Flux européens

Miasto Łowicz
Droit institutionnel
La Cour déclare irrecevables deux demandes de décision préjudicielle concernant les mesures polonaises de 2017 établissant un régime de procédure disciplinaire à l’égard des juges

In Bournemouth, Christchurch and Poole Council v KC et al [2020] EWFC 20, Dancey J at  62 ff is the first UK judge to my knowledge to discuss the implications of the UK’s separation from the EU’s civil procedure /justice and home affairs agenda, particularly in the transition period. It includes a discussion of the UK’s Brexit (EU Exit) Regulations 2019/2003, reg 3, and the European Commission notice on transition provisions.

The care proceedings concern W, a girl aged 9, nearly 10. W’s parents, who were married, are Polish nationals and W was born there. Following the separation of the parents in Poland in April 2016, contested contact proceedings there resulted in an order providing that W live with the mother with contact to the father. The father’s parental responsibility was limited to decisions about medical treatment and education. Following the breakdown of the father’s contact with W, the mother brought her to the UK in June 2018 where they have remained since. That was done without the father’s agreement, although he was aware the mother planned to relocate and acquiesced once the move had taken place. The mother did not tell the father of her and W’s location within the UK.

The legal framework therefore is Brussels IIa, Regulation 2201/2003. Dancey J at 63 concedes that by reg 8 of 2019/2003, dealing with saving/transitional provisions, the UK’s revocation from Brussels IIa does not apply to proceedings before a court in a Member State seised before 31 December 2020. However he then refers to the EC Notice to Stakeholders: Withdrawal of the United Kingdom and EU Rules in the Field of Civil Justice and Private International Law: 18/1/2019, and suggests it means that EU rules on recognition and enforcement will not apply to a UK judgment, even if the judgment was given, or enforcement proceedings started, before 1 January 2021 unless the judgment has been exequatured (declared enforceable by the courts of the Member State where recognition or enforcement is required) before 1 January 2021. Support for his opinion is found I suspect mostly in Heading 2.2 of that Notice.

At 66 Dancey J suggests in practice the consequence should not be too dramatic in the case at issue for ‘one or other of the parents should apply promptly in Poland for a declaration recognising this judgment and the order that will follow (exequaturing the judgment).’ That absence of real delay in the case at issue may well be true (it is confirmed by a letter from the Polish consulate) however the  implications are already clear and no surprise. Enforcement of UK judgments will be a lot less smooth post Brexit.

Geert.

Bru IIA Regulation
Incl 1st (?)) application of Jurisdiction, Judgments (Family) part of the #Brexit (EU Exit) Regulations 2019/2003, reg 3.
EC notice on transition provisions
Exequatur needed even if judgment was given, or enforcement proceedings started, before 1 January 2021. https://t.co/Ve8MKYzMdd

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

Thank you Ennio Piovesani for signalling and reviewing one of the first conflicts-specific developments on the Corona /Covid 19 landscape.

In an effort to safeguard the economic position of the travel sector, the Italian Government by decree has essentially frozen the travel sector’s statutory duty to reimburse travellers whose package travel has become impossible due to the pandemic. Ennio reports that the decree refers specifically to Article 9 Rome I’s overriding mandatory law provisions (earlier applied in Unamar), (in his translation): ‘“The provisions of the present article constitute overriding mandatory provisions within the meaning of Article 17 of Law of 31 May 1995, No. 218 [“Italian PIL Act”] [5, 6] and of Article 9 of Regulation (EU) No. 593/2008 of the European Parliament and of the Council, of 17 June 2008 [“Rome 1 Regulation”]”.

Ennio signals and important issue: how much leeway may be given to Member States to push their own definition of the concept of ‘lois de police’ /overriding mandatory law in light of the CJEU definition in Joined Cases C-369/96 and C-376/96 Arblade. In Brussels Ia of course the CJEU has pushed the concept of ordre public in a limited direction. Lois de police however are different from ordre public and Rome I is not Brussels Ia, and I am therefore not so pessimistic as Ennio when it comes to leaving a lot of discretion to Member States. What to me looks a touch more problematic is the relation with the package travel Directive 2015/2302 which applies to many of the travel arrangements concerned and which is the source of many of the protections for travellers.

