In Poland v LC Corp BV, the Amsterdam first instance court mid-March refused Poland’s application for an anti-suit injunction, which would have prohibited LC Corp from seeking UNCITRAL arbitration under the now defunct Poland-Netherlands BIT, with London as curial seat.
The case echoes that of Kingdom of Spain v Blasket Renewable Investments LLC, in which the Amsterdam Court had earlier declined to hear an anti-suit injunction petition by Spain to prevent renewable investors from enforcing arbitral awards in the US: see Josep Galvez’s summary here. That case however in the meantime has encountered quite the opposite reaction from a US judge, who held end of March that Spain enjoys sovereign immunity in the case and that as a result of the CJEU’s Komstroy’s authority, neither Spain nor the defendant had power to sign up to arbitration, hence dismissing the petition to confirm an arbitral award rendered pursuant to the Energy Charter Treaty. In turn, that decision is in contrast with earlier orders in 9REN v the Kingdom of Spain and NextEra v the Kingdom of Spain as Curtis summarise here. The Court of Appeal will now hear those issues.
The case, as Geraldo Vidigal reminded me, is also reminiscent of the interlocutory decision in ECLI:NL:RBAMS:2022:5772, also involving Poland yet in that case with an anonymised Dutch corporate defendant. In that judgment the arbitration procedure was suggested as the currently only available way for the corporation to have its day in ‘court’, seeing as in the view of the judge, the Polish rule of law crisis questions the impartiality of the Polish courts, and the EU’s alternative Investment Court is not yet operational. Johannes Hendrik Fahner discusses that case here.
In current case, the court first of all holds that Brussels Ia’s arbitration exception is not engaged, for the case’s core, it suggests, is whether the pursuit of an arbitration proceeding despite CJEU Achmea, constitutes abuse of process. The case, it holds (4.3) does not have the questions put to the arbitral tribunal as its object, hence the arbitration exception is not in play. 4.5 the Court re applicable law holds parties have made choice of law for Dutch law under Article 14 Rome II, obiter suggesting that finding locus damni under Rome II Article 4(1)’s general rule is not self-evident: would the damage of an abusive pursuit of arbitration proceedings, be located in The Netherlands? It is not entirely clear to me why the Court discusses applicable law (other than Dutch courts having to do so proprio motu. 4.12 the court refers to the tribunal’s Kompetenz Kompetenz. The curial seat being located outside the EU, in London, is a crucial element in the court’s reasoning, despite CJEU Achmea: it is not prima facie clear that the tribunal will refuse to hear the case. Given the overall fog re the consequences of the CJEU case-law on extra-EU arbitration, the issues are not clearly without foundation hence cannot constitute abuse.
With recent Australian developments (blogpost imminent), even more proverbial ECT s**** is hitting the fan. IMHO this conundrum is not going to be solved by ever more procedural forum shopping with conflicting outcomes.
Geert.
CJEU #Komstory, #ISDS claxon
First instance Amsterdam refuses anti-suit against Dutch corporation in Poland-NL based UNCITRAL #arbitration with London as curial seat
Holds BIA arbitration exception is not engaged
More on the blog soon
Poland v LC CORP BV https://t.co/WOshDCgy15
— Geert Van Calster (@GAVClaw) March 14, 2023
I am on a break with the family until after Easter, hence only slowly treating myself to writing up blog posts. There are one or two in the queue, and I hope to be clearing them before long. ]
In C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc. Richard de la Tour AG Opined a few weeks back. The claim is for trademark infringement between a US domiciled holder of an EU Trademark, and its EU suppliers in Poland and Germany. The AG suggest Article 8(1)’s joinder mechanism may apply in the case, provided the claimant in limine litis (at the start of proceedings) prove the anchor defendant’s role in the chain of infringements.
Background is the Union Trademark Regulation 2017/1001, which has separate rules on jurisdiction discussed in ia AMS Neve, however it leaves A8(1) Brussels Ia’s anchor defendant mechanism untouched.
