Flux Belges et Lux

Soleymani v Nifty Gateway LLC [2022] EWCA Civ 1297 is the appeal against [2022] EWHC 773 (Comm) which I reviewed here. That post will give readers the necessary background. The Court of Appeal partially overturned. The judge had issued a stay of English proceedings under s9 Arbitration Act 1996, effectively allowing a US arbitrator to decide the validity of the arbitration agreement. That stay has now been lifted and E&W proceedings on that issue will go ahead.

Of note is that the discussion takes place under retained EU law, with the relevant provisions in ia s15b of the Civil Jurisdiction and Judgments Act 1982 (as amended) mirroring the consumer section of Brussels Ia and Directive 93/13 on unfair terms in consumer contracts, as amended.

A first ground of appeal concerned the core of the Brussels Ia issue: whether the Court had jurisdiction under s. 15B CJJA because the exception for arbitration under Article 1(2)(d) of the Recast Regulation did not apply to the Arbitration Claim. In other words whether the exclusion for arbitration is engaged when a consumer, ordinarily protected by the forum actoris provisions in A17 ff BIa, calls upon that protection to seize a UK court.

The first instance judge held that the principal focus and subject matter of Mr Soleymani’s claim is whether he is legally obliged to arbitrate, hence engaging the arbitration exception. The Court of Appeal agrees for largely the same reasons as the judge, and with Popplewell J [89] indicating no change in his views following CJEU Prestige. The CA’s own finding in [2021] EWCA Civ 1589 The Prestige is recalled:  “the question is whether a principal focus of the proceedings is arbitration, the essential subject matter of the claim concerns arbitration, or the relief sought can be said to be ancillary to the arbitration process, these being alternative ways of expressing the same idea”.

The Court of Appeal’s focus seems to be on avoiding abuse by the consumer, who could circumvent the arbitration exception by bringing his claim within the scope of BIa hence characterising it as a claim to enforce his consumer rights.

I continue to find the alternative more convincing: that the consumer section could be easily circumvented, particularly by non-EU based traders and /or in the event of arbitration outside the EU, simply by inserting an ADR clause in the contract, depriving the consumer of the forum actoris. Claimant’s counsel’s nine reasons [51] in my view have convincing appeal, and not Popplewell J’s suggestion [93] ff that in practice the consumer would be protected anyways, either by the ability to sue in the UK and have the ADR clause declared void under consumer protection law, or by the ability to have any foreign award declared unenforceable under the New York Convention’s ordre public exception. The very case at hand show the real difficulties (and costs) the consumer will be put through if and when the business party to the transaction decides to pursue the arbitration proceedings abroad.

The second ground of appeal was dismissed for it relied on s. 15D(1) being construed as invalidating the arbitration clause, which the Court had already held it did not, however ground 3 was accepted, for reasons formulated by Birss LJ.

Mr Soleymani’s claim consisted of claims for three distinct declarations: (i) a declaration that the arbitration clause was unfair and not binding, (ii) a declaration that the governing law clause was unfair and not binding, and (iii) a declaration that the contract formed in the auction was illegal under the Gambling Act 2005.

The jurisdiction issues under Grounds 1 and 2 of the appeal relate only to the first of these three, the arbitration clause claim. The judge as discussed decided that the Arbitration Claim was within the arbitration exception which now forms part of the CJJA (and had its origin in the Brussels Convention and the later Recast Regulation), and the appeal from that decision was dismissed.

The judge however also decided that the other two claims, that is the Governing Law Claim and the Gambling Act Claim were not clearly within the arbitration exception, yet she stayed the E&W proceedings to give way to the arbitration in New York. Therefore these claims were at least capable of falling within the jurisdiction gateway provided for in s15B(2)(b) CJJA 1982.  Ground 3 argued that the first instance judge erred in staying these proceedings under section 9 of the arbitration Act without determining the fairness question or directing a trial before the English Court on the issues raised by that objection.

That ground was upheld for three reasons [151] ff which all go towards limits to Kompetenz Kompetenz in consumer (and other?) cases.

Firstly, the public importance of decisions vindicating (or not) consumers’ rights. The case Mr Soleymani is seeking to make has implications for  consumers in general in this jurisdiction and it is important that they are considered and ruled upon in public in a court. Therefore it was held the s9(4) issues should be decided at a trial and not left to be decided in the arbitral tribunal.

Further [152] the consumer protection rights under UK law involve domestic concepts which UK court are far better placed to adjudicate upon than a New York arbitrator. Even if it were certain that the New York Tribunal would apply UK law (a late proffered undertaking to do so was made and discussed [155] ff), it engages principles which are the subject matter of our domestic jurisprudence, not simply some general notion of fairness.

Thirdly whether the arbitration agreement does in fact operate unfairly on Mr Soleymani is not suited to summary determination. “If the invalidity argument is good, the very reasons which make it good, namely that it places an unfair burden on Mr Soleymani, weigh against allowing the tribunal to decide the issue under its Kompetenz-Kompetenz jurisdiction. The Judge’s finding that there would be nothing unfair about leaving it to the arbitrator to decide that issue is inconsistent with her recognition that there was a triable issue whether this was an unfair arbitration agreement.”

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.3.2, and 2.2.9.2.

Highly relevant judgment under retained EU law on possibility for consumers to enjoy jurisdictional protection of EU rules to avoid #arbitration outside of the EU
Review of the first instance judgment here https://t.co/G1wCZbigfs
Soleymani v Niftyhttps://t.co/3h8nGbIgGZ

— Geert Van Calster (@GAVClaw) October 6, 2022

The (first instance) court at Rotterdam has upheld anchor jurisdiction and refused an application for an Article 34 Brussels Ia stay. The case concerns victims of earthquakes in the Brasilian Maceió region, which they argue are caused by the mining activities of Braskem. The judgment is only available in Dutch.

The Dutch anchor defendants are intra-group suppliers of ia specialty chemicals, and finance. The main target of the claim of course is the Brasilian mother holding. Whether the latter can be brought into the proceedings is not subject to Brussels Ia but rather to Dutch residual rules. However just as in e.g. Shell, the Dutch rules are applied with CJEU authority on Article 8(1) Brussels Ia firmly in mind. In much more succinct terms than the English courts in similar proceedings, the Dutch courts [6.16] finds the cases so ‘closely related’ that it is expedient to hear the cases together. It emphasises that while the respective roles and liabilities of the various undertakings concerned is likely to be very different, there is a bundle of legal and factual questions that runs jointly throughout the various claims. [6.18] it emphasises that the decision to base the European headquarters of the group, and the finance activities at Rotterdam, implies that the concern reasonably could have foreseen it would be sued here.

Equally succinctly [6.19 ff] the Court rejects the argument that the use of the Dutch corporations as anchor defendants is an abuse of process. Such abuse must be narrowly construed and  it is far from obvious that the claim against the anchors is entirely without merit.

Seemingly defendants tried to argue forum non conveniens however [6.23] the court points out such construction does not exist in The Netherlands and obiter it adds (like the Court of Appeal in Municipio) that practical complications in either hearing of the case or enforcement of any judgment are not a reason to dismiss jurisdiction.

Request for a stay in the procedures viz the Brasilian corporations [6.26] is rejected on (Dutch CPR) lis pendens rules for the parties in the proceedings are not the same. Article 34 is dealt with in two paras (quite a contrast with the E&W courts). The pending procedures vis-a-vis Article 34 are not, it seems, Brasilian Civil Public Actions – CPAS (these were at issue in Municipio de Mariana (of some interest is that the law firm behind the claims is the same in both cases)). Rather, pending liquidation proceedings are considered as the relevant assessment points. [6.28] obiter the court finds that the cases are most probably not related. It grounds  its decision however on a stay not being in the interest of the sound administration of justice. The court holds that the Brasilian proceedings are not likely to be concluded within a reasonable time. Defendants’ commitment at hearing to speed up the process in Brasil, are met with disbelief by the court given the defendants’ attitude in the Brasilian procedures hitherto.

