Flux des sites DIP

Nigel Blackaby, Constantine Partasides, Alan Redfern, Martin Hunter, Redfern and Hunter on International Arbitration, 6a ed., Oxford University Press, 2015, pp. 944, ISBN 9780198744870, GBP 175.

[Dal sito dell’editore] This leading commentary on international commercial arbitration, now in its sixth edition, is an essential guide for arbitrators and lawyers worldwide. Based on the authors’ extensive experience as counsel and arbitrators, it provides an updated explanation of all elements of the law and practice of arbitration. This pack includes the hardback and an ebook version. This text provides an authoritative guide to the international arbitral process, from the drafting of the arbitration agreement to the enforcement of arbitral awards. The sixth edition has been updated to incorporate reference to the latest significant developments in the field such as the new LCIA, ICC and UNCITRAL Rules and new IBA Guidelines. There will also be an increased reference to international arbitral authority and practice from beyond Europe (China, India, and the US). Following the chronology of an arbitration, the book covers applicable laws, arbitration agreements, the establishment and powers of a tribunal, the conduct of proceedings and the role of domestic courts. In addition, it provides an in-depth examination of the award itself, and comments on the special considerations applying to arbitrations brought under investment treaties. It draws on examples of the rules and practice of arbitration at the International Chamber of Commerce, the London Court of International Arbitration, the American Arbitration Association, the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law.

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Thank you for the team at Dechert to remind us of the potential that BITs may be used to pursue proactive, rather than just reactive environmental litigation. A word of explanation: Bilateral Investment Treaties, in particular their investor-state dispute settlement mechanisms, are currently under a lot of pressure following the public outcry over the TTIP negotiations. Allowing private investors to sue countries that roll out regulation, using vague principles of protection of property, is seen by many as a form of corporate bullying.

Dechert’s briefing however reminds us firstly, specifically vis-a-vis stubborn air pollution in the Indonesia area, that States may carry responsibility in line with Trail Smelter’s nec utere tuo principle. The possibility for individuals (as opposed to neighbouring States) suing on that basis, is of course complicated by the mechanism of (absence of) direct effect of huge chunks of international environmental law. That is where investor-state can come in handily. Such as in Allard v Barbados at the Permanent Court of Arbitration. Dechert’s summary of that case reads ‘the Canadian owner of an eco-tourist facility in Barbados is currently suing the Government of Barbados for an alleged breach of the full protection and security provision (among other provisions) in the Canada- Barbados bilateral investment treaty. Peter Allard argues in his claim that Barbados breached its treaty obligations by failing to enforce its domestic environmental laws, which he alleges led to the environment being spoilt and a loss of tourist revenues at his eco-resort’.

A timely reminder of the good BITs can do, just before I am to speak (again) tomorrow on TTIP and why EU citisens are so suspicious of it.

Geert.

A conference on Security Rights and the New European Insolvency Regulation will take place in Erice on 19 October 2015 at the Ettore Majorana Foundation and Centre for Scientific Culture.

The conference will consist of four sessions: The Regulation 848/2015 and the endorsed policy on security rights; The Regulation 848/2015 and its ex post impact on security rights (avoidance rules and moratorium); Regulation 848/2015, security rights and third states; Suggestions for a better regulation.

[From the poster of the conference] – This conference examines EU Regulation 2015/848 of 20 May 2015 on insolvency proceedings and, in particular, focuses on its prescriptions regarding security rights in rem and those regulatory devices, such as set-off and reservation of title clause, which in actual fact perform the same function as security rights. EU Regulation 2015/848 reformed – or, to be more precise, recast – EC Regulation 1346/2000, and is a significant improvement on EC Regulation 1346/2000. Nevertheless, EU Regulation 2015/848 did not change the regulation on security rights and quasi-security rights (except for what is laid down by Art. 2.9). This choice of policy, which was endorsed by EU Regulation 2015/848, cannot be said to be satisfactory and is at the core of a lively debate. The conference, which is organized as part of the SREIR Project (http://sreir.eu/), aims to analyse the key points of this topic, to compare the most suitable strategies for a better regulation and, in short, to make an active and useful contribution to the debate.

The conference program is available here. Information regarding fees, accommodation and registration can be found here.

The Hague Convention of 30 June 2005 on Choice of Court Agreements enters into force today, 1 October 2015, for the European Union and Mexico.

Pursuant to Article 16, it shall apply to choice of court agreements concluded after its entry into force for the State of the chosen court, and shall not apply to proceedings instituted before its entry into force for the State of the court seised.

In essence, the purpose is the Convention — which applies to exclusive choice of court agreements concluded “in civil or commercial matters”, with the exclusion of consumer contracts, employment contracts and a few more matters — is to ensure the effectiveness of forum selection clauses relating to international commercial transactions, thereby creating a climate more favourable to trade and investment.

The Convention basically provides that the court designated by the parties under a choice of court agreement made in conformity with the Convention must in principle hear the case, whereas any court other than the chosen court must in principle decline jurisdiction. Judgments rendered by the chosen court must be recognised and enforced in all other Contracting States, except where recognition or enforcement is denied under one of the grounds enumerated by the Convention itself.

As regards the relationship with Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia), the Convention provides, in Article 26(6), that “it shall not affect the application of the rules of a Regional Economic Integration Organisation that is a Party to this Convention”, ie the EU, (a) where none of the parties is resident in a Contracting State that is not a Member State of the EU; (b) as concerns the recognition or enforcement of judgments as between Member States of the EU.

In practice, the Convention will affect the application of the Brussels Ia Regulation if at least one of the parties is resident in a State bound by the Convention, and will prevail over the rules of jurisdiction in the Regulation except if both parties are EU residents or come from third states, not Contracting Parties to the Convention. As to the recognition and enforcement of judgments, the Regulation will apply where the court that rendered the judgment and the court in which recognition and enforcement is sought are both located in the EU.

The Explanatory Report by Trevor Hartley and Masato Dogauchi may be found here. For a bibliography on the Convention, see here.

Con un decreto dell’11 marzo 2015, il Tribunale di Milano si è occupato dello scioglimento di un matrimonio contratto in Tunisia.

