Issue 4 of Lloyd’s Maritime and Commercial Law Quarterly for 2024 was just published. It contains the following articles, case notes, and book review:
Katherine Reece-Thomas, “State Immunity and Sunken Treasure: Finders will not Always be Keepers”
Anthony Kennedy, “Unanswered Questions”
Michael F Sturley†, “The Centenary of the Hague Rules: Celebrating a Century of International Conventions Overmining the Carriage of Goods by Sea”
2024 marks the centenary of the Hague Rules, which still play a central role in allocating the risk of cargo loss or damage. To celebrate that milestone, it is valuable to review the history, beginning with the pre-existing risk allocation. When maritime nations applied widely accepted principles differently, efforts began in the late nineteenth century to achieve uniformity by international agreement. Those efforts failed until domestic legislation exacerbated the problem and created greater pressure for a solution. Even after agreement was reached in 1924, however, another fourteen years passed before the Convention was widely in force. Since then, international uniformity has been challenged in multiple ways, and the story continues to this day.
Marcus Teo, “Foreign Law as Fact”
In English law, “foreign law”, as applied under choice-of-law rules, is a question of fact. This “fact doctrine”, however, faces scepticism for three reasons: it remains unclear whether foreign law is truly treated as a question of fact, why it is so treated, and what the precise fact-in-issue is. This article addresses these concerns. It demonstrates that, today, foreign law is treated like any other question of fact. It then argues that foreign law should be classified as a question of fact, and should refer to foreign legal rulings, because this facilitates the accurate prediction of foreign decisions.
Adrian Briggs, “Book Review – Dicey+100. Albert Venn Dicey: A Centennial Commemoration”
The University of Luxembourg is proud to host a special event to present the newly released book, European Account Preservation Order – A Multi-jurisdictional Guide with Commentary, published by Bruylant/Larcier.
Co-edited by leading experts Dr. Nicolas Kyriakides (University of Nicosia), Dr. Heikki A. Huhtamäki (Huhtamäki Brothers Attorneys Ltd), and Dr. Nicholas Mouttotos (University of Bremen), this comprehensive guide offers a detailed analysis of Regulation (EU) No 655/2014, with contributions from 26 Member States.
The first panel will explore practical challenges in the use of EAPO in Luxembourg and France, moderated by Dr. Elena Alina On?anu (University of Tilburg) and featuring insights from Dr. Laurent Heisten (Moyse & Associates Law Firm, Luxembourg), Alexandra Thépaut (Étude Calvo & Associés, Luxembourg) and Lionel Decotte (SAS Huissiers Réunis, France). The second panel will examine future developments and reforms, moderated by Dr. Nicholas Mouttotos (University of Bremen), with contributions from Prof. Gilles Cuniberti (University of Luxembourg) Dr. Carlos Santaló Goris (University of Luxembourg) and Dr. Nicolas Kyriakides (University of Nicosia).
The event will take place on December 3rd, 2024 at Room A401, University of Luxembourg – Weicker Building, from 11:00 to 13:15 CET.
On Tuesday, December 3, 2024, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 2:45 p.m. – 4:15 p.m. (CET). Professor Stéphanie Francq (UCLouvain) will speak, in English, about the topic
“Overriding Mandatory Rules in Family Matters and Personal Status, Are Belgians the Only Ones?”
Are we really witnessing the occurrence of overriding mandatory rules in family matters and personal status? A new phenomenon seems indeed to surface in this area with examples of substantive rules or values, announced by the lawmaker, together with a clear intention to apply in identified international situations. Belgian law offers a series of examples. But are Belgian the only ones using this method? German law has also offered a better known and rather unfortunate illustration with the Act to prevent child marriage. These rules, their upsides and downsides, deserve close consideration. First and obviously for technical reasons: are we indeed facing overriding mandatory rules, similar to those concerning business transactions? Or is this some new form of public policy exception? Are these rules carefully designed legal objects or rather clumsy attempts to secure the application of the lex fori? Beyond the technicalities, the presentation will tend to investigate potential reasons behind this new phenomenon.
