Agrégateur de flux

In a judgment of 12 January 2022, the French Supreme Court for civil and criminal matters (Cour de cassation) ruled again that foreign judgments ordering the payment of disproportionate financial awards violate French public policy and will be denied enforcement on this ground.

Background

The case was concerned with a loan made by a Russian bank to two Russian spouses who were both domiciled in Russia. The purpose of the loan, it seems, was to purchase immovables in Russia. The lender sought repayment of the loan in Russian courts, and a court of St Petersburg eventually the borrowers to repay. The contract provided for the payment of various interests, including an interest ranging from 30 to 50% in case of default.

The bank sought to enforce the Russian judgment in France, aiming at a home of the borrowers on the French Riviera

The spouses resisted enforcement of the judgment on the ground that the interest rate was contrary to French public policy.

First Judgment

The Paris Court of Appeal has initially declared enforceable the Russian judgment on the ground that the French rules prohibiting that interest rates go beyond a certain level (usury) were not internationally mandatory.

In a judgment of 17 October 2018, the Cour de cassation allowed an appeal against this decision by ruling that the court of appeal should have concretely assessed whether the interest rate applied by the foreign court might violate French public policy.

Second Judgment

The case was remanded to another chamber of the Paris court of appeal which denied enforcement to the Russian judgments. The court relied on the caselaw of the Cour de cassation which has ruled since 2010 that, while punitive damages are not, per se, contrary to French public policy, they can be if they are disproportionate.

The appeal of the bank to the Cour de cassation was dismissed. The French supreme court held that the court of appeal had rightly ruled that, while punitive damages are not, per se, a violation of French public policy, financial awards are contrary to public policy when the financial award was disproportionate considering 1) the harm suffered and 2) the contractual breach.

The court concluded that the application of the interest rate violated French public policy, as informed by the fundamental right to property.

Assessment

The judgment is merely a confirmation of a clear trend in the case law of the Cour de cassation to assess the proportionality of financial awards granted by foreign courts. Although the first judgment of the court was concerned with punitive damages, the scope of the rule is much broader, as confirmed by this judgment. The Paris court of appeal has also suggested that it would apply it in the context of enforcement of arbitral awards.

The appeal had made an interesting, and to my knowledge, novel argument. It insisted that proportionality should also be assessed with respect to the wealth of the debtors. It is unknown whether the debtors were oligarchs with other properties throughout western Europe, but should it matter for the analysis? The argument is rejected, but only on the basis that it had not been made before the court of appeal.

Finally, an interesting aspect of the case is that it had so few connections with France. Decades ago, this would have been perceived as critical, under the doctrine of effet attenué de l’ordre public: situations created abroad should not be scrutinised as closely (read: not scrutinised at all) as situations to be created in France. But the Cour de cassation has not applied or referred to this doctrine in decades. The judgment does not even care to respond to the argument, which confirms that the doctrine has become obsolete under French law.

Dans sa décision du 7 septembre 2022, la chambre criminelle apporte d’importantes précisions tant sur l’infraction d’aide au séjour irrégulier que sur les droits des tiers, propriétaires de biens visés par une mesure de confiscation.

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La Cour de justice se penche sur la détermination du juge compétent en matière de responsabilité parentale, lorsque la résidence de l’enfant est transférée d’un État membre de l’Union vers un État tiers.

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The International Journal of Procedural Law is a new  multilingual journal that provides an international research platform for scholars and practitioners in the field of procedural law, especially in civil matters.