Nella specie, la moglie intendeva far valere l’ipotesi di cui all’art. 3, n. 2, lett. c), della legge 1° dicembre 1970 n. 898 sul divorzio, che prevede la possibilità di richiedere lo scioglimento o la cessazione degli effetti civili del matrimonio laddove “l’altro coniuge, cittadino straniero, ha ottenuto all’estero l’annullamento o lo scioglimento del matrimonio o ha contratto all’estero nuovo matrimonio”. Il marito, infatti, aveva già ottenuto dinanzi ad un tribunale tunisino lo scioglimento del matrimonio per volontà unilaterale, con affidamento dei due figli minori alla madre.

Il Tribunale di Milano rileva dapprima come la decisione resa dal giudice tunisino non sia stata contestata, non essendo stato promosso il procedimento di cui all’art. 30 del decreto legislativo n. 150/2011, richiamato all’art. 67, comma 1-bis, della legge 31 maggio 1995 n. 218, di riforma del sistema italiano di diritto internazionale privato. Senonché, osserva il Tribunale, lo stesso art. 67 della legge n. 218/1995, al comma 3, prevede la possibilità di accertare d’ufficio ed incidentalmente la riconoscibilità di una decisione straniera “con efficacia limitata al giudizio”.

Il giudice milanese osserva innanzitutto, a questo riguardo, che se la decisione fosse efficace in Italia, le parti risulterebbero avere già acquistato lo stato libero (anche in assenza di trascrizione nei registri dello stato civile, che non ha efficacia costitutiva). Il ricorso sarebbe allora inammissibile per mancanza di interesse ad agire ai sensi dell’art. 100 del codice di procedura civile.

Solo nel caso in cui la pronuncia fosse in contrasto con l’ordine pubblico italiano, il giudice dovrebbe applicare l’art. 3, n. 2, lett. c), della legge n. 898/1970, da interpretarsi peraltro nel senso di “ammettere il divorzio c.d. diretto nei casi in cui il coniuge cittadino italiano abbia ‘subito’ la scelta unilaterale del coniuge straniero di liberarsi dal vincolo matrimoniale ricorrendo al giudice straniero ed applicando la legge quivi vigente (da taluni definito in termini di ‘fenomeno delle c.d. vedove bianche’)”.

Di contro, laddove il coniuge italiano abbia partecipato al giudizio straniero (vale a dire esercitando i diritti e beneficiando delle garanzie previste dalla normativa straniera), il ricorso di cui all’art. 3, n. 2, lett. c), della legge n. 898/1970 dovrebbe considerarsi inammissibile.

Poiché nel caso di specie la moglie era stata effettivamente coinvolta nel procedimento dinanzi al tribunale tunisino (dalla sentenza si evince come la notifica dell’atto di citazione si fosse correttamente perfezionata e la donna avesse nominato un avvocato di fiducia), il Tribunale di Milano, ex officio, solleva la questione relativa all’inammissibilità della domanda ai sensi dell’art. 101 del codice di procedura civile, assegnando ai coniugi un termine per presentare memoria difensive e fissando una nuova udienza.

International Succession, 4a ed., a cura di Louis Garb and John Wood, Oxford University Press, 2015, pp. 992, ISBN 9780198727262, GBP 195.

[Dal sito dell’editore] This new edition has been extended to include chapters on Poland, Russia, Singapore, and US – Illinois, making this the most comprehensive analysis of succession laws available. Each country analysis is based on a similar set of questions to ensure that all issues are tackled for every jurisdiction and to enable the reader to make easy comparisons between the countries included. The book also considers the law at regional level in the European Union explaining the effect of recent EU legislation with regard to harmonization, and considering the impact of the European Succession Regulation post-implementation. Now covering 53 jurisdictions, this work is an invaluable reference source for those advising on matters of international succession, especially in cases where there are cross-border elements.

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Giorgio Conetti, Sara Tonolo, Fabrizio Vismara, Manuale di diritto internazionale privato, 2a ed., Giappichelli, 2015, pp. XVIII+310, ISBN 9788834866474, Euro 26.

Questa la struttura dell’opera: Parte generale — Nozione e fonti; La giurisdizione; Il diritto applicabile; Efficacia di sentenze ed atti stranieri; Cooperazione giudiziaria in materia civile: assunzione di mezzi di prova e notificazioni. Parte speciale — Capacità e diritti delle persone fisiche; Società e persone giuridiche; Matrimonio e divorzio; Filiazione e adozione; Tutela degli incapaci; Obblighi alimentari; Successioni e donazioni; Diritti reali; Obbligazioni.

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Il 19 novembre 2015 l’Università di Barcellona ospiterà un incontro organizzato dalla Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI), dedicato alle novità che il diritto internazionale privato ha conosciuto negli ultimi mesi, in Spagna, per effetto della Ley 15/2015, del 2 luglio 2015, sulla giurisdizione volontaria, e della Ley 29/2015, del 30 luglio 2015, sulla cooperazione giudiziaria in materia civile.

Tra i relatori,  Carlos Esplugues (Univ. Valencia), Mónica Guzmán (UNED), Federico Garau (Univ. Islas Baleares), Javier Carrascosa González (Univ. Murcia), Cristina González Beilfuss (Univ. Barcelona), Andrés Rodríguez Benot (Univ. Pablo Olavide).

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First, a quick heads-up on precedent: the difference between ‘contract’ and tort’ in European private international law is crucial, as regular readers of this blog will have observed. Crucial, yet the concept is left undefined in the Brussels I (and Recast) Regulation (which has a different special jurisdictional rule for both), the Rome I Regulation on applicable law for contracts, and the Rome II Regulation on applicable law for torts. Undefined, for these foundational elements of private law are outside the reach of legal and political compromise in the legislative process. Yet courts of course do have to apply the rules and in doing so, have to distinguish between both.

The CJEU pushes an ‘autonomous’ EU definition of both concepts which in the past has led to the seminal findings in Jakob Handte (C-26/91) and Kalfelis. In Handte the Court held: the phrase ‘matters relating to a contract [ ] is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another.’ (the double negative exercised scholarship for some time). In Kalfelis the Court had earlier defined ‘tort’ as ‘all actions which seek to establish liability of a defendant and which are not related to a ‘contract’ within the meaning of Article 5(1).’ (5(1) has become 7(1) in the Recast).

