Flux européens

Bundesrepublik Deutschland (Maintien de l’unité familiale)
Espace de liberté, sécurité et justice IMMI
Le régime d’asile européen commun ne s’oppose, en principe, pas à ce qu’un État membre étende automatiquement, à titre dérivé et aux fins du maintien de l’unité familiale, le statut de réfugié à l’enfant mineur d’un parent auquel a été octroyé ce statut

Governor of Cloverhill Prison e.a.
Espace de liberté, sécurité et justice
Avocate générale Kokott : les dispositions de l’accord de retrait et de l’accord de commerce et de coopération, qui prévoient le maintien du régime du mandat d’arrêt européen à l’égard du Royaume-Uni, sont contraignantes pour l’Irlande

Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm) (05 November 2021) concerns an alleged cartel between several Brazilian companies which produce orange juice, including Sucocítrico Cutrale: 3rd defendant. The other two defendants, Mr Cutrale Sr and Mr Cutrale Jr,  are natural persons Claimants are orange farmers who are all domiciled in Brazil.  The claim relates to alleged antitrust infringements committed in Brazil and said to have restricted competition in markets in Brazil, causing harm to the Claimants there.

Claimants claim to be entitled to maintain proceedings in England and Wales on the bases that:

i)                   although Sucocítrico Cutrale is a Brazilian company, it has its central administration in London and is therefore domiciled in the UK pursuant to A63(1)(b) Brussels Ia;

ii)                 alternatively, the Claimants were entitled to serve Sucocítrico Cutrale, pursuant to CPR 6.3(c)/6.9(2) at a “place within the jurisdiction where [it] carries on its activities; or any place of business of the company within the jurisdiction”.

iii)               Cutrale Snr is domiciled in England; and

iv)               Cutrale Jnr is domiciled in Switzerland and the claims against him are so closely connected with the claims against Sucocítrico Cutrale and Cutrale Snr that it is expedient to hear and determine them together so as to avoid the risk of irreconcilable judgments, pursuant to Article 6 Lugano Convention.

The Defendants’ position is in outline as follows:

Sucocítrico Cutrale

i)                   Sucocítrico Cutrale has its “central administration” in Brazil and is therefore not domiciled in the UK for the purpose of A63(1)(b) BIa.  There is therefore no right to bring proceedings against the company in England under Article 4(1). The court must apply common law principles to determine jurisdiction.

ii)                 Alternatively, the claims against Sucocítrico Cutrale should be stayed under A33 and/or 34 BIa because of ongoing proceedings in Brazil concerning the alleged cartel.

iii)               The Claimants were not entitled to serve Sucocítrico Cutrale at an address within the jurisdiction, and so the company has not been validly served.

iv)               Alternatively, applying common law forum non conveniens principles, Brazil is the proper place for the claims against Sucocítrico Cutrale and the court should not exercise jurisdiction against it.  The claims against Sucocítrico Cutrale should be stayed even if (contrary to the Defendants’ primary case) Cutrale Snr is domiciled in England. Cutrale Snr has confirmed that he would submit to the jurisdiction of the Brazilian court. The risk of inconsistent judgments in England and Brazil therefore carries little weight because it would be caused by the Claimants’ unnecessary pursuit of litigation in England. In such circumstances, the court may stay the claims against the foreign defendant notwithstanding the presence of a UK domiciled anchor defendant (reference is made to Vedanta Resources plc v Lungowe [2020] AC 1045 . I flagged the ‘submission to foreign jurisdiction’ issue in my review of Vedanta).

Cutrale Snr

v)                  Cutrale Snr is not domiciled in the UK. There is therefore no right to bring proceedings against him under A4(1) BIa.

vi)               Further or alternatively, the court should stay the claims against Cutrale Snr pursuant to A34 BIa because of the ongoing proceedings in Brazil.

vii)             Although Cutrale Snr was served in the jurisdiction, applying common law forum non conveniens principles Brazil is the proper place for the claim.  Accordingly, the court should decline jurisdiction.

Cutrale Jnr

viii)           If neither Sucocítrico Cutrale nor Cutrale Snr is English domiciled there is no basis to assume jurisdiction against Cutrale Jnr.

ix)               If Cutrale Snr is English domiciled but the claims against Sucocítrico Cutrale are to proceed in Brazil, the criteria under A6 Lugano are not met because it would be more expedient for the claims against Cutrale Jnr to be heard in Brazil alongside the claims against Sucocítrico Cutrale.

x)                  Further or alternatively, the court should stay the claims pursuant to a reflexive application of A28 Lugano Convention because of the ongoing proceedings in Brazil.

Henshaw J held that the court lacks jurisdiction over Sucocítrico Cutrale however that it does have jurisdiction over Cutrale Snr and Cutrale Jnr and  that there is no proper basis on which to stay the claims against them.

Domicile of Sucocítrico Cutrale (‘SuCu’)

A63 BIa determines corporate domicile as the place where the corporation has its (a) statutory seat; (b) central administration; or (c) principal place of business. Claimants suggest place of central administration as being in London. Anglo American came to my mind as indeed it did to counsel and judge in current case. At 31 ff a concise look into the travaux is offered as are references to CJEU case-law under freedom of establishment (including Uberseering). I would be cautious however with too much emphasis on those cases, which are judged in quite a different context to the one in a jurisdictional assessment.

SuCu are in in essence a family-run business [55]. This is also emphasised in the witness statement of Cutrale Sr himself. SuCu refer extensively to its internal by-laws and the role in same for the ‘Executive Board’ which is made up of professionals. However there is also a, by-laws sanctioned, Family Board (in which Cutrale Sr until recently had a 99% stake). The Executive Board, by defendant’s own admission [55], runs the company on a day to day basis. The Family Board seemingly meets at various places worldwide, and the role of London in the family Board’s direction is not small, given that Cutrale Sr has secretarial assistance for his business interests there, and that his daughter (who also sits on the Family Board) conducts all her business interests there [57].

