Flux des sites DIP

Intellectual Property and Private International Law, a cura di Paul Torremans, Edward Elgar, 2015, pp. 880, ISBN 9781783471423, GBP 265.

[Dal sito dell’editore]  This collection, made possible by the recent convergence of intellectual property and private international law as critical disciplines, brings together the most important papers on these now linked subjects. More and more issues of private international law arise in the area of intellectual property, and the articles selected chart the route that both disciplines have covered together, discussing bridges built and dead-ends reached. Also looking forward to the future of the subject, with an original introduction by Professor Paul Torremans, Intellectual Property and Private International Law will prove to be an essential research tool for all students, academics and practitioners working in this fast-developing area.

Maggiori informazioni, compreso il sommario dell’opera, sono disponibili a questo indirizzo.

Dr. Christoph Reithmann and Professor Dr. Dieter Martiny (editors) have just published a new edition of their standard treatise on international contract law: Internationales Vertragsrecht – Das internationale Privatrecht der Schuldverträge, 8th. ed., Cologne (Dr. Otto Schmidt) 2015.

This 2348-pages strong volume is universally acknowledged as one of the leading works on international contract law in the German language. It features in-depth analyses not only of the Rome I-Regulation, but also of various aspects not dealt with in Rome I, such as capacity and agency. Moreover, it also contains a chapter on choice of law under the Rome II Regulation. The book has been written by a team that is made up of renowned German and Swiss PIL scholars and practitioners. Highly recommended! For further information, see the publisher’s website here.

The exam season is over, otherwise Goldhar v Haaretz would have made a great case for comparative analysis. Instead this can now feed into class materials. This is an interlocutory judgment on the basis of lack of jurisdiction and /or abuse of process. Plaintiff lives in Toronto.  He is a billionaire who owns i.a. Maccabi Tel Aviv. (Chelsea’s first opponent in the Champions League. But that’s obviously an aside). Mr Goldhar visits Israel about five or six times per year. Defendant is Haaretz Daily Newspaper Ltd. which publishes Haaretz, Israel’s oldest daily newspaper (market share about 7%).   It also publishes an English language print edition.  Haaretz is published online in both English and Hebrew.

Haaretz published a very critical article on Mr Goldhar in November 2011. The print version was not published in Canada, in either English or Hebrew. However, Haaretz was made available internationally on its website in Israel in both Hebrew and English – the judgment does not say so specifically however I assume this was both on the .co.il site – even if currently Haaretz’ EN site is available via a .com site.

Information provided by the defendants reveals that there were 216 unique visits to the Article in its online form in Canada. Testimony further showed that indeed a number of people in Canada read the article – this was sufficient for Faieta J to hold that a tort was committed in Ontario and thus a presumptive connecting factor exists. Presumably this means that the court (and /or Canadian /Ontario law with which I am not au fait) view the locus delicti commissi (‘a tort was committed’) as Canada – a conclusion not all that obvious to me (I would have assumed Canada is locus damni only). Per precedent, the absence of a substantial publication of the defamatory material in Canada was not found to be enough to rebut the finding of jurisdiction.

Forum non conveniens was dismissed on a variety of grounds, including applicable law being the law of Ontario (again Ontario is identified as the locus delicti commissi: at 48). Plaintiff will have to cover costs for the appearance, in Canada, of defendants’ witnesses. Importantly, plaintiff will also only be able to seek damages for reputational harm suffered within Canada.

I can see this case (and the follow-up in substance) doing the rounds of conflicts classes.

Geert.

 

 

 

È ora disponibile il programma dell’incontro del 2 ottobre 2015 — già segnalato in questo post — dal titolo Libera circolazione e riconoscimento delle famiglie: profili di diritto internazionale privato, tutela dei diritti e ordinamento interno. 

L’evento si terrà presso l’Università degli studi di Milano ed è organizzato nell’ambito del modulo Jean Monnet on European Family Law di cui è titolare Chiara Ragni, in cooperazione con la Rivista GenIUS.

Il convegno si articolerà in tre sessioni. La prima, dedicata a Diritti umani e diritto internazionale privato, introdotta e presieduta da Nerina Boschiero (Univ. Milano), ospiterà le relazioni di Francesco Salerno (Univ. Ferrara) e Patrick Kinsch (Univ. Lussemburgo).

Durante la seconda sessione, incentrata sul Riconoscimento degli status e diritti umani nell’ordinamento dell’Unione europea e nel diritto costituzionale italiano e moderata da Stefania Bariatti (Univ. Milano), si alterneranno le relazioni di Marilisa D’Amico (Univ. Milano) e Giulia Rossolillo (Univ. Pavia), seguiti dagli interventi di Livio Scaffidi Runchella, Joelle Long, Manuela Naldini, Giuseppe Zago ed Eva De Goetzen.

Nell’ultima sessione, su La questione della trascrizione degli atti formati all’estero, presieduta da Ilaria Viarengo (Univ. Milano), si svolgeranno le relazioni di Barbara Pezzini (Univ. Bergamo), Giuseppa Palmieri (Univ. Palermo), Emanuele Calò, Marco Magri (Univ. Ferrara) e Luca Morassuto (Foro di Ferrara).