[6.32] permission to appeal the interim judgment on jurisdiction is denied. This means that, like in Airbus, discussion on the private international law issues is likely only to resurface at the stage of appealing the judgment on the merits, too.

An important judgment: other than Petrobas, there are to my knowledge no continental judgments discussing Article 34 in this intensity (there are E&W judgments, as readers of the blog will know).

Geert.

See also ‘Dude, where’s my EU court? On the application of Articles 33-34 Brussels Ia’s forum non conveniens- light rules’, Journal of Private International Law, forthcoming 2022.

Dutch court refuses Article 34 Brussels Ia lis pendens applicationhttps://t.co/F46tkOlcRe
Pollution case against #braskem will go ahead in home of Dutch mother corporation. More on the blog soonhttps://t.co/jfa1Sb5o3t @PogustGoodhead

— Geert Van Calster (@GAVClaw) September 26, 2022

QBE Europe SA/NV v Generali Espana De Seguros Y Reaseguros [2022] EWHC 2062 (Comm) is not a surprising judgment of course. I flagged it on Twitter early August and I post it here for the sake of blog completeness.

The judgment grants an urgent anti-suit injunction (ASI) to restrain proceedings brought by the Defendant (Generali) against QBE UK in Spain, and to prevent Generali from commencing similar proceedings against QBE Europe. The proceedings in Spain assert a direct claim against QBE UK under a Spanish statute, by reference to a liability insurance policy. The judgment is exactly the kind of ASI outlawed by CJEU West Tankers and will reinforce the position of London in the arbitration market.

Geert.

Move over CJEU West Tankers….
Anti-suit injunction viz Spanish proceedings granted to protect #arbitration in London. Discusses ia nature of claim in SP proceedings

QBE Europe SA/NV v Generali Espana De Seguros Y Reaseguros [2022] EWHC 2062 (Comm) https://t.co/LwzrDzzNXv

— Geert Van Calster (@GAVClaw) August 1, 2022

Lydia Lundstedt has prior review of the judgment in CJEU C-399/21 IRnova AB v FLIR Systems AB (who had been business partners in the past) here. Swedish courts are clearly busy referring the private international law elements of patent cases to the CJEU.

Of particular note is that a 3 judge chamber would seem to have ruled out reflexive effect as casually as if it were swatting a fly.

On 13 December 2019, IRnova brought an action before the Patent and Market Court seeking, inter alia, a declaration that it had a better right to the inventions covered by international patent applications, subsequently supplemented by European, US and Chinese patent applications deposited by FLIR in 2015 and 2016, and by US patents granted to FLIR on the basis of those latter applications. In support of that action, IRnova had stated, in essence, that those inventions had been made by one of its employees, meaning that that employee had to be regarded as their inventor or, at the very least, as their co-inventor. IRnova therefore argued that, as the inventor’s employer and thus successor in title, it had to be regarded as the owner of the inventions. However, FLIR, without having acquired those inventions or otherwise being entitled to do so, deposited the applications in its own name.

The court had dismissed jurisdiction viz the Chinese and US patent applications, and the US patents, on the ground, in essence, that it regarded the action concerning the determination of the inventor as being linked to the registration and validity of the patents, and it applied A24(4) BIa reflexively. The Appeals Court referred the issue on reflexive effect to the CJEU, in the following terms:

‘Is an action seeking a declaration of better entitlement to an invention, based on a claim of inventorship or co-inventorship according to national patent applications and patents registered in a non-Member State, covered by exclusive jurisdiction for the purposes of Article 24(4) of [the Brussels Ia Regulation]?’

however the CJEU reformulated [22-24] the case as not concerning reflexive effect at all, rather, enquiring about the scope of the A24(4) gateway.

The Court first of all [25] ff makes a point of confirming its broad reading of the ‘international’ element required to trigger European private international law, referring to CJEU Owusu.

It then [35] would seem to rule out reflexivity in a very matter of factly way (and as Lydia also noted, without AG Opinion):

as has already been pointed out in paragraph 26 of the present judgment, the patent applications at issue in the main proceedings were deposited and the patents concerned were granted not in a Member State, but in third countries, namely the United States and China. As Article 24(4) of the Brussels Ia Regulation does not envisage that situation, however, that provision cannot be regarded as applicable to the main proceedings.

This may have already answered a core question in  BSH Hausgeräte v Aktiebolaget Electrolux .

[36] ff it refers ia to CJEU Hanssen and to the exceptional nature of A24 [39]. It holds that [42]

the main proceedings relate not to the existence of the deposit of a patent application or the grant of a patent, the validity or lapse of a patent, or indeed an alleged right of priority by reason of an earlier deposit, but to whether FLIR must be regarded as being the proprietor of the right to the inventions concerned or to a portion of them.

[47] it refers ia to the fact that fact that

an examination of the claims of the patent or patent application at issue may have to be carried out in the light of the substantive patent law of the country in which that application was deposited or that patent was granted [however it ] does not require the application of the rule of exclusive jurisdiction laid down in Article 24(4) of the Brussels Ia Regulation

Much relevant and surprisingly succinct on the reflexivity issue.

Geert.

EU Private International Law, 3rd ed. 2021, 2.208 and 2.548.

I mentioned the pending case C-339/22 BSH Hausgeräte v Aktiebolaget Electrolux yesterday at our excellent (if I say so myself) Max Planck Institute – EAPIL – KU Leuven workshop on Brussels Ia reform. Questions referred, are

Is Article 24(4) [BIA] to be interpreted as meaning that the expression ‘proceedings concerned with the registration or validity of patents … irrespective of whether the issue is raised by way of an action or as a defence’ implies that a national court, which, pursuant to Article 4(1) of that regulation, has declared that it has jurisdiction to hear a patent infringement dispute, no longer has jurisdiction to consider the issue of infringement if a defence is raised that alleges that the patent at issue is invalid, or is the provision to be interpreted as meaning that the national court only lacks jurisdiction to hear the defence of invalidity?

Is the answer to Question 1 affected by whether national law contains provisions, similar to those laid down in the second subparagraph of Paragraph 61 of the [Swedish] Patentlagen (Patents Law), which means that, for a defence of invalidity raised in an infringement case to be heard, the defendant must bring a separate action for a declaration of invalidity?

Is Article 24(4) [BIa] to be interpreted as being applicable to a court of a third country, that is to say, in the present case, as also conferring exclusive jurisdiction on a court in Turkey in respect of the part of the European patent which has been validated there?

BSH hold a European patent relating to a vacuum cleaner. The patent has been validated in Austria, Germany, Spain, France, the United Kingdom, Greece, Italy, the Netherlands, Sweden and Turkey. Electrolux of Sweden has subsidiaries in a number of other Member States, such as Germany. A number of disputes have arisen between BSH and companies in the Electrolux group concerning the patent in question. Inter alia, the European patent validated in Germany was invalidated in 2020 by a German court at the request of a subsidiary of Electrolux. That judgment has been appealed.

On 3 February 2020, BSH brought an action against Electrolux before the Patents and Market Court in Sweden and claimed inter alia that Electrolux should be prohibited from using the patented invention in all the abovementioned States and ordered to pay reasonable compensation for the unlawful use. BSH also claimed compensation for the additional damage caused by Electrolux’s alleged patent infringement. Electrolux argue that the Court should dismiss the action in relation to the foreign parts of the patents. In its view the foreign patents are invalid and the Swedish court therefore lacks jurisdiction to hear infringement actions concerning those patents.

