Flux européens

Royal Football Club Seraing
Arbitrage sportif : selon l’avocate générale Ćapeta, les sentences du Tribunal arbitral du sport doivent pouvoir faire l’objet d’un contrôle complet par les juridictions nationales afin de vérifier la compatibilité des règles de la FIFA avec le droit de l’Union

Ministarstvo financija (Bourse Erasmus+)
Citoyenneté européenne
Bourse Erasmus + : le montant versé à un étudiant ne doit pas être pris en compte pour le calcul de l’impôt sur le revenu du parent l’ayant à sa charge

MegaFon / Conseil
Relations extérieures
Guerre en Ukraine : le Tribunal confirme les mesures restrictives adoptées contre l’opérateur de téléphonie mobile russe MegaFon

Beevers Kaas
Concurrence
Droit de la concurrence et accords de distribution : le distributeur exclusif doit être protégé des ventes actives effectuées sur son territoire par tous les autres acheteurs du fournisseur

Mousse
Principes du droit communautaire
RGPD et transport ferroviaire : l’identité de genre du client n’est pas une donnée nécessaire pour l’achat d’un titre de transport

A quick note on Playtech Software ea v Games Global Ltd ea [2024] EWHC 3264 (Ch) in which Thompsell J discussed ia Rome II in an application for service out (of the jurisdiction). 

As confirmed by Arnold LJ in Shenzhen Senior Technology Material Co Ltd v Celgard, LLC [2020] EWCA Civ 1293 [51]  as a matter of English law, claims for breach of equitable obligations of confidence are not claims in tort: yet that does not rule out that under Rome II, they are non-contractual obligations whose lex causae is determined under that Regulation (see also Autostore).

Thompsell J in casu [100]:

Breach of confidence is a species of unfair competition within Article 6 of the Rome II Regulation and Article 6(2) applies because Playtech’s claims are concerned with alleged acts of unfair competition affecting exclusively the interests of a specific competitor. In these circumstances, Article 6(2) provides that “Article 4 shall apply“. The consequence is that Article 4, which is concerned with the law applicable to a non-contractual obligation arising out of a tort, applies to determine the applicable law. This is despite breach of confidence not being a claim in tort for the purposes of English law.

Note that Article 4 Rome II unlike Article 6, contains an overall escape clause. [103] with reference to Celgard, the judge confirms that under Article 4(1) the connecting factor is the direct damage caused by the wrongdoing. Whether the relevant acts also had an effect, and may be regarded as having been carried out, in the United Kingdom, is not the relevant factor.

The judge [106] upholds claimant’s argument that it is facing competition to its business, which it conducts in the UK, in relation to its sales from at least one game developed by defendant, that has a feature that has relied on its confidential information, allegedly spirited away by a former employee of one of Playtech’s sister companies. The direct damage therefore is held to have been suffered in the jurisdiction and the tort gateway (see also UKSC Brownlie) for jurisdiction satisfied.

Geert.

EU private international law, 4th ed 2024, Heading 4.6.2.

https://x.com/GAVClaw/status/1869462089934450944

Bindl / Commission
Droit institutionnel
Le Tribunal condamne la Commission à payer des dommages et intérêts à un visiteur de son site Internet de la Conférence sur l’avenir de l’Europe en raison du transfert de données à caractère personnel aux États-Unis

Loredas
Libre circulation des personnes
Aménagement du temps de travail : les employeurs domestiques doivent mettre en place un système permettant de mesurer la durée du temps de travail journalier de chaque employé de maison

Caisse d’allocations familiales des Hauts-de-Seine
Espace de liberté, sécurité et justice
Un État membre ne peut exclure du bénéfice d’allocations familiales le travailleur étranger dont les enfants, nés dans un pays tiers, ne justifient pas être entrés régulièrement sur son territoire

Ford Italia
Environnement et consommateurs
Responsabilité du fait des produits défectueux : un fournisseur peut être considéré comme producteur si son nom coïncide avec la marque apposée sur le produit par le fabricant

Kaduna
Espace de liberté, sécurité et justice
Protection temporaire pour les personnes déplacées en provenance d’Ukraine : un État membre qui a étendu cette protection à certaines catégories de personnes, au-delà de ce que requiert le droit de l’Union, peut leur retirer ladite protection sans attendre la fin de la protection temporaire accordée en vertu du droit de l’Union

Halmer Rechtsanwaltsgesellschaft
Libre circulation des capitaux
La participation d’investisseurs purement financiers dans une société d’avocats peut être interdite