It turns out that these rules might have something to tell us about the current state of conflict of laws, its politics and its theories, and its need to look beyond its own borders.
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
In Jaffe & Anor Greybull Capital LLP & Ors [2024] EWHC 2534 (Comm) one of the issues was the applicable law for misrepresentation about the source of funds being injected into a company. Cockerill J, applying Article 4 Rome II and referring to earlier judgments all reviewed on the blog, in the end [300] holds for German law:
In terms of direct damage, damage occurred when those misrepresentations took effect in the minds of those attending the meeting in Germany and were subsequently relied upon. The alleged key decisions were said to have been taken at the November meeting of Wirecard’s Management Board; and this seems to have taken place in Germany. The direct links to Germany are simply much stronger than any links to this jurisdiction.
This echoes Abu Dhabi Commercial Bank v Shetty’s ‘in the case of a misrepresentation or fraud, the locus damni is held to be the place where that misrepresentation is acted upon’ (not a direct quote, rather my summary at the time). I believe this is the right conclusion. It is a stronger justification than [299]’s inclusion of the place where the loss is ultimately held, for instance:
Overall – and despite the clear and careful arguments advanced for the Claimants, I conclude that the preferable analysis is that the applicable law is German Law. There are many immediate factors linking the case to Germany both in terms of direction, causation and ultimate feeling of the loss. By contrast Wirecard is forced to rely on the effects of Side Letter 7. But Side Letter 7 did not immediately cause Wirecard damage and would not inevitably do so. It took a further contingency (administration) and the application of the relevant rules to manifest the chargebacks. The links to England are too derivative (described by the Claimants in closing as manifesting at “the fourth and fifth stages” of the analysis) and too poorly evidenced.
Geert.
https://x.com/GAVClaw/status/1844671980462575965
I reported on the jurisdictional issues in the Brasilian orange juice cartel before. In Viegas & Ors v Estate of Jose Luis Cutrale & Anor [2024] EWCA Civ 1122 the Court of Appeal has now held on a claim amendment issue viz the continuing claim against some of the defendants (the claim against others having failed the jurisdictional test).
The issue of interest to the blog is first of all the situs of ‘choses in action’, that is, per P. Torreman’s Cheshire, North and Fawcett ‘the right of proceeding to obtain a sum of money or to claim damages’ or an enforcement right vis-a-vis an object (French: ‘une chose’ hence the odd use of ‘choses in action’ in the common law). That situs is fairly easily located if the enforcement relates to a physical object. Things are slightly more complicated when the object is immaterial, such as shares, or financial interests such as investments— which also incidentally explains why the issue often comes up in investment arbitration (the locus of the investment there, determining the applicability or not of a specific BIT or MIT).
In the case at issue, parties agreed on the situs: [77]
“It was common ground before us that the claims which the claimants are seeking to pursue are to be regarded as situate in this jurisdiction. In this connection, the defendants submitted that choses in action such as the claims “generally are situate in the country where they are properly recoverable or can be enforced” (see Dicey, Morris & Collins on the Conflict of Laws, 16th ed., at rule 136) and that the bringing of a claim in a particular jurisdiction reduces it into possession in that jurisdiction. The defendants relied in this respect on Trendtex Trading Corporation v Credit Suisse [1980] QB 629 (affirmed: [1982] AC 679), where Lord Denning MR said at 652:
“The right of action of Trendtex against C.B.N. was a chose in action. It was reduced into the possession of Trendtex by the issue of the writ in the High Court in England. It was situate in England.”
In the course of his oral submissions, [counsel for claimant] confirmed that he accepted that the claims which the claimants are seeking to advance in these proceedings are to be considered to be situate (sic) here.”