End of December 2020 the court agreed, citing A24(4) viz the EU patents (the claim being issued prior to Brexit implementation day, this includes the UK) and ‘an internationally accepted principle of jurisdiction’ (in essence, the Moçambique rule) viz the Turkish patent.

BSH of course appeal.

A asked students in the August resit exams how they think the CJEU should answer. On Q1 I would expect them to cite the need to interpret A24 restrictively, with reference to one or two cases confirming same (there are plenty); and the lack of solution in the Brussels Recast. Contrary to what Electrolux contend, a proposal to allow a court to merely stay the case pending the foreign court’s decision on validity, was never rejected. Such a proposal was never made. BIa merely confirmed CJEU Gat v Luk’s holding that exclusive jurisdiction kicks in regardless of whether the argument of invalidity is introduced as a claim of by way of defence.

On Q2 I would like to seem them argue something to the effect that national CPR must not infringe the effet utile of BIa. (Only) if the effect of the Swedish rules is that it requires the defendant to initiate IPR invalidity claims in all the relevant States, or lose its possibility of an invalidity defence, this would in my view run counter BIa’s intention and scope.

Finally, on the 3rd Q they should engage with the lack of BIa clarification on reflexive effect, other than in the strict confines of A33-34 and its related recitals. Relevant case-law of course includes Ferrexpo and Central Santa Lucia L.C. v. Meliá Hotels International S.A. Interested readers may wish to consult Alexander Layton KC’s most excellent paper on same. Some students may refer to the UPC developments and the jurisdictional consequences in Article 71 BIa (operational 2023?).

Geert.

The blog is back from summer recess with a post on Airbus Investors Recovery Limited v Airbus SE, where the first instance court at Amsterdam by way of preliminary judgment deals with the law applicable to an investor suit. Claimant has had the investment claims of a number of Airbus investors assigned to it. The core of the claim is that Airbus has tortiously caused damage to the investors in both the act, and in the correspondence leading to, and after, settlement with various financial authorities following allegations of corruption in securing aircraft orders. 

Oddly, no reference at all is made to Petrobas, despite the issues there being similar – perhaps the court in Airbus rejected relevance of the Petrobas decision for that case was held prior to CJEU Vereniging voor Effectenbezitters (VVE v BP).

I flagged many of the issues at issue in the judgment, in my post on applicable law which followed the jurisdictional discussion by the CJEU in VVE v BP.

The judgment is in Dutch of course however non-Dutch speakers may refer to it anyway, for the extract of Airbus’ choice of law provisions in the 2019 annual accounts [2.6]. This is relevant with a view to the discussion on transparency obligations following CJEU VVE v BP. 

The court, and one assumes parties were in agreement for the issue is not discussed, first of all assumes the liability is non-contractual. I continue to be of the view that this need not necessarily be the case. Focusing the discussion on Rome II therefore, the court also accepts readily that the lex societas carve-out of Rome II does not apply (reference is made [5.3] to CJEU Treuhand). Parties are in agreement [5.6] that for Dutch investors, Dutch law applies per Article 4(2) Rome I (shared habitual residence).

[5.10] Airbus absolutely correctly in my view insist that the CJEU’s Brussels Ia application in VVE must not simply be extrapolated to the applicable law issues at stake here. The court essentially disagrees ([5.10] in fine) and in my view it is wrong to do so.

It then [5.111], not entirely convincingly in my view, dismisses application of Article 4(1), holding that this Article in its view always leads to two applicable laws in each investor-Airbus relationship: that of the market in which the shares were bought (which will have subjected the sales to information requirements), always accompanied by Dutch law for that is where in any event listing information needed to be given.

Having ruled out A4(1), it settles for Dutch law under Article 4(3) as the law of the place of the seat of the corporation that issues financial instruments, largely citing predictability. I am not convinced.

Reference to the CJEU, requested by Airbus, is dismissed, as is [5.17] immediate appeal against the applicable law finding. Airbus will no doubt appeal the final judgment to review the issue of applicable law, too. I would suggest they have plenty of reason to do so.

Geert.

EU Private International Law, 3rd ed. 2021, Chapters 2 and 4.

Canara Bank v MCS International [2022] EWHC 2012 (Comm) is interesting with respect to Cooper J’s discussion of privity of choice of court and law, and the corporate carve-out of retained (post Brexit) Rome I.

Canara (an Indian bank) say that the Guarantee at the core of the issues, with English choice of law and court, was transmitted automatically to MCS France under the French Civil Code as a result of an amalgamation or merger of two French companies, namely the original guarantor and MCS France.

On the impact of Rome I, the judge [53] presumably with parties’ counsel approval, remarks that ‘pursuant to Article 1(2)(e) and (f), Rome 1 does not apply to questions governed by the law of companies or to the issue of whether or not an agent is able to bind a principal in relation to a third party. For both these issues, it is necessary to look to common law principles.’

[88] It is said again that whether an agent is able to bind a principal in relation to a third party is excluded from Rome 1 further to article 1(2)(g), the corporate carve-out. I do not think that is necessarily the case, even in combination with the Article 1(2)(e) carve-out for choice of court. The judge at any rate continues by applying the Dicey Rule 243 that where an agent acts or purports to act on behalf of a principal, their rights and liabilities in relation to each other are in general governed by the law applicable to the relationship or contract between them, with Dicey Rule 244(1) adding a bootstrap /von Munchausen /putative law element:

The issue whether the agent is liable to bind the principal to a contract with a third party, or a term of that contract, is governed by the law which would govern that contract or term, if the agent’s authority were established.”

[89] In light of the foregoing, ‘it was common ground between the parties, and rightly so, that Mr. Maurel’s actual authority on behalf of MIF fell to be determined under French law and the question of whether and to what extent Mr. Maurel was able to bind MIF in respect of the Guarantee given Canara’s knowledge of the resolution is a matter of English law.’

Common English conflict of laws is held to apply to the issue of transfer of a guarantee during the dissolution of a company, and parties agree [76] that whether a corporation has been amalgamated with another corporation is to be determined by the law of its place of incorporation: French law is held to be the relevant law for the dissolved guarantor issue, and expert reports were discussed.

Overall conclusion is [125]

Having considered the issue of good arguable case by reference to each of the issues raised by the parties in relation to the question of whether MCS France was a party to the Guarantee and therefore the jurisdiction agreement contained within it, it seems to me to appropriate to step back and consider whether overall Canara has a good arguable case on whether or not MCS France was a party to that jurisdiction agreement. In this regard, I consider that it does. Even were I to be wrong on one of the issues considered above, the balance of the evidence supports the conclusion that MCS France is a party to the Guarantee and to the jurisdiction agreement contained within it. In circumstances, where the evidence establishes that Canara, MCS France and MCS UK have done business since 2014 on the basis that the Guarantee was binding on MCS France, it would be a surprising conclusion that there was no good arguable case that MCS France was a party to the jurisdiction agreement.

Interesting, if flimsy on the corporate carve-out issue.

Geert.

Guarantee with EN law and jurisdiction clause. Whether it extends to French amalgamated company for purposes of jurisdiction.
Retained Rome I held not to apply on basis of corporate law carve-out.

Canara Bank v MCS International [2022] EWHC 2012 (Comm)https://t.co/jRg4GCW0Yr

— Geert Van Calster (@GAVClaw) July 30, 2022

I tweeted the case on 4 May….slowly I am getting trough the backlog. In Otsuka v GW Pharma [2022] EWHC 1012 (Pat) Karet DJ upheld jurisdiction to hear a dispute about a patent licence in circumstances where the licensee has indicated it will challenge the validity of licensed patents granted outside the UK.

