Flux européens

Jalla & Anor v Shell International Trading and Shipping Company Ltd & Anor [2023] EWHC 424 (TCC) is a follow-up of earlier, procedural (including jurisdictional) issues which I discuss here.

[1]-[2] The 2011 Bonga Spill emanated from an offshore floating production, storage and off-loading facility (“the Bonga FPSO”), located approximately 120 kilometres off the Nigerian coastline of Bayelsa State and Delta State within the Nigerian Exclusive Economic Zone. The Spill was caused by a rupture of one of the pipelines connecting the Bonga FPSO to a single point mooring system (“SPM”), both of which were operated and controlled by one of the defendants, Shell Nigeria Exploration and Production Company Ltd (“SNEPCo”), a Nigerian company regulated by the Nigerian governmental authorities. The technical manager of the vessel, the MV Northia, that was loading from the Bonga FPSO at the time of the spill was another defendant, Shell International Trading and Shipping Company Ltd, (“STASCO”), a company domiciled and registered in the UK.

Anchor defendant is STASCO. SNEPCo is co-defendant.

The High Court had determined that the claims for damage caused by the Spill  could not constitute a continuing nuisance until any pollution was remedied, so as to extend the limitation period and defeat the defendants’ limitation defence; it held claimants each had a single claim in nuisance in respect of any damage caused by the Bonga Spill, such cause of action accruing when their land and/or water supplies were first impacted by the oil. Claimants’ appeal against that part of the judgment as I reported earlier was dismissed by the Court of Appeal [2021] EWCA Civ 63  and this “Continuing Nuisance Appeal” is now being appealed to the Supreme Court.

[4] Current case is to determine the date on which actionable damage, if any, was suffered by the claimants as a result of the Bonga Spill, for the purpose of deciding whether any of the claims against the anchor defendant, STASCO, are statute-barred for limitation and, therefore, whether E&W courts have jurisdiction to determine the substantive claims. 

[39] Stuart-Smith J (as the then was), alongside the jurisdictional challenges, had further held that the High Court had no discretion to allow, or would refuse, amendment of the claim form to join STASCO and the amendment to add allegations against STASCO, if and to the extent that the applications were made after the expiry of the relevant limitation period. The allegations against STASCO in respect of its responsibility for the  were deemed by the court not to have been made until 2 March 2020.

[40] ff

The issue of jurisdiction as against SNEPCo, a Nigerian corporation, is dependent on there being a valid claim against STASCO, a UK corporation. The court rejected other jurisdictional challenges made by the defendants but was unable to finally dispose of the challenge to jurisdiction because it was subject to the outstanding issue as to whether the claims against STASCO were statute-barred. If the claims against STASCO, the anchor defendant, were statute-barred, there would be no basis on which service out of the jurisdiction against SNEPCo could be permitted and the court would have no jurisdiction to determine any of the claims.

Given the significance of the limitation issue, the court ordered that there should be a trial of preliminary issues to determine in respect of all claimants the date on which they suffered damage, the appropriate limitation period and limitation as a defence to the claims.

Parties agree that Nigerian Law applies to the claims relating to the spill, including the limitation period applicable to the claims (the case therefore does not engage with the outstanding issue of the treatment of limitation under Rome II, discussed most recently in Bravo v Amerisur Resources (Putumayo Group Litigation). The issue between the parties is whether the applicable limitation period is six years, as submitted by the claimants, or five years, as submitted by the defendants.

O’Farrell J holds that given the date of damage, none of the claims in these proceedings was made against STASCO within any applicable limitation period. Obiter, she holds on the limitation issue anyway.

The relevant law that applies in Nigeria is the (English) Limitation of Actions Act 1623 which provides for a limitation period of six years for claims that would amount to tortious claims. The National Assembly for the Nigerian Federation has not enacted any general limitation statute and no such provision is made in the Constitution. The State legislature for Delta State however has enacted a general limitation statute. Section 18 of the Limitation Law of Delta State 2006 (“the Delta State Limitation Law”) provides for a limitation period of five years for claims in tort. 