Is the relationship between two insurers, having covered liability for a towing vehicle cq a trailer, each subrogated in their insured’s rights and obligations, one of them currently exercising a claim against the other in partial recovery of the compensation due to the victim, non-contractual?

Per Kalfelis, tort as a category is residual. Sharpston AG’s starting point in Joined Cases Ergo Insurance and AAS Gjensidige Baltic, Opinion issued yesterday, therefore is to examine whether the recourse action is essentially contractual in nature. In the negative, the action is non-contractual. The case is evidently made more complex by the underlying relationships between insurer and insured, and the presence of subrogration. In question is not therefore the relationship between the insurer and the victim: this is clearly non-contractual. The question is rather whether the action of one insurer against the other is contractual in nature, given the contractual relationship between insurer and insured, cq the non-contractual relationship between the insured and the victim.

Sharpston AG first gets two issues out of the way. Lithuania (both referred cases are pending in Lithuanian courts) is a signatory State to the Hague Convention on the law applicable to traffic accidents, which is left unaffected by Rome II by virtue of Article 28. However the Convention itself holds that it does not apply to recourse action and subrogation involving insurance companies. Further, a suggestion that Directive 2009/103 (relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability) includes a conflict of laws (applicable law) rule which is lex specialis vis-a-vis the Rome Regulation, was quickly dismissed. Indeed the Directive’s provisions do not indicate whatsoever that they can be stretched.

Then comes the core of the issue, the nature of the relationship underlying the claim. This, the AG suggests, is contractual. Relevant precedent referred to includes Brogsitter and OFAB. Essentially the AG puts forward an ancestry test: what is the ancestry of the action, without which the parties concerned would not be finding themselves pleading in a court of law?: she uses ‘centre of gravity’ (‘the centre of gravity of the obligation to indemnify is in the contractual obligation’); ‘rooted in’ (‘the recourse action by one insurer against the other…is rooted in the contracts of insurance’); and ‘intimately bound up’ (‘[the action] is intimately bound up with the two insurers’ contractual obligation‘). (at 62).

Incidentally, in para 20 of her Opinion the AG refers, in giving context, to the difference between Lithuanian and German law (the accidents both occurred in Germany) as regards the limitation periods for bringing a recourse action. In Rome II, limitation periods are included in Article 15 as being covered by the lex causae; ditto in Article 12 of Rome I. This pre-empts discussion on the matter for whether limitation periods are covered by lex fori (as a procedural issue) or the lex causae is otherwise not necessarily the same in all Member States.

If the CJEU confirms, preferably using the terminology of its AG, the tort /contract discussion in my view will have been helpfully clarified.

Geert.

Si svolgerà il 1° e il 2 ottobre 2015, presso la Universidad Carlos III di Madrid, un convegno dal titolo Sucesiones internacionales, dedicato in larga parte al regolamento n. 650/2012 sulla competenza, la legge applicabile, il riconoscimento e l’esecuzione delle decisioni in materia di successioni per causa di morte.

Tra i partecipanti, Alfonso-Luis Calvo Caravaca (Univ. Carlos III), Esperanza Castellanos Ruiz (Univ. Carlos III), Angelo Davì (Univ. La Sapienza), Alessandra Zanobetti (Univ. Bologna) e Javier Carrascosa González (Univ. Murcia).

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Trade Secrecy and International Transactions, a cura di Elizabeth A. Rowe e Sharon K. Sandeen, Edward Elgar, 2015, pp. 368, ISBN 9781782540779, GBP 125.

[Dal sito dell’editore]  Trade secret protection has long been of critical strategic importance to business interests and globalization of commerce has driven an increasing need to govern the preservation of confidentiality in international business transactions. This book offers an authoritative and unparalleled resource on US and international trade secret law and identifies optimal practices for securing trade secrets in varying jurisdictions. Defined as the international standard for trade secret protection, the United States’ trade secret laws are explained in depth, illustrating their capacity and impediments. The proposed EU Trade Secret Directive and the impact this will have on international transactions is also closely examined, along with overviews of the laws in common law, civil law and mixed-law countries. The book combines detailed substantive analysis with clear practical guidance on questions such as how businesses can avoid misappropriation and maintain data exclusivity when engaging in global commerce, through the utilization of alternative self-help strategies.

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Last weekend the GEDIP (Group européen de droit international privé / European Group for Private International Law) met in Luxembourg. The GEDIP defines itself as “a closed forum composed of about 30 experts of the relations between private international law and European law, mainly academics from about 18 European States and also members of international organizations”. Nevertheless, as the meeting was hosted by the MPI -together with the Faculty of Law of Luxembourg- I had the privilege of being invited to the deliberations.

The history and purpose of the Group are well known: founded in 1991 (which means that it has just celebrated its 25fh anniversary), the Group has since then met once a year as an academic and scientific think tank in the field of European Private International Law. During the meetings the most recent developments in the area are presented and discussed, together with proposals for improving the European PIL legal setting. Actually, while the latter activity is at the core of the GEDIP gatherings, the combination with the former results in a well-balanced program. At the same time it shows the openness and awareness of the Group to what’s happening in other fora (and vice versa): the Commission -K. Vandekerckhove joined as observer and to inform on on-going activities-; the Hague Conference -represented this time by M. Pertegás, who updated us on the work of the Conference-, or the ECtHR -Prof. Kinsch summarized the most relevant decisions of the Strasbourg Court since the last GEDIP meeting.

