Flux européens

Advocate-General Szpunar in his Opinion in C-73/19 Belgische Staat v Movic BV et al refers in footnote to the comment made by Yours Truly (much humbled) on p.38 of the Handbook, that the seminal Eurocontrol and Steenbergen judgments on the concept of ‘civil and commercial’ in the Brussels regime, each posit dual criteria for the concept but only ever have one of their two legs applied. The Opinion in general testifies to the complex picture that emerges in case-law on the issue.

The issue is a knock-out point under Brussels Ia and the majority of EU private international law instruments. If the case is not civil and commercial, European PIL does not apply and residual national law takes over. Despite or perhaps because of this core relevance, the debate on the concept is far from settled. I reported on it as recently as a few weeks back (Øe AG in C-189/19 Supreme Site; and a little before that C-421/18 Dinant Bar v maître JN,) and I expressed a need for serious chewing over following different strands of focus among the CJEU’s chambers (my post on C-579/17 Buak).

The case at issue concerns enforcement of Belgium’s unfair trading act, not as in C‑167/00 Henkel by a consumer group but rather by the public authorities of the Member State.

Movic BV of The Netherlands and the others defendants practices ticket touting: resale of tickets for leisure events. Belgium in recent years has been cracking down on the phenomenon and in conflict terms, has expressed an eagerness to qualify big chunks of e-commerce laws as lois de police. One assumes this explains the reluctance of the defendants to be hauled in front of a Belgian judge.

At 12: what the Belgian authorities are seeking, is

first, findings of infringement in respect of conduct constituting, inter alia, unfair commercial practices, secondly, an order for the cessation of such infringement, thirdly, an order for publicity measures to be taken at the expense of the defendants; fourthly, the imposition of a penalty payment in a fixed sum, due in respect of each and every infringement which may be found to have taken place after service of the judgment, and fifthly, permission for the fact of such infringement to be certified simply by means of a report drawn up by a sworn official of one of the authorities in question.

At 16: arguments against the issue being of a civil and commercial nature, are

first, unlike any other person, the Belgian authorities are not required to demonstrate that they have an interest of their own in bringing proceedings of the kind illustrated by the main proceedings, secondly, their powers of investigation are not available to legal persons governed by private law, and thirdly, they also have enforcement powers which are not available to such persons.

As for the issue of lack of requirement of showing interest:

The first authority signalled is C‑551/15 Pula Parking: acting in the public interest does not equate acting in the exercise of State authority. Per the same case and per Fahnenbrock, and Kuhn, neither, the AG points out, does origin of authority in Statute, equate acta iure imperii. The fact that a power was introduced by a law is not, in itself, decisive in order to conclude that the State acted in the exercise of State authority (at 32). Neither does it follow from C-271/00 Baten that that the mere fact of exercising a power which the legislature has specifically conferred on a public authority automatically involves the exercise of public powers (at 34).

The AG then more specifically discusses the issue of lack of requirement to show interest to establish standing. Here there are plenty of similarities with the consumer organisations at issue in Henkel (37 ff). The exemption does not mean that the entity enjoys a prerogative under which it has powers altering the civil or commercial nature of its legal relationship with the private law entities, or the subject matter of the proceedings in which a cessation action is brought.  Similarly, it has no such powers as regards the procedural framework within which the proceedings arising out of those relationships are heard, which is identical whatever the status of the parties to the proceedings may be.

Further, with respect to the powers of investigation:  here the AG reads C‑49/12 Sunico as meaning that to exclude proceedings from the scope of ‘civil and commercial matters’, (at 53)

it is not sufficient to identify national provisions which, in abstracto, authorise a public authority to gather evidence through the use of its public powers and to use such evidence in legal proceedings. Equally, it is not sufficient to find that that evidence has in fact been used in the proceedings. In order to exclude the proceedings from the scope of that expression, it must also be determined, in concreto, whether, by virtue of having used that evidence, the public authority is not in the same position as a person governed by private law in analogous proceedings.

(In the case at issue there are no such indications). This reading of Sunico makes the exemption exercise very much a factual one – which is not in itself unusual in the context of the case-law on ‘civil and commercial’. One hopes the Court itself will give clear guidance on how Sunico must be read.

The AG also zooms in on the request for penalty payments. Here, the core reference is C‑406/09 Realchemie. At 72 (after having analysed the issue): a procedure in which such payment is sought, falls within the scope of ‘civil and commercial matters’ where,

‘first, the purpose of the penalty payment is to ensure the effectiveness of the judicial decision given in the proceedings, which fall within the scope of that expression, and secondly, the penalty payment is a normal measure of civil procedure which is also available to private individuals, or which is imposed without exercising special powers that go beyond those arising from the rules of general law applicable to relationships between private individuals.’

(With both these boxes ticked in casu). This I believe is most sound.

Within the same context, the last argument refers to the need or not to instruct a bailiff to certify the existence (and frequency) of continued infringement: the relevant Belgian authorities can suffice with an oath by a civil servant. This is in fact not a point signalled by the referring court however the Belgian Government at hearing seemingly sought insurance cover as it were, effectively seeking sanction of its use of a civil servant statement in lieu of what ordinary parties would have to do, which is to instruct a bailiff. This, the AG suggest (at 75), does amount to exercise of public authority, but only then for that part of the claim (the penalty payment( against the Dutch defendants): weapons which an ordinary person could not avail themselves of (I would refer to C-271/00 Steenbergen here).

 

All in all the case illustrates the relatively narrow room for abstract pondering of the issue of ‘civil and commercial’. The Opinion is highly factual, and admirably on point viz the extensive CJEU authority. The need for highly factual considerations sits uneasily with the Regulation’s expressed DNA of predictability. However this squares with the CJEU case-law on same. And it bodes interestingly when we will start applying the corresponding Hague Judgments Convention provisions…

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2, Heading 2.2.