[306] Claimants’ position is that the limitation period applicable to their claims is the six-year period provided for by the 1623 Act. In the absence of specific federal legislation on this issue, they argue this residual provision is the limitation law generally applicable in Nigeria, including at a federal level, by virtue of section 32(1) of the Interpretation Act 1964; further, that the Delta State Limitation Law is inapplicable in the Federal High Court; only federal legislation can apply, irrespective of where the Federal High Court sits.

Further, [307], claimants argue they are entitled by Article 7 Rome II  to choose the law applicable in the Nigerian Exclusive Economic Zone (“EEZ”) as the lex causae governing their claims for environmental damage, as the country where the event giving rise to the damage occurred, the locus delicti commissi, Handlungsort. The EEZ falls within the control of the Federal Government of Nigeria; as such, it would be subject to the Nigerian Federal law of torts and the residual 1623 Act limitation period.

[308] Defendants’ position is that the limitation period applicable to the claims is the five-year period provided for by the Delta State Limitation Law. The relevant Federal High Court for the claims would be the Federal High Court in Delta State, as the place where the alleged damage occurred. They suggest Nigerian authorities on limitation confirm that if a local limitation law exists in the relevant state, that law applies to the claim; and the limitation statute of each state is territorial in scope. On that basis, the Delta State Limitation Law applies to any action brought in the territorial area of Delta State, including the Federal High Court in Delta State.

[309] viz A7 Rome II they argue the Nigerian EEZ is not a “country” for the purpose of Article 25(1) Rome II [‘“Where a State comprises several territorial units, each of which has its own rules of law in respect of non-contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation”], that it has no applicable limitation law and that it would not override the jurisdiction of the Federal High Court to determine the claims in these proceedings.

The judge [336] ff holds the country in which the alleged damage occurred is Delta State, making the law of Delta State the default choice of law under Article 4(1) Rome II; that although the claims are for environmental damage, and the event giving rise to the alleged damage occurred at the FPSO within the Nigerian EEZ, the EEZ is not a country within the meaning or A25(1): Nigeria is a Federation with 36 states plus the FCT of Abuja. The EEZ is not a territorial unit and does not comprise one of those states; and the EEZ does not have its own rules of law in respect of non-contractual obligations.

The remainder of the judgment deals with issues of proof of foreign customary law.

Interesting!

Geert.

 

Follow-up to https://t.co/XHZRWI7jOt
Considers limitation periods in Rome II (and impact on E&W jurisdiction), choice of lex causae in A7 Rome II (environmental damage), Nigerian regions as 'countries' under A25 Rome II

Jalla v Shell [2023] EWHC 424 (TCC)https://t.co/T8z2ERNUjd

— Geert Van Calster (@GAVClaw) March 7, 2023

Daimler (Responsabilité des constructeurs de véhicules munis de dispositifs d’invalidation)
Environnement et consommateurs
L’acheteur d’un véhicule à moteur équipé d’un dispositif d’invalidation illicite bénéficie d’un droit à réparation de la part du constructeur automobile lorsque ledit dispositif a causé un dommage à cet acheteur

Saatgut-Treuhandverwaltung (KWS Meridian)
Agriculture
Protection des obtentions végétales : pas de fixation d’une indemnisation forfaitaire minimale

SCHUFA Holding e.a. (Scoring)
Principes du droit communautaire
Avocat général Pikamäe : l’établissement automatisé d’une probabilité sur la capacité d‘une personne à honorer un prêt constitue un profilage selon le RGPD

Colt Technology Services e.a.
Les opérateurs de télécommunications peuvent être obligés de fournir, sur demande d’une autorité judiciaire, des opérations d’interception de communications moyennant des tarifs forfaitaires

Commission / Bulgarie (Double manquement - Pollution par les PM10)
Droit institutionnel
Le premier recours en double manquement de la Commission en matière de pollution atmosphérique est irrecevable

Towercast
Concurrence

L’interdiction d’abus de position dominante prévue par les traités permet un contrôle au niveau national et a posteriori d’une opération de concentration d’entreprises de dimension non communautaire

The CJEU last week held in C-177/22 JA v Wurth Automotive. The case concerns the consumer title of Brussels Ia, in particular a refinement of the CJEU  C-630/17 Milivojević and C-28/18  Petruchová case-law (involvement of people with a background in the sector), C-498/16 Schrems (evolvement of use from non-professional to professional or the other way around) and  CJEU C‑464/01 Gruber criteria (dual (non-)professional use).

