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IN [2019] EWCOP 56 QD, Cobb J in the Court of Protection applied the Hague Convention on the International Protection of Adults to a removal from Spain of an adult father suffering from Lewy Body Dementia, a progressive neurodegenerative dementia, without consent of the new wife. by the children of his first marriage. Following the removal the children seek an order that he reside at a care home in England, that he not return to Spain, and that he have only supervised contact with his wife.

Cobb J decided that the English courts do not have jurisdiction given that in his judgment the father is habitually resident in Spain, with at 28-29 a list of the reasons leading to his conclusion (it includes a negative view on the removal ‘by stealth’, as well as particular emphasis on the father’s expressed will to live in Spain when he was not yet incapacitated). The common law doctrine of necessity does not alter this as alternative, less drastic measures could and should have been sought first (such as alerting Spanish social services; at 29).

The judge did make use of his limited urgency jurisdiction to issue a ‘protective measures’ order which provides for the father to remain at and be cared for at home he resides in, and to continue the authorisation of the deprivation of his liberty there only until such time as the national authorities in Spain have determined what should happen next. It is for the Spanish administrative or judicial authorities to determine the next step, which may of course be to confer jurisdiction on the English courts to make the relevant decision(s).

Geert.

The Permanent Bureau of the Hague Conference on Private International Law is seeking two legal officers. Candidates are expected to possess, among others, two years of relevant full-time professional experience (e.g., in practice, government, academia, IGOs or NGOs). They must also be nationals of Member States of the Conference.

Duties include general assistance in various areas of the work programme of the Conference, the areas of priority being international commercial litigation / civil procedure and child support (maintenance) matters.

One-year contracts are offered, starting in May 2020.

The deadline for applications is 25 March 2020 (12.00 a.m. CET).

Further information is available here.

Yesterday (4 March 2020) Viet Nam acceded to the HCCH Evidence Convention and the Philippines acceded to the HCCH Service Convention.  Ukraine signed the HCCH Judgments Convention.

The HCCH Evidence Convention will enter into force for Viet Nam on 3 May 2020. Pursuant to article 39 of the Evidence Convention, the accession will have effect only as regards the relations between Viet Nam and such Contracting States as will have declared their acceptance of the accession. Accordingly, this is a semi-open Convention similar to the HCCH Child Abduction Convention.

In the absence of any objection pursuant to its article 28, the HCCH Service Convention will enter into force for the Philippines on 1 October 2020. No objection has ever been made under the Service Convention (so far).

Ukraine has signed the HCCH Judgments Convention in accordance with its article 24. In order to consent to be bound by the treaty, Ukraine needs to deposit an instrument of ratification. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The HCCH Judgments Convention is not yet in force. In accordance with article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently two signatory States: Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

The HCCH news item is available here.

Yesterday (4 March 2020) Viet Nam acceded to the HCCH Evidence Convention and the Philippines acceded to the HCCH Service Convention.  Ukraine signed the HCCH Judgments Convention.

The HCCH Evidence Convention will enter into force for Viet Nam on 3 May 2020. Pursuant to article 39 of the Evidence Convention, the accession will have effect only as regards the relations between Viet Nam and such Contracting States as will have declared their acceptance of the accession. Accordingly, this is a semi-open Convention similar to the HCCH Child Abduction Convention.

In the absence of any objection pursuant to its article 28, the HCCH Service Convention will enter into force for the Philippines on 1 October 2020. No objection has ever been made under the Service Convention (so far).

Ukraine has signed the HCCH Judgments Convention in accordance with its article 24. In order to consent to be bound by the treaty, Ukraine needs to deposit an instrument of ratification. In the meantime, a signatory State has the obligation not to defeat the object and purpose of a treaty prior to its entry into force (article 18 of the UN Vienna Convention on the Law of Treaties).

The HCCH Judgments Convention is not yet in force. In accordance with article 28: “This Convention shall enter into force on the first day of the month following the expiration of the period during which a notification may be made in accordance with Article 29(2) with respect to the second State that has deposited its instrument of ratification, acceptance, approval or accession referred to in Article 24.”

There are currently two signatory States: Uruguay and Ukraine. The act of signing a treaty does not count towards the timeline specified in article 28 of the HCCH Judgments Convention as it is not an instrument of ratification, acceptance, approval or accession.

The HCCH news item is available here.

Johnny Hallyday, born Jean-Philippe Smet, died in 2017 age 74. Over a career of 57 years, he released more than 80 albums and gave over 3200 concerts. He was nicknamed the French Elvis, l’idole des jeunes. Over a million people filled the streets of Paris for his funeral.

Although he was known to spend a lot and to tour constantly to maintain his lifestyle, Johnny had quite some assets when he died. In addition to the royalties he would receive each year, he owned a house near Paris, a house in the French Carribean and two properties in California (one in Pacific Palisades in Los Angeles, one in Santa Monica). He also owned a number of luxury cars and motorbikes.

The singer had married several times and had many affairs. In 1965, he married French singer Sylvie Vartan, with whom he had a son, David.  In the early 1980s, he dated French actress Nathalie Baye and had a daughter, Laura. David Hallyday became a singer, Laura Smet an actress (picture).

Finally, in 1996, he was married to French model Laeticia Boudou by Mayor Nicolas Sarkozy. In the 2000s, they adopted two girls, Jade and Joy.

In 2014, Johnny wrote several wills. In the first will, he declared that he resided at his home in Los Angeles and that he donated the entirety of his estate to his last wife Laeticia pursuant to Californian law or, should she die before or with him, to his two adopted daughters, Joy and Jade. But he then wrote a new will whereby he transferred all his assets to a trust established in the U.S. and appointed his wife as executrix of the will.