On 7 January 2022 GW commenced proceedings against Otsuka in a state court in New York. There is a significant overlap between the matters raised in the New York claim and the E&W claim (as GW have indicated they will defend it). GW seek a declaration that under the Agreement between the parties none of the relevant patents Covers Epidyolex, including because the patents are invalid. Epidyolex is a drug for the treatment of seizures associated with various conditions or epileptic syndromes. The active ingredient in Epidyolex is cannabidiol (“CBD”).

[47] ff the judge considers the Moçambique rule which means that an English court has no jurisdiction to adjudicate a claim of title to foreign land. In Lucasfilm v Ainsworth the UKSC with some reference to the CJEU’s application of Brussels Ia’s Article 24, held that there is no jurisdiction in proceedings for infringement of rights in foreign land where the proceedings are “principally concerned with a question of the title, or the right to possession, of that property” (including intellectual property). [51] Reference is also made to Chugai Pharmaceutical Co Ltd v UCB Pharma SA and to Unwired Planet International Ltd v Huawei Technologies (UK) Co Ltd.

The judge [73] holds GW’s intended challenge to a foreign patent in this case is not direct in the sense suggested in Chugai and the rule in Moçambique is not engaged. Claim formulation in the US proceedings features as a strong argument in that conclusion. [81] ff a forum non challenge is rejected.

Geert.

EU private international law, 3rd ed. 2021, 2.196 ff.

Jurisdiction upheld in #patent licence dispute with licensee indicating challenge to validity of patents granted outside UK
Moçambique rule applied to IPR
Foreign Act of State doctrine, forum non conveniens

Otsuka v GW Pharma [2022] EWHC 1012 (Pat) https://t.co/RLypWznwbQ

— Geert Van Calster (@GAVClaw) May 4, 2022

This post is one for the comparative binder. Fong Chak Kwan v Ascentic Limited and Others [2022] HKCFA 12 (many thanks to Poomintr Sooksripaisarnkit for alerting me to the judgment) discusses a variety of issues, the one of interest to the blog is the tort gateway for a tort allegedly committed outside of Hong Kong. The ruling on that issue was delivered by Lord Collins, a former UKSC judge who continues to sit in the Hong Kong judicial system (unlike others who have withdrawn from the Hong Kong courts in light of the region’s rule of law issues).

[67] Direct damage was sustained on the Mainland, with indirect damage only in Hong Kong.

The First Instance judge [68] ‘in line with the majority judgments of Lady Hale and Lord Wilson in [UKSC Brownlie] .., and being unpersuaded by the minority view of Lord Sumption, decided that (a) the expression “damage” in Gateway F was not limited to damage which completed the cause of action; (b) the expression was not limited to direct damage as opposed to indirect/consequential damage; (c) where damage was felt in more than one jurisdiction, indirect/consequential damage qualified under Gateway F if it was of some significance; (d) the expression was to be given its ordinary and natural meaning, which embraced indirect/consequential damage; and (e) the consequences of a wide interpretation were sufficiently addressed by the discretion as to forum conveniens.’ 

The Court of Appeal [69] ‘like the judge, held that the reasoning of the majority in Brownlie v Four Seasons Holdings Inc was to be preferred to that of the minority. Damage included all of the heads of damage which might be suffered as a result of tortious conduct, including all the detriment, physical, financial and social which the plaintiff suffered as a result. The natural and ordinary meaning of Gateway F was clear, and there was no basis for drawing a distinction between direct and indirect damage. Nor was there any basis for applying the European jurisprudence on the Brussels Convention and Brussels I Regulations. Finally, the expression “the damage” in Gateway F did not mean that all the damage, or the damage which completed the cause of action, had to be sustained in Hong Kong.’

[74] ff Collins NPJ provides a historic and geographical comparative (Commonwealth) tour d’horizon, confirming the lower courts’ view.

[107]-[108] ‘(I)n the light of the legislative purpose, the natural and ordinary meaning of the word “damage” is just that, and the rule does not distinguish between the damage which completes a cause of action and that which does not, nor does it distinguish between direct or indirect damage, or between physical or financial damage. The question is whether there is a legislative purpose, or a public policy, or an absurd or undesirable result, which justifies a narrower construction, to encompass only direct damage as opposed to indirect damage.’: the judge finds there is no such purpose, policy or result.’

[109] he discusses 3 flows in the reasoning of the alternative reading, which are worth a read. [121] the same safety valve is emphasised as the UKSC did in the majority view in Brownlie: where the exercise of the locus damni gateway leads to unwarranted results, forum non conveniens can come to the rescue.

Geert.

Comparative conflicts
Note 64 ff Collins NPJ on jurisdiction in respect of tort allegedly committed outside of Hong Kong, with extensive reference to UKSC Brownlie https://t.co/Z0a0CPOowB and other jurisdictions https://t.co/oR1H7cR0Oe

— Geert Van Calster (@GAVClaw) June 22, 2022

In G I Globinvestment Ltd & Ors v VP Fund Solutions (Luxembourg) SA & Ors [2022] EWHC 1872 (Comm) wealthy Italian investors seek to recover losses which they suffered when investments they had made plummeted in value at the outset of the COVID pandemic. Defendants are in various jurisdictions. Most have accepted jurisdiction, two of them, one based in Luxembourg, the other in Liechtenstein, challenge jurisdiction.

The claim against the Liechtenstein defendant is subject to common law rules, the country not being a party to Lugano. I will leave that further undiscussed here, suffice to say the challenge was unsuccessful.

The claim against the Luxembourg based defendant was issued before Brexit implementation date and subject to Brussels Ia. It claims there is an A25 exclusive choice of court clause in the investment fund’s general subscription terms, and Vineall DJ discusses it with reference to the general A25 outline in PIFSS v Piqtet.

Parties are agreed [64] – wrongly, nota bene, that on formal validity, the question is whether there has been an actual consensus between the parties, clearly and precisely demonstrated, and on material validity, the question is whether the dispute between the parties arose or originated from the particular legal relationship in connection with which the clause was concluded. That is the kind of agreement which would see my students fail a Brussels Ia question.

[65] a further major error is made with the parties seemingly agreeing that ‘whether the claim falls within the scope of the [clause], that question is to be answered according to Luxembourg law’.

The conclusions are [88] that there is no [forum clause] in the in the Subscription Agreement, although there is choice of law clause; 88.2. There is no EJC in the Offering Document; The Offering Document wrongly asserts that there is a jurisdiction clause in the Subscription Agreement; That is insufficient to establish a clearly and precisely demonstrated consensus; no consensus as to jurisdiction is demonstrated: the result of the conflicting documents is a muddle; therefore there is no exclusive jurisdiction clause on which VP Lux can rely.

I have not got the kind of access to the file to say the outcome is factually wrong – the route to it certainly is and simply wrong in law.

The judge also [89] concludes that whether one of the claimants is a consumer who can sue in England and Wales need not be decided:  ‘That issue does not seem to me to be entirely straightforward and since it is not necessary to resolve it in the light of my conclusions about [choice of court] I prefer not to decide it’: why not?: VP Lux contest jurisdiction and it is the judge’s task under Brussels Ia to assess the existence of jurisdiction on any of the Brussels Ia grounds.

Had the judgment been issued in exam season it would have been obvious material for ‘spot the Brussels Ia errors’.

Geert.