The following papers were published in this issue:

Editorial

E Oteiza

DOCTRINE/STUDIES

A Nylund, “Introduction: Perspectives on Orality in Civil Proceedings”

FG Inchausti, “Challenges for Orality in Times of Remote Hearings: Efficiency, Immediacy and Public Proceedings”

MA Hjort, “Orality and Digital Hearings”

V Benabou and E Jeuland, “From the Principle of Immediacy to the Principle of Presence: A French Example and a Comparative Law Perspective”

A Nylund, “Oral Proceedings during the Preparatory Stage”

M Strandberg, “Immediacy, Orality and Appellate Proceedings”

 

PRATIQUE/PRACTICE

Analyse Comparative/ Comparative Perspectives

C Wendelstein, “Online Trading of Cryptocurrencies: A European Civil Procedure Law Perspective”

TA Alvim et al, “Class Actions in Brazil”

MA Lupoi, “Grandes Décisions/Leading Cases”

 

 

A collection of essays in honour of Haimo Schack (Ius Vivum: Kunst – Internationales – Persönlichkeit: Festschrift für Haimo Schack zum 70. Geburtstag) has just been published by Mohr Siebeck, edited by Sebastian Kubis, Karl-Nikolaus Peifer, Benjamin Raue and Malte Stieper.

The book brings together more than ninety contributions, mostly in German, grouped under six headings: art law and the law of culture; intellectual property law; private international law; international civil procedure; the law of personality; civil law, civil procedure and comparative law.

The section devoted to private international law features essays by Christine Budzikiewicz, Morten M. Fogt, Susanne Gössl, Jan von Hein, Christian Heinze, Peter Huber, Claudia Mayer, Joachim Münch, Dennis Solomon and Astrid Stadler.

The international civil procedure section comes with essays by Jürgen Basedow, Dagmar Coester-Waltjen, Gilles Cuniberti, Masahisa Deguchi, Tanja Domej, Anatol Dutta, Martin Gebauer, Reinhold Geimer, Wolfgang Hau, Peter Hay, Burkhard Hess, Jan Felix Hoffmann, Abbo Junker, Eva-Maria Kieninger, Christian Kohler, Herbert Kronke, Sebastian Kubis, Stefan Leible, Felix M. Wilke, Dieter Leipold, Luís de Lima Pinheiro, Volker Lipp, Mark Makowsky, the late Peter Mankowski, Peter G. Mayr, Pedro A. De Miguel Asensio, Thomas Pfeiffer, Oliver Remien, Herbert Roth, Rolf A. Schütze, Michael Stürner, Rolf Stürner, Christoph Thole, Dimitrios Tsikrikas, Rolf Wagner and Markus Würdinger.

Issues related to private international law and international litigation are also dealt with in contributions found in other sections.

The full table of contents is available here.

The ILA Reporter, the official blog of the International Law Association (Australian Branch), is currently calling for submissions on private international law to be published on the website.

The Reporter provides leading analysis, commentary and discussion on public and private international law issues, which have a bearing on Australia and the wider region. The length of contributions is flexible – anywhere between 500 and 1,500 words is ideal, and we frequently publish multi-part article series.

Would you or any of the postgraduate students in the law school be interested in publishing in the ILA Reporter?

Terms and conditions for the submissions are available here, and submissions should conform to the ILA Reporter’s Style Guide here.

Inébranlable. La Cour de justice de l’Union européenne ne veut toujours pas, sauf cas très particulier, permettre aux États de conserver de façon généralisée les données de connexion des communications électroniques, même pour une courte durée.

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La Cour de justice de l’Union européenne se prononce, pour la première fois, sur l’incidence en droit de l’Union européenne des dispositions spéciales mises en place par les législateurs nationaux au début de la pandémie de covid afin d’aménager les délais de procédure.

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On Tuesday, October 4, 2022, the Hamburg Max Planck Institute will host its 26th monthly virtual workshop Current Research in Private International Law at 11:00 a.m. -12:30 p.m. (CEST). Prof. Sabine Corneloup (Paris-Panthéon-Assas University) will speak, in English, about the topic

Migrants in Transit or Under Temporary Protection: How Can Private International Law Deal With Provisional (But Not Necessarily Short-Term) Presence?

