Flux des sites DIP

A few days ago, the redesigned EAPIL website was launched. Among other things, it features a reserved area for members of the European Association of Private International Law (MyEAPIL). An automated e-mail message was sent to all the 560 members of the Association on 11 March 2024, with their personal login credentials. Several members have […]

The Rail Protocol to the Cape Town Convention on International Interests in Mobile Equipment entered into force on 8 March 2024. Resolving Conflit Mobile One of the main goals of the Cape Town Convention was to resolve the perennial problem of change of applicable law governing security interests over tangible moveable assets (conflit mobile). The […]

Originally posted on the NGPIL Website

“The winner of the 2024 NGPIL (Nigeria Group of Private International Law) Conflict of Law’s Essay Prize is Peace George, a recent LLB graduate with admission to the Nigerian Law School. Her essay is entitled “Domicile, Nationality and Habitual Residence: What Option for Nigeria” and was awarded 150,000 NGN [Naira] as the winning essay. The essay was of excellent standard and demonstrated a deep understanding of the principles at hand, analysing them to a high standard…”

 

The Permanent Bureau of the HCCH is pleased to announce that the webinar “HCCH 2005 Choice of Court Convention: Fostering Access to Justice for Cross-Border Commerce in the Asia Pacific Region” will be held this Friday, 22 March, from 16:00 to 17:30 p.m. (Hong Kong time).

The webinar will feature the following topics and speakers:

• Welcome remarks, by Dr Christophe Bernasconi (HCCH)
• Overview of the Choice of Court Convention, by Ms Melissa Ford (HCCH)
• Application of the Choice of Court Convention in Singapore, by Prof Adeline CHONG Swee Ling (Singapore Management University)
• Choice of Court Convention and the People’s Republic of China, by Prof Zheng TANG (Wuhan University)
• Choice of Court Convention and the ASEAN Members – taking Indonesia as an example, by Prof Afifah Kusumadara (Brawijaya University)
• Concluding remarks, by Prof Yun ZHAO (HCCH)

For more information, please consult the webinar’s programme.

Introduction Beverly Hills Polo Club branded goods are sold in the USA and the UK. Trade marks in the USA are owned by X. Corresponding trade marks in the UK are owned by Y. Trade mark law is territorial. Does Amazon infringe UK trade mark law by advertising the USA branded goods on its USA […]

The Conclusions & Decisions of the Council on General Affairs and Policy (basically, the governing body – CGAP) of the Hague Conference on Private International Law (HCCH) were published this week. Click here.

What is remarkable is that this year’s Conclusions & Decisions, as well as other Preliminary Documents, were also published in Spanish. It is the first time in the history of this governing body that documents are translated into Spanish and signals its commitment and the looming deadline when Spanish will become an official language of the HCCH (i.e. 1 July 2024). Many congratulations to the HCCH team, it has been a long road.

A few takeaways from the Conclusions & Decisions are the following:

There has been a revitalization of the commercial and financial law area with work being undertaken regarding Digital Assets and Tokens, Central Bank Digital Currencies (CBDC), Digital Economy, Digital Tokens, Restructuring and Insolvency and Voluntary Carbon Markets. In particular, the Council mandated “the establishment of an Experts’ Group to study the applicable law and jurisdiction issues raised by the cross-border use and transfers of CBDCs” (Conclusion & Decision No 10).

A few Working Groups will continue to meet in the coming year, namely Financial Aspects of Intercountry Adoption, Surrogacy and Jurisdiction.

A new Working Group has been established with respect to the 1996 Child Protection Convention (Conclusion & Decision No 26): “CGAP mandated the establishment of a WG on the operation of Article 33 of the 1996 Child Protection Convention, first, to develop a Model Form and, subsequently, a Guide on the application of Article 33. The WG will report on its progress to CGAP 2025.” This is a significant development, in particular regarding the streamlining of how to handle kafalas. See also the work of FAMIMOVE. Another Working Group will deal with the 1996 Country Profile.

With regard to post-Convention work, a few meetings will take place:

• A meeting of the International Hague Network of Judges in Rio de Janeiro, Brazil from 15 to 17 May 2024.
• Forum on Domestic Violence and the Operation of Article 13(1)(b) of the 1980 Child Abduction Convention in Sandton, South Africa, from 18 to 21 June 2024. This is the result of the Conclusions & Recommendations of the meeting of the Special Commission that took place last year and the existing concerns about domestic violence.
• Malta V, in Valetta from 24 to 27 September 2024. The Malta Process is a dialogue involving both Contracting States to the 1980 Child Abduction Convention and the 1996 Child Protection Convention, and non-Contracting States whose legal systems are based on or influenced by Islamic law (“Shariah”). Click here.
• Special Commission on the practical operation of the 1965 Service, 1970 Evidence and 1980 Access to Justice Conventions to take place from 2 to 5 July 2024 in The Hague.

A more intriguing Conclusion is the following regarding Trusts (Conclusion & Decision No 55):

CGAP noted the PB’s work in relation to the 1985 Trusts Convention, and mandated the PB, in partnership with relevant subject-matter experts, and subject to available resources, to continue to study the interpretation of analogous institutions for the purpose of Article 2 of the 1985 Trusts Convention, with a focus on:

a. clarifying the divergences in interpretation between the English and French versions of the Article; and

b. exploring whether analogous institutions would include foundations and endowments, institutions and developments relating to the waqf in the Islamic legal tradition, and decentralised autonomous organisations (DAOs) and other similar structures.

Finally, it is worth mentioning the developments regarding iSupport. The Council noted “the first official exchange of data using iSupport between Germany and Sweden, and their continued use of iSupport” (Conclusion & Decision No 38).

Project Lietzenburger Strabe Holdco, Re [2024] EWHC 468 (Ch) would seem to heed my prediction when I reviewed AGPS BondCo (“Strategic Value Capital Solutions Master Fund LP & Ors v AGPS BondCo PLC (Re AGPS BondCo PLC) [2024] EWCA Civ 24) here: that the English jurisdictional basis for schemes of arrangement and restructuring plans for corporations without English anchor prior to the restructuring, is less certain than court practice suggested.

Prior to AGPS Bondco and as I report in many posts which readers can find using the ‘scheme of arrangement’, in the event of a non-E&W incorporated debtor whose debt was being restructured, the classic technique is to insert a newly incorporated English company as a substitute obligor or co-obligor of debt owed by a foreign company in order to engage the jurisdiction of the English court. That technique in itself has not changed, but the court’s fairly ready acceptance of jurisdiction arguendo is now coming under some pressure.

As I reported in the past, the arguendo technique’s smoot riding through the courts first if all was assisted by the general absence of challenge by creditors. Even those not entirely convinced of the economic soundness of the restructuring at issue would eventually give up opposition when push came to shove. Further, pre-Brexit the assumption that a scheme or a plan would be readily recognised across the EU as a ‘judgment’ under Brussels Ia, despite question marks over the soundness of that ia viz the definition of ‘judgment’ and the application of BIa’s ‘insolvency’ exception, similarly lubricated passage through the courts. Post Brexit and absent UK Lugano membership, things have not necessarily changed from the content point of view; however they have certainly changed from the perception point of view.