Unsuccessful jurisdiction challenge which was based ia on Brussels Ia consumer, choice of court sections

G I Globinvestment Ltd & Ors v VP Fund Solutions (Luxembourg) SA & Ors [2022] EWHC 1872https://t.co/UfyToABXz6

— Geert Van Calster (@GAVClaw) July 21, 2022

In Athena Capital Fund SICAV-FIS SCA & Ors v Secretariat of State for the Holy See [2022] EWCA Civ 1051, the Court of Appeal has overturned the High Court’s judgment ordering a stay in a case involving alleged property fraud. I reviewed the first instance judgment here. The judge held the E&W courts did have jurisdiction over the claims but stayed them

because he took the view that the respondent had adopted a neutral position as to whether the appellants were under any liability and because the real dispute was not between the parties to this action but between the appellants and the prosecuting authorities responsible for the conduct of criminal proceedings against the fourth appellant in the Vatican City State.

(Males LJ [1]).

Many of the High Court judgment’s’ findings were not on appeal (such as the erroneous dropping of renvoi in the A25 BIa choice of court analysis).

The Court of Appeal spends a while summarising the earlier judgment, to arrive [54] at the crucial juncture between the Brussels Ia Regulation and case-management stays, with reference to its very recent decisions in Municipio and Nokia and to Article 6 ECHR right of access to courts [59]. Para 59 is crucial and I repeat it here in full

There is, as it seems to me, no reason to doubt that it is only in rare and compelling cases that it will be in the interests of justice to grant a stay on case management grounds in order to await the outcome of proceedings abroad. After all, the usual function of a court is to decide cases and not to decline to do so, and access to justice is a fundamental principle under both the common law and Article 6 ECHR. The court will therefore need a powerful reason to depart from its usual course and such cases will by their nature be exceptional. In my judgment all of the guidance in the cases which I have cited is valuable and instructive, but the single test remains whether in the particular circumstances it is in the interests of justice for a case management stay to be granted. There is not a separate test in “parallel proceedings” cases. Rather, considerations such as the existence of an exclusive English jurisdiction clause and the danger of circumventing a statutory scheme for the allocation of jurisdiction (such as the Judgments Regulation) will be weighty and often decisive factors pointing to where the interests of justice lie.

Males LJ therefore, like others before him, does not rule out a case-management stay even for proceedings covered by Brussels Ia yet puts (among others) that Regulation’s statutory purpose, and the need not to allow it to be circumvented, at the centre ground of the decision on a stay.

[60] ff a succinct background is given to the happiness, or not, of English courts entertaining negative declarations. [74] is the Court of Appeal’s core argument for lifting the stay:

I consider that the judge’s conclusion on what he described as the Secretariat’s “central argument” was mistaken. The Secretariat was not neutral. It follows that the basis on which the judge concluded that, at present, the grant of declarations would serve no useful purpose and therefore exercised his discretion to grant a case management stay was fundamentally flawed. Indeed the circumstances in which he envisaged that the declarations might serve a useful purpose and that the stay might be lifted, that is to say if the Secretariat adopted a partisan position in the criminal proceedings in the Vatican, already existed.

The judge had essentially decided that claimants, given the jurisdictional (for reasons of immunity) unavailability of the real defendants, had picked an ‘innocent bystander’ against whom to seek the negative declaration, the Secretariat, yet the Court of Appeal now finds that the Secretariat is not a neutral bystander at all. There is a real ‘dispute between the appellants and the Secretariat as to whether the appellants are under any civil liability to the Secretariat, for example to pay compensation, as a result of entering into the Transaction.’ [75]

[77] it is conceded that the lifting of the stay means there will be related proceedings going on in E&E, and the Vatican. But that is not found to be a reason to stay the English proceedings.

Geert.

For review of the first instance judgment see https://t.co/LcAvK1nua8 https://t.co/G1XIlQ2QlV

— Geert Van Calster (@GAVClaw) July 26, 2022

Another overdue post following up on earlier Twitter flag. In On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch), a competition law ‘follow-on damages suit, Nugee LJ considered in particular whether in assessing the relatedness of proceedings, the judge can indeed may have to take into account what is likely to be pleaded by way of defence in both actions. He held [52] he can:

the better view is that where an application for a stay is made at a stage when the defence to an action has not yet been pleaded, the Court can have regard to the substance of a defence that it can confidently predict is likely to be pleaded.

However [53] ff on the facts he then held that the most likely outcome of that defence in the Irish proceedings is that these will be dismissed. This I believe is a form of judicial clairvoyance which goes too far, even in the wide remit which Article 30 gives to the judge assessing relatedness and the appropriateness of an Article 30 stay.

Geert.

EU Private International Law, 3rd ed. 2021, 2.521 ff.

Jurisdiction, competition law 'follow-on' damages
Stay on the basis of A30 Brussels Ia 'related actions' refused.
Re taking into account of possible defences in the Irish proceedings.

On the Beach Ltd v Ryanair UK Ltd & Anor [2022] EWHC 861 (Ch)https://t.co/SR85hPU1X9

— Geert Van Calster (@GAVClaw) April 19, 2022

Medina AG’s end June Opinion in C-238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebung will delight waste lawyers for the case once again evolves around the definition of ‘waste’ as applied to excavated soil. Statute to be interpreted is the WFD or the Waste Framework Directive 2008/98. CJEU SAPPI is a recent judgment  often referred to by the AG.

Porr Bau, the applicant in the main proceedings, is a construction undertaking established in Austria. In July 2015, certain local farmers asked it to supply them, against payment, with excavated soil and to distribute it over their properties. The purpose of the farmers’ request was to level their agricultural land and improve their cultivation areas, thereby increasing yields. Porr Bau applied to the relevant authorities for a statement that the soil was not to be considered waste so as it could avoid a number of taxes. That authority disagreed and also held that the soil, which it considered to be waste, had not yet reached end-of-waste status.

The AG (36) opines that it should not be assumed that all excavated soil by a construction undertaking is by default to be discarded, and that it is difficult to conclude that, under circumstances such as those of the present case, the intention of a construction undertaking is to discard excavated soil that has been carefully selected, subjected to a quality control and supplied as uncontaminated top-quality material in order to attend to a specific request from local operators in need of that material. He also suggests, less convincingly in my view, (38 ff) that such soil may be considered a by-product of the construction sector. 

Should he not be followed on the waste definition issue, the AG suggests and he is right in my view that national law must not deny end-of-waste status until the holder fulfils certain formal requirements with no environmental relevance such as record-keeping and documentation obligations.

Geert.

EU Waste law, 2nd ed 2015, 1.20 ff.

Opinion Medina AG yday in a case involving uncontaminated excavated soil, supplied to farmers for land adaptation and development
National end of waste criteria, by-products as opposed to waste

C‑238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebunghttps://t.co/Akl1PFYCrz

— Geert Van Calster (@GAVClaw) June 22, 2022

This one is overdue for review on the blog. In Van Heck v Giambrone & Partners Studio Legale Associato [2022] EWHC 1098 (QB) the High Court confirmed in appeal the refusal of a stay on Article 29 Brussels Ia lis pendens grounds in a case concerning a barrister’s claim for professional fees. The defendant in the English proceedings had initiated an Italian claim, prior to the English claim, in which it denied liability for the fees: a classic mirror claim. The court of first instance in Palermo had denied it had jurisdiction. That judgment went to appeal, where it is pending however the first instance, sole judge in England held that the jurisdictional issue had been conclusively dealt with and was not in appeal. Hence that no ‘lis’ was still pending for Article 29 to apply.

Soole J [75] held that the critical question for determination was whether the proceedings in the court first seised, i.e. the Palermo Claim, had been ‘finally determined in relation to its jurisdiction’. Whether or not that is the case, in the absence of a European harmonised approach to whether the national courts are still seized of the jurisdictional issue, is a matter of national procedural law [80]] which the E&W judge is to assess as a matter of foreign law hence fact, to be proven by the parties. That finding is a factual issue which the judge held upon with the help of relevant expert and  is not within the appeal.

