Flux européens

In Generali Italia & Ors v Pelagic Fisheries & Anor [2020] EWHC 1228 (Comm) the claimants-insurers commenced these proceedings seeking declarations that they are not liable to the Insureds. Pelagic had already commenced proceedings in Treviso, Italy on the basis of what it claims to be choice of court in favour of Italy. The first instance Italian court stayed the Treviso Proceedings (the insureds have appealed; the appeal is yet to be heard) pending a determination by the English court as to whether the Treviso Policies are subject to an exclusive English jurisdiction clause. The Stay order readers in relevant part:

‘the lis alibi pendens defence which has been raised requires that these proceedings are suspended in order to allow the High Court of London to rule on the exclusive English jurisdiction clause pursuant to art 31.2 of EU Reg 1215/2012. That since, in the light of what is established by the said provisions, it is irrelevant that the Italian Judicial Authority has been seised first, …. Indeed article 31 of the above mentioned regulation represents an exception to the operation of the ordinary rule of priority in matter of lis alibi pendens, in order to allow the judges chosen by the parties in contractual terms (cover notes) to be the first to rule on the validity of the clause itself (according to the law chosen by the parties). In the concerned case all the cover notes, in the special insurance conditions, contain the clause ‘English jurisdiction. Subject to English law and practice”, with consequent waiver to the general insurance conditions provided in Camogli Policy 1988 form”.’

Other parties are part of the proceedings, too – readers best refer to the facts of the case. They clarify that chunks of the proceedings bear resemblance to the kind of split stay scenario applied by the CJEU in C-406/92 The Tatry.

Foxton J refers to the good arguable case test viz Article 25 Brussels Ia of BNP Paribas v Anchorage, recently also further summarised by the Court of Appeal in Kaefer Aislamientos and further in Etihad Airways PJSC v Flöther.

The case essentially puts Article 31 BIa’s anti-torpedo mechanism to the test in related ways as the first instance judge and the Court of Appeal did in Ablynx. There is a dispute between the parties as to whether A31(2) obliges the English Court to stay proceedings unless and until there is a determination in the Treviso Proceedings that the Italian courts do not have jurisdiction. There are 3 core questions: i) Should the English Court proceed to determine whether there is an exclusive jurisdiction clause in favour of this Court, in circumstances in which Pelagic is contending in Italy that the Italian courts have jurisdiction, or should it await a ruling on jurisdiction in the Treviso Proceedings? ; ii) If it is appropriate to determine the issue, is there an English exclusive jurisdiction agreement in the Treviso Policies for the purposes of Article 25?; iii) Should the Court stay the remainder of the proceedings under Article 30?

At 65 counsel for the insureds take a similar position as Ms Lane did in Ablynx: he argues that the only issue which the High Court should consider is whether it is satisfied that there is a prima facie case that the Italian court has jurisdiction (which he says there is on the basis that the parties agreed that both the English and Italian courts would have jurisdiction) and that if it is so satisfied, it should stay the English proceedings, pending the outcome of Pelagic’s appeal in the Italian proceedings.

Foxton J however at 68 ff highlights the inadequate nature and limitations of A25(4), as also pointed out by the last para of recital 22 which accompanies it: in the face of conflicting choice of court provisions (typically, as a result of overlapping clauses in overlapping contractual relations between the parties), A25(4) loses its power and the more classic lis alibi pendens rules take over. At 70 he points to the ping-pong that threatens to ensue:

in circumstances in which the Italian court has stayed its proceedings to allow the English court to determine if it has exclusive jurisdiction, it would be particularly surprising if the English court was then bound to stay its proceedings pending a decision on jurisdiction by the Italian court. This approach, in which the dispute might become caught in the self-perpetuating politeness of an Alphonse and Gaston cartoon, is not consistent with enhancing “the effectiveness of exclusive choice-of-court agreements” and avoiding “abusive litigation tactics” which Article 31(2) is intended to achieve. It does not matter for these purposes that the decision of the Italian court granting such a stay is presently under appeal.