Tudmur
Espace de liberté, sécurité et justice
Politique d’asile : la suspension unilatérale des mesures de transferts de demandeurs d’asile par un État membre responsable ne justifie pas à elle seule le constat de défaillances systémiques

Mironovich Shor / Conseil
Relations extérieures
Déstabilisation de la Moldavie : le Tribunal confirme les mesures restrictives adoptées contre M. Shor et Mme Tauber pour l'organisation de manifestations violentes

TP / Commission
Marché publics
Pour exclure une société des procédures de passation de marchés publics et d’octroi de subventions de l’Union, l’ordonnateur doit évaluer le comportement de l’opérateur mis en cause de manière concrète et individualisée

I reviewed and criticised the successful first instance forum non conveniens challenge by Dyson viz a claim allegations of forced labour at Dyson’s Malaysian Supplier, here.

That finding was today resoundly overturned by the Court of Appeal in Dhan Kumar Limbu & others v Dyson Technology Limited and others [2024] EWCA Civ 1564.

The issues at stake were expertly discussed this week in an online EAPIL seminar called by prof Ugljesa Grusic at the occasion of Dr Ekaterina Aristova’s excellent OUP volume Tort Litigation Against Transnational Corporations.

The first instance judge concluded that Malaysia was the more appropriate forum for the claims to be heard and that there was no real risk of the claimants being unable to access justice there.

[4] Popplewell LJ confirms standing authority that the Court of Appeal only interferes in such exercise, necessarily fact and view driven as it is, and absent some procedural unfairness or irregularity, where the lower court has made an error of principle, such as taking into account irrelevant matters or failing to take into account relevant matters, or has reached a conclusion which exceeds the generous ambit within which reasonable disagreement is possible and so is plainly wrong.

[22] Summarises what is needed: for a ‘service in’ case (here: against those defendants with domicile in the jurisdiction), the burden is on the defendant to show that there is another available forum which is clearly and distinctly more appropriate. The burden reflects the fact that in such a case the claimant has served the defendant as of right which is an advantage which will not lightly be disturbed (reference to Spiliada). In a service out case (here against the non-E&W domiciled defendants), the burden is on the claimant to show that England is clearly the appropriate forum. In both cases appropriate forum means that in which the case may be tried more suitably for the interests of all the parties and the ends of justice (reference ia to Lungowe v Vedanta [66]).

The various factors going into this exercise are listed [22-23]

In determining the appropriateness of the forum, the court looks at connecting factors to determine with which forum the action has the most real and substantial connection (Spiliada at p. 478A). These include not only factors affecting convenience or expense, but also other factors such as governing law, the place where the parties reside or carry on business, and where the wrongful acts and harm occurred (Spiliada p. 478A-B, Vedanta at [66]). The risk of multiplicity of proceedings giving rise to a risk of inconsistent judgments is only one factor, although a very important one (Vedanta at [69]). In applying these connecting factors to cases involving multiple defendants, their relative status and importance in the case should be taken into account, such that greater weight is given to the claims against those who may be described as a principal or major party or chief protagonist: JSC BTA Bank v Granton Trade Limited [2010] EWHC 2577 (Comm) per Christopher Clarke J at [28].

23. For both service in and service out cases, if the court concludes that the foreign court is more appropriate by reference to connecting factors, applying the relevant burden of proof, the court will nevertheless retain jurisdiction if the claimant can show by cogent evidence that there is a real risk that it will not be able to obtain substantial justice in the appropriate foreign jurisdiction (Vedanta at [88]). Cogent evidence does not mean unchallenged evidence (Vedanta at [96]). This is often conveniently treated as a second stage in the analysis because it usually calls for an assessment of different evidence, but it does not involve a different question: if there is a real risk of denial of justice in a particular forum it is unlikely to be an appropriate one in which the case can most suitably be tried in the interests of the parties and for the ends of justice: Vedanta at [88]. In this case the parties and the Judge adopted that two-stage approach, labelling the first stage as “appropriate forum” and the second stage as “access to justice”. I will adopt the same structure, whilst keeping in mind that second stage factors may also be relevant to the first stage in what is juridically a single holistic exercise in seeking to identify where the case can most suitably be tried in the interests of the parties and for the ends of justice.

Grounds of appeal are listed [30]. I will not rehash all of the grounds or their discussion (the judgment is succinct yet all of the paras count really), rather highlight the IMO most relevant ones:

[34]: the Judge failed to take any account of the important connecting feature that D1 and D2 are domiciled in England and have been served here as of right. The domicile of the parties was not one of the Judge’s headings and did not feature in his conclusory paragraphs.

