesel emission scandal”. The plaintiff had his domicile in Bielefeld (Germany). He bought a car in Cologne (Germany) where the seller had his domicile. Later on, the plaintiff brought an action for damages and for a declaratory judgment against the seller, the importer of the car (domicile: Darmstadt, Germany) and the producer of the car (domicile: in the Czech Republic) before the District Court of Bielefeld. The plaintiff argued that the producer of the car had used illegal software to manipulate the results of the emissions tests. He based his claim on tort. Against the first defendant he also claimed his warranty rights. In order to sue all three defendants in one trial the plaintiff requested the District Court of Bielefeld to ask the Higher Regional Court of Hamm to determine jurisdiction. In its decision the Court in Hamm took into account Article 8 No. 1 of the Brussels Ibis Regulation and § 36 I No. 3, II of the German Code of Civil Procedure.

Wolber, Jurisdiction for an Application opposing Enforcement in cross-border Enforcement of a Maintenance Decision

The question, whether the maintenance debtor should be entitled to raise the objection that he has predominantly discharged his debt in the Member State of enforcement is highly relevant in practice and disputed in the scientific literature. The European Court of Justice (ECJ) has decided on this question – upon a request for a preliminary ruling by a German court – in the case FX ./. GZ with judgment of 4th June 2020. The ECJ confirms the jurisdiction of the German court based on Article 41 of Regulation No 4/2009. This judgment has effects beyond the enforcement of maintenance decisions on other instruments of European Law of Civil Procedure. While this judgment deserves approval in the result, the reasoning of the court is not convincing. The ECJ judgment does not cover the question of the territorial scope of such a judgment.

Schlosser, Clarification of the service of documents abroad

In extending the term “demnächst” (“soon”) the judgment of the Bundesgerichtshof ruled that a person interested in serving a document to somebody (in particular the initial claim) must only request the court to care for the translation and pay immediately thereafter the estimated costs of the translation for correctly initiating the litigation and thus meeting the term of limitation. The rest of time needed for the translation is irrelevant. The author is developing the impact of this decision for the three variants of serving a document to someone abroad in the European Union: (1) Serving the document spontaneously in time together with the translation, (2) Serving the document belated together with the translation after the court has asked whether the respective person wants a translation, (3) Serving initially without a translation but serving the document again together with a translation after the addressee has refused to accept service without any translation.

Dutta, European Certificate of Succession for administrators of insolvent estates?

German law provides for a special insolvency procedure for insolvent estates (Nachlassinsolvenzverfahren) which is subject to the European Insolvency Regulation. The Oberlandesgericht Frankfurt am Main came to the conclusion that nevertheless the liquidator of such an insolvency procedure can apply for a European Certificate of Succession under the Succession Regulation being an “administrator of the estate”. The case note argues that the German Nachlassinsolvenzverfahren falls within the scope of the Insolvency and the Succession Regulation (section II & III) and that issuing a Certificate causes only indirect frictions between both instruments which are not grave enough to invoke the conflict rule in Article 76 of the Succession Regulation (section IV). The case shows that the model of the Certificate could be extended to other areas (section V).

Jayme, The restitution of the “Welfenschatz“ before the U.S. Supreme Court

The US Supreme Court, in a case involving the restitution of the treasure of the Guelphs and the question of state immunity of the Federal Republic of Germany, decides that the FSIA’s exception concerning property taken in violation of the international law of expropriation does not refer to property owned by German nationals (“domestic takings rule”). The heirs of German Jewish Art dealers who had acquired a large part of the art treasure of the Guelphs from the Ducal family of Braunschweig asked for the restitution of such parts of the treasure which they had sold to Prussia in 1935 alleging that they had been unlawfully coerced to sell the pieces for a third of its value. The defendants were the Federal Republic of Germany and the Stiftung Preußischer Kulturbesitz. The plaintiffs argued inter alia that the forced purchase of the treasure had been an act of genocide in violation of international law and, therefore, justified an exception to State immunity. The District Court denied Germany’s motion to dismiss, and the D.C. Circuit Court affirmed. The Supreme Court held that the phrase “rights in property taken in violation of international law” refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule. The case was remanded to the D.C. Circuit Court of Appeals for further proceedings which inter alia will concern the question whether the Jewish art dealers were German nationals at the time of the sale of the treasure (1935).