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In the context of the 2020 Annual Conference of the European Law Institute, the feasibility study on EU Conflict of Laws for Companies: The Acquis and Beyond will be presented by Chris Thomale (proposer), Luca Enriques, Jessica Schmidt and Georg Kodek (Chair) today, 11 September 2020, from 15:15 until 16:15 CET.

International company mobility as well as regulatory competition of company laws depend on clearly cut out rules designating the applicable substantive company law. It would thus seem an integral part of a functioning internal market to provide such conflict of laws rules. Regrettably, however, a ‘Rome IV’ Regulation, ie an EU conflict of laws code for companies, despite manifold initiatives, has not been adopted yet. Instead, the stage has been left to the Court of Justice of the European Union (CJEU), which in well-rehearsed case law from the Daily Mail (C-81/87) until the Polbud (C-106/16) decisions has developed a certain framework for corporate mobility, culminating, of late, in Directive 2019/2121 on cross-border conversions, mergers and divisions. One big shortcoming of the European status quo is that the piecemeal harmonisation acquired through these developments still leaves a fundamental question unanswered: which company law regime by default is applicable to a given company?

This feasibility study will aim at laying the foundations for a prospective project that fully restates EU law on the matter implicit in conflict of laws legislation on adjacent topics like contract, tort, successions, insolvency and capital markets. Further, it will aim at foundations that go beyond CJEU case law and include national adjudicative practice and academic research into the picture. Based upon this acquis communautaire, the project of a future Rome IV Regulation can be investigated, notably putting to use techniques of private international law in order to address Member State reticence towards such an instrument as expressed hitherto.

To register for the webinars free of charge, please contact the ELI Secretariat at secretariat@europeanlawinstitute.eu.

An interesting exchange with fellow practitioners on Twitter yesterday reminded me of this post which I have had in the draft folder since some time in June.  Back in February, the  Dutch SC confirmed the approach of the lower courts and the Court of Appeal on the correct approach to e-mail evidence and the existence of specific dispute resolution clauses. Here: an agreement to arbitration. The result is that a London-issued arbitral award cannot be enforced in The Netherlands.

When I flagged the case on Linked-in in June I observed there were two approaches to the judgment. Some emphasise the Courts’ refusal to recognise the validity of the agreement to arbitrate made by e-mail, in the face of what is common and very informal practice in the shipping industry /charterparty; others point more practically to parties having to be prepared to prove the authenticity of electronic correspondence.

Defendant did not enter an appearance but the lower Court in earlier ruling was alarmed by the print-out of e-mails allegedly containing the ‘agreement’ in the charterparty looking dodgy (there were for instance various white blots). It proprio motu pursued originality research. In subsequent rulings confirmed and completed by the Court of Appeal, the courts were not satisfied by the originality research, among others because the claimant’s ‘independent’ expert was an ICT employee with the law firm involved in the case.

Procureur Generaal Vlas with the Hoge Raad in his Opinion in December 2019, discussed the slight differences between the 1958 New York Convention and the Dutch law on the evidence required (with the Dutch rules in fact being more relaxed), and the nature and content of guidelines issued for the interpretation of the Convention. He advised to follow the lower court’s approach not because of some grand statement in principle but rather because he could not see fault in the courts’ factual observation of lack of independent and objective proof of authenticity. The Supreme Court followed in the most succinct of ways, without justifying rejection of the appeal. It is entitled to do so in cases where its findings have no impact on the unity in application of the law, indicating that the factual observations swayed the SC.

‘Before e-mail’ (my kids would respond to that ‘yes dad, when you got to work on horse and cart’) printers and warehouse assistants where a key link in the chain of general terms and conditions – GTCs. They needed to ensure the right content ended up on the right printed, blank order forms, and ended up with the right wholesalers, sales agents etc. – to be repeated every single time these GTCs were amended; and many a litigation has begun with sales agents continuing to use old forms ‘because it would be a shame to throw all that paper’. Fast forward to electronic correspondence, and website managers and general ICT staff have now assumed that role. In the context of any dispute resolution, they need to ensure everyone has the right e-mail footer, properly functioning link to the right version of the GTCs on the website, etc. They also need to have protocols in place to ensure authentication is thought of proactively. Lack of such proper electronic housekeeping leads to results no different than when sales agents continued to use the old paper forms.

Geert.

A new monograph written in German deals with cross-border insurance brokerage in the Single Market (Christian Rüsing, Grenzüberschreitende Versicherungsvermittlung im Binnenmarkt, 2020). The monograph is aimed at practitioners, national and European supervisory authorities as well as academics dealing with private international law, its relationship to international supervisory law and insurance law.

This book complements studies on the single market in insurance, which the EU has strived to establish for decades. EU institutions have primarily facilitated cross-border business of insurers by implementing rules on international supervisory law in the Solvency II Directive and on private international law for insurance contracts in Article 7 of the Rome I Regulation. The study focuses on intermediaries, such as insurance brokers and agents.

While intermediaries play a vital role in the cross-border distribution of insurance products, clear conflict-of-law rules for insurance intermediation are missing. The Insurance Distribution Directive (IDD), which intends to promote cross-border activities of intermediaries, focuses on the harmonisation of the substantive law on insurance intermediation, apart from provisions on international administrative cooperation. Furthermore, it has not fully harmonised national laws. Insurance intermediaries providing services in other countries are therefore still required to be aware of the relevant national regulatory requirements and private laws they have to comply with.

With regard to international supervisory law, the author analyses where intermediaries have to be registered and which regulatory requirements they have to meet when exercising activities in another member state by using freedom to provide services or the freedom of establishment. One of the key findings is that although the IDD is partly based on the country of origin principle, intermediaries must comply with stricter national provisions protecting general interests of the host member state, irrespective of whether they serve consumers or professionals as policyholders.

Concerning private international law, the author analyses the intermediaries’ relationships with customers and insurers. A comparative legal analysis reveals that these relationships are based on contract in some member states and on tort in others. Therefore, it is even unclear whether the Rome I or the Rome II Regulation has to be applied. The author calls for an autonomous interpretation of the regulations’ scope of application, which also solves the problem of concurring claims. He suggests that the Rome I Regulation must be applied irrespective of whether the intermediary is an agent or a broker.

Applying the Rome I Regulation to the relationship between intermediaries and customers leads to further difficulties. On the one hand, it is unclear whether the conflicts rule for insurance contracts in Article 7 of the Rome I Regulation can be applied to intermediation services. On the other hand, it is also uncertain whether Articles 3, 4 and 6 of the Rome I Regulation are applicable without modification given that the IDD uses different connecting factors with regard to international supervisory law rules. The author argues that certain IDD “flexibility clauses” constitute special conflict-of-law rules in the sense of Article 23 of the Rome I Regulation and therefore partially supersede Articles 3, 4 and 6 of the same Regulation.

With regard to the relationship between intermediaries and insurers, the author analyses whether Article 4(3) of the Rome I Regulation can be used to apply the law governing the insurance contract or the relationship between intermediaries and customers. He stresses that the parties must be aware of the customs they have to comply with and of certain mechanisms protecting insurance agents, which might include mandatory provisions.

This is a complex area, and the author has to be complemented for having taken a broad perspective, which combines international supervisory law and private international law. The study concludes with an assessment of the extent to which the current state of the law promotes cross-border activities of intermediaries. Particular attention is paid to the importance and legal framework of digital insurance intermediaries, which are also dealt with separately in each chapter.

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

D. Coester-Waltjen: Some Thoughts on Recital 7 Rome I Regulation and a Consistent and Systematic Interpretation of Jurisdictional and Choice of Law Rules.