An increasing number of migrants are provisionally present in the territory of a State other than their State of origin, be it because they are granted temporary protection until they can return to their country of origin (4 million refugees from Ukraine registered for Temporary Protection in Europe), or because migration policies – notably externalization measures – prevent them from accessing the territory of their State of destination. As a result, many migrants are blocked for months if not years in transit countries at the external borders of Europe, before being able to resume their migratory route. Their provisional presence, which initially was meant to remain transitional and short-term, often becomes indefinite. In the meantime, life goes on: children are born, couples marry and divorce, parental child abductions take place etc.
How can Private International Law deal with these situations? The presentation aims to explore PIL connecting factors, such as nationality, habitual residence and mere presence, and assess their appropriateness for migrants on the move or under temporary protection. The 1951 Geneva Refugee Convention, which requires that the personal status of refugees be governed by the law of domicile or residence, does not provide an answer to all difficulties.

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

This post was written by Robert Vogelauer, Vienna.

In a decision of 27 January 2022 the Austrian Supreme Court ruled on how Brexit affects a British Private Limited Company (Ltd.) that was incorporated in England but conducted all of its business operations in Austria (OGH 9 Ob 74/21d). It did so only a couple of months after a German court denied a Berlin-based Ltd. legal capacity in a similar case (OLG München, 29 U 2411/21 Kart), though the Austrian court came to a different conclusion.

Facts, Procedure and Holding

In 2016, a UK Ltd. based in Styria (Austria) sued one of its clients for payment of outstanding debt before an Austrian court. The legal proceedings dragged on for several years. In February 2021, the defendant filed to have the lawsuit dismissed, arguing that the Ltd. had lost its legal capacity due to Brexit and could therefore no longer be party to the proceedings. In response, the claimant petitioned the court to change its party designation to that of an Austrian civil law partnership (GesbR) – a strange choice, since a GesbR also lacks legal capacity. The courts of first and second instance agreed with the defendant and dismissed the lawsuit. The Austrian Supreme Court, however, decided that the proceedings could continue, though the claimant’s party designation would have to be changed to the name of the Ltd.’s sole shareholder.

Application of Austrian International Company Law

The court stated that since the claimant was no longer incorporated in an EU Member State, Austrian international company law would determine the company’s legal capacity. The court then applied the real seat theory according to § 10 of the Austrian Private International Law Act, which states that a company’s legal capacity is to be assessed under the law of the country where its headquarters are located. Since the headquarters were undoubtedly located in Styria, the court applied Austrian company law.

The court ruled that the Ltd. had lost its legal capacity because Austrian company law only grants legal personhood to an exhaustive list of corporate forms (numerus clausus), with the Ltd. not being one of them.

Despite this, it did not dismiss the lawsuit. According to the court, a Ltd. with headquarters in Austria was not legally inexistent, but would rather need to be viewed “through the lense of Austrian company law”. The court ruled that the sole shareholder of the Ltd. had become its universal successor by analogously applying § 142 of the Austrian Business Code (usually referred to for dissolving partnerships) and was now to be considered a merchant under Austrian law. As the universal successor of the Ltd., the sole shareholder could continue the proceedings in place of the Ltd., though the party designation would have to be changed.

Comparison to the OLG Munich’s Decision

The decision from the Austrian Supreme Court came only months after the Higher Regional Court of Munich (OLG Munich) dismissed the lawsuit of a UK Ltd. based in Berlin for lack of legal capacity. Though the courts reach different conclusions, their reasoning is quite similar for the most part. Both courts agree that the UK-EU Trade and Cooperation Agreement cannot be invoked to avoid the application of the real seat theory and that the Ltd. as such cannot remain party to the proceedings. They also agree it would go against creditors’ and public interest to treat the Ltd. as legally inexistent. The OLG Munich then applies what it calls the “mild” real seat theory and states a Ltd. will have to be categorized as a merchant or a partnership under German law. The Austrian Supreme Court reaches the same result by looking at the Ltd. “through the lense of Austrian company law”.

The OLG Munich’s decision leaves something to be desired from a procedural standpoint. It dismissed the lawsuit without answering whether or not it considered the Ltd. and its shareholder(s) to be the same procedural party. This is of crucial importance because by dismissing the lawsuit for lack of legal capacity, the Ltd – or rather, its shareholders – retroactively lost lis pendens status for their claim, meaning even if they filed the lawsuit again under their own names, statutory limitation periods would apply as if the previous lawsuit had ended the day after Brexit. If the court had ruled that the Ltd. and its shareholders were the same party from a procedural standpoint, then the proceedings could have continued with a changed party designation. Furthermore, the court would technically be required to order a change of party designation ex officio if it believed the Ltd.’s shareholder(s) to be the same party. The Austrian Supreme Court avoided this issue by declaring the sole shareholder to be the Ltd.’s universal successor, which meant they also succeeded the Ltd. in the proceedings.