Stay therefore dismissed.

Geert.

Appeal dismissed, confirmation of refusal to stay E&W proceedings on barrister's fee claim in favour of proceedings in Palermo (A29 BIa, lis pendens)

Van Heck v Giambrone & Partners Studio Legale Associato [2022] EWHC 1098 (QB)https://t.co/Ngi3aQX8lZ

— Geert Van Calster (@GAVClaw) May 13, 2022

In Deane v Barker & Ors [2022] EWHC 1523 (QB) concerns the frequent and upsetting scenario of falls in rented holiday accommodation. Claimant is habitually resident in England, proceedings were issued in December 2019, and subject therefore to Brussels Ia. Any jurisdictional challenge would have been tricky (but not impossible, seeing as 2 of the defendants are based in Spain; one of them one presumes is sued in E&W on the basis of BIa’s insurance title, the other (the Spanish company which manages the property) on the basis of the anchor mechanism or perhaps forum contractus). At any rate, there is no jurisdictional objection.

The owners of the villa, like the claimant, are domiciled in England and they are being sued on the tort of negligence which, per A4(2) Rome II, makes English law in principle the applicable law to most of the claim (there is also an additional contractual claim against the property manager, said to be subject to Spanish law per the cascade of A4 Rome I; and a claim in tort subject to Spanish law per A4(1) ).

Issues such as the standard of care and breach of duty viz the main claim will be informed by whether the staircase complied with Spanish law safety standards – CTE: that is the result of A17 Rome II. The issues for this preliminary discussion, are [21]

Issue 1 Whether the works conducted at the villa and/or on the staircase were refurbishment works (such as to trigger the application of the CTE) or merely maintenance works (such as not to trigger the application of the CTE)? Issue 2 Whether the villa (and the staircase within it) was for general or public use (such that the material provisions of the CTE would presumptively apply) or for restricted use (such that the same provisions would not apply)? Issue 3 Whether, if the material provisions of the CTE apply, this would in principle give rise to a breach of duty in English and Spanish law?

Issue 1 and 2 depend on the interpretation of foreign law which, in common law courts, is fact and must be proven. The discussion here seems to have turned on lengthy debate on the exact meaning of definitions. That this should be discussed so intensely does not surprise me (unlike the judge who suggested it was unusual): if a definition is of great relevance to the outcome of the case, why should it not be extensively discussed.  The debate also engages the methods of interpretation by the Spanish courts: this leads [38ff] to expert views and discussion that are  interesting with a view to comparative statutory interpretation, and will be of relevance to those with an interest in languages and law.

Geert.

An interesting case on proving foreign law
Context: definitions in Spanish building codes, applicable per EU law, Rome II

Deane v Barker & Ors [2022] EWHC 1523 (QB) (Richard Hermer QC sitting as HCJ)https://t.co/sk7hotoct8

— Geert Van Calster (@GAVClaw) June 20, 2022

Others will no doubt analyse Friends of the Earth Ltd & Ors, R (On the Application Of) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin) at much more length. I just thought I would pen down my thoughts when reading the judgment.

The case is a further judgment holding Governments to account for not addressing climate change challenges properly. The United Kingdom being a dualist country (all the more so following Brexit), the arguments do not much feature the Paris Agreement directly. Rather, claimants aim to hold Government to how Parliament said it should act in addressing climate change  in the Climate Change Act 2008 – CCA 2008, and, additionally, through the requirements of the European Convention on Human Rights, whether or not in combination with the UK Human Rights Act. The core of the exercise and judgment therefore is one of statutory interpretation.

Of note first of all is that most of the claimants’ arguments were rejected and one assumes therefore that they will be seeking permission to appeal (just as the Government will).

The judgment kicks off with the oblique reference to trias politica. Holgate J [22] cites R (Rights: Community: Action) v Secretary of State for Housing Communities and Local Government [2021] PTSR 553 at [6]: –

“It is important to emphasise at the outset what this case is and
is not about. Judicial review is the means of ensuring that public
bodies act within the limits of their legal powers and in
accordance with the relevant procedures and legal principles
governing the exercise of their decision-making functions. The
role of the court in judicial review is concerned with resolving
questions of law. The court is not responsible for making
political, social, or economic choices. Those decisions, and those
choices, are ones that Parliament has entrusted to ministers and
other public bodies. The choices may be matters of legitimate
public debate, but they are not matters for the court to determine.
The court is only concerned with the legal issues raised by the
claimant as to whether the defendant has acted unlawfully.”

And [194]: judicial review in this case must not be merits review and the judge must adopt a ‘light touch’.

Starting with the ECHR arguments, there were summarily dismissed [261] ff. They engaged with Article 2 ECHR’s right to life, Article 8’s right to family life (these two being the classic anchors for environmental rights in the ECHR) and Article 1 of the first protocol (‘A1P1′)’s right to [protection of property. Holgate J holds that the claimants’ argument on the ECHR ‘goes beyond permissible incremental development of clear and constant Strasbourg case law’ [275] and [269-270] that the Dutch Urgenda decision offers a narrow window of ECHR relevance to climate law which does not open in the current case (with [270] in fine an explicit warning that Dutch authority, it being a monist country, should not hold much sway in England and Wales).

A first ground discussed the role of quantitative v qualitative assessment and whether and the degree to which the Minister was to show the targets could be met quantitatively. The judge held that ‘the CCA 2008 does not require the Secretary of State to be satisfied that the quantifiable effects of his proposals and policies will enable the whole of the emissions reductions required by the carbon budgets to be met. The [statutory] obligation …does not have to be satisfied by quantitative analysis alone.’ [193].

However one of the grounds on which the challenge did succeed is the quality of the input for the Minister’s decision: this overall briefing was held to have omitted data the minister was legally obliged to take into account, and which was not insignificant. As a result the Minister failed to take it into account as a material consideration, so that his decision was unlawful (compare [200]). [221] the briefing was held to have been wanting, in that it failed to identify under the quantitative analysis the contribution each quantifiable proposal or policy would make to meeting the UK’s carbon budgets; and it failed to identify under the qualitative analysis which proposals and policies would meet the 5% shortfall for one of the carbon budgets and how each would do so.

[246] ff (where Holgate J does refer, albeit with statutory distinguishing, to relevant Irish cases), another partial ground is upheld namely that of proper information given to Parliament (and therefore also the public; both a sore point in the current UK Government) on the data reached for the Ministerial conclusion and data on the pathways for delivery themselves. [257]: ‘contributions from individual policies which are properly quantifiable must be addressed in’ the report given to Parliament and hence the public.

The result therefore is important in terms of accountability and transparency (where unfortunately no mention was made of the Aarhus Convention which Continues to apply to the UK), with the latter element also being inspirational for other jurisdictions where Governments have been told to go back to the climate change drawing board.

Geert.

W Nagel (a firm) v Pluczenik& Ors [2022] EWHC 1714 (Comm) concerns litigation in the diamond sector. It is an appeal against permission for service out which triggers various jurisdictional considerations, including forum non, as well as disclosure and ‘clean hands’ concerns.

The judgment is a good illustration of claim and counterclaim serving jurisdictional purposes.

Defendants are a Belgium-domiciled diamond manufacturer (PDC) and its equally Belgium-based managing director Mr Pluczenik . Claimant Nagel is a UK based diamond broker. Nagel is defendant in Belgian proceedings brought in May 2015 by defendants in the E&W proceedings, who used a Belgian-based anchor defendant to sue the English claimant in Belgium (A8(1) Brussels Ia); Nagel are also defendant in a September 2015 Belgian claim brought by the same claimants and since consolidated by the Belgian courts. Nagel itself issued a claim against PDC in the English High Court in March 2015, did not serve it, but sent a letter before action which indicated that it intended to bring proceedings in England.