This is an important confirmation of the principle as it also exists in EU law: suing a defendant in their domicile as of right, must be given its proper weight in a forum non balancing exercise, and note Popplewell LJ’s reference to EU law:

[34] The reason it is an important connecting factor in relation to jurisdiction is because presence here is the basis for establishing the court’s jurisdiction, and domicile here connotes a degree of permanence and allegiance to the country’s institutions, including its courts, which means that the party can reasonably expect, and be expected, to meet claims against it in such courts in the absence of sufficient countervailing factors. That is why within the EU domicile remains the foundational factor for allocating jurisdiction in civil and commercial matters, subject to derogations.

[36] the argument that the weight placed on the UK domiciled defendants, be neutralised by the non-UK domicile of the other defendants, fails, ! however with in my view important instruction for future challenges: Lord Justice Popplewell holds that “the reality is that Dyson UK is the principal protagonist and Dyson Malaysia a more minor and ancillary defendant to the claim against D1 and D2.”

That evidently may be a factor to take into account where the UK anchor defendant is not the main protagonist.

[38] Viz the ‘centre of gravity’ of the claim (not a separate part of the test, rather a clerical trick as it were to rank arguments), this is held to be

an allegation of a failure occurring amongst the management in England and is alleged primarily to have occurred in England, although it will also focus to some extent on conduct in Malaysia. The complaints made by Mr Hall were made to Dyson UK and the alleged failure to take steps to act on them is primarily a failure of English personnel in England. The unjust enrichment of D1 and D2 ultimately took effect in England at their centre of trading, and the proprietary remedies claimed are of property rights over profits and products located in this country.

This latter element is also a response to TWAIL arguments which I flag here in my review of Dr Aristova’s jurisdictional analysis (she discusses them extensively in her volume).

[42] ff an error of principle was also found in the judge’s finding that there was a real risk of irreconcilable findings in relation to pending [GAVC now discontinued; note [43] the flag that discontinuation may have been motivated by strategic considerations in current appeal] defamation proceedings even if the current proceedings proceed in England on the basis that it was most unlikely that the High Court would case manage the proceedings to avoid or reduce the risk of such a possibility. Plainly, there would have been a plain likelihood of the English courts so coordinating.

[47] The fact that litigation will be coordinated and conducted from one of the two rival fora, irrespective of the forum in which the litigation takes place, is held to be a significant connecting factor with that forum. Note of course that this may give unscrupulous defendants forum management possibilities.

[49] ff the judge’s acceptance of and reliance on material support offered by defendants for the trial in the alternative forum, is frankly demolished, starting with the observation

I start with the Undertakings. In the experience of the court they are unprecedented, and the researches of counsel have not identified anything similar (we were referred to Société Nationale Industrielle Aerospatiale v Lee Kui JAK [1987] AC 871, an anti-suit injunction case, in which the undertakings were not remotely comparable). As a mechanism for ensuring that the impoverished claimants are thereby enabled to meet disbursements necessary to conduct the claims in Malaysia, they seem to me to suffer from six serious flaws….

for these six flaws the reader of this post best read the judgment, starting with the observation of an obvious conflict of interest.

[59-60] considerable emphasis on equality of arms both in legal representation (note the reference to Tesla rather than the ordinarily intuitive ‘Rolls Royce’ comparison) and in terms of witnesses’ online translation needs.

Having found the judge’s approach suffering from serious issues of principle, the Court of Appeal then makes it own brief assessment [63] ff. Funding, domicile of the parties, practical convenience are all found to be in favour of E&W. Applicable law leads to Malaysian law (presumably because parties agree), with the Court holding that is nevertheless not particularly onerous for the English courts to apply.

Overall, a resounding victory for claimants with however as I point out above, one or two risk factors carefully to manage for future reference: if arguably not of such nature as to displace the reconfirmed solid right to claim in the defendant’s place of domicile.

Geert.

EU private international law, 4th ed. 2024, Chapter 7.

https://x.com/GAVClaw/status/1867545272261521803

Nemzeti Földügyi Központ
Libre circulation des capitaux
Droits d’usufruit sur des terres agricoles en Hongrie : le droit de l’Union ne s’oppose pas à la réinscription de tels droits conformément à un arrêt de la Cour de justice, même si leur inscription initiale était illégale

Getin Holding
Liberté d'établissement
La Cour de justice précise les règles concernant l’indépendance d’une autorité de résolution nationale et les recours contre ses décisions à l’égard d’établissements financiers défaillants

In Nanox Imaging PLC v David Schick 2024/GSC/043, Happold J at the Gibraltar Supreme Court dealt with applications for anti-suit, forum non conveniens and case management stays.

