Flux européens

Fasken alerted me to, and have good review of Newfoundland and Labrador (Attorney General) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam) 2020 SCC 4. The Canadian Supreme Court held that Quebec has jurisdiction over aboriginal rights claims in a neighburing province. This assertion of jurisdiction hinges on the qualification of rights under section 35 of the Constitution Act, 1982 (the section which deals with aboriginal and treaty rights) as rights sui generis. A qualification as rights in rem erga omnes, as the dissenting opinion suggested, would have kept the case outside of Quebec jurisdictional reach.

The case came a week after the decision of the High Court of Australia in Love v Commonwealth[2020] HCA 3 which as Michael Douglas analyses here, is a case about personal status and whether an aboriginal may be considered an ‘alien’ for immigration purposes. Judges split as to the required approach to the issue.

Indigenous rights and conflict of laws for sure will continue to exercise one or two minds (ia in view of the UNSDGs) and these two cases seem to anchor a number of issues. Not something a short blog post can do justice to.

Geert.

Most interesting. Indigenous rights and conflict of laws.
CAN SC finds Québec has jurisdiction to hear Innu claims re land in Newfoundland, Labrador
Aboriginal rights are sui generis, neither personal rights or real rightshttps://t.co/DPQBZk2byC

— Geert Van Calster (@GAVClaw) March 10, 2020

In T‑574/18 Agrochem-Maks the General Court at the end of May upheld the Commission Regulation not extending market authorisation for the active substance oxasulfuron, a pesticide. The EC Regulation noted that EFSA, the European Food Safety Authority, had identified a large number of data gaps resulting in the inability to finalise the risk assessment in several areas and that ‘in particular, the available information on oxasulfuron and its metabolites did not allow finalising the assessment of the overall consumer exposure, the groundwater exposure, the risk to aquatic organisms, earthworms, soil macro and microorganisms and non-target terrestrial plants’. Since  ‘it has not been established with respect to one or more representative uses of at least one plant protection product that the approval criteria provided for in Article 4 of Regulation … No 1107/2009 [on plant protection products; see here, GAVC] [were] satisfied’, authorisation was not renewed.

The case at issue is brought by a small Croatian, family-owned company. That is a change from the classic pattern in this kind of cases, with large bio-agricultural industry routinely taking cases to the CJEU in laser-shoot fashion, hoping they might hit the target once or twice.

The General Court extensively outlines the procedure foreseen in the relevant EU laws, thereby identifying the core issue in near all of these cases held under the precautionary principle: the EU courts do not carry out a merits review; rather, they assess whether holes have emerged in the preparation of a decision, which could mean that the Institutions could not reasonably have come to the decision they came to.

That is no different here: at 62: ‘the EU Courts must verify that the relevant procedural rules have been complied with, that the facts admitted by the Commission have been accurately stated and that there has been no manifest error of appraisal or misuse of powers’. At 65, per CJEU T-13/99 Pfizer: ‘a scientific risk assessment carried out as thoroughly as possible on the basis of scientific advice founded on the principles of excellence, transparency and independence is an important procedural guarantee whose purpose is to ensure the scientific objectivity of the measures adopted and preclude any arbitrary measures.’

Specifically for current Regulation: at 66: ‘the burden of proving that the conditions for approval or renewal under Article 4 of Regulation No 1107/2009 are met lies, in principle, with the notifier.’ At 67 per CJEU T-584/13 BASF Agro: ‘it is the person seeking approval who must prove that the conditions of such approval are met in order to obtain it, and not the Commission which must prove that the conditions of approval are not met in order to be able to refuse it’.

The General Court then at length considers the procedure followed, including the reasons for the identified gaps, and then assesses the application of the precautionary principle to same: at 109 ff with reference to the 2000 Communication on the Precautionary Principle, COM(2000)1. Crucially, at 121, as noted ‘(u)nder Regulation 1107/2009 when the applicant words its renewal application, it bears the burden of proving the efficacy and safety of the substance in question.’ ‘Since it did not discharge that burden, the approval of the active substance could not be renewed.’

The case highlights once again the crucial nature of administrative compliance with the rulebooks under EU regulatory law. Many of us will have sat through presentations by EFSA or EC officials outlining the rules in excruciating and yes, not very sexy detail. Yet to follow procedure to a tee is crucial to ensure defence against corporations taking issue with the findings at the CJEU.

The case also emphasises the importance of burden of proof and, preferably, the ‘no data, no market’ rule in EU regulatory law.