In Anglo American, the CA held

 ‘the correct interpretation of “central administration” in Article 60(1)(b), when applied to a company, is that it is the place where the company concerned, through its relevant organs according to its own constitutional provisions, takes the decisions that are essential for that company’s operations. That is, to my mind, the same thing as saying it is the place where the company, through its relevant organs, conducts its entrepreneurial management; for that management must involve making decisions that are essential for that company’s operation’

[75] ff the judge does not see London as that place where the entrepreneurial management takes place. This is to some degree a factual appraisal however I I am minded to see quite strong arguments in favour of London. I do not think for instance that BIa’s DNA of predictability for the defendant knowing where it might be sued, carries too much weight here seeing as the complex structure and the diverse effective location of the Family Board’s meetings is of its own making. By failing clearly to implement one centre of entrepreneurial management, visible to outsiders, the defendant in my view brings the risk of positive conflicts of jurisdiction upon itself.  All the more so in my view in cases where, such as here, the accusation is involvement in a cartel, which is unlikely to have happened with the firm controller of the Family Board having been kept in the dark.

Alternative serving under CPR 6.9.(2) [“Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.”] is also dismissed: [104] ff.

[112] ff the judge discusses the domicile of Cutrale Sr which, per A62(1) BIa is to be determined under English law. This [129] ff is held to be England.

Cutrale Jr being undisputably domiciled in Switserland, the question arises whether the claim against him may be anchored upon the claim against his father, per A6(2) Lugano. The judge is reminded of his own judgment in PIS v Al Rajaan. Defendants submit that if the claims against Sucocítrico Cutrale must be pursued in Brazil, it is more expedient for the claims against Cutrale Jnr to be pursued in that jurisdiction, even if the Claimants are entitled to sue Cutrale Snr as of right in England. However [142] the judge agrees with Claimants’ point that somewhat different policy considerations arise when considering the risk of inconsistent judgments within the EU (or between Lugano States), compared to the position vis-à-vis so-called ‘third States’, and that the latter context does not involve the same particular impetus to remove obstacles to the single market and observe the principle of ‘mutual trust’ between the courts of different Member States.

Whilst the claims against Cutrale Jnr are of course connected with those against Sucocitrico, they are also bound to involve important issues in common with the claims against Cutrale Snr which (subject to the issue of an A34 stay, see below) are to be pursued in England  [143].

[144] In conclusion the expediency threshold under A6 Lugano is held to have been reached.

Next, a stay of the proceedings against Cutrale Snr under A34 BIa is rejected [147] ff. Much of the A34 authority, all of which I have discussed on the blog, is flagged. The judge observes the tension between Kolomoisky and EuroEco Fuels (Poland) as to whether the power to stay depends on there being a procedural means by which the two actions could, in fact, be tried together. At [163] the judge thankfully notes the important distinction between A33-34 and A29-30, despite citing A29-30 authority with some emphasis:

I would observe, however, in disagreement with the Defendants, that despite the similarity of language it may well make a difference whether a stay is sought (a) under Article 28 as such or (b) under Article 34 or under Article 28 as applied reflexively vis a vis proceedings in a third country (see § 238 below).  The observation quoted above that there might be a presumption in favour of a stay seems considerably easier to justify in a case where the intra-EU internal market considerations referred to in § 142 above apply than where the overseas proceedings are in a non-Member State.  On the contrary, a presumption of a stay in favour of a third country state of proceedings prima facie brought as a right against a defendant in his place of domicile may well be hard to square with the fundamental principles underlying the Brussels and Lugano regimes.

At [221], too, and in an in my view important and marked departure from Justice Turner in Municipio, Henshaw J here holds that

whilst recital 24 indicates that the court should consider all the circumstances of the case, it does not follow that the court can grant a stay pursuant to Article 34 which is in substance no more than a forum non conveniens stay.  It follows that the factors listed in § 213.iv) above are relevant only insofar as they support the granting of a stay based on the Favero and Costa claims as related claims.

This puts the horse back before the cart.

At [164] ff the ‘rival’ Brasil claims are discussed, [197] of which only two predate the current E&W claim against Cutrale Sr and a conclusion [210] that these are related in a broad sense to the present claims, but that degree of relationship would be insufficient to make it expedient to stay the present claims by reference to them.

[213] ff the various arguments that a stay would be in the ‘interest of justice’ are rejected: these include in particular [216] suggestions of consolidation or joint case management, whilst theoretically possible, are unrealistic in practice (reference is made ia to the fact that none of the current Brazilian claims have been consolidated); [217] neither rival claim is likely to reach a conclusion in the reasonably foreseeable future: on the contrary, both have been mired in procedural disputes for many years.

Similar arguments are made obiter when considering an A33-34 stay against Sucocitrico (in the event the A4 analysis, above, were to be wrong): [241] ff.

At 237, the possibility of a stay of the proceedings against Cutrale Jr, under a reflexive application of A28 Lugano is rejected with mere reference to the reasons listed viz the A34 stay. The judge has to follow the Court of Appeal’s finding in Kolomoisky, that reflexive application of A28 Lugano is possible. Clearly, I submit, it is not and this will be an important point to clarify when and if the UK accede to Lugano.

The judge concludes [249] ff by obiter upholding a forum non stay. His arguments here are interesting among others for they lead to a different result than the A33-34 application – which serves to confirm the very different nature of both mechanisms.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.15.3.

1/2 Viegas & Ors v Cutrale & Ors [2021] EWHC 2956 (Comm)
Brazilian sugar #cartel. Claimants, represented ia by @RHopkins_Law, fail to establish A4 BIa domicile jurisdiction against one defendant but succeed against another.
Claimants succeed on lis pendens challenges: ….

— Geert Van Calster (@GAVClaw) November 8, 2021

I discussed settlement agreements viz Brussels Ia’s protected categories before, in particular in my review of Yukos v Merinson. Choice of court between consumers and employees one the one hand, and the business and employer on the other, is valid inter alia when the parties ‘enter into’ the (choice of court agreement) ‘after the dispute has arisen’. The assumption is that the consumer will have had an opportunity to consult lawyers and that therefore the inequality of arms has disappeared.