Claimant ‘Nanox Gibraltar’ is a Gibraltar registered company which until September 2019 carried on business in the field of medical imaging technology. Defendant is an electrical engineer and a US national resident in California. A Consultancy Agreement between them contains two jurisdiction clauses. The first, Clause 6.5 provides that:

“Both parties agree that any action, demand, claim or counterclaim  relating to this Agreement, or to its breach, shall be commenced in the state of Gibraltar in a court of competent jurisdiction. This Agreement and the validity, interpretation and performance of this Agreement shall be governed by, and construed in accordance with, the laws of Gibraltar without giving effect to conflict of law principles” The second, in Clause 8 of Appendix B, is in different terms. It provides that: “This Agreement shall be governed by and interpreted in accordance with the laws of Gibraltar without giving effect to the rules respecting conflict of law, and the competent courts of Gibraltar shall have sole and exclusive jurisdiction over any dispute between the parties.” Parties disagree as to the relevance of Clause 8 for the interpretation of Clause 6.  On 28 October 2021, Mr Schick brought proceedings before the US District Court for the Central District of California against current claimant, and Nano XImaging Inc. (‘Nanox Israel’), as well as Mr Ran Poliakine (the main beneficiary of the Nano Imaging vehicles) and eleven other defendants. Nanox Israel is a company registered in Israel to whom Nanox Gibraltar sold its assets in 2019, including its intellectual property rights. In July 2020, Nanox Israel IPOed on Nasdaq. Mr Shick argues he is entitled to outstanding fees for consultancy

services under the Consultancy Agreement as well as to a One Time Bonus. The Californian proceedings were dismissed due to lack of jurisdiction. Israeli proceedings are still ongoing with there, too, contestation of jurisdiction. In order to hold in the fate of the Gibraltar proceedings, the first question is whether Clause 6.5 is an exclusive jurisdiction clause. Defendant argues Clause 6.5 is permissive, not mandatory, because it does not expressly refer to “irrevocable” submission to the Gibraltar courts, to those courts having “sole” or “exclusive” jurisdiction, or expressly prohibits proceedings being brought elsewhere; and because the term “shall” is not the language of obligation (that argument summarily dismissed if only on its ordinary meaning; as it should). In addition, Defendant says that Clause 8 of Appendix B is irrelevant to the interpretation of Clause 6. Happold J [15] disagrees and in my opinion he is right. I do think his succinct discussion [17] of Brussels Ia (! which continues to apply by virtue of the European Union Gibraltar Act 2019) could have come before his discussion of the language of the choice of court clause outside the Brussels Ia context. Per A25 BIa, all choice of court clauses are exclusive lest agreed otherwise. Therefore the engagement with the wording of the clause should not focus on whether there is language that indicates its exclusivity; rather, whether there is clear language that suggests it is not exclusive. A further most relevant point of discussion [19] ff is then whether despite Brussels Ia, a forum non conveniens stay might be possible in Gibraltar, despite s33 of the Civil Jurisdiction and Judgments Act 1993. s33. This reads in relevant part Nothing in this Act shall prevent any court in Gibraltar from staying, striking out or dismissing any proceedings before it on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the 1968 Convention or, as the case may be, the Lugano Convention or the 2005 Hague Convention. The suggestion is that with Brussels Ia not mentioned in that list, it does not stand in the way of a forum non stay. Happold J justifiably as a matter of both statutory construction and the nature of BI and BIa as a directly applicable Regulation, holds [22] that a forum non stay is not possible, neither [23] is a case management stay see ‘otherwise’ in s33, above. In the discussion of anti-suit one would have expected discussion of CJEU Turner (less so: Starlight Shipping (The Alexandros T for that judgment was issued post Brexit). Instead, anti-suit is granted on common law principles despite Brussels Ia still applying. Am I missing something here?: does Gibraltar’s continued use of Brussels Ia exclude any and all CJEU case-law? An interesting case! Geert.

Dexia v Patrimonio del Trentino [2024] EWHC 2717 (KB) echoes Banca Intesa v Venezia  in some of its main issues. It features capacity of foreign corporations to enter into legal transaction, relevance of lex incorporationis, validity of choice of court clause, and the impact of Brexit, with the judge prima facie accepting resurrection of the 1964 bilateral UK-Italy convention. 

