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As previously announced and reminded on this blog, on 6t and 7 April 2017 the University of Bonn will host a conference on the topic Politics and Private International Law (?).

The conference aims to discuss the different aspects of the interaction between conflict of law rules and the reaching of substantive goals, highlighting as well its advantages and disadvantages.

The proposals for conference papers (of not more than 1.000 words in German language and without any reference to the authorship) should be submitted to nachwuchs-ipr(at)institut-familienrecht.de until 30 June 2016, 12 am CET.

Further information can be found here.

As I had feared /as was to be expected, the CJEU did not follow Szpunar AG’s lead in formally letting go of Case 21/76 Bier‘s Erfolgort /Handlungsort distinction, even if it did accept the AG’s rejection in the case at issue, of the mere presence of a bank account triggering jurisdiction for tort under (now) Article 7(2) Brussels I Recast.

Kolassa upheld jurisdiction in favour of the courts for the place of domicile of the applicant by virtue of where the damage occurred, if that damage materialises directly in the applicant’s bank account held with a bank established within the area of jurisdiction of those courts. The case was distinguished however, for in that case there where ‘circumstances contributing to attributing jurisdiction to those courts.’ In general, the Court held, ‘purely financial damage which occurs directly in the applicant’s bank account cannot, in itself, be qualified as a ‘relevant connecting factor’‘ (at 38) . ‘ It is only where the other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place.‘ (at 39).

The Court at 38 flags a rather interesting and relevant argument for dismissing pure presence of  a bank account as a determining connecting factor: a company such as Universal Music may have had the choice of several bank accounts from which to pay the settlement amount, so that the place where that account is situated does not necessarily constitute a reliable connecting factor. What the Court is essentially saying is that in such circumstance the applicant can manipulate jurisdiction and hence shop for a forum: which is not part of the jurisdictional rule for tort.

Crucially of course we are left having to ponder what exactly ‘other circumstances’ than location of bank account may imply.

Geert.

 

(Handbook of) European private international law, second ed. 2016, Chapter 2, Headings 2.2.11.2, 2.2.11.2.7

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

Universal Music, a record company established in the Netherlands, acquired the Czech company B&M in the course of 1998. The contracts providing for the sale and delivery of B&M’s shares were drawn up by a Czech law firm. Because of negligence by an associate of the Czech law firm the contracts provided a much higher sale price for B&M shares than intended by Universal Music. This led to a dispute between Universal Music and B&M’s shareholders which was brought before an arbitration board in the Czech Republic, following a settlement between the parties in 2005. Because of this settlement Universal Music allegedly suffered financial damage of some 2.5 million EUR. Subsequently Universal Music has brought proceedings against the Czech lawyers before the Dutch courts. The Dutch courts have requested the CJEU to answer the question, whether Article 5 (3) of Regulation No 44/2001 must be interpreted as meaning that the place where the harmful event occurred can be construed as being the place, in a Member State, where the damage occurred, if that damage consists exclusively of financial damage which is the direct result of an unlawful act committed in another Member State. However the only connecting factor to the Netherlands, besides Universal Music being established in that state, was that the bank account from which Universal Music paid the settlement amount was situated in Baarn (The Netherlands). Thus the CJEU now finds that such “purely financial damage which occurs directly in the applicant’s bank account can not, in itself, be qualified as a ‘relevant connecting factor’, pursuant to Article 5(3) of Regulation No 44/2001”. Obviously in order not to contradict its ruling in „Kolassa“ (C-375/13) the CJEU clarifies that only where “other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place”.  Referring to „Kronhofer“ the CJEU further states that the place where the harmful event occurred “does not refer to the place where the applicant is domiciled and where his assets are concentrated by reason only of the fact that he has suffered financial damage there resulting from the loss of part of his assets which arose and was incurred in another Member State”. As a consequence the place where the loss of the claimant´s assets occurs and the place where his assets are concentrated only can be qualified as the place where the harmful event occurred, pursuant to Article 5 (3), if other circumstances specific to the case also contribute to attributing jurisdiction to the courts for these places.