Assessment

Shareholders of UK Ltds. based in Austria have effectively lost the protection of their corporate entity and can now personally be held liable for their company’s debts. It would have been desirable if the court had at least shielded shareholders from liability for debts incurred before Brexit – though this would have required a bit of a methodological stretch.

Austria-based Ltds. face further legal uncertainty because the UK – like many other countries – assesses legal capacity for companies based on the place of incorporation. This means UK Ltds. only operating in Austria are still recognized as legal entities by the UK and other countries that also follow the incorporation theory. This may result in situations where a contract with the Ltd. is considered valid before a foreign court, but in Austria it would be considered void or – even if it was not – it would be unclear who the parties to that contract were. Austrian courts will have to deal with these issues in future rulings.

Les dispositions de l’article R. 173-15 du code de la sécurité sociale prévoyant que les majorations de durée d’assurance sont accordées par priorité par le régime général lorsque l’assuré a été affilié à plusieurs régimes au cours de sa carrière se bornent à fixer une règle de coordination entre les régimes, ne portent pas une atteinte à la substance des droits des assurés et ne constituent donc pas une ingérence dans le droit à pension garanti par l’article 1er du 1er protocole additionnel à la Convention européenne des droits de l’homme.

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In a decision (“views”) adopted on 1 June 2022 (CRC/C/90/D/121/2020), the UN Child Rights Committee (CRC) held that the best interest of a child must be taken into consideration before a child is returned after an unlawful retention.

The CRC primarily monitors compliance with the Convention on the Rights of the Child (Child Convention). In a decision regarding a Chilean child abduction case pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (1980 Hague Convention), the committee made a statement on the interplay of the Child Convention and the 1980 Hague Convention. It is the first time ever that the CRC makes a statement regarding the 1980 Hague Convention.

The background to the case was that a mother and her child had not returned to the father in Spain from a stay in Chile. The father initiated a restitution request in Chile for unlawful retention according to the 1980 Hague Convention. A family court of first instance rejected the father’s request with reference to, among other things, the best interest of the child and the fact that the father had consented to the child being in Chile. The case was overturned by the Chilean Supreme Court, that held that the child should return to the father in Spain.

In the CRC decision, the Chilean Supreme Court judgment is criticized for not considering the best interest of the child. The critique in the CRC decision does not question the conclusion that the child should be returned to Spain. Instead, the essence of the critique was that the Supreme Court did not take the best interest of the child into consideration in the right way.

First, the CRC held that the Supreme Court decision did not indicate how the return of the child should be made. Second, the CRC criticized the Supreme Court procedure. Before the Supreme Court, there was an interlocutory hearing which was limited to the enforcement of the return of order. According to the CRC, this limitation did not give enough remedy for the possible exceptions to immediate return set out in the 1980 Hague Convention.

Sydney Law School is pleased to announce the inaugural Kim Santow Law and Social Justice Essay Prize. For more information, see here.

The Essay Prize is open to students enrolled in an LLB or JD program at an Australian University.  In 2022, essays must be submitted by  by 5.00 pm (AEDT) on Monday 31 October 2022. The Essay Prize will be awarded in association with the annual Kim Santow Expert Panel on Law and Social Justice which will take place on Thursday 1 December 2022.