No doubt to be continued.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.8.3.

 

Entrée en fonctions d’un nouvel avocat général à la Cour de justice

A quick note on Kenyon v Secretary of State for Housing Communities & Local Government et al [2020] EWCA Civ 302 in which Coulson J checks planning consent ia against the requirements of the EU Environmental Impact Assessment- EIA Directive 2011/92. Of particular interest is his application of the Wednesbury judicial review test.

At 12: ‘A decision as to whether a proposed development is or is not likely to have significant effects on the environment can only be struck down on Wednesbury grounds’. ‘Wednesbury unreasonableness‘ is akin to CJEU standard of judicial review. Diplock J formulate it later as an administrative decision being annulled only if it was ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ The grounds in Wednesbury are very akin to the CJEU grounds: annulment will follow only if (well summarised by Wiki):

• in making the decision, the defendant took into account factors that ought not to have been taken into account, or
• the defendant failed to take into account factors that ought to have been taken into account, or
• the decision was so unreasonable that no reasonable authority would ever consider imposing it.

Applied at issue at 63 ff to the precautionary principle, applicant’s argument that ‘inevitable air pollution caused by the development’ must be taken into account, fails. at 67: ‘In circumstances where there was no doubt in the mind of the relevant decision-maker, there is no room for the precautionary principle to operate.’ (Clearly and in applying all Wednesbury principles, that absence of doubt must have followed from the right information having been taken into account).

Geert.

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

 

Environmental Impact Assessment #EIA, consideration ia of Directive 2011/92.
Argument based on the precautionary principle fails: 'inevitable air pollution' caused by a planned development does not suffice to trigger the principle.
(Wednesbury judicial review principles). https://t.co/jCa8r4FLJA

— Geert Van Calster (@GAVClaw) March 5, 2020

Sánchez Ruiz
SOPO
Les États membres ne peuvent exclure de la notion de « relations de travail à durée déterminée successives » la situation d’un travailleur occupant de manière pérenne, en vertu de plusieurs nominations, un poste de remplacement en l’absence de procédure de concours, sa relation de travail ayant été ainsi implicitement prorogée d’année en année

"AGRO IN 2001"
Espace de liberté, sécurité et justice
Le droit de l’Union n’empêche pas les États membres de prévoir des procédures civiles de confiscation indépendamment du constat d’une infraction pénale

In Manitou v J.C. Bamford Excavators, (defendant is better known as ‘JCB’ which in England is an eponym for ‘digger’ or excavator) the Paris Court of Appeal held that French Courts have jurisdiction in an interesting tale of patent insults. JCB (England incorporated) had obtained a French injunction against Manitou (domiciled at France) obliging it to halt production of one of its products possibly in violation of a JCB patent. On the eve of an important trade fair taking place in France, JCB boasted about the injunction in a Twitter, Linked-in and website post. Manitou argue the post was insulting and an act of unfair competition.

Manitou claim jurisdiction on the basis of A7(2) BIa, special jurisdiction for tort, per CJEU C-618/15 Concurrences /Samsumg /Amazon, which I reviewed here. It refers to all sites on which the news was posted being accessible in France (Pinckney would have been strong authority here); to the post discussing a French judgment which is only aimed at and enforceable in France; and that its publication was timed to coincide with the aforementioned French fair. JCB on the other hand argue mere accessibility does not suffice and that the sites did not target readers in France.

The Court refers both to Shevill and to Concurrences; decides that the very fact that the site was published in English does not insulate it from French jurisdiction (seeing also that plenty of potential clients looking to buy from Manitou at the time would have been in France for the fair); and that the publication clearly would have affected the brand’s reputation in France and also its sales there. Jurisdiction therefore established.

Geert.