The full judgment is available at: http://curia.europa.eu/juris/document/document.jsf?text=&docid=180329&pageIndex=0&doclang=DE&mode=req&dir=&occ=first&part=1

On 2 June 2016 the CJEU came down with its long awaited judgment in Nabiel Peter Bogendorff von Wolfersdorff v. Standesamt der Stadt Karlsruhe. Dealing (once more) with the question whether the freedoms conferred under Article 21 TFEU require Member States to recognize names of private individuals registered in another Member State the Court held that the refusal, by the authorities of a Member State, to recognise the forenames and surname of a national of that Member State, as determined and registered in another Member State of which he also holds the nationality, constitutes a restriction on the freedoms conferred under Article 21 TFEU on all citizens of the EU. However, the Court also found that such a restriction may be justified by considerations of public policy.

David de Groot from the University of Bern (Switzerland) has kindly prepared the following note:

Mr Bogendorff von Wolffersdorff was born as a German national named Nabiel Bagadi. After an adoption his name changed to Peter Nabiel Bogendorff von Wolffersdorff. He moved to Britain and acquired, while being habitually resident there, the British nationality and subsequently changed his name by deed poll to ‘Peter Mark Emanuel Graf von Wolffersdorff Freiherr von Bogendorff’. The German authorities did not want to recognise his new name as it contained the words ‘Graf’ and ‘Freiherr’, which used to be titles of nobility in Germany. According to Article 109 of the Weimar Constitution – which is still applicable based on Article 123 Basic Law – any creation of new titles of nobility is prohibited in Germany. However, the titles of nobility at the time of abolition became an integral part of the surname. Thus in Germany there are still persons who have a former title of nobility in their name. The same issue his daughter had where the German authorities did not want to recognise her name ‘Larissa Xenia Gräfin von Wolffersdorff Freiin von Bogendorff’. In that case, though, the Oberlandesgericht Dresden had decided that the German authorities had to recognise the name established in the United Kingdom.

The District Court of Karlsruhe referred the following question to the CJEU:

Are Articles 18 TFEU and 21 TFEU to be interpreted as meaning that the authorities of a Member State are obliged to recognise the change of name of a national of that State if he is at the same time a national of another Member State and has acquired in that Member State, during habitual residence, by means of a change of name not associated with a change of family law status, a freely chosen name including several tokens of nobility, where it is possible that a future substantial link with that State does not exist and in the first Member State the nobility has been abolished by constitutional law but the titles of nobility used at the time of abolition may continue to be used as part of a name?

A refusal by the authorities of a Member State to recognise a name of its national established while the person exercised his free movement rights in another Member State is likely to hinder the exercise of the free movement rights enshrined in Article 21 TFEU. Furthermore confusion and serious inconvenience at administrative, professional and private levels are likely to occur. This is due to the fact that the divergence between documents gives rise to doubt to the person’s identity and the authenticity of the documents and the necessity for the person to each time dispel doubts as to his identity. Therefore, it is a restriction of Article 21 TFEU which can only be justified by objective considerations which are proportionate to the legitimate objective of the national provisions.

The German authorities had brought several reasons to justify the restriction on the recognition of the name. The first justification brought forward was the immutability and continuity of names. The Court stated that although it is a legitimate principle, it is not a that important principle that it can justify a refusal to recognise a name established in another Member State. The second justification concerned the fact that it was a singular name change, meaning that the name changed independent of another civil status change. Therefore, the name change was dictated on personal reasons.

The Court referred to the case Stjerna v. Finland from the European Court of Human Rights of 1994 where it was stated that there may exist genuine reasons that might prompt an individual to wish to change his name, however that legal restriction on such a possibility could be justified in the public interest. The Court, however also stated that the voluntary nature of the name change does not in itself undermine the public interest and can therefore not justify alone a restriction of Article 21 TFEU. Concerning the personal reasons to change the name the Court also referred to the Centros ruling on abuse of EU law, but did not state whether it actually applied to the case. Concerning the German argument that the name was too long, the Court stated that “such considerations of administrative convenience cannot suffice to justify an obstacle to freedom of movement.”