He holds therefore at 79 that his task is essentially to review whether there is a good arguable case that the Treviso Policies (the ones subject of the English litigation, GAVC) are subject to exclusive jurisdiction agreements in favour of the English court which satisfy the requirements of A25 BIa. At 95 he finds there is such case. At 113 ff he holds obiter he would have stayed the remainder of the claims under A30, had he held in favour of a stay under A31(2).

Fun with conflict of laws.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.7, Heading 2.2.9.5.

 

Jurisdiction, Brussels IA. Choice of court A25, lis alibi pendens A29/30. https://t.co/F68mMIQ1jC

— Geert Van Calster (@GAVClaw) May 18, 2020

DIFC Courts, the Dubai International Financial Centre’s Courts, is one of the new generation of international commercial courts. Its rulings piggyback unto recognition and enforcement treaties which the UAE concludes with third countries (India being a recent example).

In GFH Capital Ltd v Haigh & Ors [2020] EWHC 1269 (Comm) Henshaw J first of all notes that there is no such treaty between the UK and the UAE hence he considers recognition of the July 2018 DIFC judgment by Sir Jeremy Cooke under common law principles. Helpfully, these principles have been summarised in a January 2013 Memorandum of Guidance as to Enforcement between the DIFC Courts and the Commercial Court, Queen’s Bench Division, England and Wales. Under discussion in the case is mostly the condition that the foreign court be a court of competent jurisdiction; that the foreign judgment be not obtained fraudulently; and that its recognition be not incompatible with English ordre public.

The judgment is an extensive treatment of the relevant principles and therefore suited to comparative materials.

Geert.

 

Enforcement of @DIFCCourts judgment
Application of common law principles (no releant Treaty with the UAE). https://t.co/VHgkTw7DHG

— Geert Van Calster (@GAVClaw) May 20, 2020

Nord Stream 2 / Parlement et Conseil
Énergie
Le Tribunal de l’UE déclare irrecevables les recours introduits par Nord Stream AG et Nord Stream 2 AG contre la directive 2019/692 qui étend certaines règles du marché intérieur du gaz naturel aux gazoducs en provenance de pays tiers

AB v EM [2020] EWHC 549 (Fam) concerns for a large part the application of Brussels IIa’s traditional jurisdictional rules (habitual residence etc.) and I shall not comment on those.

Of interest to the blog are, first, at 37 ff the application of the Regulation’s forum non conveniens rules: in that respect, compare with my posts on V v M and W v L. Further, the question whether the order made by the Sunnite Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating and approving an agreement between the parties to these proceedings regarding custody and access with respect to M, capable of recognition in the UK and, if so, what impact should this have on the UK courts’ welfare determination?  The 2019 agreement established that the father would have custody of M and would reside with M in either the United Kingdom, Egypt or some other location of his choosing.

MacDonald J at 71-73, having referred to the spirit of comity, does not hold on what at 73 are briefly refered to as ‘wider criticisms’ of the February 2019 Order, or the allegations of durress in the coming to be of that order. He notes more as a matter of fact that circumstances in the child’s welfare have changed since the Order, and that the father did not at any rate honour elements of the agreement which the Order had confirmed.

No grand statement of principle, therefore. Rather, a measured practical approach.

Geert.

Brussels IIa.
Jurisdiction. Wrongful removal.
Recognition of order made by Sunnite #Sharia Court of Beirut on 6 February 2019 in proceedings commenced by the mother in Lebanon in November 2018, incorporating agreement between parties. https://t.co/72bfIuq3VH

— Geert Van Calster (@GAVClaw) March 16, 2020

Thank you Michael Douglas for alerting me to Bao v Qu; Tian (No 2) [2020] NSWSC 588 at the Supreme Court of New South Wales. The judgment does not require an extensive post. I report it because it is a solid application of the recognition and enforcement principles of foreign judgments under the common law of Australia. Hence good material for the comparative conflicts folder.

Geert.