A dispute will have ‘arisen’ for the purposes of these Articles only if two conditions are satisfied: (a) the parties must have disagreed upon a specific point; and (b) legal proceedings in relation to that disagreement must be imminent or contemplated.

Many thanks to Henrik Gisløv who sent me copy of the judgment of the City Court and subsequently the High Court in Thomas Higgins v Saxo Bank. Henrik represented Mr Higgins and I have included Henrik’s English translation of the relevant sections of the High Court’s judgment below – I do not read Danish.

I understand from Henrik that Saxo Bank claimed an amount for “CFD financing charges” of EUR 230,000 accrued in less than one month. Mr Higgins, domiciled at Ireland, disputed the claim, and a settlement agreement was entered into. Mr Higgins had no legal advise when entering the settlement agreement – whether the actual, as opposed to assumed, benefit of legal advice is required for A10 to apply, is not discussed.

In the opinion of Mr Higgins the bank breached the terms of the settlement agreement, and he raised several complaints with the staff of the bank. These complaints went unanswered and Mr Higgins decided to terminate the settlement agreement: ‘Further to my email of Friday March 3rd, I confirm that the live price feeds have not been restored. Accordingly, our Contract is now void. Unless you wish to negotiate terms that address the contractual failings, the only option open to me is to reactivate my original Complaint and refer it for regulatory adjudication.’ This was in March 2017.

The bank then filed a case in the Danish courts, in January 2019 only. It argued  jurisdiction on the basis that a choice of court clause had been part of the  settlement agreement which Mr Higgins had terminated in March 2017. The City Court found first of all that Mr Higgins was a consumer (CJEU Petruchova comes to mind). Secondly, the City Court found that the dispute related to whether or not the terms of the settlement agreement had been breached or not. Therefore that the dispute that is being litigated had only arisen after that settlement agreement had been made and that the choice of court made in the settlement agreement was not a valid agreement after the dispute had arisen. The Eastern High court upon appeal however overturned the decision. Leave to appeal to the Supreme Court was rejected.

Of note in my view is that for there to be valid choice of court within the meaning of A19 BIa, legal proceedings in relation to that disagreement must be imminent or contemplated. From my admittedly half baked, Google translate assisted understanding of the judgments, this condition is not discussed in the judgments (it is clear, from the quote, in English, at the time of Mr Higgins’ cancellation of the agreement, legal proceedings are contemplated at that moment; yet the settlement with the choice of court agreement was formed much earlier). Rather, the High Court unconvincingly focuses on the synergy between the complaints under the original platform agreement and the nature of the subsequent complaints. This could have done with SC insight.

The judgment puts the spotlight on the nature of settlement agreements in the context of protected categories, and the stronger role consumer and employment law might have to play to ensure both the twin goal of settling disputes before they go to court, whilst at the same time not depriving the protected categories of their Regulation-sanctioned protection.

Geert.

EU private international law, 3rd ed. 2021, Heading 2.2.9.2.7, 2.270 ff.

 

____Henrik Gisløv translation of the High Court judgment in relevant part:___

It is undisputed before the High Court that the settlement agreement entered into between Thomas Martin Higgins and Saxo Bank A / S, is a consumer agreement in the sense of the term has applied the Judgment Regulation. Cases against consumers must, according to the Judgment Regulation Article 18, paragraph 2, as a starting point is brought before the courts in the Member State in which the consumer resides.

The main issue in this case is then whether the condition of the judgment Article 19 (1) to derogate from this starting point is met. According to the provision is it decisive whether the settlement agreement, including the agreement’s provision on venue, may be deemed to have been concluded after the dispute has arisen. If the condition is fulfilled, the venue agreement is binding on Thomas Martin Higgins.

It is assumed as undisputed that the settlement agreement of 11 July 2016 was entered into as a result of a disagreement as to whether Thomas Martin Higgins had obligation to pay the fees of 231,320 euros that Saxo Bank A / S had charged for the period from 1 to 29 April 2016.

It appears from clause 1 of the settlement agreement, that Thomas Martin Higgins should withdraw its complaint about the fees that Saxo Bank A / S should separate Thomas Martin Higgins’ two accounts and credit one account with one amount of 115,660 euros, corresponding to half of the fees charged. The other account then had a balance of -87,565.16 euros, which Thomas Martin Higgins undertook to pay to Saxo Bank A / S in 12 instalments.

Thomas Martin Higgins paid six instalments until February 2017, after which he by letter dated 6 March 2017, terminated the settlement agreement.

The question then is whether the lawsuit relates to the dispute that was tried resolved by the settlement agreement, or whether it relates to subsequent matters.

Thomas Martin Higgins has argued that Saxo Bank A / S on several points has breached the settlement agreement and that it is these breaches of agreement that are the background for the present case. He has during his explanation to the city court alone referred to the one concrete example that he during his continued trading on the bank’s platform continued to lose so-called live prices (real-time prices).

On the other hand, it is undisputed that Thomas Martin Higgins under the settlement agreement concluded continued to trade on the platform provided by Saxo Bank A / S available to him. Saxo Bank A / S has in accordance with the settlement agreement written down its fee claim to half, and the settlement agreement does not contain detailed terms for the continued trading on the platform, including on live prices.

In view of this and the fact that the amount of 41,297.28 euros that Saxo Bank A / S has withdrawn subpoena for, constitutes the difference between the amount paid by Thomas Martin Higgins had to pay after the settlement and the instalments paid of 45,412.41 euros plus the deposit on account 176283INET / DK4011490100705836, the High Court finds that the present dispute does not concern one which arose after the conclusion of the settlement agreement [and is a, GAVC] disagreement on the interpretation of the agreement, but that the dispute had already arisen when settlement agreement including the venue agreement, was entered into.