The most important point made by the German authorities concerned the fact that the name established in the UK entailed former German titles of nobility. The Government argued that the rules on abolishment of nobility and therefore refusal to recognise new titles of nobility were a part of the German public policy and intended to ensure equal treatment of all German citizens. Such an objective consideration relating to public policy could be cable of justifying the restriction; however it must be interpreted strictly. This means that it can only apply when it is a genuine and sufficiently serious threat to a fundamental interest of society.

In Sayn-Wittgenstein the Court had held that it was not disproportionate for Austria to attain the objective of the principle of equal treatment “by prohibiting any acquisition, possession or use, by its nationals, of titles of nobility or noble elements which may create the impression that the bearer of the name is holder of such rank.” However the German legal system is different in that there is not a strict prohibition on maintaining titles of nobility as a part of the family name and it is also possible to acquire it through adoption. It would though not be in the interest of the German legislature if German nationals could under application of the law of another Member State adopt abolished titles of nobility and that these would automatically have to be recognised by the German authorities.The Court was though not sure whether the practice of the German authorities to refuse a name including former titles of nobility, while allowing some persons in Germany to bear such a name, is appropriate and necessary to ensure the protection of the public policy and the principle of equality before the law of all German citizens. As this is a question of proportionality it would be for the referring court to decide upon this.

The Court however marked certain factors that have to be taken into consideration while not being justifications themselves. First of all that Mr Bogendorff von Wolffersdorff exercised his free movement rights and holds double German and British nationality. Secondly, that the elements at issue do not formally constitute titles of nobility in either Germany or the United Kingdom. Thirdly, that the Oberlandesgericht Dresden in the case of the daughter of Mr Bogendorff von Wolffersdorff did not consider the recognition of a name including titles contrary to public policy. However, the court would also have to take into consideration that it concerned a singular name change which is based purely on personal choice and that the name gives impression of noble origins. The Court concluded, however, that even if the surname is not recognised based on the objective reason of public policy, it cannot apply to the forenames, which would have to be recognised.

As such it is not that much a surprise that the Court referred the case back as it concerned a matter of proportionality. But still the Court’s judgment is a bit disappointing as some issues of the referred question are unsolved. For example the Court did never go into the part of the referred question concerning “the future substantial link” of the British nationality. The Court states that Mr Bogendorff von Wolffersdorff is dual German and British national, but it could also have stated that the future substantial link does not matter due to the Micheletti case. Also Article 18 TFEU got lost after the rephrasing of the question and the Court then only concentrated on Article 21 TFEU.

What is though very surprising is that the Court only mentions the case law on abuse of law, but then leaves it open whether it is applicable or not. Considering that Mr Bogendorff von Wolffersdorff lived in the United Kingdom for four years and even acquired British citizenship makes it rather doubtful whether one could consider it an abuse; especially if one compares it for example to the facts of the Torresi case.

It is thus now up to the national court to decide whether all German citizens are equal, or whether some are more equal than others – and all of these are former nobility.

 

 

A study on the Cross-border placement of children in the European Union, commissioned by the EU Parliament, has just been published. It has been drawn up by Laura Carpaneto (Univ. Genova), and is available here.

[Abstract] – This study … explores the range and nature of problems linked to the cross-border placement of children and to the application of article 56 of the Brussels IIa Regulation. Based on an analysis of the practice in 12 Member States and European case law, it identifies a number of shortcomings in the current legislative framework. Looking ahead to the recast of Brussels IIa, the study sets out recommendations to remedy some of the weaknesses, such as clarifying the respective tasks of the Member States involved in cross-border placement cases and facilitating the recognition and enforcement of cross-border placement orders.

The Jean Monnet Center of Excellence and the UNESCO Chair at the Department of International and European Studies, University of Macedonia, Thessaloniki, Greece, is organising a Summer academy on European Studies and Protection of Human rights in Zagora, on Mount Pelion, Greece, consisting of two summer schools in English. The academic faculty in both summer schools are University professors and experts from all over Greece and the EU (Great Britain, Spain and Poland).

