Flux des sites DIP

The following announcement has been kindly provided by Vasil Savov, CDC, Brussels.

The European University Institute (EUI) Law Department in Florence, Italy, has just released a comparative study on the calculation of interest on damages resulting from antitrust infringements. It is highly topical, as the EU Member States are in the process of implementing Directive 2014/104/EU into their national laws. This “Damages Directive” seeks to facilitate private antitrust enforcement and, in particular, to ensure full compensation for victims. Due to the duration of antitrust infringements, the accrual of interest from the occurrence of the harm is essential to achieve full compensation. This study samples thirteen national laws and assesses how far they are consistent with the requirements to be found in EU law. It has been supported by Cartel Damage Claims (CDC) SCRL, Brussels.
The first part of the study elucidates the principles and requirements of EU Law relevant to interest calculation on damages caused by antitrust infringements. It further contains a high level assessment of the compliance of the surveyed Member States’ legal regimes.
It is followed by 13 country reports, written by national experts, all answering standardised questions concerning the subject of the study. The questions cover a range of material and procedural law aspects and include calculations for a hypothetical case.
The present EUI study is an in-depth and comparative treatment of this technical, yet significant, aspect of antitrust damages claims. For claimants and practitioners, the study offers a systematic and practical account of interest rules in a number of jurisdictions, for judges and lawmakers, the study provides analysis and recommendations for the proper application of interest rules and advice on principles that should inform the implementation of the Damages Directive.
The full text of the study is available here.

In Winkler v Shamoon [2016] EWHC 2017 Ch Mr Justice Henry Carr broadly follows Mrs Justice Susan Carr in Sabbagh v Khoury (which I have reviewed earlier) on the interpretation of the ‘wills and succession’ exception in the Brussels I Recast (and the Lugano convention). [The Justices themselves, incidentally, are neither related nor married, I understand]. In so doing, Sir Henry follows Dame Susan’s approach vis-a-vis the exclusions in the Brussels I Recast.

Ms Alexandra Shamoon accepts that she is domiciled in the UK for the purposes of the Brussels Regulation.  However, she applies for an order on essentially the same basis as that set out above, contending, in particular, that the claim relates to succession and therefore falls outside the scope of the Brussels Regulation. Brick Court have summary of the case and hopefully do not mind me borrowing their heads-up of the facts:

the case concerns the estate of the late Israeli businessman, Sami Shamoon.  Mr Shamoon owned and controlled the Yakhin Hakal Group of Israeli companies and was known in his lifetime as one of the wealthiest men in Israel.  The claim was brought by Mr Peretz Winkler, formerly the Chief Financial Officer and manager of Yakhin Hakal, against Mrs Angela Shamoon and Ms Alexandra Shamoon, the widow and daughter respectively of Mr Shamoon and the residuary legatees under his will.  In his claim Mr Winkler alleged that prior to his death Mr Shamoon had orally promised to transfer to him certain shares worth tens of millions of dollars.  On the basis of the alleged promise Mr Winkler claimed declarations against Angela and Alexandra Shamoon as to his entitlement to the shares (which they are due to receive under Mr Shamoon’s will).  Angela and Alexandra challenged the jurisdiction of the English Court to hear the claim on the basis that it was a matter relating to “succession” within article 1(2)(a) of the Brussels Regulation and therefore fell outside its scope (and that England was not the natural or appropriate forum for the dispute).

If the claim does fall within the scope of the Regulation, jurisdiction is quite easily established on the basis of the defendant’s domicile – albeit with contestation of such domicile in the UK by Mr Shamoon’s widow and daughter.

Carr J held that the claim was one relating to succession and therefore fell outside of the Brussels I Recast (at 53 ff). While I may concur in the resulting conclusion, I do not believe the route taken is the right one. Sir Henry follows Mrs Justice Carr’s approach in applying the excluded matters of the Brussels I Recast restrictively. I disagree. Exclusions are not the same as exceptions: Article 24’s exclusive rules of jurisdictions are an exception to the main rule of Article 4; hence they need to be applied restrictively. Article 1(2)’s exclusions on the other hand need to be applied solely within the limits as intended. Lead is also taken from Sabbagh v Koury with respect to the role of the EU’s Succession Regulation. Even if the UK is not party to that Regulation, both justices suggest it may still be relevant in particular in assisting with the Brussels I Recast ‘Succession’ exception. If the approach taken in Winkler v Shamoon is followed it leads to a dovetailing of the two Regulations’ respective scope of application. Not a conclusion I think which is necessarily uncontested.