In Luxembourg we enjoyed as hors d’oeuvre a presentation by Prof. C. Kohler on the CJEU Opinion 2/13, Opinion of the Court (Full Court) of 18 December 2014, on the Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedom. Prof. Kohler started recalling the principle of mutual trust as backbone of the Opinion. From this he moved on to focus on the potential impact of the Opinion on PIL issues, in particular on the public policy clause in the framework of the recognition and enforcement of judgements in civil and commercial matters (here he recalled the recently published decision on C-681/13, where the Opinion is expressly quoted); and on cases of child abduction involving Member States, where the abolition of exequatur may elicit a doubt on the compliance with the ECHR obligations (see ad.ex. the ECtHR decision on the application no. 3890/11, Povse v. Austria). A second presentation, this time by Prof. T. Hartley, addressed the very much disputed issue of antisuit injunctions and the Brussels system in light of the Gazprom decision, case C-536/13. Prof. Hartley expressed his views on the case and explained new strategies developed under English law to protect the effects of choice of court agreements, like the one shown in AMT Futures Limited v. Marzillier, where the latter is sued for having induced the clients of the former to issue proceedings in Germany and to advance causes of action under German law, and thereby to breach the terms of the applicable exclusive jurisdiction and choice of law clauses. AMT claims damages against Marzillier for their having done so, its claim being a claim in tort for inducement of breach of contract

The heart of the meeting was the discussion on two GEDIP on-going projects: a proposal for a regulation on the law applicable to companies, and another on the jurisdiction, the applicable law, the recognition and enforcement of decisions and the cooperation in divorce matters. The first one is at its very final stage, while the second has barely started. From an outsiders point of view such a divergence is really interesting: it’s like assisting to the decoration of a baked cake (companies project), or to the preparation of the pastry (divorce project). Indeed, in terms of the intensity and quality of the debate it does not make much difference: but the fine-tuning of an almost-finished legal text is an amazing encaje de bolillos task, a hard exercise of concentration and deploy of expertise to manage and conciliate a bunch of imperative requisites, starting with internal consistency and consistency with other existing instruments. I am not going to reproduce here the details of the argument: a compte-rendu will be published in the GEDIP website in due time. I’d rather limit myself to highlight how impressive and strenuous is the work of finalizing a legal document, making sure that the policy objectives represented by one provision are not belied by another (the moment this happens the risk is high that the whole project, the underlying basics of it, is unconsciously being challenged), checking the wording to the last adverb, conjunction and preposition, deciding on what should be part of the text and what should rather be taken up in a recital, and so on. By way of example, let me mention the lively discussion on Sunday on the scope and drafting of art. 10 of the proposal on the law applicable to companies, concerning the overriding mandatory rules: I am really eager to see what the final outcome is after the heated debate on how to frame them in the context of a project where party autonomy is the overarching principle, at a time when companies are required to engage in the so-called corporate social responsibility whether they want it or not. Only this point has remained open and has been reported to the next meeting of the GEDIP next year.

I wouldn’t like to end this post without referring to the commitment of the GEDIP and its members with the civil society concerns. On Saturday Prof. Van Loon presented a document drafted in light of the plight of migrants, refugees, and asylum seekers in Europe. The text, addressed to the Member States and Institutions of the EU, aims to raise awareness of the immediate needs of these groups in terms of civil status and of measures to protect the most vulnerable persons within them. Reworked to take up the comments of the members of the GEDIP, a second draft was submitted on Sunday which resumes the problematic and insists on the role of PIL instruments in that context.

All in all, this has been an invaluable experience, for which I would like to thank the GEDIP and in particular the organizers of the event here, Prof. Christian Kohler and Prof. Patrick Kinsch.

The proceedings of the working sessions and the statements of the Group will soon be posted on its Website and published in various law reviews.

Laura Carballo Piñeiro, International Maritime Labour Law, Springer, 2012, pp. 311, ISBN 9783662470329, Euro 103,99.

[Dal sito dell’editore] ​This book focuses on maritime employment from a private international law perspective. The first chapter analyzes the background against which international jurisdiction and conflict of laws rules are drawn up and examines uniform law in this context, in particular the 2006 Maritime Labour Convention and the 2007 ILO Convention No. 188 on Work in Fishing. The second chapter addresses international jurisdiction issues as regards individual employment contracts, while also exploring other issues (e.g. insolvency-related and social security matters) that are subsequently revisited in the third chapter while discussing conflict of laws issues related to said contracts. In turn, chapter four focuses on collective labour relations and private international law, i.e. collective agreements, strikes and other forms of collective action and information, and on the participation rights of employees in business matters.

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Eric Loquin, L’arbitrage du commerce international, Joly, 2015, pp. 464, ISBN 9782306000526, Euro 65.

[Dal sito dell’editore]  Justice privée, l’arbitrage est le mode normal de règlement des litiges nés des opérations du commerce international. Loin d’être une institution se développant en marge des juridictions étatiques et objet de leur défiance, l’arbitrage constitue une justice assistée par les juges des États, qui collaborent à son efficacité. Les législations étatiques comme les conventions internationales offrent un cadre juridique favorable à son bon fonctionnement. Le droit de l’arbitrage a fait de l’arbitrage international une institution autonome des ordres juridiques étatiques, dont le fonctionnement repose sur des normes choisies et élaborées par les parties, qui transcendent la diversité des droits étatiques. L’arbitrage international est devenu une justice transnationale répondant aux besoins d’une économie mondialisée. L’ouvrage offre une description exhaustive du droit français de l’arbitrage international après sa réforme par le décret du 13 janvier 2011. L’étude du droit français est accompagnée de nombreux développements de droit comparé destinés à présenter une vision globale du phénomène de l’arbitrage international dans le monde. L’auteur, universitaire spécialisé dans le droit de l’arbitrage et praticien de l’arbitrage, a voulu présenter une approche à la fois théorique et pratique de la procédure arbitrale. À ce titre, l’ouvrage est à la fois destiné aux enseignants et aux étudiants, mais aussi aux avocats, juristes d’entreprises, institutions d’arbitrage et bien sûr arbitres.

Si veda qui per maggiori informazioni.

In a judgment of 16 September 2015, in the case of Alpha Bank Cyprus Ltd v. Dau Si Senh and others (Case C?519/13), the ECJ clarified the interpretation of Regulation No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation).

The judgment originated from a request for a preliminary ruling submitted by the Supreme Court of Cyprus in the framework of proceedings initiated by a Cypriot bank against, inter alia, individuals permanently resident in the UK.