Obviously, the immediate consequence of the will was that his two first children would not receive anything from their father. This would go against one of the fundamental principle of the French law of succession, namely that each of the four children was entitled to receive 18% of the entire estate. But was French law applicable?

In February 2018, David and Laura initated proceedings against Laeticia and her two adopted daughters in Nanterre, France, seeking a declaration that the (last) will of their father was null and void under French law. They also sought and obtained protective measures freezing a number of the assets in dispute.

The first issue for the French court was to decide whether it had jurisdiction under the Succession Regulation. This meant assessing where the habitual residence of the deceased at the time of his death was. Scholars have long identified that a drawback of this connecting factor is that it is very difficult to apply to artists who travel all the time and have homes in different countries. Laeticia claimed that her husband (and she and her daughters) resided habitually in Los Angeles; David and Laura that he habitually resided in France.

There is no doubt that Johnny spent a lot of time in both places. His adopted daughters were schooled at the Lycee Français of Los Angeles and, as many French stars, he liked the fact that he could live an anonymous life in the U.S.  But he also spent a lot of time in France. He was a French idol, and his concerts were essentially given in France. He died at his home in Paris.

The Preamble to the Succession Regulation proposes alternative methods to assess residence. Recital 23 provides that, in principle, the test should be whether the deceased has a “close and stable relationship” with the state concerned. However, Recital 24 states that, in certain cases where the deceased lived in several states alternatively, it could be difficult to assess habitual residence, and it would thus be legitimate to take into account nationality and the location of the main assets of the deceased. Laeticia relied on Recital 23, David and Laura relied on Recital 24.

The Court would ultimately find that Recital 23 controlled, but decide in favour of David and Laura.

In a judgment delivered on 28 May 2019, the Court conducted an overall assessment of the situation.

It first noted that the issue was the last habitual residence of the deceased. A number of facts were reported dating decades earlier, such as the fact that, when Sylvie Vartan, the first wife of Johnny, lived in LA with young David (now 53), the rockstar would spend most his time in France. The Court ruled that it would ignore such references to events older than 10 years.

The court started with the period 2007-2012 to insist on the fact that, during that time, Johnny declared, in particular in various wills, that he resided in Switzerland and wished to subject his succession to Swiss law. The court noted that, while the purpose of such declarations were likely tax related, it did not change the fact that under Swiss tax law, the tax status that Johnny wanted required to have significant ties with Switzerland.

The court then moved to the time period after 2012, for which much more factual evidence of the presence of the rockstar on each of the two territories was available. The Reason why was that Johnny and his last wife had opened an instragram account in 2012. David used the instagram account of his father to provide a detailed account of the time the latter spent in France and elsewhere since 2012. The result was that the rockstar spent at least 151 days in France in 2015, at least 168 days in France in 2016, and that he stayed in France in the last 8 months of his life in 2017. With modern technology, finding out where VIPs spent most of their time might not be so difficult, after all.

Finally, the court conducted a subjective analysis and assessed the conditions and reasons of the presence of the rockstar in each country. The court recognised that it was not easy to assess the state of mind of the deceased relating to his stays in each of the two countries. However, the court agreed with the proposition that it was not possible to dissociate the artist from the private person, and thus found that the decisive factor was that the singer loved to perform, and that his life was entirely directed towards this activity. He toured constantly, including in the last three years of his life, and he did so almost exclusively in France.

The court concluded that Johnny Hallyday did not have alternate residences, but only one residence, in the last years of his life. He thus fell within the scope of Recital 23 of the Preamble, not Recital 24. Quite a remarkable conclusion : although the two youngest kids of the rockstar were schooled in the U.S. and he spent time there each year, he was found to have no residence there.

Laeticia immediately lodged an appeal againt the judgment. But she waived it in November 2019.

In 2018, the trust established by the rockstar to the profit of his wife initiated proceedings in the Superior Cour of California in Los Angeles against David and Laura seeking an order to transfer various assets of the rockstar to the trust, including rights over songs, funds in a bank account, four Harley Davidsons and three luxury cars. David and Laura have filed a motion to stay or dismiss proceedings on the ground of comity and forum non conveniens.

It seems that the case puzzled the LA Court. After being postponed four times, the case was postponed again on 4 February 2020, to May 2020. I could not access the documents filed by the parties, but the popular press has reported that Justice May said during one of the hearings that he found the case “very complex”, that he did not see the jurisdiction of the French court as necessarily exclusive of the jurisdiction of his own court, and that he wondered about the base of the rights of the widow under French law: “We are talking about 25%, but the big question is, 25% of what?”

What is the territorial reach of the Succession Regulation? If it purports to reach assets situated in California, does California law allow it? If it does not, should the shares of each of the children be calculated on the French/European estate only?

All very interesting questions. We very much hope Justice May answers them.

Singapore and Fiji have each deposited instruments of ratification at the UN Headquarters on 25 February 2020. The UN Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation (see previous post here). To date, fifty-two States have signed the Convention. It will enter into force six months after the deposit of three instruments of ratification. The list of signatory States may be found here.

Singapore and Fiji have each deposited instruments of ratification at the UN Headquarters on 25 February 2020. The UN Convention on International Settlement Agreements Resulting from Mediation (“Singapore Convention on Mediation”) facilitates the cross-border enforcement of international commercial settlement agreements reached through mediation (see previous post here). To date, fifty-two States have signed the Convention. It will enter into force six months after the deposit of three instruments of ratification. The list of signatory States may be found here.