The High Court concludes (at 72) ‘this claim is excluded from the Brussels Regulation and the Lugano II Regulation as its principal subject matter is “succession” within the meaning of Article 1(2)(a).  In particular, it is a claim whose object is “succession to the estate of a deceased person” which includes “all forms of transfer of assets, rights and obligations by reason of death”. It is a succession claim which concerns “sharing out of the estate”; and it is a claim within the definition of “succession as a whole” in Article 23 of the Succession Regulation, as a claim whose principal subject matter concerns  “the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death”: Article 23(h); and an “obligation to …account for gifts, …when determining the shares of the different beneficiaries”: Article 23(i).

Intriguingly, of course, had the UK be bound by the Succession Regulation, and given the dovetailing which the judgment suggest, the next step after rejection of jurisdiction on the basis of the Brussels I Recast, would have been consideration of jurisdiction following the Succesion Regulation. It is ironic therefore to see the Regulation feature as a phantom piece of legislation. Now you see it, now you don’t.

Geert.

(Handbook EU Private international law, Chapter 2, Heading 2.2.2.10).

On 15 April 2016, the Faculty of Law of the University of Santiago de Compostela will host a conference on Security rights and the European Insolvency Regulation: From Conflicts of Laws towards Harmonization.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Autonomous Univ. of Madrid), Anna Gardella (European Banking Authority), Wolf-Georg Ringe (Copenhagen Business School), Françoise Pérochon (Univ. of Montpellier) and Paul Omar (Nottingham Trent University).

The conference is part of the SREIR project, coordinated by Gerard McCormack, Reinhard Bork, Laura Carballo Piñeiro, Marta Carballo Fidalgo, Renato Mangano and Tibor Tajti.

The full programme is available here.

Attendance to the conference is free, but registration prior to 10th April is required.  For this, an e-mail with name and ID card must be sent to marta.carballo@usc.es or laura.carballo@usc.es.

On 15 April 2016, the Faculty of Law of the University of Santiago de Compostela will host a conference on Security rights and the European Insolvency Regulation: From Conflicts of Laws towards Harmonization.

Speakers include Paul Beaumont (Univ. of Aberdeen), Francisco Garcimartín Alferez (Autonomous Univ. of Madrid), Anna Gardella (European Banking Authority), Wolf-Georg Ringe (Copenhagen Business School), Françoise Pérochon (Univ. of Montpellier) and Paul Omar (Nottingham Trent University).

The conference is part of the SREIR project, coordinated by Gerard McCormack, Reinhard Bork, Laura Carballo Piñeiro, Marta Carballo Fidalgo, Renato Mangano and Tibor Tajti.

The full programme is available here.

Attendance to the conference is free, but registration prior to 10th April is required.  For this, an e-mail with name and ID card must be sent to marta.carballo@usc.es or laura.carballo@usc.es.

Karen Birch and Sarah Garvey from Allen & Overy have published two papers dealing with the likely/possible effects of the UK leaving the European Union on choice of law clauses in favor of English law and jurisdiction clauses in favor of English courts. The authors essentially argue that Brexit would not make a big difference and that commercial parties could (and should) continue to include English choice of law and jurisdiction clauses in their contracts: English courts (as well as other Member States’ courts) would continue to recognize and enforce such clauses. And English judgments would continue to be enforced in EU Member States (even though the procedure might be more complex in some cases).

In essence, the authors thus argue that giving up the current unified European regime for choice of law, jurisdiction, recognition and enforcement of foreign judgments, service of process, taking of evidence would not matter too much for commercial parties. I am not convinced.

The papers are available here.

The University of Missouri and Marquette University announce a student writing competition in associated with the University of Missouri’s upcoming symposium “Moving Negotiation Theory from the Tower of Babel: Toward a World of Mutual Understanding.” The competition offers a $500 first prize and $250 second prize.