Per le modalità di registrazione e ulteriori informazioni, si veda qui.

Here is the update for the PILAGG program 2015: past events and the ones foreseen from September 2015 on.

 

I. GLOBAL PARADIGM AND LEGAL METHOD(S): MARCH 2015

The emergence of a global legal paradigm upsets assumptions/fictions developed within the modern, Westphalian model, which takes the law to be a self-contained, stable and coherent system and designs its method(s) accordingly. To what extent, then do comparative and internationalist perspectives provide plausible alternative legal methodology(ies) within an emerging “global legal paradigm”? Paying critical attention to law in global context is likely to constitute a “dangerous method” with respect to its subversive and emancipatory potential.

• The Mind and the Method(s): Jan Smits (Maastricht)
• Global Legal Paradigm: Ralf Michaels (Duke)

II. LAW AND AUTHORITY WITHOUT (STATE) PEDIGREE: MAY 2015

Competing, diffuse, post-Westphalian forms of authority and correlative displacements of power to non-state actors are difficult to capture in legal terms.  Is it possible to take seriously – whether to legitimize, challenge, or govern – new, diffuse and disorderly expressions of authority and normativity which do not necessarily fit traditional forms of legal knowledge, nor respond to familiar methods of legal reasoning? Is legal pluralism adequate to assess legitimacy of such claims or to solve conflicts between them? What are the alternative accounts of informal law (s) beyond the state?

• Transnational Authority: Max del Mar and Roger Cotterell (Queen Mary, London)

 

RENTREE 2015:What are the specific insights of the discipline of the conflict of laws in respect of some of the most significant issues which challenge contemporary legal theory, in its attempts to integrate the radical changes wrought by globalisation in the normative landscape beyond (framed outside, or reaching over) the nation-state. Indeed, remarkably, these changes have brought complex interactions of conflicting norms and social systems to the center-stage of jurisprudence. This means that the conflict of laws has a plausible vocation to contribute significantly to a “global legal paradigm” (Michaels 2014), that is, a conceptual structure adapted to unfamiliar practices, forms and “modes of legal consciousness” (Kennedy 2006). Conversely, however, private international legal thinking has all to gain from attention to the other legal disciplines that have preceded it in the effort to “go global”. Thus, it needs to undergo a general conceptual overhauling in order to capture law’s novel foundations and features. In this respect, it calls for an adjustment of its epistemological and methodological tools to its transformed environment. It must revisit the terms of the debate about legitimacy of political authority and reconsider the values that constitute its normative horizon. From this perspective, the ambition of this paper is to further the efforts already undertaken by various strands of legal pluralism, as an alternative form of “lateral coordination” in global law (Walker 2015), towards the crafting of a “jurisprudence across borders” (Berman 2012). Societal constitutionalism (Teubner 2011), which has explicitly made the connection between transnational regime-collison and the conflict of laws, provides a particularly promising avenue for unbounding the latter, which might then emerge as a form of de-centered, reflexive coordination of global legal interactions.

 

III.     CONFLICTS OF LAWS UNBOUNDED:?THE CASE FOR A LEGAL-PLURALIST REVIVAL. : 25th SEPTEMBER 2015

•  Horatia Muir Watt (Sciences-po Ecole de droit) FRIDAY 25 Septembre 2015. Salle de réunion (4e étage), 14h-17h, Ecole de droit, Sciences po, 13 rue de l’Université, 75007 Paris.
• Discussant : Loic AZOULAI (Sciences po, Ecole de droit)

 (NB Martijn Hesselink will give his talk later on in the term

IV. GLOBAL LEGAL PLURALISM AND THE CONFLICT OF NORMS: OCTOBER 9th

“It has now been approximately 20 years since scholars first began pushing the insights of legal pluralism into the transnational and international arena.  During those two decades, a rich body of work has established pluralism as a useful descriptive and normative framework for understanding a world of relative overlapping authorities, both state and non-state.  Indeed, there has been a veritable explosion of scholarly work on legal pluralism, soft law, global constitutionalism, the relationships among relative authorities, and the fragmentation and reinforcement of territorial boundaries »[Berman 2012]. Competing plural and transnational assertions of authority are singled out as the emblematic feature of our complex world, while the defining problem in contemporary legal thought lies in the interactions of legal traditions, social spheres, cultural values, rights and identities, epistemologies or world-visions. Various responses come in the form of a search for consensus (around constitutional values), the promotion of new utopias (the quest for global justice), the celebration of diversity as competition (law and economics), the devising of methodologies designed to mediate or coordinate (systems theory), or renewed definitions of authority and legitimacy (socio-legal studies). At first sight, the conflict of laws would appear to fit quite well among these pluralist strands of thought.

• Paul Schiff Berman: A jurisprudence across borders
• Discussant: Jean-Philippe ROBE

V. GLOBAL LAW AND INTERDISCIPLINARY INQUIRY: OCTOBER 16th

Law’s status as (empirical)  social science, repeatedly mooted then rejected in the name of its “internal” or dogmatic perspective, is arguably the most significant methodological debate in its modern history. But what is it about globalization which makes the need for interdisciplinarity resurface today in view of rethinking legal method? Is global law a relevant object of inquiry for the social sciences? Can the methods of private international law help frame a common problematic?  