There might of course still be an appeal with the Court.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

Precautionary principle, standard of proof, standards of judicial review. https://t.co/gHDzyIQS1u pic.twitter.com/R1Z1qCy4qq

— Geert Van Calster (@GAVClaw) May 29, 2020

Must Article 107 TFEU be interpreted as meaning that a system whereby a private, non-profit eco-body, approved by the public authorities, receives contributions from those who place on the market a particular category of product and who enter into a contract with it to that effect, in return for a service consisting in the organisation on their behalf of the treatment of the waste from those products, and redistributes to operators responsible for the sorting and recovery of that waste, subsidies the amount of which is set out in the approval, in the light of environmental and social targets, is to be regarded as State aid within the meaning of that provision?

That is the question as phrased in C‑556/19 Société Eco TLC and on which Pitruzzella AG Opined on 28 May. TLC stands for Textiles, Lignes de maisons, and chaussures (textiles, household linen and shoes). Producers or as the case may be first importers pay a fee to the collective body in lieu of their personal commitments under extended producers responsibility per Waste Framework Directive 2008/98.

The AG of course revisits the definition of ‘State Aid’ under CJEU C-379/98 Preussen Elektra, on which more here and here. Preussen Elektra remains controversial for it would seem to give Member States quite a bit of room for manoeuvre to reach the same result as direct State Aid more or less simply by inserting a private operator who receivs funds directly from private operators however in line with direct State instructions on level and modalities of payment.  The AG opines that in the case at issue there is no State Aid however he directs further factual lines of enquiry (ia re the State control over payments by the collective body to recyclers.

Geert.

Handbook of EU Waste law, 2nd ed. 2015 OUP, para 4.116 ff.

 

State Aid, collective #waste recycling bodies. https://t.co/UaPdf4T69b

— Geert Van Calster (@GAVClaw) May 29, 2020

TÜV Rheinland LGA Products et Allianz IARD
DISC
L’interdiction générale de discrimination en raison de la nationalité ne peut être invoquée pour contester une clause, contenue dans un contrat conclu entre un fabricant de dispositifs médicaux et une compagnie d’assurances, limitant territorialement la couverture d’assurance de responsabilité civile

Alianța pentru combaterea abuzurilor
Environnement et consommateurs
La protection stricte de certaines espèces animales prévue par la directive « habitats » s’étend aux spécimens qui quittent leur habitat naturel et se retrouvent dans des zones de peuplement humain

Prezident Slovenskej republiky
Liberté d'établissement
Le fait que, en Slovaquie, le pouvoir de nommer et de révoquer le président de l’autorité de régulation nationale est passé du président de la République au gouvernement ne constitue pas, en soi, une violation de la directive sur le marché de l’électricité

ratiopharm
Rapprochement des législations
Les entreprises pharmaceutiques ne peuvent pas distribuer gratuitement aux pharmaciens des échantillons de médicaments délivrés uniquement sur ordonnance

Transportes Aéreos Portugueses
Transport
Le comportement perturbateur d’un passager aérien peut constituer une « circonstance extraordinaire » susceptible d’exonérer le transporteur de son obligation d’indemnisation pour l’annulation ou le retard important du vol concerné ou d’un vol suivant opéré par lui-même au moyen du même aéronef

Commission / Dôvera zdravotná poistʼovňa
Aide d'État
La Cour confirme la décision de la Commission selon laquelle les organismes d’assurance maladie opérant sous le contrôle de l’État slovaque ne relèvent pas des règles du droit de l’Union en matière d’aides d’État

In La Micro Group (UK) Ltd & Anor v La Micro Group, Inc & Ors[2020] EWHC 1405 (Ch) 1st Claimant, LA Micro Group (UK) Ltd (“LA (UK)”), is an English company. It was incorporated in 2004 and acquired by the 2nd Claimant, Mr David Bell, a British citizen resident in England. It now has two issued shares, one in the name of Mr Bell, and one in the name of the 3rd Defendant, Mr Arkadiy Lyampert. Mr Bell and Mr Lyampert are also the two directors of the company. The substantive question raised in the action is as to the beneficial ownership of LA (UK). The position of the Claimants is that Mr Bell and Mr Lyampert are not only the legal owners of the two issued shares but also the beneficial owners, and that they are each entitled to 50% of the distributable profits of the company by way of dividends. Mr Lyampert’s position is the same, although he has indicated that he does not intend to take any active part in the proceedings. All defendants are resident in California.

