Flux Belges et Lux

There is as yet no EU harmonisation on amino acids, in so far as they have a nutritional or physiological effect and are added to foods or used in the manufacture of foods. A range of EU foodlaws therefore do not apply to national action vis-a-vis amino acids, in particular Regulation 1925/2006 – the food supplements Regulation. In the absence of specific EU law rules regarding prohibition or restriction of the use of other substances or ingredients containing those ‘other substances’, relevant national rules may apply ‘without prejudice to the provisions of the Treaty’.

In C-282/15 Queisser Pharma v Germany, moreover there were no transboundary elements: Articles 34-36 TFEU therefore do not in principle apply.

No doubt food law experts may tell us whether these findings are in any way unusual, however my impression is that the Court of Justice in this judgment stretches the impact of the ‘general principles of EU food law’ as included in Regulation  178/2002. Indeed the Court refers in particular to Article 1(2)’s statement that the Regulation lays down the general principles governing food and feed in general, and food and feed safety in particular, at EU and national level (my emphasis). Article 7 of the Regulation is of particular relevance here. That Article gives a definition of the precautionary principle, and consequential constraints on how far Member States may go in banning foodstuffs, as noted in the absence of EU standards and even if there is no cross-border impact.

Article 7 Precautionary principle

1. In specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure the high level of health protection chosen in the Community may be adopted, pending further scientific information for a more comprehensive risk assessment.

2. Measures adopted on the basis of paragraph 1 shall be proportionate and no more restrictive of trade than is required to achieve the high level of health protection chosen in the Community, regard being had to technical and economic feasibility and other factors regarded as legitimate in the matter under consideration. The measures shall be reviewed within a reasonable period of time, depending on the nature of the risk to life or health identified and the type of scientific information needed to clarify the scientific uncertainty and to conduct a more comprehensive risk assessment.

Germany on this point is probably found wanting (‘probably’, because final judgment on the extent of German risk assessment is left to the national court) – reference is best made to the judgment for the Court’s reasoning. It is clear to me that the way in which the Regulation defines precaution, curtails the Member States considerably. Further ammunition against the often heard, and wrong, accusation that the EU is trigger happy to ban substances and processes in the face of uncertainty.

Geert.

A quick note on second-hand goods and VAT. For my review of Bot AG’s Opinion in C-471/15 Sjelle Autogenbrug, see here. The Court held yesterday and defined (at 32) second-hand goods essentially as follows: in order to be characterised as ‘second-hand goods’, it is only necessary that the used property has maintained the functionalities it possessed when new, and that it may, therefore, be reused as it is or after repair.

The Court does not refer to EU waste law yet the impact on that area of EU law is clear.

Geert.

Handbook of EU Waste Law, second ed. 2016, Chapter 1.

The issue under consideration in Citysprint was whether claimant, Ms Dewhurst, a cycle courier, was an employee of Citysprint or rather, as defendant would have it, a self-employed contractor. I am not a labour lawyer but I do have an interest in the ‘gig economy’, peer to peer etc. [Note Google defines (or conjures up a definition of) the gig economy as a labour market characterized by the prevalence of short-term contracts or freelance work as opposed to permanent jobs].

I also have an interest in language and the law. After an employment tribunal in Uber blasted the company’s use of byzantine language, in Citysprint, too, (in particular at 64 ff) the tribunal looks beyond the fog of legalese to qualify the contract for what it really is. A great development.

Geert.

DOOR PHILIPPE NYS. “Wie willen we de volgende keer uitnodigen? Angela Merkel misschien, via een eredoctoraat van de KU Leuven?” Het was een lachende opmerking, net na de Ekonomikalezing van Guy Ver…

Source: Oog in oog met Angela Merkel, leider van de vrije wereld

Hooley [Hooley v The Victoria Jute Company Ltd and others [2016] CSOH 14] has been sitting in my in-box for a few months. It concerns the liquidation (particularly: selling of companies’ assets by liquidators under Scots law) of companies incorporated in Scotland but with COMI (centre of main interests) outside the EU. In particular, India.