Alexander Panayatov attempts an exercise in an inter-disciplinary conceptual clarification.  Discussing the impediments to, and conditions for,  inter-disciplinary collaboration based on exploring law and political science research cultures, he evaluates “The Legalization and World Politics” (LWP) project that offers a framework for deploying political science methodology to law. He also offers a supplementary framework for studying jurisdictional politics. This framework will specify four distinct mechanisms accounting for the creation of transnational jurisdictional regimes

•  Alexander Panayatov (NYU): Transnational jurisdictional regimes and interdisciplinarity FRIDAY OCTOBER 16th 2015. Salle de réunion (4e étage), 14h-17h, Ecole de droit, Sciences po, 13 rue de l’Université, 75007 Paris.
• Discussants : Véronique Champeil-Desplat (Paris X), auteure de Méthodologies du droit et des sciences du droit, Dalloz 2014
• Jérôme Sgard (Sciences po Paris)

VI. INTIMATIONS OF GLOBAL LAW: NOVEMBER 13th

Indisputably, globalisation, or its contemporary (fourth?[1]) avatar, is inflicting an identity crisis upon the conflict of laws[2]. One of the reasons for this is that it shows up the link between legal methods elaborated in view of dealing with conflicting norms and the framing of law’s origins, functions and objects within a particular legal paradigm. In other words, modes of legal reasoning in the face of conflicting norms and claims to authority reflect various conceptions and expectations as to what law is and does, where it comes from and the types of issues it deals with. Change affecting these assumptions and representations about the world affects established forms of legal knowledge; probing them is, as we know, a distinctly “dangerous method”. So what is left of state-bound legal-theoretical conceptions of the law in its “global intimations”?

•  Neil WALKER:  The intimations of global law
• Mikhail XIFARAS: Further global intimations

 

UPCOMING EVENTS :

THE CONSTRUCTION OF GLOBAL LAW : Date to be determined

Various attempts are being from a markedly public law perspective (global administrative law/global constitutionalism) to build a global law. These are all certainly relevant to contemporary “private” international law, to the extent that the discipline has always had a strong process-orientation (remember “conflicts justice”?) and is currently in the process of renewal from the perspective of  fundamental individual and collective rights. Meanwhile (as we have already seen), the new Brussels school has turned to pragmatism in legal philosophy (Benoît Frydmann), while Gunter Teubner’s “societal constitutionalism” is a significant contender from an interdisciplinary  perspective. Interestingly, both of these use specifically private international tools, methods or approaches (jurisdiction and RSE; conflicts solutions to legal pluralism).  The last session discussed the potential contribution of socio-legal theory to this debate, with a view to understanding new forms of transnational authority.  But what happens to private law in this process?

THE RIGHT TO JUSTIFICATION IN GLOBAL PRIVATE LAW: Martijn Hesselink, (Amsterdam)

Si è svolta il 14 settembre 2015, in seno alla Commissione giuridica del Parlamento europeo, una breve discussione sull’ipotesi — già affacciata in altre occasioni dallo stesso Parlamento europeo — che l’Unione si doti di uno strumento normativo riguardante la protezione dei maggiorenni vulnerabili nelle situazioni a carattere internazionale.

Lo scambio di idee, animato dalla deputata Joëlle Bergeron e documentato nel video disponibile a questo indirizzo (il tema viene trattato a partire dal minuto 19 e 20 secondi), si è concluso con una rinnovata richiesta alla Commissione europea affinché prenda in considerazione, in funzione dell’elaborazione di specifiche proposte, gli auspici espressi dal Parlamento europeo nella risoluzione del 18 dicembre 2008 recante raccomandazioni alla Commissione sulla protezione giuridica degli adulti.

L’idea, in estrema sintesi, è quella di rafforzare in questo campo la cooperazione fra gli Stati membri, prendendo come base le soluzioni offerte dalla Convenzione dell’Aja del 13 gennaio 2000 sulla protezione internazionale degli adulti (sin qui ratificata, per la verità, da appena sei Stati membri; tra questi non vi è l’Italia: vedi, peraltro, a quest’ultimo proposito questo post).

Ulf Bergquist, Domenico Damascelli, Richard Frimston, Paul Lagarde, Felix Odersky and Barbara Reinhartz have written an article-by-article commentary on the new EU Succession Regulation that recently entered into force. Authored by members of the Experts Group that drafted the Commission’s Proposal for the Regulation the commentary discusses all crucial points of the new legal framework including:

• law applicable to a succession,
• election as to the applicable law,
• recognition and enforcement,
• authentic instruments,
• the European Certificate of Succession.

The commentary is available in English, French and German. More information is available here and here.

This post has been written by Ester di Napoli.

In a judgment of 9 September 2015 (Christophe Bohez v. Ingrid Wiertz, Case C-4/14), the European Court of Justice (ECJ) clarified the interpretation of Article 1(2) and Article 49 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter (Brussels I), corresponding to Articles 1(2) and 55 of Regulation No 1215/2012 (Brussels Ia), as well as the interpretation of Article 47(1) of Regulation No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). The questions referred to the Court concerned the enforcement of a penalty payment (astreinte) issued to ensure compliance with the rights of access to children granted to one of the parents.