This preliminary issue is one of jurisdiction given claimants seek permission to serve out of jurisdiction. There are a variety of proceedings in California: disputes between Mr Frenkel and Mr Lyampert in 2010 led to Mr Frenkel and some of LA Inc’s other employees, including Mr Gorban, leaving LA Inc and starting a competing business called IT Creations, Inc (“ITC”). In the words of the Court of Appeal of California, “a profusion of lawsuits followed”.

It is i.a. argued by defendants that it would an abuse of process for LA Inc to relitigate the same issues as were decided by that judgment, even if the CAL judgments do not strictly give rise to res judicata given the differences between parties.

At 49 Nugee J holds on that particular issue that the relevant CAL Judgment did not decide anything about whether LA Inc had lost its rights to a beneficial interest in LA (UK), and the findings of fact on which the Claimants rely were not necessary to the English court’s decision on any of the matters that were in issue.

Of specific interest to the blog is the forum non conveniens application at 58 ff., with at 68 ff consideration of whether one of the pending CAL proceedings is the mirror image of the English ones, which would count heavily in a forum non consideration given the English law’s preference for the whole issue to be submitted to one tribunal. At 78 Nugee J  sums up the core issue:

The choice is between (i) allowing the English proceedings to continue so that a definitive answer can be given to one discrete question (has LA Inc lost its beneficial interest?) which will then enable the Californian court to proceed on a correct understanding of what has been decided in England rather than on what is said to be a misapprehension; or (ii) requiring the Claimants, unless they are willing to abandon their claims, to go to California to argue matters that on the view I take are matters of English law and largely concern acts taking place in England.

At 77 Nugee J expresses strong support for Gleichlauf:

(T)here are many advantages in questions of law being decided by a home court rather than a foreign court. Evidence and cross-examination is not required, which is likely to make resolution of the point both quicker and cheaper. And the court is familiar with its own law, in a way that it is not with foreign law, which means that the court’s resolution of the issues is likely to be both easier and more soundly based. Other things being equal, I have no doubt that it is preferable, both in terms of practical convenience and in terms of the ends of justice, for questions of English law to be argued in England as questions of law rather than for them to be argued in California as questions of fact on expert evidence (and possibly, although I have no evidence as to whether this would be the case, before a jury).

He concludes at 92:

England is the most appropriate forum for those matters to be decided; but even in relation to the declarations in respect of Mr Lyampert’s share, leaving the parties to litigate in California has a mix of advantages and disadvantages and there is not in my judgment sufficient to displace England as the forum in which the dispute can most suitably be tried for the interests of all the parties and for the ends of justice.

Nugee J does not therefore give Gleichlauf preponderant weight ab initio. Yet all other things being equal, Gleichlauf in this case pushed back a finding of forum non.

Geert.

Application for stay on forum non conveniens grounds. Dismissed.
Nugee J: 'Leaving parties to litigate in CAL has mix of (dis)advantages, not sufficient to displace EN as forum in which dispute can most suitably be tried for the interests of all parties and for ends of justice. https://t.co/Rm3i16dEPg

— Geert Van Calster (@GAVClaw) June 3, 2020

Graham Woloff eaor Calzaturificio Zengarini eaor re Akkurate Ltd, [2020] EWHC 1433 (Ch) concerns the question whether the court has the power under section 236(3) of the Insolvency Act 1986 to require persons resident in the EU to produce books and papers and an account of their dealings with a company being compulsorily wound up in England and Wales (it is not disputed that Akkurate’s centre of main interests (“COMI”) was in England and Wales under the European Insolvency Regulation EIR).

EIR 2000 applies to this case, because the winding up of Akkurate was before 26 June 2017, however the issue is not materially different in the new Regulation. There are inconsistent first instance decisions which Vos C reviews ia at 27 ff and at 54 after consideration, he considers s236(3) does not have extraterritorial effect on the basis of what he considers to be the binding authority of Re Tucker (a bankrupt) [1990] Ch. 148. however that following the EIR 2000 (unchanged in EIR 2015) the European regime can and does extend the territoriality of purely domestic insolvency provisions. CJEU authority cited is in particular C-339/07 Seagon v Deko Marty Belgium (at 58 ff) – which I find may be a bit optimistic. Vos C also decides that he can and should apply his discretion to grant orders as formulated at 68.