Decisions of the ECJ in recent years have cast some new light on recital 7 of the Rome I Regulation. These decisions will be analysed regarding the limits of and the guiding principles for a consistent and systematic interpretation of the rules in the Brussels Ibis Regulation on the one hand and the Rome I Regulation on the other. The analysis proves that the understanding of a term in the jurisdictional framework need not necessarily influence the interpretation for private international purposes.

U.P. Gruber/L. Möller: Brussels IIbis Recast

After complicated negotiations, the Council of the EU has finally adopted a recast of the Brussels IIbis-Regulation. The amendments focus primarily on parental responsibility. As far as the enforcement of foreign judgements is concerned, the new regulation provides for a delicate balance between different positions of the Member States. While the new regulation abolishes exequatur, it also introduces new reasons which can be invoked against the enforcement of foreign decisions. At first, the reform did not aim at changes in the field of divorce, legal separation or marriage annulment. However, in the course of the legislative procedure, new provisions allowing for the recognition of extra-judicial agreements on legal separation and divorce were added.

C. Kohler: Mutual trust and fundamental procedural rights in the framework of mutual assistance between EU Member States and beyond

In case C-34/17, Donnellan, the ECJ ruled that the recovery of a fine by way of mutual assistance between EU Member States pursuant to Directive 2010/24 may be refused by the requested authority if the decision of the applicant authority imposing the fine was not properly notified to the person concerned, so that the person’s right to an effective remedy enshrined in Article 47 of the Charter of Fundamental Rights has been infringed. The Court restricts the principle of mutual trust which, pursuant to Opinion 2/13, prevents the requested authority in principle to check whether the applicant Member State has infringed a fundamental right of Union law. The ECJ’s ruling takes into account the case-law of the ECtHR and, by admitting a “second look”, strengthens the protection of fundamental rights in the internal market and within the framework of the judicial cooperation in civil matters.

S. Huber: Broad Interpretation of the European Rules on Jurisdiction over Consumer Contracts

The jurisdiction rules for consumer contracts established in Articles 17 to 19 of the Brussels Ibis Regulation and 15 to 17 of the Lugano Convention respectively lead to the question whether the trader has directed his professional activities to the jurisdiction in which the consumer is domiciled. The German Federal Court of Justice had to decide on this question in the context of several similar cases where Swiss solicitors had concluded a contract with several persons living in Germany. The crucial point was a document that the Swiss solicitors had sent to these persons via their German solicitors. The question was whether this document was a sufficiently clear expression of the Swiss solicitors’ intention to conclude contracts with consumers domiciled in Germany. In this context, the German Federal Court of Justice (cf., for example, the case IX ZR 9/16) held that the intention to conclude contracts with consumers living abroad could not only be expressed by general forms of advertising addressed to the public abroad, but also  y documents that are sent to individual consumers. The line of reasoning of the Court reveals a certain sympathy for the position that even one single document sent to one individual consumer in a foreign jurisdiction might constitute a sufficient expression of the trader’s intention to conclude contracts with consumers of that jurisdiction – but this was of no relevance in the cases at hand where the document had been sent to a group of 60 to 100 persons. Whether the document is sent on the initiative of the trader or at the request of the consumer seems to be of no importance. In addition, the court argued that the acts of the German solicitors were to be attributed to their Swiss colleagues as both law firms had cooperated with the aim of permitting the Swiss solicitors to conclude contracts with clients from Germany. Finally, the court was confronted with the question whether in case of a reorganisation of the trader’s business, a consumer can bring a claim against the newly created company in the courts of its domicile. The Court answered this question in the affirmative even for the situation in which the trader’s entity that had concluded the consumer contract remained liable besides the new company. The analysis of the Court’s decisions shows that the Court has formulated guidelines which are based on the case law of the European Court of Justice and allow the lower courts to apply the rules on jurisdiction over consumer contracts in a way which implements the idea of consumer protection and at the same time takes into account the traders’ interests under the general principles of procedural fairness. The clarifying guidelines have enhanced legal certainty and might thus contribute to reducing time and cost-intensive discussions about jurisdiction issues.

K. Duden: Amazon Dash Buttons and Collective Injunctive Relief in E-Commerce: Ju-risdiction and Preliminary Questions

The decision of the Munich Court of Appeals relates to a preventive action brought by a consumer protection association against the so-called Amazon Dash Buttons. The decision is guided by the 2016 ECJ decision in Amazon (C-191/15), which it develops further. The Munich decision contains far-reaching statements that are of vital importance to e-commerce and the internet of things. On a substantive level the Court of Appeals finds the Dash Buttons to be an infringement of consumer protection laws. This finding has already led to Amazon’s withdrawal of Dash Buttons from the German market. On the level of conflict of laws and international civil procedure, which this paper focusses on, the court starts by rightfully declaring a nationwide jurisdiction under article 7(2) Brussels Ibis-Regulation for preventive actions brought by consumer protection associations. Since the associations pursue the collective interests of all consumers the place where the harmful event may occur is, after all, any place where a potential consumer might be injured. In determining the applicable law, the court distinguishes between the main question of a claim to injunctive relief and the preliminary question of an infringement of consumer protection laws. In doing so it qualifies the pre-contractual obligations of § 312j BGB as part of the law applicable to consumer contracts, even though a qualification under Art. 12 Rome II-Regulation would be more convincing. Because of the potential importance of the content of the decision to the business model of Amazon it can be assumed that Amazon will pursue this case further and try for its reversal.

L. Kuschel: Blocking orders against host providers: Content and territorial scope under the E-Commerce-Directive

In its recent decision (C-18/18) on hosting provider liability, the ECJ set out guidelines on the substantial extent and territorial reach of court orders in cases of online personality rights violations under the E-Commerce Directive. The court held that a hosting provider can be ordered to remove not only identical but also information that is equivalent to the content which has been declared unlawful. Moreover, the E-Commerce Directive does not preclude a court from ordering a hosting provider to remove information worldwide. The article examines critically the broad substantial scope of potential takedown orders and in particular the possibility of worldwide court orders. As to the latter, the article argues that there is neither a contradiction to the ECJ’s previous decision in Google v. CNIL nor a conflict with European jurisdiction law, namely the Brussels Ibis Regulation. A national court should, however, take into consideration the highly differing views among jurisdictions on what content is unlawful and what is protected as free speech, before issuing a global take-down order. The article thus pleads for a nuanced treatment of the subject matter by courts and legislators.

L. Colberg: Damages for breach of an exclusive jurisdiction agreement

In a recent decision, the Federal Court of Justice (“FCJ”) decided for the first time that the violation of a choice-of-court agreement can give rise to damages claims. The question had previously been the subject of intense discussions in German academic literature. In the case before the FCJ, a US party violated a jurisdiction clause in favor of the courts of Bonn, Germany by bringing a claim in a US District Court. Based on the valid and unambiguous choice-of-court agreement, the US court held it lacked jurisdiction. As US courts do not award costs to the winning party, the German party, however, had to bear its own lawyers’ fees. When the US party brought the same claim in Germany, the German party counter-claimed for damages. The FCJ decided that parties who are sued abroad despite the existence of a choice-of-court agreement in principle have a right to damages. However, some uncertainty remains as to the exact terms under which courts will award damages. The academic debate therefore is likely to continue.

J.D. Lüttringhaus: Jurisdiction and the Prohibition of Abuse of Rights

Does the Lugano Convention allow for an abuse of rights exception? A recent decision by the Higher Regional Court of Karlsruhe draws upon the principle of good faith and the prohibition of abuse of rights in order to disregard the defendant’s attempt to challenge jurisdiction pursuant to Art. 24 Lugano Convention. The Court found the defendant’s contesting of jurisdiction in the main proceedings irreconcilable with his pre-trial application for independent proceedings for the taking of evidence in the same jurisdiction. This reasoning does, however, not take into account that jurisdiction for independent proceedings for the taking of evidence may well differ from jurisdiction for the main proceedings. Against this backdrop, the article provides a critical analysis of the abuse of rights exception under both, the Lugano Convention and the Brussels Ibis Regulation.