In Bi Xiaoqing v China Medical Technologies [2019] SGCA 50, the Singapore Court of Appeal provided clarity on the extent of the court’s power to grant Mareva relief in support of foreign proceedings.

The first and second respondents were companies incorporated in the Cayman Islands and the British Virgin Islands. The action was pursued by the liquidators of the first respondent against the appellant, a Singapore citizen, who was formerly involved in the management of the respondents and allegedly misappropriated funds from them.

Hong Kong proceedings were commenced first and a worldwide Mareva injunction was granted against, inter alia, the appellant. The terms of the Hong Kong injunction specifically identified assets in Singapore.

Two days after the Hong Kong injunction was obtained, the respondents commenced action in Singapore and applied for a Mareva injunction to prevent the defendants from disposing of assets in Singapore. The action in Singapore covered substantially the same claims and causes of action as those pursued in Hong Kong. After the grant of a Mareva injunction on an ex parte basis, the respondents applied to stay the Singapore proceedings pending the final determination of the Hong Kong proceedings on the basis that Hong Kong was the most appropriate forum for the dispute. The High Court granted the stay and confirmed the Mareva injunction in inter partes proceedings.

The issues before the Court of Appeal were: (1) whether the court had the power to grant a Mareva injunction and (2) whether it should grant the Mareva injunction. In other words, the first question dealt with the existence of the court’s power to grant a Mareva injunction and the second question dealt with the exercise of the power.

The Singapore court’s power to grant an injunction can be traced back to section 4(10) of the Civil Law Act which is in these terms: “A Mandatory Order or an injunction may be granted or a receiver appointed by an interlocutory order of the court, either unconditionally or upon such terms and conditions as the court thinks just, either unconditionally or upon such terms and conditions as the court thinks just, in all cases in which it appears to the court to be just or convenient that such order should be made.” The Court of Appeal clarified that section 4(10) of the Civil Law Act should be read as conferring on the court the power to grant Mareva injunctions, even when sought in support of foreign proceedings. Two conditions had to be satisfied: (1) the court must have in personam jurisdiction over the defendant; and (2) the plaintiff must have a reasonable accrued cause of action against the defendant in Singapore.

Given the stay of the Singapore proceedings, the Court of Appeal had to consider if the Singapore court still retained the power to grant Mareva relief. There had been conflicting first instance decisions on this point: see Petroval SA v Stainsby Overseas Ltd [2008] 3 SLR(R) 856 cf Multi-Code Electronics Industries (M) Bhd v Toh Chun Toh Gordon [2009] 1 SLR(R) 1000. The Court of Appeal preferred the Multi-Code approach, taking the view that the court retains a residual jurisdiction over the underlying cause of action even when the action is stayed. This residual jurisdiction grounds the court’s power to grant a Mareva injunction in aid of foreign proceedings. Further, a party’s intentions on what it would do with the injunction had no bearing on the existence of the court’s power to grant the Mareva injunction.

Party intentions, however, was a consideration under the second question of whether the court should exercise its power to grant the injunction. Traditionally, a Mareva injunction is granted to safeguard the integrity of the Singapore court’s jurisdiction over the defendant so that, if judgment is rendered against the defendant, that jurisdiction is not rendered toothless. The court commented that where it appears that the plaintiff is requesting the court to assume jurisdiction over the defendant for the collateral purpose of securing and safeguarding the exercise of jurisdiction by a foreign court, the court should not exercise its power to grant Mareva relief. On the facts, the court held that it could not be said that the respondents had such a collateral purpose as there was nothing on the facts to dispel the possibility that the respondents may later request for the stay to be lifted. This conclusion suggests that the court would generally take a generous view of litigation strategy and lean towards exercising its power in aid of foreign court proceedings.

Given the requirement that the plaintiff must have a reasonable accrued cause of action against the defendant in Singapore, a Mareva injunction is not free-standing relief under Singapore law. The court emphasized that a Mareva injunction in aid of foreign court proceedings is still ultimately premised on, and in support of, Singapore proceedings. This stance means that service in and service out cases may end up being treated differently. If the defendant has been served outside of jurisdiction and successfully sets aside service of the writ, the court would no longer have in personam jurisdiction over the defendant and there would no longer be an accrued cause of action in Singapore on which to base the application for a Mareva injunction. See for example, PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] SGHC 64, [2018] 4 SLR 1420 (see previous post here). On the other hand, if the defendant had been served as of right within jurisdiction and the action is stayed (as in the present case), the court retains residual jurisdiction to grant a Mareva injunction.

After a restrictive court ruling in relation to the court’s power to grant free-standing Mareva relief in aid of foreign arbitrations, the legislature amended the International Arbitration Act to confer that power to the courts. It remains to be seen if the legislature would act similarly in relation to the court’s power to grant free-standing Mareva relief in aid of foreign court proceedings.

To a certain extent, this lacuna is plugged by the recent amendments to the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) (see previous post here). Under the amended REFJA, a judgment includes a non-monetary judgment and an interlocutory judgment need not be “final and conclusive”. In the Parliamentary Debates, the minister in charge made the point that these specific amendments were intended to enable the court to enforce foreign orders such as Mareva injunctions. Only judgments from gazetted territories qualify for registration under the REFJA. To date, HK SAR is the sole listed gazetted territory although it is anticipated that the list of gazetted territories will expand in the near future. While the respondents had in hand a Hong Kong worldwide Mareva injunction, the amendments to REFJA only came into force after the Singapore action was commenced and judgment handed down.

The judgment may be found at here.

In Bi Xiaoqing v China Medical Technologies [2019] SGCA 50, the Singapore Court of Appeal provided clarity on the extent of the court’s power to grant Mareva relief in support of foreign proceedings.