In June 2015, as direct reaction to the Belgian Claim, Nagel amended the English Claim to seek negative declaratory relief to the effect that it was not liable in respect of a number of contractual duties.

In July 2017 Popplewell J found for Nagel, including in respect of the negative declaratory relief: W Nagel (A Firm) v Pluczenik Diamond Company NV [2017] EWHC 1750 (Comm). His judgment was confirmed by the Court of Appeal: [2018] EWCA Civ 2640, payments were made and the E&W proceedings ended.

Come forward third defendant in the current E&W proceedings, Ms Shine, who was the CEO of a subsidiary of De Beers – De Beers Trading Company. She has never worked for either of the Claimant or the First or Second Defendants, but she gave a statement to the Belgian court in 2017, supporting PDC. Her statement was provoked it seems by the outcome of the E&W proceedings which did not match her recollection. Nagel originally objected to jurisdiction solely on the ground of lis pendens (A29-30 BIa).

In July 2020 (one can see that in this case the speed of Belgian proceedings is nothing like in the case I reported yesterday) the Belgian claimants put forward their arguments on jurisdiction based on Antwerp being forum contractus per A7(1) BIA (they argued centre of gravity or characteristic performance was in Antwerp) [20].

In an interim, February 2021 interim judgment the Belgian court held it had jurisdiction on the basis of A7 forum contractus. It considered the lis pendens issue noting that it could no longer apply now that the English Claim was concluded. It then concluded that it had jurisdiction to determine the dispute. The Court noted that “the defendants apparently do not (or no longer) dispute” that the services were performed in Antwerp. 

Nagel then dropped the jurisdictional arguments and at hearings 7 May 2021 onwards went for res judicata, arguing …the English judgment has the status of res judicata with regard to the present proceedings, so that the court on the basis of Article 23 and 25 Judicial Code [the Belgian CPR, GAVC] is currently prohibited from again deciding on the claim…” [30]. End of May 2021 Nagel then commenced the present claim in the Commercial Court. The claim alleges that the Belgian Claim constitutes a tortious abuse of process and forms part of an unlawful means conspiracy between the Defendants. Ms Shine is the Third Defendant. It is said that the provision of the Shine Statement and its (lack of) merits justify an inference that she was involved in the abuse of process and the conspiracy [31].

In September 2021 Moulder J gave permission for service out (required post Brexit) on the basis that the claim met limb (a) of the tort gateway viz “damage was sustained, or will be sustained, within the jurisdiction” (Nagel trades from England, paid sums to Belgian lawyers from a bank account in England and has consequently suffered loss here; she also UKSC Brownlie for the damage gateway). She refused permission on two other gateways – necessary and proper party and tort committed within the jurisdiction. It is alleged by defendants that Moulder J was not given any indication of the Belgian interim judgment.

The Belgian Claim is now scheduled for trial in January 2023.

[64] Cockerill J holds that the Belgian findings on jurisdiction and the existence of a judgment which dealt in terms with jurisdiction should on any view have been put before Moulder J and [65] that this breach of duty of disclosure was deliberate. She also holds [70] that the picture sketched of the Belgian proceedings being ‘in limbo’ was plainly wrong: they were definitely active, and that it had been wrongfully suggested that the Belgian judge was not going to deal with the res judicata issue. On that basis, she would have set aside permission for service out [75] however this point turns out to be obiter for the reason for reversal of the order is that E&W are not the appropriate forum [76] ff. Relevant factors being that (i) the jurisdiction of the Belgian Courts appears to have been established by PDC and accepted by Nagel (at least on a prima facie basis), (ii) the Belgian claim is progressing and (iii) there is scope for determination of a res judicata issue (which replicates the issues sought to be brought here) and (iv) a determination of the res judicata issue is (and was) likely to be determined relatively soon.

Moreover, Belgium clearly is an appropriate forum [79] the Belgian Claim is one brought by a Belgian company (PDC), arising out of services provided in Belgium (as the Belgian Court has held), alleging fraud on the Belgian Court. (The serious issue to be tried discussion leads to an analysis of Article 4 Rome II as retained EU law).

A good illustration as I mentioned of claim, counterclaim, and of course the clean hands principle.

Geert.

Res judicata issues and claims of abuse of process by launching Belgian proceedings under Brussels Ia

W Nagel (a firm) v Pluczenik& Ors [2022] EWHC 1714 (Comm)https://t.co/UKQi3rEer9

— Geert Van Calster (@GAVClaw) July 6, 2022

Simon v Tache & Ors [2022] EWHC 1674 (Comm) is an interesting judgment which one assumes is very appealable given the untested Withdrawal Agreement and other angles.

At issue is i.a. whether Article 67 Withdrawal Agreement requires both sets of proceedings which are a candidate for Brussels Ia’s Article 29-30 lis pendens /related cases provisions, to have been pending prior to Brexit Implementation Date and what date needs to be considered the date of seizing.

Claimants argue, that the Belgian Proceedings, which I outline below, could only have become related on 3 May 2021 by the lodging of the 3 May Submissions, and that the English Court only became seized of the English proceedings after 31 December 2020, either on the making of Service Out Application or on the subsequent issue of the English Proceedings. On this basis it would not be open to the Defendants in the English proceedings to rely upon Article 67 as applying Articles 29 and 30 of Brussels Recast to the English Proceedings.

Claimant is a French national living in London. She is a medical doctor who previously practiced. She now focuses on art and design. Defendants are Belgian nationals, contemporary art dealers with a gallery website in English. This element notably raises issues whether the contract could qualify as a consumer contract. Defendants deny this, citing the very example I often give in class when teaching the relevance of language in the context of the Pammer Alpenhof criteria: the very use of English on websites, particularly in the art, design or hospitality sector in cities like Brussels are hardly an indication of direction of activities outside the location. The contract being a consumer contract seemingly was not flagged in claim form or submissions, it only came up at hearing.

Claimant and defendants having met in Paris, various artworks were delivered to claimant’s Paris address. Lex contractus is disputed [20]. The relationship soured and Belgian libel proceedings by defendants in the E&W proceedings were initiated end of October 2020. End of March 2021 Dr Simon was given permission to serve out. Her application mentioned the Belgian proceedings but argued that these were unrelated, ia in light of the different (non)contractual basis of those proceedings [35]. A claim form was sent to defendants’ lawyers early April 2021 and the claim form was filed 10 May 2021. On 3 May the defendants in the E&W proceedings amended thier Belgian claim, adding a request for declaration of non-liability: in other words they requested the Belgian court to declare that there was no wrongdoing on their part in the contractual relationship.

End of October 2021 the first instance Belgian court held it does have jurisdiction, but that no damage was proven. That court however declined to rule on the claim for a negative declaration because the allegations were before the English court. The Belgian court’s dictum on that issue is very brief, declaring only ‘“Whereas the ensuing dispute was never resolved and is currently the subject of a lawsuit in London, such that this court will refrain from commenting on the merits of that case.” : it did not specify why which clearly is a failure on its part.

[50] it is the Defendants’ case that the Belgian court was first seized on 3 May 2021, before the E&W Court was first seized on 10 May 2021 on the issue of proceedings. On the other hand, it is Dr Simon’s case that the E&W Court was first seized on the making of the Service Out Application and/or the making of the Service Order on 30 March 2021, alternatively on the issue of the Claim Form on 10 May 2021, but that the Belgian court was only seized when the Defendants’ claim for a negative declaration was filed on 5 August 2021.