F. Maultzsch: International Jurisdiction and Service of Process in Cross-Border Investment Torts under the Lugano Convention 2007/Brussels Ibis Regulation

The Supreme Court of Justice of the Republic of Austria (OGH) had to deal with issues of international jurisdiction for cross-border investment torts. Besides general problems of jurisdiction under Art. 5 No. 3 of the Lugano Convention 2007/Art. 7 No. 2 of the Brussels Ibis Regulation, the case touched upon the relation between service of process and possible jurisdiction by way of submission according to Art. 24 of the Lugano Convention 2007/Art. 26 of the Brussels Ibis Regulation. The OGH has decided that jurisdiction by way of submission may not be inhibited by a preceding denial of service of process. This article outlines the state of discussion under Art. 5 No. 3 of the Lugano Convention 2007/Art. 7 No. 2 of the Brussels Ibis Regulation concerning problems in investment torts (in particular regarding the location of the place in which pure economic loss occurs) and agrees with the OGH’s account of the relation between service of process and jurisdiction by way of submission. This account is consistent with the concept of jurisdictional submission as being akin to an ex post choice of court agreement.

J. Rapp: The recovery of erroneously paid insurance benefits under the Brussels Recast Regulation

In what is probably one of the last judgments of the UK Supreme Court on the Brussels Ibis Regulation, the Court addressed three fundamental questions on Article 10 et seq., 25: Is an assignee and loss payee bound by an exclusive choice of court agreement in an insurance contract between the insurer and the policyholder? And is the insurer’s claim for the recovery of erroneously paid insurance benefits against the assignee a “matter relating to insurance” within chapter II, section 3 of the Regulation? If so, is the assignee entitled to rely on section 3 even if he cannot be regarded as the economically weaker party vis-à-vis the insurer? In the given judgment, the Supreme Court ruled that the assignee is usually not bound by a choice of court agreement between the insurer and the policyholder; rather, pursuant to Article 14 of the Regulation, he can only be sued in the courts of the member state in which he is domiciled, even if the protection of the economically weaker party as basic concept enshrined in Art. 10 et seq. of the Regulation does not apply to him.

C. Madrid Martínez: The political situation in Venezuela and the Conventions of the Inter-American Specialized Conference on Private International Law of the OAS

The government of Nicolás Maduro withdraws Venezuela from the OAS and it has an impact on the Venezuelan system of Private International Law, particularly in the application of Inter-American conventions. In this article, we want to show the erratic way the Case Law has taken and the dire consequences that a political decision has had on the Venezuelan Private International Law.

The new issue of the Revue Critique de Droit International Privé (2/2020) is out. It contains three articles and numerous case notes.

In the first article, Sabine Corneloup (University of Paris II Panthéon-Assas) and Thalia Kruger (University of Antwerp) give a comprehensive overview of the new Brussels II ter Regulation (Le règlement 2019/1111, Bruxelles II : la protection des enfants gagne du ter(rain))

After a long legislative process, Regulation 2019/1111 or “Brussels II ter” has replaced the Brussels II bis Regulation (n° 2201/2003). The new Regulation will only become fully applicable on 1 August 2022. This article gives an overview of the most important changes even though it is impossible to discuss all of them. In the domain of parental responsibility Brussels II ter brings more clarity on choice of forum and lis pendens. It insertsa general obligation to respect the child’s right to be heard. For child abduction cases, the second chance procedure is retained but its scope is limited. The legislator places emphasis on mediation. The Regulation brings a general abolition of exequatur, similar to that of the Brussels I Regulation (n° 1215/2012). However, decisions concerning visitation and the second chance procedure (for which Brussels II bis already abolished exequatur) retain their privileged character and slightly different rules apply. Brussels II ter moreover harmonises certain aspects of the actual enforcement procedure. A final important change, especially for France, is a new set of rules on the recognition and enforcement of authentic instruments and agreements, such as private divorces. The legislator did not tackle the bases for jurisdiction for divorce, which is a pity. The authors conclude that, even though it is not perfect and certain issues still need the legislator’s attention, Brussels II ter has brought many welcome improvements, particularly in protecting the rights of children involved in cross-border family disputes.

In the second article, Christine Bidaud (University of Lyon 3) addresses the issue of the international circulation of public documents under French law from a critical perspective (La transcription des actes de l’état civil étrangers sur les registres français. Cesser de déformer et enfin réformer…)

Although the transcription of foreign civil-status records in french registers has long been qualified as a publicity operation, distortions of this notion has been made by the legislator and the case law. A reform in this field is imperative in order to guarantee the coherence of the system of reception in France of foreign civil-status records and, beyond that, of the international circulation of personal status.

Finally, the third article explore the theme of international circulation of personal status from a different perspective. Sylvain Bollée (University of Paris 1 Panthéon-Sorbonne) and Bernard Haftel (University of Sorbonne Paris Nord) discuss the sensitive topic of international surrogacy under the light of the recent case law of the French Supreme Court in civil and criminal matters.

In two judgments handed down by its First Civil Chamber on 18 December 2019, the Court of Cassation seems to have concluded a particularly spectacular case law saga relating to the reception in France of surrogate motherhood processes occurred abroad. Its position has evolved from a position of extreme closure to one that is diametrically opposed, now accepting full and almost unconditional recognition, out of step not only with its recent case-law, but also with domestic law that maintains a firm opposition to any surrogate motherhood process. This evolution is to be considered from the perspective of concrete solutions and, more fundamentally, of the place that the Court of Cassation intends to give in this area to its own case-law within the sources of law.

The full table of contents is available here.

The most recent issue of the German Journal of Comparative Law (Zeitschrift für Vergleichende Rechtswissenschaft) features three articles on private international and comparative law.

The abstracts read:

• Katharina Beckemper: Bestechung und Bestechlichkeit im geschäftlichen Verkehr – Die gegenläufige Umsetzung des EU-Rahmenbeschlusses 2003/568/JI in Spanien und Deutschland, ZVglRWiss 119 (2020), 277-313

Criminal law on corruption is largely determined by Union law. This can make a comparison of the national law of two Member States interesting if there have been different implementations in detail as Union law leaves room for interpretation. However, the German legislator did not see any such room for interpretation when, in 2015, it reorganized the facts of bribery and corruption in business dealings. Rather, he felt compelled to introduce the so-called business owner model. Meanwhile, Spain removed a comparable regulation from the relevant facts in the same year. This raises the question of whether European law offers more scope for implementation than the German legislator assumed or whether the Spanish legislator violated the requirements.

• Patrick Hell: Die Shareholder Proposal Rule des US-amerikanischen Kapitalmarktrechts als Instrument des nachhaltigkeitsorientierten Aktionärsaktivismus, ZVglRWiss 119 (2020), 314-338

Environmental, social and governance (ESG) issues play a major role on both sides of the Atlantic in the current discussion in corporate and capital market law. Investors are increasingly developing their own ESG standards and are trying to influence ESG issues through direct dialogue with their companies and through voting. This sustainability-oriented shareholder activism has a long tradition in the United States. The Shareholder Proposal Rule enables non-binding decisions initiated by shareholders. This has led to a significant increase in sustainability-oriented shareholder proposals in recent years. In the following article, this rule will be presented from a historical, dogmatic and functional perspective in order to take a comparative look at German stock corporation law.

• Frederick Rieländer: Der Schutz von Geschäftsgeheimnissen im europäischen Kollisionsrecht, ZVglRWiss 119 (2020), 339-368

Whilst the Directive (EU) 2016/943 ensures that there is a consistent level of civil redress in the internal market in the event of trade secret violations, the determination of the law applicable to non-contractual claims arising out of trade secret violations raises several unresolved questions. As will be shown hereafter, non-contractual obligations flowing from infringements of trade secrets within the meaning of the Directive ought to be governed by the lex loci protectionis principle as enshrined in Art.?8(1) Rome II Regulation. Nevertheless, the law of the country in which the market is distorted applies in so far as claims are based on trade secret violations by means of ”unfair competition” within the meaning of Art.?6(1) Rome II Regulation.