The first summer school is on “Freedom, Security and Justice in the EU“.  It will  be held from Friday July 8, afternoon until Monday, July 11, 2016, afternoon. In particular, the summer school will last 25 hours.  The main areas of study will be:

• Institutional Structure and Development (EU institutions, Frontex, Eurojust, European Attorney) which will be analyzed by Prof. Chrysomallis,
• European Citizenship and the protection of fundamental rights in the Area of Freedom Security and Justice by D. Anagnostopoulou,
• Internal and External Security by Prof. F. Bellou,
• Immigration and asylum policies by Prof. V. Hatzopoulos and I. Papageorgiou,
• EU Private International Law by M. Gardenes – Santiago (Autonomous University of Barcelona),
• European criminal law (N. Vavoula, Queen Mary)

For further information in this summer school click here.

The second summer school will begin on Thursday, July 14 afternoon and will end on Tuesday, July 19. It will last 40 hours with a focus on the protection of human rights in Europe:

• International human rights protection mechanisms (International Covenants and International Conventions), taught by f. Professor P. Naskou Perraki (University of Macedonia)
• European Convention on Human Rights by Dr. Dagmara Dajska, expert of the Council of Europe, who will discuss  the right for fair trial and the right to asylum,
• Freedom of Expression by Prof. I. Papadopoulos (University of Macedonia),
• Protection of Personal Data by Prof. E. Alexandropoulou (University of Macedonia),
• EU Charter of Fundamental Rights by Prof. L. Papadopoulou (Aristotle University of Macedonia),
• Prohibition of discrimination by Prof. D. Anagnostopoulou (University of Macedonia),
• LGBT Rights by Prof. Alina Tryfonidoy (Reading University),
• Protection of minorities and cultural rights by Dr. Nikos Gaitenidis, Head of the Observatory on Constitutional Values of the Jean Monnet Centre of Excellence, and
• Workshop on intercultural skills by Prof. I. Papavasileiou (University of Macedonia)

For further information on this summer school click here.

A Certificate of attendance will be issued to all while a Certificate of Graduation will be awarded to all those passing a multiple choice examination.

For additional information and applications to any of the schools, please refer to the links below or contact:

Assistant Professor Despina Anagnostopoulou, danag@uom.gr

or Ms. Chrysothea Basia, chrybass@yahoo.com

An article by A. Anthimos, Czech Yearbook of International Law 2017 volume VIII (Forthcoming), accessible at SSRN.

Abstract. Fictitious forms of service have dominated for decades the notification of documents abroad. The insecurity caused by these means of service led to the ratification of the 1965 Hague Service Convention by a significant number of countries. Still, the problem has not been solved, because the Convention did not dare to take the steps towards abolition of fictitious service. The sole exception being, stipulated under Article 19, for documents instituting proceedings. The EU-Service Regulation followed the same path. For nearly 10 years, fictitious service was not discarded by national courts in all cases. However, a recent judgment of the ECJ interpreted the Service regulation as banning all forms of fictitious service. This ruling led to a shift in national jurisprudence. However, at the same time it triggered reactions.

The purpose of this paper is to contribute to the discussion surrounding the ECJ ruling, by highlighting its repercussions both within the framework of the Service Regulation, and potentially in the ambit of the multilateral Hague Service Convention.

Alfonso-Luis Calvo Caravaca, Javier Carrascosa González, Derecho Internacional Privado, 16a ed., Editorial Comares, 2016, vol. I, ISBN: 9788490454060, pp. 992, 39,50 euro, e vol. II, ISBN: 9788490454121, pp. 1512, 42 euro.

[Dal sito dell’editore] – La décimosexta edición de este «Derecho internacional privado, volumen I» persigue ofrecer al lector un material de estudio del Derecho internacional privado convenientemente actualizado, sistemático y comprensible. Esta nueva edición se presenta con un doble objetivo. Por una parte, servir como texto para el estudio, en el ámbito universitario, de un DIPr. enteramente orientado a la práctica, y por otra parte, operar como instrumento de ayuda en la aplicación del Derecho internacional privado por los profesionales del Derecho.