…0Saxo bank A / S can bring the case before the bank’s venue at the Court in Lyngby, …and the High Court therefore accepts Saxo Bank A / S ‘claim that the judgment of the district court be set aside and that the case be remanded for consideration at the Court in Lyngby, as a result.”

Aldricus – Sejak diluncurkan pertama kali, by U mendapatkan respons yang cukup menarik dari para pengguna. Hal ini cukup wajar karena provider kartu internet ini menyediakan cukup banyak pilihan by U paket ataupun inovasi menarik yang bisa dicoba sesuai keinginan.

Tentu, adanya beragam paket yang ditawarkan akan memudahkan Anda untuk memilih mana paket internet yang sesuai dengan keinginan ataupun budget yang disediakan.

Nah, pada kesempatan ini akan dibahas beberapa rekomendasi paket by U yang menarik untuk Anda coba demi mendapatkan sensasi menggunakan internet yang lebih nyaman. Apa saja? Simak ulasannya!

Pilihan Paket By U yang Menarik

Sebagaimana disinggung di awal, ada cukup banyak paket internet yang disediakan by U dan bisa menjadi pilihan yang tepat. Nah, beberapa paket yang direkomendasikan tersebut diantaranya adalah sebagai berikut:

1. Paket topping YouTube

Sebenarnya, by U menyediakan cukup banyak paket topping. Variasi ini adalah by U paket khusus untuk aplikasi tertentu. Nah, Anda bisa menggunakan paket topping YouTube yang disediakan. Paket ini sangat menarik karena Anda bisa mendapatkan kuota YouTube 100 GB 24 jam non-stop hanya dengan Rp 10.000 saja!

2. Paket On-Net by U

Apabila Anda mencari paket telepon tanpa tersambung internet yang murah, by U menyediakan pilihan yang menarik untuk Anda. Salah satu paket yang disediakan adalah paket On Net.

Dengan menggunakan paket ini, Anda akan mendapatkan kuota telepon hingga 43.200 menit dengan masa aktif 30 hari ke sesama by U dengan harga Rp 1.000 saja. Ini adalah paket telepon paling murah dengan kualitas telepon yang sangat baik.

3. Paket topping Instagram by U

Suka scrolling Instagram hingga lupa waktu dan sering bermasalah karena kuota habis? Nah, Anda bisa menggunakan paket topping Instagram yang disediakan oleh by U. Dengan menggunakan paket ini, tersedia kuota khusus Instagram sebesar 3 GB dengan masa aktif 30 hari hanya dengan RP 5.000 saja!

Beberapa by U paket di atas bisa dijadikan opsi untuk Anda gunakan nanti. Dari paket tersebut, bisa dilihat jika by U memberikan layanan terbaik dengan harga yang terjangkau!

The post Rekomendasi By U Paket Hemat Untuk Dicoba appeared first on Aldri Blog.

I am catching up a little on recent case-law and am focussing it seems on the consumer section (see also yesterday’s post). This Court Amsterdam judgment published on 8 September caught my eye for it discusses choice of court, applicable law for the substantive validity of same, and ‘consumers’ in the context of buying yachts (now that I write that, in my exams I often have consumers buying yachts). Thank you Haco van der Houven van Oordt for signalling the case.

A purchase agreement for a yacht worth €5.4 million was signed in Singapore between buyer, an Australian living in Australia, and a Dutch shipyard. Seller’s GTCs mention

‘Article 17 – Settlement of disputes 1. Each agreement between [claimant] and the other party is subject exclusively to the laws of the Netherlands. 2. Any disputes which arise between the other party and [claimant], including disputes relating to the interpretation of these terms and conditions, will be put exclusively before the competent judicial body in Amsterdam.’

Pre-delivery was scheduled for December 2018 in Italy. Buyer changes his mind a week after signature, saying he will not be able to honour the agreed price. Vendor pursues the contractual penalty clause of 25% of the sale price. 

The judge finds the consent to choice of court to have been validly expressed on the basis of A25 BIa, under the classic Colzani formula. References to the GTCs had been properly made in the written contract. A duly diligent contracting party could and should have read these GTCs. Defendant’s argument that the choice of court clause in the GTCs should have been the subject of specific negotiation, is rejected [4.3.3].

As for the substantive validity of choice of court, the Dutch court (unlike eg the Belgian Supreme Court in Happy Flights) does add renvoi to the mix per recital 20 BIa. Dutch private international law (like the BE rules, nota bene) makes Rome I applicable to contracts even for the subject-matter excluded of its scope of application, among which choice of court agreements. Lex voluntatis therefore rules and the court holds that the choice of law for Dutch law for the contract as a whole, extends to choice of law for the forum clause [4.3.7].

The defendant finally alleges invalidity of the choice of court agreement on the basis of the lex fori prorogati’s rules on ‘potestative’ (unreasonably onerous) clauses. On this point, the defence succeeds: [4.3.9]: the defendant has to be qualified as a consumer under Dutch law, despite his high net value and the object of purchase, and the GTCs per article 6.236 n BW should have included a clause giving the consumer the option to opt for the default court with jurisdiction (which one that would be is not clear to me and the judgment does not specify it).

Seeing as the choice of court agreement is held to be invalid, that the defendant is domiciled in Australia, and in the absence of a relevant bilateral agreement between the two countries, Dutch residual rules are applied to assess alternative grounds for jurisdiction. There is no Dutch forum contractus, given delivery in Italy [4.5.1, with reference ia to CJEU Car Trim] and no other jurisdictional grounds have any traction.

Conclusion: no jurisdiction for the Dutch courts. The case is good material for the lex fori prorogati rule and for the realisation that even outside the context of the consumer title of Brussels Ia (defendant not being domiciled in the EU, that title was not triggered), consumer law plays an important role in choice of court.

Geert.