The Journal can be accessed here (no open access)

By Francisco Javier Zamora Cabo

Despite the progress made towards its prevention and resolution, contemporary history continues to show us examples of human-induced catastrophes, such as the genocides in Rwanda and the Balkans or, in our days, the one that afflicts the Rohingya ethnicity.

These are events that impact the conscience of humanity and that, unlike linear explanations, are usually based on a set of causes that are not always easily discernible. For instance, this is the case of the Rohingya Conflict, which, in its various phases, has generated a great deal of information and evidence, among which it is necessary to glean with a critical spirit, so as to fix the problem and, consequently, proceed to its much-needed denounce and to the pursuit of a path to a solution. To this end, and from the performance of the sciences, interdisciplinary approaches are required, the only ones that can give a full measure of the magnitude of such conflicts and of the means that must be prepared to address them.

In this order, and complemented by contributions from other branches of knowledge, international law, both public and private, constitutes an essential element to face the aforementioned conflict, by arbitrating mechanisms that enable its control and also necessarily opening ways for the remedy of victims and the punishment of those responsible for a calamity of such caliber, which affects more than a million human beings of the ethnic group mentioned above, which currently is the most persecuted on the planet and is also exposed to suffer in a special way the effects of the pandemic that afflicts the world.

The Rohingya conflict thus constitutes a field of choice at the interface between public international law and private international law, in which, for instance, actions are complemented according to the institutional channels established by the international community or, with the technical resources provided by the conflict of laws, through state-based international litigation or the implementation of elements belonging to its body of laws and with an imperative nature, such as international sanctions. Based on this, we then propose, on the occasion of the aforementioned conflict, a private international law in accordance with world governance and mobilized towards the achievement of peace, which is the ultimate foundation on which it coincides with the law of nations.

We have focused our modest contribution to the study and solution of the Rohingya conflict on these ideas, after exploring its actors, causes, and ominous results, from a wide range of sources. Written in Spanish, it is accessible here: http://www.rivistaoidu.net/sites/default/files/2_FZamora%20Cabot%20%20Marullo.pdf. Its abstract in English can be accessed here: http://www.rivistaoidu.net/sites/default/files/Abstract%20Zamora%20Cabot%20Marullo.pdf.

Profesor Dr. Francisco Javier ZAMORA CABOT,
Catedrático de Derecho Internacional Privado
(Chair Professor of Private International Law)
Facultad de Ciencias Jurídicas y Económicas
Universitat Jaume I de Castellón

In Stephenson Harwood LLP v Medien Patentverwaltung AG & Ors [2020] EWHC 1889 (Ch), proceedings were triggered by funding arrangements and alleged success fee entitlements following patent infringement proceedings. MPV is Swiss-based.

The action is an ‘interpleader’ one, now called a ‘stakeholder’ action: as Lenon DJ at 34 described, it is a ‘means by which a court (at the request of claimant, who typically holds property on behalf of one of the parties, GAVC) compels competing claimants to the subject matter of the application to put forward their claims and have them adjudicated on, thereby enabling the stakeholder to drop out of the picture.’

In the English residual private international law, stakeholder actions ground jurisdiction on the basis of the defendant’s property being present there. This is the kind of assets- based jurisdiction which the EC, but not the other Institutions, had wanted to introduce in Brussels Ia. As a result of the Brussels Convention’s Article 3 (materially the same as Article 3 Lugano), these actions became part of residual rules which could no longer be invoked against EU /Lugano States based defendants.  In the Schlosser report on the UK’s accession to the Brussels Convention, to which the judge refers at 40, it was said

“Interpleader actions (England and Wales) … are no longer permissible in the United Kingdom in respect of persons domiciled in another Member State of the Community, in so far as the international jurisdiction of the English or Scottish courts does not result from other provisions of the 1968 Convention. This applies for example, to actions brought by an auctioneer to establish whether ownership of an article sent to him for disposal belongs to his customer or a third party claiming the article.”

An alternative jurisdictional gateway therefore needs to be found. The discussion turned to submission (aka voluntary appearance) and CJEU C-150/80 Elefanten Schuh GmbH v Pierre Jacqmain. In particular, MPV completed the acknowledgment of service form indicating that it intended to contest Stephenson Harwood’s claim, did not tick the box saying that it intended to dispute jurisdiction and set out its own claim for payment of the Monies which it intended to pursue in the stakeholder application and stating its intention to exchange evidence. It then served and filed two witness statements in support of that claim addressing the merits and rebutting Mr Kagan’s claim. As the judge notes at 49,

MPV’s case that it has not submitted to the jurisdiction depends on the Court accepting the premise that it is open to MPV to distinguish for jurisdictional purpose between Stephenson Harwood’s claim (in relation to which MPV has raised no jurisdictional dispute) and Mr Kagan’s claim made as part of the stakeholder proceedings (in relation to which MPV does dispute jurisdiction). It is on this basis that MPV simultaneously asks the Court to order payment of the Monies to itself, as a disposal of the stakeholder application, while disputing the jurisdiction of the Court to determine Mr Kagan’s claim to the Monies.

However Lenon DJ holds that appearance was entered, as Mr Kagan’s claim is part and parcel of the stakeholder application and cannot be separately rejected at the level of jurisdiction. The level of engagement with the claim amounts to voluntary appearance viz both parties. At 53 obiter discussion of other gateways is pondered but not further entertained for lack of proper discussion by the parties.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 1, Heading 1.3.1,

Albert Henke (University of Milan) has been awarded the EU-funded Jean Monnet Module on ‘Multilevel, Mutiparty and Multisector Cross-Border Litigation in Europe’. The three-year teaching and research project will run from 2021 to 2023 and will focus on three main areas: relations and conflicts between national courts, European courts and international tribunals; cross-border collective redress; procedural issues arising out of litigating cross-border commercial, financial, competition, IP, labour, consumers and family law disputes.

Civil litigation in a cross-border dimension presents greater complexity than domestic litigation, due to differences in legal traditions and regimes, as well as in cultural and social values among jurisdictions. A recent EU Study (JUST/2014/RCON/PR/CIVI/0082) shows that EU Member States’ procedural law regimes are still far from being harmonized, what negatively impacts on free circulation of judgments, equivalence and effectiveness of procedural protection and the functioning of the internal market.

The module is proposed to Italian and foreign under- and postgraduate students, as well as to practitioners. It will identify the main procedural issues deriving from a lack of harmonization among EU jurisdictions, contribute to the academic debate at national and European level, produce a series of academic outputs and set the basis for future academic cooperation, also in view of international joint research projects.

The teaching staff includes Alan Uzelac (University of Zagreb), Diego P. Fernández Arroyo (Sciences Po, Paris), Gilles Cuniberti (University of Luxembourg), Fernando Gascón-Inchausti (Complutense University of Madrid), Maria Teresa Carinci (University of Milan), Francesco Rossi dal Pozzo (University of Milan), Stefaan Voet (Katholieke Universiteit, Leuven), Francesca Marinelli (University of Milan), Pietro Ortolani (Radboud University, Njimegen) and Apostolos Anthimos (European University, Cyprus).

For information, please contact Prof. Albert Henke at albert.henke@unimi.it.

On 3 September 2020, the Court of Justice delivered its Judgment in the case that had sparked considerable scholarly interest in recent months, namely in the case Supreme Site and Others, C-186/19.

Back in June, due to the courtesy of María Barral Martínez, we presented an analysis of the case itself and of the Opinion issued by AG Saugmandsgaard Øe.