 

The Court of Justice delivered last week (14 May 2020) its judgment in case C-17/19 (Bouygues travaux publics, Elco construct Bucarest, Welbond armatures), which is about the A 1 certificate (Article 19(2) of Regulation No 987/2009 – see below):

Question: “‘Must [Article] 11 of Regulation [No 574/72] and [Article] 19 of Regulation [No 987/2009] be interpreted as meaning that an E 101 Certificate issued by the institution designated by the competent authority of a Member State, under […] Regulation No 1408/71 … or an A 1 Certificate issued under Article 13(1) of Regulation No 883/2004 … is binding on the courts of the Member State in which the work is carried out when it comes to determining the legislation applicable, not only as regards the social security system but also as regards employment law, where such legislation defines the obligations of employers and the rights of employees, so that, having heard the arguments of the parties, those courts can disregard the abovementioned certificates only if, on the basis of an assessment of specific evidence, collected in the course of the judicial investigation, which supports the conclusion that the certificates were fraudulently obtained or relied on and which the issuing institution failed to take into account within a reasonable time, the said courts make a finding of fraud, comprised, as regards its objective element, by the failure to meet the conditions laid down in either of the aforementioned provisions of Regulations [No 574/72] and [No 987/2009] and, as regards its subjective element, by the intention of the accused person to evade or circumvent the conditions for the issue of that certificate, in order to obtain the advantages attaching thereto?’”

Reminder of some key provisions:

“Regulation No 883/2004
8 Regulation No 1408/71 was repealed and replaced with effect from 1 May 2010 by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems
[…]
10 Article 13(2)(a) of Regulation No 1408/71 was replaced, in essence, by Article 11(3)(a) of Regulation No 883/2004, which provides that ‘subject to Articles 12 to 16 … a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State’.
11 Article 14(1)(a) of Regulation No 1408/71 was replaced, in essence, by Article 12(1) of Regulation No 883/2004, which provides that ‘a person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted by that employer to another Member State to perform work on that employer’s behalf shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of such work does not exceed [24] months and that that person is not sent to replace another posted person’.
12 Article 14(2)(b) of Regulation No 1408/71 was replaced, in essence, by Article 13(1) of Regulation No 883/2004, which provides:
‘A person who normally pursues an activity as an employed person in two or more Member States shall be subject to:
(a) the legislation of the Member State of residence if he/she pursues a substantial part of his/her activity in the Member State of residence; or
(b) if he/she does not pursue a substantial part of his/her activity in the Member State of residence…’
[…]

Regulation No 987/2009

15 Regulation No 574/72 was repealed and replaced, with effect from 1 May 2010, by Regulation No 987/2009.
16 Article 5(1) of Regulation No 987/2009 provides:
‘Documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of the basic Regulation and of the implementing Regulation, and supporting evidence on the basis of which the documents have been issued, shall be accepted by the institutions of the other Member States for as long as they have not been withdrawn or declared to be invalid by the Member State in which they were issued.’
17 Article 19(2) of Regulation No 987/2009, which partly replaced Article 11(1)(a) and Article 12a(2)(a) and (4)(a) of Regulation No 574/72, provides that ‘at the request of the person concerned or of the employer, the competent institution of the Member State whose legislation is applicable pursuant to Title II of [Regulation No 883/2004] shall provide an attestation that such legislation is applicable and indicate, where appropriate, until what date and under what conditions’. That attestation is issued by means of a certificate (‘the A 1 Certificate’)”.

Response from the Court of Justice: “Article 11(1)(a), Article 12a(2)(a) and (4)(a) of Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community […] and Article 19(2) of Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems, must be interpreted as meaning that an E 101 Certificate, issued by the competent institution of a Member State, under [Regulation (EEC) No 1408/71] to workers employed in the territory of another Member State, and an A 1 Certificate, issued by that institution, under Article 12(1) or Article 13(1) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems […] to such workers, are binding on the courts or tribunals of the latter Member State solely in the area of social security”.

Source: here

Many thanks Russell Hopkins for alerting me to Stichting Human Rights for Eritreans v the European Union, demanding a halt to EU aid worth 80 million EUR being sent to Eritrea. The Foundation Human Rights for Eritreans argues the aid project financed by the EU aid relies on forced labour. Claimants have a portal with both the Dutch and English versions of the suit.