The first and second respondents were companies incorporated in the Cayman Islands and the British Virgin Islands. The action was pursued by the liquidators of the first respondent against the appellant, a Singapore citizen, who was formerly involved in the management of the respondents and allegedly misappropriated funds from them.

Hong Kong proceedings were commenced first and a worldwide Mareva injunction was granted against, inter alia, the appellant. The terms of the Hong Kong injunction specifically identified assets in Singapore.

Two days after the Hong Kong injunction was obtained, the respondents commenced action in Singapore and applied for a Mareva injunction to prevent the defendants from disposing of assets in Singapore. The action in Singapore covered substantially the same claims and causes of action as those pursued in Hong Kong. After the grant of a Mareva injunction on an ex parte basis, the respondents applied to stay the Singapore proceedings pending the final determination of the Hong Kong proceedings on the basis that Hong Kong was the most appropriate forum for the dispute. The High Court granted the stay and confirmed the Mareva injunction in inter partes proceedings.

The issues before the Court of Appeal were: (1) whether the court had the power to grant a Mareva injunction and (2) whether it should grant the Mareva injunction. In other words, the first question dealt with the existence of the court’s power to grant a Mareva injunction and the second question dealt with the exercise of the power.

The Singapore court’s power to grant an injunction can be traced back to section 4(10) of the Civil Law Act which is in these terms: “A Mandatory Order or an injunction may be granted or a receiver appointed by an interlocutory order of the court, either unconditionally or upon such terms and conditions as the court thinks just, either unconditionally or upon such terms and conditions as the court thinks just, in all cases in which it appears to the court to be just or convenient that such order should be made.” The Court of Appeal clarified that section 4(10) of the Civil Law Act should be read as conferring on the court the power to grant Mareva injunctions, even when sought in support of foreign proceedings. Two conditions had to be satisfied: (1) the court must have in personam jurisdiction over the defendant; and (2) the plaintiff must have a reasonable accrued cause of action against the defendant in Singapore.

Given the stay of the Singapore proceedings, the Court of Appeal had to consider if the Singapore court still retained the power to grant Mareva relief. There had been conflicting first instance decisions on this point: see Petroval SA v Stainsby Overseas Ltd [2008] 3 SLR(R) 856 cf Multi-Code Electronics Industries (M) Bhd v Toh Chun Toh Gordon [2009] 1 SLR(R) 1000. The Court of Appeal preferred the Multi-Code approach, taking the view that the court retains a residual jurisdiction over the underlying cause of action even when the action is stayed. This residual jurisdiction grounds the court’s power to grant a Mareva injunction in aid of foreign proceedings. Further, a party’s intentions on what it would do with the injunction had no bearing on the existence of the court’s power to grant the Mareva injunction.

Party intentions, however, was a consideration under the second question of whether the court should exercise its power to grant the injunction. Traditionally, a Mareva injunction is granted to safeguard the integrity of the Singapore court’s jurisdiction over the defendant so that, if judgment is rendered against the defendant, that jurisdiction is not rendered toothless. The court commented that where it appears that the plaintiff is requesting the court to assume jurisdiction over the defendant for the collateral purpose of securing and safeguarding the exercise of jurisdiction by a foreign court, the court should not exercise its power to grant Mareva relief. On the facts, the court held that it could not be said that the respondents had such a collateral purpose as there was nothing on the facts to dispel the possibility that the respondents may later request for the stay to be lifted. This conclusion suggests that the court would generally take a generous view of litigation strategy and lean towards exercising its power in aid of foreign proceedings.

Given the requirement that the plaintiff must have a reasonable accrued cause of action against the defendant in Singapore, a Mareva injunction is not free-standing relief under Singapore law. The court emphasized that a Mareva injunction in aid of foreign court proceedings is still ultimately premised on, and in support of, Singapore proceedings. This stance means that service in and service out cases may end up being treated differently. If the defendant has been served outside of jurisdiction and successfully sets aside service of the writ, there would no longer be an accrued cause of action in Singapore on which to base the application for a Mareva injunction. See for example, PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] SGHC 64, [2018] 4 SLR 1420 (see previous post http://conflictoflaws.net/2018/mareva-injunctions-under-singapore-law/). On the other hand, if the defendant had been served as of right within jurisdiction and the action is stayed (as in the present case), the court retains residual jurisdiction to grant a Mareva injunction.

After a restrictive court ruling in relation to the court’s power to grant free-standing Mareva relief in aid of foreign arbitrations, the legislature amended the International Arbitration Act to confer that power to the courts. It remains to be seen if the legislature would act similarly in relation to the court’s power to grant free-standing Mareva relief in aid of foreign proceedings.

To a certain extent, this lacuna is plugged by the recent amendments to the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) (see previous post http://conflictoflaws.net/2019/reform-of-singapores-foreign-judgment-rules/). Under the amended REFJA, a judgment includes a non-monetary judgment and an interlocutory judgment need not be “final and conclusive”. In the Parliamentary Debates, the minister in charge made the point that these specific amendments were intended to enable the court to enforce foreign orders such as Mareva injunctions. Only judgments from certain gazetted territories qualify for registration under the REFJA. To date, HK SAR is the sole listed gazetted territory although it is anticipated that the list of gazetted territories will expand in the near future. While the respondents had in hand a Hong Kong worldwide Mareva injunction, the amendments to REFJA only came into force after the case was decided.