Court Amsterdam on choice of court, applicable law for the substantive validity of same, 'consumers' (buying yachts) and onerous clauseshttps://t.co/VSjhYqMIGY @akd_law https://t.co/M4IBF38x3v pic.twitter.com/W9tLdstFzF

— Geert Van Calster (@GAVClaw) October 14, 2021

After Eastern Pacific Chartering Inc v Pola Maritime Ltd, judgment in Dooley & Ors v Castle Trust & Management Services Ltd [2021] EWHC 2682 (Comm) is the second recent case to apply the 1968 Brussels Convention in relations between the UK and Gibraltar. This time it is the consumer section of the Convention which is at the core of the jurisdictional discussion.

Defendant is a company registered in Gibraltar which operates as a professional trustee company. The litigation concerns overseas pension schemes, promoted principally by Montegue Smythe, a Cypriot firm which operated from an English address. The court did not have before it any contractual terms evidencing the relationship between Castle and Montegue Smythe [66].

Common law negligence or breach of regulatory or statutory rules are the claim. Applicable law [15-16] is announced to be a contested issue at trial but not one that featured in the current jurisdictional challenge.

Readers may be aware that prior to the Brussels I Regulation (2001) amendments to the consumer section, requirements to trigger it were quite different. Defendants argue that the consumer section is not engaged for claimants have not shown that the conclusion of the contract was preceded in the consumer’s domicile by a specific invitation addressed to them or by advertising. In support of their case that the requirement of A13.3(b) Brussels Convention was satisfied, claimants plea an extract from Castle’s website which was said to be an act of advertising in the UK.

CJEU Kalfelis, Engler, Gabriel and Pammer (the latter mutatis mutandis and with focus on the CJEU’s view as to its own previous authority under the Convention; for Pammer Alpenhof is a Brussels I case) were the core cases discussed. At [64] Russen J rejects ia Petruchova and Reliantco as relevant authority given their Brussels I(a) context.

The judge emphasises the restrictive interpretation of the consumer section and holds that Castle’s obligations to claimants rested fundamentally upon its trusteeship of the QROPS rather than any separate contract for the provision of financial administration services. There is no plausible evidential basis for saying a contract was concluded for the supply of services outside those which were identified by the Deeds and the Rules which were incorporated by Castle [68].

Any claim against Castle based upon non-performance of services would have to be based upon the Trust Deeds and the Rules incorporated by them. Any such claim would fall within Article 5.6 (equivalent to A7(6) BIa) which would lead to the same court – the Gibraltar court – having jurisdiction as it would under the general rule of A2 Brussels Convention [70].

The judge also held that even on the assumption that a particular claimant read the extract on the website before investing in the QROPS, the fact is that there is no evidence to suggest that the territorial requirement identified in  CJEU Gabriel was satisfied.

The tort gateway under A5(3) Brussels Convention was not much entertained for claimants did not put much weight on it. At [73] the judge located locus delicti commissi in Gibraltar and did not hold on locus damni possibly being in England or the UK (the signing away of the transfer of the funds in the UK potentially qualifying as locus damni. With interesting potential discussion of course of the EU v the E&W approach on same per UKSC Brownlie I and II.

The jurisdictional challenge succeeds.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.9.2.1 and 2.2.9.2.2.

Dooley & Ors v Castle Trust & Management Services Ltd [2021] EWHC 2682 (Comm) (13 October 2021)
Another application of Brussels 1968 to a Gibraltar jurisdictional issue
See also https://t.co/EhYxVd532Ohttps://t.co/dYyO187N2I

— Geert Van Calster (@GAVClaw) October 15, 2021

I have posted before on the Brownlie v Four Seasons litigation, please refer to the earlier post for context. The case revolves around whether courts should hear cases where the only damage sustained in their jurisdiction, is ‘indirect’ damage.

The litigation is not terribly good publicity for English civil procedure. The length of the proceedings resembles that of systems often referred to when in ordinary circumstances the English courts are much speedier. Moreover the outcome of the final Supreme Court judgment on 20 October on the jurisdictional gateway for torts inevitably will lead to a carrousel of future litigation and long-winded jurisdictional argument.

Even though the court was seized much before Brexit day, the jurisdictional issues are not subject to Brussels Ia. (The applicable law is, however, determined by Rome II and that this is Egyptian law is not disputed). The Court of Appeal as I discussed in my earlier post,  upheld ‘damage in the jurisdiction’ on the basis of a wider notion of ‘damage’ under residual English rules than under the EU rules. The UKSC has now agreed by a majority of four to one, confirming the obiter outcome of the earlier, ‘Brownlie I’ (in current judgment recalled at [45] ff) obiter views of the Court in a different composition.

Lord Lloyd-Jones reminds us [25] of the 3 requirements to meet the jurisdictional threshold. Claimant must show firstly ‘a good arguable case’ that the claims fall within one of the gateways in the civil procedure rules – CPR, introduced by Statute; further a serious issue to be tried on the merits (this is designed to keep out frivolous suits); and finally that England is the appropriate forum for trial and the court ought to exercise its discretion to permit service out of the jurisdiction that is the ‘forum non conveniens’ test.

The only issue under consideration before the SC was the first one, in particular, whether the case meets the conditions of CPR PD 6B paragraph 3.1(9):

“Service out of the jurisdiction where permission is required. 3.1 The claimant may serve a claim form out of the jurisdiction with the permission of the court under rule 6.36 where -…

Claims in tort

(9)       A claim is made in tort where –

(a)        damage was sustained, or will be sustained, within the jurisdiction; or

(b)       damage which has been or will be sustained results from an act committed, or likely to be committed, within the jurisdiction.”

Candidates for Lady Brownlie’s claim satisfying the tort gateway in England, are [27] (a) a claim for damages for personal injury in her own right; (b) a claim for damages in her capacity as executrix of the estate of her late husband for wrongful death; and (c) a claim for damages for bereavement and loss of dependency in her capacity as her late husband’s widow.