Of note to the blog is the jurisdictional section of the suit, p.32 ff. Claimants first of all put forward that the CJEU’s Plaumann criteria (which I discussed ia here in the context of environmental law) effectively are a denial of justice and that Article 6 ECHR requires the Dutch courts to grant such access in the CJEU’s stead. An interesting argument.

Note subsequently at 13.9 ff where Brussels Ia is discussed, the suggestion that given the large diaspora of Eritreans in The Netherlands, locus damni (actual or potential) lies there. This is in my view not an argument easily made under Article 7(2) Brussels Ia given CJEU authority.

Geert.

 

Class action based on NL WAMCA act
Jurisdiction discussed S13 p32 ff which suggests A7(2) BIA tort jurisdiction (with the Stichting suggested as suffering damages in NL); alternatively A6 #ECHR jurisdiction, with reference to the hardship in suing at the CJEU following Plaumann. https://t.co/9YMAjPS0wo

— Geert Van Calster (@GAVClaw) May 14, 2020

I earlier reviewed Szpunar AG’s Opinion in C‑641/18 Rina, on which the Court held on 7 May, confirming the AG’s view. Yannick Morath has extensive analysis here and I am happy to refer. Yannick expresses concern about the extent of legal discretion which agencies in various instances might possess and the impact this would have on the issue being civil and commercial or not. This is an issue of general interest to privatisation and I suspect the CJEU might have to leave it to national courts to ascertain when the room for manoeuvre for such agencies becomes soo wide, that one has to argue that the binding impact of their decisions emanates from the agencies’ decisions, rather than the foundation of the binding effect of their decisions in public law.

I was struck by the reference the CJEU made at 50 ff to the exception for the exercise of official authority, within the meaning of Article 51 TFEU.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

With Kathleen Garnett I have co-authored a paper where we scope the ‘essential uses’ approach to product regulation, particularly in chemicals.

Could calls for the stricter regulation of one particular type of chemical herald the introduction of a new (or not) ‘principle’ in international and EU regulatory law, namely that of ‘essential use’ as a precondition for market authorisation?

The concept of ‘essential use’ or ‘non-essential use’ has been referenced in a number of EU policy papers. Kathleen and I focus on Per- and polyfluoroalkyl substances (‘PFAS’)  in chemicals legislation and firstly, map the concept of ‘essential use’ in international and EU law; further, discuss its limited application in the case-law of the European Court of Justice; and, before we conclude, carry out a preliminary investigation as to (if it does not currently exist in EU law), whether it might be so included de lege ferenda.

Happy reading. We are submitting to journal.

Geert, Kathleen.

Edoardo Rossi has recently published a book on “La sharing economy nel diritto internazionale privato europeo” (Giappichelli Editore (Torino, Italy), November 2019, ISBN 9788892131880, available here). Edoardo Rossi has kindly accepted to share with us today not only the presentation and summary of contents of his book but also an extract. The latter focuses on prorogation of jurisdiction (jurisdiction clauses) in electronic contracts, with a particular focus on ascertaining the effectiveness of consent in this situation and with a view to the difficulties now raised by the ‘sharing economy’ in this respect.

__ Presentation of the book: “In the current economic and social context new and controversial sharing practices, offering anyone the opportunity to search for or make available goods or services on the market regardless of the professional or amateur nature of the persons involved, have emerged. These practices, very heterogeneous and concerning the most different areas of daily life, such as mobility, housing, business activities, communications, work, culture, communication, education and finance, have been linked to the notion of “sharing economy”, which brings them together by virtue of temporary access to goods or services, facilitated by the large-scale intervention of digital platforms, through which requests and offers are coordinated online in order to share goods or services.
The legitimacy of schemes linked to these new economic models has been challenged in a number of aspects, including low quality of services, safety of consumers, authorisation and licensing, taxes and compliance with competition rules. The inadequacy of the existing rules to deal with the provision of services through the sharing economy models has consequently emerged.
In spite of these critical profiles, the legal relations established through sharing economy platforms are constantly increasing around the world, implying the emergence of elements of transnationality, from which derives the recourse to the rules of private international law, in order to determine the applicable law and the judge competent to rule on any disputes.
The monograph thus attempts to analyse some of the most important private international law issues, such as the inadequacy of the party autonomy in regulating the phenomenon, especially with reference to the general terms and conditions of contract unilaterally drawn up by platform operators, which state that the latter is totally unrelated to the legal relations between users, often in conflict with the minimum level of consumer protection guaranteed by EU law and by the national legislations. Critical profiles have also been identified in the online conclusion of contracts that bind the parties involved in sharing economy legal relations, in ascertaining the effectiveness of consent on the choice of forum and choice of law clauses, in cases of potential related actions and in the location of the “domicile” of the platform operators”.