The latter claimed that the documents instituting the proceedings had not been duly served. They complained, in particular, that some of the documents they had received (namely the order authorising service abroad) were not accompanied by a translation into English and that the standard form referred to in Article 8(1) of Regulation No 1393/2007 was never served on them.

Pursuant to Article 8 of the Service Regulation, the “receiving agency”, ie the agency competent for the receipt of judicial or extrajudicial documents from another Member State under the Regulation, must inform the addressee, “using the standard form set out in Annex II”, that he has the right to refuse to accept a document if this “is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the Member State addressed”.

In its judgment, the ECJ held that the receiving agency “is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document”, and that this requirements must be fulfilled “by using systematically … the standard form set out in Annex II”. The Court also held, however, that, where the receiving agency fails to enclose the standard form in question, this “does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation”.

The ECJ based this conclusion on the following remarks.

Regarding the binding nature of the standard form, the Court noticed that the wording of Article 8 of the Regulation is not decisive, and that the objectives of the Regulation and the context of Article 8 should rather be considered.

As regards the objectives of the Regulation, the Court stated that the uniform EU rules on the service of documents aim to improve the efficiency and speed of judicial procedures, but stressed that those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in Article 47 of the Charter of Fundamental Rights of the EU and Article 6(1) of the ECHR.

The Court added, in this regard, that “it is important not only to ensure that the addressee of a document actually receives the document in question, but also that he is able to know and understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able effectively to assert his rights in the Member State of transmission”. It is thus necessary to strike a balance between the interests of the applicant and those of the defendant by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected.

As concerns the system established by the Service Regulation, the ECJ began by noting that the service of documents is, in principle, to be effected between the “transmitting agencies” and the “receiving agencies” designated by the Member States, and that, in accordance with Article 5(1) of the Regulation, it is for the transmitting agency to inform the applicant that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8, whereas it is for the applicant to decide whether the document at issue must be translated.

For its part, the receiving agency is required to effectively serve the document on the addressee, as provided for by Article 7 of Regulation No 1393/2007. In that context, the receiving agency must, among other things, inform the addressee that it may refuse to accept the document if it is not translated into one of the languages referred to in Article 8(1).

By contrast, the said agencies “are not required to rule on questions of substance, such as those concerning which language(s) the addressee of the document understands and whether the document must be accompanied by a translation into one of the languages” specified in Article 8(1). Any other interpretation, the ECJ added, “would raise legal problems likely to create legal disputes which would delay or make more difficult the procedure for transmitting documents from one Member State to another”.

In the main proceedings, the UK receiving agency considered that the order authorising service of the document abroad should not be translated and deduced from that that it was not required to enclose with the document at issue the relevant standard form.

In reality, according to the ECJ, the Service Regulation “does not confer on the receiving agency any competence to assess whether the conditions, set out in Article 8(1), according to which the addressee of a document may refuse to accept it, are satisfied”. Actually, “it is exclusively for the national court before which proceedings are brought in the Member State of origin to rule on questions of that nature, since they oppose the applicant and the defendant”.

The latter court “will be required, in each individual case, to ensure that the respective rights of the parties concerned are upheld in a balanced manner, by weighing the objective of efficiency and of rapidity of the service in the interest of the applicant against that of the effective protection of the rights of the defence on the part of the addressee”.

Specifically, as regards the use of the standard forms, the ECJ observed, based on the Preamble of the Regulation, that the forms “contribute to simplifying and making more transparent the transmission of documents, thereby guaranteeing both the legibility thereof and the security of their transmission”, and are regarded by the Regulation as “instruments by means of which addressees are informed of their ability to refuse to accept the document to be served”.

The wording of the Regulation and of the forms themselves makes clear that the ability to refuse to accept a document in accordance with Article 8(1) is “a ‘right’ of the addressee of that document”. In order for that right to usefully produce its effects, the addressee of the document must be informed in writing thereof.

As a matter of fact, Article 8(1) of the Regulation contains two distinct statements. On the one hand, the substantive right of the addressee of the document to refuse to accept it, on the sole ground that it is not drafted in or accompanied by a translation in a language he is expected to understand. On the other hand, the formal information about the existence of that right brought to his knowledge by the receiving agency. In other words, in the Court’s view, “the condition relating to the languages used for the document relates not to the information given to the addressee by the receiving agency, but exclusively to the right to refuse reserved to that addressee”.

The ECJ went on to stress that the refusal of service is conditional, in so far as the addressee of the document may validly make use of the right only where the document at issue is not drafted in or accompanied by a translation either in a language he understands or in the official language of the receiving Member State. It is ultimately for the court seised to decide whether that condition is satisfied, by checking whether the refusal by the addressee of the document was justified. The fact remains, however, that the exercise of that right to refuse “presupposes that the addressee of the document has been duly informed, in advance and in writing, of the existence of his right”.

This explains why the receiving agency, where it serves or has served a document on its addressee, “is required, in all circumstances, to enclose with the document at issue the standard form set out in Annex II to Regulation No 1393/2007 informing that addressee of his right to refuse to accept that document”. This obligation, the Court stressed, should not create particular difficulties for the receiving agency, since “it suffices that that agency enclose with the document to be served the preprinted text as provided for by that regulation in each of the official languages of the European Union”.

Moving on to the consequences of a failure to provide information using the standard form, the ECJ noted, at the outset, that it is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.

Rather, the Court reminded that, in Leffler — a case relating to the interpretation of Regulation No 1348/2000, the predecessor of Regulation No 1393/2007 — it held that the non-observance of the linguistic requirements of service does not imply that the procedure must necessarily be declared invalid, but rather involves the necessity to allow the sender to remedy the lack of the required document by sending the requested translation. The principle is now laid down in Article 8(3) of Regulation No 1393/2007.

According to the ECJ, a similar solution must be followed where the receiving agency has failed to transmit the standard form set out in Annex II to that regulation to the addressee of a document.

In practice, it is for the receiving agency to inform “without delay” the addressees of the document of their right to refuse to accept that document, by sending them, in accordance with Article 8(1), the relevant standard form. In the event that, as a result of that information, the addressees concerned make use of their right to refuse to accept the document at issue, it is for the national court in the Member State of origin to decide whether such a refusal is justified in the light of all the circumstances of the case.