Continuité du service public européen de la justice : la Cour de justice de l’Union européenne prévoit de reprendre les audiences de plaidoiries à partir du 25 mai 2020

In Strategic Technologies v Procurement Bureau of the Republic of China Ministry of National Defence [2020] EWHC 362 (QB), Carr J i.a. set aside a November 2016 order by Supperstone J granting a certificate under Article 53 Brussels Ia.

Justice Carr adopts the routine approach of former English case-law calling the Brussels regime the ‘Judgments Regulation’. The certificate was issued  in relation to a default judgment issued in 2009 by Claimant, Strategic Technologies against Defendant, the Ministry of National Defence (“the MND”) of the Republic of China (“ROC”), also and better known as Taiwan.

Carr J is right when at 134 ff she rejects the route taken by claimants (and adopted by Supperstone J) that the principle in CJEU C-192/92 Owens Bank v Bracco (that the Brussels Convention does not apply to proceedings for the enforcement of judgments given in civil and commercial matters in non-contracting states) has no application where, as here, the judgment of a non-contracting state (ie Cayman) has become a judgment of a Member State (ie the United Kingdom).

She refers to the clear language in formerly A25 Brussels Convention, now Article 2 Brussels Ia, that for a ruling to be a judgment it must be given by a court or a tribunal of a Member State. Adoption of a judgment by another State is not covered. She notes the CJEU referred to this definition in its Owens Bank v Bracco ruling. She also notes that the St. Vincent judgment in Owens v Bracco had in fact also been registered in England by the time that the House of Lords referred the matter to the CJEU.

Other issues in the judgment are less relevant to the blog. Do note that Taiwan does not call upon sovereign immunity: at 3: ‘The MND is an arm of the government of the ROC. Although it is by its own law a state, the ROC has an unusual status in international, and English, law: although it has all the generally recognised characteristics of statehood, and is often treated as a country, it is not recognised as a state by the United Kingdom and there are no formal diplomatic relations between the two. For the purpose of these proceedings only, and without making any wider concession, the MND does not rely on the State Immunity Act 1978.’ Clearly this case was not considered by Taiwan to be a case to force the recognition issue.

Geert.

 

A quick note on Granville Technology & Ors v Infineon Technologies AG & Anor [2020] EWHC 415 (Comm) which concerns proceedings brought by three companies who were engaged in the assembly and sale of desktop PCs and notebooks. The claims arise from a price-fixing cartel, the subject of findings by the EC in COMP/38511. The Cartel concerned the market for direct random access memory (“DRAM”) and Rambus DRAM used in the manufacture of PCs and Notebooks.

Both Infineon (domiciled at Germany) and Micron Europe (of England) have pleaded, among other defences, that the Claimants’ claims are time-barred under relevant UK limitation statutes – their arguments were partially upheld. I keep the note very short for seemingly not at issue was either jurisdiction or applicable law. Of note is the classic appearance in anchored competition cases of the group liability argument held in Cooper Tire, Cooper Tire & Rubber Co Europe Ltd v Shell Chemicals UK Ltd [2010] EWCA Civ 864 , referred to by Foxton J at 123 (followed by a decision on the need for discovery (held: none here) given the Court of Appeal’s finding in Cooper Tire that anchor defendants have to have been parties or aware of the anti-competitive conduct of their parent company” and that “The strength (or otherwise) of any such case cannot be assessed (or indeed usefully particularised) until after disclosure of documents because it is in the nature of anti-competitive arrangements that they are shrouded in secrecy.”

Geert.

 

 

 

 

 

Follow-on damage suit following #cartel.
Pleas of statute of limitation (time-barred). Reference ia to Cooper Tyre. https://t.co/EefHASBQ8S

— Geert Van Calster (@GAVClaw) February 25, 2020

Országos Idegenrendeszeti Főigazgatóság Dél-alföldi Regionális Igazgatóság
Espace de liberté, sécurité et justice
Selon l’avocat général Pikamäe, l’hébergement des demandeurs d’asile dans la zone de transit de Röszke, à la frontière serbo-hongroise, doit être qualifié de « rétention »

Ryanair
Transport
Les transporteurs aériens doivent indiquer, dès la publication de leurs offres de prix sur internet, la TVA relative aux vols nationaux ainsi que les frais de paiement par carte de crédit

Associazione Avvocatura per i diritti LGBTI
Principes du droit communautaire
Des déclarations homophobes constituent une discrimination en matière d’emploi et de travail lorsqu’elles sont prononcées par une personne qui a ou peut être perçue comme ayant une influence déterminante sur la politique de recrutement d’un employeur

Spain v The London Steam-Ship Owners’ Mutual Insurance Association Ltd [2020] EWHC 142 (Comm) reports on the CMR (case management conference) re what promises to be interesting litigation. A Spanish judgment concerning liability for the pollution damage caused when the vessel PRESTIGE broke in two off the coast of Spain in 2002, needs to be enforced in the UK. Brussels Ia’s contestation of recognition is involved: particularly Articles 34(1) and (3).