Applicant in the main proceedings, whose partner is a car dealer and managing director of an online platform for the sale of motor vehicles, was mentioned on the homepage of that platform as the graphic and web designer, without actually having carried out that activity at the time of the facts in the main proceedings. At the request of the applicant in the main proceedings, the partner did some research and contacted the defendant in the main proceedings from his professional email address, in which he indicated a price offer for the purchase of a vehicle. It was stated in that email that the contract of sale was to be concluded on behalf of the applicant in the main proceedings, however a little while after the purchase the partner enquired (but was rebuffed) about the possibility to indicate the VAT amount of the invoice (typically only of interest to business buyers).

Firstly, in applying the consumer title, must account be taken of current and future purposes of the conclusion of that contract, and of the nature of the activity pursued by that person as an employed or self-employed person? As for the latter, the CJEU answer [27] is clearly ‘no’, with reference to Roi Land Investments. As for the former, whether the purpose for the use is current or planned in the future, per Milivojević [88-89], is held by the CJEU not to be of relevance. I would personally add to both Milivojević and Wurth Automotive that any such future use must have been somehow signalled to the business. While the CJEU in Schrems confirmed the possibility to lose the consumer status as a result of subsequent professional use, it has not held (and in my view ought not to) that an initial professional use later changed to non-professional use, may belatedly trigger the consumer section (it has of course supported the later ‘internationalisation’ of the contract per Commerzbank).

Next, what is the burden of proof on whom, and what needs to be proven, when a good or service has been procured for dual professional and non-professional use. Here, the CJEU [30] ff confirms that first of all the professional use or not of the good or service needs to be established on the basis of the objective elements of the file. Only if “that evidence is not sufficient, that court may also determine whether the supposed customer had in fact, by his or her own conduct with respect to the other party, given the latter the impression that he or she was acting for business purposes, such that the other party could legitimately have been unaware of the non-professional purpose of the transaction at issue” [32].

[36] “the impression created by the conduct of the person claiming the status of ‘consumer’….on the part of the other contracting party, may be taken into account to establish whether that person should be afforded the procedural protection laid down in Section 4 of that regulation.”

In the case at issue,

[38] inaction following the presentation of a contract identifying the buyer as a trader, can constitute evidence (but not of singlehandedly determinative value) that the applicant in the main proceedings could have created, on the part of the defendant in the main proceedings, the impression that she was acting for professional purposes;

[39] ditto the sale of the vehicle shortly after the conclusion of the contract and [40] the potential making of a profit, albeit that the latter would in the view of the CJEU ordinarily not be of great impact.

The CJEU finally is not prepared (despite a self-confessed [47] in Wurth Automotive] potential to read same in CJEU Gruber) to read a benefit of the doubt, in inconclusive cases, to the benefit of the alleged consumer, leaving that with reference to CJEU TOTO to national procedural law. Here I think the Court could have held against such benefit on the basis of Brussels Ia itself.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

 

CJEU this AM C-177/22 Wurth Automotive
Jurisdiction for consumer contracts, Brussels Ia
Non-objection to proposed B2B contract, Qs from purchaser's partner (professionally active in sector concerned) re VAT on invoice, do feed into 'consumer' qualificationhttps://t.co/SSEVaWHQiP

— Geert Van Calster (@GAVClaw) March 9, 2023

Parveen v Hussain [2022] EWCA Civ 1434 (I am still in clearing the backlog mode) is an excellent illustration of this most peculiar of issues under conflict of laws, the issue of ‘Vorfrage’, with the Court of Appeal ending up recognising the second marriage of a Pakistani lady, but not her prior foreign divorce expressed by her first husband per Talaq.