__ Extract: you can find it here , starting p. 4 of the pdf

__ Summary of contents: it may be found here

Presidenza del Consiglio dei Ministri
Espace de liberté, sécurité et justice
Selon l’avocat général Bobek, les États membres doivent accorder une indemnisation à toute victime d’une infraction intentionnelle violente, quelle que soit sa résidence

A quick note on MB and Services Limited and Golovina v United Company Rusal Plc [2020] JRC034 in which Birt C rejected an application for a stay on forum non conveniens grounds. He applied Spiliada of course,  with at 139 the reasons for holding on balance that there is a real risk that claimants will not obtain justice in Russia. Note at 7 the specific weight attached to the intimidation of claimants’ attorney in Russia.

Geert.

 

Application for stay on forum non grounds. Rejected, applying Spiliada principles.
Real risk claimants will not obtain justice in Russia, particularly following attempts at bribing claimants' lawyer. https://t.co/kgEuftBLvW

— Geert Van Calster (@GAVClaw) April 15, 2020

Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság
Espace de liberté, sécurité et justice
Le placement des demandeurs d’asile ou des ressortissants de pays tiers faisant l’objet d’une décision de retour dans la zone de transit de Röszke, à la frontière serbo-hongroise, doit être qualifié de « rétention »

Volotea / Commission
Aide d'État
Le Tribunal rejette les recours contre la décision de la Commission déclarant illégale l’aide de l’Italie en faveur de plusieurs compagnies aériennes desservant la Sardaigne

The JURI Committee of the European Parliament has now released its draft report of 27 April 2020 (Draft report with recommendations to the Commission on a Civil liability regime for artificial intelligence, PE650.556v01-00). One notes Article 9 within the suggested Proposal for a regulation on liability for the operation of Artificial Intelligence-systems:

“National provisions on compensation and limitation period

Civil liability claims brought in accordance with Article 8(1) shall be subject, in relation to limitation periods as well as the amounts and the extent of compensation, to the laws of the Member State in which the harm or damage occurred”.

The Court of Justice delivered last week (7 May 2020) its judgment in Case C‑641/18 (LG and Others v Rina SpA, Ente Registro Italiano Navale), which is about Article 1(1) of Brussels I.

Context and question: “LG and Others — relatives of the victims and survivors of the sinking of the Al Salam Boccaccio’98 vessel in the Red Sea on 2 and 3 February 2006, in which more than 1 000 people lost their lives — brought an action before the Tribunale di Genova (District Court, Genoa, Italy) against the Rina companies — ship classification and certification societies — whose seat is in Genoa.

15 LG and Others claim compensation for the pecuniary and non-pecuniary losses stemming from the Rina companies’ civil liability, arguing that the classification and certification operations for the Al Salam Boccaccio’98 vessel, carried out by the Rina companies under a contract concluded with the Republic of Panama, for the purposes of obtaining that State’s flag for that vessel, were the cause of that sinking.

16 The Rina companies contend that the referring court lacks jurisdiction, relying on the international-law principle of immunity from jurisdiction of foreign States. In particular, according to those companies, the classification and certification operations which they conducted were carried out upon delegation from the Republic of Panama and, therefore, are a manifestation of the sovereign powers of the delegating State.