It is undisputed [52] that as a matter of Belgian procedural law, it would be open to Dr Simon to raise a counterclaim in respect of the causes of action that she seeks to pursue by the English Proceedings in the Belgian Proceedings, and to do so notwithstanding that they are now before the Belgian Appeal Court. Expectations of the Court of Appeal ruling varied between one and five years [54] however in the end that Court surprised all and held after the English judge’s draft judgment had been circulated.

In November 2021 Dr Simon at her turn added a claim to her English claim form, one in dishonesty.

The judge holds [74] that BIa continues to apply to new claims added to proceedings commenced prior to 31 December 2020 and claims against new defendants joined to such proceedings after that date. He refers to  On the Beach Ltd v Ryanair UK Ltd [2022] EWHC 861 (Ch) in support (acknowledging that that case is not authority to him and that the parties in that case were in agreement on the issue).

On the issue of seizure, the judge holds [92] that this must be linked to the formal lodging of a claim form in order to issue proceedings, rather than the taking of some preliminary step to obtain permission with regard to the service of proceedings which might never be issued. I have sympathy with the view [85] that this gives the other party a great opportunity to torpedo proceedings.

‘“the same cause of action, between the same parties” is judged, despite an acknowledgment of EU autonomous interpretation, with reference to Belgian procedural law and expert reports on same [103]. That must be a vulnerable position.

Conclusion on A29 is that a stay must be ordered [114] and obiter [120] that one would have been ordered on A30 grounds.

Service out is discussed [121] in a bit of a vacuum because of course is BIa applies then service out is not required. Here reference is made to Rome I’s applicable law as an element of the gateway requirements (contract governed by English law) (held: no: Belgian law is prima facie lex contractus [134], with discussion ia of the consumer title. As a pudding, forum non conveniens is considered and this is surely where the jurisdictional arguments become excessive per Lord Briggs’ speech in Vedanta.

Then comes the final pousse-café: the Belgian Court of Appeal, unexpectedly fast, found it had no jurisdiction (this may be appealable to the Belgian Supreme Court), leaving the possibility of a negative conflict of jurisdiction which the parties were invited to comment upon.

A case to watch.

Geert.

Application of Brussels Ia's lis pendens (As 29-30) rules re concurrent Belgian proceedings, with BE Court of Appeal eventually holding, like the E&W courts, that it has no jurisdiction
More soon

Simon v Tache & Ors [2022] EWHC 1674 (Comm)https://t.co/APyROT7Fi9

— Geert Van Calster (@GAVClaw) July 6, 2022

The Belgian Data Protection Controller (DPA)’s decision of March 2022 (thank you Peter Craddock for alerting me to it at the time) has been travelling with me since it was issued mid March 2022: a late posting, I realise. There is however follow-up because Google have appealed.

The case concerns a classic ‘right to be forgotten’ aka delisting request, which Google refused, made by a practising solicitor with a criminal conviction and disciplinary measures taken against him. Google was rebuked, but not fined, for not dealing with the request promptly. However in substance the DPA agreed with Google’s refusal to delist, citing the link of the convictions to the applicant’s current profession, the recent nature of the conviction, and the severity of the facts.

This post however wants to signal the issue for which Google have appealed: the territorial reach of the GDPR under Article 3(1) v 3(2) GDPR,  as also explained in the European Data Protection Board (EDPA) December 2019 guidelines on the territorial scope of the GDPR (and something which the Belgian Court of Appeal has grappled with before, albeit not in the 3(1) v 3(2) setting).

Article 3(1) of the GDPR applies to “the processing of personal data in the context of the activities of an establishment of a controller or processor in the Union, regardless of whether processing takes place in the Union or not“. Article 3(2) applies the GDPR to “the processing of personal data of data subjects who are in the Union by a controller or processor not established in the Union, where the processing activities are related to (a) the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in the Union, or (b) the monitoring of their behaviour as far as their behaviour takes place within the Union“.

Google Ireland was fast out off the picture by consent among the parties and the DPA [39-40]: it had no role at all in any of the processing. Google LL.C. admitted [44] that Article 3(1) applies to it, while Google Belgium [53] posits that as a mere internal consultancy /lobbying outfit for the Google group, it, too, has no role in the processing of the data.

Citing earlier decisions and CJEU Google Spain, the DPA nevertheless takes a broad view of ‘data processing’, arguing [64] that Google Spain identifies an ‘inextricable link’ between the various units of a group as sufficient to trigger DPA jurisdiction, even if one of these units has no role in the data processing.  While this reasoning ([68] and [71] in particular) suggests the wide notion of inextricable link triggers Article 3(1), in subsequent paras ([69] in particular) suggest the opposite causality: suggesting that because Article 3(1) applies, the activities are inextricably linked. Clearly, as Peter Craddock had pointed out before (I read it at the time but cannot find the source anymore I fear) that is a case of circular reasoning.

For Google, application of the GDPR to the US based entity as opposed to the EU based ones clearly is of significant difference. Its appeal with the Court of Appeal will be heard in the autumn.

Geert.

EU private international law, 3rd. ed. 2021, 2.256 ff.

Early July the courts at Rotterdam held in ITWF, Nautilus International and FNV v Marlow Navigation Netherlands BV et al that the International Transport Workers Federation (IT(W)F) Non Seafarers’ Work Clause, also known as the Dockers’ Clause, falls within the CJEU ‘Albany’ exception of EU competition law. The case se was brought against a number of shipowners who disregarded the clause.

In the interest of full disclosure, I should note I acted as expert witness for the ITWF.

The dockers’ Clause, negotiated between trade unions and employers, forms an integral part of a set of agreements primarily entered into by ITF and the Joint Negotiation Group (JNG – represent maritime owners from across the world) . In short  the clause amounts to a ban on ships’ crews carrying out work relating to securing and releasing the load on a ship (often: containers), collectively known as ‘lashing’ /’unlashing’ work. Tiredness and fatigue are some of the biggest risks for seafarers, who are expected to rest in the ports, not carry out the specialised and dangerous work of dockers. 

The Dockers’ Clause, together with the other employment conditions, was the result of an intensive and multi-year period of negotiations between a large number of social partners. Exemptions are possible under conditions.

Collective agreements of course are prima facie suspect under EU competition rules. The Albany ‘exception’ of the Court of Justice of the European Union concerns the core criteria which the CJEU employs in its competition law assessment of the activities carried out by organisations that organise social protection for workers in a given sector. The Court held (at 60) that

It therefore follows from an interpretation of the provisions of the Treaty as a whole which is both effective and consistent that agreements concluded in the context of collective negotiations between management and labour in pursuit of such objectives must, by virtue of their nature and purpose, be regarded as falling outside the scope of Article 85(1) of the Treaty.

Article 85(1) is what is now Article 101 TFEU, and by ‘such objectives’ the Court (at 59) means ‘social policy objectives’.

Note, for conflicts lawyers, the application of Article 4-4 Rome I, and, viz some of the defendants, Article 4(1) Rome II, to conclude application of Dutch law.

The Court at Rotterdam held that the seafarers clause fits squarely within the Albany exception: it is ‘entered into in the framework of collective bargaining between employers and employees’, and it improves the employment and working conditions of workers’. Note at 4.38 the reference to these agreements necessarily involving a ‘package deal’ which implies that the interest of all involved will be weighed and that as a result of the collective bargaining, some of those concerned will get a better deal than others. However both the CJEU and the Court at Rotterdam leave that assessment to the negotiation process.

Further arguments based ia on free movement of workers, services, establishment  were rejected. (A narrow Covid19 exception was accepted for a narrow set of circumstances).

An important judgment for those interested in competition law and collective bargaining.

Geert.

Pleased to have contributed to this important finding on the collective agreements 'Albany' exception in EU competition law. https://t.co/MWaEiUfsUN

— Geert Van Calster (@GAVClaw) July 8, 2022