Further of interest to the blog is the standing of those claimants which are heirs of the original victims and the relevance of characterisation for same. 639 of the claimants listed across the claim forms bring claims as heirs on the basis that they are entitled to do so under Brazilian law. Some of these are expressly stated in the claim forms to be representing the estates of deceased persons, but in many other instances the claim forms simply give the claimants’ names. Three claimants were granted letters of administration in England and Wales on 11 July 2023, but that long post-dated the issue of the claim forms. None of the relevant claimants had obtained a grant of representation in England and Wales when the claims were instituted.
The first instance judge had concluded that the heirs could not pursue their claims in this jurisdiction in the absence of grants of representation here. “Insofar as the claim is brought before the distribution of assets to the beneficiaries”, she said [198], “this stage is the administration of the estate and an English grant is required in order for the heirs to bring the claim and collect the assets on behalf of those entitled to the assets of the estate”. Claimants challenge the Judge’s conclusions.
This issue is where characterisation comes in: assigning the situation to a specific legal category so as to apply the relevant connecting factor and consequently the correct jurisdictional and applicable law consequences. Characterisation is done by the lex fori (except of courts where it is harmonised, such as, not always successfully, in EU law or the Hague instruments). Reference is made in the judgment to professor Briggs’ ‘pigeon holing’ analogy: [82]
the available categories are those created by the common law rules of private international law; and the placing within one or more of them is done according by reference to the same rules – for those who find analogies helpful, English law designs the pigeonholes, and an English sorter decides which facts belong in which pigeonhole.
Claimants essentially argue that what matters for the purpose of characterisation is that the heirs’ claims are not brought as representatives of the estate, but as personal claims of the heirs in respect of the deceased person’s losses. The mere fact that the claim is being pursued in England should not be treated as giving rise to an estate in England so that the pursuit of the claim would have to be treated as being the administration of the estate – which would have required an English grant of representation.
This led on appeal [90] ff to consideration of classic civil law v common law distinctions on the passing of an estate, the need for probate in England etc.
[118]
for the purposes of characterisation, the law of England and Wales distinguishes between, on the one hand, the administration of an estate and, on the other, succession. It is clear, too, that under the law of England and Wales “succession to the movables of an intestate is governed by the law of his or her domicile at the time of his or her death”. If, therefore, the relevant issue is one of succession, Brazilian law must be applicable. The deceased persons from whom the heirs claim to have inherited causes of action were domiciled in Brazil, the causes of action represent “movables” and [counsel for claimants] confirmed that the deceased persons did not make wills extending to those causes of action.
Newey LJ [120]:
In broad terms, it seems to me that, under the law of England and Wales, matters relating to the collection of a deceased person’s assets and the payment of debts are considered to relate to the “administration of estates” and the distribution of assets after that is considered to relate to “succession”.
and [123-124]
If, as I consider to be the case, the collection of a deceased person’s assets and the payment of debts must be distinguished from the distribution of assets after that, the question whether the heirs have title to sue must, I think, fall to be treated as one relating to the administration of the deceased persons’ estates rather than one of succession. While a person’s assets are immediately and automatically transmitted to his heirs under Brazilian law and, on the Judge’s findings, an heir can bring proceedings relating to the estate, an heir does not acquire an “individualised interest” until “sharing”. Up to that point, any claim that an heir makes is “in defence of the common patrimony”, “the common heritage” and “the whole inheritance” …. Heirs can doubtless be expected to bring proceedings in their own interests, but “the proceeds awarded to the heir in the legal proceedings will not be considered, automatically, as personal patrimony of that heir” (in [expert’s] words). A particular heir may find that the fruits of a claim pass to one or more other heirs or are used to discharge debts. It is only when the “sharing” is carried out that an heir obtains an “individualised” absolute interest in an asset which had belonged to the deceased person. It is only then, too, that in the eyes of English law there is “succession” rather than the “administration of estates”.