I sommari dei volumi I e II possono essere consultati, rispettivamente, qui e qui.

Maggiori informazioni sono reperibili a questi indirizzi: volume I e volume II.

Others have reported in some detail, and I am happy to refer, on Arlewin v Sweden at the ECtHR – the second Strasbourg conflicts ruling I report on in more or less one week. Epra have a short and sweet review, based mostly on the Court’s press release but useful nevertheless: they for instance suggest that Strasbourg have extended e-Date Advertising’s centre of interests rule for infringement of personality rights via the internet, to transmission by satellite. Dirk Voorhoof takes the media regulation angle. Dr Takis has the most extensive review over at Profs Peers and Barnard’s EU law analysis.

The case is a good illustration of an important port of entry for the ECHR into EU conflicts law in commercial litigation at least (I am not talking here of family law): Article 6’s right to fair trial. (See here for more extensive review of the Convention’s impact on European private international law). Strasbourg and Luxemburg are playing combination football here: the ECtHR approving of the CJEU’s application of the Brussels I Regulation in the case of libel and defamation. Especially with the EC’s recent shift of focus to the plaintiff’s position rather than the defendant’s , nothing guarantees of course that in the future EU law at this point might not be at odds with human rights law.

Geert.

(Handbook of) EU private international law, 2nd ed, 2016, Chapter 2, Heading 2.2.11.2.4 .

In cooperation with the Centre de droit privé fondamental of the University of Strasbourg  and  the Centre d’études sur l’efficacité des systèmes juridiques continentaux of the University of Reims Champagne-Ardenne, the Société de législation comparée organises an international conference entitled:

 The application of foreign law under constitutional and treaty-based review

 (Le droit étranger à l’épreuve des contrôles de constitutionnalité et de conventionnalité)

Scholars and practitioners in the fields of private international law from different backgrounds will meet in Paris to identify new models of control in the application of foreign law within Western legal systems and compare them with a view to understanding the place of the Otherness today in Europe and in Americas.

Date: 23 September 2016

Venue: Cour de Cassation, Grand’Chambre, 5, Quai de l’Horloge, 75001 – Paris.

 

Conference Directors:

Gustavo Cerqueira, Senior Lecturer at the University os Reims (France)

Nicolas Nord, Senior Lecturer at the University of Strasbourg, Vice-Dean of the Faculty of Law (France)

 

With the participation of :

Bertrand Louvel, First-President of the French Cour de cassation

Dominique Hascher, Chairman of the Société de législation comparée

Jean Massot, Honorary Section’s President at the French Conseil d’Etat

Danièle Alexandre, Emeritus Professor at the University of Strasbourg

Paul Lagarde, Emeritus Professor at the University of Paris I Panthéon-Sorbonne

Sylvaine Poillot-Peruzzetto, Councillor at the Cour de cassation in extraordinary service

Guillaume Drago, Professor of the University of Panthéon-Assas Paris II

 

Prolegomena :

Jean-Sylvestre Bergé, Professor at the University of Jean Moulin Lyon 3

Julien Boudon, Professor at the University of Reims, Dean of the Faculty of Law

 

French Perspectives :

Alice Meier-Bourdeau, Attorney at the French Conseil d’État and Cour de cassation

Hugues Fulchiron, Professor at the University of Jean Moulin Lyon 3

Pascal de Vareilles-Sommières, Professor at the University of Paris I Panthéon-Sorbonne

 

Comparative Perspectives :

Serena Forlati, Associate Professor at the University of Ferrara

Fernanda Munschy, Attorney at the Bar of Strasbourg

Gustavo Cerqueira, Senior Lecturer at the University of Reims Champagne-Ardenne

Alejandro Garro, Associate Professor at the University of Columbia

Patrick Kinsch, Professor at the University of Luxembourg

Gustavo Monaco, Professor at the University of São Paulo

Didier Opertti-Bádan, Former Ministry of Foreign Affaires of Uruguay

See whole program here.