Under EU jurisdictional rules, the only one of these three which in my view would have any chance of success under A7(2) BIa, is the latter. Despite CJEU Lazar (on the equivalent rule for applicable law under Rome II) I still do not see clear in the application of A7(2) to claims based on bereavement and loss of dependency. For these, I submit, Lloyd-Jones suggestion [73] fits even if the test, like in the EU, is based on direct effect only: ‘the event giving rise to the damage directly produced its harmful effects on Lady Brownlie in England and Wales.’

In essence the SC confirms the Court of Appeal’s insistence that the residual English rules must not ‘parrot’ the CJEU’s interpretation of ‘damage’ with its insistence on only direct damage satisfying the tort gateway – Pike in particular echoed the same feeling. Great emphasis is put on the perceived very different nature of the English private international law exercise as opposed to the EU, ‘Brussels’ regime. See for instance [55] ‘fundamental differences between the two systems would have made such an assimilation totally inappropriate’ – ditto, ex multi, [74].

This now Supreme Court confirmed ‘fundamental’ [74] difference between the regimes must and will, I submit, play a role in pending cases under Brussels Ia, such as those involving Articles 33-34 lis pendens provisions.

I do agree with Lloyd-Jones’ remark [50] that he is unconvinced of the suggested link between damage completing a cause of action (highly relevant at the applicable law stage] and the identification of an appropriate jurisdiction. Yet unlike him I would take that in a different direction. Not therefore in the direction of an in principle unlimited jurisdictional gateway for tort (Lord Leggatt, dissenting, at 171 remarks all English tourists travelling abroad will now have such gateway, without anyone suggesting ‘any principled basis for it’, and at [194] he suggests forum shopping will be encouraged eg by non-English tourists employing medical treatment in England as an anchor for jurisdiction), disciplined only by forum non conveniens (which was not under appeal here [79]; although Lord Lloyd-Jones does remark obiter at 80 that the judge had rejected forum non referring in particular referring to the fact that to a significant extent the claimant’s losses had been experienced in England ). Rather, I would revisit the original (for the EU at least) and contra legem (for A7(2) BIa like its predecessors does not mention damage) introduction of damage as a gateway in CJEU Bier.

The SC puts great trust in forum non conveniens as a gatekeeper: [79]

The discretionary test of forum non conveniens, well established in our law, is an appropriate and effective mechanism which can be trusted to prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England. Where a claim passes through a qualifying gateway, there remains a burden on the claimant to persuade the court that England and Wales is the proper place in which to bring the claim. Unless that is established, permission to serve out of the jurisdiction will be refused (CPR rule 6.37(3)). In addition – and this is a point to which I attach particular importance – the forum non conveniens principle is not a mere general discretion, the application of which may vary according to the differing subjective views of different judges creating a danger of legal uncertainty. On the contrary, the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner.

I have less trust in forum non as the predictable gatekeeper suggested by the majority. Consider Lord Leggatt’s dissenting view [200]:

In the absence of any prescribed decision procedure or ranking of factors, different judges assessing whether England and Wales is the appropriate forum will inevitably attach different degrees of weight to different factors and may reach differing conclusions on similar facts without either conclusion being susceptible to legal challenge. Not only is such inconsistency of outcome itself a source of injustice, but it also encourages satellite litigation and causes defendants who have no real connection with England to have to incur the difficulty and expense of instructing English lawyers to apply in England to contest the jurisdiction of the English courts. That gives a claimant a significant and unfair tactical advantage.

Moreover, as already highlighted by Joshua Folkard, cases of purely economic loss are likely to provoke much (and expensive) discussion. Lloyd-Jones L [43] himself notes: ‘Within the Brussels system, the distinction between direct and indirect damage is, however, sometimes elusive.’ He refers immediately to financial losses as the example with the least jurisdictional grip. He repeats this point ia [76], seeking to distinguish it from the more complex tort suffered by Lady Brownlie.

Cases of purely economic loss will continue to be litigated extensively at the jurisdictional level for current judgment does not offer any instruction on them. [76]: ‘the mere fact of any economic loss, however remote, felt by a claimant where he or she lives or, if a corporation, where it has its business seat would be an unsatisfactory basis for the exercise of jurisdiction. However, this is not such a case.’

An end to the jurisdictional tussle in current case therefore, nine years (8  years and 11 months) after the claim was issued. Yet continuing consequential uncertainty for many other pending and future claims.

Geert.

Aldricus – Karena belum bisa berkomunikasi secara lancar, bayi biasanya akan mengeluarkan tangisan atau rewel apabila terasa ada yang mengganggu dirinya. Apabila Anda orangtua baru, biasanya kita bingung penyebab bayi rewel beserta langkah terbaik untuk menenangkannya.

Untuk itu, Anda harus pintar-pintar membaca pola tangisan mereka. Karena biasanya setiap pola tangisan arti yang berbeda. Misalnya saja ketika lapar atau ngantuk. Keduanya memiliki pola tangisan yang berbeda.

5 Penyebab Bayi Rewel Dari Pola Tangisannya

Mengapa pola tangisan bayi bisa berbeda tergantung situasi si bayi? Hal ini adalah cara komunikasi bayi untuk membedakan ia sedang lapar atau hanya kelelahan saja. Di bawah ini alasan bayi mulai rewel berdasarkan pola tangisannya.

1. Merasa Lapar

Bayi biasanya akan menyusu setiap beberapa jam sekali terutama yang baru lahir. Jika ia mulai merasa lapar biasanya mengemut tangan atau jari yang kemudian mengarahkan muka ke Anda. Dia akan lebih sering mengarah ke pipi yang sering Anda usap ketika memberi ASI. Suara tangisnya berima dan mengulang.

2. Merasa Tidak Nyaman

Daripada menangis, bayi akan mengeluarkan suara seperti sedang menggerutu. Dia akan gelisah dan baru akan menangis apabila Anda terlalu lama meresponsnya. Hal ini juga menjadi salah satu faktor bayi rewel tidak mau tidur karena tidak nyaman.