Given the presence of COMI outside the EU, the Insolvency Regulation does not apply. Indeed the Court of Session (Lord Tyre) does not refer to it at all.Findings would have been very different were the Regulation to apply: place of incorporation has to give way to COMI, where these two do not coincide, in which circumstance the place of incorporation at best may open secondary proceedings.

At issue was among others (and for the first time in a Scots court, I understand) the consideration of ‘modified universalism’: ie what is the practical impact of there being a company incorporated in Scotland, given Scots courts and administrators jurisdiction over the insolvencies, when the companies’ business is mainly carried out abroad and when proceedings are also pending abroad.

Per Rubin v Eurofinance, Universalism” means the “administration of multinational insolvencies by a leading court applying a single bankruptcy law.”  The principle of modified universalism was stated by Lord Sumption in Singularis Holdings Ltd v Pricewaterhouse Coopers [2015] AC 1675 (PC) at para 15 as being that “the court has a common law power to assist foreign winding up proceedings so far as it properly can” (see also Lord Collins at paragraph 33 and Lord Clarke of Stone‑cum‑Ebony at paragraph 112).

Essentially Lord Tyre had to decide whether the Scottish administrators’ powers were only exercisable to the extent that their exercise was recognised as legally valid by the law of the relevant non-UK jurisdiction. He held (at 36) that the proceedings taking place in India were ancillary to the administration proceedings in Scotland. The powers of a validly appointed administrator to a Scottish company were therefore not limited by the Indian winding up.

As often of course this judgment is but one side of the coin. Indian courts are at liberty to disregard the Scots findings. Any purchasers of Hooley assets therefore will have a compromised title. One assumes this has an impact on price.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.1, Heading 5.5.

Thank you Bob Wessels for alerting me to ADO Den Haag v United Vansen (of China). ADO Den Haag NV (the corporate vehicle of a Dutch Premier League club) domiciled at The Hague, sue United Vansen International Sports Co. Ltd, domiciled at Beijing, essentially for the latter to pay a deposit on the premium due for the shares it acquired in the club. Vansen did not appear.

First of all, were Vansen properly summoned in accordance with the Hague Service Abroad Convention (which both China and The Netherlands have ratified)? The court holds that it cannot yet decide that this has actually happened (relevant steps taken via the Dutch judicial authorities only recently having taken place) however it applies Article 15(3)’s provisions for extreme urgency: ‘Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.‘

Next up: do the Dutch courts have jurisdiction? Given the defendant’s domicile outside of the EU and the non-applicability of any of Brussel I’s rules where domicile is irrelevant, the Court applied Dutch residual rules of private international law. These grant it jurisdiction essentially in respect of urgent proceedings of attachment.

Of more interest to this blog is the court’s consideration of applicable law, which the Court conducts with reference to Rome I. The share purchase agreement seemingly did not contain choice of law, either implicit or explicit: at 2.15, the court suffices with a mere observation of the absence of choice of law. None of the standard contracts of Article 4(1) Rome I applies [there is some discussion in scholarship whether share purchase is covered by Article 4(1)a’s ‘contract for the sale of goods’], hence the relevance of Article 4(2)’s ‘characteristic performance’ test. Here, the Court declared unequivocally (and most probably correctly) that the characteristic performance is the  transfer of the share premium. The habitual residence of the party required to carry out that performance is the relevant connecting factor. In casu therefore, Chinese law in principle is the applicable law.

However the Dutch court finally settles for Dutch law after all, employing Article 4(3)’s escape clause. It holds that all circumstances of the case indicate that Dutch law is more closely connected: at 2.15: the agreement originated in The Netherlands; the performance has to be carried in The Netherlands (transfer of the sums into a Dutch bank account), and the transfer of the premium will benefit a Dutch company. Although the judgment does not give much detail on the contract, its origins etc., it would seem that in finally opting for Dutch law, the court does make proper application of the rather strict conditions of Article 4(3).

A good illustration of Article 4’s waterfall /cascade.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 3, Heading 3.2.6.