No participation fee.

Registration and further information:

Gordon Choisel / gordon.choisel@legiscompare.com

On 17 June 2016, the University of Milan will host a conference on The 2030 Agenda and the SDGs: Challenges of Implementation in a Global Perspective.

Speakers include Jean-Louis De Brouwer (EU Commission), Mariarosa Cutillo (UNFPA) and Thomas Schoenbaum (UW School of Law).

Nerina Boschiero (Univ. Milan) will introduce the discussion, while Tullio Treves (Univ. Milan) will draw the conclusions.

The programme of the event is available here.

The Estonian Riigikohus has requested, on 7 April 2016, a preliminary ruling from the CJEU on a case concerning violations of a legal person‘s rights committed on the internet: Bolagsupplysningen OÜ, Ingrid Ilsjan v. Svensk Handel AB, Case C-194/16). The Estonian court has asked the following questions:

1. Is Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that a person who alleges that his rights have been infringed by the publication of incorrect information concerning him on the internet and by the failure to remove comments relating to that information can bring an action for rectification of the incorrect information and removal of the harmful comments before the courts of any Member State in which the information on the internet is or was accessible, in respect of the harm sustained in that Member State?

2. Is Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that a legal person which alleges that its rights have been infringed by the publication of incorrect information concerning it on the internet and by the failure to remove comments relating to that information can, in respect of the entire harm that it has sustained, bring proceedings for rectification of the information, for an injunction for removal of the comments and for damages for the pecuniary loss caused by publication of the incorrect information on the internet before the courts of the State in which that legal person has its centre of interests?

3. If the second question is answered in the affirmative: is Article 7(2) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that:

— it is to be assumed that a legal person has its centre of interests in the Member State in which it has its seat, and accordingly that the place where the harmful event occurred is in that Member State, or

— in ascertaining a legal person’s centre of interests, and accordingly the place where the harmful event occurred, regard must be had to all of the circumstances, such as its seat and fixed place of business, the location of its customers and the way and means in which its transactions are concluded?

Many thanks to Dr. Christina Mariottini (HCCH/ILA) and Meeli Kaur for the tip-off!

— This is the amended version of a post published on 14 June 2016. 

On 17 June 2016 the University Milano-Bicocca will host a conference on Divorce and parental responsibility under the Brussels II bis Regulation.

The participation to the colloquium is reserved to judges and attorneys selected by the Scuola Superiore della Magistratura and by the Associazione Italiana degli Avvocati per la famiglia e per i minori (AIAF).

Presentations will be given by academics from Italy, Croatia, Spain and Lithuania on issues such as the habitual residence and the hearing of the child, prorogation of jurisdiction and transfer of proceedings.

Speakers include Maria Caterina Baruffi (Univ. Verona), Carola Ricci (Univ. Pavia) and Costanza Honorati (Univ. Milano Bicocca).

Further information may be found in the flyer of the initiative, available here.

Scade il 15 luglio 2016 il termine per iscriversi all’edizione 2016 di EULoS, una summer school sui temi del diritto del mare rivolta a laureati e dottorandi, organizzata dalle Università di Genova e Brema, dalla Hochschule Bremerhaven e dall’Institut für Seevölkerrecht und Internationales Meeresumweltrecht di Brema.

I corsi si terranno a Brema, fra il 22 agosto e il 2 settembre 2016.

Come la passata edizione, anche le lezioni di quest’anno toccheranno, fra gli altri, argomenti di interesse internazionalprivatistico.

Maggiori informazioni a questo indirizzo.

On 17 June 2016 the University Milano-Bicocca will host a conference on Divorce and parental responsibility under the Brussels II bis Regulation.

Presentations will be given by academics from Croatia, Spain and Lithuania on issues such as the habitual residence and the hearing of the child, prorogation of jurisdiction and transfer of proceedings.

Further information may be found in the flyer of the initiative, available here.

According to a document of 3 June 2016 (9770/16), the Council of the European Union is expected to confirm a general approach on the Commission’s proposals for two regulations on the property regimes of international couples.