Rules for the competition are below:

Kim Santow Law and Social Justice Essay Prize 2022: Rules

1. The Kim Santow Law and Social Justice Essay Prize is open to any student enrolled in an LLB or JD degree program at an Australian tertiary institution at the time of submission or within the previous six months.
2. Essays must have been written in the 12 months before the submission deadline. A person may not submit more than one essay to the Competition in any given year.
3.  Essays must respond to the following proposition:
   The NDIS is described as a shift from a welfare system to a market-based system, but there may be limitations in relying on competition and choice in the provision of disability support. Discuss.
4. Essays must be no more than 3,000 words. Essays exceeding this word limit will not be accepted. Footnotes if used, and bibliographies (required), are not included in the final word count.
5. Essays must be submitted as a .pdf document by email to <law.reform@sydney.edu.au>.
6. The deadline for submission of essays is 5.00 pm (AEDT) on Monday 31 October, 2022. No extensions will be allowed.
7. Essays must meet the highest standards of academic integrity, and be fully and accurately referenced according to a recognised referencing standard (eg, AGLC, Harvard, MLA).
8. Each person submitting an essay must declare that the essay is the person’s own original work. By submitting an essay, a person agrees that Sydney Law School may conduct an integrity check for copyright infringement or plagiarism.
9. An essay that is submitted to the Competition must be accompanied by a separate cover page stating:
   a.     the author’s name, contact email and telephone number
   b.     a declaration of enrolment (see rule 1)
   c.     a declaration of time (see rule 2)
   d.     a declaration of integrity (see rule 7)
10. A submitted essay must not include any information – for example in a header or footer – that identifies the author, so that it can be marked anonymously.
11. Eligible essays will be reviewed by a panel of experts against the following criteria:
    1. Novelty: does the essay address a cutting-edge issue and/or contribute a novel perspective or analysis to the question
    2. Argument: is the argument clear, compelling, well-developed and supported by evidence?
    3. Clarity and structure: is the essay written clearly and concisely, and organised in a logical and effective way?
    4. Accuracy: is the essay presented neatly and legibly, with few or no content, typographical, grammatical and referencing errors?
12. The best essay will be announced on 1 December, 2022 at the Kim Santow Experts Panel on Social Justice to be hosted at the Sydney Law School. The decision of the judging panel is final.
13. The judging panel may in its discretion decline to award prizes.
14. Subject to rule 13, the author of the Winning Essay will each receive a prize of AU$1000.
15. The author of the Winning Essay will be offered academic support and advice to revise their work for submission for publication.
16. The author of the Winning Essay agrees that if their essay is published (by any means, in any forum), that its publication will be accompanied by an acknowledgment that the essay won the Prize in the relevant year.

Please direct any inquiries to Mr Josh Pallas at <law.reform@sydney.edu.au>.

 

Afin de lutter contre les poursuites-bâillons, ces procédures abusives destinées à faire taire les lanceurs d’alerte, la Commission européenne a proposé le 27 avril dernier une directive anti-SLAPP, complétée par une recommandation à l’attention des États membres. Un projet encore perfectible et soumis à des ajustements, mais qui soulève d’ores et déjà des interrogations de la part des professionnels du droit…

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La Cour de justice de l’Union européenne se penche sur le régime juridique, en application du règlement Bruxelles I, d’une décision anglaise reprenant les termes d’une sentence arbitrale.

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Bundesrepublik Deutschland (Suspension administrative de la décision de transfert)
Espace de liberté, sécurité et justice
La suspension, en raison de la pandémie de Covid-19, de l’exécution d’une décision de transférer un demandeur d’asile vers l’État membre responsable n’a pas pour effet d’interrompre le délai de transfert de six mois

Országos Idegenrendeszeti Főigazgatóság e.a.
Espace de liberté, sécurité et justice
Retrait de la protection internationale suite à une atteinte à la sécurité nationale : le droit de l’Union s’oppose à la réglementation hongroise selon laquelle la personne concernée ou son représentant ne peuvent accéder au dossier qu’a posteriori, sur autorisation et sans se voir communiquer les motifs fondant la décision

The new issue of the Revue Critique de Droit International Privé (3/2022) is out.

It contains three articles relating to the French project of PIL codification (of which readers of the blog are well informed, see here and here), as well as numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po Law School), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (De codice ferendo ?)