In the present case, there is no suggestion that any relevant cause of action of a deceased person has been the subject of a “sharing”. As matters stand, therefore, the heirs are, for the purposes of characterisation, to be viewed as seeking to administer the estates of the deceased persons, not as having succeeded to any causes of action of the deceased persons. It follows that Brazilian law is not applicable and that the heirs cannot advance the claims in this jurisdiction without obtaining letters of administration here.
The appeal therefore fails, also nota bene on the question of whether the heirs should be given extension of time to obtain the required letters of administration.
I am not sure I agree. A cause of action of a deceased person, passed on to the heirs, is an asset, whether or not can successfully be acted upon. But I don’t suppose I had the benefit or all the expert evidence etc. Whatever the outcome, the case is an interesting example of the relevance of characterisation.
Geert.
I signaled the preliminary reference and background here and Kokott AG Opined end of September in C‑393/23 Athenian Brewery SA, Heineken NV v Macedonian Thrace Brewery SA.
Can a person damaged by an infringement of the competition rules sue the company which committed that infringement at the seat of its parent company in another Member State?
The case clearly has echoes of the economic unit theory in EU competition law see eg ENI. On the other hand the CJEU in a MOL v Mercedes Benz, in a judgment issued before the Opinion, did not resort to the economic unit theory in the inverse sense, holding that a mother corporation cannot simply claim its registered office as locus damni in Article 7(2) Brussels Ia jurisdiction when one of its subsidiaries suffered damage resulting from a breach of competition law. (The AG in Athenian Brewery only refers to the Opinion of Emiliou AG in MOL).
(37) ff the AG points to Article 8(1)’s condition of joinders being possible of there is a risk of irreconcilable judgments arising from diverging judgments on the same situation of law and fact, existing in all likelihood where mother and daughter have both been found to have infringed competition law. However less clear (41) is
whether a close connection within the meaning of Article 8(1) of the Brussels Ia Regulation may be present even if the joint liability of the parent company and the subsidiary for the infringement has not yet been established. This may arise in particular in the case of stand-alone actions, which, unlike follow-on actions, cannot be based on a (binding) decision of a competition authority, be this the Commission (Article 16(1) of Regulation No 1/2003) or a national authority (Article 9 of Directive 2014/104).
(43) ff
“the fact in support of the presumption of control that the parent company holds (almost) all of the capital in the subsidiary is such a strong indication of the existence of a close connection between the actions directed against the parent company and the subsidiary for the purposes of Article 8(1) of the Brussels Ia Regulation that no further evidence of the existence of that close connection is usually required (see in this regard section a). That interpretation does not infringe the requirement as to the foreseeability of the court having international jurisdiction… What is more, it ensures the practical effectiveness of Article 8(1) of the Brussels Ia Regulation without leaving open the possibility of the applicant’s being accused of abusive behaviour…”
The AG explains all these elements in turn and I agree with her analysis. (60) for instance she supports the ‘good forum shopping’ implications of the anchor defendant mechanism:
It is not a circumvention of the rule of jurisdiction for the injured party to sue the Greek subsidiary too in the place where the Netherlands parent company is domiciled and thereby to remove the former from the jurisdiction of the Greek courts. If, after all, the defendants are domiciled in different Member States, Article 8(1) of the Brussels Ia Regulation allows the applicant to select the place before the courts of which it brings its claim. That freedom of choice includes the possibility for the applicant to bring the dispute only before the court that best suits its interests.
I do wish the CJEU would also recognise the alternative: the misuse of forum shopping using A7(2)’s forum delicti rule, by corporations committing infringement of competition law, as I discuss ia here.
Geert.
EU Private International Law, 4th ed. 2024, 2.516.