The regulations are meant to implement enhanced cooperation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, and on the property consequences of registered partnerships.

The general approach refers to the texts of the regulations as result, respectively, from document 8115/16 and document 8118/16 of the Council, both dated 30 May 2016.

As noticed in an earlier post, eighteen Member States have expressed the intention to take part in the enhanced cooperation.

The adoption of the regulations will take place once the European Parliament has given its opinion in accordance with Article 81(3) of the Treaty on the Functioning of the European Union.

In Case C-185/15 Kostanjevec, Kokott AG (not available in English at the time of writing) advised on a number of issues in relation to a counterclaim under Article 6(3) Brussels I (now 8(3) of the Recast). At the core of the dispute lies a leasing contract and the consumer counterclaiming for restitution per unjust enrichment, of the sums she had transferred to counterparty. The counterclaim follows the annulment of the contract between the two, even though Marjan Kostanjevec had initially been ordered to pay.

The first relates to the temporal scope not of the Recast Brussels I Regulation viz Brussels I, but rather simply of Regulation 44/2001, in particular with respect to a Member State (Slovenia) which joined the EU on 1 May 2004. The Brussels Convention had never applied to Slovenia. The proceedings between parties  go back to 1995, prompting the EC among others to suggest that per Article 66 of the Regulation (This Regulation shall apply only to legal proceedings instituted…after the entry into force thereof) it simply does not apply. Kokott AG however suggests first of all that the new claim in restitution, followed the use of a separate means of redress under Slovenian law, instituted after the initial claim by the leasing company had been wrapped up in its entirety. Moreover, other language versions refer not to ‘proceedings’ but rather to a claim (defined in C-341/93 Danvaern Production as claims by defendants which seek the pronouncement of a separate judgment or decree. It does not apply to the situation where a defendant raises, as a pure defence, a claim which he allegedly has against the plaintiff (at 18). 

Regulation 44/2001 applies therefore, in the view of the AG. I would agree that it should: this is particularly relevant where parties have a long and complex history of litigation. (Similarities here may exist with Nikiforidis, which is in my blog pile). Applying Danvaern Production however for the interpretation of Article 66 I think may be problematic. The raison d’être of Article 6(3) is to help avoid conflicting decisions in cases that are closely related. Even if, per Danvaern, they seek a separate pronouncement, they do essentially relate to reciprocal commitments which are part of the same bundle of facts. (See also Kokott AG herself, in para 44 of her Opinion with reference to the Jenard Report and to Léger AG in Danvaern). It feels a little inconsistent to call upon arguments developed viz inseparable claims (under Art.6(3): Danvaern) to support a thesis of separability (viz the application ratione temporis: they are separate claims even if they have a common history in fact and in contractual liaison).

With reference to C-297/14 Hobohm, the AG subsequently also advises that the counterclaim is covered by the Regulation’s consumer contracts title as having a ‘close link’ with the consumer contract, and, for the sake of completeness, and with reference to Profit SIM, that claims for restitution are covered by (now) Article 7(1) ‘s forum contractus even if they are grounded in the contract at issue not actually having existed.

I am curious how the Court will approach the temporal application issue.

Geert.

(Handbook of) European Private International law, 2nd ed. 2016, chapter 2, Heading 2.2.11.1.a, Heading 2.2.21.3, Heading 2.1.1

 

 

Under the State Immunity Act, foreign states are generally immune from being sued in Canada.  This includes being sued on a foreign judgment.  However, in 2012 Canada enacted legislation to give victims of terrorism the ability to sue a foreign state that sponsored the terrorism.  It also made it easier for foreign judgments against such a state to be enforced in Canada.

In Tracy v The Iranian Ministry of Information and Security, 2016 ONSC 3759 (released June 9, 2016; likely to be posted in the week of June 13, 2016, in CanLII) the Ontario Superior Court of Justice had to consider these legislative reforms and how they applied to a series of American judgments rendered against Iran in favour of American victims of terrorist acts which Iran was found to have sponsored.  The court held that Iran was not immune from the enforcement proceedings and that accordingly the American judgments were enforceable against certain assets of Iran in Ontario.