In the flurry of judgments issued by the European Court of Justice on Super Wednesday, 21 December, spare a read for C-618/15 Concurrence /Samsumg /Amazon: Cybercrime, which dealt with jurisdiction for tort under the Brussels I Recast Regulation and the location of locus damni in the event of online sales. The foreign suffix of the website was deemed irrelevant.

To fully appreciate the facts of the case and the Court’s reasoning, undoubtedly it would be best to read Wathelet AG’s Opinion alongside the Court’s judgment.

Concurrence is active in the retail of consumer electronics, trading through a shop located in Paris (France) and on its online sales website ‘concurrence.fr’. It concluded with Samsung a selective distribution agreement (covering France) for high-end Samsung products, namely the ELITE range. That agreement included, in particular, a provision prohibiting the sale of the products in question on the internet. Exact parties to the dispute are Concurrence SARL, established in France, Samsung SAS, also established in France, and Amazon Services Europe Sàrl, established in Luxembourg. Amazon offered the product range on a variety of its websites,  Amazon.fr, Amazon.de, Amazon.co.uk, Amazon.es and Amazon.it.

Concurrence sue variously for a lift of the ban on internet sales (claiming the ban was illegal) and alternatively, an end to the  offering for sale of the elite products via Amazon. The French courts suggest they lack jurisdiction over the foreign Amazon websites (excluding amazon.fr) because the latter are not directed at the French public. Concurrence suggest there is such jurisdiction, for the products offered for sale on those foreign sites are dispatched not only within the website’s country of origin but also in other European countries, in particular France, in which case jurisdiction, they suggest,  legitimately lies with the French courts.

Pinckney figures repeatedly in Opinion and Judgment alike. Amazon submit that the accessibility theory for jurisdiction should not be accepted, since it encourages forum shopping, which, given the specific nature of national legal systems, might lead to ‘law shopping’ by contamination. Amazon seek support in Jaaskinen’s Opinion in Pinckney. Wathelet AG first of all notes (at 67 of his Opinion) that this argument of his colleague was not accepted by the CJEU. Moreover, he finds it exaggerated: the national court can award damages only for loss occasioned in the territory of the Member State in which it occurs: this limitation serves as an important break on plaintiffs simply suing in a State per the locus damni criterion ‘just because they can’.

The Court agrees (at 32 ff) but in a more succinct manner (one may need therefore the comfort of the Opinion for context):

• The infringement of the prohibition on resale outside a selective distribution network is given effect by the law of the Member State of the court seised, so that a natural link exists between that jurisdiction and the dispute in the main proceedings, justifying jurisdiction for the latter.  It is on the territory of that Member State that the alleged damage occurs.
• Indeed, in the event of infringement, by means of a website, of the conditions of a selective distribution network, the damage which the distributor may claim is the reduction in the volume of its sales resulting from the sales made in breach of the conditions of the network and the ensuing loss of profits.
• The fact that the websites on which the offer of the products covered by the selective distribution right appears operate in Member States other than that of the court seised is irrelevant, as long as the events which occurred in those Member States resulted in or may result in the alleged damage in the jurisdiction of the court seised, which it is for the national court to ascertain.

With this judgment national courts are slowly given a complete cover of eventualities in the context of jurisdiction and the internet.

Geert.

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

Something to digest quietly, to start this new year: in Gaz de France v STS the French Conseil d’Etat annuled an arbitral award for breach of ordre public. The Conseil objected in particular to the panel’s denial of mandatory French (administrative) law. Reed Smith have analysis here, including of the issue on jurisdiction (Conseil d’Etat or Court de Cassation).

Upon reading the judgment, my question is this (just putting it in the group, as it were): does the Conseil have terminology right where it seems to classify breach of mandatory law as a violation of ordre public (it is the latter only which justifies annulment under the New York Convention)? Incidentally (at 5) it also refers to the possibility of mandatory EU law being part of this interpretation of ordre public. This structure is clearly inspired by the Rome I Regulation where, as I have noted before, the presence of mandatory law, overriding mandatory law, and ordre public, is causing confusion.