The judgment may be found at: https://www.supremecourt.gov.sg/docs/default-source/module-document/judgement/ca-188-2018-j—bi-xiaoqiong-pdf.pdf

https://www.bailii.org/ew/cases/EWCA/Civ/2020/144.pdf

I reviewed [2018] EWHC 3506 (QB) Kalma v African Minerals et al in an earlier post. It essentially entails vicarious liability of UK-incorporated companies (jurisdiction firmly settled therefore) for human rights abuses committed by Sierra Leone police (SLP), who ensured security at the defendants’ mine. All claims were held to have failed and the Court of Appeal in [2020] EWCA Civ 144 has confirmed same on 17 February (a little before the important SCC ruling in Nevsun).

The High Court’s discussion of the factual involvement of the companies with SLP activities, required to establish vicarious liability, as I noted at the time has echoes of the discussion on the level of oversight required for mother companies to be held liable for subsidiaries’ actions (such as e.g, in Apartheid, Shell (in The Netherlands) or of course in Vedanta). (The case otherwise does not raise the kind of jurisdictional or applicable law issues readers often find on this blog).

Of most relevance for the corporate social responsibility (CSR) issues are the grounds of appeal concerning the alleged duty of care owed, discussed at 110 ff: appellants say that the judge wrongly approached this case as a case of “pure omissions” and that, instead, he should have considered the existence of the duty by reference to first principles and, in particular, the three elements identified in Caparo v Dickman, namely foreseeability, proximity and whether or not such a duty was fair, just and reasonable (Ground 3). The appellants also have an alternative case that, if this was a case of pure omissions, the judge should have found that it was one of the recognised exceptions to the rule, namely that it involved the creation of the danger by the respondents themselves (Ground 4). Core factual consideration in all this are the money, vehicles and accommodation provided to the SLP, which the judge had found was common in Sierra Leone.

Coulson LJ reiterated with the judge that the duty of care tenet was one of omission: failure to protect the claimants (the respondents, arguendo, having failed to protect the claimants from the harm caused by the SLP). Extensive analysis of Turner J’s judgment at the High Court found no reason to reach a different conclusion than his.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

On 14 of February 2020 a new law undermining the independence of judiciary in Poland (a so-called “muzzle law“) entered into force.

The Act of Law of 20 December 2019 bars judges from, among other things, contesting the status of other judges or the legality of their appointment (an English version of the draft Act, almost identical to the Act as adopted, is available here) .

The act is a reaction to (i) the CJEU judgment of 19 November 2019 in the AK case, by which the Court asked Polish judges to verify the conformity of the new Disciplinary Chamber of the Supreme Court with EU law, and (ii) the subsequent judgment of another chamber of the Polish Supreme Court of 5 December 2019 finding that the Disciplinary Chamber does not comply with EU law (an English version can be found here).

According to the new Act, judgments corresponding with the one laid down by Supreme Court on 5 December 2019 would be prohibited. Defecting judges can be removed from the profession.

The law has provoked strong reactions from the European institutions already at the stage of the legislative process.

The Vice-President of the European Commission, Věra Jourová, wrote on 19 December 2019 a letter to the Polish President, the Prime Minister and the Presidents of both chambers of the Parliament. The letter states that the rules of the new legislation “touch upon matters such as judicial independence, further raising the Commission’s existing concerns in this area”.

In the letter, Ms Jourová also encouraged “the Polish authorities to consult the Council of Europe’s Venice Commission on this draft legislation”, and invited “all State organs not to take forward the proceedings on the new draft legislation before carrying out all the necessary consultations”.

On 11 January 2020 a “March of 1000 Gowns” demanding “the right to independence, the right to Europe” took place in Warsaw. Polish judges supported by 50 judges from other European countries, together with thousands of citizens, protested against the draft law.

The Venice Commission adopted on 16 of January 2020 an urgent joint opinion on the draft law. The remark is made in the opinion that, by virtue of some of the amendments to the law, “the judges’ freedom of speech and association is seriously curtailed”: Polish courts will be effectively prevented from examining whether other courts within the country are ‘independent and impartial’ under the European rules”.

On 28 January 2020, the Parliamentary Assembly of the Council of Europe (PACE) opened a monitoring procedure for Poland over the functioning of its democratic institutions and the rule of law. In its resolution 2316(2020) it declared that recent reforms in Poland “severely damage the independence of the judiciary and the rule of law”.

The law was adopted anyway. An open question is what impact it will  have on the mutual trust and the mutual recognition of judgments in the European Union. Polish ‘reforms’ resulted already in the rebuttal of the presumption of mutual trust in the context of recognition of judgments in criminal matters (judgment of 25 July 2018 in the LM case, analysed here). But the restriction of the independence of the judiciary has a potential impact on all acts providing for the mutual recognition of judgments, in both criminal and civil matters.

It can be particularly challenging for judges applying norms of EU Private International Law. 

Recognition of civil judgments given by a court or tribunal of a Member State should take into account that the CJEU treats a “court” as an autonomous concept of EU law.

The CJEU elaborated on this notion, among other rulings, in Ibrica Zulfikarpašić (§43) and Pula Parking (§53), where it stated that due to the principle of mutual trust, EU law requires “that judgments the enforcement of which is sought in another Member State have been delivered in court proceedings offering guarantees of independence and impartiality”.

The above-mentioned doubts expressed by the European Commission and PACE appear to challenge that requirement.

Photo: Courtesy of Jakub Włodek / Agencja Gazeta

Dário Moura Vicente (University of Lisbon) has published the second edition of his monograph on international intellectual property (A Tutela Internacional da Propriedade Intelectual).

The books covers the traditional issues of jurisdiction and applicable law. It also discusses the merits and limits of international harmonisation in the field, and extra-judicial remedies.

More details are available here.