3. Merasa Lelah

Bayi yang lelah akan lebih sering menguap, sayu, dan mengucek mata. Tangisannya akan lebih intens dan kencang di awal, tapi selanjutnya akan lebih tenang.

4. Sakit

Bayi yang sakit tangisannya akan lebih kencang dan meninggi. Berhenti hanya sebentar-sebentar saja. Wajahnya pun akan lebih sering mengernyit seperti menahan sakit.

5. Takut

Bayi akan menangis sambil membuka mata bahkan menarik kepala ke belakang. Bahkan semakin lama, intensitas tangisananya akan menjadi semakin kencang.

Cara Mengatasi Bayi Rewel

Setelah tahu penyebab bayi rewel, Anda bisa mengatasinya dengan beberapa cara berikut ini.

1. Selimutilah bayi dengan kain
2. Mengayun-ayun atau menggendong bayi
3. Menggendong bayi dengan posisi telungkup
4. Putarkan suara yang menenangkan
5. Pijat atau usap lembut tubuh bayi Anda
6. Memandikan bayi Anda dengan air hangat
7. Nyanyikanlah lagu atau solawat

Nah, itu dia penyebab bayi rewel dan cara mengatasinya. Meski terkesan sulit, Anda bisa terus belajar untuk terus mengamati bentuk tangisan bayi agar lebih paham cara apa yang harus dilakukan untuk menenangkan mereka. Semangat dan selamat mencoba!

The post Inilah Penyebab Bayi Rewel dan Yang Harus Dilakukan appeared first on Aldri Blog.

Abenante e.a. / Parlement et Conseil
SANT
Certificats Covid numériques de l’Union européenne : le président du Tribunal rejette la demande de sursis à l’exécution du règlement établissant un cadre commun pour la délivrance, la vérification et l’acceptation des certificats

Aldricus – Meski keluarga merupakan orang paling dekat dengan kita, tetap saja harus ada sopan santun agar tidak terjadi perpecahan antara satu sama lain. Mengajarkan anak berperilaku sopan di mana saja dan kapan saja sangat penting. Ada beberapa contoh perilaku santun di keluarga yang sebaiknya tidak diabaikan.

Hal ini karena dengan sopan santun, maka kita akan lebih mudah dihargai oleh orang-orang di sekitar kita. Berperilaku sopan adalah hal yang terpuji, dan membuat anak bisa dengan mudah mendapatkan teman. Adapun di keluarga, ada beberapa contoh perilaku sopan yang harus diperhatikan.

1. Mencium Tangan Orang Tua

Ini bisa dilakukan baik saat momen-momen tertentu atau saat akan pergi ke sekolah. Mencium tangan orang tua sebagai tanda hormat akan membuat mereka bangga. Bisa jadi, ada doa juga yang terselip di dalamnya agar apapun yang kamu lakukan bisa lancar.

2. Sedikit Membungkuk Saat Melewati yang Lebih Tua

Di dalam keluarga, akan ada momen di mana kamu berjalan melewati orang yang lebih tua. Seperti misalnya kakek, nenek, om, tante, ayah, ibu dan sebagainya. Dalam momen ini, sebaiknya kamu sedikit membungkukkan badan sebagai tanda permisi, agar kesannya lebih sopan.

3. Minta Izin Ketika Ingin Pakai Barang Anggota Keluarga

Dalam keluarga, meminjam adalah suatu hal yang biasa. Untuk hal ini, usahakan mengajarkan anak-anak untuk minta izin dulu sebelum memakai barang orang lain. Karena bisa jadi si pemilik tidak ingin barang tersebut dipakai siapapun karena merupakan kesayangannya. Sehingga takkan timbul perpecahan satu sama lain lagi.

4. Tidak Menggunakan Suara Keras

Ketika bertengkar dengan anggota keluarga, menggunakan suara yang keras bisa membuat siapapun tersinggung. Hal ini juga tak memecahkan masalah, malah semakin membuat emosi saja. Oleh karena itu penting untuk berpikir secara dingin dan berdiskusi. Daripada saling membentak satu sama lain.

Ada hanya contoh perilaku santun di keluarga yang sebaiknya Anda ajarkan kepada anak-anak. Supaya mereka paham bahwa di dunia ini mereka hidup berdampingan dengan orang lain, sehingga harus saling menghargai.

The post 4 Contoh Perilaku Santun di Keluarga, Wajib Diajarkan appeared first on Aldri Blog.

Volvo et DAF Trucks
Concurrence
Entente des camions en Espagne : l’avocat général Rantos apporte des précisions quant au champ d’application temporel de la directive sur l’indemnisation des victimes de pratiques anticoncurrentielles

Commission / Pologne
Principes du droit communautaire
N’ayant pas suspendu l’application des dispositions nationales relatives notamment aux compétences de la chambre disciplinaire de la Cour suprême, la Pologne est condamnée à payer à la Commission européenne une astreinte journalière d’un montant de 1 000 000 euros

Entrée en fonctions de deux nouveaux membres du Tribunal de l’Union européenne

PL Holdings
DGEN
Le droit de l’Union interdit la conclusion, par un État membre, d’une convention d’arbitrage de contenu identique à une clause d’arbitrage nulle figurant dans un traité bilatéral d’investissement entre États membres

Cavanagh J (unusually assisted by Brown J, who has extensive experience in cost orders) last week in Thomas & Ors v PGI Group Ltd [2021] EWHC 2776 (QB) refused to grant a ‘Capped Cost Order’ or CCO (these also exist for judicial review proceedings and in arbitration). This application for a CCO was reportedly the first made under CPR 3.19.

In the case, brought before Brexit date under Article 4 Brussels Ia, a group of Malawi claimants are suing tea company Lujeri’s English parent company PGI alleging complicity in exploitation and abuse, including sexual abuse.  Claimants allege the Defendant owed a duty of care to them on the basis that it promulgated relevant policies, standards and guidelines, that it exercised supervision and control over Lujeri, and/or that it held itself out as exercising such supervision and control. The Claimants further allege that the Defendant breached that duty of care and that they suffered loss and damage as a result.