Clearly, post Brexit, the situation will revert to Tucker. Which would make the English courts less attractive than their continental counterparts – although of course one would have to wait for CJEU authority to confirm the issue less equivocally.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5,

 

EU #Insolvency Regulation 1346/2000. Whether EN court has power to require persons resident in EU to produce documents re company with COMI in EN.

Held, considering CJEU authority: Yes. https://t.co/0dcgtOc7fF

— Geert Van Calster (@GAVClaw) June 4, 2020

Mad Atelier International BV v Manes [2020] EWHC 1014 (Comm) engages among others Articles 29-30 BIa on lis alibi pendens and its relation with issue estoppel. Stewart Chirnside has analysis here and  I am happy to refer. The judgment itself is not straightforward for Bryan J had much to decide – I agree with his conclusion at 124 on A29-30 BIa related issues that he is

‘satisfied that the French Civil Proceedings does not give rise to any issue estoppel because, for the reasons that I have given: (1) The decision of the Paris Commercial Court on such issues is not final or conclusive; (2) The parties to both proceedings are not privies; (3) The issues identified by Mr Manès were not issues concluded by the court, but rather comments on the state of the evidence, and (4) The issues in the English Proceedings are significantly broader than the issues in the French Civil Proceedings. Each of these is, in and of itself, fatal to the contention that an issue estoppel arises from the Paris Judgment, and I find that no issue estoppel arises.’

Geert.

 

 

 

Recognition and enforcement. Res judicata. Issue estoppel. https://t.co/yJDw3uHMD6 https://t.co/ACwZWMB6Wg

— Geert Van Calster (@GAVClaw) May 1, 2020

The Court of Justice delivered this week, on 4 June 2020, its judgment in case C‑41/19 (FX v GZ, represented for legal purposes by her mother), which is about the Maintenance Regulation.

Context: “By decision of the Sąd Okręgowy w Krakowie (Regional Court, Krakow, Poland) of 26 May 2009, FX was ordered to make monthly maintenance payments of around EUR 100 for the benefit of his daughter GZ, a minor, retroactively from June 2008.

20 Further to GZ’s application of 20 July 2016, the Amtsgericht Köln (Local Court, Cologne, Germany), by order of 27 July 2016, decided that an order for enforcement was to be issued in respect of the aforementioned decision of the Sąd Okręgowy w Krakowie (Regional Court, Krakow).

21 On the basis of that order declared enforceable, GZ, represented for legal purposes by her mother, initiated enforcement proceedings against FX in Germany. Challenging those proceedings, FX lodged before the Amtsgericht Köln (Local Court, Cologne) on 5 April 2018 an application opposing enforcement, pursuant to Paragraph 767 of the ZPO.

22 In support of his application, FX submits that the maintenance debt at issue in the main proceedings was discharged either directly until 2010 or, since December 2010, through the Maintenance Fund (Poland), to which FX claims to have reimbursed the sums paid to GZ to the extent of his financial capacity. FX maintains that, in any event, the debt has been predominantly settled”.

Issue: “The referring court has doubts, in the first place, as to whether the application opposing enforcement that FX lodged before it falls within its international jurisdiction.

24 On the one hand, the referring court states that if that application is to be treated as a matter relating to maintenance obligations within the meaning of Article 1 of Regulation No 4/2009, it has no international jurisdiction under that regulation and accordingly the Polish courts would have exclusive jurisdiction to examine FX’s objection that the maintenance debt at issue in the main proceedings has been discharged.

25 In that regard, the referring court notes that part of the German literature takes the view that an application opposing enforcement under Paragraph 767 of the ZPO is in fact to be treated as a matter relating to maintenance obligations within the meaning of Regulation No 4/2009 in so far as the objections raised in such an application, in particular those relating to the fulfilment or subrogation of that claim, are ultimately directed against the order for enforcement as such rather than the manner of the enforcement, which is to be assessed purely under enforcement law. Similarly, the referring court points out that that application opposing enforcement functionally corresponds to an application seeking reduction of the maintenance claim in respect of which an order for enforcement has been issued, which modification application, under Article 8 of Regulation No 4/2009, is subject to the jurisdictional principles set out therein. In the referring court’s view, that interpretation, which is supported by part of the German literature and which the referring court is inclined towards, is the only one compatible with the objective pursued by that regulation, namely guaranteeing the protection and jurisdictionally privileged status of the maintenance creditor, without, accordingly, the creditor having to defend himself, before the courts of the Member State of enforcement of the claim for which an order of enforcement has been issued, against an application opposing enforcement concerning substantive objections to that claim.