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

Unfair competition, publication by UK defendant of judgment concerning #patent infringement
Jurisdiction, Article 7(2) Brussels Ia.
Paris CA upholds FR jurisdiction citing Shevill, Concurrences (on which https://t.co/Ibsofl7Jsl) https://t.co/WD61WwHtwv

— Geert Van Calster (@GAVClaw) March 5, 2020

Following the ratification of Qatar last week, on 12 March 2020, the United Nations Convention on International Settlement Agreements Resulting from Mediation will enter in force on 12 September 2020: that was quick!

Source: here

 

The Council on General Affairs and Policy of the Hague Conference met from 3 to 6 March 2020. Its conclusions and decisions are now available.

Key points:
“The projects on normative work include two further meetings of the Experts’ Group on Jurisdiction before CGAP 2021, the continuation of the Parentage / Surrogacy Project and the Tourists and Visitors Project, further work on the draft Practical Guide on cross-border recognition and enforcement of agreements reached in the course of family matters involving children and, subject to available resources, some exploratory work of the intersection of private international law and intellectual property and the monitoring of developments with respect to the private international law implications of distributed ledger technology (DLT).

In relation to post-Convention services, CGAP noted, amongst others, the approval of the Guide to Good Practice on Article 13(1)(b) under the 1980 Child Abduction Convention and the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention. CGAP also approved the holding of a first Special Commission on the 2007 Child Support Convention and its Protocol. In addition, CGAP invited another meeting of the Working Group on Preventing and Addressing Illicit Practices under the 1993 Adoption Convention, and an Experts’ Group to explore whether broader use of new technologies, including DLT, may further enhance the e-APP, in particular in relation to e-Registers”.

Source: here and there

For the Guide to Good Practice under the HCCH Convention of 25 October 1980 on the Civil Aspects of International Child Abduction – Part VI – Article 13(1)(b), see here

Last week, on 11 March 2020, the Court of Justice delivered its judgment in case C‑511/17 (Györgyné Lintner v UniCredit Bank Hungary Zrt.), which is about Directive 93/13 on unfair terms in consumer contracts:

“1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that a national court, hearing an action brought by a consumer seeking to establish the unfair nature of certain terms in a contract that that consumer concluded with a professional, is not required to examine of its own motion and individually all the other contractual terms, which were not challenged by that consumer, in order to ascertain whether they can be considered unfair, but must examine only those terms which are connected to the subject matter of the dispute, as delimited by the parties, where that court has available to it the legal and factual elements necessary for that task, as supplemented, where necessary, by measures of inquiry.

2. Article 4(1) and Article 6(1) of Directive 93/13 must be interpreted as meaning that, while all the other terms of the contract concluded between a professional and that consumer should be taken into consideration in order to assess whether the contractual term forming the basis of a consumer’s claim is unfair, taking such terms into account does not entail, as such, an obligation on the national court hearing the case to examine of its own motion whether all those terms are unfair”.

Source: here

Many thanks 2TG for initially flagging the judgment, and for Maura McIntosh and colleagues not just for further reviewing it but also for sending me copy: for the case has not yet appeared on the usual sites.

In Pandya v Intersalonika [2020] EWHC 273 (QB), Tipples J held that proceedings were time-barred in accordance with Greek law as the lex causae, where the claim form was issued in the English courts before the expiry of the applicable Greek limitation period, but was not served until after that period had expired.

The claim arises out of a road traffic accident that happened in Kos, Greece on 29 July 2012. The claimant is a UK national and was on holiday in Kos with her family when she was struck by a motorcycle as she was crossing the road. The claimant suffered a severe traumatic brain injury and was then aged fifteen. Defendant is the Greek-registered insurance company which provided insurance to the motorcyclist or the motorcycle that he was riding.

That claimant is entitled to sue the insurer in England is not of course, contrary to Tipples J passing reference, a result of Rome II but rather of Brussels IA. Jurisdiction however at any rate was not under discussion.