Submissions must relate to one or more problems with negotiation theory, broadly defined, and should suggest a solution to the problem(s). Students are encouraged to consider sources in the symposium reading list, though they are not required to discuss or cite any of these sources.

The competition is open to all persons enrolled during calendar year 2016 in a program of higher education leading to any degree in law or a graduate degree (including but not limited to the J.D., LL.B., LL.M., S.J.D., M.A. or Ph.D.). Applicants may be of any nationality and may be affiliated with a degree-providing institutions located in any country.

Papers that have been published or accepted for publication are not eligible for the writing competition.

Submission Requirements

Submissions must be in English and between fifteen (15) and twenty-five (25) pages in length, including footnotes. The text of the paper must be typed and double spaced pages in 12 point Times New Roman font (or similarly readable typeface) with 1-inch margins on all sides. Footnotes should preferably appear in Bluebook form, although papers using other established systems of legal citation will be accepted.

The title of the paper must appear on every page of the submission. The author’s name must not appear anywhere on the submission itself.

A separate document should be provided including (1) the author’s full name, address, telephone number and email address; (2) the degree-granting institution where the author is or was enrolled in 2016, as well as the degree sought and the (anticipated) year of graduation; (3) the title of the submission; and (4) the date of the submission.

Failure to adhere to these requirements may lead to disqualification of the submission.

Papers must be electronically submitted to: Laura Coleman, University of Missouri School of Law, colemanl@missouri.edu

Submissions must be received no later than 11:59 p.m., Central time, on Monday, October 17, 2016.

Criteria

Submissions will be judged based on the following factors:

· Quality, thoroughness, and persuasiveness of analysis

· Value to scholars, faculty, students, and/or practitioners

· Contribution to the scholarship in the field.

Submissions may be considered for publication in the Journal of Dispute Resolution. The sponsors reserve the right not to name a winner if a suitable submission is not entered into the competition.

Questions should be directed to Professor John Lande at landej@missouri.edu. More information is available here.

The International Institute for the Unification of Private Law (UNIDROIT) has recently announced the celebration of the 90th anniversary of its foundation. Established in 1926 as an auxiliary organ of the League of Nations, and re-established in 1940 on the basis of a multilateral agreement, UNIDROIT has made significant contributions to the modernisation and harmonisation of substantive private, notably commercial, law, but also to the conflict of laws and international civil procedure. In all these years, UNIDROIT has collaborated and maintained close ties of cooperation and friendship with numerous partner organisations and entities. To celebrate this momentous occasion, UNIDROIT will hold a series of celebratory events in Rome from 15 to 20 April 2016 which are devoted to the role and place of private law in supporting the implementation of the international community’s broader cooperation and development objectives. Please note that all events are accessible upon invitation only. Further information is available here.

As you may (or may not) already know, a team of researchers recently concluded a study for the European Parliament on arbitration across the European Union and Switzerland. As part of this study the researchers undertook a large-scale survey of arbitration practitioners across Europe, including 871 respondents from every country in the European Union and Switzerland. The results of this survey have allowed the research team to produce far more information on the practice of arbitration in Europe than has previously been available. (see, e.g. this discussion of arbitration in six southern European countries)

A new team of researchers (Tony Cole, Paolo Vargiu, Masood Ahmed at the University of Leicester; S.I. Strong at the University of Missouri, Manuel Gomez at Florida International University, Daniel Levy at Escola de Direito da Fundação Getúlio Vargas – São Paulo, and Pietro Ortolani at the Max Planck Institute Luxembourg) is now working in collaboration with the ICC International Court of Arbitration and the the Organisation of American States to deliver a survey that will generate similar information on the practice of arbitration in the Americas. Letters of support have been received from both the ICC and the OAS. Results from the survey will be used to draft articles on arbitration in the Americas, written by the members of the research team.

The survey consists almost entirely of multiple-choice questions, and only takes approximately half an hour to complete. Moreover, it need not be completed in a single sitting, and if respondents return to the survey on the same computer and with the same browser, they can resume where they left off. The survey team will keep responses confidential and will not divulge any respondent’s identity at any time without his or her explicit consent.