English proceedings against Lujeri were dropped following claimants’ admission that they were unlikely to meet a jurisdiction challenge against same on the basis of Malawi being the natural forum for that claim [14]. The defendant does not resist A4 jurisdiction, acknowledges the UK is the natural forum for the claims against it, that there is no abuse of process (neither in my view have any place in A4 jurisdiction) and that the case is at least arguable.

Had the CCO been granted, it would have the effect of limiting the future costs recoverable by the Claimants, should they ultimately be successful, to £150,000 (or thereabouts). It would not impact the recoverable costs of the defendants if they are successful, although [25] they are unlikely to be able to recover any. As the judge notes [13] even if the core claim is successful, compensation will be far below parties’ legal costs in the case. The non-financial, ‘vindication’ [13] objectives are more important.

Despite defendants’ acknowledgment that a jurisdiction challenge is effectively impossible under A4 (A33-34 do not seem engaged), their arguments for a CCO [28 ff] are forum non via the backdoor:

Whilst not disputing that the Claimants are entitled to bring these proceedings against the Defendant in England, the Defendant submits that it is still open to the Claimants to bring proceedings in Malawi against Lujeri, their former, or, in some cases, their current, employer, and, indeed, against the Defendant. The Defendant submits that it would be more appropriate for the Claimants to bring their claims against Lujeri, in Malawi, especially as such claims would be advanced on the simple and straightforward basis of vicarious liability, rather than on the basis of a more complicated claim against the UK-domiciled parent company.

At 43 claimants make the obvious point that this is a ‘(lightly) disguised attempt to strike out these proceedings on the basis that they are an abuse of process, or that England is a forum non conveniens’.

At 72 the judge holds that claimants are right that it would not be appropriate, having regard to the CPR required principle of proportionality [‘the overriding objective [of the CCO, GAVC] of enabling the court to deal with cases justly and at proportionate cost’] to cap the costs at a figure that is less than the minimum costs that are required for them to litigate their claims effectively in the High Court. Costs in other words cannot be disproportionately incurred if they are below the amount that is required by the party to litigate its claims effectively, unless [74] parties’ costs are out of proportion to the potential benefits to the Claimant of the litigation’ – quod non in casu: [79]: ‘The sums that are likely to be recoverable, though small by English standards, are very significant for poor Malawian plantation workers, and they may indeed be life-changing. I accept the Claimants’ submission that in any event, the Claimants’ objectives in bringing these proceedings are not entirely, or even principally, about money.’

At 82-83 the resurrected forum non arguments feature again,  with the judge holding

In any event, in the present case, one of the parties, the Defendant, is domiciled in England. It is a matter of public importance in this country whether a company that is domiciled here is in breach of a duty of care to workers on plantations in Malawi, owned by a subsidiary company. CPR 44.3(5)(e) states that the extent to which a claim is in the public interest is a matter to be taken into account when considering proportionality.

That is an important consideration for future CCOs, outside the Brussels Ia context and indeed an argument that would feed into an A33-34 analysis, too.

At 91 ff the judge reinforces his findings on the basis of access to justice:

‘I think that it is highly significant, in this regard, that the imposition of a CCO would almost certainly have the effect of forcing the Claimants to abandon their claims…

this is not a case in which a wealthy Claimant is deliberately pursuing a low-value claim, at great expense, in order to harass the Defendant, or to cause as much unnecessary cost to the Defendant as possible. Rather, this is a case in which extremely poor Claimants are pursuing a relatively low-value claim for a number of legitimate reasons, only one of which is the prospect of damages.

This is an important finding, both under A4 Brussels Ia and beyond it, under residual English conflicts rules.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

1/2 Thomas & Ors v PGI [2021] EWHC 2776 (QB)
Important judgment for #bizhumanrights #csr litigation
Failed application for Capped Cost Order CCO
Judge holds ia that it would not be in the interest of justice to award corporate defendant CCO which would effectively halt… pic.twitter.com/ZAbXSJ6ea3

— Geert Van Calster (@GAVClaw) October 25, 2021

On 5 October 2021, Indonesia acceded to the Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents. It will enter into force for Indonesia on 4 June 2022.

Source : https://www.hcch.net/en/news-archive/details/?varevent=825

The Hague Special Commission on the practical operation of the Apostille Convention met from 5 to 8 October 2021. Its Conclusions & Recommendations are available at https://assets.hcch.net/docs/b7b20030-6229-459f-b26b-e9185bf6fffc.pdf

Extract (example) : « the PB is not appropriately placed to establish a digital certificate authority and reiterating the importance of technology neutrality and maintaining flexibility for all Contracting Parties, the SC recognised the good practice of using digital certificates with high standards, that are well-recognised and frequently used, and invited Contracting Parties to inform the PB about the certificate technology used to issue e-Apostilles. […] The SC recalled the fundamental principle that, irrespective of format, an Apostille validly issued by one Contracting Party in accordance with the Convention must be accepted by all other Contracting Parties for which the Convention is in force. In this spirit, it encouraged Contracting Parties to take active steps to ensure the acceptance of incoming e-Apostilles ».

« From 28 to 30 September 2021, the Working Group on Preventing and Addressing Illicit Practices in Intercountry Adoption met [to discuss] a Toolkit aimed at preventing and addressing illicit practices in intercountry adoptions made under the 1993 Adoption Convention ».

The Aide-mémoire of the Group is available https://assets.hcch.net/docs/43cf175b-1c27-4a90-8be7-7a87b8412665.pdf (Annex I)

Source : https://www.hcch.net/en/news-archive/details/?varevent=823

Okrazhna prokuratura - Varna
Espace de liberté, sécurité et justice
La Cour précise certaines dispositions de la directive relative au gel et à la confiscation des instruments et des produits du crime dans l’Union européenne