The last issue of the Revue critique de droit international privé for 2019 has just been released. It contains numerous casenotes and one article by Poul F. Kjaer (Copenhagen Business school) on the sociological idea of connectivity and private international law (L’idée de “connectivité” et le droit international privé).

The article is a revised translation of a paper by the same author titled Constitutionalizing Connectivity: the Constitutional Grid of World Society.

Global law settings are characterized by a structural pre‐eminence of connectivity norms, a type of norm which differs from coherency or possibility norms. The centrality of connectivity norms emerges from the function of global law, which is to increase the probability of transfers of condensed social components, such as economic capital and products, religious doctrines, and scientific knowledge, from one legally structured context to another within world society. This was the case from colonialism and colonial law to contemporary global supply chains and human rights. Both colonial law and human rights can be understood as serving a constitutionalizing function aimed at stabilizing and facilitating connectivity. This allows for an understanding of colonialism and contemporary global governance as functional, but not as normative, equivalents.

A full table of contents is available here.

Readers of our blog may be pleased to learn (if they have not already noticed) that since the beginning of the year, all our posts are automatically published to our brand-new Twitter account.

Whether you want to share and discuss our content or simply to receive all our latest posts directly in your Twitter feed, feel free to follow @PrIL_Blog!

Readers of our blog may be pleased to learn (if they have not already noticed) that since the beginning of the year, all our posts are automatically published to our brand-new Twitter account.

Whether you want to share and discuss our content or simply to receive all our latest posts directly in your Twitter feed, feel free to follow @PrIL_Blog!

News item by Dr Orsolya Toth, Assistant Professor in Commercial Law, University of Nottingham

The University of Nottingham Commercial Law Centre will hold its inaugural Nottingham Arbitration Talk on Wednesday 18 March at 2 pm.  The Centre is delighted to welcome distinguished speakers to the event drawn from both academia and practice.  The Keynote address will be given by Professor Sir Roy Goode, Emeritus Professor of Law at the University of Oxford.  The speaker panel will host Angeline Welsh (Essex Court Chambers), Timothy Foden (Lalive) and Dr Martins Paparinskis (University College London).  

The theme of the event will be ‘Procedure and Substance in Commercial and Investment Treaty Arbitration’.  It will address current and timeless issues, such as the influence of procedure on the parties’ substantive rights, the recent phenomenon of ‘due process paranoia’ in arbitration and the current state of the system of investment treaty arbitration.  For detailed programme and registration please visit https://unclcpresents.eventbrite.co.uk

News item by Dr Orsolya Toth, Assistant Professor in Commercial Law, University of Nottingham

The University of Nottingham Commercial Law Centre will hold its inaugural Nottingham Arbitration Talk on Wednesday 18 March at 2 pm.  The Centre is delighted to welcome distinguished speakers to the event drawn from both academia and practice.  The Keynote address will be given by Professor Sir Roy Goode, Emeritus Professor of Law at the University of Oxford.  The speaker panel will host Angeline Welsh (Essex Court Chambers), Timothy Foden (Lalive) and Dr Martins Paparinskis (University College London).  

The theme of the event will be ‘Procedure and Substance in Commercial and Investment Treaty Arbitration’.  It will address current and timeless issues, such as the influence of procedure on the parties’ substantive rights, the recent phenomenon of ‘due process paranoia’ in arbitration and the current state of the system of investment treaty arbitration.  For detailed programme and registration please visit https://unclcpresents.eventbrite.co.uk

A short post to flag the French Conseil d’Etat’s final ruling in which on 7 February it held that organisms obtained via in-vitro mutagenesis techniques should be subject to GMO regulation and that consequently as EurActiv summarise the French authorities must update regulation to include such crops within six months, which includes identifying the agricultural plant varieties which have been obtained by these techniques and subjecting them to the assessments applicable to GMOs.

The ruling follows the CJEU’s mutagenesis finding in C-528/16, reviewed at the time on Steve Peers’ blog here and subsequently by KJ Garnett in RECIEL here. The ruling put agro-bio industry narrators in a spin but in essence is an utterly logical consequence of EU law.

Geert.

No hearings on requests for a preliminary ruling concerning private international law are scheduled for March 2020. Conversely, several opinions and one judgment will be delivered.

On March 24, AG Tanchev (Bulgaria) will give his Opinion in JE. The case concerns the interpretation of Article 10 of the Rome III Regulation on the law applicable to divorce and legal separation. The issue is whether the expression ‘the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce’ is to be interpreted as merely referring to a situation where the applicable foreign law makes no provision for any form of divorce, or rather as including a situation where the applicable foreign law permits divorce, but does so in extremely limited circumstances.

The original action was brought in Romania in 2016. The applicant filed a petition for divorce claiming that the parties’ marriage should be dissolved, the applicant should return to using the name borne prior to the marriage, parental responsibility in respect of the minor child should be exercised jointly, the minor child should reside with the mother in Italy, and the defendant should be required to pay maintenance and the costs of proceedings.

After some hesitations regarding the general jurisdiction of the Romanian courts and the specific venue, the point was settled and the discussion moved to the applicable law under the Rome III Regulation. According to the court, the matter was governed by Italian law pursuant to Article 8(a) of the Regulation, since the parties were habitually resident in Italy. The court considered that the criteria laid down in Article 8(a) are framed in a hierarchical manner: if the conditions of the first criterion are satisfied, there is no need to look at the following ones.

The national court considered that that the grounds for divorce raised by the applicant are not available under the Italian legislation on divorce, and that that grounds different to those foreseen by the provision can be applied for only where there has been a legal separation of the spouses, which must be established or ordered by a court, and that the delay prescribed by the said legislation has passed since the legal separation itself. Since no provision is made for legal separation proceedings under Romanian law, the Romanian court concluded that those proceedings must be conducted before the Italian courts and therefore any application to that effect made before the Romanian courts is inadmissible.