At 2 Teare J summarises the story so far:

The parties have been in dispute about liability for many years. Criminal proceedings were brought against the master of PRESTIGE in Spain in 2002 and, after the conclusion of the investigative stage of the proceedings, civil proceedings were brought against the master, the Owners of PRESTIGE and the Club, as liability insurer of the Owners, in 2010. (I am told that in addition to Spain there are some 264 other claimants.) In 2012 the Club commenced arbitration proceedings in London against Spain and in February 2013 obtained an award from the sole arbitrator Mr. Alistair Schaff QC which declared that, as a result of the “pay to be paid” clause in the policy the Club had no liability to Spain. In this court Spain challenged the jurisdiction of the arbitrator but the court (Hamblen J. as he then was) held in 2013 that the arbitrator had jurisdiction. Later that year the court in La Coruna dismissed the civil claim against the master, Owners and Club but convicted the master of the crime of disobeying orders by the Spanish authorities to accept a tow of the vessel. In 2015 the English Court of Appeal upheld the decision of Hamblen J. In 2016 the Spanish Supreme Court reversed the decision of the court in La Coruna and held that the master had been seriously negligent and that the Owners and Club were liable for the damage caused. In execution proceedings in Spain, the court in La Coruna declared the Spanish State entitled to enforce a claim up to approximately €2.355 billion against the defendants in the Spanish proceedings and declared the master, Owners and the Club liable in respect of the claims, although subject (in the case of the Club) to a global limit of liability in the sum of approximately €855 million.’

Thus the Club has an arbitration award in its favour but Spain has a judgment of the Spanish Supreme Court in its favour. Spain obtained an order from Master Cook pursuant to which the Spanish judgment was registered so that it could be enforced here against the Club. The Club seeks to appeal from that order. One of the grounds on which it seeks to appeal is that the Spanish judgment is irreconcilable with the judgment of Hamblen J. and the Court of Appeal (A34(3) BIa). Another ground is that recognition of England is contrary to the public policy of England (A34(1)).

This particular CMS concenrs disclosure requirements: the Club’s seeking of disclosure from Spain is resisted by the latter on grounds that is clashes with BIa’s intention of swift recognition.

One of the issues on which disclosure is sought, is Spain’s position under the insurance title of BIa: “Are the English Judgments not qualifying judgments within article 34(3) because the English Judgments conflict with Section 3 of Chapter II of the Brussels 1 Regulation ? In particular …(b) Is the respondent [Spain] entitled to rely on the exclusive rules for jurisdiction in Section 3 of Chapter II. In particular: (i) Is the respondent [Spain] a qualifying party that is entitled to the protective rules in Section 3 ?” Reference is made to Aspen Underwiting: the Club states that it is necessary for Spain to show that it is a member of the class protected by Section 3, which (per Aspen Underwriting, GAVC] excludes “professionals in the insurance sector or entities regularly involved in the commercial or otherwise professional settlement of insurance related claims who voluntarily assumed the realisation of the claim as part of its commercial or otherwise professional activity”. Aspen Underwriting in the meantime (Teare J’s judgment was issued in January; it has been in the blog queue) has been varied by the Supreme Court.

It will therefore be necessary, submitted counsel for the Club, for Spain to disclose documents which show “the class of business” conducted by it. If it is a member of the relevant class it can rely on section 3. If it is not, it cannot.

The second class of document of which disclosure is sought is very different and relates to the public policy defence. Did the Spanish Courts refuse to allow the master to participate in an underwater investigation of the strength of the vessel’s hull and refuse to disclose the results of the investigation (so that there was a breach of the master’s right to equality of arms and to be able to prepare a defence) or were the results disclosed to the master in sufficient time to allow him to prepare his defence. The Club therefore seeks disclosure of the documents relating to that question held by Spain. Here Teare J at 21 assumes that Spain’s evidence can be expected to support its case and to rely upon the documents which show when the results were disclosed to the master and in what terms. If the evidence does not deal with this issue then Spain will be unable to advance its factual case. ‘I therefore consider it very likely that no disclosure under this head will be required. In the unlikely event that it is required a focused application can be made after Spain has provided its evidence.’

The Order eventually imposes a timetable for exchange of evidence (including expert reports) and later settlement of disclosure issues should they arise. Hearing in principle in December 2020.

This could turn out to be a most relevant case.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.1, Heading 2.2.11.2, Heading 2.2.16.

[2020] EWCA Civ 122 deals upon appeal with the judgment of Williams J in [2018] EWFC 54 Akhter v Khan which I reviewed at the time here – readers may want to read that post before considering current one. Of note is that applicable law is firmly English law, the judgment is not really one in the conflict of laws.

Williams J had declared the marriage at issue void under the Matrimonial Causes Act 1973, the wife was granted a decree of nullity. This has extremely relevant consequences in terms of ‘matrimonial’ property, and maintenance obligations, including those vis-a-vis the children: non-marriage creates no separate legal rights while a decree of nullity entitles a party to apply for financial remedy orders under the 1973 Act.

Williams J’s judgment was reversed: at 106, following review of ECHR authority: ‘i) Whilst the Petitioner’s Article 8 right to respect to family life is undoubtedly engaged, the failure of the state to recognise the Nikah as a legal marriage is not in breach of those rights; ii) The right or otherwise to the grant of a decree of nullity does not in itself engage Article 8; the fact that at the time of the Nikah ceremony both parties knew that in order to contract a legal marriage they had to go through a civil ceremony, and intended to do so, does not undermine either of those conclusions or permit reliance on Article 8 as a means to allow a flexible interpretation of s. 11 of the 1973 Act.’

With respect to the impact of the children’s interests on this finding, at 111: ‘In our view the decision before the court cannot properly be described as an action concerning children and we cannot see how it can be said that the best interests of a child can turn what was neither a void nor valid marriage, into a void or valid marriage. In our judgment, the action in question relates solely to the status of the adult applicant.’

The Court of Appeal found therefore that the interests of children can play no part in a determination as to whether a ceremony is a non-qualifying ceremony or is a void marriage, and that neither ECHR or UNCHR can make a difference in this respect (at 119); whilst there is inevitably a tangential impact upon a child dependent upon the status of his or her parents’ relationship, an application brought before the court made in order to establish the status of that relationship cannot properly be regarded as an “action concerning children” (at 118).

