Yesterday (28 September 2020), the United Kingdom “deposited its instrument of accession to the HCCH Convention of 30 June 2005 on Choice of Court Agreements […] and its instrument of ratification to the HCCH Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance”. The United Kingdom is currently bound by these conventions “by virtue of the approval of the European Union. These new instruments of accession and ratification ensure continuity in the application of these Conventions after the conclusion of the transition period following the withdrawal of the United Kingdom from the EU. Both Conventions will continue to be applicable to and in the United Kingdom until 31 December 2020, in accordance with the Withdrawal Agreement. The 2005 Choice of Court Convention and 2007 Child Support Convention will then enter into force for the United Kingdom on 1 January 2021”.
Source: here
The International Commercial Chamber of the Court of Appeal of Paris (France) delivered a few days ago (15 September 2020) a decision (RG 19/09518) on abrupt termination of established commercial relationships.
The summary: “In this liability case based on the abrupt termination of established commercial relationships, the ICCP-CA found admissible the action brought against the French subsidiary of the Asus group, alongside its Singaporean subsidiary, which had signed a partnership agreement with Sodexpo for the distribution of ASUS branded products in the French overseas departments and territories, in view of its interference in the establishment, execution and development of the said partnership, which created the appearance of a legitimate belief that the two Asus companies were partners in the commercial relationship (§§ 17 – 26).
The ICCP-CA found the French and Singaporean subsidiaries of the Asus group liable of the abrupt termination of the commercial relationship. It ruled that the relationship was well established and that it had lasted for 25 months, among others in view of the development of the partnership between 2014 and 2016 and the granting of an exclusivity right at the end of 2016, suggesting a continuity of business flow for 2017 (§§ 30-37). The ICCP-CA held that the abruptness of the termination was characterized by the failure to give sufficient notice. It considered that in view of the 25-month duration of the commercial relationship, the constantly growing business volume (representing 40% of Sodexpo’s sales in 2016), the brand’s reputation and positioning in the global market, as well as the loss of a market that Sodexpo contributed to create in the French overseas departments and territories and the difficulty for the company to develop new business, the notification of termination should have been given 6 months in advance, rather than 7 days.
The ICCP-CA has set the compensation for the abruptness of the termination on the basis of the loss of gross margin on the discounts granted by the Asus companies within the framework of their partnership with Sodexpo, specifying that the loss could not be calculated by reference to the margin earned by Sodexpo on its sales with wholesalers, third parties to the relationship, but only on the loss of the advantage resulting from the partnership with Asus (§§ 46-51). The ICCP-CA held that the abruptness of the termination also gave rise to a distinct harm affecting the image and commercial credibility of Sodexpo, taking into account the reputation of the Asus brand and the development of its distribution in the French overseas departments and territories.
The ICCP-CA furthermore rejected Sodexpo’s claim for compensation for the misappropriation of know-how in the absence of any proof establishing both wrongful acts committed by the Asus companies and a distinct loss resulting from the abruptness of the termination (§§ 54). It also rejected Sodexpo’s claim for reimbursement of unsold stock because of the lack of proof of an impossibility of selling it (§§ 57)”.
The decision is attached to this post.
15 sept 2020 CCIP- CA RG 1909518DownloadThe Explanatory Report on the HCCH Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has been approved yesterday. You can find it attached .
HCCH Judgments Convention – Explanatory ReportDownloadThe Court of Justice delivered today its judgment in case C‑540/19 (WV v Landkreis Harburg) which is about Article 3 (b) of the Maintenance Regulation. The decision should have a clear practical impact: « A public body which seeks to recover, by way of an action for recovery, sums paid in place of maintenance to a maintenance creditor, and to which the claims of that maintenance creditor against the maintenance debtor have been transferred by way of subrogation, may validly invoke the jurisdiction of the court for the place where the creditor is habitually resident, as provided in Article 3(b) of Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations”.
AG Saugmandsgaard Øe delivered last week (10 September 2020) his opinion in case C‑59/19 (Wikingerhof GmbH & Co. KG contre Booking.com BV), which is about Brussels I bis. The opinion is currently available in selected EU official languages only (such as German and Spanish). It is not available in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):
“L’article 7, point 2, du règlement (UE) no 1215/2012 du Parlement européen et du Conseil, du 12 décembre 2012, concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale doit être interprété en ce sens qu’une action en responsabilité civile fondée sur la violation des règles du droit de la concurrence relève de la « matière délictuelle ou quasi délictuelle », au sens de cette disposition, y compris lorsque le demandeur et le défendeur sont parties à un contrat et que les prétendus agissements anticoncurrentiels que le premier reproche au second se matérialisent dans leur relation contractuelle ».
Source : here
I reported earlier on the jurisdictional issues in BNP Paribas SA v Trattamento Rifiuti Metropolitani SPA [2020] EWHC 2436 (Comm) . In current judgment the issue of interest to the blog is the possibility of res judicata /issue estoppel on the substance of the claim as a result of arguments made in the jurisdictional challenge.
The issue is an important one given the English (potentially other States’) courts’ inclusion of a ‘serious issue to be tried’ test in which the judge has to decide to ‘much the better of the argument’ standard at the jurisdictional gateway level. While aimed at determining jurisdiction, this inevitably engages with some discussion on the merits.
Cockerill J is justifiably cautious in accepting much estoppel, given the clear separation between jurisdictional and substantial discussions. I do feel she might have pointed out the relevance of the case being heard under Brussels Ia rules as opposed to residual English rules. Under the former, a certain amount of merits engagement may be required for some jurisdictional gateways as discussed repeatedly on the blog (and in the jurisdictional rulings there was clearly a lot of engagement with the facts, to establish Article 25 consent for choice of court). But there can certainly not be a ‘serious issue to be tried’ condition for the substance of the case, in the jurisdictional gateways of BIa (summary dismissal proceedings are an entirely different matter).
Geert.
Discussion on res judicate /issue estoppel and abuse of process in relation to earlier judgments upholding jurisdiction of the English courts – which I discuss here https://t.co/mn3rGYTttG
— Geert Van Calster (@GAVClaw) September 11, 2020
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