Happy New Year, happy reading, Geert.

Our children often hug me goodnight while I am working away at a brief or sitting next to a huge pile of exam papers, waiting to be marked. And especially in the latter case, I confess this is often accompanied by a pint of ale. My youngest daughter the other day told me she had had a dream that night in which I had found a cure for all cancers.

This was the modus operandi: I had spilt said beer (in said daughter’s dream) over the exam papers and by some interaction between beer and paper, the cure had come to me. Eureka! Somehow I have always known beer will save the world…

A warming thought for this chilly season. And one to lift our spirits, hoping for a less challenging 2017.

Enjoy your undoubtedly deserved breaks. Geert.

The Court held in C-102/15 Siemens just before mine and their summer break. It had escaped my attention. At issue was whether debt arising from the unjustified repayment of a fine for infringement of competition law falls within the scope of application of the Brussels I Recast. It does not. The Court distinguished flyLAL: while private actions brought to ensure compliance with competition law fall within the scope of the Regulation, a penalty imposed by an administrative authority in the exercise of the regulatory powers conferred upon it under national legislation comes within the concept of ‘administrative matters’, excluded from the scope of Regulation No 44/2001 in accordance with Article 1(1) thereof.(at 35).

An action in unjust enrichment related to the interest due, following to and fro, imposition and rescinding, ending finally in confirmation of the fine, is intimately bound up with that fine and therefore follows it in the exclusion.

A judgment of note for those who wish to keep complete overview.

Geert.

(Handbook of) European private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.2.2 ff.

Anyone with an interest in mutual recognition, risk and trade, and the exhaustive effect of EU food law should consult the Opinion of Advocate General Bobek in Case C-672/15 Noria Distribution, which was released last week.

Noria Distribution SARL (‘Noria’) is being prosecuted for having sold in France food supplements containing vitamins and minerals in quantities exceeding maxima set under French law. Noria does not deny doing so. However, it argues in response that those maxima are not valid because they were set in breach of EU law. Noria adds that it produces and sells the same products lawfully in other Member States.

The Advocate General suggests EU law on the issue is not exhaustive. Member States can set their own limits. An issue under discussion in the national proceeding is the origin (national or international) of the science underpinning the limits. The AG justifiably advises that the origin of the data is irrelevant. EU law concern is not about the details of bibliographies. It is rather that restrictions be justified on the basis of solid science demonstrating real risk or at least the inability to exclude risk: whether this is the case is for the national court to determine. The precautionary principle can be invoked by the Member States in setting their limits.

The AG’s approach is very sensible. Without losing himself in lengthy discussion, he reminds the national courts and authorities of the benchmarks for risk management.

Geert.

Do the newly negotiated EU rules on endocrine disruptors illustrate regulatory chill /the ‘freezing effect’ of international trade law?

The new European Commission proposals on endoctrine disruptors are, of course’ ‘science based’. It has been reported (EurActiv, 12 December 2016 and last consulted by me on 13 December) that publication of the proposals was followed by a closed door meeting (minutes of which were released only after a freedom of information request) between the EC and a select number of countries (US, Canada, Argentina, Brazil and Uruguay on 13 July this year). Discussion centered around the potential WTO incompatibility of parts of the EC proposal, particularly those surrounding the tolerance levels for endocrine disruptors present in imported substances (food and feed in particularly). The EC reportedly are prepared to replace “negligible exposure” with “negligible risk from exposure”. The EC defend the latter, arguing it might even ban more, rather than less imported substances: for even if there is only negligible exposure, that exposure may still be a risk. Opponents suggest that the insertion of a risk approach has sacrified precaution on the altar of science.

A few comments.

Firstly, the report (and potentially even the EC itself) repeats the misleading assertion that the debate concerns either science or precaution. Precaution is NOT unscientific. The very trigger of the precautionary approach is science.