While Article 49 of the Brussels I Regulation states that judgments ordering “a periodic payment by way of a penalty” are enforceable in a different Member State “only if the amount of the payment has been finally determined by the courts of the Member State of origin”, no equivalent provision may be found in the Brussels IIa Regulation. The latter merely specifies, in Article 47(1), that the enforcement procedure is governed by the law of the Member State of enforcement.

The case from which the judgment originated may be summarised as follows.

Mr Bohez and Ms Wiertz married in Belgium in 1997 and had two children. When they divorced, in 2005, Ms Wiertz moved to Finland. In 2007, a Belgian court rendered a decision on the responsibility over the children. As a means to ensure compliance with the rights of access granted to the father, the court set at a periodic amount per child to be paid to Mr Bohez for every day of the child’s non-appearance, and fixed a maximum amount that the defaulting parent could be requested to pay under the astreinte.

The mother failed to comply with the Belgian decision, so the father sought enforcement of the Belgian order in Finland relying on Article 49 of Brussels I Regulation. The Finnish authorities observed that the amount of the payment had not been determined in the Member State of origin, and added that, in any event, the request did not fall within the scope of the Brussels I Regulation but rather within the scope of the Brussels IIa Regulation.

The ECJ, seised by the Finnish Supreme Court, pointed out that the scope of Brussels I Regulation is limited to “civil and commercial matters”, and that the inclusion of interim measures is determined “not by their own nature but by the nature of the rights that they serve to protect”.  Thus, since the Brussels I Regulation expressly excludes from its scope “the status of natural persons” (notion “which encompasses the exercise of parental responsibility over the person of the child”), the Court held that Article 1 of Brussels I Regulation must be interpreted as meaning that it does not apply to the enforcement of a penalty payment imposed in a judgment concerning matters of parental responsibility.

The ECJ then moved on to consider the interpretation of the Brussels IIa Regulation.

It recalled that mutual recognition of judgments concerning rights of access is “a priority within the judicial area of the European Union” and observed that, although the Regulation does not contain any provision on penalties, a penalty payment imposed in a judgment concerning rights of access “cannot be considered in isolation as a self-standing obligation, but must be considered together with the rights of access which it serve to protect and from which it cannot be dissociated”. Accordingly, its recovery forms part “of the same scheme of enforcement as the judgment concerning the rights of access that the penalty safeguards and the latter must therefore be declared enforceable in accordance with the rules laid down by Regulation No 2201/2003”.

The Court stressed that, in order to seek enforcement of the decision ordering a penalty payment, the amount must have been finally determined by the courts of the Member State of origin. Where the penalty payment has not been determined, “a requirement, in the context of Regulation No 2201/2003, for quantification of a periodic penalty payment prior to its enforcement is consistent with the sensitive nature of rights of access”.

In a judgment of 9 September 2015 (Christophe Bohez v. Ingrid Wiertz, Case C-4/14), the European Court of Justice (ECJ) clarified the interpretation of Article 1(2) and Article 49 of Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matter (Brussels I), corresponding to Articles 1(2) and 55 of Regulation No 1215/2012 (Brussels Ia), as well as the interpretation of Article 47(1) of Regulation No 2201/2003 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa). The questions referred to the Court concerned the enforcement of a penalty payment (astreinte) issued to ensure compliance with the rights of access to children granted to one of the parents.

While Article 49 of the Brussels I Regulation states that judgments ordering “a periodic payment by way of a penalty” are enforceable in a different Member State “only if the amount of the payment has been finally determined by the courts of the Member State of origin”, no equivalent provision may be found in the Brussels IIa Regulation. The latter merely specifies, in Article 47(1), that the enforcement procedure is governed by the law of the Member State of enforcement.

The case from which the judgment originated may be summarised as follows.

Mr Bohez and Ms Wiertz married in Belgium in 1997 and had two children. When they divorced, in 2005, Ms Wiertz moved to Finland. In 2007, a Belgian court rendered a decision on the responsibility over the children. As a means to ensure compliance with the rights of access granted to the father, the court set at a periodic amount per child to be paid to Mr Bohez for every day of the child’s non-appearance, and fixed a maximum amount that the defaulting parent could be requested to pay under the astreinte.

The mother failed to comply with the Belgian decision, so the father sought enforcement of the Belgian order in Finland relying on Article 49 of Brussels I Regulation. The Finnish authorities observed that the amount of the payment had not been determined in the Member State of origin, and added that, in any event, the request did not fall within the scope of the Brussels I Regulation but rather within the scope of the Brussels IIa Regulation.

The ECJ, seised by the Finnish Supreme Court, pointed out that the scope of Brussels I Regulation is limited to “civil and commercial matters”, and that the inclusion of interim measures is determined “not by their own nature but by the nature of the rights that they serve to protect”.  Thus, since the Brussels I Regulation expressly excludes from its scope “the status of natural persons” (notion “which encompasses the exercise of parental responsibility over the person of the child”), the Court held that Article 1 of Brussels I Regulation must be interpreted as meaning that it does not apply to the enforcement of a penalty payment imposed in a judgment concerning matters of parental responsibility.

The ECJ then moved on to consider the interpretation of the Brussels IIa Regulation.