In a judgment of 16 September 2015, in the case of Alpha Bank Cyprus Ltd v. Dau Si Senh and others (Case C‑519/13), the ECJ clarified the interpretation of Regulation No 1393/2007 on the service of judicial and extrajudicial documents in civil or commercial matters (the Service Regulation).

The judgment originated from a request for a preliminary ruling submitted by the Supreme Court of Cyprus in the framework of proceedings initiated by a Cypriot bank against, inter alia, individuals permanently resident in the UK.

The latter claimed that the documents instituting the proceedings had not been duly served. They complained, in particular, that some of the documents they had received (namely the order authorising service abroad) were not accompanied by a translation into English and that the standard form referred to in Article 8(1) of Regulation No 1393/2007 was never served on them.

Pursuant to Article 8 of the Service Regulation, the “receiving agency”, ie the agency competent for the receipt of judicial or extrajudicial documents from another Member State under the Regulation, must inform the addressee, “using the standard form set out in Annex II”, that he has the right to refuse to accept a document if this “is not written in, or accompanied by a translation into, either of the following languages: (a) a language which the addressee understands; or (b) the official language of the Member State addressed”.

In its judgment, the ECJ held that the receiving agency “is required, in all circumstances and without it having a margin of discretion in that regard, to inform the addressee of a document of his right to refuse to accept that document”, and that this requirements must be fulfilled “by using systematically … the standard form set out in Annex II”. The Court also held, however, that, where the receiving agency fails to enclose the standard form in question, this “does not constitute a ground for the procedure to be declared invalid, but an omission which must be rectified in accordance with the provisions set out in that regulation”.

The ECJ based this conclusion on the following remarks.

Regarding the binding nature of the standard form, the Court noticed that the wording of Article 8 of the Regulation is not decisive, and that the objectives of the Regulation and the context of Article 8 should rather be considered.

As regards the objectives of the Regulation, the Court stated that the uniform EU rules on the service of documents aim to improve the efficiency and speed of judicial procedures, but stressed that those objectives cannot be attained by undermining in any way the rights of the defence of the addressees, which derive from the right to a fair hearing, enshrined in Article 47 of the Charter of Fundamental Rights of the EU and Article 6(1) of the ECHR.

The Court added, in this regard, that “it is important not only to ensure that the addressee of a document actually receives the document in question, but also that he is able to know and understand effectively and completely the meaning and scope of the action brought against him abroad, so as to be able effectively to assert his rights in the Member State of transmission”. It is thus necessary to strike a balance between the interests of the applicant and those of the defendant by reconciling the objectives of efficiency and speed of the service of the procedural documents with the need to ensure that the rights of the defence of the addressee of those documents are adequately protected.

As concerns the system established by the Service Regulation, the ECJ began by noting that the service of documents is, in principle, to be effected between the “transmitting agencies” and the “receiving agencies” designated by the Member States, and that, in accordance with Article 5(1) of the Regulation, it is for the transmitting agency to inform the applicant that the addressee may refuse to accept it if it is not in one of the languages provided for in Article 8, whereas it is for the applicant to decide whether the document at issue must be translated.

For its part, the receiving agency is required to effectively serve the document on the addressee, as provided for by Article 7 of Regulation No 1393/2007. In that context, the receiving agency must, among other things, inform the addressee that it may refuse to accept the document if it is not translated into one of the languages referred to in Article 8(1).

By contrast, the said agencies “are not required to rule on questions of substance, such as those concerning which language(s) the addressee of the document understands and whether the document must be accompanied by a translation into one of the languages” specified in Article 8(1). Any other interpretation, the ECJ added, “would raise legal problems likely to create legal disputes which would delay or make more difficult the procedure for transmitting documents from one Member State to another”.

In the main proceedings, the UK receiving agency considered that the order authorising service of the document abroad should not be translated and deduced from that that it was not required to enclose with the document at issue the relevant standard form.

In reality, according to the ECJ, the Service Regulation “does not confer on the receiving agency any competence to assess whether the conditions, set out in Article 8(1), according to which the addressee of a document may refuse to accept it, are satisfied”. Actually, “it is exclusively for the national court before which proceedings are brought in the Member State of origin to rule on questions of that nature, since they oppose the applicant and the defendant”.

The latter court “will be required, in each individual case, to ensure that the respective rights of the parties concerned are upheld in a balanced manner, by weighing the objective of efficiency and of rapidity of the service in the interest of the applicant against that of the effective protection of the rights of the defence on the part of the addressee”.

Specifically, as regards the use of the standard forms, the ECJ observed, based on the Preamble of the Regulation, that the forms “contribute to simplifying and making more transparent the transmission of documents, thereby guaranteeing both the legibility thereof and the security of their transmission”, and are regarded by the Regulation as “instruments by means of which addressees are informed of their ability to refuse to accept the document to be served”.

The wording of the Regulation and of the forms themselves makes clear that the ability to refuse to accept a document in accordance with Article 8(1) is “a ‘right’ of the addressee of that document”. In order for that right to usefully produce its effects, the addressee of the document must be informed in writing thereof.

As a matter of fact, Article 8(1) of the Regulation contains two distinct statements. On the one hand, the substantive right of the addressee of the document to refuse to accept it, on the sole ground that it is not drafted in or accompanied by a translation in a language he is expected to understand. On the other hand, the formal information about the existence of that right brought to his knowledge by the receiving agency. In other words, in the Court’s view, “the condition relating to the languages used for the document relates not to the information given to the addressee by the receiving agency, but exclusively to the right to refuse reserved to that addressee”.

The ECJ went on to stress that the refusal of service is conditional, in so far as the addressee of the document may validly make use of the right only where the document at issue is not drafted in or accompanied by a translation either in a language he understands or in the official language of the receiving Member State. It is ultimately for the court seised to decide whether that condition is satisfied, by checking whether the refusal by the addressee of the document was justified. The fact remains, however, that the exercise of that right to refuse “presupposes that the addressee of the document has been duly informed, in advance and in writing, of the existence of his right”.