Next, the case is reported at a time a lot of people are getting jittery about the regulatory co-operation mechanisms in free trade agreements such as CETA and TTIP. The meeting and the subsequent EC reaction to our trading partners’ comments, would then represent an example of the ‘freezing effect’ in international trade: with our trading partners flying the flag of WTO incompatibility, the EU would then have caved in to threats of litigation in Geneva. Yet in reality WTO input by fellow WTO Members is at least as old as the WTO itself, indeed it predates it. The 1978 Tokyo Standards Code already obliged the then GATT Contracting Parties to notify their draft standards to the GATT Secretariat. The very point of notification and transparency is that the issues raised are being discussed and may indeed lead to the draft standard being adopted. Changes made to REACH, to name but one example, reflected concerns of fellow WTO Members and REACH can hardly be said to pander to industry’s demands.

However there needs to be one core appreciation in this process: just as notification serves transparency (anyone can consult the TBT notification gateway to review draft measures that have been notified), so too should the process of review after reception of the comments, be conducted in a transparent manner. This clearly has not happened here. By conducting these meetings in private, and by refusing to release the minutes until prompted to do so, EC services have given the impression that there is more than meets the eye. In times where even CETA has not yet been ratified, that is most definitely the wrong approach.

Geert.

In JEB Recoveries v Binstock, [2016] EWCA Civ 1008, the Court of Appeal (on appeal from the High Court, 2015] EWHC 1063 (Ch)) exhaustively reviewed relevant EU precedent for the determination of the ‘place of performance’ of a contract under Article 5(1) (now 7(1)) of the Brussels I (Recast) Regulation. Kitchin LJ first of all refuses to deal with the alleged submission to jurisdiction by Mr Binstock. The argument was made that,  by making and pursuing an application for security for costs, Mr Binstock had submitted to the jurisdiction. The issue was however not raised before the High Court and therefore not sub judice at the Court of Appeal.

Mr Binstock (of casino fame) argued that the contracts at issue were not performed in England, for he himself was domiciled in Spain  and the claimant in the case at issue (for most of the relevant contracts, jurisdiction was dismissed at hand) had arguably carried out his contractual arrangements largely from Paris.

Relevant CJEU precedent was C-19/09 Wood Floor Solutions the findings of which Lord Justice Kitchin helpfully summarised as follows:

1. ‘…First, the place of performance must be understood as the place with the closest linking factor between the contract and the court having jurisdiction and, as a general rule, this will be at the place of the main provision of the services.
2. Secondly, the place of the main provision of the services must be deduced, so far as possible, from the provisions of the contract itself.
3. Thirdly, if the provisions of the contract do not enable the place of the main provision of the services to be determined, either because they provide for several places where services are to be provided or because they do not expressly provide for any specific place where services are to be provided, but services have already been provided, it is appropriate, in the alternative, to take account of the place where activities in performance of the contract have for the most part been carried out, provided that the provision of services in that place is not contrary to the parties’ intentions as appears from the contract.
4. Fourthly, if the place of the main provision of the services cannot be determined on the basis of the terms of the contract or its performance, then it must be identified by another means which respects the objectives of predictability and proximity, and this will be the place where the party providing the services is domiciled.’

Based upon the place where the services have for the most part been carried out, the Court of Appeal held that JEB has no good arguable case that the place of the main provision of Mr Wilson’s services was England.

A neat application of Article 7(1) and an improved re-phrasing of the CJEU’s own rules.

Geert.

(Handbook of) EU Private International Law, Chapter 2Heading 2.2.11.1.,

Thank you Steve Peers for alerting me to the relevance of the conflict of laws and the Rome I Regulation in particular in the recent Aslam et al v Uber Employment Tribunal decision. The case essentially revolves around whether claimants are employees – it is a pivotal case determining the immediate regulatory context for this part of the ‘sharing economy’. Para 87 is a particularly delightful expression of scepticism towards the sharing economy’s claims (further highlights are here).

Conflict of laws is addressed at para 103 onwards, a completion of the analysis in case of rejection of the tribunal’s view that the UK company in the Uber group employs claimants, and instead one would have to regard Uber BV (of The Netherlands) as employer. I do not think the tribunal expresses itself entirely clearly on Rome I.