In the case at issue, Richards J refers to AGPS Bondco and discusses COMI shift of the Plan corporation at length [69] ff.

The plan company having its COMI in E&W is one of the jurisdictional routes available. The Insolvency (Amendment) (EU Exit) Regulations 2019 are the main port of call, and Re Swissport Holding International SARL [2020] EWHC 3556 (Ch) (unreported), which I flagged  in my discussion of Barings v Galapagos here is the lead judgment referred to on the principles of COMI. One of the issues in Barings is the question of ‘permanency’ of COMI move, an urgent issue in Barings but perhaps less immediately concerning in current case (the judge does briefly address it [85]).

The judge having decided that COMI was indeed located in E&W then [86] ff discussed whether this move of COMI might have been in breach of Luxembourg law. The structure of this analysis is not entirely clear. Whether COMI moved in breach of applicable lex societatis is not in itself I would suggest relevant to the COMI move itself and indeed this is not how the judge seems to approach it. One assumes his analysis on this point is part of his consideration of whether the courts at Luxembourg would recognise the Plan, alongside [103] ff where the potential of exclusive Luxembourg jurisdiction is considered. Consideration including by the experts is made of CJEU C-723/20 Galapagos BidCo Sarl, with the judge eventually by a slender margin deciding that the view is to be preferred that Lux courts would not consider themselves to have such jurisdiction.

On recognition proper (again I am not quite sure of the structure here). [112] ff consider the Re DTEK Energy BV test, with consideration in particular of the COMI move as fraude à la loi /fraus (additionally in the form of fraude au jugement) and on balance the judge holds that it is unlikely that the LUX courts would object on ordre public grounds (ia given EU law’s acceptance of COMI move for restructuring purposes.

The same ordre public test under German law with an important Brexit consequence [125]: “Both experts agree that an English judgment sanctioning the Plan would be recognised in Germany only if the Plan Company’s COMI is in England at the time of any order sanctioning the Plan. Without that, the German courts would not accept that the English courts have jurisdiction for the purposes of s343 of the InsO.” I am not an expert on German law but it seems prima facie implicit in that opinion that a Plan would have to be considered an insolvency and indeed [125] ff follows that discussion. Here the judgment takes an interesting turn with [130] the presence of cross-class cram-down in an English Plan leading to pro inspiratio an Annex A EU Insolvency Regulation notified German procedure, StaRUG, in implementation of EU Directive 2019/1023 on Preventive Restructurings (the “Restructuring Directive”), the Plan being considered one in insolvency.

Consider the competing reasons:

Professor Thole’s reasons for concluding that the Plan would be recognised and given effect to in Germany can be summarised as follows:

i) The Plan is similar in nature to a StaRUG. StaRUGs fall within the list of “insolvency proceedings” set out in Annex A.

ii) Proceedings set out in Annex A are “insolvency proceedings” for the purposes of the InsO. In official commentaries on German domestic legislation, the German legislature has stated that, in deciding whether non-EU proceedings constitute “insolvency proceedings”, it is helpful to consider their similarities with proceedings listed in Annex A.

iii) Since the Plan is similar to a StaRUG, which falls within Annex A, a German court would likely conclude that an order sanctioning the Plan would be an order in “insolvency proceedings” for the purposes of the InsO.

iv) That conclusion is not altered by the accepted fact that the Plan does not deal with all the Plan Company’s creditors (such as professional advisers). The requirement for “collective proceedings” is present by virtue of the fact that the Plan deals with the rights of the Plan Company’s financial creditors. That conclusion is supported by a comparison with StaRUGs which likewise do not need to deal with the claims of all creditors.

v) Accordingly, the Plan would be enforced and recognised under the terms of the InsO.

1. 1. 1. Professor Skauradszun’s reasons for reaching a contrary conclusion can be summarised as follows:

i) German legal literature categorises plans under Part 26A as “preventive restructuring frameworks” which are the province of the StaRUG Act rather than the InsO. Accordingly, a German court would consider that the question whether the Plan should be recognised and enforced in Germany should be answered by reference to the StaRUG Act, rather than by reference to the InsO.

ii) The StaRUG Act does not provide for preventive restructuring frameworks of a non-EU member state to be recognised or enforced in Germany. There is, therefore a “gap” in German domestic legislation which means that non-EU “preventive restructuring frameworks” are inherently incapable of being recognised in Germany. Since Germany has a civil law tradition, the courts would not seek to fill that gap by adopting a strained interpretation of the concept of “insolvency proceedings” so as to enable the Plan to be recognised under the InsO. Rather, a German court would look to the legislature to fill the gap if it saw fit.

iii) The Plan falls outside the definition of “insolvency proceedings” in the InsO applying orthodox principles of interpretation which are not affected by any wish to fill a perceived gap in the legislation. That is because the Plan lacks the requisite element of “collectivity” to satisfy the definition.

iv) The fact that the Plan is similar to procedures (such as a StaRUG) listed in Annex A is not relevant. While German legislation does indeed take into account similarities with EU insolvency proceedings, the InsO only requires a comparison to be made with proceedings listed in the EU Insolvency Regulation prior to it being recast in 2015. The German court would not apply an “always speaking” doctrine of statutory interpretation to “update” those references to include Annex A of the Insolvency Regulation Recast.

 These are interesting positions and in the end the judge sides by a very narrow margin with the former. 

Further consideration of the plan then lead to the judge suggesting a number of amendments but for the purposes of the blog, the findings on jurisdiction and recognition are as extensive as they are exciting.

Geert.

EU Private International Law, 4th ed. 2024, 5.35 ff.

More on the blog soon
Refusal to sanction Restructuring Plan
Extensive review of LUX, DE expert opinion on jurisdiction, COMI, fraude à la loi (held i/t end E&W courts do have jurisdiction)

Project Lietzenburger Strabe Holdco, Re [2024] EWHC 468 (Ch)https://t.co/y4Mv0uDEE2

— Geert Van Calster (@GAVClaw) March 4, 2024

The fourth issue of 2023 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. Along with recent case law and materials, it features five contributions. Cristina Campiglio, Giurisdizione e legge applicabile in materia di responsabilità medica (ovvero a proposito di conflitti di qualificazioni) (Jurisdiction and Applicable Law in Matters of Medical Liability […]

The latest issue of the Journal of Private International Law (Volume 19, Issue 3) is now available. This issue features eight articles and one book review. Chukwuma Samuel Adesina Okoli and Abubakri Yekini, Implied jurisdiction agreements in international commercial contracts: a global comparative perspective, 321-361 This article examines the principles of implied jurisdiction agreements and […]

An international conference on the recast of the Brussels I bis Regulation will take place at the Skylounge of the University of Vienna on 12 April 2024. Organized by Professors Burkhard Hess, Christian Koller and Paul Oberhammer (Institut für Zivilverfahrensrecht, Universität Wien), the event will bring together representatives of the European Commission and of the […]

In Granville Technology Group Ltd v Chunghwa Picture Tubes Ltd & Ors [2024] EWHC 13 (Comm) Pelling J deals with a follow-on damages claim in the context of the LCD cartel (an EC decision under Article 101 TFEU). In E&W these are characterised as tortious claims for breach of statutory duty, as they are in most EU jurisdictions, too.