All response data from the survey will be stored securely under password on SurveyMonkey. All research records will be retained for a period of 7 years following the completion of the study. Responses by an individual can, however, be deleted at any time upon request of that individual. Responding to the survey will be taken as consenting to the use of the information provided, for the purposes of drafting the articles deriving from this project.

The survey will remain open until July 11, 2016. The survey is available here.

The Erasmus Graduate School of Law (EGSL) of the Erasmus University Rotterdam has two junior fellowships available for PhD candidates from universities outside the Netherlands, including candidates working in the field of private international law and European/international civil procedure, to visit the Erasmus School of Law for a period of three months. During this stay, the Junior Fellows will be able to discuss their research with senior staff members and interact with other PhD candidates in the framework of EGSL activities. Information about the Junior Fellowship programme can be found on this webpage.

Erasmus School of Law is also currently recruiting PhD Candidates, and also welcomes high quality proposals in the area of private international law and European, international or comparative civil procedure, in particular those that would fit into the multidisciplinairy and empirical research program Behavioural Approaches to Contract and Tort.

In Brogsitter, the CJEU held that the fact that one contracting party brings a civil liability claim against the other is not sufficient to consider that the claim concerns ‘matters relating to a contract’ within the meaning of Article 7(1) Brussels I Recast. That is the case only where the conduct complained of may be considered a breach of contract, which may be established by taking into account the purpose of the contract, which will in principle be the case only where the interpretation of the contract which links the defendant to the applicant is indispensable to establish the lawful or, on the contrary, unlawful nature of the conduct complained of against the former by the latter. 

At the end of December, Kokott AG Opined in C-196/15 Granarolo (even now, early April, the English version was not yet available) effectively applying Brogsitter to the case at hand: an action for damages for the abrupt termination of an established business relationship for the supply of goods over several years to a retailer without a framework contract, nor an exclusivity agreement. Ms Kokott (at 17) points out that unlike Brogsitter, there is no forceful link with the contractual arrangements between parties which would be the foundation for jurisdiction on the basis of contractual (non) performance (which there would have been had there been a framework relation between the parties). Rather, the soure for a claim between the parties is a statutory provision (it is not specifically identified: however presumable it relates to unfair commercial practices) that existing business relations cannot be abruptly halted without due cause.

Article 7(2) therefore should determine jurisdiction (over and above Article 4).

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9

The following announcement has been kindly provided by Professor Dr. Christoph Kumpan, University of Halle-Wittenberg:

Professor Dr. Christoph Kumpan, University of Halle-Wittenberg, is looking to hire a highly skilled and motivated individual to work as a part-time (50%) research assistant beginning June 2016 or sooner. Applications should be submitted no later than April 15, 2016.

The position will entail close collaboration on a number of new and ongoing projects, focusing primarily on research on financial regulation.
The duties include reviewing English articles, editing English texts and the support in research and teaching, as well as teaching your own classes in English (2 hours per week), preferably in the areas of private law business/financial law.

This position is expected to last two years. The work location is Halle, Germany, a city close to Berlin, Germany.

Education:

a university degree, preferably in law (JD)
preferably, knowledge of financial law / securities regulation

Competencies:

knowledge of English (native speaker or equivalent language skills)
experience with reviewing and editing legal texts
interest in business law
ability to work in a team as well as independently

Hours/week: 20
Pay Frequency: Monthly
Payment: around 1.700 Euro (approx. 1.200 Euro net) per month
Possibility to obtain a doctoral degree (if faculty’s requirements are met)

Required Job Seeker Documents: Resume, Cover Letter, complete transcripts.
The cover letter should include: A brief description of your career/study goals. A description of your experience with reviewing/editing legal texts. A brief description of any prior research assistance experience, or any other experience with legal research (e.g., thesis).

The University is committed to a policy of equal opportunity. Candidates with disabilities will be preferred in cases where they have the same qualifications as others.

If you are interested in this position, please send your application with the reference no. “Reg.-Nr. 3-1109/16-H” by April 15, 2016, preferably, via email to sekretariat.kumpan@jura.uni-halle.de

or to:
Martin-Luther-Universität Halle-Wittenberg, Juristische und Wirtschaftswissenschaftliche Fakultät, Juristischer Bereich, Lehrstuhl für Bürgerliches Recht, Wirtschaftsrecht, Internationales Privatrecht und Rechtsvergleichung, Universitätsplatz 3-5, 06099 Halle (Saale).