It recalled that mutual recognition of judgments concerning rights of access is “a priority within the judicial area of the European Union” and observed that, although the Regulation does not contain any provision on penalties, a penalty payment imposed in a judgment concerning rights of access “cannot be considered in isolation as a self-standing obligation, but must be considered together with the rights of access which it serve to protect and from which it cannot be dissociated”. Accordingly, its recovery forms part “of the same scheme of enforcement as the judgment concerning the rights of access that the penalty safeguards and the latter must therefore be declared enforceable in accordance with the rules laid down by Regulation No 2201/2003”.

The Court stressed that, in order to seek enforcement of the decision ordering a penalty payment, the amount must have been finally determined by the courts of the Member State of origin. Where the penalty payment has not been determined, “a requirement, in the context of Regulation No 2201/2003, for quantification of a periodic penalty payment prior to its enforcement is consistent with the sensitive nature of rights of access”.

Joseph Lookofsky, Ketilbjørn Hertz, EU-PIL: European Union Private International Law in Contract and Tort, 2a edizione, Juris Publishing, 2015, pp. 216, ISBN 9781578234455, USD 75.

[Dal sito dell’editore] Experienced practitioners in Europe realise the increasing commercial significance of the discipline known as Private International Law (Conflict of Laws). As indicated by its title, the focus of this book is on the Private International Law rules applied by courts and arbitral tribunals in the European Union, but by including numerous concrete examples, the authors emphasise the interdisciplinary nature of the subject and thus the many relevant ‘connections’ between private international law and substantive commercial law, especially as regards contractual and delictual matters (e.g.) in cases concerning contracts for the international sale of goods, cross-border claims relating to product liability, etc. This second edition has been revised to consider the new ‘recast’ of the Brussels I Regulation on Jurisdiction and Judgments (2012). This new edition also incorporates a number of important decisions which the Court of Justice of the European Union has had occasion to render as regards the proper interpretation of key rule-sets covered in this volume.

Maggiori informazioni a questo indirizzo.

The CJEU yesterday confirmed the Opinion of Cruz Villalón AG in Holterman: please refer to my posting on the Opinion for background.

In particular of course, a contract for employment needs to be distinguished from a contract for the provision of services. ‘Contract of employment’ was addressed in the abstract by the CJEU in Shenavai, Case 266/85, where the Court identified a double requirement for it referred to the need for a contract to be qualified as a contract of employment: there must be durable relation between individual and company: a lasting bond, which brings the worker to some extent within the organisational framework of the business; and a link between the contract and the place where the activities are pursued, which determines the application of mandatory rules and collective agreements. However precedent value of Shenavai for the Brussels I and recast Regulation is necessarily incomplete, for a the time employees as a protected category did not yet exist in the Regulation and the Court’s findings on contracts of employment took place within the need to identify a ‘place of performance’ under the Brussels Convention’s special jurisdictional rule on contracts.

The Jenard and Möller report to the 1988 Lugano Convention suggested the relationship of subordination of the employee to the employer.

In Holterman the Court throws into the mix reference to its interpretation of secondary EU law on health and safety at work as well as European labour law, holding that ‘the essential feature of an employment relationship is that for a certain period of time one person performs services for and under the direction of another in return for which he receives remuneration’ (at 41).

Consequently the national courts now have quite a number of criteria which need to apply in practice: it is not for the CJEU to do so in an individual case. In Holterman the Court does seem to suggest that once a worker finds himself qualified as an employee, for the purposes of the application of the Jurisdiction Regulation, that qualification will trump any other roles which that individual may play in the organisation (at 49: ‘the provisions of Chapter II, Section 5 (Articles 18 to 21) of Regulation No 44/2001 must be interpreted as meaning that they preclude the application of Article 5(1) and (3) of that regulation, provided that that person, in his capacity as director and manager, for a certain period of time performed services for and under the direction of that company in return for which he received remuneration, that being a matter for the referring court to determine.’).

In light of the deference to the factual assessment of the national court, the CJEU does complete the analysis with respect to (now) Article 7(1): if the contract is not one of employment, then the special jurisdictional rule of Article 7(1) needs to be applied. The director of a company, the Court holds, provides a service to the company within the meaning of Article 7(1)b. In the absence of any derogating stipulation in the articles of association of the company, or in any other document, it is for the referring court to determine the place where Mr Spies in fact, for the most part, carried out his activities in the performance of the contract, provided that the provision of services in that place is not contrary to the parties’ intentions as indicated by what was agreed. For that purpose, it is possible to take into consideration, in particular, the time spent in those places and the importance of the activities carried out there, it being a matter for the national court to determine whether it has jurisdiction in the light of the evidence submitted to it (at 64).

Finally, should national law also allow for an action in tort against the director of a company, the locus delicti commissi is the place where the director carries out his duties for the company (at 76). The locus damni is the place where the damage alleged by the company actually manifests itself; it cannot be construed so extensively as to encompass any place where the adverse consequences can be felt of an event which has already caused damage actually taking place elsewhere (at 77-78).

All in all, a useful completion of the Shenavai criterion, and in the main a referral to the national court for factual analysis.

Geert.