The applicant lodged an appeal against that judgment, pointing out that, from her point of view, the criteria provided for in Article 8 of the Rome III Regulation are alternative in nature. She also stated that in the light of Italian legislation, the first sentence of Article 10 of the Rome III Regulation is applicable in the case (in my view, if I understand correctly the arguments of the Romanian court, she could have added that the absence of provisions on separation under Romanian law does not allow the court to declare itself incompetent).

The judgment in Primera Air Scandinavia is scheduled for 26 March 2020. The request for a preliminary ruling comes from District Court of Prague. It concerns the interpretation of in Article 5(1) and Articles 15 to 17 of the Brussels I Regulation.

The issue submitted to the CJEU arose in the context of an action for compensation brought under Regulation (EC) No 261/2004 by a passenger domiciled in the Czech Republic against an airline established in Denmark, on account of the long delay of a flight operated by that airline, but sold to that passenger, in conjunction with accommodation, by a Czech travel agency.

The opinion of AG Saugmandsgaard Øe (Denmark), of 7 November 2019, proposes the CJEU to answer that Article 5(1) covers an action for compensation brought by a passenger against the operating air carrier, even though those parties had not entered into a contract between them, and although that flight formed part of a package of services supplied under a contract entered into between the applicant and a third party.

On the contrary, Articles 15 to 17 of that regulation must be interpreted as meaning that they are not applicable to such an action. No surprise, considering the previous case law of the Court.

The Opinion of AG Campos Sánchez-Bordona regarding the EE case, on the Succession Regulation, will also be issued on 26 March 2020.

The Supreme Court of Lithuania referred six question to the CJEU. Questions number 2 and 3, on the characterization of notaries as “courts” for the purposes of the Regulation, have already been addressed in the case of WB, still pending at the time of the referral.

By the remaining questions, the Lithuanian court conveys to the CJEU doubts related to the cross-border nature of a given succession (linked to that, to the applicability of the regulation when, in the light of the circumstances, its application would not facilitate the assertion of the rights of the heir, but rather the contrary); to the choice of law (implicit, and made during the transitional period), and to the choice of court.

The case concerned the estate of a Lithuanian national, married to a German national, who had moved to live in Germany together with her son (EE, also a Lithuanian national).

While living in Germany, EE’s mother had drawn up a will at a notary office in Kaunas (Lithuania), whereby she designated EE as the heir to her entire estate – an apartment in the same country. After the death of his mother, E.E. moved back to Lithuania, where he contacted the notary office in the City of Kaunas requesting the succession procedure be initiated, and the issuance of a certificate of succession rights. The notary refused to perform the notarial act, for, according to the Succession Regulation, the habitual place of residence of the testatrix was Germany. EE challenged the notary’s refusal before the court of first instance.

The Kaunas district court ruled in favour of EE, annulled the notary’s decision refusing to perform the notarial act, and ordered the notary to open the succession procedure in accordance with the place where the property was registered and to issue a certificate of rights of succession to the estate of the deceased mother.

The court stated that, even though the appellant’s mother had declared her departure to Germany, she was still a Lithuanian national and, on the day of her death, owned immovable property in Lithuania; she had not severed her links with Lithuania, and had visited the country and drawn up her will there.

The Kaunas regional court set aside the ruling of the court of first instance following an appeal lodged by the notary and turned down the appellant’s application. Among other, it stated that the court of first instance had, in annulling the notary’s decision under challenge, unreasonably relied on general principles. The appellant lodged an appeal in cassation against this judgment.

AG Saugmandsgaard Øe’s Opinion in this case is scheduled for 26 March 2020, as well.

The Dutch referring court asks about the Brussels I bis Regulation and the meaning of “civil and commercial matters” in a case where an international organisation brings an action to (i) lift an interim garnishee order levied in another Member State by the opposing party, and (ii) prohibit the opposing party from levying, on the same grounds, an interim garnishee order in the future and from basing those actions on immunity of execution.

A public hearing was held in Luxembourg on 12 December 2019, where the CJEU learnt that the Dutch Appellate Court had granted immunity of jurisdiction to Shape and JCFB only two days before. The judges and AG wondered whether a reply to the preliminary reference would still be of any use. The Dutch decision on immunity, the request to the CJEU and the hearing in Luxembourg have been addressed by Geert van Calster in his blog, with a last update on January 2020.

Coronavirus outbreak and force majeure certificate

Due to the outbreak, China has adopted a number of public health measures, including closing schools and workplaces, limiting public gatherings, restricting travel and movement of people, screening , quarantine and isolation. At least 48 cities were locked down by 14 Feb 2020. (here) More than two thirds of China’s migrant workers were unable to return to work, (see here) leaving those firms that have restarted operation running below capacity.  

Coronavirus and the emergency measures significantly affect economic activates in China. The China Council for the Promotion of International Trade (CCPIT), a quasi-governmental entity, issued 3,325 force majeure certificates covering the combined contract value of $38.5bn to exempt Chinese companies from their contractual obligations.