For more information (in German) see http://www.verwaltung.uni-halle.de/dezern3/Ausschr/16_308.pdf.
For further enquiries, please contact Professor Dr. Kumpan: sekretariat.kumpan@jura.uni-halle.de

As explained in a previous post from a few years back, if the Justices of the United States Supreme Court are considering whether to grant a petition for certiorari and review a decision from the Courts of Appeals, and they think the case raises issues on which the views of the federal government might be relevant—but the government is not a party—they will order a CVSG brief. “CVSG” means “Call for the Views of the Solicitor General.” In the past two months, the Court ordered CVSG briefs in two new cases concerning matters of private international law, sovereign immunity and international arbitration.

If the issues are interesting to the Justices of the Supreme Court, and are about to be addressed by the U.S. Executive branch, then they should, ipso facto, be interesting to the practicing bar as well. The fact that each of these cases involve claims being made against foreign sovereigns makes them even more interesting for international dispute resolution lawyers steeped in the crossroads of litigation, commercial and investment arbitration. Below is a brief review of these two cases and the interesting issues being raised.

The first case is Belize Social Development Ltd. v. Government of Belize. It involves the relatively uncommon juxtaposition of arbitration award enforcement and the doctrine of forum non conveniens. In that case, a private company had a contractual dispute with the government of Belize, and obtained an arbitration award of $38 million. It then sought to confirm the award in the United States. Belize defended on numerous grounds, including by arguing that the arbitration exception to the Foreign Sovereign Immunities Act did not apply because the contract was entered without proper legal authority in Belize, and by asserting that the New York Convention does not mandate recognition and enforcement where, as here, the dispute was not purely a “commercial” one, but rather promised favorable tax treatments. These defenses were dismissed by the D.C. Circuit; Ted Folkman has discussed that decision on Letters Blogatory.

The other unsuccessful defense raised by the debtor is now the subject of a petition for certiorari before the Supreme Court. The basic question is whether a party may dismiss a petition to recognize and enforce an arbitration award under the doctrine of forum non conveniens. The District Circuit held that a foreign forum is per se inadequate—and thus ineligible as a forum conveniens—because the focus of a recognition and enforcement action (viz. U.S.-based assets) cannot be reached by a foreign court. The D.C. Circuit affirmed this holding without any explication. This holding plainly splits from the Second Circuit, which has affirmed the forum non conveniens dismissal of recognition and enforcement actions when the alternative forum has some assets of the debtor, and thus offers the possibility of a remedy. This case is complicated by the fact that the Belize Supreme Court has issued an injunction against enforcement proceedings, and the Caribbean Court of Justice has held that the Award convenes public policy.

The decision below and the parties’ briefs before the Court can be found here.

The second case is Helmerich & Payne Int’l Drilling Co. et al v. Bolivarian Republic of Venezuela. This case concerns the a lawsuit by a U.S. company regarding breaches of contract by PdVSA and the expropriation of its assets in Venezuela. The claims were brought under both the expropriation and commercial activity exceptions to the FSIA; the District Court permitted the claims to proceed under the latter but not the former. The D.C. Circuit flipped those conclusions, allowing the expropriation but not the contract claims to proceed, and remanded the case. Both sides have filed crossing petitions for a writ of certiorari, presenting the following questions.

(1) Whether, under the third clause of the Foreign Sovereign Immunities Act of 1976, a breach-of-contract action is “based … upon” any act necessary to establish an element of the claim, including acts of contract formation or performance, or solely those acts that breached the contract;

(2) whether, under Republic of Argentina v. Weltover, a breaching party’s failure to make contractually required payments in the United States causes a “direct effect” in the United States triggering the commercial activity exception where the parties’ expectations and course of dealing have established the United States as the place of payment, or only where payment in the United States is unconditionally required by contract.