Defendant then relies on A15(h) Rome II to argue a time bar under Greek law, the lex locus damni: service of the claim is a rule of Greek law in relation to limitation and a claim has to be issued and served to interrupt the limitation period. This means that the requirement of service cannot be severed, or downgraded, to a step which is simply governed by the rules of civil procedure under English law. Claimant by contrast argues that service of the claim is a point of pure procedure, which falls squarely within Article 1(3) and is governed by the rules of civil procedure under English law.

At 25 ff Tipples J discusses the issue (I highlight the most relevant arguments)

• starting with the principle of autonomous interpretation;
• further, a need for wide interpretation of A15 which she derives from its non-exhaustive character. I do not agree that non-exhaustive listings necessarily equate broad interpretations;
• thirdly the need, by contrast, to interpret A1(3) narrowly ‘because it is an exception’ to the general rule of lex locus damni in A4. This too I disagree with: A1(3) states it ‘it shall not apply to evidence and procedure, without prejudice to Articles 21 and 22’ (which concern formal validity and burden of proof). In my view A1(3) like A1(2) defines the scope of application, like A1(2). It is listed separately from the issues in A1(2) for unlike those issues, part of the excluded subject-matter is partially brought back into the scope of application. If anything therefore needs to be interpreted restrictively, it is the partial cover of evidence and procedure.  Seemingly between parties however this was not disputed.
• Further support is found in Dicey & Morris 15th ed., which refers to Wall v Mutuelle de Poitiers a case which discusses the issues somewhat, yet if anything more in support of English law applying to the discussion in Pandya rather than the other way around. (A reference further on in Andrew Dickinson’s Rome II Volume with OUP in my mind, too, further underlines the opaqueness of the A1 /A15 distinction and does not clearly lend support pro the lex causae argument).
• Fifth, predictability and certainty are cited in support however how these gazump exclusions from the scope of application is not clear to me.
• Finally PJSC Tatneft v Bogolyubov is referred to but dismissed as irrelevant (which surprises me).

Held: the claim was time-barred and therefore dismissed.

I would suggest there is plenty of scope for appeal here.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 3.

Covid-19 : la Cour de justice de l’Union européenne prend ses dispositions afin d’assurer la continuité dans le traitement des affaires et de contribuer à la lutte contre la propagation de l’épidémie

Finnair
Transport
Un passager aérien indemnisé pour l’annulation d’un vol et ayant accepté de voyager sur un autre vol a droit à une indemnisation en raison du retard du vol de réacheminement

Valencia Club de Fútbol / Commission
Aide d'État
Le Tribunal annule la décision de la Commission relative aux mesures d’aide mises en œuvre en faveur des clubs de football espagnols Valencia CF et Elche CF

Commission / Italie (Aides illégales au secteur hôtelier en Sardaigne)
Aide d'État
L’Italie est condamnée à des sanctions pécuniaires pour ne pas avoir récupéré des aides illégalement octroyées au secteur hôtelier en Sardaigne

Thank you Matthias Lehmann for flagging and reviewing the Rotterdam Court’s judgment late in January on applicable law in the Petrobas case. I had earlier reviewed the jurisdictional issues, particularly the application of Brussels Ia’s Article 33-34.

The case relates to a Brazilian criminal investigation into alleged bribery schemes within Petrobras, which took place between 2004 and 2014. The court first, and of less interest for the blog, deals with a representation issue, holding that Portuguese speakers cannot be represented in the class, for the Portuguese version of the relevant dispute settlement provisions, unlike the English translation, was not faulty.

Turning then to applicable law at 5.39 ff. Events occurring on or after 12 January 2009 are subject to the Rome II Regulation. For those before that date, Dutch residual PIL applies which the Court held make Brazilian law lex causae as lex loci delicti commissi: for that is where the alleged fraud, bribery and witholding of information happened.