The decision is reasonably detailed.  It involves interpretation of the State Immunity Act and the Justice for Victims of Terrorism Act.  It also considers issues relating to the limitation period and the enforcement of punitive damages awards (in this case, in the hundreds of millions of dollars).  Not all of the analysis resonates as convincing and there is considerable scope for a possible appeal.  For example, Iran’s argument that the loss or damage suffered by the victim had to have been, on the language of s 4(1) of the JVTA, suffered after January 1, 1985, did not prevent the enforcement of American decisions in respect of acts of terror which happened before that date because, the court held, the victims continued to suffer harm on an ongoing basis.  This seems vulnerable to challenge.  In addition, the court’s reasoning as to why the enormous punitive damages awards were not contrary to public policy is extremely brief.

However, on any appeal, Iran does have a significant procedural problem to overcome.  It did not defend the enforcement actions when they were initially brought in Ontario.  All of the immunity arguments were canvassed by the court as part of Iran’s motion to have the resulting default judgments set aside, on the issue of whether Iran might have a viable defence on the merits.  But at no point did Iran offer any explanation for the initial failure to defend.  While not conclusive, this weighs against setting the judgments aside even if Iran can show merit to its position on immunity.

The timing of the court’s decision against Iran could pose challenges for the current Canadian government, which is currently working to re-engage with Iran after the previous government cut ties in 2012 (see news story here).  In addition, a Montreal-based professor has recently been jailed in Iran and this has caused considerable concern in Canada (see news story here).

The University of Lucerne and the Hague Conference on Private International Law (HCCH) will be co-organizing a conference on the implementation of the Hague Choice of Law Principles ( “Towards a Global Framework for International Commercial Transactions: Implementing the Hague Principles on Choice of Law in International Commercial Contracts”) on 8/9 September 2016. The conference serves to  analyze the impact and prospects of the 2015 Principles on Choice of Law in International Commercial Contracts (the Hague Principles)  in the context of other relevant legal instruments applicable to international commercial transactions. It brings together distinguished academics, experts, private practitioners and representatives from various international institutions.

Scholars and practitioners in the fields of private international law and commercial law and dispute resolution are encouraged to participate.

Conference Directors: Prof. Dr. Daniel Girsberger, University of Lucerne (Switzerland), Dr. Christophe Bernasconi, Secretary-General (HCCH)

Venue: University of Lucerne, Auditorium 9, Frohburgstrasse 3, CH-6002 Lucerne (Switzerland)

Speakers: Jürgen Basedow, Neil B. Cohen, Andrew Dickinson, Roberto Echandi, José Angelo Estrella Faria, Franco Ferrari, Lauro Da Gama e Souza Jr, Thomas Kadner Graziano, Peter Mankowski, Jan L. Neels, Emily O’Connor, J.A. Moreno Rodríguez, Geneviève Saumier, Linda Silberman, Renaud Sorieul

Participation fee: CHF 250.– (including documentation, catering and dinner on Thursday, 8 September 2016; accommodation not included)

Registration and further information: https://regis.buchertravel.ch/event/HCCH_2016

Contact: Mrs. Lisbeth Meule (lisbeth.meule@unilu.ch)

 

by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

UNCITRAL Working Group V (Insolvency Law) has issued a report on the work of  its forty-ninth session, which took place in New York from 2 – 6 May 2016. The Working Group continued its deliberations on the cross-border insolvency of multinational enterprise groups, the recognition and enforcement of insolvency-derived judgments and the obligations of directors of enterprise group companies in the period approaching insolvency. Furthermore the report communicates that a meeting of an open-ended informal group established to consider the feasibility of developing a convention on international insolvency issues has taken place. This is rather exciting, as the development of an international insolvency convention by UNCITRAL would constitute the next big step in international insolvency law leaving behind the defiencies of soft law. The report is available at: http://www.uncitral.org/uncitral/en/commission/working_groups/5Insolvency.html.