Geert.

 

In [2020] EWHC 40 (Ch) Easygroup v Easyfly and ATR Aircraft the issue is the jurisdiction of the English court to hear claims of trade mark infringement, passing off and conspiracy against a Colombian domestic airline, its founder and chief executive, and a French aircraft manufacturer. As always the blog’s interest is not in the substantive issues concerning trademark and passing off, they do however make for interesting reading.

Nugee J considers the jurisdictional issues at 26 ff with respect to the first two defendants and with respect to the French defendant, in para 127 ff. Here the relationship between the EU Trade Mark Regulation 2017/1001 and Brussels Ia comes to the fore. (I continue to find my colleague Marie-Christine Janssens’ 2010 paper most informative on the issues; see also the link to Tobias Lutzi’s analysis of AMS Neve in my report of same). The relevant provisions of the Regulation (previously included in Regulation 207/2009, applied ia in CJEU AMS Neve), read

Article 125. International jurisdiction
1. Subject to the provisions of this Regulation as well as to any provisions of Regulation (EU) No 1215/2012 applicable by virtue of Article 122, proceedings in respect of the actions and claims referred to in Article 124 shall be brought in the courts of the Member State in which the defendant is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment.
2. If the defendant is neither domiciled nor has an establishment in any of the Member States, such proceedings shall be brought in the courts of the Member State in which the plaintiff is domiciled or, if he is not domiciled in any of the Member States, in which he has an establishment.

3. If neither the defendant nor the plaintiff is so domiciled or has such an establishment, such proceedings shall be brought in the courts of the Member State where the Office has its seat.

4. Notwithstanding the provisions of paragraphs 1, 2 and 3:

(a) Article 25 of Regulation (EU) No 1215/2012 shall apply if the parties agree that a different EU trade mark court shall have jurisdiction;

(b) Article 26 of Regulation (EU) No 1215/2012 shall apply if the defendant enters an appearance before a different EU trade mark court.

5. Proceedings in respect of the actions and claims referred to in Article 124, with the exception of actions for a declaration of non-infringement of an EU trade mark, may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened, or in which an act referred to in Article 11(2) has been committed.

 

Article 126. Extent of jurisdiction
1. An EU trade mark court whose jurisdiction is based on Article 125(1) to (4) shall have jurisdiction in respect of:

(a) acts of infringement committed or threatened within the territory of any of the Member States;

(b) acts referred to in Article 11(2) committed within the territory of any of the Member States.

2. An EU trade mark court whose jurisdiction is based on Article 125(5) shall have jurisdiction only in respect of acts committed or threatened within the territory of the Member State in which that court is situated.

 

The first two defendants are not based in the EU. Here, Article 125(2) grants jurisdiction to the UK courts.

Controversially, at 36 Nugee J applies a forum non conveniens test. It is disputed whether this is at all possible in the Trademark Regulation. He decides England clearly is the appropriate forum: ‘there is no other court that can try the UK trade mark claims, and for the reasons just given [French and  Spanish courts might have partial jurisdiction, GAVC] no other court that can grant pan-EU relief in respect of the EU trade mark claims.’

At 37 ff Nugee J then also still considers with reference ia to CJEU Pammer and the discussions on ‘accessibility’ (see also ia Football Dataco) whether there is a ‘serious issue to be tried’ and answers in the affirmative. Here I am assuming this must be seen as part of case-management rather than a jurisdictional test (viz Article 8(1) BIa’s anchor defendant mechanism, a ‘serious issue to be tried’ test is said to be part of the ‘related cases’ analysis; see related discussions ia in Privatbank), unless he reformulates the application of Article 126 as a ‘serious issue to be tried’ test – the structure of the judgment is leaving me confused.

Eventually however the previous Order made by the High Court, granting permission to serve out of jurisdiction, is set aside by Nugee J on grounds of lack of full and frank disclosure at the service hearing – an issue less exciting for this blog however dramatic nevertheless.

The French defendant (who issued a relevant press release (only 11 copies of which were distributed at the Farnborough airshow; this was found to be de minimis; not as such a mechanism available under the EUTMR I don’t think; but it might be under case management) and was also responsible for organising (ia by having the logo painted) the offending branding in France), at the jurisdictional level is dealt with in para 127 ff., first with respect to the trademark claim.

‘By art. 125(1) the default position is that the proceedings shall be brought in the courts of the Member State where the defendant is domiciled: in ATR’s case this is France. Neither art. 125(2) nor art. 125(3) applies to ATR because each only applies if the defendant is neither domiciled nor has an establishment in a Member State. Art. 125(4) does not apply as it is not suggested that ATR has either (a) agreed that the English court should have jurisdiction, or (b) entered an appearance before the English court. That leaves art. 125(5) under which proceedings may also be brought in the courts of the Member State in which the act of infringement has been committed or threatened. In the present case that would also be France (and possibly Spain). It follows that none of the provisions of art. 125 confer jurisdiction on the English court to hear actions based on acts of infringement said to have been carried out by ATR in France and Spain.’

Counsel for EasyGroup accepted ia per AMS Neve that the Trademark Regulation is lex specialis vis-à-vis Brussels Ia but that nevertheless the general spirit of BIa should blow over Regulation 2017/1001. They refer at 130 to the ‘general desirability of avoiding duplicative proceedings and the risk of inconsistent judgments (as exemplified by arts 29 and 30 of Brussels I Recast),’ and argue that ‘it followed that once the English court had jurisdiction over the Defendants for the acts taking place in France (as it undoubtedly did under art. 125(2)), then it must also have jurisdiction over anyone else alleged to be jointly liable for the same acts of infringement.’