For the events which are covered by Rome II, the court does not wait for the CJEU finding in VEB v BP and squarely takes inspiration from the CJEU case-law on purely financial damage and jurisdiction: Kronhofer, Kolassa, Universal Music. The court notes that the CJEU in these cases emphasised a more than passing or incidental contact with a State (such as: merely the presence of a bank account) as being required to establish jurisdiction as locus damni. At 5.47 it rejects the place of the investor’s account as relevant (for this may change rapidly and frequently over time and may also be easily manipulated) and it identifies the place of the market where the financial instruments are listed and traded as being such a place with a particular connection to the case: it is the place where the value of the instruments is impacted and manifests itself. It is also a place that meets with the requirements of predictability and legal certainty: neither buyer nor seller will be surprised that that location should provide lex causae.

Conclusion therefore is one of Mozaik: Brasil, Argentina, Germany, Luxembourg are lex causae as indeed may be other places where Petrobas financial instruments are listed. (At 5.49: Article 4(2)’s joint domicile exception may make Dutch law the lex causae depending on who sues whom).

Geert.

(Handbook of) EU private international law, 2nd ed.2016, Chapter 4, Heading 4.4.

 

The Law Applicable to Investor Claims: New Developments from the Rechtbank Rotterdam’s Judgment in Petrobas https://t.co/cuQjWrrOe0

— EAPIL – Eur. Assoc. of Private International Law (@eapilorg) February 24, 2020

 

 

 

Lintner
Environnement et consommateurs
Un juge devant lequel un consommateur fait valoir que certaines clauses contractuelles sont abusives est tenu de vérifier de sa propre initiative d’autres clauses du contrat pour autant qu’elles soient liées à l’objet du litige dont il est saisi

England remains a jurisdiction of choice for corporate social responsibility /CSR litigation, in recent parlour often referred to as corporate (human and other rights due diligence. Jalla & Ors v Royal Dutch Shell Plc & Ors [2020] EWHC 459 (TCC) concerns a December 2011 oil spill which claimants allege companies forming part of the Shell group are responsible for. Anchor defendant in the UK is Shell International Trading and Shipping Company Limited – STASCO.

Stuart-Smith J on Tuesday last week upheld jurisdiction against the London-based mother holding on the basis of Article 4 Brussels Ia, and rejected an application for stay on Article 34 grounds. The judgment is lengthy, the issues highly relevant: this post therefore will be somewhat more extensive than usual.

Standard applications in cases like these now take the form of opposing jurisdiction against UK based defendants using Article 34 Brussels Ia (forum non conveniens -light; readers will remember the issues from ia Privatbank (cited by Stuart-Smith J) and other A34 postings on the blog); alternatively, resisting the case go to full trial on the basis that there is no real issue to be tried; abuse of process arguments (against such defendants: based on EU law); and case-management grounds. The latter two are of course disputed following Owusu. And against non-UK (indeed non-EU based defendants), using forum non conveniens; abuse of process; case-management and no real issue to be tried.

[A further application at issue is to amend form claims to ‘correct’ defendant companies, an application which is subject to limitation periods that are disputed at length in the case at issue. This is civil procedure /CPR territory which is less the subject of this blog].

The jurisdiction challenges are what interests us here and these discussions start at 207. The discussion kicks of with core instructions for ‘Founding jurisdiction’ in principle: the five step ladder expressed by Lord Briggs in Vedanta – which of course confusingly include many echoes of forum non as well as Article 34 analysis. Claimant must demonstrate:

(i) that the claims against the anchor defendant involve a real issue to be tried;

(ii) if so, that it is reasonable for the court to try that issue;

(iii) that the foreign defendant is a necessary or proper party to the claims against the anchor defendant;

(iv) that the claims against the foreign defendant have a real prospect of success; and

(v) that, either, England is the proper place in which to bring the combined claims or that there is a real risk that the claimants will not obtain substantial justice in the alternative foreign jurisdiction, even if it would otherwise have been the proper place, or the convenient or natural forum.