(34) ff the AG uses the opportunity to clarify CJEU Nintendo, with respect to Article 8)1)’s condition of ‘same situation in law’: the AG suggests the Court clarify that the application of different national laws as a result of intellectual property rights’ territorial scope, does not stand in the way of the situation being the same in law in the case of a Union trademark.
Next the AG discusses the issues also of relevance in ia CJEU C‑145/10 Painer, namely the question of sameness in fact, and argues for a flexible interpretation despite the defendants at issue not being contractually linked. He suggests inter alia that it would run against the intention of the Regulation to force the claimant into proving the anchor defendant be the main instigator of the infringement. Along similar lines, that the anchor defendant is not a corporation itself but rather one of its directors, with domicile in a different Member State, does not in the view of the AG prevent him being used as anchor defendant, provided (77) claimant prove at the start of proceedings that the director actively engaged in the infringement or should have known about it but did not stop it.
One can see merit in the AG’s approach in that it, as he also suggests, addresses the issue of abuse of the anchor defendant mechanism. On the other hand, this engagement with some of the merits of the case always raises the issue of how intensive that can /ought to be at the jurisdictional stage without leading to a ‘mini’ trial’. It may be preferable simply to hold that as a director of a corporation, one should not be surprised to be used as jurisdictional anchor for that corporation’s infringements, in one’s place of domicile.
Geert.
EU Private international law, 3rd ed. 2021, 2.482 ff.
Opinion Richard de la Tour this AM re anchor defendants, Article 8(1) Brussel Ia, infringement of Community Trademark
C‑832/21 Beverage City & Lifestyle GmbH v Advance Magazine Publishers Inc.https://t.co/yjOXA6OrbR
— Geert Van Calster (@GAVClaw) March 23, 2023
UBS’ bailout of Credit Suisse, arguably strong-armed by the Swiss State, will have had countless lawyers phoning investors, and countless investors lawyering up. I am no expert in banking and finance law, I am of course like everyone else aware that the anger is most visible in so-called AT1 bondholders. This blog is interested in the dispute resolution fall-out likely to rain down on various dispute resolution avenues for some time to come.
A quick flag that those considering litigation, will have a range of issues to ponder. Who to sue, for starters. The Swiss authorities might be a target, leading of course to considerations of immunity and, give the close involvement of the Swiss authorities in the rescue, of the qualification of the claims as ‘civil and commercial’ (echoes here of CJEU Kuhn etc, now under the Lugano Convention).
What litigation avenue to pursue, next: the bond holders will be subject to dispute resolution clauses, one imagines either with choice of court for Switzerland or providing for commercial arbitration. Depending on time and avenue of acquisition of the bonds, the holders may well argue they are not bound by such clauses, Further, a potential to use the route typically favoured by Swiss-headquartered multinationals, against other States: ISDS. Investor-State Dispute Settlement (with their ‘fork in the road’ provisions).
(Digital) Rolodexes the world over will be spinning by now. As and when this leads to litigation as suggested above, the blog will be reporting.
Geert.
On 21 April, Louvain-La-Neuve will be hosting a conference in honour of prof emeritus Marc Fallon. The general concept of the conference is included below (summary provided by prof Stéphanie Francq, one of the main organisers of the event). More info with full program and link for registration is here. This will be a thoughtFest for all interested in EU private international law and with working languages both English and French, it speaks to a broad audience.
Get thee to Louvain. Geert.
Why and for what purpose should European private international law be codified? This twofold question will be at the heart of the discussions on April 21, 2023, during a colloquium paying tribute to the remarkable work of Professor Marc Fallon in the fields of private international law and European law, and in particular to his involvement in the Belgian and European codification of private international law. How did we come to envisage a European codification of private international law? What do we expect from it? Does an EU codification have the same ambitions as national codifications? Do these ambitions not vary according to the place, the time and the context of international constraints imposed on the legislator? Does a codification at the European level, and at the present time, imply specific needs, challenges and consequences, even dangers, for both the national and the European legal orders? And above all, does it offer new prospects or hopes for the European project and for the discipline of private international law?
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