26 On the other hand, the referring court observes that the German legislature, conversely, is evidently of the opinion that the courts of the Member State of enforcement of a maintenance claim have jurisdiction to adjudicate on an application opposing enforcement, such as that provided for in Paragraph 767 of the ZPO, in which the debtor is authorised to raise objections to the claim itself. According to the referring court, the prevailing view in Germany is furthermore that such an application opposing enforcement does not come under matters relating to maintenance obligations within the meaning of Regulation No 4/2009 on the ground that, inter alia, the legal protection objective sought is directed solely against the enforcement of the claim, whereas the continuance of the original order remains untouched.

27 If that second position is to prevail, the referring court asks, in the second place, whether FX’s application opposing enforcement is then to be treated as ‘proceedings concerned with the enforcement of judgments’ within the meaning of Article 24(5) of Regulation No 1215/2012.

28 According to the referring court, the judgments of 4 July 1985, AS-Autoteile Service (220/84, EU:C:1985:302) and of 13 October 2011, Prism Investments (C‑139/10, EU:C:2011:653) are not capable, by themselves, of providing an answer to that question. Indeed, they were delivered in the regulatory framework preceding the entry into force of Regulation No 4/2009. In addition, pursuant to Article 1(2)(e) of Regulation No 1215/2012, that regulation does not apply to maintenance obligations”.

Question: “By its questions, which it is appropriate to examine together, the referring court asks, in essence, whether an application opposing enforcement lodged by a maintenance debtor against the enforcement of a decision given by a court of the Member State of origin and which established that claim falls within the scope of Regulation No 4/2009 or that of Regulation No 1215/2012 and the international jurisdiction of the courts of the Member State of enforcement”.

Response from the Court of Justice: “Council Regulation (EC) No 4/2009 […] is to be interpreted as meaning that an application opposing enforcement brought by the maintenance debtor against enforcement of a decision given by a court of the Member State of origin and which established that debt, which has a close link with the procedure for enforcement, falls within its scope and is within the international jurisdiction of the courts of the Member State of enforcement.

Pursuant to Article 41(1) of Regulation No 4/2009 and to the relevant provisions of national law, it is for the referring court, being a court of the Member State of enforcement, to adjudicate on the admissibility and the validity of the evidence adduced by the maintenance debtor, seeking to support the submission that he has predominantly discharged his debt”.

Source: here

Many thanks indeed Kevin La Croix for flagging the suit brought in New York by a group of Bayer AG shareholders, against Bayer (with seat at Leverkusen, Germany), concerning the not altogether successful purchase of Monsanto by Bayer. Kevin has excellent analysis and I am happy to refer.

Claimants of course pre-empt arguments of lack of subject-matter jurisdiction and, subsidiarily, forum non conveniens – please refer to Kevin’s overview for the arguments to and fro. Most interesting. It brought back to me echoes of the Australian case of Tiger v Morris, not because the subject-matter is similar (it is not) but because in this increasingly globalised world (despite Covid19), courts everywhere are increasingly asked to consider the reach of their courts in cases with competing local and foreign interests. Comity considerations underlying the historic roots of conflict of laws are being brought back to the fore, no doubt also partially as a result of the impact of third party financing, contingency fees etc.

One to keep an eye on. One wonders whether Bayer might be launching a related case in Germany, then triggering A33/34 considerations.

Geert.

 

 

Forum shopping, corporate law. Lex causae undoubtedly German law. Shareholder seeking to take advantage in particular of procedure.

via @alahav https://t.co/TBcKULJIQc

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

Lundbeck / Commission
Concurrence
L’avocate générale Kokott propose à la Cour de justice de valider l’amende de près de 94 millions d’euros infligée au groupe pharmaceutique Lundbeck dans le cadre de l’entente visant à retarder la commercialisation de génériques de son médicament antidépresseur citalopram

Jefferies International Ltd & Anor v Cantor Fitzgerald & Co & Ors [2020] EWHC 1381 (QB) engages everything including the kitchen sink (but excluding Articles 33-34 Brussels Ia, one assumes because no competing foreign suits were pending when the English courts were seized) in its application for a stay.