The Supreme Court of Canada has released its decision in Chevron Corp v Yaiguaje (available here).  The issue before the court was whether the Ontario courts have jurisdiction to recognize and enforce an Ecuadorian judgment (for over $US 18 billion) where the foreign judgment debtor Chevron Corporation (“Chevron”) claims to have no connection with the province, whether through assets or otherwise.  On one view, because the process for enforcing a foreign judgment is to commence a new domestic proceeding and thereby sue on the foreign judgment, the enforcement proceeding must have its own independent analysis of jurisdiction.  Put another way, there cannot be a proceeding in respect of which the court does not have to have jurisdiction.  On a different view, because the analysis of the claim on the foreign judgment considers, among other things, the sufficiency of the rendering court’s jurisdiction (Chevron defended on the merits in Ecuador), that is the only required analysis of jurisdiction and there is no need for a separate consideration of the enforcing court’s jurisdiction.  The Supreme Court of Canada, agreeing with the Court of Appeal for Ontario, has held that the latter view is correct.

In summarizing its conclusion (para 3) the court stated “In an action to recognize and enforce a foreign judgment where the foreign court validly assumed jurisdiction, there is no need to prove that a real and substantial connection exists between the enforcing forum and either the judgment debtor or the dispute.  It makes little sense to compel such a connection when, owing to the nature of the action itself, it will frequently be lacking. Nor is it necessary, in order for the action to proceed, that the foreign debtor contemporaneously possess assets in the enforcing forum.  Jurisdiction to recognize and enforce a foreign judgment within Ontario exists by virtue of the debtor being served on the basis of the outstanding debt resulting from the judgment.”

While the court does not say that NO jurisdictional basis is required, it states that the basis is found simply and wholly in the defendant being served with process (see para 27).  This runs counter to the court’s foundational decision in Morguard Investments Ltd v De Savoye, [1990] 3 SCR 1077 which separated the issue of service of process – a pure procedural requirement – from the issue of jurisdiction.  To say the service itself founds jurisdiction is arguably to have no jurisdictional requirement at all.

Interestingly, a recent paper (subsequent to the argument before the court) by Professor Linda Silberman and Research Fellow Aaron Simowitz of New York University (available here) considers the same issue in American law and concludes that the dominant view of courts there remains that an action to enforce a foreign judgment requires a “jurisdictional nexus” with the enforcing forum.  They note that only a minority of countries allow enforcement of a foreign judgment without any jurisdictional threshold for the enforcement proceedings.  They argue that the New York decisions which subsequently are relied on by the Supreme Court of Canada (para 61) are the outliers.

Had the Supreme Court of Canada required a showing of jurisdiction in respect of the enforcement proceeding, it would have had to address how that requirement would be met.  Of course, in most cases it would be easily met by the defendant having assets in the jurisdiction.  The plaintiff would not have to prove that such assets were present: a good arguable case to that effect would ground jurisdiction.  Evidence that assets might, in the future, be brought into the jurisdiction could also suffice.

While the court is correct to note that the considerations in defending the underlying substantive claims are different from those involved in defending enforcement proceedings (para 48), the latter nonetheless allow reasonable scope for defences to be raised, such as fraud, denial of natural justice or contravention of public policy.  With no threshold jurisdiction requirement, judgment debtor defendants will now be required to advance and establish those defences in a forum that may have no connection at all with them or the judgment.

The enforcement proceedings were also brought against Chevron Canada, an indirect subsidiary of Chevron that does have a presence in Ontario, although it is not a named defendant in the Ecuadorian judgment.  The Supreme Court of Canada held that the Ontario court had jurisdiction over Chevron Canada based on its presence, with no need to consider any other possible basis for jurisdiction.  The decision is thus important for confirming the ongoing validity of presence-based jurisdiction (see paras 81-87).

On a pragmatic level, eliminating an analysis of the enforcing court’s jurisdiction may simplify the overall analysis, but hardly by much.  The court notes (para 77) that ” Establishing jurisdiction merely means that the alleged debt merits the assistance and attention of the Ontario courts.  Once the parties move past the jurisdictional phase, it may still be open to the defendant to argue any or all of the following, whether by way of preliminary motions or at trial: that the proper use of Ontario judicial resources justifies a stay under the circumstances; that the Ontario courts should decline to exercise jurisdiction on the basis of forum non conveniens; that any one of the available defences to recognition and enforcement (i.e. fraud, denial of natural justice, or public policy) should be accepted in the circumstances; or that a motion under either Rule 20 (summary judgment) or Rule 21 (determination of an issue before trial) of the Rules should be granted.”  And in respect of Chevron Canada (para 95), the “conclusion that the Ontario courts have jurisdiction in this case should not be understood to prejudice future arguments with respect to the distinct corporate personalities of Chevron and Chevron Canada.  [We] take no position on whether Chevron Canada can properly be considered a judgment-debtor to the Ecuadorian judgment.  Similarly, should the judgment be recognized and enforced against Chevron, it does not automatically follow that Chevron Canada’s shares or assets will be available to satisfy Chevron’s debt.”

Uglješa Grušić, The European Private International Law of Employment, Cambridge University Press, 2015, pp. 382, ISBN: 9781107082946, GBP 79,99.