The applicable law issues were dealt with under residual English law pre Rome II. The events with which this claim is concerned occurred before 11 January 2009, when Rome II came into effect. For the Brussels Ia and Rome II issues see my paper here. However the judge’s discussion of elements displacing the English law’s presumption of locus damni have important comparative context to EU law as I discuss below.

Claimants were English registered companies carrying on business in England and Wales in the manufacture and/or sale primarily of  desktop PCs sold with monitors and notebooks. They are now all in liquidation. The judge handily recalls the principles [18]] for those not familiar with follow-on actions

A claimant alleging a competition law infringement can bring a claim before the English courts either as a ‘standalone’ claim (in which case it must establish both the breach of competition law alleged and the loss which it alleges was caused thereby); or (as in this case) as a ‘follow-on’ claim, where the claimants rely on the findings of the relevant competition authority (in this case the Commission) to establish breach. The “follow on” option is available because  in law the High Court is bound by infringement decisions of the Commission, such as the Decision. However the claimant in a follow on claim must prove the loss it alleges it has been caused by the infringement relied on…

Damage of course is an issue and [27] in this case as in many similar ones, “complex economic evidence involving statistical modelling at various levels of complexity and sophistication was deployed by both parties but in particular by the defendant in an attempt to identify what part of the price increases in LCD panels over the Relevant Period was attributable to the cartel’s infringing activity.”

[34] Applicable issues of law that arise against some of the defendants, are:

i) Whether any losses that arise out of purchases by the claimants of LCD panels or LCD Products containing LCD panels which were first put onto the market outside the EEA fall outside the territorial scope of EU law and are therefore unrecoverable;

ii) whether the Claim in so far as it arises out of purchases by the claimants of LCD panels or LCD Products containing LCD panels which were first put onto the market in South Korea, Taiwan, China and Japan is governed by the laws of these countries; and if so whether the claims by the claimant to recover damages for breach of TFEU, Article 101 and/or AEEA, Article 53 is a cause of action within the laws of those states. The claimants have not attempted to prove the relevant laws of any of those states and rely on the presumption (“Presumption of Similarity”) that those laws are materially the same as English law unless the contrary is pleaded and proved. The defendants case is that the Presumption of Similarity is of no application applying the decision of the Supreme Court in Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45 per Lord Leggatt at [119] – [124]. If the defendants are correct on this issue, they maintain the claim fails to the extent that it is based on purchases by the claimants of LCD panels or LCD Products containing LCD panels which were first put onto the market in South Korea, Taiwan and China and Japan. The defendants estimate this at about 78% of the whole. There is a dispute as to the correct percentage in the event the defendants succeeds on the principle  In any event, the claimants submit that if I agree with the defendants on the issue of principle I should adjourn determination of the issue and give the claimants the opportunity to plead and prove the relevant foreign law. I return to that issue below; and

iii) Whether the claims against the third and fourth defendants are statute barred under the Limitation Act 1980 (“LA”). The claimants rely on LA, s.32 and maintain that they could not have with reasonable diligence discovered the relevant facts before publication of the Decision, particularly given that all the claimants are in liquidation and have acted at all material times by their liquidators and their support staff.

The foreign law issue is dealt with [292] ff. The relevant agreements, decisions  and concerted practices all occurred outside the EU in Taiwan, Japan and South Korea, as did the overcharge for the LCD panels incorporated into the goods which the claimants ultimately bought: this occurred when the LCD panels were first sold by the cartelists including the defendants to the manufacturers of screens that were then incorporated into monitors and notebooks. Loss to the claimants loss (subject to downstream pass on) happened in E&W, when they purchased monitors or notebooks with LCD screens incorporated into them or the parts necessary to enable them to assemble notebooks. Their losses on reduced sales were also suffered in E&W.

This is where PILA s11 and 12 come in: for their content and implications see my post on UKSC Zubaydah. This is where interesting comparative elements emerge with EU law.

[297]

Once the different elements of the events and the country in which they occurred have been identified, the court then has to make a ‘value judgment’ regarding the ‘significance’ of each of those ‘elements’ in relation to the tort in question – see Iiyama (UK) Ltd v Samsung Electronics Co Limited (ibid.) at [48]. In that case, it was conceded that “…in the modern world the place where a cartel agreement happens to be made is of little significance…” Neither party in this case suggests, and in particular the defendants do not suggest, otherwise. I agree. That being so, the primary considerations that remain by a process of elimination are (a) the place or places where the cartel was intended to be implemented; and (b) the place or places  where the damage resulting from the infringing activity was suffered.

In my aforementioned paper p.150 I criticise the CJEU’s approach for jurisdictional purposes) in C-352/13 CDC which it repeated in C-27/17 flyLAL. For locus delicti commissi, under Article 101 TFEU (cartels), with reference to CDC, the CJEU opted for courts for the place in which the agreement was definitively concluded: this truly is extraordinary for it allows for forum shopping by the cartel participants, and it is a far cry form the sentiment expressed in current judgment (for applicable law) that the place where a cartel agreement happens to be made is of little significance…. For Article 102 TFEU (abuse of dominant position) the picture is more fuzzy at the CJEU as I discuss in my post on flyLAL. I realise the analysis in current judgment is for applicable law, not jurisdiction and I also realise that on applicable law Rome II’s Article 6 is closer to a forum damni analysis (as befits the general DNA of Rome II) than the CJEU’s locus delicti commissi analysis for jurisdiction in CDC and flyLAL.

Parties still disagree however on where that place is where the cartel was first implemented. Defendants say this was at the time prices first incorporated the Overcharge, which was when LCD panels were sold to original equipment manufacturers in Taiwan, Japan, China  and South Korea.

The judge in this context discusses the territorial scope of EU competition law [299] ff:

….if and to the extent that the focus in relation to applicable law should be on the restriction on competition within the internal market, then concluding that EU competition law should not apply to infringing activity that has effect within the EU because the cartelists are based, or conspired, or first gave effect to their conspiracy outside the EU would have a chilling effect on the efficacy of EU competition law as an effective mechanism for protecting and enhancing fair competition for the benefit ultimately of all consumers within the EU.

Enter CJEU Woodpulp, Gencor and Intel. [308] “in my judgment the evidence available establishes that the cartel in issue in these proceedings was a worldwide cartel which was intended to produce and in fact produced substantial indirect effects on the EU internal market.”

[313]

I conclude that the claim is one that comes within the territorial scope of EU competition law Returning to the applicable law issue, these conclusions lead me to the further conclusion that applying PILA, s.11(2)(c),  the applicable law is that of England and Wales including the law of the EU that applied at the time of the events giving rise to this claim.  I reach that conclusion because the most significant elements of those events were (a) the place or places where the cartel was intended to be implemented, which for the reasons I have identified was materially the territory of the EU including the UK and, therefore, England and Wales ; and / or (b) the place or places where the damage resulting from the infringing activity was suffered which again materially was England and Wales. As the Commission makes clear in Article 331 of the Decision, while the effects of the cartel were experienced elsewhere as well that is entirely immaterial for present purposes, as is the fact that a number of sales were first put on the market outside the EU. That is so because the Commission has decided and the Decision establishes that the indirect sales of panels were targeted at the EU (including England and Wales) and were intended to and in the event had substantial effects on competition in the EU (including England and Wales).