This therefore is a makeshift joinder mechanism which Nugee J was not impressed with. He pointed to the possibility under A125(5) to sue the other defendants and the French defendants in one jurisdiction, namely France. An A7(2) BIa action is not possible: A122(2)(a) EUTMR expressly provides that in proceedings based on A124, A7(2) BIa does not apply.

Finally, a claim in conspiracy against the French defendant is not covered by the EUTMR and instead by A7(2) BIa, discussed at 142 ff with reference to (Lugano) authority [2018] UKSC 19, which I discussed here. Locus delicti commissi, Nugee J finds, is not in England: no conspiratorial agreement between ATR and the Defendants in relation to the branding of the aircraft took place in England. At 145: ‘the Heads of Agreement, and Sale and Purchase Agreement, were each signed in France and Colombia, and there is nothing that can be pointed to as constituting the making of any agreement in England.’

As for locus damni, at 148 Nugee J holds this not to have been or potentially be in England:

‘The foundation of easyGroup’s claims in relation to the branding of the aircraft is that once painted they were flown on test flights, and en route to Colombia, in full view of the public. But the public which might have viewed the planes were the public in France and Spain, not the public in the UK. That might amount to a dilution in the brand in the eyes of the French and Spanish public, but it is difficult to see how it could affect the brand in the eyes of the UK public, or otherwise cause easyGroup to sustain loss in the UK. Mr Bloch said that if such a plane crashed, the news would not stop at the Channel and it might adversely affect easyGroup’s reputation in the UK, but no such damage has in fact occurred, and it seems to me far too speculative to say that it may occur. As already referred to, Mr Bloch also relied on easyGroup having suffered damage on the user principle (paragraph 82 above), but it seems to me that damages awarded on this basis would be damages for the loss of an opportunity to exploit easyGroup’s marks by licensing them to be used in France and Spain, and that for the purposes of the first limb of art. 7(2) such damage would therefore be suffered in France and Spain as that is where the relevant exploitation of the asset would otherwise take place.’

This last element (place where the relevant exploitation of the asset would otherwise take place) is interesting to me in Universal Music (purely economic loss) terms and not without discussion, I imagine.

Conclusions, at 152:

(1) There is a serious issue to be tried in relation to each of the claims now sought to be brought by easyGroup against the non-EU defendants.

(2) There was however a failure to make full, frank and fair disclosure at the service out of jurisdiction hearing, and in the circumstances that Order should be set aside.

(3) The question of amending to bring claims against the French defendant. But if it had, Nugee J would have held that there was no jurisdiction for the English court to hear the claims based on the acts in France (or Spain), whether based on trade mark infringement or conspiracy. There is jurisdiction to hear the claims based on the issue of the Press Release in the UK, but Nugee J would have refused permission to amend to bring such claims on the basis that they were de minimis.

A most interesting and thought provoking judgment.

Geert.

 

 

 

In Representation of Lydian international Limited [2020] JRC 049 MacRae DB refers to universality in insolvency proceedings only once,  namely where he refers to authority at 20. Yet his approach in honouring the request for assistance, made by the courts at Ontario ‘on the basis of comity’, walks and talks like universality. This is of course reminiscent of Menon CJ’s recent speech on the issue, or similar decisions elsewhere.

‘Though there is no precedent in Jersey for a Canadian CCAA order or similar order being enforced or recognised in relation to a Jersey company, we had no doubt that we should assist the Canadian Court in this case.  There were no reasons of Jersey public policy impeding the court making the orders sought.  To the contrary, it is consistent with Jersey’s status as a responsible jurisdiction for the Royal Court to lend assistance in order to facilitate an international insolvency process in a friendly country that has a potential to benefit the creditors of the Lydian Group as a whole.’ The Deputy Bailiff also notes that key Jersey creditors and the Jersey corporation of the Lydian group itself were represented in the Canadian proceedings.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

 

#Insolvency.
Request honoured of the courts of Ontario to assist with proceedings on the basis of comity, universalism. https://t.co/vUelMOKdId

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

A quick note on [2020] EWHC 893 (Fam) I and L (children), in which Mostyn J berates and effectively disciplines a father’s abuse forum and process shopping.

At 11:

‘I pause at this point to reflect on the actions taken by the father. Not only did he act in bad faith, as I have explained, but he also was guilty not only of blatant forum shopping but also of process shopping. If the father had genuinely developed misgivings about the wisdom and merits of the parenting agreement signed by him on 5 August 2019 then the appropriate place to raise those misgivings was the court in South Africa [the habitual residence of the children, GAVC]. Instead, by a ruse de guerre he lured the mother and children to this jurisdiction where he immediately started proceedings in the forum which he considered to be most favourable to him. By striking pre-emptively he also selected the process which he considered most favourable to him. Had he merely retained the children on 3 January 2020 and awaited the mother to take steps in response she would, unquestionably, have raised a case under the 1980 Hague Convention on the Civil Aspects of Child Abduction. In such a process the welfare of the children, while being an important consideration, would not have been the paramount consideration. Instead, the court would have started with the position that the children should be returned to the place of their habitual residence unless the father could demonstrate a defence.’

In the end he held that under the Children Act, in which the welfare of the children is the paramount criterion, a return to their habitual residence (to be effected as fast as possible following the end of Covid-19 lock-down) is in their best interest, thus torpedoing the abuse. Clearly like in QD, the English courts do not appreciate cloak and dagger manipulation of forum or process.

Geert.