Preliminary questions and their context

As a reminder, in the background of this case is a contractual dispute over the payment of fuels supplied by companies to an international organisation, in the context of a military operation carried out by the latter.

The legal question at stake concerns, primarily, the applicability and/or the scope of application of the Brussels I bis Regulation in the context of a case where the international organisation brings an action to, firstly, lift an interim garnishee executed in another Member State by the opposing parties, and, secondly, prohibit the opposing parties from levying, on the same grounds, an interim garnishee in the future and all that on the basis of an immunity of execution that this international organisation allegedly enjoys.

Subsequently, the referring court asks, in essence, whether Article 24(5) of the Brussels I bis Regulation is to be interpreted as meaning that the action for interim relief falls within the exclusive jurisdiction of the courts of the Member State in which the interim garnishee order was executed.

Judgment of the Court and its consideration of the questions referred

In relation to the question of the applicability/scope of application of the Brussels I bis Regulation, the Court begins its analysis by affirming, at paragraph 54 of the Judgment, that the interim measures in question should be considered as the ‘provisional measures’ within the meaning of the Article 35 of the Regulation. The inclusion of these measures in the scope of the Regulation is determined by the nature of the rights that they serve to protect.

Next, at point 55, the Court acknowledges the two sets of criteria used in its case-law in order to characterize whether or not an action is covered by the concept of ‘civil or commercial matter’ within the meaning of Article 1(1) of the Brussels I bis Regulation. These are ‘the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof’ and – as the Court puts it – ‘alternatively’, ‘the basis and the detailed rules governing the bringing of the action’. Both sets of criteria are afterwards applied in relation to the case at hand, at paragraphs 65 to 67. It may seem that the first set of criteria is used in order to determine the nature of rights that the provisional measure serves to protect, while the check of the basis and the detailed rules governing the bringing of the action (second set of criteria) is done in order to ensure that the request for the measure does not consist on exercise of public powers and as such could potentially exclude the measure from the scope of the Regulation (Cf. paragraph 62 of the Court’s Judgment in case C-73/19, Movic and Others).

Interestingly, in relation to ‘the elements which characterise the nature of the legal relationships between the parties to the dispute or the subject matter thereof’ (first set of criteria), the Court seems to be taking the view that the purpose of the contract on the supply of fuel is not of a decisive importance. As under public international law the purpose of a transaction may arguably have some significance in determining whether that transaction was performed iure gestionis and is therefore not covered by the immunity, it is worth noticing that the Court indicates that the criteria for the determination of a ‘civil and commercial’ character are established for the purpose of the application of EU law (see paragraph 68: ‘neither the legal relationship between the parties to an action such as that in the main proceedings nor the basis and the detailed rules governing the bringing of that action can regarded as showing the exercise of public powers for the purposes of EU law‘; see also paragraph 69 as well as in the operative part 1 of the Judgment: ‘action in question is not pursued under public powers, within the meaning of EU law‘).

Finally, at paragraph 74, the Court indicates that the fact that an international organisation relied on the immunity from execution in support of its action for interim relief does not preclude examination by the court of its international jurisdiction under the Brussels I bis Regulation. For the Court, the issue of whether that immunity is a bar to the court seised having jurisdiction to hear and determine such an action arises at a later stage, after the international jurisdiction of that court has been determined.

On these grounds, the Court considers that:

Article 1(1) of [the Brussels I bis Regulation] is to be interpreted as meaning that an action for interim relief brought before a court of a Member State in which an international organisation invokes its immunity from execution in order to obtain both the lifting of an interim garnishee order executed in a Member State other than that of the forum and a prohibition on levying such an order in the future on the same grounds, brought in parallel with substantive proceedings concerning a claim arising from alleged non-payment for fuel supplied for the purposes of a peacekeeping operation carried out by that organisation, is covered by the concept of ‘civil and commercial matters’, in so far as that action is not pursued under public powers, within the meaning of EU law, which is a matter for the assessment of the referring court.

In relation to the question on the interpretation of Article 24(5) of the Regulation, the Court takes, as observed by one commentator, a restrictive view: it seems that only proceedings that concern per se the enforcement of judgments fall within the scope of that provision.

The Judgment itself can be consulted here.

On 27 September 1968, the (then) six member States of the European Communities signed the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. On the occasion of the 50th anniversary of this milestone, the European Court of Justice and the Max Planck Institute Luxembourg held an international conference on the most important developments, achievements and challenges in European civil procedural law since that date.

A book collecting most of the presentations, edited by Prof. Dr. Dres. h.c. Burkhard Hess and Prof. Dr. Koen Lenaerts, with Dr. Vincent Richard as coeditor, has just been published by Nomos Verlag, in the Studies of the Max Planck Institute for International, European and Regulatory Procedural Law series.

The book includes contributions on the Brussels regime authored by members of the European Court of Justice, established academics and young researchers, illustrating the dialogue between the Court of Justice and the national courts on the interpretation of European civil procedural law, and how it has impacted on the Europeanization of private international law. Moreover, it reflects on the future of European civil procedural law and on the suitability of the Brussels regime today.

The Court of Justice delivered on Thursday (3 September 2020) its judgment in case C‑186/19 (Supreme Site Services GmbH, and alii v Supreme Headquarters Allied Powers Europe) which is about Article 1 and 24 Brussels I bis (along with Article 35) in the context of an action brought by an international organisation based on immunity from execution seeking to have an interim garnishee order lifted and a prohibition on new orders being levied on the same grounds.

Background: “The request has been made in the course of proceedings between, on one hand, Supreme Site Services GmbH, established in Switzerland, Supreme Fuels GmbH & Co KG, established in Germany, and Supreme Fuels Trading Fze, established in the United Arab Emirates (together, ‘the Supreme companies’) and, on the other hand, Supreme Headquarters Allied Powers Europe (‘SHAPE’ [NATO]), established in Belgium, concerning the lifting of an interim garnishee order”.

Decision: “1. Article 1(1) of Regulation (EU) No 1215/2012 […] is to be interpreted as meaning that an action for interim relief brought before a court of a Member State in which an international organisation invokes its immunity from execution in order to obtain both the lifting of an interim garnishee order executed in a Member State other than that of the forum and a prohibition on levying such an order in the future on the same grounds, brought in parallel with substantive proceedings concerning a claim arising from alleged non-payment for fuel supplied for the purposes of a peacekeeping operation carried out by that organisation, is covered by the concept of ‘civil and commercial matters’, in so far as that action is not pursued under public powers, within the meaning of EU law, which is a matter for the assessment of the referring court.

2. Article 24(5) of Regulation No 1215/2012 is to be interpreted as meaning that an action for interim relief brought before a court of a Member State in which an international organisation invokes its immunity from execution in order to obtain both the lifting of an interim garnishee order executed in a Member State other than that of the forum and a prohibition on levying such an order in the future on the same grounds, does not fall within the exclusive jurisdiction of the courts of the Member State in which the interim garnishee order was executed”.

Source: here

As mentioned earlier this summer, the Max Planck Institute for Comparative and International Private Law in Hamburg will host the third conference for young German-speaking scholars in private international law (“IPR-Nachwuchstagung”) in March 2021. The conference will focus on the theme of PIL for a better world: Vision – Reality – Aberration? and will include a keynote by Angelika Nußberger, former judge at the European Court of Human Rights, and a panel discussion between Roxana Banu, Hans van Loon, and Ralf Michaels.

The organisers are inviting contributions that explore any aspect of the conference theme, which can be submitted until 20 September 2020. The call for papers and further information can be found on the conference website.

Although the conference will mainly be held in German, English proposals and presentations are also most welcome.

Of course, the organizers are mindful of the current Corona pandemic and will adjust the planning accordingly.