Reference here is also made to Deutsche Bahn Ag & Ors v Mastercard Incorporated & Ors [2018] EWHC 412 (Ch) in which both a pre and a post Rome II scenario was at issue.

Obiter, [314]

…had I concluded that the general rule was that the applicable law in relation to sales that were first put on the market outside the EU was the law of the state where that had occurred, I would nonetheless have concluded that the significance of the factors referred to above which connect the tort to the EU and, therefore, England and Wales, so outweighed the factors connecting the tort to the states where LCD screens were first put on the market outside the EU during the Relevant Period so as to make it substantially more appropriate for the applicable law to be the law of England and Wales incorporating that of the EU as relevant. EU competition law is the most appropriate law to apply to a tort concerned with a breach of TFEU, Article 101 to the extent that it has effect within the EU because it comes within the territorial scope of EU competition law and English law is the most appropriate intra EU system of law to apply by reason of the effect on the market so far as the claimants are concerned being in England and Wales, the claimed losses having been suffered in England and Wales and the claimants having carried on business in England and Wales during the whole of the relevant period until they were each placed in administration. The geographical place of incorporation of each claimant is a minor consideration although the first and second claimants were registered in England and Wales and although OTC was registered in Jersey, it nonetheless carried on business in England and Wales and claims in respect of losses suffered there. To my mind it is also at least realistically arguable, given the cost and inconvenience of having to prove separately the competition law of each state where LCD screens were first put on the market outside the EU during the Relevant Period, that to decide otherwise would undermine the direct effect and/or the effectiveness principles.

Of note. Geert.

EU private international law, 4th ed. 2024, [2.447] ff, 4.53 ff.

CJEU Woodpulp claxon
Follow-on damages claim, LCD panels cartel
Applicable law under residual E&W law
Determination of locus delicti commissi, territorial reach of EU competition law

Granville Technology v Chunghwa Picture Tubes ea [2024] EWHC 13 (Comm)https://t.co/ymihdaLesC

— Geert Van Calster (@GAVClaw) February 9, 2024

I am mopping up the blog queue so forgive me for posting late on Deutsche Bank v RusChemAlliance [2023] EWCA Civ 1144, a successful appeal of SQD v QYP (Rev1) [2023] EWHC 2145 (Comm). (Regular readers of the blog know that I do tend to Tweet these cases with some direction of the blogpost’s direction of travel).

Nugee LJ [1]

A guarantee issued by a German bank in favour of a Russian company is governed by English law and provides for arbitration in Paris. When a dispute arises, the Russian company issues proceedings in Russia in apparent breach of the arbitration agreement. Should the English court grant an anti-suit injunction (“ASI”) to restrain those proceedings in circumstances where no such injunction could be obtained in France? That is the question raised by this appeal.

In short, the anti-suit injunction was now granted.

Bright J on the basis of the expert’s evidence, had considered at first instance [82]

My understanding from the evidence is that this is not because the grant of ASIs is an emerging doctrine under French law (cf. the incremental acceptance of freezing injunctions: English law was a relatively early adopter, making it natural and often helpful for the English courts to grant worldwide freezing injunctions in support of litigation in jurisdictions where there was no conceptual opposition to freezing injunctions, but the jurisprudence had not yet developed). It is, rather, that French law has a philosophical objection to ASIs.

[83]

“ASIs are not in the French legal toolkit, but this is not a mere omission. It is a deliberate choice. French law considers ASIs to “contradict the fundamental principle of freedom of legal action.” ASIs are a tool that French law does not like.”

That would not [85] stop a French court from recognising an ASI validly issued elsewhere, but this, Bright J had held, was not the scenario at issue: [86]

The facts of this case do not fall within that paradigm. The seat of the arbitration being Paris, the procedural law that the parties have agreed upon is French law. I therefore understand this to be a case where the French court would not enforce an interim ASI granted by this court, were I to grant one. On the contrary, if requested to do so in its capacity of court of the seat of the arbitration, the French court might well grant an anti-ASI.

I do not do this often but it is worthwhile in this case to copy the entire conclusion by the first instance judge seeing as it engages with the important question to what degree an English court should shot across the bow of the seat of arbitration hence across the curial law: [91 ff]

Ultimately, SQD had two main points. 

The first was that the agreement to arbitrate is subject to English law, and the English courts have an interest in securing the performance of contracts that are subject to English law. I accept this in principle, but the English courts will not act in every case where the relevant agreement is subject to English law. This is obvious (i) from the fact that CPR 6.36 does not give the English courts jurisdiction in every case concerning a contract subject to English law – it is always necessary for England and Wales to be the proper forum; and (ii) from the fact that The Angelic Grace acknowledges that there may be exceptional cases where as an ASI should not be granted even though the foreign proceedings are in breach of the agreement to arbitrate. Indeed, Enka at [177] suggests that it should make no difference if the governing law is English or some other law – which may imply that the seat is more important than the governing law.

The second was that the fact that an ASI cannot be obtained in France makes this court the proper forum. SQD said that the availability of ASIs in England and Wales was a legitimate juridical advantage – cf. Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. However, this begs the question whether it is right to consider the juridical advantage that English jurisdiction offers legitimate, in circumstances where the law of the seat of the arbitration takes a different view.

I have in mind Lord Mustill’s repeated urging in Channel Tunnel of the need to be cautious. I also have in mind the concerns of the DAC report to avoid any conflict or clash, in particular a conflict or clash with the court of the seat of the arbitration. In the light of the evidence that I have received in relation to French law, I consider that England is not the proper forum and that this court should not grant the interim ASI and AEI that SQD seeks.

I have reached that view in two complementary ways. The first is that to grant an interim ASI would be inconsistent with the approach of the courts of the seat of the arbitration and (therefore) with the curial law that applies. This court should have deference to the approach of French law. To do otherwise would or at least might give rise to a conflict or clash.

The second is that the court should also have deference to the objective intention of the parties. The parties deliberately chose Paris as the seat of the arbitration. They must be taken to have done so knowing that the French courts will not grant ASIs. I do not accept as realistic the suggestion that the selection of English law as the governing law indicates an intention that there might be an application to this court, despite the express selection of a French seat.

In some countries, ASIs are readily available to support arbitration. In others, they are not. Each country is free to form its own policy on this point. Similarly, contracting parties are free to arbitrate where they like. If the parties choose to arbitrate in a country such as France, where the policy is that ASI will not be granted and will not generally be enforced, this court should acknowledge the significance of these circumstances. Vive la différence.

It is generally right for the courts of England and Wales to support arbitration in this jurisdiction. It is not the job of the courts of England and Wales to support arbitration in France by granting ASIs, given the fundamentally inconsistent approach in France on whether such support is appropriate or desirable. Indeed, it seems that the support of this court would be unwelcome.

In reaching this conclusion, I note that Lord Mustill appears to have held similar views: see Channel Tunnel at p. 368E-G.