If Uber BV is the employer, reclassification of the contract as one of employment (as opposed to one for the provision of services), makes the choice of law for Dutch law partially inoperable (not, as the tribunal notes at para 105 in fine, replaced with the laws on England and Wales). Next the tribunal (paras 106-109) continues to speak of ’employer’ but reviews application of Article 3 (including the application of Article 3(3)’s ‘purely domestic contracts’. If there is a contract of employment, in my view only Article 3(1) and (2) can have any impact on the analysis: the remainder of Article 3 concerns provisions for which Article 8 itself provides exhaustive rules.

From para 110 onwards, the tribunal does more tidily address Article 8 Rome I and holds, after reference to counsel view, that if indeed the Dutch BV is the employer (for it does not suggest that the contract would have to be qualified as one of services), Dutch law would largely apply, except for a limited number of provisions of English law by way of mandatory rules. (Reference to Article 21’s ordre public is justifiably rejected).

I am assuming Uber are appealing. Expect the conflicts analysis to return.

Geert.

(Handbook of) European private international law, Chapter 3, Heading 3.2.5.

Golden Endurance v RMA, [2016] EWHC 2110 (Comm), illustrates the attraction of having a unified approach to submission (to jurisdiction), otherwise known as voluntary appearance. In current case, the judgment that needs to be recognised is ex-EU (Moroccan) hence the Brussels I Recast does not apply: English law does. This is in fact exactly why The Hague is working hard at its ‘Judgments’ Convention – not an easy project in my view. As helpfully summarised by Sam Goodman, the court held that a Moroccan judgment would not be recognised in England because the claimant had not submitted to the jurisdiction of the Moroccan court. Although the claimant had appeared in the Moroccan proceedings, it had done so in order to ask the court to stay the Moroccan proceedings in favour of arbitration and had only engaged with the merits as it was obliged to do so under Moroccan law.

Of note is that Phillips J points out that under the relevant English statutory rules, the question arises as to when defending a case on its merits, at the same time as contesting jurisdiction, submission applies: a scenario for which the Brussels I Recast provides specifically in Article 26. An English court does not for this exercise rely on civil procedure rules in the country of origin of the judgment: this surely makes sense for otherwise it would encourage forum shopping by unscrupulous claimants. Instead, whether one has submitted is ‘a question of mixed law and fact’ (at 46) which in this case was decided in favour of the claimant in the English court, ‘the claimant, having requested the dismissal of the claim in Morocco in favour of arbitration proceedings and having done so continually and as its primary response, did not voluntarily appear in the Moroccan courts’ (at 47).(The remainder of the judgment relates to transport law: the ‘Hague Rules’).

Geert.

(Handbook of) EU private international law, Chapter 2, Heading 2.2.7.

Apologies for late posting. I had tweeted and linked and done all sorts of other things when the judgment came out but as readers tell me, that is not quite the same as a review on this blog.

Walker J decided Peralla v Codere [2016] EWHC 1182 (Comm) at the end of July. His views on Article 25 and exclusivity in the event of asymmetric jurisdiction clauses, are very much dicta. On their neutralising effect under Article 31, he suggested obiter. Let me explain. The jurisdiction clause which Perella alleged to have been breached by Codere comprises a single sentence of a clause of their letter of engagement. That sentence states:

“[Codere] agrees for the benefit of [Perella] that the courts of England wil have non-exclusive jurisdiction to settle any dispute which may arise in connection with this engagement.”

Codere sued in Spain alleging breach of contract. Perella countersues in England. The English proceedings are very much necessitated by one or two awkward consequences of the wording of Article 31 of the Brussels I Recast. This Article was specifically included to neutralise the torpedo which the Court of Justice had armed in its Gasser judgment, C-116/02: following Gasser, lis alibi pendens applies even if there is exclusive choice of court and a court other than the court assigned in that clause, has been seized. The Brussels I Recast neutralises the torpedo but only if there is exclusive court of choice, and if the court designated by that clause has been seized.