The DIRECTORATE-GENERAL JUSTICE AND CONSUMERS of the Commission has recently published a further notice on the EU-Brexit saga in the field of civil justice and private international law.

The notice covers core aspects, such as international jurisdiction, applicable law, recognition and enforcement, specific European procedures (EPO, ESCP), judicial cooperation instruments (Service and Evidence Regulations), insolvency, ans other pertinent issues (public documents, legal aid, mediation).

The full text of the notice may be retrieved here.

It was a year ago since I started writing up this post – I must have gotten distracted, for I continue to find the issues both relevant and interesting. In Bank of Baroda v Maniar & Anor [2019] EWHC 2463 (Comm) (not appealed to my knowledge),  Pearce J considered the attempt by an Indian Bank (with business activities in the UK) to enforce personal guarantees given in respect of the liability of an Irish-registered company (which had been set up by the guarantors) under a credit facility. The Irish company had entered into examinership under Irish law, and the Irish courts had approved a scheme of arrangement. Of interest to the blog is whether the bank had properly served notice on the guarantors, in accordance with the Companies Act 2014 (Ireland) s.549.

Claimant referred inter alia to the Gibbs rule, which I discussed in my posting on [2018] EWHC 59 (Ch) International Bank of Azerbaijan , since confirmed by the Court of Appeal. Defendants rely ia on Article 4 of the EIR 2000, Regulation 1346/2000, materially applicable to the proceedings:  “(1)…the law applicable to insolvency proceedings and their effects shall be the law of the Member State within the territory of which such proceedings are opened…(2) The law of the State of the opening of proceedings shall determine the conditions of the opening of those proceedings, their conduct and their closure. It shall determine in particular: .. j. The conditions for and the effects of closure of insolvency proceedings, in particular by composition; k. Creditors’ rights after the closure of insolvency proceedings.”

Claimant concedes that law of the State of the opening, namely Irish law, may be required to be given effect under the EIR, however argues that effect is limited to those aspects of Irish insolvency law which are necessary for the insolvency proceedings to fulfil their aim, and that Section 549 of the Irish Company Act (which concerns the preservation of the right to pursue guarantors) does not fall within the ambit of “the law applicable to insolvency proceedings” to which Article 4(1) of EIR applies.

In other words Claimant does not entertain the possibility of what was Article 13 in the 2000 EIR and is now Article 16 in the 2015 EIR, also applied by the CJEU in Nike, Kornhaas and Lutz. Rather, it more straightforwardly argues that relevant sections of the Irish Company Act are simply not within the scope of the lex concursus and that (at 84) the law governing the guarantees is English law per Article 4 Rome I.  At 109 Pearce J ultimately rather concisely holds

The important point here is the potential effect of a Section 549 offer on creditors’ meetings. The fact that the making of such an offer gives rise to the possibility of the guarantor accepting the offer and exercising the voting rights of the creditor at a members’ meeting creates a significant connection between the notice and the conduct of the examinership itself. This brings the procedure within the ambit of Article 4 of EIR. (now Article 7 EIR 2015 – GAVC)

Why the relation with the carve-out of Article 13 (now 16) was not discussed is not clear to me, particularly as at 156 ff there is discussion of Article 15 (now 18)’s provision : “The effects of insolvency proceedings on a lawsuit pending concerning an asset or a right of which the debtor has been divested shall be governed solely by the law of the Member State of which that lawsuit is pending.”) 

Claimant not having discussed Article 13 (16), presumably did not raise the possibility of an appeal, either. 

The remainder of the discussion then turns to the validity of service under Irish law,  to be judged by an English judge. With Pearce J at 138 and 143 I see no reason why the EIR would stand in the way of an English judge so applying the lex concursus, even if an Irish judge would do so with an amount of discretion. At 152 and 154, after consideration, service was deemed not to have been valid.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.7.

María Barral Martínez and I reviewed Saugmandsgaard Øe’s Opinion in C-186/19 Supreme Site Services v SHAPE here – see also references to earlier postings in that report. The Court held yesterday. The case involves both Article 1 Brussels Ia, on the issue of ‘civil and commercial’ and the impact on same of claimed immunity; and on the application of Article 24(5)’s exclusive jurisdictional rule for proceedings ‘concerned with the enforcement of judgments’.

The case concerns SHAPE’s appeal to a Dutch Court to lift the attachment aka ‘garnishment’ of a Belgian NATO /SHAPE escrow account by Supreme Services GmbH, a supplier of fuel to NATO troops in Afghanistan. In 2013, Supreme and Allied Joint Force Command Brunssum (JFCB), the Netherlands-based regional headquarters of NATO, set up an escrow bank account in Belgium with the goal of offsetting any contingent liabilities on both sides at the end of Basic Ordering Agreements (BOAs). Supreme Services in 2015 initiated proceedings against SHAPE and JFCB in the Netherlands arguing that the latter parties had not fulfilled their payment obligations towards Supreme. It also attached the account in Belgium.

Maria earlier discussed the oddity that the Dutch Court of Appeal in the meantime has already held on the merits of the case. Shape submitted at the CJEU that this, and the fact that the Belgian courts executed their Dutch counterpart’s lifting of the garnishee order following the Dutch-Belgian 1925 Bilateral Convention, meant the questions had become largely inadmissible. The CJEU disagrees: the case before it has been referred by the Supreme Court, and that court has exclusive power under national law to determine how much it can still interfere in the substance of the case, which is still very much ‘alive’ therefore.

A first issue under discussion was whether the garnishment order, which the Court per C‑261/90 Reichert and Kochler qualifies as ‘provisional, including protective measures’ under (now) Article 35 BIa, concerns ‘civil and commercial matters’. Among others Greece and Shape argue that the nature of the substantive proceedings determines this exercises, while the CJEU, following the view of ia the EC, BEN and NL, insists it is the nature of the rights which the provisional and protective measure seek to safeguard, that must rule that exercise – support is found in 143/78 de Cavel. This finding reinforces the particular nature of ‘provisional, including protective measures’ in the set-up of the Regulation.

On the impact of claimed immunity on the subsequent qualification as ‘civil and commercial’, reference is of course made to the CJEU’s May judgment in C-641/18 Rina which I reviewed here. The Court extends its reasoning there to here despite the fact that as it notes at 61, States’ immunity is automatic and based on par in parem non habet imperium, while for international organisations it is not automatic and has to be conferred by the treaties establishing those organisations. Per Rina the CJEU assesses whether the international organisation acted iure imperii, for which of course it has a range of predecent available. At 66 it emphasises that how the organisation uses the supplied goods (here: to support the military campaign in Afghanistan) does not impact on the nature of the relationship it has with the supplier. The Court ends by instructing the Dutch SC to carry out the necessary factual checks however it suggests that in casu neither the legal relationship between the parties to an action such as that in the main proceedings nor the basis and the detailed rules governing the bringing of that action (here: the ordinary Article 705(1) of the Dutch CPR) can be regarded as showing the exercise of public powers for the purposes of EU law.

On the issue of Article 24(5), the Court takes a restrictive view as it becomes all elements of Article 24: reference here is made to CJEU C-722/17  Reitbauer: only proceedings relating to recourse to force, constraint or distrain on movable or immovable property in order to ensure the effective implementation of judgments and authentic instruments fall within A24(5)’s scope.

I trust public international lawyers will have more to say about the PIL implications of the judgment.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2.

The French Committee of Private International Law has published a book presenting portraits of 15 former presidents of the Committee since it was established in 1934.

As the goal of the Committee has been to establish a bridge between the bench, the bar and the academy, the presidents have been essentially academics (Batiffol, Goldman) and judges (Bellet, Ponsard, Dray), but also members of the bar (Decugis).

Each of the portraits attempts to assess the contribution of the president to the development of the field, but also to present his personal history.

The foreword and table of contents of the book can be accessed here. More information is available here.