The point that has made me pause longest is that based on Spiliada – i.e., that it would be a virtue, not an insult, for this court to step in where the French courts cannot. The best way of developing that point (I think) would be that, while it is true that the parties have chosen French law as the curial law/law of the seat, they have also chosen to adopt the ICC Rules – which (as I understand it) permit the arbitrators to grant conservatory and interim measures, including ASIs. The French courts cannot grant ASIs, but the arbitrators can (including an emergency arbitrator). Accordingly, even if French law objects to ASIs, the parties do not. All SQD is seeking is an interim ASI to maintain the status quo until the ICC arbitrators can take over and grant their own ASI.

This approach assimilates an ASI granted by this court to one granted by the arbitrators, on the basis that the injunction I am asked to me is an anticipatory and temporary version of the relief that will in due course be given by the arbitrators.

I consider this a false equivalence. There are real differences between orders granted by courts and those made by arbitrators – which is why parties are often astute to ask for relief from the court, where they can find a way to justify this. Above all: court orders are backed by the coercive powers of the state; arbitrators’ orders are not.

This is exemplified by the draft order presented to me by SQD. Prominent on its front page is a penal notice, which threatens the recipient with being held in contempt of court and being fined or having assets seized. The ultimate penalty is imprisonment. This is exactly what the French system regards as unacceptable. The fact that the parties have agreed to the arbitrators being able to make orders for interim measures does not mean that they have implicitly accepted the availability of a court order such as that presented to me in draft.

Ultimately, therefore, I therefore am unmoved by this point and by SQD’s other arguments. SQD’s application is dismissed.

The Court of Appeal reversed and completed the analysis itself. It held that France does not so much have a philosophical objection to ASI, rather lacks the procedure to grant it. [32]

Bright J was hampered by having limited evidence of French law whose import was far from clear, and it is not perhaps surprising that he read that evidence as suggesting that French law had a philosophical objection to the use of ASIs, even to the extent of countenancing an anti-ASI injunction. But the evidence before us, as can be seen, is to a different effect. It is that although a French court does not have the ability to grant an ASI as part of its domestic toolkit, it will recognise the grant of an ASI by a court which does have that as part of its own toolkit, provided that in doing so it does not cut across international public policy.

That last bit is not in fact different from Bright J’s suggestion I believe.

[34] ff Nugee LJ first considers the jurisdiction of the E&W courts. [36]

…It is natural to regard the grant of an ASI to restrain proceedings brought in breach of an arbitration agreement as intimately connected with the arbitration (whether already on foot or proposed), and one can point to statements of high authority to the effect that where the seat of the arbitration is in England, the practice of the English court in readily granting ASIs is part of the “supervisory” or “supporting” jurisdiction of the English court: see, for example, West Tankers Inc v Ras Riunione Adriatica di Sicurtá SpA (The Front Comor) [2007] 1 Ll Rep 391 (“West Tankers (HL)”) at [21] per Lord Hoffmann; and Enka at [174] and [179] per Lords Hamblen and Leggatt. At first blush it might be thought to follow that the natural (and hence “proper”) place in which to bring any claim for an ASI would be the courts of the seat of the arbitration, and hence that where the seat is not in England, England is not the proper place for such a claim.

But he then [37] refers to Briggs LJ’s speech in Vedanta, and his mentioning of

that the task of the Court is to “identify the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”.

[38]

There is no difficulty in identifying what English law regards as required by “the ends of justice” in a case such as the present. It is the policy of English law that parties to contracts should adhere to them, and in particular that parties to an arbitration agreement, who have thereby impliedly agreed not to litigate elsewhere, should not do so. The English court, faced with an English law governed contract containing a promise by a party not to do something and a threat by that party to do the very thing he has promised not to do, will readily and usually enforce that promise by injunction.

(reference ia to Enka).

1. 1. 1. The only claim in the present case is a claim for interim injunctive relief based on these well-established principles of English law. Such relief, regarded by English law as a valuable tool to uphold and enforce the arbitration agreement, can only in practice be obtained in England and not in France. Bright J, as explained above, thought, on the basis of the evidence before him, that that was because French law had a philosophical objection to the grant of ASIs. The evidence before us is to a different effect and strongly suggests that while French law does not have the ability to grant an ASI as part of its procedural toolkit, it has no objection in principle to (and will recognise) the grant of an ASI by a court which can by its own procedural rules grant one, at any rate where the basis for the ASI is the parties’ contractual agreement to submit disputes to a particular forum.
      2. In those circumstances it seems to me that the forum in which the claim for an interim ASI can be suitably tried for the interests of all the parties and for the ends of justice is the English court, on the simple basis that such a claim cannot be given effect to in France. I do not think it necessary to consider what the position would have been had Bright J’s understanding been correct – that is, if the French court would regard the grant of an ASI by the English court as inappropriate and unwelcome – which raises questions of some difficulty and on which we have heard very little argument. On the position as it appears to us, the choice is between the English court where an ASI can be granted and a French court where it cannot, not because of any hostility to the concept, but because of a lack of domestic procedural rules permitting them. Since it is not to be supposed that DB would take the futile step of applying to a French court for an ASI which it has been repeatedly and clearly advised the French court cannot grant, the real choice is not between two competing forums, but between the English court entertaining the claim and the claim not being brought at all. Seen in this light, I would hold that the English court is indeed the proper place to bring the claim. I would therefore grant DB permission to serve the claim out of the jurisdiction.

Having decided on the existence of ASI jurisdiction, only two paras are then spent to conclude that one must so granted in the circumstances, along with an anti-enforcement injunction AEI should a judgment be obtained in any Russian proceedings.

Compare nb also Commerzbank AG v RusChemAlliance LLC [2023] EWHC 2510 (Comm), and see Unicredit Bank GmbH v Ruschemalliance LLC [2024] EWCA Civ 64 which overturned G v R (In an Arbitration Claim) [2023] EWHC 2365 (Comm) and which is notable because here the ASI is final rather than interim and uncontested.

Note not everyone is happy with the E&W cours becoming the world’s ‘arbitral policeman’ – however the underlying contract being one with English law as the lex contractus would seem to be emerging as a natural boundary to the English courts’ intervention.

Geert.

Comparative CPR claxon
Successful appeal of https://t.co/NSvc3DfxVI
Anti-suit injunction granted
Considers ia France not so much having philosophical objection to ASI, rather lacks procedure to grant it
Deutsche Bank v RusChemAlliance [2023] EWCA Civ 1144https://t.co/sclNF45Ape

— Geert Van Calster (@GAVClaw) October 12, 2023

The Conclusions and Recommendations of the latest annual meeting of the Council on General Affairs and Policy of theHague Conference on Private International Law, which was held from 5 to 8 March 2024, have recently been published. The most significant developments arising from the document include the following. Legislative Work The Council noted the progress […]

Written by Xandra Kramer (Erasmus University Rotterdam/Utrecht University) & Eduardo Silva de Freitas (Erasmus University Rotterdam), members of the Vici project Affordable Access to Justice, financed by the Dutch Research Council (NWO), www.euciviljustice.eu.