[Dal sito dell’editore] The European Private International Law of Employment provides a descriptive and normative account of the European rules of jurisdiction and choice of law which frame international employment litigation in the courts of EU Member States. The author outlines the relevant rules of the Brussels I Regulation Recast, the Rome Regulations, the Posted Workers Directive and the draft of the Posting of Workers Enforcement Directive, and assesses those rules in light of the objective of protection of employees. By using the UK as a case study, he also highlights the impact of the ‘Europeanisation’ of private international law on traditional perceptions and rules in this field of law in individual Member States. For example, the author demonstrates that the private international law of the EU is fundamentally reshaping English conflict of laws by almost completely merging the traditionally perceived contractual, statutory and tortious claims into one claim for choice-of-law purposes.

Il sommario dell’opera può essere consultato qui. Ulteriori informazioni a questo indirizzo.

EU Cross-Border Insolvency Court-to-Court Cooperation Principles, a cura di Bob Wessels, Eleven International Publishing, 2015, pp. 136, ISBN 9789462365865, Euro 32,50.

[Dal sito dell’editore] This publication contains a set of 26 EU Cross-Border Insolvency Court-to-Court Cooperation Principles (‘EU JudgeCo Principles’) and 18 EU Cross-Border Insolvency Court-to-Court Communications Guidelines (‘EU JudgeCo Guidelines’). These EU JudgeCo Principles will strengthen efficient and effective communication between courts in EU Member States in insolvency cases with cross-border effects. They have been produced in a period of two years (2013-2014), developed by a team of scholars of Leiden Law School and Nottingham Law School, in collaboration with some 50 experts, including 25 judges representing just as many different EU countries. The principles are set in EU stone, in that they especially function within the framework of the EU Insolvency Regulation. The texts have been aligned with the text of the recast of the Regulation, as published early December 2014. The EU JudgeCo Principles try to overcome present obstacles for courts in EU Member States such as formalistic and detailed national procedural law, concerns about a judge’s impartiality, uneasiness with the use of certain legal concepts and terms, and, evidently, language. The texts further build on existing experience and tested resources, especially in cross-border cases in North America, but tailor-made into an EU insolvency law context. These Principles include a set of very practical EU JudgeCo Guidelines to facilitate communications in individual cross-border cases. The project was funded by the European Union and the International Insolvency Institute (III) (www.iiiglobal.org) and we thank both sponsors for their continued support.

Ulteriori informazioni a questo indirizzo.

Towards the end of July, the Court at Amsterdam applied the recent CJEU judgment in CDC, on the application of (now) Article 8’s rule on anchor defendants. The case also involved CDC – busy bees on the competition enforcement front, this time pursuing inter alia Kemira, a Finnish company, using Akzo Nobel NV, domiciled in The Netherlands, as anchor defendants.

The court referred in extenso to the CJEU’s CDC case, noting inter alia that it is not up to CDC to show that the suit was not just introduced to remove Kemira from the Finnish judge: that Kemira suggests that introduction of the suit in The Netherlands is not very logical given the absence of factual links to that Member State, does not suffice. The court also adopted the CJEU’s finding on choice of court and liability in tort. In the absence of specific proviso in standard contractual choice of court, liability such as here, for infringement of competition law, cannot be assumed.

Finally, at 2.18, the Court also referred to argument made by Kemira that Finish and Swedish law ought to apply to the interpretation (not: the validity) of the choice of court agreement. That would have been an interesting discussion. However in light of the court’s earlier judgment on the irrelevance of the court of choice, the court did not entertain that issue.

Geert.

 

Deniz Halil Deren has authored a book (in German) on expropriation in private international law (“Internationales Enteignungsrecht – Kollisionsrechtliche Grundlagen und Investitionsschutzfragen”). Published by Mohr Siebeck the book looks at issues of choice of law and investor protection.

The official abstract reads as follows:

Since the 20th century, states have extensively been exercising their right to expropriate private property. These expropriations have involved goods (such as works of art, means of production or natural resources) as well as shares, claims and intellectual property rights. Yet under what conditions does German law recognise expropriations performed by other states and what role does investment protection law play in this context?

Further information is available on the publisher’s website.

The Hague Academy of International Law has made available the programme of the 2016 summer courses of public and private international law.

The private international law course will run from 1 to 19 August 2016 and will be opened by an an inaugural lecture on Languages and Private International Law by Erik Jayme.

The general course (Private International Law: Aspirations and Realities) will be delivered by Symeon C. Symeonides.

Special courses will be given by Lotfi Chedly (The Effectiveness of International Commercial Arbitration), Lauro da Gama e Souza Jr. (The UNIDROIT Principles and the Law Governing International Trade Contracts), Michael Hellner (Private International Law Issues concerning Surrogacy Arrangements), Sergio Marchisio (The Legal Regime of International Space Activities: Between Public and Private Law), Cyril Nourissat (Restrictive Practices in Private International Law), Marta Pertegás Sender (Foreign Civil and Commercial Judgements: From Reciprocity to a Multilateral Scheme?) and Karsten Thorn (The Protection of Small and Medium Enterprises in Private International Law).

The directors of studies will be Maxi Scherer and Sabine Corneloup.

Interested applicants will be able to register online as of November 1st, 2015, by filling out the relevant registration forms on the Academy’s website.