Private International Law and Sustainable Development in Asia
Date: 23 November 2024
Venue: Wuhan University School of Law, Conference Hall 120
Zoom link: Meeting ID: 846 5342 1671 Passcode: 206716
22 November 2024
06:00 PM: Conference Dinner
23 November 2024
08:30 – 09:00 AM: Registration and Welcome Coffee
09:00 – 09:05 AM: Opening Remarks
09:05 – 9.15 AM: Welcome Remarks
9:15- 9:35 AM: Keynote Address (Private International Law and Sustainable Development)
9:35–9:50 AM: Conference Photo and Coffee Break
9:50 – 10:50 AM: Panel 1: Family/Equality
10:50 – 11:05 AM: Coffee Break
11:05-12:05 Panel 2: Migration
12:05 – 01:15 PM: Lunch Break
01:15 – 02:45 PM: Panel 3: The Role of the State
2:45 – 3:00 PM: Coffee Break
3:00-4:30 Panel 4: Environment/Climate Change
4:30-5:35 Presentations: The International Framework
5:35-5:40 Closing Remarks
06:00 PM: Conference Dinner
Join us online tomorrow for a free seminar on the CISG in Australia, delivered by Dr Benjamin Hayward.
Abstract
Australia adopted the United Nations Convention on Contracts for the International Sale of Goods (CISG) – a treaty intended to harmonise cross-border sale of goods law – in 1989. Australia gives the treaty local effect via a range of State, Territory, and Commonwealth Acts. A problem has arisen, however, with respect to the wording of that legislation. Some Australian courts consider that the treaty only applies, on a provision-by-provision basis, where it is inconsistent with local law. According to international understandings, however, the CISG is intended to displace local law to its subject-matter extent when it applies.
With reference to Australia’s statutory interpretation rules, and the legislative histories preceding the CISG’s adoption in Australia, this seminar identifies a parliamentary intention to apply the CISG in full in Australia. It therefore identifies that Australia intended to adopt the CISG in a manner consistent with its internationally understood effect. This seminar also examines the nature of Australia’s CISG cases to-date, and identifies how future courts can better engage with the treaty in order to realise its objectives of supporting international trade.
Presenter
Benjamin Hayward is an Associate Professor in the Department of Business Law at Monash University. He has published in Australia and internationally in private international law, international commercial arbitration, and the CISG. Ben currently teaches Australian contract law, consumer law and statutory interpretation (amongst other private law topics) at the Monash Business School.
Chair
Cara North is Special Counsel with Corrs Chambers Westgarth Melbourne, and Treasurer of AAPrIL. She practises in international litigation, arbitration and private international law. Cara has worked as a legal officer for the Hague Conference on Private International Law, and for five years as a consultant to the Permanent Bureau of the Hague Conference.
Details
Date and Time: Tuesday 19 November 2024, 5:00pm to 6:00pm (AEDT: GMT+11)*
* ACT, NSW, Tas and Vic; NZ, 7:00pm-8:00pm; SA, 4:30pm-5:30pm; Qld, 4:00pm-5:00pm; NT, 3:30pm-4:30pm; WA, 2:00pm-3:00pm
Online only: Zoom Link
Zoom ID: 879 8362 4800
RSVP: by email to reid.mortensen@usq.edu.au
Anyone is welcome to attend this seminar. There is no cost.
About the Australasian Association of Private International Law
The Australasian Association of Private International Law (AAPrIL) is a group of people committed to furthering the understanding of private international law in Australia, New Zealand and the Pacific region. To lean more, visit our website or follow us on LinkedIn.
The University of Geneva is organising the second edition of the Executive Training on Civil Aspects of International Child Protection (ICPT). For more information, click here.
The University of Geneva’s ICPT, offered by the Children’s Rights Academy, is designed to:
Programme of the 2nd Round 2024 – 2025:
Module 1: Children’s Individual Rights in Transnational Parental Relationships
28 November 2024, 14:15 – 18:15
Module 2: International and Comparative Family Law
19 December 2024, 14:15 – 18:15
Module 3: Vulnerable Migration
27 February 2025, 14:15 – 18:15
Module 4: Practice of Child Protection Stakeholders: Inter-agency Co-operation in Context
10 April 2025, 14:15 – 18:15
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