 

https://twitter.com/GAVClaw/status/1250359450357071873

A late post (I am slowly trying to mop up my back issues; none of them thankfully going back quite as far as this one) on Roberts v The Soldiers, Sailors, Airmen And Families Association & Anor [2019] EWHC 1104 (QB) in which Soole J had to hold on whether the Civil Liability (Contribution) Act 1978 (the 1978 Act) has mandatory/ overriding effect and applies automatically to all proceedings for contribution brought in England and Wales, without reference to any choice of law rules. A tortious and residual private international law (as opposed to Rome I or II) take therefore on similar issues as in the contracts case of Lamesa Investments.

Claimant was born at the Hospital in Viersen, North-Rhine Westphalia, Germany on 14 June 2000. The Hospital provided medical services to UK Armed Forces stationed in Germany, with whom the Claimant’s father was serving, and their families. His claim is that he sustained an acute profound hypoxic brain injury as a result of negligence in the course of his delivery by a British midwife supplied by the First Defendant charity (SSAFA). On his behalf it is alleged that SSAFA and/or the Second Defendant (MOD) are vicariously liable for her acts or omissions.

The Hospital contends that the application of the 1978 Act is subject to choice of law rules, whose effect is to apply German law to a claim for contribution. By the combined effect of the German law of limitation and s.1 Foreign Limitation Periods Act 1984 the contribution claim is time-barred; and therefore must fail. SSAFA/MOD accept that, if choice of law rules prevail, the relevant law is German and the claim time-barred. However they contend that the 1978 Act has overriding effect. Since the limitation period under the 1978 Act expires 2 years from the date of judgment award or settlement (s.10 Limitation Act 1980), the claim can proceed.

Rome II is not engaged ratione tempore (it may have varied the outcome).

Soole J first summarises at lenghth the submissions of the parties, including their scholarly references. He then, at 81, reminds us of the common law approach to characterisation (one which we successfully pleaded in a continental court in a trust case recently): ‘the first question in such a dispute is the characterisation (or classification) of the claim or issue in question. Such classification should not be constrained by particular notions or distinctions of the domestic law of the lex fori, or that of the competing system of law, which may have no counterpart in the other’s system; and should be taken in a broad internationalist spirit in accordance with the principles of conflict of laws of the forum’.

He then holds that the questions of lois de police do not justify cutting corners in conflict of laws analysis: one does not jump straight to application of a local act. Rather, one dutifully follows conflicts analysis and then applies the local act only if and to the extent the foreign law impedes it. Then follows at 92 his classification of the act as lois de police indeed (the terminology used here also includes ‘extraterritorial application’ which however suggests a disconnect from the usual conflicts exercise): ‘In my judgment it is implicit from the provisions of the 1978 Act that the statute does have overriding effect; and that the presumption to the contrary is accordingly rebutted. And at 93: ‘I consider that the express references in the 1978 Act to private international law (ss.1(6), 2(3)(c)) support this implication. Parliament having chosen to identify specific circumstances in which choice of law rules are to apply (and the extent of that application) in a claim under the statute, the natural implication is that the availability of this statutory cause of action was not itself to be subject to choice of law rules.’

Most interesting judgment.

Geert.

 

 

This item has been in the queue a long time – apologies. Thank you Marco Vogels for reporting end of 2019 on the Rotterdam court’s approach re privilege in ECLI:NL:RBROT:2019:7856, a criminal prosecution involving Shell. Marco’s report is most complete and I am happy to refer.

Compare the Dutch approach to my earlier reports on the issue in England and in the US. The Rotterdam court takes the law of the place of establishment of the (self-employed) solicitors as the connecting factor, ditto for in-house lawyers (on which The Netherlands takes an unusual (bu continental European standards) position of professional privilege). However the court also held that privilege falls away for the whole in-house legal department and all its lawyers, foreign established or not, if the head of legal is member of the Executive Committee.

Geert.

In Terre Neuve SARL & Ors v Yewdale Ltd & Ors [2020] EWHC 772 (Comm), Bryan J entertains almost the entire jurisdictional chapter of the Handbook.

The proceedings are concerned with the alleged misappropriation of a sum of €10.6 million paid by the First Claimant (“Terre Neuve”) to the First Defendant (“Yewdale”) between July 2009 and September 2012, and thereafter allegedly misapplied with the alleged participation of other Defendants. The sums were paid pursuant to a tax optimisation scheme ultimately for the benefit of the Third Claimant (“Mr. Zahut”), who beneficially owned Terre Neuve and the Second Claimant (“Largely”). The scheme was allegedly created by a Mr. Sasson (now deceased), who gave tax advice through his company, the Third Defendant (“GPF”) and controlled Yewdale (an English company) and the Second Defendant (“REDS”) (a New York company).

In this preliminary judgment, plenty of the defendants challenge jurisdiction, even if as discussed at 11 ff, following judgment by Hancock J in [2019] EWHC 1119 (Comm), confirmed in [2019] EWHC 1847 (Comm), the action is already proceeding in England against Yewdale (which has been found to be a valid anchor defendant per Article 4 Brussels Ia) as well as a number of the overseas defendants: both those domiciled in Switzerland, and elsewhere. Co-defendants in current case were not involved in those earlier hearings.

Firstly, GPF, third defendant, challenges jurisdiction under Article 23 Lugano, more or less but not quite the same as Article 25 BIa. At 22 ff Bryan J cuts too many corners in my view. He extends CJEU precedent on Brussels I and Ia without question to Lugano construction. He unhesitatingly adopts English law (with Fiona Trust in the authority driver’s seat and with reference to the recent Etihad case) as the lex causae for the choice of court agreement. This is as lex fori additi I assume; the actual text of the choice of court agreement is not included in the judgment lest I looked over it however one can deduct the choice points to Switzerland. He is right in holding that the answer to the contractual construction of the choice of court agreement cannot be found in either Lugano or Brussels itself.