Written by Bebizuh Mulugeta Menkir, Lecturer of Laws, University of Gondar

babimulugeta@gmail.com

Ethiopia, located in east Africa, is the second most populous country in the continent. The Ethiopian parliament has recently ratified, through proclamation No 1184/2020[1], the “Convention on the Recognition and Enforcement of Foreign Arbitral Awards” which is commonly known as “New York Convention” (here after referred as “the Convention”). This short piece aims to reflect some points in reaction to this ratification proclamation, specifically changes that this will bring to the approach to arbitration in Ethiopia.

As stated in the Convention, state parties are obliged to recognize and give effect to arbitral agreements including an arbitral clause; and ordinary courts are precluded from exercising their jurisdiction on the merits of the case.[2] In addition, unless in exceptional circumstances recognized under the convention, foreign arbitral awards shall be enforced just like domestic arbitral awards.[3]

By ratifying the Convention, Ethiopia undertakes to perform the above-mentioned and other obligations of the Convention. As a result, some of the hitherto debatable issues are addressed by the terms of the Convention. For instance, the Ethiopian Supreme Court cassation bench had previously passed a decision that rejects the parties’ agreement that makes the outcome of the   arbitration to be final.[4] In its decision, the cassation bench contends that its mandate given by the Ethiopian constitution as well as the “Federal Courts Proclamation re-amendment Proclamation No 454/1997” cannot be limited by an arbitration finality clause.  But now, this power of cassation can be taken to have ceased at least in relation to cases falling under the scope of application of the Convention.

The declarations and reservation that Ethiopia has entered while ratifying the Convention should not be forgotten though. As such, Ethiopia will apply the Convention only in relation to arbitral awards made in the territory of another contracting state.[5] In the Civil Procedure Code of Ethiopia, Art 458 and Art 461(1) (a), the law that had been in force before the ratification of the Convention, reciprocity was one of the requirements that need to be fulfilled before recognizing and giving effect to the terms of foreign judgments as well as foreign arbitral awards.

Ethiopian courts require the existence of a reciprocity treaty signed between Ethiopia and the forum state whose judgment is sought to be recognized or enforced.[6] It is fair to assume that Ethiopian courts would have the same stand in relation to foreign arbitral awards. And Art 2(1) has fulfilled this requirement because the arbitral award has been given in the member state to the Convention by itself warrants the recognition and enforcement of the award in Ethiopia.

Moreover, Ethiopia also declares that “the convention will apply on differences arising out of legal relationships, whether contractual or not, which are considered commercial under the National Law of Ethiopia.”[7] But here, a national law that provides a comprehensive list or definition of commercial activities hardly exists. As a result, while giving effect to the terms of the Convention, Ethiopian courts are expected to answer what sort of activities shall be deemed to be commercial activities according to Ethiopian law.

The definition contained under Art 2(6) of the “Trade Competition and Consumers Protection Proclamation” will provide some help  in identifying “commercial activities” in Ethiopia. Accordingly, “Commercial activities are activities performed by a business person as defined under sub-Art 5 of this article.”[8] And Art 2(5) defines a business person as “any person who professionally and for gain carries on any of the activities specified under Art 5 of the Commercial Code, or who dispenses services or who carries those commercial  activities designed as such by law”. [9] Moreover, it is to be noted that the “Commercial Registration and Licensing Proclamation (Proclamation No. 980/2016)” also provides the same kind of definition for commercial activities.[10]

From the combined reading of the above provisions, commercial activities are those activities listed under Art 5 of the Commercial Code, when they are performed by a person professionally and for gain.  However, this cannot be a comprehensive answer to the question, as there can be areas other than those listed under Art 5 of the Commercial Code that can be characterized as commercial activities. In addition, there are numerous service deliveries that can be considered as commercial activities. In such cases, Ethiopian courts will have to consult other domestic laws and decide whether the activity in question can be considered as commercial or not.

Last but not least, even if ratified treaties are declared to be an integral part of the law of Ethiopia[11], the domestic application  of treaties whose contents have not been published in domestic law gazette has been a debatable issue for long. As there are points that are not incorporated under the ratification proclamation, the same problem may probably arise in relation to the New York Convention. To avoid this challenge, the Ethiopian parliament should have published the provisions of the Convention together with the ratification   proclamation.[12] As per its responsibility under Art 5 of the ratification proclamation the Federal Attorney General, should at least have the Convention translated to Ethiopian working languages.

[1] The Convention on the Recognition and Enforcement of Foreign Arbitral Awards Ratification Proclamation, Proclamation No 1184/2020, Federal Negarit Gazette, 26th  year No 1, Addis Ababa,  13th  March 2020.

[2] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), Art. II(1),(2),(3)

[3] Id.Art I and V

[4]  National Mineral Corporation Plc. vs. Danni Drilling plc., Federal Supreme Court, cassation bench

[5] Ratification Proclamation, supra note 1, Art  2(1)

[6] See paulos papassinus case, Federal Supreme court File no 1769/88;  Yosera Abdulmuen et al.  vs. Abdulkeni Abdulmuen, Federal Supreme Court of Ethiopia, Cassation Bench , Fed Sup. Court File No 78206

[7] Ratification Proclamation, supra note 1,  Art  2(2)

[8] Trade Competition and Consumers Protection Proclamation, Proclamation No 813/2013, Federal Negarit Gazette, 20th  year No 28, Addis Ababa,  21st   March 2013, Art 2(6)

[9] Id. Art. 2(5)

[10] The Commercial Registration and Licensing Proclamation, Proclamation  No 980/2016,  Federal Negarit Gazette, 22nd   year  No. 101, Addis Ababa,  5th   August 2016,  Art 2(2)&(3)

[11] Constitution of Federal Democratic Republic of Ethiopia, Proclamation  No 1/1995,  Federal Negarit Gazette, 1st    year  No.1 , Addis Ababa,  21st    August 1995,  Art 9(4)

[12] International Agreements Making and Ratification Procedure (Proclamation  No 1024/2017) states that  “The House of Peoples’ Representatives may decide to publish the provisions of the international agreements with the ratification proclamation.”(Art. 11)

Readers previously obtained a preview of the 13 principles which make up the Asian Principles for the Recognition and Enforcement of Foreign Judgments, a publication by the Asian Business Law Institute (ABLI). I am delighted to be informed by ABLI that the Asian Principles has been formally released today.

The blurb is below:

“Authored by leading academics and practitioners with extensive regional exposure, the Asian Principles is a set of 13 overarching principles that underpin the recognition and enforcement of foreign judgments in the Asia Pacific. Each principle comes with a detailed commentary fully supported by citations, distills the commonalities and differences of the law on foreign judgments recognition and enforcement in 15 countries (all ten ASEAN member states, plus Australia, China India, Japan and South Korea) for its readers, and where appropriate, suggests ways forward for the development of the law in this area.

The first of any such publication in the world, the Asian Principles is available here where you can download the first chapter free of charge. The table of contents and a detailed FAQ list are also available at the link. It is hoped that the release of the Asian Principles can serve to promote convergence in this area of the law by facilitating greater portability of judgments within ASEAN and its major trading partners, which can in turn facilitate cross-border transactions by reducing legal uncertainties, lowering transaction costs and minimizing associated legal frictions.”

The contributors to the Asian Principles are:

• Dr Adeline CHONG (Project Lead and editor, Singapore Management University)
• Dr Bích Ngoc DU (Dean of Faculty of Law, Ho Chi Minh City Open University)
• Dr Yujun GUO (Professor, China Wuhan University Institute of International Law)
• Dr Colin ONG QC (St Philips Stone Chambers, London)
• Dr Yu Un OPPUSUNGGU (Lecturer, Faculty of Law Universitas Indonesia)
• Professor Narinder SINGH (Former Chairman, International Law Commission (UN); Maharishi Law School)
• Dr Poomintr SOOKSRIPAISARNKIT (Lecturer in Maritime Law, Australian Maritime College, University of Tasmania)

ABLI has kindly offered readers of ConflictofLaws. net an exclusive discount of 10% off for the Asian Principles. Please write to catherine_shen@abli.asia to get your unique coupon code.