Issuing force majeure certificates is a common practice of trade councils or commercial chambers in the world. These certificates are proof of the existence of relevant events that may constitute force majeure and impinge the company’s capacity to perform the contract. The events recorded in the certificates would include the confirmation of coronavirus outbreak, the nature, extent, date and length of governmental order for lockdown or quarantine, the cancellation of any transportation, etc. These certificate, however, are not legal documents and do not have direct executive or legal effects. They only attest the factual details instead of certifying those events are indeed force majeure in law. They are also called ‘force majeure factual certificate’ by the CCPIT. The CCPIT states in its webpage that:

The force majeure factual certificate is the proof of objective, factual circumstances, not the ‘trump card’ to exempt contractual obligations. The CCPIT issues relevant force majeure factual certificates to Chinese enterprises that are unable to perform contracts due to the impact of the new coronavirus epidemic. The certificate can prove objective facts such as delayed resumption of work, traffic control, and limited dispatch of labour personnel. An enterprise can request for delaying performance or termination of the contract based on this certificate, but whether its obligation can be fully or partially exempt depends on individual cases. The parties should take all the circumstances and the applicable law into consideration to prove the causal link between ‘the epidemic and its prevention and control measures’ and the ‘failure to perform’.

Force Majeure in Different Governing Law

The force certificate is thus mainly used to demonstrate to the other party the existence of certain factual difficulties that hamper performance and seek understanding to privately settle the dispute. If the disputes are brought to the court, the court should consider whether the outbreak and the relevant emergency measure constitute force majeure events pursuant to the governing law, treating the force majeure certificate as evidence of fact. There is no international uniform doctrine of force majeure and different countries adopt different doctrines to allocate contractual risk in unforeseeable change of circumstances. China is a member of the UN Convention on the International Sale of Goods (CISG), which shall apply if the other party has its place of business in another contracting state, or the parties choose CISG by agreement. Article 79 of the CISG provides that a party is exempted from paying damages if the breach is due to an impediment beyond its control, and either the impediment could not have been reasonably foreseen at the time of the conclusion of the contract, or the party could not reasonably avoid or overcome the impediment or its consequences. Although the disease outbreak is unforeseeable, it can only be an impediment if it makes performance impossible. Therefore, if the outbreak only makes production more difficult or expensive, it is not an impediment. There is no consensus as to whether an event that makes performance excessively burdensome can also be counted as an impediment in CISG. In addition, the impediment must uncontrollable. If a Chinese firm could not perform its contractual obligation due to the compulsory lockdown ordered by its local government, this event is out of control. The same applies if a firm manufacturing facial masks cannot deliver on time due to government  requisition. On the other hand, when the Chinese State Council announced the extension of the Chinese New Year holiday to 2 Feb 2020, it was not a compulsory ban and if a firm ‘chose’ not to operate during the extension without additional compulsory order from any  authorities, substantive risk of infection in its place of business, or irreparable labour shortage, the impediment may not be considered as uncontrollable. For the same reason, if a company decided to lock down after a worker tested positive for coronavirus in order to reduce the risk of spreading the disease among its workers, without the high risk and with alternative and less extreme prevention measures available, the impossibility to perform may be considered ‘self-inflicted’ instead of ‘uncontrollable’. Consideration should always be given to the necessity and proportionality of the decision. Furthermore, if the local government imposed compulsory prohibition for work resumption to prevent people gathering, a firm cannot claim uncontrollable impediments if working in distance is feasible and possible for the performance of the contract.

If the other party is not located in a CISG contracting state, whether the coronavirus outbreak can exempt Chinese exporters from their contractual obligations depends on the national law that governs the contracts. Most China’s major trade partners are contracting states of CISG, except India, South Africa, Nigeria, and the UK. Chinese law accepts both the force majeure and hardship doctrines. The party that breaches the contract may be discharged of its obligations fully or partially if an unforeseeable, uncontrollable and insurmountable causes the impossibility to perform. (Art 117 of the Chinese Contract Law 1999) The party can also ask for the alternation of contract if un unforeseeable circumstance that is not force majeure makes performance clearly inequitable. (Art 26 of the SPC Contract Law Interpretation (II) 2009) The ‘force majeure factual certificate’ can also be issued if CCPIT considers a event not force majeure but unforeseeable change of circumstances in Art 26 of the Interpretation (II). For example, in Jiangsu Flying Dragon Food Machinery v Ukraine CF Mercury Ltd, CCPIT issued the certificate even after recognising that the poorly maintained electricity system of the manufacturer that was damaged by the rain was not a force majeure event.  In contrast, other national law may adopt a more restrictive standard to exempt parties their obligations in unforeseeable circumstances. In England, for example, the court will not apply force majeure without a force majeure clause in the contract. A more restricted ‘frustration’ may apply instead.

Jurisdiction and Enforcement

In theory, a Chinese court should apply the same approach as other jurisdictions to apply the governing law and treat the force majeure certificates issued by CCPIT as evidence of fact. in practice, Chinese courts may prefer applying Chinese law if the CISG does not apply and the parties do not choose the law of another country, grant more weight to the CCPIT certificate than other courts, and be more lenient to apply the force majeure criteria to support Chinese companies’ claim in relation to the coronavirus outbreak.

Finally, if the dispute is heard in a non-Chinese court or international arbitral tribunal, the judgment holding the Chinese company liable need to be enforced in China unless the Chinese company has assets abroad. Enforcing foreign judgments in China is generally difficult, though there are signs of relaxation. If judgments can be enforced pursuant to bilateral treaties or reciprocity, they may be rejected based on public policy. The question is whether the coronavirus outbreak and the government controlling measures can be public policy. According to the precedents of the Supreme People’s Court, (eg. Tianrui Hotel Investment Co., Ltd. (Petitioner) v. Hangzhou Yiju Hotel Management Co., Ltd. (Respondent), (2010) Min Si Ta Zi 18) breach of mandatory administrative regulations per se is not violation of public policy. But public policy undoubtedly includes public health. If Chinese courts consider the Chinese company should not resume production to prevent spread of disease event without compulsory government order, the public policy defence may be supported.