The First to Third Claimants [together Jefferies] and the First to Third Defendants [together Cantor] carry on business in the financial services industry internationally, including investment banking and capital markets business and in particular in the international power and renewables sector. The First Defendant is a general partnership organised under the laws of New York. The Second Defendant is an unlimited company registered in England and regulated by the Financial Conduct Authority. The Third Defendant is a limited liability company incorporated in Hong Kong. The action arises out of what has become known as a team move. Jefferies’ case is that on 20 November 2017 twenty-six of its employees each resigned in materially identical terms, almost all of the resignations took place at 11.00 am London time notwithstanding that this was outside the normal working hours of those who worked in New York and Hong Kong, each of the employees in each jurisdiction instructed the same solicitors and each now works for Cantor. Jefferies asserts that Cantor has directed each of the twenty-six employees to refuse to honour repayment obligations in respect of certain “Replacement Awards” and “Bonuses” which were triggered by their resignations and subsequent employment by Cantor.

The following issues were agreed for determination:

i) Are the claims of Jefferies US against Cantor US subject to an arbitration agreement between Jefferies US and Cantor US, and if so should those claims be stayed pursuant to the Arbitration Act 1996 section 9?

ii) Should Jefferies’ claims against Cantor US and Cantor HK be stayed because England is not the proper place for determination of those claims?

iii) Should Jefferies’ claims against Cantor US and Cantor HK be stayed because Jefferies breached its duty of fair presentation on its without notice application for permission to serve out?

iv) Do Jefferies’ claims against Cantor US and Cantor HK, insofar as they relate to repayment agreements governed by New York law, have no reasonable prospects of success, because those repayment agreements are unenforceable as a matter of New York law?

v) Should service of the claim form and particulars of claim on Cantor US and Cantor HK and the Order of Master Thornett granting permission to serve Cantor US and Cantor HK out of the jurisdiction be set aside on any of the above grounds?

vi) Should the proceedings (or any part of them not otherwise stayed on the above grounds) be stayed on case management grounds pending final award in the FINRA arbitration?

vii) Should Jefferies’ claims against the Employee Defendants be stayed as a result of exclusive jurisdiction clauses in relevant repayment agreements favouring the courts of the State of New York?

viii) Should Jefferies’ claims against the Employee Defendants be stayed on case management grounds pending final award in the FINRA arbitration?

Master Cook dismissed all applications for a stay in a surprisingly (given the size of the list) succinct judgment and readers are best referred to the text itself for perusal. Other than Articles 33-34 (see above), only abuse of process I think could have been added to this extensive list of attempted grounds for a stay.

Geert.

 

Application for stay on the basis of i.a. forum non, case management, preference to #arbitration.
All dismissed. Claims to proceed, with English anchor defendant. https://t.co/nsvXupnH4z

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

Thank you Helene Peroz for flagging the French Supreme Court on 13 May last referring to the CJEU for clarification of the Bolagsupplysningen case-law. The case concerns Gtflix Tv which I understand is a Czech adult entertainment corporation, who is suing Mr X, himself a producer of porn and domiciled at Hungary, arguing Mr X has defamed them in public comments.

Gtflix claim both retraction and correction of the comments, and symbolic damages. X argues the French courts do not have jurisdiction and the Court of Appeal at Lyons agreed. It held that Gtflix cannot suffice with a simple show of accessibility of the comments in France: for it to establish jurisdiction, Gtflix was required to show real damage to its reputation in France.

The Supreme Court first of all held that Bolagsupplysningen is good authority for acts of unfair competition between competitors – a finding which was not as such made in Manitou v JCB and on which the court does not refer to the CJEU. The applicable law issues which I discussed earlier in the week, were not subject of the Cour de Cassation’s assessment.

The court then does refer to the CJEU to ask whether Bolagsupplysningen means that a claimant who requests both rectification /retraction and damages, has to necessarily turn to courts with full jurisdiction or whether they can continue to turn for the damages part, to all courts with locus damni jurisdiction.

The specific question referred, is

“Les dispositions de l’article 7, point 2, du règlement (UE) n° 1215/2012 doivent-elles être interprétées en ce sens que la personne qui, estimant qu’une atteinte a été portée à ses droits par la diffusion de propos dénigrants sur internet, agit tout à la fois aux fins de rectification des données et de suppression des contenus, ainsi qu’en réparation des préjudices moral et économique en résultant, peut réclamer, devant les juridictions de chaque État membre sur le territoire duquel un contenu mis en ligne est ou a été accessible, l’indemnisation du dommage causé sur le territoire de cet État membre, conformément à l’arrêt eDate Advertising (points 51 et 52) ou si, en application de l’arrêt Svensk Handel (point 48), elle doit porter cette demande indemnitaire devant la juridiction compétente pour ordonner la rectification des données et la suppression des commentaires dénigrants ?” ;

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

 

Unlike the High Court in BVC v EWF [https://t.co/2TjXwU3Hpj], the French SC does refer to the CJEU for further specification of C-194/16 Bolagsupplysningen [https://t.co/W5cCaB3QGf]
Re jurisdiction in the event of libel via the internet. https://t.co/5BTfNPzhzN

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

X v Y [2020] EWHC 1116 (Fam) is an uncomplicated case for conflict of laws aficionados. It includes a bit of Vorfrage, a bit of qualification, and a bit of temporal application of Brussels IIa.