This explains why the receiving agency, where it serves or has served a document on its addressee, “is required, in all circumstances, to enclose with the document at issue the standard form set out in Annex II to Regulation No 1393/2007 informing that addressee of his right to refuse to accept that document”. This obligation, the Court stressed, should not create particular difficulties for the receiving agency, since “it suffices that that agency enclose with the document to be served the preprinted text as provided for by that regulation in each of the official languages of the European Union”.

Moving on to the consequences of a failure to provide information using the standard form, the ECJ noted, at the outset, that it is not apparent from any provision of that regulation that such a failure leads to the invalidity of the procedure for service.

Rather, the Court reminded that, in Leffler — a case relating to the interpretation of Regulation No 1348/2000, the predecessor of Regulation No 1393/2007 — it held that the non-observance of the linguistic requirements of service does not imply that the procedure must necessarily be declared invalid, but rather involves the necessity to allow the sender to remedy the lack of the required document by sending the requested translation. The principle is now laid down in Article 8(3) of Regulation No 1393/2007.

According to the ECJ, a similar solution must be followed where the receiving agency has failed to transmit the standard form set out in Annex II to that regulation to the addressee of a document.

In practice, it is for the receiving agency to inform “without delay” the addressees of the document of their right to refuse to accept that document, by sending them, in accordance with Article 8(1), the relevant standard form. In the event that, as a result of that information, the addressees concerned make use of their right to refuse to accept the document at issue, it is for the national court in the Member State of origin to decide whether such a refusal is justified in the light of all the circumstances of the case.

In Roonse Recycling & Serice BV v BSS Heavy Machinery GmbH, the Court at Rotterdam first of all discussed the factual circumstance of a possible choice of court agreement between parties, in favour of the courts at Eberswalde (Germany). Such choice of court is made in the general terms and conditions of seller, BSS. whether parties had actually agreed to these, was in dispute. Roonse suggests the reference on the front page of the order form to the general terms and conditions on the backside (‘umseitiger‘) was without subject for that back page was blank. The court therefore suggests that agreement depends on whether, as was suggested, the standard terms and conditions were attached (stapled, presumably) to the order form. Whether this was the case is a factual consideration which Rotterdam does not further entertain for even if the choice of court agreement is invalid, the court found it would not have jurisdiction under the only other alternative: Article 7(1) special jurisdictional rule for ‘contracts’.

Roonse suggest that the parties had agreed that the contract, a delivery of good, is performed in Rotterdam for that, it argues, is where delivery took place per the Incoterm CPT (carriage paid to). The CJEU has flagged the inconclusive effect of the mere use of Incoterms for the purposes of finding an agreement between parties under Article 7, in Electrosteel Case C-87/10 (in that case with respect to the use of ‘ex works’) and has generally insisted, per Car Trim Case C-381/08 that the courts need to make reference to all relevant terms and conditions in the agreement so as to determine the place of delivery.

Rotterdam in casu held the Incoterm CPT Rotterdam as being mostly a reference to costs, not place of delivery. Where it is impossible to determine the place of delivery on that basis, without reference to the substantive law applicable to the contract, that place at least for the sale of goods, the CJEU held, is the place where the physical transfer of the goods took place, as a result of which the purchaser obtained, or should have obtained, actual power of disposal over those goods at the final destination of the sales transaction. In casu, this was found to be in the geographical jurisdiction of the courts at Den Haag. Given that Article 7(1) does not merely identify the courts of a Member State but rather a specific court within a Member State, Rotterdam has no jurisdiction.

The case is a good reminder of the limited power of Incoterms to determine jurisdiction. Better have a specific choice of court clause (which here may or may not have presented itself here in the general terms and conditions of seller).

Geert.

Uno degli obiettivi sottesi all’imminente riforma del regolamento n. 861/2007, istitutivo del procedimento europeo per le controversie di modesta entità, segnalata in un post recente, è quello di assicurare a tale modello, nella pratica, una fortuna maggiore di quella registratasi in questi anni.

Poche, specie in Italia, sono infatti le decisioni pubblicate, rese in applicazione del regolamento, che pure è applicabile dal 1° gennaio 2009.

Vale dunque la pena di dar conto, a titolo di esempio, di un provvedimento pronunciato sulla base del regolamento n. 861/2007, segnalato alla redazione di Aldricus dall’avv. Grazia Ferdenzi di Parma. Si tratta della decisione con cui il 6 febbraio 2014 il Giudice di pace di Parma ha condannato la compagnia aerea EasyJet al pagamento di una somma per il ritardo prolungato subito da alcuni passeggeri.

Questi ultimi avevano basato le proprie richieste sul regolamento n. 261/2004 che istituisce regole comuni in materia di compensazione ed assistenza ai passeggeri in caso di negato imbarco, di cancellazione del volo o di ritardo prolungato, ed avevano convenuto la compagnia aerea di fronte al Giudice di pace di Parma instaurando, appunto, un procedimento europeo per le controversie di modesta entità.

Nella domanda, redatta compilando il Modulo A allegato al regolamento n. 861/2007 (tutti i formulari relativi al procedimento sono reperibili qui), gli attori hanno invocato, per affermare la giurisdizione italiana, le norme europee che disciplinano la competenza giurisdizionale in materia di contratti conclusi con in consumatori. Se è pur vero che il passeggero, in Italia, può essere associato alla figura del consumatore (tanto che sono proprio le associazioni a protezione dei consumatori che si occupano di salvaguardare i diritti dei passeggeri di trasporti aerei alla luce della normativa europea), ai fini dell’individuazione dell’organo competente in controversie a carattere transnazionale che coinvolgano un consumatore, questa nozione deve essere intesa in maniera autonoma.

L’art. 15, par. 3 (“competenza in materia di contratti conclusi dai consumatori”), del regolamento (CE) n. 44/2001 concernente la competenza giurisdizionale, il riconoscimento e l’esecuzione delle decisioni in materia civile e commerciale (qui applicabile ratione temporis, oggi sostituito dal regolamento (UE) n. 1215/2012), esclude espressamente l’applicazione della sezione relativa ai contratti conclusi da consumatori “ai contratti di trasporto che non prevedono prestazioni combinate di trasporto e di alloggio per un prezzo globale”.