A posting out off the box here, so bear with me. Neither Brussels I nor the Recast include many requirements with respect to (now) Article 8(1)’s rule on joinders. A case against a defendant, not domiciled in the court’s jurisdiction, may be joined with that against a defendant who is so domiciled, if the cases are ‘so closely connected that it is expedient to hear and determine them together in order to avoid the risk of irreconcilable judgments’. There is of course CJEU case-law on what ‘so closely connected’ means however that is outside the remit of current posting.

As I reported recently, the CJEU has introduced a limited window of abuse of  process viz Article 8(1), in CDC. The Court’s overall approach to Article 8(1) is not to take into account the subjective intentions of plaintiff, who often identify a suitable anchor defendant even if is not the intended target of their action. The Court does make exception for one particular occasion, namely if it is found that, at the time the proceedings were instituted, the applicant and that defendant had colluded to artificially fulfil, or prolong the fulfilment of, (now) Article 8’s applicability.

What if at the time the proceedings were instituted, applicant artificially ignores the fulfilment of, (now) Article 8’s applicability?

The Aldi rule of the courts of England and Wales, and its recent application in Otkritie, made me ponder whether there is merit in suggesting that the CJEU should interpret Article 8(1) to include an obligation, rather than a mere possibility, to join closely connected cases. I haven’t gotten much further than pondering, for there are undoubtedly important complications.

First, a quick look at the Aldi rule, in which the Court of Appeal considered application of the Johnson v Gore Wood principles on abuse of process of the (then) House of Lords, to an attempt to strike out a claim for abuse of process on the basis that the claim could and should have been brought in previous litigation. Aldi concerned complex commercial litigation, as does Otkritie. The result of Aldi is that plaintiffs need to consult with the court in case management, to ensure that related claims are brough in one go. Evidently, the courts need to walk a fine rope for the starting point must be that plaintiffs have wide discretion in deciding where and when to bring a claim: that would seem inherent in Article 6 ECHR’s right to a fair trial.

In Otkritie [the case nota bene does not involve the Brussels Regulation], Knowles J strikes the right balance in holding that the Aldi requirement of discussing with the court had been breached (and would have cost implications for Otkritie in current proceedings) but that otherwise this breach did not amount to abuse of process.

Now, transporting this to the EU level: to what degree could /should Article 8 include a duty to join closely related proceedings? Should such duty be imposed only on plaintiff or also on the court, proprio motu? A crazy thought perhaps for the time being, but certainly worthwhile pondering for future conflicts entertainment.

Geert.

The European Commission has issued a call for proposals concerning action grants to support transnational projects on judicial training covering civil law, criminal law, fundamental rights and fight against terrorism and radicalisation.

Proposals presented under the civil law priority shall focus notably on legal instruments in family matters and successions, in particular Regulation No 650/2012 successions upon death; legal instruments in civil and commercial matters, in particular Regulation No 805/2004 creating a European Enforcement Order for uncontested claims, Regulation No 1896/2006 creating a European Order for Payment Procedure, Regulation No 861/2007 establishing a European Small Claims Procedure, Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Ia); Regulation No 655/2014 creating a European Account Preservation Order.

The Commission also calls for proposals aimed at training enforcement authority agents as regards instruments in the area of civil judicial cooperation, in particular: Regulation No 2201/2003 on matrimonial matters and the matters of parental responsibility (Brussels IIa); Regulation No 805/2004 creating a European Enforcement Order for uncontested claims and Regulation No 655/2014 establishing a European Account Preservation Order.

The deadline for applications is 16 November 2015.

Further information available here.

The Oberlandesgericht of Munich has recently lodged a request for a preliminary ruling concerning the interpretation of Regulation No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, ie the Rome III Regulation (Case C-281/15, Soha Sahyouni v Raja Mamisch).

The request provides the ECJ with the opportunity of delivering, in due course, its first judgment relating specifically to the Rome III Regulation.

To begin with, the referring court asks the ECJ to provide a clarification as to the scope of the uniform conflict-of-laws regime set forth by the Regulation. In particular, the German court wonders whether the Regulation also applies to ‘private divorces’, namely divorces pronounced before a religious court in Syria on the basis of Sharia.

If the answer is in the affirmative, the referring court asks whether, in the case of an examination as to whether such a divorce is eligible for recognition in the forum, Article 10 of the Regulation must also be applied. According to the latter provision, where the law specified by the Regulation to govern the divorce or the legal separation “does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex”, the lex fori applies instead.

Should the latter question, too, be answered in the affirmative, the referring court wishes to know which of the following interpretive options should be followed in respect of Article 10: (1) is account to be taken in the abstract of a comparison showing that, while the law of the forum grants access to divorce to the other spouse too, that divorce is, on account of the other spouse’s sex, subject to different procedural and substantive conditions than access for the first spouse? (2) or, does the applicability of Article 10 depend on whether the application of the foreign law, which is discriminatory in the abstract, also discriminates in the particular case in question?

Finally, were the ECJ to assert that the second of these options is the correct one, the Oberlandesgericht of Munich seeks to know whether the fact that the spouse discriminated against has consented to the divorce — including by duly accepting compensation — constitutes itself a ground for not applying Article 10.