The Court of Appeal held that the fact that that divorce is not entitled to recognition under the English rules, does not mean that the woman did not have the capacity to (re)marry: her previous divorce was effective under the law of Pakistan.

Moylan LJ summarises that the issue raised by the appeal is in essence the relationship between capacity to marry rules and divorce recognition rules. [7]:

[In England and Wales] “a person’s capacity to marry is governed by the law of their antenuptial domicile. The recognition of a divorce, whether obtained in “the British Islands” (section 44) or in a “country outside the British Islands” (section 45), is governed by the provisions of the [Family Law Act] FLA 1986. What happens when the two are in conflict? In other words, when a person, in this case the wife, has capacity to marry by the law of her antenuptial domicile, Pakistan, but her previous divorce is not entitled to recognition in England and Wales under the FLA 1986, is priority to be given to the law applicable to capacity to marry or to the law applicable to the recognition of divorces.”

After a first marriage in Pakistan, which ended in 2008 by husband Talaq, the wife remarried. The second husband commenced divorce proceedings in 2018. This led to the pronouncement of a Decree Nisi of divorce in 2019. In or about August 2020, the second husband applied for the Decree Nisi to be rescinded and for the Petition to be dismissed on the basis that the wife remained married to her previous husband at the date of her marriage to the  second husband. The husband then issued a nullity Petition in 2021 in which he contended that at “the time of the marriage the (wife) was already lawfully married”. The wife submits that her marriage to the husband is valid because she had capacity to marry under the law of Pakistan which recognised her divorce as having validly determined her previous marriage.

[22] Per Akhtar v Secretary of State for Work and Pensions [2022] 1 WLR 421:

“Validity of Marriage

[60] Under English rules of private international law: (a) the general rule is that the formal validity (i.e. the formalities) of a marriage is governed by the law of the country where the marriage was celebrated, Dicey at para 17R-001; and (b) the general rule is that capacity to marry (or essential validity) is governed by the law of each party’s antenuptial domicile, Dicey at para 17R-057 (now 17R-054). Bigamy is “a matter of capacity”, Dicey at para 17-082 (now 17-079).

[61] If a marriage is valid in respect of both form and capacity it will be recognised as valid under English law and, as a result, the parties will be recognised as having the status of husband or wife.”

‘Bigamy’ is qualified as a rule of capacity to marry (‘essential validity’ or what the civil law is likely to call substantive validity. Extensive review followed of various authorities,  including the well-known Schwebel v Ungar, with the Court of Appeal as in that latter case, giving priority to capacity to marriage. An ordre public exception was rejected on the basis of the wife at all relevant times having been domiciled in and lived in Pakistan. [89] “The public policy objectives would be sufficiently achieved by denying recognition of the divorce to the wife’s previous husband because of his connections with the UK.”

A super case to teach Vorfrage, qualification and ordre public.

Geert.

An excellent illustration of Vorfrage
Relationship between capacity to marry rules and divorce recognition rules
Moylan LJ giving priority to the former, referring ia to Schwebel v Ungar

Parveen v Hussain [2022] EWCA Civ 1434 https://t.co/Tb1jSeCs9P

— Geert Van Calster (@GAVClaw) November 7, 2022

I last updated the draft for this post in November….I am hoping somewhat to catch up with posts this week.

In Transworld Payment Solutions U.K. Ltd, Re [2022] EWHC 2742 (Ch) Freedman J refused an application to set aside an order to serve out of jurisdiction. Claimants’ case is that the E&W proceedings arise out of an alleged “VAT carousel fraud”, carried out in England and Wales, by English and Welsh companies. There are concurrent Curaçao proceedings.

Defendants raise a forum non conveniens jurisdictional defence. They submit that the Curaçao court is presently seised as to the issue as to whether the companies were effectively parties to a number of settlement agreements, and the effect of the same.  These Settlement Agreements are subject to Curaçao law and contain a Curaçao jurisdiction clause (which is not exclusive).  They also submit that the fraud claims will be determined as part of the applications for negative declarations in the Curaçao Proceedings.  The Claimants dispute that the fraud claims or the full scope of the fraud claims will be determined in the Curaçao Proceedings.