Applicant Mr X seeks against the respondent Miss Y to rectify, as he sees it, a decree of divorce granted in relation to his marriage to Miss Y as long ago as 1997. They were married, first of all at a ceremony in Madrid on 25 May 1993, without the knowledge of any member of the wider family. Relationships between the wider families then mellowed to a degree, and there was apparently a second ceremony of marriage conducted in a Registry Office in London on 31 May 1994.

Relevant divorce and financial orders followed  in 1996 and 1997. The divorce petition had been based upon the assertion that the marriage to be dissolved was the second marriage, namely the one conducted in England in May 1994. No reference was made to the earlier marriage conducted in Madrid in 1993. Respondent’s case is that she considers that she is still married to Mr X, and that the Spanish marriage governs their status, and that they cannot be divorced unless and until there are divorce proceedings in Spain. She has, however, indicated a willingness to agree to a contrary outcome, provided a very substantial financial settlement is now made in her favour.

The 1996 petition only referred to the 1994 marriage, and it was that marriage that was referred to in the decree nisi and the decree absolute. It is important to Mr X that the declaration of his divorced status is sound, one assumes because he has remarried. He therefore seeks to rectify the decree absolute, and before it the decree nisi, so that they reflect that the marriage being dissolved was the Spanish marriage in 1993.

The Brussels II Regulation only entered into force in 2005 and jurisdiction for the decrees was governed by section 5 of the Domicile and Matrimonial Proceedings Act 1973: “The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage (a) is domiciled in England and Wales on the date when the proceedings are begun or (b) was habitually resident in England and Wales throughout the period of one year ending with that date.” Mr X was domiciled in England and Wales at the time, there was therefore valid jurisdiction.

Relevant authority for the correction or variation, is Thynne v Thynne [1955] 3 All ER 129 which McFarlane J applies to rectify the decree nisi and the decree absolute, so that they record the marriage that was being dissolved as being the Spanish marriage of 1993.

Geert.

 

The background in Wright v Ver [2020] EWCA Civ 672 is the mysterious history of Bitcoin and its creator, ‘Satoashi Nakamoto’. “Satoshi Nakamoto” is the pseudonym used by the person, or persons, who developed Bitcoin. On 31 October 2008 an academic paper was published under the name of Satoshi Nakamoto titled “Bitcoin: A peer to peer electronic cash system”. The academic paper described the manner in which the electronic cash system operated. Dr Craig Wright, claimant and appellant, is a national of Australia who now lives in Surrey. He has lived in the UK since December 2015 after emigrating from Australia. He also became a citizen of Antigua and Barbuda in 2017. He is a computer scientist with a particular interest in cryptocurrencies, including Bitcoin. Dr Wright says that he is Satoshi Nakamoto.

Roger Ver, defendant and respondent, is a bitcoin investor and commentator on bitcoin and other cryptocurrencies. Mr Ver was born in California, and raised in Silicon Valley. He moved to Japan in 2005. In 2014 he renounced his US citizenship and became a citizen of St Kitts & Nevis, although he continues to live in Japan. Mr Ver does not accept that Dr Wright is Satoshi Nakamoto.

The judgment does not address whether Dr Wright is Satoshi Nakamoto.

Dr Wright claims that he was libelled by Mr Ver in a YouTube Video posted on the Bitcoin.com YouTube channel on about 15 April 2019, a tweet containing the YouTube Video posted on Mr Ver’s Twitter Account on 3 May 2019, and a reply on Mr Ver’s Twitter Account posted on 3 May 2019 some 8 minutes after the tweet from Mr Ver. The defamatory meaning of these publications is said to be that Dr Wright “had fraudulently claimed to be Satoshi Nakamoto, that is to say the person, or one of the group of people who developed Bitcoin”.