Introduction

We have reported on the Dutch WAMCA procedure for collective actions in a number of previous blogposts. This collective action procedure was introduced on 1 January 2020, enabling claims for damages, and has since resulted in a stream of (interim) judgments addressing different aspects in the preliminary stages of the procedure. This includes questions on the admissibility and funding requirements, some of which are also of importance as examples for the rolling out of the Representative Action Directive for consumers in other Member States. It also poses very interesting questions of private international law, as in particular the collective actions for damages against tech giants are usually international cases. We refer in particular to earlier blogposts on international jurisdiction in the privacy case against TikTok and the referral to the CJEU regarding international jurisdiction under the Brussels I-bis Regulation in the competition case against Apple.

In this blogpost we focus on two follow-up interim judgments: one in the collective action against TikTok entities and the other against Google. The latter case is being discussed due to its striking similarity to the case against Apple.

The next steps in the TikTok collective action

The collective action against TikTok that was brought before the Amsterdam District Court under the Dutch WAMCA in 2021. Three representative organisations brought the claim against seven TikTok entities located in different countries, on the basis of violation of the Code of Conduct of the Dutch Media Act and the EU General Data Protection Regulation (GDPR). The series of claims include, among others, the destruction of unlawfully obtained personal data, the implementation of an effective system for age registration, parental permission and control, measures to ensure compliance with the Dutch Media Act and the GDPR as well as the compensation of material and immaterial damages.

In an earlier blogpost we reported that the Amsterdam District Court ruled that it had international jurisdiction under the Brussels I-bis Regulation and the GDPR. In the follow-up of this case, the court reviewed the admissibility requirements, one of which concerns the funding and securing that there is not conflict of interest (see Tzankova and Kramer, 2021). This has led to another interim judgment focusing on the assessment of the third party funding agreement as two out of the three claimant organisations had concluded such agreement, as reported on this blog here. In short, the court conditioned the admissibility of the representative claimant organisations on amendments of the agreement with the commercial funder due to concerns related to the control of the procedure and the potential excessiveness of the fee. The court provided as a guideline that the percentage should be determined in such a way that it is expected that, in total, the financers can receive a maximum of five times the amount invested.

On 10 January 2024 the latest interim judgment was rendered. Without providing further details the Amsterdam District Court concluded that the required adjustments to the funding agreement had been made and that the clauses that had raised concern had been deleted or amended. It considered that the independence of the claimants in taking procedural decisions was sufficiently guaranteed. The court declared the representative organisations admissible, appointing two of them as Exclusive Representative (one for minors and the other for adults) based on their experience, the number of represented people they represent, their collaboration and support. The court confirmed its statement made in a previous interim judgment that the claim for immaterial damages is inadmissible as that would require an assessment per victim, which it considered impossible in a collective action. This is admittedly a setback for the collective protection of privacy rights, notably similar to the one following the 2021 United Kingdom Supreme Court ruling in Lloyd v Google.

With this last interim judgment the preliminary hurdles have been overcome, and the court proceeded to provide further guidelines as to the opt-out and opt-in as the next step. The WAMCA is an opt-out procedure, but to foreign parties in principle an opt-in regime applies. The collective action was aimed representing people in the Netherlands, but was extended to people who have moved abroad during the procedure, and these are under the opt-in rule. The information on opt-out and opt-in will be widely published.

It remains to be seen how the case will progress considering the further procedural decisions and the assessment on the merits.

The claim against Google and its private international law implications

Another case with an international dimension is the collective action for damages against Google that was filed under the WAMCA, alleging anticompetitive practices concerning the handling of the app store (DC Amsterdam, 27 December 2023, ECLI:NL:RBAMS:2023:8425; in Dutch). This development comes amidst a landscape marked by high-profile antitrust collective actions with international dimensions, such as the one filed against Apple, in which there is an ongoing legal battle regarding Apple’s alleged anticompetitive behavior in the market for app distribution and in-app products on iOS devices. Cases like these are either pending before courts or under investigation by competition authorities worldwide, reflecting a broader global trend towards increased scrutiny of antitrust practices in the digital marketplace.

In the present case, the claimant organisation argues that the anticompetitive nature of Google’s business stems from a collection of practices rather than an isolated practice. Such a collection of practices would shield Google from nearly all possible competition and allow it to charge excessive fees due to its dominance in the market. The practices that, taken together, form this anticompetitive behaviour are essentially:

(i) The bundling of pre-installed apps, including Google’s Play Store, with the licensing of the Android operating system to the manufacturers of smartphones;

(ii) The imposition that transactions related to the Play Store be undertaken only within Google’s own payment system;

(iii) The charging of a fee of 30% from the app’s developer, which the claimant organisation deems abusive and only possible due to Google’s dominant position created by the abovementioned practices.

Based on these allegations, the claimant organisation accuses Google of engaging in mutually exclusive and exploitative practices, thereby abusing a dominant position in a manner contrary to Article 102 TFEU. This case unfolds within a broader global context where antitrust actions against Google’s Play Store, its payment system, and the bundling with the Android operating system have gained significant momentum. Just last December, Google reached a settlement in a multidistrict litigation involving all 50 states of the United States, the District of Columbia, Puerto Rico, and the Virgin Islands. The settlement addressed issues very similar to those raised in this case, as explicitly outlined in the agreement. The Competition and Markets Authority in the United Kingdom is also conducting an antitrust investigation into these aspects of Google’s operations. Furthermore, the practice of pre-installing Google apps as a requirement for obtaining a license to use their app store is under investigation by the Brazilian Competition Authority.

From a private international law perspective, this case closely resembles another one against Apple referred to the CJEU by the District Court of Amsterdam and discussed earlier in this blog, in which similar antitrust claims were raised due to the handling of the app store and the exclusionary design of the respective payment system. However, unlike the collective action against Apple, in this case the District Court of Amsterdam clearly did not refer the case to the CJEU and instead decided by itself whether it had jurisdiction to hear the claim. And again, like the Apple case, the court was called upon to decide on both international jurisdiction and its territorial jurisdiction within the Netherlands.

International jurisdiction

The collective action under the Dutch WAMCA in the Google case was filed against a total of eight defendants. Two of the defendants (Google Netherlands B.V. and Google Netherlands Holdings B.V.) against whom the claim was filed are established in the Netherlands, and for them the standard rule of Article 4 Brussels I-bis Regulation applies. There are also three other defendants (Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited) established in another EU Member State, namely Ireland. With regards to these defendants, the court also assessed whether it had jurisdiction based on the Brussels I-bis Regulation. Finally, there are three defendants based outside of the EU – Alphabet Inc. and Google LLC in the United States and Google Payment Limited in the United Kingdom. Jurisdiction with regards to these defendants based outside of the EU was established under the pertinent rules contained in the Dutch Code of Civil Procedure (DCCP).

The court initiated its assessment by recognizing that, due to the lack of jurisdiction rules specifically addressing collective actions in both the Brussels I-bis Regulation and the Dutch Code of Civil Procedure, the standard rules within these frameworks should be applied. The court’s reasoning was based on the established principle that no differentiation exists between individual and collective actions when determining jurisdiction. The court primarily conducted its assessment regarding whether the Netherlands could be considered the Erfolgsort under Article 7(2) of the Brussels I-bis Regulation, mostly ex officio, as this was not a point of contention between the parties.