17 According to LG and Others, by contrast, given that the Rina companies have their seat in Italy and the dispute at issue in the main proceedings is civil in nature, within the meaning of Article 1 of Regulation No 44/2001, the Italian courts have jurisdiction under Article 2(1) of that regulation. In addition, LG and Others submit that the plea of immunity from jurisdiction, relied on by the Rina companies, does not cover activities that are governed by non-discretionary technical rules which are, in any event, unrelated to the political decisions and prerogatives of a State.

18 The referring court raises the question of the jurisdiction of the Italian courts in so far as, while it is common ground that the Rina companies have their seat in Italy, it is claimed that they acted upon delegation from the Republic of Panama”.

Response: “Article 1(1) of Council Regulation (EC) No 44/2001 […] must be interpreted as meaning that an action for damages, brought against private-law corporations engaged in the classification and certification of ships on behalf of and upon delegation from a third State, falls within the concept of ‘civil and commercial matters’, within the meaning of that provision, and, therefore, within the scope of that regulation, provided that that classification and certification activity is not exercised under public powers, within the meaning of EU law, which it is for the referring court to determine. The principle of customary international law concerning immunity from jurisdiction does not preclude the national court seised from exercising the jurisdiction provided for by that regulation in a dispute relating to such an action, where that court finds that such corporations have not had recourse to public powers within the meaning of international law”.

Key points of the reasoning: “the mere fact that certain powers are delegated by an act of a public authority does not imply that those powers are exercised iure imperii” (at 39), “the fact that certain activities have a public purpose does not, in itself, constitute sufficient evidence to classify them as being carried out iure imperii, in so far as they do not entail the exercise of any powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals” (at 41) and “the fact that, having regard to their objective, some acts are carried out in the interest of a State does not, in itself, result in the operations at issue in the main proceedings being carried out in the exercise of public powers” (at 42).

Source: here

The Court of Justice delivered last week (7 May 2020) its judgment in joined cases C‑267/19 and C‑323/19 (Parking d.o.o. v Sawal d.o.o. (C‑267/19), and Interplastics s. r. o. v Letifico d.o.o. (C‑323/19)). The judgment is available in all EU official languages (save Irish), albeit not in English. Here is the French version :

Question : « Il convient […] de comprendre que, par ses deux questions, qu’il y a lieu d’examiner ensemble, la juridiction de renvoi demande, en substance, si, dans l’hypothèse où les décisions qu’elle rendra relèvent du champ d’application du règlement no 1215/2012, l’article 18 TFUE et l’article 47 de la Charte doivent être interprétés en ce sens qu’ils s’opposent à une réglementation nationale habilitant les notaires, agissant dans le cadre des compétences qui leur sont dévolues dans les procédures d’exécution forcée sur le fondement d’un document faisant foi, à rendre des ordonnances d’exécution qui, ainsi qu’il ressort de l’arrêt du 9 mars 2017, Pula Parking  (C‑551/15, EU:C:2017:193), ne peuvent pas être reconnues et exécutées dans un autre État membre ».

Réponse : « L’article 18 TFUE et l’article 47 de la charte des droits fondamentaux de l’Union européenne doivent être interprétés en ce sens qu’ils ne s’opposent pas à une réglementation nationale habilitant les notaires, agissant dans le cadre des compétences qui leur sont dévolues dans les procédures d’exécution forcée sur le fondement d’un document faisant foi, à rendre des ordonnances d’exécution qui, ainsi qu’il ressort de l’arrêt du 9 mars 2017, Pula Parking (C‑551/15, EU:C:2017:193), ne peuvent pas être reconnues et exécutées dans un autre État membre ».

Source : here

I reported earlier on complex enforcement issues concerning SAS Institute v World Programming. In [2020] EWCA Civ 599 SAS Institute Inc v World Programming Ltd Flaux J gives an overview of the various proceedings at 4:

The dispute between the parties has a long history. It includes an action brought by SAS against WPL in this country in which SAS’s claims were dismissed; a decision by WPL, following an unsuccessful challenge on forum non conveniens grounds, to submit to the jurisdiction of the North Carolina court and to fight the action there on the merits; a judgment in favour of SAS from the North Carolina court for some US $79 million; an attempt by SAS to enforce the North Carolina judgment in this jurisdiction which failed on the grounds that enforcement here would be (a) an abuse of process, (b) contrary to public policy and (c) prohibited by section 5 of the Protection of Trading Interests Act 1980 (“the PTIA”); and a judgment from the English court in favour of WPL for over US $5.4 million, which SAS has chosen to ignore.’