In the first article, Dominique Foussard (Avocat au Conseil d’Etat et à la Cour de cassation, Paris Bar), Marie-Laure Niboyet (University of Paris-Nanterre) and Cyril Nourissat (University of Lyon 3), all members of the working group on the (French) PIL codification, present the main results of the draft code under a methodological perspective (Réflexions méthodologiques sur le projet de code de droit international privé). 

On March 31, a draft code of private international law (of 207 articles) was submitted to the French Minister of Justice. It was drawn up by a working group, headed by President Jean-Pierre Ancel. The French Ministry of Justice has now decided to submit the draft code for public consultation. The editorial staff of the Revue critique has opened its columns to three members of this group, to supplement with methodological reflections the analysis of the main provisions of the draft which can already be found in the accompanying explanatory report. These reflections are based on four observations : large parts of the discipline are still governed by national law ; conversely, when it is attested, the growth of international conventions and European Union law reveals the need for national norms of reference or adaptation to facilitate their application ; many rules of positive law should be reformed or completed in an overall vision of the discipline, and not on a piecemeal basis, on the occasion of a special law ; the increase in the international movement of persons accentuates the need for practitioners to have a complete corpus for the exercise of their activities, both as litigators and as advisors. Based on these findings, the draft has endeavored to respond to three essential challenges, namely the synergy of the sources of the subject-matter, the predictability of the rules enacted and the satisfaction of the objectives of private international law.

In the second article, Stefan Leible (University of Bayreuth) and Felix M. Wilke (University of Bayreuth) analyse the French draft PIL code from a German perspective (Le Projet de code de Droit International Privé. Une vue d’Allemagne, soon available in English on Dalloz website). Some elements of this analysis have already been shared with the readers of this blog here.

From a German perspective, there is much in the French Draft Code of Private International Law (“Draft Code”) to be appreciated ; in part, one can even be envious. Not only is there still room for a national PIL codification, but it can also enhance legal clarity, even where it only refers to applicable EU regulations. It is user-friendly to combine rules on procedure with conflict-of-laws provisions in one instrument and sensible to devote one part of the Draft Code to general provisions. The rules of the Draft Code on the PIL of contractual and non-contractual obligations as well as on companies in particular by and large could serve as models for German legislation. Conversely, here and there, German PIL rules might provide some inspiration for (minor) adjustments of and additions to the Draft Code. Some of the proposed rules, however, seem less than ideal. To allow renvoi only where at least one of the parties so demands neither serves legal clarity nor always makes life easier for the judge. The rule on lois de police could cause or perpetuate misunderstandings about their legal nature. It is doubtful whether a provision on fraude à la loi is truly necessary. To keep nationality as a connecting factor for jurisdiction can be considered particularly exorbitant. Yet all of this should not detract from the impressive and thought-provoking achievement that is the Draft Code.

In the third article, Paul Lagarde brings his extensive transnational experience and expertise to develop a challenging analysis of the draft PIL code (Quelques remarques sur le projet de codification du droit international privé français).

At a time when private international law in force in France comprises, for the most part, European law, whether it be European Union Regulations or the case law of the European Court of justice and sometimes indeed the European Court of Human Rights, the notion that French private international law should be codified independently of these other sources is both a source of astonishment and the cause for regret for the lost opportunity of a systemization of European conflicts of laws.This criticism is of particular relevance, moreover, in respect of what is known in continental legal terms as the general part of our discipline, such as the provisions on the duties of the court with regard to foreign law or the sanction applicable to various abusive strategies (playing the system or “fraude à la loi”). Furthermore, independently of any value judgment on the proposed texts, they are likely to be difficult to handle for the very non-specialists for whose benefit the project was intended.

More information is available here.

Par un arrêt du 8 septembre 2022, la Cour de justice se prononce sur la détermination du champ d’application de l’article 24, point 4, du règlement Bruxelles I bis, en présence de demandes de brevets déposées dans des États tiers à l’Union et de brevets obtenus dans l’un d’eux.

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France / Commission
Agriculture
Financement de la PAC et aides aux États membres : le Tribunal rejette le recours de la France contestant une correction financière d’un montant de 46 millions d’euros proposée par la Commission