(3) Whether, for purposes of determining if a plaintiff has pleaded that a foreign state has taken property “in violation of international law,” the Foreign Sovereign Immunities Act recognizes a discrimination exception to the domestic-takings rule, which holds that a foreign sovereign’s taking of the property of its own national is not a violation of international law;

(4) whether, for purposes of determining if a plaintiff has pleaded that “rights in property taken in violation of international law are in issue,” the FSIA allows a shareholder to claim property rights in the assets of a still-existing corporation; and

(5) whether the pleading standard for alleging that a case falls within the FSIA’s expropriation exception is more demanding than the standard for pleading jurisdiction under the federal-question statute, which allows a jurisdictional dismissal only if the federal claim is wholly insubstantial and frivolous.

The decision below and the parties briefs before the Court can be found here and here.

What the Solicitor General says about these issues and whether the Court takes the cases will not be known until the next Term, which begins in October.

The following announcement has been kindly provided by Professor Dr. Christoph Kumpan, University of Halle-Wittenberg:

Professor Dr. Christoph Kumpan, University of Halle-Wittenberg, is looking to hire a highly skilled and motivated individual to work as a part-time (50%) research assistant beginning May 2016. Applications should be submitted no later than April 15, 2016.

The position will entail close collaboration on a number of new and ongoing projects, focusing especially on research on private law, international private law and business law.
The duties include the support in research and teaching in private law and private international law, as well as teaching your own classes (2 hours per week, in English or German), in particular in the areas of private law and/or private international law.

This position is expected to last three years. The work location is Halle, Germany, a city close to Berlin, Germany.

Education:

a university law degree (e.g., JD)

Competencies:

knowledge of English required, preferably also Spanish or French
knowledge of German of advantage
knowledge of private international law
ability to work in a team as well as independently

Hours/week: 20
Pay Frequency: Monthly
Payment: around 1.700 Euro (approx. 1.200 Euro net) per month
Possibility to obtain a doctoral degree (if faculty’s requirements are met)

Required job seeker documents: resume, cover letter, complete transcripts.
The cover letter should include: A brief description of your career/study goals. A brief description of any prior research assistance experience, or any other experience with legal research (e.g., thesis).

The University is committed to a policy of equal opportunity. Candidates with disabilities will be preferred in cases where they have the same qualifications as others.

If you are interested in this position, please send an application with the reference no. “Reg.-Nr. 3-1107/16-H” by April 15, 2016, preferably, via email to sekretariat.kumpan@jura.uni-halle.de

or to:
Martin-Luther-Universität Halle-Wittenberg, Juristische und Wirtschaftswissenschaftliche Fakultät, Juristischer Bereich, Lehrstuhl für Bürgerliches Recht, Wirtschaftsrecht, Internationales Privatrecht und Rechtsvergleichung, Universitätsplatz 3-5, 06099 Halle (Saale).

For more information (in German) see http://www.verwaltung.uni-halle.de/dezern3/Ausschr/16_310.pdf.
For further enquiries, please contact Professor Dr. Kumpan: sekretariat.kumpan@jura.uni-halle.de

Editors Andrea Bjorklund, John Gaffney, Fabien Gélinas and Herfried Wöss have prepared a new TDM special, which undertakes a broad-ranging study of CETA as an indicator of the evolution of EU trade and investment policy and of the kinds of tensions and innovations that can be expected to arise as a new generation of twenty-first century trade and investment agreements emerges. The special starts off with an introduction by Professor Pieter Jan Kuijper; The Honourable L. Yves Fortier and Judge Stephen Schwebel.

You can view the table of contents of the TDM CETA special here

As many will know, in September 2015 the University of Cambridge hosted the Journal of Private International Law Conference (see here).  Video of the four plenary sessions has now been uploaded to YouTube.  The videos can be accessed through these links: first plenary, second plenary, third plenary, fourth plenary.

RPC and Sarah Shaul it seems, like me, are hoovering up database backlog – once again thank you to their excellent blog for alerting me to Banque Cantonale de Genève v Polevent. Other than the direct impact for the interpretation of Rome II‘s Article 10, and its relation with Article 4’s general rule, an important lesson from the case to me seems to be, yet again, the relevance of the articulation of claims, for the determination of jurisdiction.