Dexia submits that ongoing Italian Proceedings were brought in breach of the English jurisdiction clause in the ISDA Master Agreement between Dexia and Trentino (itself governed by English law), and which Dexia also submits is, on its true construction, an exclusive English jurisdiction clause. There is an extant challenge by Dexia to the jurisdiction of the Italian court in the Italian Proceedings which is due to be heard in January 2025.

By its claim in the English Proceedings, Dexia is seeking declaratory relief in respect of an interest rate swap transaction (the “Transaction”) pursuant to an ISDA Master Agreement dated 7 October 2010 between Dexia and Trentino.

Trentino argue the jurisdiction clause is not valid. It originally sought to do so on two grounds (each relying on Italian law arguments): (1) It argued that the Jurisdiction Clause is void due to an alleged lack of capacity on the part of Trentino to enter into speculative derivatives (the “Speculation Ground”); and 2) It argued that Article 4 of Law No. 218/1995 (Law 218), which applies following the Brexit transition period, prohibits agreements involving so-called “non-disposable rights” from ousting the jurisdiction of the Italian courts (the “Non-Disposable Rights Ground”).

The second ground was abandoned. That leaves the Speculation Ground. As a matter of English (and indeed many a) law, the capacity of a foreign corporation to enter into any legal transaction is governed by the law of the country of incorporation of the entity in question (in this case, Italian law).

[61] The judge holds Any lack of capacity to enter into a particular derivative transaction cannot, and does not, equate to a lack of capacity to enter into an ISDA Master Agreement (see also Vestia). The Master Agreement is not itself a derivative contract and any alleged prohibition in relation to derivatives would not apply to the Master Agreement.

[64] In an attempt to circumvent the difficulty that Trentino did have capacity to enter into the Master Agreement and that the Master Agreement (containing the Jurisdiction Clause) is valid, Trentino then submits that the “single agreement” provision in Clause 1(c) of the Master Agreement means the Master Agreement is not a separate and distinct agreement. [65] This is held clearly to be a bad point, not least in circumstances where the Master Agreement came into place separate from, and long before, any particular transactions. Bryan J agrees on this point with the sentiments expressed by Foxton J in Banca Intesa.

[72] ff the judge obiter discusses the speculation argument. [74] ff he holds the Italian rules on speculative derivatives do not apply to Trentino, both because it is a joint-stock company and because the Province is a Region, which has a greater level of autonomy in such matters than local authorities.

[87] ff it remains open to Trentino to make its Stay Application and submit that the English Proceedings should be stayed on the basis that Italy is the appropriate forum and/or that the Italian proceedings constitute a lis alibi pendens if, but only if, Trentino is right that the Jurisdiction Clause is not an exclusive English jurisdiction clause. Then follows a very lengthy discussion on the meaning of the clause in light of the Brussels (and Lugano) regime ([124] seeing as the clause dates from before Brexit) with the judge concluding the clause is exclusive.

They stay application is discussed obiter [135] ff. [152] Trentino submits that there are two factors which were unforeseeable at the time of concluding the Transaction, firstly the likelihood of parallel proceedings (given that that was impossible under the Brussels I Regulation save in respect of Article 31 protective proceedings), and secondly the risk that an English judgment that would be readily enforceable under the Brussels I Regulation might now be unenforceable in Italy.

Re the first argument, [153] the fact that the Brussels I Regulation lis pendens rules no longer apply to prevent the possibility of parallel proceedings does not make Italy a more appropriate forum than England or vice-versa. Re the second argument, [161] the judge follows Dexia’s expert’s view that Law no. 280/1973 applies following Brexit, which permits reciprocal enforcement of English judgments in Italy pursuant to the 1964 Bilateral Convention between Italy and the UK. The Bilateral Convention was given effect in English law as the Reciprocal Enforcement of Foreign Judgments (Italy) Order 1973, extending the Foreign Judgments (Reciprocal Enforcement) Act 1933 to Italy.

On any view there is a good arguable case that Law no. 280/1973 applies given the views expressed by Professor Rimini and the matters he relies upon in that regard.

I am not so sure there is such a good arguable case, see eg X v Juno Holdings in The Netherlands.

A 168 para judgment on a jurisdiction challenge- yet again a lot of energy, time and money invested.

Geert.

https://x.com/GAVClaw/status/1852327803825373543