The first consideration in the case was whether the clause was exclusive. It was pertinently not. Perella suggested the language indicates that the benefit to be conferred upon Perella is an entitlement to insist that Codere must regard itself as bound by the exclusive jurisdiction of the English courts. Walker J (at 30) rejects this justifiably: it would have been simplicity itself verbatim to indicate exclusivity. As Ken Kaar notes, the inclusion of ‘for the benefit of’ is an old, now redundant boilerplate provision in choice of court: in the original Brussels and Lugano Conventions, ‘If the agreement conferring jurisdiction was concluded for the benefit of only one of the parties, that party shall retain the right to bring proceedings in any other court which has jurisdiction by virtue of this Convention.’ This proviso meant there was plenty of discussion in court whether only one party had procured such benefit, lest one state in so many words that it had. The current version of the Brussels I Recast (and the 2001 version before it) and Lugano 2007 have both dropped the provision, and it would be best dropped from the boilerplate clause, too.

Having held that the clause was not exclusive, the Court could have stopped there. Obiter however Walker J offered his view on whether Article 31(2)’s protection extends to asymmetric choice of court clauses – the notion of which I have reported on before. Walker J (at 18) suggests that it does. The party invoking Article 31(2) pointing to an exclusive forum which the counterparty who is suing elsewhere, had committed itself to, need not be itself subject to a symmetric duty only to sue in that court. The point has not been argued before the CJEU yet, but I agree that the High Court’s position is the correct one, with the important caveat of course that such clause needs to be valid in accordance with the lex fori prorogati. This also means that asymmetric clauses where such lex cannot be identified, would have trouble disarming the recalcitrant party’s torpedo.

Well, we are going to miss this type of judgment following Brexit. Better make conflict of laws part of the continuing relations with the UK.

Geert.

Isn’t it just a perfect exam question for a graduate course, nay this question involves so many issues it could arguably serve as one single exam for a whole law degree: such is the intensity of legal areas at issue: constitutional law, international law, international trade, regulatory law and risk analysis, intellectual property law…

Discuss why the Court of Appeal for England and Wales denied Government wrongdoing in plain packaging, while the German Bundesverfassungsgericht rejected an argument of expropriation in Energiewende yet held that German Government must nevertheless pay compensation to the energy companies involved (E.ON, RWE and Vatenfall).

Source tip: you may want to consult my former student Dr Catherine Banet’s excellent analysis on the Vatenfall issue.

Issues tip: a good way to go about it would be to draft a table of issues that both cases have in common and those which they do not (eg the Court of Appeal’s review of intellectual property). A discussion of the precautionary principle would not go amiss (in the plain packaging case: specifically whether precaution applies to uncertainty as to efficiency of remedies rather than uncertainty as to a phenomenon). A point of discussion may also be why the CA refers profusely to European precedent while the Bundesverfassungsgericht does not. Finally, any consideration of the link between the latter proceedings and the concurrent ISDS procedure, will gain you brownie points.

To fellow faculty out there: if you do use this exam Q, please do share good student answer copies.

Geert.

I have in the past reported fleetingly about the Trafigura litigation, in which the company is and has been pursued in various jurisdictions for the environmental and public health damage resulting from the dumping in Abidjan, Ivory Coast’s capita, of toxic waste originating from the Probo Koala. I discuss the corporate social responsibility implications of conflict of laws ia here.

The case has led ia to the so-called ‘Leigh Day settlement’ in the United Kingdom (representing 30.000 victims) and to a 2007 ‘Protocole d’Accord’ between Trafigura and Ivory coast.

Current judgment was issued on 30 November and involves Stichting Union des Victimes de Déchets Toxiques D`Abidjan et Banlieues, a foundation set up in accordance with Dutch law, claiming to represent victims not yet represented in the Leigh Day settlement.