There are significant areas of dispute between the parties as regards what is in issue in the Curaçao Proceedings. The issue that is of most interest to the blog, is the consideration of applicable law under Rome II. [79] Freedman J notes “VTB [VTB Capital Plc v Nutritek International Corp [2013] UKSC 5] ,was a case where English law (used as a shorthand to refer to the law of England and Wales) was the proper law of the tort, but where the majority of the court nonetheless stayed the action in favour of the matter being more appropriately litigated in Russia.”

A first issue is the catchment area of Rome II’s ‘non-contractual obligations’, to typically common law equitable wrongs including dishonestly assisting breach of trust/fiduciary duty. [83] the judge holds with reference to Dicey, Morris and Collins 16th Ed. that they likely do. [84] The most likely lex causae following Rome II is English law and  ‘(I)t seems unlikely that Article 4(3) would apply given the closer connection of any tort or delict with England and Wales rather than with Curaçao or any other country. ‘

The issues will be further discussed at trial and one imagines both Rome I and Rome II will return there. But for now, jurisdiction is going ahead.

Geert.

Largely unsuccessful application for forum non conveniens (viz: Curacao) set-aside of permission to serve out of jurisdiction
Considers ia applicable law Rome II viz deceit, conspiracy, equitable wrongs

Transworld Payment Solutions [2022] EWHC 2742 (Ch) https://t.co/ly6m6XRFsN

— Geert Van Calster (@GAVClaw) November 7, 2022

The first instance court of Gelderland held in X v Lufthansa that the latter’s limitation to objecting to territorial jurisdiction within The Netherlands, rather than to jurisdiction of the Dutch courts as such, amounts to submission under A26 BIa, leaving the Dutch courts to decide on territorial jurisdiction with reference to internal Dutch civil procedure rules (CPR).

The remainder of the judgment then agrees with Lufthansa on the basis of Dutch CPR identifying the defendant’s office or branch as the territorially relevant factor, leaving Gelderland without jurisdiction. The court seemingly rejected itself as forum contractus, holding that CJEU C-204/08 Rehder v Air Baltic does not apply due to the flight in current case not being intra-EU (final destination being Baku). I would have expected the court to consider C-20/21 LOT Polish Airlines, where the final destination equally was outside the EU.

I do not know what claimant argued (forum contractus one assumes, perhaps locus damni per A7(2) BIA?), at any rate it is wrong to hold that a limitation of jurisdictional objection to internal distribution, implies submission per A26 BIa, for those heads of jurisdiction which assign jurisdiction territorially, not just nationally. That includes A7 forum contractus and forum delicti.

Geert.

 

I should really keep this for exam purposes
First instance Gelderland holds opposition to court's territorial jurisdiction, not to NL jurisdiction as a whole, does not obstruct A26 Brussels Ia submission
Ahum…

X v Lufthansa ECLI:NL:RBGEL:2023:900https://t.co/QS53WEXmSp

— Geert Van Calster (@GAVClaw) March 4, 2023

Royal Antwerp Football Club
Libre circulation des personnes
Football : selon l’avocat général Szpunar, les règles de l’UEFA relatives aux joueurs formés localement sont partiellement incompatibles avec le droit de l’Union

Les Mousquetaires et ITM Entreprises / Commission
Concurrence
La Cour annule, partiellement, les arrêts du Tribunal et, en conséquence, les décisions de la Commission ordonnant des inspections dans les locaux de plusieurs entreprises françaises du secteur de la distribution en raison des soupçons de pratiques anticoncurrentielles

Prigozhina / Conseil
Relations extérieures
Le Tribunal annule les mesures restrictives appliquées à Mme Violetta Prigozhina, mère de M. Yevgeniy Prigozhin, dans le cadre de la guerre menée par la Russie contre l’Ukraine

Thank you Gilles Cuniberti for flagging and discussing the French Supreme Court’s judgment in JE and B v Barclay Pharmaceuticals [cross-referral to the English judgment makes this Barclay Pharmaceuticals v Mekni]. Much of this post is already included in prof Cuniberti’s posts.