The court’s view is that the criteria from Case C-27/17 flyLAL-Lithuanian Airlines (ECLI:EU:C:2018:533) should be applied, according to which the location of the market affected by the anticompetitive practice is the Erfolgsort. The location of the damage is where the initial and direct harm occurred, which primarily involves users overpaying for purchases made on the Play Store. In the present case the court, applying such criteria, decided that the Netherlands can be considered the Erfolgsort, given that the claimant organisation represents users that make purchases and reside in the Netherlands. This reasoning is very similar to the one used by the District Court of Amsterdam in deciding to refer the Apple case to the CJEU.

Territorial jurisdiction within the Netherlands

With regards to the jurisdiction of the District Court of Amsterdam to hear this collective action in which the claimant organisation sues on behalf of all the users residing in the Netherlands, the decision contains an assessment starting from the CJEU ruling in Case C-30/20 Volvo (ECLI:EU:C:2021:604). Such ruling states that Article 7(2) Brussels I-bis Regulation grants jurisdiction over claims for damages due to infringement of Article 101 TFEU to the court where the goods were purchased. If purchases were made in multiple locations, jurisdiction lies with the court where the alleged victim’s registered office is located.

In the case at hand, given the mobile nature of the purchases, it is not possible to pinpoint a specific location. However, under the criteria just mentioned, the District Court of Amsterdam has jurisdiction over the victims’ registered offices for those residing in Amsterdam in accordance with both Article 7(2) Brussels I-bis Regulation (Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited) and the similar provision in Article 102 DCCP (Alphabet Inc., Google LLC, and Google Payment Limited).

For users residing elsewhere in the Netherlands, the parties agreed that the District Court of Amsterdam would serve as the chosen forum for users who are not based in Amsterdam. The court decided that, with regards to Alphabet Inc., Google LLC, and Google Payment Limited, this is possible under Article 108(1) DCCP on choice of court. As to Google Ireland Limited, Google Commerce Limited, and Google Payment Ireland Limited, the court interpreted Article 7(2) Brussels I-bis Regulation in light of the principle of party autonomy (see Kramer and Themeli, 2016) as enshrined in Recitals 15 and 19, as well as Article 25 Brussels I-bis Regulation. The court also noted that no issues concerning exclusive jurisdiction arise in the present case and made a reference to the rule contained in Article 19(1) Brussels I-bis Regulation according to which the protective rule of Article 18 Brussels I-bis Regulation can be set aside by mutual agreement during pending proceedings.

Finally, the court decided that centralising this claim under its jurisdiction is justified under the principle of sound administration of justice and the prevention of parallel proceedings. In the court’s understanding, the goal of Article 7 Brussels I-bis Regulation is to place the claim before the court that is better suited to process it given the connection between the two and, given that the mobile nature of the purchases gives rise to damages all over the Netherlands, such a court would be difficult to designate. Hence the need for respecting the choice of court agreement.

Applicable law

The court established the law applicable to the present dispute under Article 6(3)(a) Rome II Regulation. The court used the same reasoning it had laid out to establish jurisdiction in the Netherlands as the Erfolgsort, since it is the market affected by the alleged anticompetitive practices where the users concerned reside and made their purchases. The court also considered the claimant organization’s argument that, according to Article 10(1) of the Rome II Regulation, the Dutch law of unjust enrichment could govern the claim. Although the court did not provide extensive elaboration, it agreed with this view.

Funding aspects of the claim against Google

Lastly, in a naturally similar way as regarding the TikTok claim explained above, the court assessed the funding arrangements of the claim against Google under the requirements set by the WAMCA. The court took issue with the fact that the funding arrangement entered by the claimant organisation is somewhat indirect, since it is apparent that the funder itself relies on another funder which is not a part of the agreement presented to the court. Under these circumstances, the court deems itself unable to properly assess the claimant organisation’s independence from the “actual” funder and its relationship with the remuneration structure.

For this reason, the court ordered the claimant organisation to resubmit the agreement, which it is allowed to do in two versions. One version of the agreement will be presented in full and will be available to the court only, to assess it in its entirety. The other version, also available to Google, will have the parts concerning the overall budget for the claim concealed. However, the parts concerning the funder’s compensation share must remain legible for discussion around the organisation’s independence from the funder, and confirmation that such agreement reflects the whole funding arrangement of the claim was also required.

I am currently trying to have the Leuven conflict of laws students appreciate Article 7(1) Brussels Ia’s looking over the fence aka conflicts method. On Thursday we shall be reviewing CJEU Tessili v Dunlop and I wonder how many of the students will have seen this post (I am guessing perhaps 2 or 3 out of the 540 in class) for it might help them appreciate the exercise.

For contracts not caught by one of the passe-partout contracts listed in Article 7(1)b, per inter alia Jaaskinen AG (as he then was) in Cormans Collins, the CJEU Tessili v Dunlop formula still applies:  in the 4th ed of the Handbook 4.424 I put it like this

“For each specific obligation (later, as noted, subject to the Shenavai ‘principal obligation’ correction) the court(s) seised would establish ‘place of performance’ and hence jurisdiction on the basis of its own, residual private international law rules for applicable law. It applies its choice of law rules to determine which law governs the contract, and then uses that law to specify the place of performance, ultimately ruling whether it itself has or does not have jurisdiction, or has jurisdiction over only part of the claims. This is referred to as the ‘conflicts (of laws)’ method for deciding jurisdiction, also known as ‘looking over the fence’, seeing as the court looks over the fence between jurisdiction and applicable law in order to decide jurisdiction on the basis of applicable law. Per Tessili v Dunlop (para 13):

[the national court] must determine in accordance with its own rules of conflict of laws what is the law applicable to the legal relationship in question and define in accordance with that law the place of performance of the contractual obligation in question.

Prior to the 1980 Rome Convention, later the Rome I Regulation (see chapter three on applicable law for contracts), there was no harmonisation on deciding applicable law for contracts. This meant that, depending on which court is seised, the result of the looking over the fence exercise could and did have very different outcomes. (Even the Rome I Regulation, however (even more so under the Rome Convention), has gaps in its harmonising approach to the applicable law identification exercise, as I discuss in chapter three.)”

In current case, the agreement is one for the loan of a sum of money between a father and a son, albeit for an interest rate of 5% pa. Repayment of amounts due is now being pursued by a sibling, following the death of the father.

While loan agreements in the professional context arguably are services within A7(1)(b), in a family or friendship context arguably they are not. The Dutch court in current case [2.8] without expressing the family context issue follows Butcher J in Winslet & Ors v Gisel [2021] EWHC 1308 (Comm). As in Winslet, the court here then invited the parties (in an interlocutory judgment) to clarify their position on the conflicts method.

A first stop is Article 3 Rome I because the pursuing sibling argues [2.10] implicit choice of law was made for Dutch law.

The judge further points parties to Article 4(2) (the agreement not being covered by any of the default categories of Article 4(1) Rome I) Rome I’s

Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence.

and holds [2.11] that the characteristic performance in a loan agreement is carried out by the party loaning the sums. Defendant then argues that the father’s habitual residence at the time of the loan was in Sweden, making Swedish law the lex causae and leading to that law having to determine the place of performance for the purposes of A7(1). Claimant argues the father had already moved to The Netherlands.