At 44 ff he decides that Claimants’ claims do not fall within the scope of any of the jurisdiction clauses in the Written Agreements, pointing away from England.

Next, a group of co-Defendants, who the Claimants allege were involved in and/or benefited from the misappropriation, challenge the jurisdiction of the English Court on various grounds, inter alia: that the claims against them are not sufficiently closely connected to be heard with the claims against the other Defendants in this jurisdiction, pursuant to Article 6(1) Lugano, and should instead be tried in Switzerland pursuant to Article 2 Lugano; that the claims against them would be more conveniently heard in Switzerland; that bringing proceedings against them in England is an abuse of process; that they should be tried in Switzerland pursuant to Article 5 Lugano; that proceedings against them in England are a breach of their rights under Article 6 ECHR; and that various agreements contain jurisdiction clauses which prevent the English Court from hearing the case against them.

In short (note all the authority he employs has been reviewed on this blog, both CJEU (e.g. Melzer) and English) Bryan J finds the cases are clearly related under Article 6 Lugano; forum non conveniens must not be entertained; and there is no abuse of EU law (a popular part of jurisdictional challenge following Vedanta); some of the defendants have submitted; Article 5 Lugano’s forum contractus is irrelevant for it only brings additional, not exclusive jurisdiction; Article 6 ECHR is clearly not breached (practical difficulties of attending, for instance, may be solved by modern means); arbitration in New York first of all does not engage an EU court and secondly of course arbitration is exempt from Lugano.

Finally the one co-defendant domiciled in Israel is nevertheless pulled into the English jurisdictional bath by application of residual English rules (serious issue to be tried; necessary and proper party).

Quite a lot to discuss by way of preliminary jurisdictional issue…

Geert.

 

A Lugano /Brussels I jurisdictional fest. Includes consideration of anchor defendants, A25 choice of court, A4 jurisdiction. https://t.co/vyrRJ9zIkS

— Geert Van Calster (@GAVClaw) March 31, 2020

Many thanks, Dr Richard Schmidt for signalling and reviewing  the recent Hungarian Supreme Court judgment (in Hungarian) discussing unilateral aka asymmetric aka hybrid choice of court. I do not have Hungarian and happily rely on Richard’s analysis and review.

As Richard reports, the contract was governed by the law of Liechtenstein and provided that any legal disputes would be brought before the court of Vaduz (Liech). However, the claimants had the option of seeking the performance of the contract before the courts of the defendant’s domicile. The defendant failed to pay the service charges and the claimants sued him in Hungary.

Upon appeal it seems the lower courts had held that choice of court ex-EU is not covered by Brussels Ia (compare CJEU Gothaer) and stayed the case in favour of the court at Vaduz. The Supreme Court however in principle would see to have upheld the choice of court provision as exercised by the claimant even if it decided the case ultimately on a finding of submission.

As I said I do not read Hungarian, text search however does not suggest that the SC looked at the issue at all viz Brussels Ia. Which is odd.

Richard justifiably refers to the approaches of both the English (see e.g. here) and the French Courts (contrast Rotschild with Apple). Thankfully there is now also the volume edited by Mary Keyes, looking comparatively at the issue (Michiel Poesen and I contributed the Belgian chapter).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.11.1, Heading 2.2.11.2 .

 

 

Most interesting Hungarian SC judgment on asymmetric choice of court.
Case in the end turned on submission (voluntary appearance). Adopts an approach on such unilateral jurisdiction clauses somewhere between the EN and (former) FR approach. https://t.co/u2a5mpYBss

— Geert Van Calster (@GAVClaw) March 11, 2020

In Lecta Paper [2020] EWHC 382 (Ch), Trower J picks up where Zacarolii J left off in [2019] EWHC 3615 (Ch) (which I briefly flagged in my post here and which is referred to in current judgment 12) and goes through the usual matrix for assessing the international impact of an English scheme of arrangement on the European continent.

Ultimate parent company is a Luxembourg company, with further controlling interests held by yet another Luxembourg and a Spanish company. A 10-11 Trower J flags a sensitive issue for credit and other financial arrangements: financial instruments subject to New York law, where amended to English law as governing law and the courts at England as non-exclusive jurisdiction. This was done in accordance with New York law, and approved by over 90% of the instruments’ holders. Yet again therefore a crucial question viz schemes of arrangement and the Brussels jurisdictional and applicable law regimes remains unaddressed, namely the event of opposition of a sizeable stake of creditors.

At 33 ff the issue of jurisdiction is discussed along the lines of Apcoa, Codere and NN2 Newco. Under residual private international law, the sufficient connection to England, engineered by the aforementioned change of governing law and jurisdiction in line with the law governing the instruments at the time (New York law, at 38), was held not to be unfair viz the creditors even in the case of the mother company with COMI in Luxembourg. At 44 ff Trower J returns to the issue of whether Brussels Ia can apply at all to the case, particularly via Article 4 juncto Article 8(1), holding for application of Article 25 in the end. However as in the authority he applies, there continue to be a lot of assumptions in this analysis which, failing substantial opposition by creditors, still have not been settled by either UK, CJEU or continental authority.

At 40 follows the equally standard reference to national experts testifying to the scheme’s recognition in the jurisdictions concerned: France, Italy, Spain, Luxembourg.