The core of the case concerns the enforcement of an English judgment [Barclay Pharmaceuticals Ltd v Antoine Mekni and others, [2018] 6 WLUK 461] which, in assisting Barclay Pharmaceuticals with enforcement of an earlier established £8.7 million debt (since accrued with costs etc to about £12 million), had declaratorily held that a large number of bank accounts and other entities which for the most part purport to belong to parties other than Mr Mekni, are in truth owned by him. Mr Mekni did not appear in the English declaratory relief proceedings hence did not there object to jurisdiction.

The relevant issue in the French proceedings for the purposes of the blog, is first of all Article 24(3) Brussels Ia’s exclusive jurisdiction for ‘proceedings which have as their object the validity of entries in public registers’. As Gilles had earlier discussed, here the Supreme Court [5-6] held that an English judgment determining ownership in shares held in public registers, does not engage ‘the validity of entries in public registers’, for said exclusive jurisdiction, it holds, only extends to the formal validity of such entry, not to the ownership of the assets related to the entry.

As Gilles notes, it was possible for the SC succinctly to deal with the A24(3) argument for under the applicable French law relating to the type of corporation involved, whose shares were the object of the proceedings, the only impact of the (non-obligatory) registration was to create limited third party effect; registration has no bearing on the existence, validity and ownership of the shares. Professor Cuniberti justifiably signals that a distinction between substantive and formal validity may not always be easily made.

The second issue of note to the blog, is the issue of service. A43(1) BIa prescribes that

Where enforcement is sought of a judgment given in another Member State, the certificate issued pursuant to Article 53 shall be served on the person against whom the enforcement is sought prior to the first enforcement measure. The certificate shall be accompanied by the judgment, if not already served on that person.

Recital 32 adds

In order to inform the person against whom enforcement is sought of the enforcement of a judgment given in another Member State, the certificate established under this Regulation, if necessary accompanied by the judgment, should be served on that person in reasonable time before the first enforcement measure. In this context, the first enforcement measure should mean the first enforcement measure after such service

In the case at issue, service happened at 2:55 PM and enforcement at 3 PM. Does that leave a ‘reasonable time’? I share Gilles’ frustration that the SC [3] merely replied that French CPR does not require the SC to engage with grounds of appeal that are manifestly unarguable

En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.

The take-away from this is that the SC in the circumstances did not see a clear infringement of A43 juncto A53 BIa. That does of course leave a lot of speculation as to when the timing of service might lead to enforcement issues – crucial too, I would suggest, in case of provisional measures.

Geert.

 

Statistiques judiciaires 2022 : un contentieux marqué par les enjeux majeurs du monde contemporain (État de droit, environnement, protection de la vie privée à l’ère du numérique…) et par les mesures restrictives adoptées par l’Union européenne dans le cadre de la guerre en Ukraine

Stadt Frankfurt (Oder) et FWA
Rapprochement des législations
Politique de l’eau potable : selon l’avocate générale Medina, les États membres ont l’obligation de ne pas autoriser un projet susceptible d’entraîner une détérioration de la qualité d’une masse d’eau

Krajowa Rada Sądownictwa (Maintien en fonctions d’un juge)
Droit institutionnel
L’avocat général Rantos doute que le mécanisme d’autorisation par la KRS du maintien en fonction des juges polonais au-delà de l’âge du départ à la retraite offre des garanties suffisantes d’indépendance

MÁV-START
Le repos journalier s’ajoute au repos hebdomadaire, quand bien même il précéderait directement ce dernier

Hengshi Egypt Fiberglass Fabrics et Jushi Egypt for Fiberglass Industry / Commission
Relations extérieures
Une subvention accordée par la Chine peut être imputée à l’Égypte en tant que pays d’origine ou d’exportation d’un produit frappé par des mesures compensatoires