For the purposes of current application, Stuart-Smith J focuses on i, ii, and v:

• When considering whether there is “a real issue to be tried” the test to be applied is effectively the same as the test for summary judgment: reference here is made to Okpabi. It may be important to point out that the ‘real issue to be tried’ test must not be confused as a negation of Owusu. The test effectively has a gatekeeping purpose, not unlike the similar test in e.g The Netherlands as shown in Kiobel.
• The second condition, reasonableness to try the real issue, Stuart-Smith J concedes that this condition has been heavily debated for it is not entirely clear. He links the condition to the anchor jurisdiction issue: for Stuart-Smith J, the fact that the anchor defendant is sued for the sole or predominant purpose of bringing the foreign defendant into the action within the jurisdiction is not fatal to an application to serve the foreign defendant out of the jurisdiction. He seems to suggest therefore a light reading of the reasonableness requirement and emphasises (at 215) as Lord Briggs had done in Vedanta, that per C-281/02 Owusu, the effect of the mandatory terms of A4(1) BIa is that jurisdiction that is vested in the English Court by the article may not be challenged on arguments which in other circumstances would be forum non conveniens grounds. (This reinforces his flexible reading of the reasonableness requirement).
• On the fifth condition, Stuart-Smith J at 217 focuses on the scenario of an A4 defendant likely to continue being sued regardless of the English PIL decision (forum non in particular) viz the non-EU defendants (an issue which was quite important in Vedanta, where no A34 arguments were raised). If that is indeed likely then in his view this must have an impact on how the court considers the application of the English rules.

As noted Stuart-Smith J lists these arguments as ‘founding jurisdiction’ and at 227 finds there is a real issue to be tried: a reliable conclusion in the other direction (that STASCO had not retained legal responsibility for the operation of the Northia) cannot be found at this jurisdictional stage.

The Abuse of EU law argument is given short, one para (at 218) shrift, with reference to Lord Briggs in Vedanta (who focused on Article 8(1) CJEU authority for there is little precedent on abuse of EU law).

Turning then to the pièce de résistance: Article 34.  Readers of the blog will have followed my regular reporting on same.

Stuart-Smith’s first discusses authority in abstracto, and his points are as follows:

• BIa’s section 9, ‘lis pendens – related actions’, harbours two twins. At 222: ‘Articles 29 and 33 apply where proceedings in different jurisdictions involve the same cause of action and are between the same parties. Articles 30 and 34 apply where proceedings in different jurisdictions are “related” without satisfying the additional prerequisites for the application of Articles 29 and 33 (i.e. the same cause of action and between the same parties).‘ The twins are of course not identical: in each set, one involves action ex-EU, the other looks to intra-EU scenarios.
• Zooming in on the A30-34 twin: A30 defines ‘related’ and A34 does not. Under A30(3), actions are related where they are “so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from different proceedings.” (at 222) under A34(1)a, the discretion to stay an action under that article does not arise unless “it is expedient to hear and determine the related actions to avoid the risk of irreconcilable judgment resulting from separate proceedings”. Semantically one might suggest the latter therefore is a subset of the former (which would also suggest not all actions that are ‘related’ under A30 are so under A34). Stuart-Smith J however proposes to focus on the commonality of both, which is the presence of expediency, ‘to hear and determine them together to avoid the risk of irreconcilable judgments resulting from <different: A30> <seperate: A34’ proceedings. Again at 222: ‘Although there is a semantic argument that this means that cases falling within Article 34(1)(a) are a subset of “related actions”, I cannot conceive of circumstances where this would matter: the expediency criterion is a pre-requisite for the exercise of the court’s discretion both under Article 29 and under Article 34.’
• At 223 then follows the discussion of “risk of irreconcilable judgments”. ‘Because Articles 30 and 34 do not require the proceedings to involve the same cause of action and to be between the same parties, it is plain that the “risk of irreconcilable judgments” to which Articles 30(3) and 34(1)(a) refer cannot require that there be a risk that one judgment may give rise to an issue estoppel affecting the other.’ In other words, the test of irreconcilability is suggested to be more easily met in A30 (and 34) then it is under A29 (and 33). Nevertheless, with reference to Donaldson DJ in Zavarco, Stuart-Smith J suggests the points of difference between the judgments (whether arising from findings of fact or of law) would have to “form an essential part of the basis of the judgments” before A30 or 34 may be engaged.
• At 225 he then refers to Privatbank, held by the Court of Appeal after proceedings in Jalla had been closed, in which the Court of Appeal held that the fact that actions could not be consolidated and heard together (much as of course such togetherness cannot be imposed upon the foreign courts) is relevant to the exercise of the Court’s discretion and, in the absence of some strong countervailing factor, will be a compelling reason for refusing a stay. At 246, that importance of the impossibility of consolidated hearings is re-emphasised.