At 41 Trower J then briefly mentions Brexit (see my reference to similar cases here). Referring again to the national experts but also to his own insight, Justice Trower simply notes that

‘The Recast Judgments Regulation will continue to apply to the recognition of an English judgment in EU member states, notwithstanding the occurrence of Brexit, provided that the judgment has been given in proceedings which were instituted before 31 December 2020, being the end of the transition period. This follows from Article 67(2) of the Withdrawal Agreement. It follows that any sanction order made in this case should be recognised in EU member states, pursuant to the Recast Judgments Regulation, as will their own domestic law dealing with the recognition of judgments. It is also the case that the application of the Rome I Regulation ought to be unaffected by Brexit in any event. As I read the expert reports, they each confirm that that Regulation will continue to apply after the end of the transition period so that the law of the jurisdiction in respect of which they give evidence will recognise the governing law of the relevant contracts, in this case English law, as applying to the variation and discharge of rights under that contract.’

Note as I did above, the continuing Brussels IA cover assumptions, as well as the position post Brexit (whether under Lugano 2007 or not, remains to be seen).

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 2, Chapter 5.

 

In Islandsbanki & Ors v Stanford [2020] EWCA Civ 480, upon appeal from Fancourt J in [2019] EWHC 1818 (Ch), Asplin LJ discussed whether purported execution of a foreign judgment registered in the High Court pursuant to the Lugano Convention, can be execution issued in respect of the judgment debt (for the purposes of section 268(1)(b) of the Insolvency Act 1986), if the execution occurred before the period for appealing the registration of the judgment has expired and, if not, whether the defect can be cured.

An unpaid Icelandic judgment debt from 2013 which together with interest, is now in excess of £1.5 million sterling equivalent. The judgment was given against Mr Stanford in the Reykjanes District Court in Iceland on 26 June 2013. A certificate was issued by the Icelandic court on 16 October 2013, pursuant to Articles 54 – 58 Lugano. IB applied to register the Icelandic judgment in England and Wales on 16 March 2016. A registration order was sealed on 23 March 2016 (the “Registration Order”).

Some of the issues in the Appeal (and before Fancourt J) concern purely English procedural rules however their effect is of course to facilitate, or obstruct, recognition and enforcement under the Lugano Convention. The confusion to a great degree results from the UK, despite Lugano’s direct effect, having implemented the Convention in the CPR rules anyway (at 24). The submission made by appellant (the Bank) before the Court is essentially that a narrow interpretation of the English CPR rules which would not allow remedying an error in the procedure, would run counter Lugano’s objective of facilitating recognition and enforcement (reference is made to the Pocar report and the recitals of Lugano itself).

Asplin LJ at 38 points to the language of Lugano itself: ‘during the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no (emphasis in the original) measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought. The ordinary and natural meaning of those provisions is quite clear.’ She also at 37 points to the Convention’s objectives not being restricted to ease of enforcement: ‘the underlying policy of Articles 43(5) and 47(3) is that a fair and proportionate balance must be struck between the interests of the party which applies for a registration order having obtained a judgment in a foreign jurisdiction to which the Convention applies, and the defendant/debtor whose rights of appeal are prescribed by law and should not be undermined by allowing irreversible measures of enforcement.’

Conclusion, at 40: ‘It is for that reason that CPR 74.6(3) provides that a registration order must contain reference to the period in which an appeal against registration can be lodged and that no measures of enforcement can be taken before the end of that period and the reason why that prohibition was repeated in the Registration Order itself at paragraph 2. Accordingly, any attempt to remedy the premature issue and execution under the Writ of Control by means of an exercise of the discretion under CPR r3.10(b) or the use of CPR r3.1(2)(m) or 3.1(7) (or the inherent jurisdiction of the court, for that matter) would fundamentally undermine Article 47(3) and section 4A(3) in a way which is impermissible.’

at 62 ‘The defect in the execution in this case, if it can be called a defect, was fundamental….It was not a mere technicality or a formal defect which might be rectified pursuant to what is now Rule 12.64 of the Insolvency Rules 2016. It went to the heart of the execution process’.

Appeal dismissed following an interesting and clear application of both Lugano’s provisions and its spirit.

Geert.

Recognition and enforcement, Lugano.
Whether purported execution of foreign judgment can be issued in respect of the judgment debt, for purposes of Insolvency Act, if execution occurred before the period for appealing the registration of the judgment has expired. https://t.co/bPt9U1IaHt

— Geert Van Calster (@GAVClaw) April 2, 2020

 

Commission / Pologne
Principes du droit communautaire
La Pologne doit suspendre immédiatement l’application des dispositions nationales relatives aux compétences de la chambre disciplinaire de la Cour suprême au regard des affaires disciplinaires concernant les juges

A late-ish flag to keep an eye on Greenpeace’s class-action suit filed in the Austrian courts to have the Austrian tax breaks on air traffic (tax exemption on kerosene fuel for domestic flights and a VAT exemption on international flights) lifted. It is certain to engage the Chicago Convention and the European implementation of same. The argument is inter alia that the non-exemption for rail is a form of State Aid to the airlines. I wrote on the issues in 2016, featuring T-351/02 Deutsche Bahh, arguing that the CJEU could have forced the issue then. What would be most excellent would be for the Austrian courts to refer to Luxembourg so as the CJEU may revisit the issue 14 years on from the judgment of the then Court of First Instance, in a world were many look a lot less forgivingly at the exemptions’ implications for internalising negative environmental externalities.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018.

 

BREAKING: first ever climate change case directly targeting aviation emissions, as @GreenpeaceAT asks Austria's Constitutional Court to repeal laws offering tax credits on plane fuel, alleging violation of international human rights law, Articles 2/8 ECHR.https://t.co/Bmozqd8M3b pic.twitter.com/B0p1MKGrh5

— Sam Varvastian (@SamVarvastian) February 20, 2020