It is widely known that disputes related to sports are most of the times referred to arbitration. Football is of course in the forefront. Usually cases referred to either the CAS or the FIFA Dispute Boards lead to an award. Not so in the case at hand. As a result, the creditor was left with the sole option, i.e. to return civil litigation. However, the road was not paved with roses…

The Appellant, a resident of the Netherlands, is a professional football player’s agent of Dutch nationality, licensed by the Royal Dutch Football Association. The Respondent is a Greek football société anonyme, which runs a professional football team participating in the Greek Super League. The Club is affiliated with the Hellenic Football Federation (the “HFF”), which in turn is a member of the Fédération Internationale de Football Association (“FIFA”). It has its seat in Thessaloniki, Greece.

In May 2012, the Appellant represented the professional football coach D. and three coach assistants as their agent in the contractual negotiations with the Respondent. In this context, the Parties signed a Private Agreement setting out, in essence, the terms and conditions on which the Respondent should pay the Appellant for his services in facilitating the signing of the contracts between the Respondent and the Coach, and the Assistant Coaches.

The Agreement stated, inter alia, the following: ‘the parties also expressly agree that the competent Committee of FIFA will have jurisdiction to decide for any and all disputes that might arise from or in relation to the present agreement and that the FIFA Regulations will apply to any such dispute’.

Owed to a negative result, the Team lost its chance to qualify for the Greek cup final. As a consequence, a clash was provoked between the Team and the Coach, which resulted in the discontinuation of their cooperation, and the non-payment of the second tranche to the Agent by the Team.

On September 2014, the Appellant filed his claim with FIFA, claiming the Respondent’s payment of 70.000 € in accordance with the Agreement. FIFA informed the Appellant of the following:

We would like to draw your attention again to art. 1 of the Players’ Agents Regulations, which stipulates that “These regulations govern the occupation of players’ agents who introduce players to clubs with a view to negotiating or renegotiating an employment contract or introduce two clubs to one another with a view to concluding a transfer agreement within one association or from one association to another”. Moreover, art. 1 par. 2 of the Regulations stats that “The application of the regulations is strictly limited to players’ agents activities described in the paragraph above”. In light of the aforementioned and by way of clarification, it would rather appear that your claim lacks legal basis, since the services provided by you and which are object to your claim i.e. providing services on behalf of the coaching staff are outside the scope of the abovementioned provisions’.

On December 2014, the Appellant filed an appeal with the Court of Arbitration for Sport. He sought, inter alia, to: (1) set aside the decision issued on by the FIFA; (2) issue a (new) decision condemning Respondent to pay Appellant an amount of 70.000 € on outstanding commissions.

The Sole Arbitrator noted that Article R47 of the CAS Code states as follows: ‘An appeal against the decision of a federation, association or sports-related body may be filed with CAS if the statutes or regulations of the said body so provide or if the parties have concluded a specific arbitration agreement and if the Appellant has exhausted the legal remedies available to it prior to the appeal, in accordance with the statutes or regulations of that body’.

Based on the foregoing, the Sole Arbitrator stated that it is undisputed that the CAS has jurisdiction to hear appeal cases only under the condition that a ‘decision’ has been rendered, in which connection the Appellant argued that the FIFA Letter satisfies the requirement for constituting a ‘decision’, whereas the Respondent denied that this is the case.

The Appellant did not deny the accuracy of FIFA’s (alleged) decision regarding lack of jurisdiction and did not really want to have this issue verified by the CAS. As stated in the appeal that he rather sought ‘an award on the basis of the merits and essentials of the case here presented, despite the fact that the appealed decision did not entail an elaboration on the essential content of the dispute’.

The Arbitrator regarded the appeal as an attempt to circumvent FIFA’s lack of jurisdiction – which was not contested by the Parties – and, in this manner, to make the CAS, as an appeals body, hear and decide on the substantive aspects of the dispute, notwithstanding that FIFA, as the first-instance body chosen by the Appellant, did not consider itself to have jurisdiction. Since it neither is, nor should be possible to circumvent a first-instance judicial body’s undisputed lack of jurisdiction to hear and decide on a substantive issue by merely attempting to refer such a decision to the CAS through a more or less fictitious appeal, the Sole Arbitrator ruled that the CAS had no jurisdiction to hear the ‘appeal’. In addition, the Arbitrator stated that an appeal to the CAS filed under the rules governing appeal proceedings set out in the Code therefore cannot merely be ‘transformed’ into a request for arbitration.

Based on the above, the Sole Arbitrator found that the CAS did not have jurisdiction to hear and decide the present dispute.

In accordance with the CAS Statutes, the agent challenged the CAS ruling before the Swiss Supreme Court. However, the latter did not render a ruling, because the agent requested discontinuance of the proceedings. Hence, the CAS decision became final and conclusive.

As a consequence, the agent returned to the path of ordinary civil and commercial court jurisdiction. He filed a claim before the Thessaloniki Court of First Instance. The team challenged the jurisdiction of Greek courts, invoking the arbitration clause stipulated in the agreement. In a rather superficial fashion, the Thessaloniki court ordered the stay of proceedings, and referred the case to the FIFA Dispute Resolution Chamber. The agent lodged an appeal.

The Thessaloniki Court of Appeal quashed the first instance judgment by applying domestic rules of arbitration. It considered that, under the circumstances above, the arbitration clause has lost its validity.

In addition, it dismissed a fresh plea by the Team, by virtue of which the dispute should be tried by the Financial Dispute Resolution Committee of the Hellenic Football Federation (HFF). The court invoked Article 1 Para 3 of the HFF Football Agents Statutes, which has a similar wording to that of Art. 1 of FIFA Players’ Agents Regulations (see above under I).

As a next line of defence, the Team pleaded a set off the claim by way of defence with respect to two costs orders issued against the agent by the CAS and the Swiss Supreme Court respectively. The Thessaloniki CoA dismissed the defence, stating that a set off is not possible, because the orders were not declared enforceable in Greece. Following the above, the court examined the case on the merits, applying Greek law. It recognized that the Team ought to compensate the Agent in full satisfaction of the claim.

Notwithstanding that, in light of the evidence produced, the outcome of the judgment was correct, the court started and finished its examination by omitting any reference to provisions of International Commercial Arbitration and Private International Law. This proves yet another time that courts prefer to stick to their national comfort space, defying any international rules applicable in Greece by virtue of ratification or direct application.

In particular, the court failed to refer to the rules of the 1999 Greek law on International Commercial Arbitration, i.e. the UNCITRAL Model Law on Arbitration, although the case was falling under its scope.  In addition, the reasoning concerning the costs orders is not free of doubt: Incidental recognition of foreign judgments is regulated under the Lugano Convention; hence, the Swiss Supreme Court costs order should have been taken into account. Things are a bit complicated in regards to the CAS costs order. Incidental recognition of foreign arbitral awards is not regulated in the 1958 New York Convention. However, Article III of the Convention states that ‘Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon’. Article 903 Greek Code of Civil Procedure states that a foreign arbitral award is recognized automatically, if the requirements set for recognition are met. Hence, incidental recognition of the CAS costs order was also possible.

Finally, bearing in mind the cross-border nature of the dispute, the court could have examined the issue of applicable law under the scope of the Rome I Regulation. In fact, Article 4(1)(b) provides that, in similar cases, the law applicable is the law of the country of the habitual residence of the service provider. However, it appears that both litigants referred to provisions of Greek law in their briefs. Hence, the court considered that the parties tacitly agreed for the application of domestic law.