Varrebbe, semmai, il foro del contratto, come determinato in base all’art. 5, punto 1, del regolamento (CE) n. 44/2001. Nello specifico, nel caso Peter Rehder (9 luglio 2009, causa C‑204/08), la Corte di giustizia ha chiarito che il contratto di trasporto concluso con una compagnia aerea deve essere interpretato quale contratto di prestazione di servizi, ai fini del quale la competenza giurisdizionale deve essere individuata nell’autorità giurisdizionale del luogo “situato in uno Stato membro, in cui i servizi sono stati o avrebbero dovuto essere prestati in base al contratto” (art. 5, punto 1, lett. b), secondo trattino). Ciò premesso, la Corte ha specificato che il giudice competente a conoscere di una domanda di compensazione pecuniaria basata sul contratto di trasporto concluso da un passeggero con una compagnia aerea e sul regolamento (CE) n. 261/2004, che istituisce regole comuni in materia di compensazione ed assistenza ai passeggeri in caso di negato imbarco, di cancellazione del volo o di ritardo prolungato, è quello “a scelta dell’attore, nella cui circoscrizione si trovano il luogo di partenza o il luogo di arrivo dell’aereo quali indicati in detto contratto”.

Negli atti del procedimento dinanzi al Giudice di Parma, rileva anche il fatto che il provvedimento non sia stato emesso mediante la compilazione del Modulo D, come (non solo raccomandato, ma) formalmente prescritto dal regolamento n. 861/2007. La mancata osservanza della forma pregiudica l’elevato grado di standardizzazione che connota questo regolamento e, di conseguenza, la circolazione delle decisioni emesse all’esito del relativo procedimento.

In Chevron Corp v Yaiguaje, the Canadian Supreme Court confirmed the country’s flexible approach to the jurisdictional stage of recognition and enforcement actions. I have reported on the case’s overall background before. More detail on the case is provided here by Border Ladner Gervais, as do McMillan (adding a critical note) here, and I am happy to refer – suffice to say on this blog that an accommodating approach to the very willingness of courts to entertain a recognition and enforcement action is not as such unusual to my knowledge. It is very much a case of comity to at least not blankly refuse to hear the case for enforcing a judgment issued by a foreign court.

Much more challenging will be the merits of the case, for one imagines the usual arguments against will certainly exercise the Canadian courts.

Finally, even if Chevron assets in Canada were not to suffice to meet the considerable award (in particular if the courts further down the line were to keep the mother company out of the action), any success in Canadian courts, however small, no doubt will serve applicants’ case for recognition in other jurisdictions.

Geert.

Il terzo fascicolo del 2015 di Internationales Handelsrecht ospita un articolo di Kasper Steensgaard intitolato Battle of the forms under the CISG – one or more solutions? (p. 89-94), dedicato alle soluzioni ricavabili dalla Convenzione di Vienna sulla compravendita internazionale di beni mobili del 1980 (CISG) circa il conflitto fra condizioni generali di contratto, o “battaglia dei formulari”, cioè la situazione che si verifica allorché, in sede di formazione del contratto, le parti si richiamino a condizioni generali fra loro divergenti.

Il problema, che dev’essere affrontato nell’ottica dell’art. 19 CISG, relativo all’accettazione della proposta contrattuale, consiste fondamentalmente nello stabilire se per effetto dell’emissione di dichiarazioni negoziali corredate da un richiamo alle rispettive condizioni generali, si sia formato un vincolo contrattuale fra le parti e, laddove la risposta sia positiva, quale ne sia il contenuto.

L’autore dell’articolo, attraverso un’indagine incentrata soprattutto sulla giurisprudenza sviluppata negli Stati Uniti e in Germania, analizza le due principali soluzioni proposte in quest’ambito, costituite, rispettivamente, dalla last-shot rule e dalla knock-out rule.

La prima soluzione è, per Steensgaard, quella preferibile, trattandosi del derivato “logico e naturale” del principio della corrispondenza fra proposta e accettazione (“mirror image principle”), sancito all’art. 19, par. 1, CISG. Di fatto, l’oblato, quando replica alla proposta richiamando le proprie divergenti condizioni generali, emette una controproposta: se l’offerente non reagisce, la dichiarazione negoziale dell’oblato (il “last shot”), se seguita dall’accettazione anche tacita dell’altra parte, condurrà alla conclusione di un contratto conforme agli standard terms richiamati dallo stesso oblato. Questi, in pratica, delinea i contenuti del contratto, in assenza di obiezioni ad opera dell’altra parte, mediante il richiamo alle proprie condizioni. Una simile conclusione si impone, peraltro, solo quando alla parte che finisce col soccombere nella “battaglia” delle condizioni generali sia imputabile un’accettazione almeno implicita, ad esempio mediante fatti concludenti, non essendo sufficiente a questo fine una mera inerzia.

La seconda soluzione, vale a dire la knock-out rule, implica invece un raffronto tra proposta e accettazione allo scopo di estrapolare dalle condizioni generali di entrambe le parti tutti e soltanto gli elementi comuni, che costituiranno il contratto, estromettendo i termini divergenti, i quali verranno sostituiti dal corrispondente regime legale. Senonché, stando all’autore dell’articolo, la knock-out rule, che pure ha il pregio di valorizzare il consenso delle parti, mal si concilia con i dati offerti dalla Convenzione.

A tal proposito, merita di essere segnalato il contrario parere del CISG Advisory Council (Opinion No 13, punto 10), favorevole al knock-out approach, in linea con quanto previsto in materia dai Principi Unidroit e nonostante il potenziale contrasto con la lettera dell’art. 19 CISG. L’applicabilità della knock-out rule viene giustificata facendo leva sull’art. 6 CISG, che consente alle parti di derogare la Convenzione, valorizzando la loro autonomia come principio generale della CISG: se esse concordano sull’applicazione di alcuni termini, comuni ad entrambe, e manifestano la volontà di incorporarli nel contratto, tale loro accordo prevale sulla CISG.

Ulteriori informazioni sul fascicolo, compreso il sommario, sono reperibili a questo indirizzo.