A good case to use therefore at the start of a conflicts course to show students the spaghetti bowl of litigation that may occur in civil litigation. There are in essence English liability proceedings, decided in the end following referral to the CJEU (Case C-406/10); North Carolina liability proceedings, in which WPL submitted to jurisdiction after an earlier win on forum non grounds was reversed on appeal and the NC courts came to the same conclusions as the English ones despite a finding they were not (clearly) under an obligation to apply EU law; next, an SAS enforcement attempt in England which failed (with permission to appeal refused): my earlier post reviews it; next, enforcement proceedings of the NC judgment in California. That CAL procedure includes an assignment order and WPL sought an anti-suit injunction to restrain SAS from seeking assignment orders as regards “customers, licensees, bank accounts, financial information, receivables and dealings in England”: it was not given the injunction for there was at the time no CAL assignment order pending which could be covered by anti-suit. Currently, it seems, there is, and it is an anti-suit against these new assignment orders which is the object of the current proceedings.

At 59 ff follows a discussion of the situs of a debt; at 64 ff the same for jurisdiction re enforcement judgments, holding at 72

Applying these internationally recognised principles to the present case, the North Carolina and California courts have personal jurisdiction over WPL but do not have subject matter jurisdiction over debts owed to WPL which are situated in England. That is so notwithstanding that the losses for which the North Carolina court has given judgment were incurred by SAS in the United States. Nevertheless the effect of the proposed Assignment Order would be to require WPL to assign debts situated in England to SAS which would at least purport to discharge its customers from any obligation owed to WPL, while the effect of the proposed Turnover Order would be to require WPL to give instructions to its banks in England which would discharge the debts situated in England currently owed by the banks to WPL. In substance, therefore, the proposed orders are exorbitant in that they affect property situated in this country over which the California court does not have subject matter jurisdiction, thereby infringing the sovereignty of the United Kingdom.

Which is later confirmed at 83. Consequently the earlier order is overturned: at 89: ‘it follows also that the judge’s conclusion that the Assignment and Turnover Orders were not “markedly exorbitant” was based upon a mistaken premise.’

The anti-suit and anti-enforcement applications are dealt with in particular with reference to comity, and largely granted with some collateral notices of intention by SAS not to seek a particular kind of enforcement.

Someone somewhere must have made partner on this litigation.

Geert.

 

 

The extensive ruling by Foster J in Roberts (a minor) v Soldiers, Sailors, Airmen and Families Association & Ors [2020] EWHC 994 (QB) is clearly related to Soole J’s 2019 ruling which I reviewed here. Yet exactly how is not clear to me. No reference at all is made to the 2019 ruling (there is reference to an earlier Yoxall M 2018 ruling) in current judgment. Current ruling treats partially related issues of limitation and applicable law, Rome II is not engaged ratione temporis. The English rules’ general lex causae provision (pointing to locus delicti commissi), summarised at 112-113, Foster J finds, should not be displaced with a ‘substantially more appropriate’ rule in the circumstances. However she does find that the implications of the German statute of limitation should be set aside on ordre public grounds, for they would otherwise cause ‘undue hardship’.

Elijah Granet has extensive review here and I am happy to refer.

Geert.

 

 

I had already reported in March on the first application of the CJEU C-18/18 Eva Glawischnig-Piesczek v Facebook ruling in an update to my post on the latter. I thought I’ld add a separate post on the ruling for it, well, deserves it: the court held that orders based on Austrian copyright are limited to Austria (given copyright’s territorial limitations), but if they are based on personal rights, the claimant has to specify the requested territorial reach (so potentially global).

IPKat have further analysis here. As one or two of us discussed at the time of the CJEU ruling: the infringement of personality rights angle is an important one.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2, Heading 2.2.8.2.5.