At 228 then Stuart-Smith J arrives at the application in concreto. He starts with the defendants’ arguments: ‘In their written submissions the Defendants rely upon a number of claims brought by groups of claimants or communities before various courts in Nigeria and one action of rather different complexion, known as the Federal Enforcement Action [“FEA”]. They submit that the English proceedings against STASCO should be stayed, at least temporarily, in order to avoid the risk of irreconcilable judgments being reached in England and in one or more of the Nigerian proceedings by waiting for the determinations of the Nigerian Courts and then taking proper account of those determinations in disposing of the English proceedings. The Defendants submit that, by the imposition of a stay, the court would avoid “a course of conflict with the courts of a friendly state” and avoid “cutting across executive actions of the Nigerian State in relation to property situated within its territory” which the Defendants submit would be in breach of the act of state doctrine and considerations of comity.‘ He then proceeds to discuss the arguments:

• Firstly he discusses at length the status of the FEA (which counsel for the defendants focused on) as well as a number of other actions pending in the Nigerian courts.
• Of note is his observation at 234: ‘It is a fact material to the exercise of the court’s discretion on these applications that the Defendants in these proceedings rely upon the existence of the FEA as grounds for imposing a stay pursuant to Article 34 while at the same time SNEPCO is maintaining its root and branch opposition to the validity (as well as the factual merits) of the FEA.’
• At 237 he notes the not carbon copy but nevertheless overlap between proceedings, at the level of claimants, defendants, and facts, but not the allegations of negligence and Rylands v Fletcher which are not directed at STASCO in the FEA proceedings. Of note is that he adds in fine that the potential problem of double recovery is simply an issue with which the English and Nigerian courts may have to grapple in due course.
• At 241 he holds obiter that expediency is not met here for a stay would not reduce the risk of irreconcilable judgments. Here, the true nature of forum non (I realise of course A34 is only forum non light) re-emerges: the English proceedings will continue after the stay in all likelihood will have been lifted (there will continue to be a case to answer for STASCO). ‘(A)lthough the English court would afford due attention and respect to the findings of the Nigerian courts, the findings of the Nigerian courts in the FEA and the other actions would not bind the English court to make equivalent findings even on the most basic matters such as whether the December 2011 Spill reached land.’ However ‘in the light of the ruling by the Court of Appeal [in Privatbank, GAVC] that expediency is a theoretical concept, I will proceed on the assumptions (without deciding) that, for the purposes of Article 34, (a) the actions in Nigeria are related actions and (b) it is expedient to determine the related actions together to avoid the risk of irreconcilable judgment resulting from different proceedings.’
• That leaves the question whether a stay is necessary for the ‘proper administration of justice.’
  • At 242 the elements of recital 24 are considered in turn. Stuart-Smith emphasises in particular that while the damage occurred in Nigeria, there is a strong international element that is alleged to give rise to a duty of care owed by STASCO to the Claimants; and he underlines the uncertainty as to the length of the Nigerian proceedings).
  • At 245 he concludes that no stay is warranted: I shall recall the para in full (underlining is mine, as is the lay-out):
    • ‘Balancing these various considerations together, I am not satisfied that a stay is necessary for the proper administration of justice.
    • I start with the fact that jurisdiction is based on Article 4 and that it is contemplated that the proceedings against STASCO may continue after a temporary stay to await the progress of the Nigerian actions.
    • Second, the length of that stay is indeterminate whether one looks at the FEA or the other actions; but on any view it is likely to be measured in years rather than months, thereby rendering these Claimants’ claims (which were issued late) almost intolerably stale.
    • Third, a stay would prevent any steps being taken towards the resolution of the difficult limitation and other issues which the earlier parts of this judgment identify; and it would prevent any other steps being taken to ensure the swift and just progression of the English action if and when the stay is removed. That is, in my judgment, a major drawback: if and to the extent that there are valid (i.e. not statute-barred) claims to be pursued, there is a compelling interest of justice in their being pursued quickly. Otherwise, as is well known, there is a risk that valid claims may fall by the wayside simply because of the exorbitant passage of time.
    • Fourth, although the factual connection with Nigeria is almost complete, the English court’s jurisdiction is not to be ousted on forum non conveniens grounds and, that being so, there is no reason to assume that imposing a stay until after the Nigerian courts have reached their conclusions will either cause the English proceedings to be abandoned or determine the outcome of the English proceedings or eliminate the risk of irreconcilable findings altogether. I am certain that the English court would and will, if no stay is imposed at this stage, remain vigilant to the need to respect the Nigerian courts and their proceedings; and I do not exclude the possibility that circumstances might arise at a later stage when a pause in the English proceedings might become desirable in the interest of judicial comity and respect for Nigeria’s sovereign legal system.
    • Fifth, I bear in mind the fact that the scope of the FEA action is not clear, so that it is not clear what issues will be determined, save that the issue of STASCO’s responsibility and actions will not be as they are not before the Nigerian Court. Turning to the other actions, STASCO is only a party to the HRH Victor Disi Action which, though technically pending, cannot be assumed to be certain to come to trial. The status of the remaining actions, where STASCO is not a party, is as set out above but does not give confidence that one or more of those actions will emerge as a suitable vehicle for determining issues relating to the spill so as to fetter the freedom and resolve of the English court to reach a different conclusion on behalf of different claimants and in an action against STASCO if that is the proper result.
    • Sixth, in my judgment, the proper administration of justice is better served by taking interim steps to bring order to the English proceedings, specifically by addressing the issues of limitation and, potentially, existence and scope of duty, which are disclosed in the earlier parts of this judgment. The outcome of those steps should determine whether and to what extent STASCO is available as an anchor defendant.’