The Dutch court first of all swiftly rejects any impact of the choice of court clause included in the 2007 protocol. This discussion could have been quite interesting, however the Court suffices with a reference to the narrow formulation of the clause. It refers to any and all issues arising out of the validity, application and interpretation of the agreement. The agreement being a contractual arrangement and the suit here being based on liability in tort, in an action started by victims not party to the agreement, the court at Amsterdam suffices with the remark that current case is evidently not covered by the clause.

This leaves aside the discussion on the merits with respect to that choice of court. The 2007 protocol was signed by Ivory Coast ‘for and on behalf of all victims of the toxic wastes’. Whether the State can legitimately bind all those victims, particularly since presumably not all of them are Ivory Coast nationals, requires a lex causae to settle. Were this to follow the Brussels I Recast rule (the case looks to have been introduced after January 2015), this would imply a discussion on the inclusion of choice of court ex-EU. Over and above that discussion, the Court at Amsterdam would then have to discuss whether perhaps ordre public protests against allowing a State to represent all victims in cases such as these.

Having dismissed (again, all too briefly) choice of court, the court subsequently upholds jurisdiction on the basis of Article 4 Brussels I Recast: the Dutch domicile of Trafigura Beheer BV.

In the remainder of the assessment of jurisdiction and standing, the Court applies Dutch law (de Stichting has been set up under Dutch law) and finds ultimately that the personal, business interests of its creator are not sufficiently split from the interests of the victims which the foundation purports to represent. The court adds that the Stichting would not seem properly to manage its documentation etc., leaving doubt as to whether it is properly equipped to attain its objective.

The suit is therefore dismissed on standing.

An interesting judgment to kick-start all sorts of issues of relevance to corporate social responsibility.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.2, Chapter 8, Heading 8.3.

In Philipp Plein, the court at Rotterdam held against the applicability of contractual choice of court to cases involving (alleged) unfair trading practices /infringement of competition law. (The judgment is not entirely clear on how the alleged tort needs to be qualified). I should also rephrase: I am assuming the case involves clothing chain Philipp Plein (‘PP’): this party’s name (albeit with presumably a typoo reported as ‘Philipp Klein’) is mentioned once in the judgment, probably because redacting missed this one particular reference. I find this process of anonimisation rather tiring: I fail to understand why in issues of commercial law, companies should at all be offered anonymity in public recording of the case. But I digress.

PP is domiciled at Lugano. The court is not entirely clear in its distinction between the Brussels I Recast Regulation and the Lugano Convention 2007. Domicile of the defendant in Switzerland was already immaterial under the Brussels I Regulation, given that one of the parties is domiciled in The Netherlands. The court applies Brussels I Recast and Lugano 2007 more or less jointly, given their similar outcome for the case at issue. Given this parallel application it is quite remarkable that no reference is made to CDC, which emphasised that extension of choice of court to non-contractual liability cannot be assumed. Instead the court here reviews how other parts of PP’s standard terms and conditions are formulated and what impact this has on the clause at issue.

It decides the choice of court clause (which read ‘“If both parties are businessmen, then the place of jurisdiction […] is Nuremberg, Germany”.’) does not extend to non-contractual liability. Parties seemingly agreed that in the event of non-applicability of choice of court, the Court at Rotterdam can hear the case on the basis of Article 5(3) Lugano 2007 (similar to now Article 7(2) Brussels I Recast).

I agree with Bas Braeken and Marianne Meijssen: A good result but an awkward way to go about it.

Geert.

(Handbook of) European Prviate International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.7.

For those with an interest in UK constitutional law and its impact on the EU, these evidently are interesting days. I just wanted briefly to flag that the Scottish Government’s submission to the Supreme Court’s Article 50 case contains a short section on the EU’s civil justice agenda. At 48, the submission points out the impact withdrawal will have on the civil justice relations between Scotland, the remainder of the UK, and the EU.

There are plenty of papers out there on the impact of Brexit on conflict of laws. Without the correct arrangements, the UK is bound to lose a lot of its attraction in international dispute settlement. With the falling pound, Christmas shopping in London is particularly attractive to those outside the UK. Forum shopping a lot less so.

Geert.