Never more (data produced were broken down over periods) than 7 of the total YouTube views were in the UK. 7% of Mr Ver’s Twitter followers are in the UK. By judgment dated 31 July 2019 Mr Justice Nicklin found that England and Wales was not clearly the most appropriate place in which to bring the libel claim in this action and made a declaration that the Court had no jurisdiction to hear the claim.

The Court of Appeal, Dingemans LJ leading, agreed. Brussels Ia is not engaged. The jurisdictional test is section 9 of the Defamation Act 2013 – I previously discussed it in Sadik v Sadik: ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.’

At 56 Dingemans notes that after Brexit, the Act’s reach will increase.

The first instance judge had argued inter alia that the evidence showed that Dr Wright was putting down roots in the UK and that would increase the reputational interests that Dr Wright had in this jurisdiction but that could not displace the global reputation that he enjoyed.

Dr Wright’s counsel submitted that the judge had set Dr Wright an impossible task by requiring him to adduce evidence of actual harm to his reputation in each candidate jurisdiction, and concluding that in the absence of such evidence Dr Wright could not satisfy the jurisdictional test. Further it was submitted that the judge had wrongly failed to carry out a comparative assessment as to whether each candidate jurisdiction was appropriate for the claim, and therefore failed to carry out the task mandated by s9.

Relevant factors for jurisdiction are discussed at 61 ff. Evidence will have to be shown of all the places in which the relevant statement has been published, as well as the number of times it has there been published. Targeting the publication at an English audience clearly will be an issue. Further elements include the availability of fair judicial processes in the other jurisdictions in which publication occurred. The available remedies from the Courts of the other jurisdictions may be relevant, as may be the costs of pursuing proceedings in each possible jurisdiction. Other factors that might impact on access to justice, for example language barriers, can be relevant. The location of likely witnesses is another feature that may be relevant. This list of factors is not exhaustive.

In a mercifully succinct manner, Dingemans J reviews all the elements and decides the test has not been met here.

A good primer for the 2013 Act.

Geert.

 

Thank you Matthias Lehmann for flagging X v Yelp , held 14 January 2020 at the Bundesgerichthof (German federal court) and to Jef Ausloos for drawing our attention to X and Avrotros v Facebook BV and Facebook Ireland ltd held 15 May 2020. An English summary of that case is here. Note that the Dutch case is one in interlocutory proceedings. Both concern the application of Article 7(2) Brussels IA at the jurisdictional level, and Rome II at the applicable law level, with respect to reputational damage.

In the German Yelp case, a German gym had complained that Yelp’s review algorithm had created a distorted picture of its business. Jurisdiction was established under Article 7(2) Brussels Ia per CJEU Bolagsupplysningen: centre of interests in Germany.  As to applicable law, the pickle is A1(20(g) Rome II which excludes from its scope of application,  “non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation”.

Under residual German PIL, claimant has a choice between lex locus damni or lex locus delicti commissi. Matthias points to the difficulty:  if companies have ‘personality rights’ within the meaning of Rome II (Bolagsupplysningen clearly suggests they do; but that is a jurisdictional case) then the issue ough to be held exempt from Rome II. Except, a big chunk of unfair trading practices consists of thrashing a competitor’s reputation – and A6 Rome II has a specific lex causae for unfair trading practices.

The German court does not address the issue directly for it held that claimant had made an implicit choice for lex locus damni – German law: the same result as Rome II would have had.

In the Dutch case, the Court likewise holds jurisdiction on the basis of centre of interests,  and then squarely applies A4 Rome II’s genral lex locus damni rule (the action was based against Facebook, arguing that FB was not taking enough measures to block fake/fraudulent bitcoin ads on its platform).

On the choice of court suggestion of Facebook, the court holds that current dispute is not of a contractual nature and that FB’s contractual choice of court and law does not extend to same; it leaves undecided whether the celebrity at issue can be considered a ‘consumer’ for jurisdictional purposes (their FB use I imagine potentially having developed into, or even started as professional use: see the dynamic nature per CJEU C-498/16 Schrems). There must be more argument in there.

Interesting cases, with both courts cutting corners.

Geert.

Court establishes jurisdiction on the basis of A7(2) BIa per Bolagsupplysningen
Then however squarely applies Rome II to what it calls 'reputational damage' – not discussing A1(2)(g) personality rights exception
Compare DE decision reported @eapilorg here https://t.co/0i1OyrK0fM https://t.co/ggBOH1pgMQ

— Geert Van Calster (@GAVClaw) May 28, 2020