Facs are as follows (at 2 ff). Claimant (“BCGE”) is a bank in Geneva. On 24 March 2104 a man calling himself Mr. Dumas telephoned BCGE and asked to speak to Yvan Nicolet of the accounting department. He was not in the office and so the call was taken by Jacqueline Konrad-Bertherin. Mr. Dumas asked her to send a confidential message to what he said was the private mail address of Eric Bourgeaux, the deputy CEO of BCGE. She did so and received a reply from someone claiming to be Mr. Bourgeaux instructing her to pay Euro 6,870,058 from BCGE to the Natwest Bank in London in favour of Polevent Limited. She did so. She believed she had been instructed to do so by Mr. Bourgeaux; but she had not been. The fraud was discovered and repayment was requested later that day.

Shortly before the fraud Natwest had been advised of a freezing order against Polevent in favour of an Italian company Enoi SpA (“Enoi”). The funds were therefore frozen in Polevent’s account with Natwest. BCGE has claimed damages from Polevent for deceit. BCGE accepts that that claim is governed by the law of Geneva. It has also advanced a claim against Polevent in restitution on the basis that the sum was paid by mistake. It claims that since Polevent must have realised that the sum was paid by mistake the conscience of Polevent was affected such that a constructive trust arises thereby providing BCGE with a proprietary claim in respect of the frozen funds. BCGE says that this proprietary claim is governed by English law.

Enoi is another creditor of Polevent. Enoi maintains that BCGE’s claim for restitution, in common with the claim is in deceit, is governed by the law of Geneva which does not recognise a proprietary claim. The resulting dispute is therefore between two creditors of Polevent. That company is in liquidation and has taken no part in this dispute.

The only preliminary issue which the High Court was asked to adjudicate on is worth repeating in full:

“On the basis of the facts as pleaded in the Amended Particulars of Claim and on the basis that the claim set out at paragraph 13 of the Amended particulars of Claim is governed by the law of Geneva, are the claims set out at paragraph 15 of the Amended particulars of Claim governed by English law or by the law of Geneva ? ”

One can appreciate why two different claims were formulated here.

For the claim in damages for deceit, BCGE accept Geneva law applies. The claim for restitution on the basis of unjust enrichment, however, is covered in its view by Article 10(3) Rome II: the law of the place in which the unjust enrichment took place, this being England, hence allowing for the existence of a constructive trust and priority in the pecking order following Polevent’s insolvency.

Enoi argue that the claim in restitution, like the claim in damages, is covered by the law of Geneva: at 9:

The submission of counsel for Enoi is that the law governing the claim in restitution is the law of Geneva by reason of Article 4(1) of Rome II. The claim arises out of the tort/delict of fraud and so the governing law is that of the place in which the damage occurred, namely, Geneva. Alternatively, the governing law is the law of Geneva pursuant to Article 10(1) on the grounds that the unjust enrichment concerns a relationship arising out of a tort/delict such that the governing law is that which governs that relationship, namely, the law of Geneva. In the further alternative the governing law is the law of Geneva pursuant to Article 10(4) on the grounds that the obligation arising out of the unjust enrichment is manifestly more closely connected with Geneva.

Both parties of course reverse engineer their governing law arguments: being aware of the attraction of one State’s laws over the other, counsel brief is to convince the court that the matter is characterised so that it leads to the warranted applicable law.

Enoi suggest that BCGE in reality have one claim only: one in fraud, a tort, it argues, from which the claim in unjust enrichment follows in a dependent fashion. Teare J disagrees (at 13). A claim in restitution need not be fault-based. It is a separate claim, to which Article 10’s regime applies (in the end leading to a finding of English law).

The judgment is in fact quite short. Its crucial implication to me would seem to be that BCGE has won the day by formulating two separate heads of action. Teare J acknowledges that his view may be an ‘unduly English law’ view, in other words, that he read the formulation of two claims at face value, as being two separate claims, because English law recognises non-fault based unjust enrichment. Regardless of the fact that other States, including European States, do so too, the obvious question is whether the EU’s qualification would be the same. The concept of unjust enrichment, like the concept of tort, necessarily needs to be an ‘autonomous’ one. Yet without much guidance in the preparatory works of Rome II on this concept, who can blame national law for filling in the blanks?