There is an awful lot here which may prove to be of crucial relevance in the debate on the application of Article 34. Most importantly, Stuart-Smith’s analysis in my view does justice to the DNA of A34, which includes a strong presumption against a stay.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Highly relevant new CSR, corporate due diligence ruling.
Shell Bonga oil field spill
Reference to ia Privatbank https://t.co/fGnGrVjI7R and Vedanta https://t.co/SsAloPiwc9

A4 BIa jurisdiction upheld. No stay on A34 grounds. https://t.co/wIifRnsWZq

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

IN [2019] EWCOP 56 QD, Cobb J in the Court of Protection applied the Hague Convention on the International Protection of Adults to a removal from Spain of an adult father suffering from Lewy Body Dementia, a progressive neurodegenerative dementia, without consent of the new wife. by the children of his first marriage. Following the removal the children seek an order that he reside at a care home in England, that he not return to Spain, and that he have only supervised contact with his wife.

Cobb J decided that the English courts do not have jurisdiction given that in his judgment the father is habitually resident in Spain, with at 28-29 a list of the reasons leading to his conclusion (it includes a negative view on the removal ‘by stealth’, as well as particular emphasis on the father’s expressed will to live in Spain when he was not yet incapacitated). The common law doctrine of necessity does not alter this as alternative, less drastic measures could and should have been sought first (such as alerting Spanish social services; at 29).

The judge did make use of his limited urgency jurisdiction to issue a ‘protective measures’ order which provides for the father to remain at and be cared for at home he resides in, and to continue the authorisation of the deprivation of his liberty there only until such time as the national authorities in Spain have determined what should happen next. It is for the Spanish administrative or judicial authorities to determine the next step, which may of course be to confer jurisdiction on the English courts to make the relevant decision(s).

Geert.