In the later judgment once the further arguments of parties received, the judge refuses to entertain the question of implicit choice of court, seeing as the validity of a crucial document is uncertain, but does hold that the father was habitually resident in The Netherlands. Under Dutch law, the retained lex contractus, the payment of a sum of money owed to another, needs to be carried out at the creditor’s domicile at the time the payment is due. Claimant’s domicile (like the defendant’s) being in Sweden, that is where the forum solutionis is located.

Fun with conflicts….

Geert.

EU Private International Law, 4th ed. 2024, 2.424.

Gr8 example of looking over the fence, CJEU Tessili v Dunlop to determine forum contractus, loan agreement
Interlocutory ruling inviting parties' arguments on implicit choice of law A3 I and /or default lex contractus A4 Rome I
1st instance Den Haag, X v Y https://t.co/q850EHBjEe

— Geert Van Calster (@GAVClaw) March 12, 2024

The author of this post is Sara De Vido, Associate Professor of International Law at the Ca’ Foscari University of Venice. This post, drawn from a broader article (S. De Vido, ‘The Privatisation of Climate Change Litigation: Current Developments in Conflict of Laws‘ Jus Cogens 6, 65–88 (2024)), explores the promise of ecofeminism as a […]

On 20 and 21 June 2024, Gralf-Peter Calliess and Nicholas Mouttotos (Institute for Commercial Law, University of Bremen) will convene a conference on ‘Informed Consent to Dispute Resolution Dispute Agreements’ in Bremen. They have shared the following announcement with us:

Dispute Resolution Agreements (DRA) are a very special kind of contract. They allow parties to make a choice on the rights (applicable law) and remedies (competent forum, including procedural rules), which govern their relationship. Party autonomy, i.e. the freedom to enter into DRA, enables international merchants to provide for legal certainty and to bargain on the ‘law market’ for the most efficient institutional framework for their transactions. However, where DRA are included in the fine print of standard form contracts with less sophisticated contract parties, the question of legitimacy arises. For instance, where mandatory consumer rights or constitutional rights to a remedy are waived, a higher quality of consent might be required, one that is informed, instead of a simple manifestation of assent to the transaction. However, ‘informed’ consent has been criticized as a legal fiction.

DRA are regulated by diverse instruments on the national, supra-, and international level. Despite their similarities they are rarely discussed in a consistent fashion. The conference convenes leading scholars of private international law, international civil procedure, international arbitration, and standard form contracts from both sides of the Atlantic in an effort to develop a coherent framework.

In addition to the organizers, the conference will feature Symeon C. Symeonides, Daniel D. Barnhizer, Hannah Buxbaum, John F. Coyle, Nikitas Hatzimihail, Nancy S. Kim, Laura Little, Peter McColgan, Marta Pertegás Sender, Frederick Rieländer, Kermit Roosevelt, Stefan Thönissen, Camelia Toader, and Stephen J. Ware as speakers.

Further information can be found here.

A curious judgment has been rendered recently by the highest court of Germany in civil matters. The Federal Court (BGH) considers a long-term rental agreement for an apartment in Germany as a ‘purely domestic matter’ (reiner Binnensachverhalt) – even though it was concluded between a foreign state and one of its nationals, who still had […]

As announced on this blog a few days ago, the website of the European Association of Private International Law has a new look and some new contents. Take a tour of the new website and learn about who we are, what we do, and how members can contribute to the Association’s goals, including by launching […]

This post is written by Guodong Du and Meng Yu and published at China Justice Observer. It is reproduced here by kind permission of the authors. 

 

Key takeaways:

• In September 2023, the Shanghai Third Intermediate People’s Court ruled to recognize the Tokyo District Court’s decision to commence civil rehabilitation proceedings and the order appointing the supervisor ((2021) Hu 03 Xie Wai Ren No.1).
• This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese judgment.
• The case establishes a legal precedent for cross-border bankruptcy decisions, demonstrating that prior non-recognition patterns between China and Japan in civil and commercial judgments may not apply in such cross-border scenarios.
• While not resolving the broader recognition challenges between the two nations, this acknowledgment sends a positive signal from the Chinese court, hinting at potential future breakthroughs and fostering hope for improved legal cooperation.

This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese judgment (See the Chinese Court Ruling (2021) Hu 03 Xie Wai Ren No.1 ( (2021)?03???1)).

Related Posts:

• China Recognizes Another German Bankruptcy Judgment in 2023
• How Chinese Judges Recognize Foreign Bankruptcy Judgments
• The First Time Chinese Court Recognizes Singapore Bankruptcy Judgment

The Japanese law firm Nagashima Ohno & Tsunematsu, representing a Japanese company, applied to the Tokyo District Court to initiate civil rehabilitation proceedings (a type of restructuring-type bankruptcy procedure under Japanese bankruptcy law). According to the application, the Tokyo District Court decided to commence civil rehabilitation proceedings and appointed a supervisor to monitor the debtor’s activities.

As the Japanese company had certain assets in Shanghai, to facilitate the smooth progress of the civil rehabilitation proceedings in Japan, the company filed an application with the Shanghai Third Intermediate People’s Court (the “Shanghai Court”), requesting recognition of the Tokyo District Court’s to commence civil rehabilitation proceedings and the order appointing the supervisor. Nagashima Ohno & Tsunematsu provided legal opinions on relevant Japanese laws during the recognition process.

On 6 Sept. 2023, the Shanghai Court made a ruling recognizing the Japanese company’s civil rehabilitation proceedings and the identity of the supervisor, and allowing the supervisor to monitor the company’s self-management of property and business affairs within China under certain conditions.

In reviewing whether there was a reciprocal relationship between China and Japan in recognizing bankruptcy decisions, the Shanghai Court found that:

(1) Both sides have precedents of refusing to recognize each other’s civil and commercial judgments, but these precedents do not necessarily apply to cross-border bankruptcy cases;

(2) According to Japanese laws, there are no legal obstacles to the recognition of Chinese bankruptcy decisions by Japanese courts, which confirms the existence of a reciprocal relationship between China and Japan in the recognition of cross-border bankruptcy cases.

This is the first time that China has recognized a decision made by a Japanese court in bankruptcy proceedings.

China and Japan have been at an impasse regarding the mutual recognition and enforcement of judgments. For more details, please read our earlier post How to Start the Recognition and Enforcement of Court Judgments between China and Japan?.

Related Posts:

• Some Thoughts on the Sino-Japanese Reciprocal Recognition Dilemma in Light of the Recent Developments in the Recognition and Enforcement of Foreign Judgments in China
• How to Start the Recognition and Enforcement of Court Judgments between China and Japan?

According to the Shanghai Court’s statement, this case does not mean that the impasse between China and Japan has been broken, but it does send a positive signal from the Chinese court regarding Japanese judgments. We look forward to further breakthroughs between the two sides.

We have not yet obtained the original text of the judgment made by the Shanghai Court in this case. The above case information is from the website of Fangda Partners, the Chinese law firm representing the Japanese company in this case.

Another case commentary can be found here on the website of the Asian Business Law Institute (ABLI).