Geert.

(Handbook EU Private International Law, 2nd ed 2016, Chapter 4, Heading 4.7).

Thomas Bauermann, Der Anknüpfungsgegenstand im europäischen Internationalen Lauterkeitsrecht, Mohr Siebeck, 2015, ISBN 9783161539084, pp. 332, Euro 69.

[Dal sito dell’editore] – For the first time, Article 6 of the Rome II Regulation contains uniform European provisions on the private international law of unfair competition. This poses particular problems since there are huge differences in EU member states’ understanding of unfair competition law. Against this background, Thomas Bauermann examines the autonomous European concept of unfair competition and its characteristics.

Maggiori informazioni disponibili a questo indirizzo.

Il 14 e il 15 aprile 2016 si terrà il decimo seminario internazionale di diritto internazionale privato della Universidad Complutense di Madrid.

Si parlerà degli sviluppi del diritto internazionale privato spagnolo, delle recenti codificazioni nazionali del diritto internazionale privato e del diritto internazionale privato dell’Unione europea.

Interverranno, fra gli altri, Miguel Virgós Soriano (Univ. Autónoma de Madrid), Bertrand Ancel (Univ. Paris II-Assas), Alegría Borrás (Univ. Barcellona), Jürgen Basedow (Max Planck Institute for Comparative and International Private Law), Christian Heinze (Univ. Leibniz, Hannover), Elena D’Alessandro (Univ. Torino), Roberto Baratta (Univ. Macerata) e Thalia Kruger (Univ. Antwerpen).

Il programma completo ed ulteriori informazioni sono reperibili a questo indirizzo.

Steadman Jean, Sprague Steven, Common Law Contract Law. A Practical Guide for the Civil Law Lawyer, Wolters Kluwer, 2015, pp. 896, ISBN 9788821751547, Euro 81.

[Dal sito dell’editore] – Il testo costituisce una guida pratica alla disciplina dei contratti nell’ambito del sistema common law e si rivolge a tutti gli operatori del settore legale che, per loro origine e formazione, fanno riferimento al sistema del diritto civile e si occupano di operazioni, transazioni e contratti regolati dal diritto inglese o americano qualunque sia l’oggetto del contratto o la nazionalità delle parti. Vengono analizzati gli istituti fondamentali del sistema common law in Inghilterra, Galles e Stati Uniti d’America, evidenziandone i tratti comuni e fornendo una dettagliata spiegazione delle principali differenze esistenti tra i due sistemi giuridici. Numerosi esempi consentono al lettore di meglio comprendere come la prassi contrattualistica trovi reale applicazione nella quotidiana pratica legale. Ogni capitolo è corredato da specifiche note esplicative. Sono presenti un dettagliato glossario e una checklist delle principali tipologie contrattuali.

Ulteriori informazioni sono disponibili a questo indirizzo.

The Max Planck Institute Luxembourg, heading an international consortium, is undertaking a European Commission-funded Study (JUST/2014/RCON/PR/CIVI/0082) on the laws of national civil procedure of the 28 Member States and the enforcement of European Union law.

The Study has two strands: the first deals with the impact of national civil procedure on mutual trust and the free circulation of judgments within the 28 Member States of the EU and the second deals with the impact of national civil procedure on the enforcement of consumer rights derived from EU law. Accordingly, the Consortium has prepared two online tools, aimed at gathering information, opinions and experiences (both available in six language versions):

• Questionnaire focusing on the impact of national procedures on mutual trust and the free circulation of judgments:
  English
  French
  German
  Italian
  Polish
  Spanish

• Questionnaire focusing on the impact of national procedures on the enforcement of EU consumer rights:
  English
  French
  German
  Italian
  Polish
  Spanish

We would encourage consumers, lawyers, judges, academics, consumer protection associations, businesses, business/trade associations, dispute resolution facilitators, and those working in other legal professions (including bailiffs, court clerks, registrars, notaries and so on) to respond to the questionnaire for one or both strands of the study.

If you agree, and wish to share more information with us on any of the topics covered by the Study, it will be possible to provide us with your contact details at the end of the survey.

Please feel free to share widely the links to this webpage and to the questionnaires within your own networks.