Agrégateur de flux

The environment is on – almost – everybody’s mind.  In particular companies committed to sustainable investment are becoming an increasingly relevant economic factor. Accordingly, their business models are now also frequently the subject of court proceedings, raising  new legal questions, including those concerning private international law. The CJEU has recently had to decide on such a question.

Facts

The Swiss investment firm ShareWood had a clever idea to turn ecological concerns into money: They offered to plant trees in Brazil, harvest them after a couple of years and sell the timber for a profit. Investors were promised ownership of individual trees. They would also rent a piece of land for as long as ‘their’ trees were standing on it. The contracts were expressly submitted to Swiss law.

Soon the relations between the firm and their investors turned sour. Some Austrian residents complained that ShareWood had failed to transfer ownership of the trees to them and sued the firm in Vienna.

Proceedings

The Austrian Supreme Court (Oberster Gerichtshof) considered the law applicable to this dispute. In particular, it was unsure whether the case fell under Article 6(4)(c) of the Rome I Regulation, which makes an exception from the consumer conflicts provisions in the case of “a contract relating to a right in rem in immovable property or a tenancy of immovable property”.

Holding of the CJEU

The CJEU, in a decision dated 10 February 2022, flatly rejects the applicability of Article 6(4)(c) of the Rome I Regulation.

First, the CJEU denies that the contracts concern “a right in rem in immovable property”. Although the investors aimed to acquire property, they targeted the trees and not the immovable property. The Court admits the existence of national provisions under which the tree is considered as being part of the immovable property on which it stands, but wilfully ignores them by applying its famous principle of autonomous interpretation. The Court refers instead to the specific purpose of the contracts, which is to generate income from the sale of the timber. In its view, the trees “must be regarded as being the proceeds of the use of the land on which they are planted” (para 28), and thus not as forming part of the real estate.

Second, the CJEU also denies that the contracts relate to the “tenancy of immovable property” and hence does not fall under the second prong of Article 6(4)(c) of the Rome I Regulation,  despite the fact that the investors rented the land on which their tree stands. The Court of Justice revives here some of its case law regarding the exclusive jurisdiction for such tenancy agreements under the old Article 16(1)  of the Brussels Convention. Specifically, it cites its decision in Klein, where it had ruled that the application of this provision requires “a sufficiently close link between the contract and the property concerned”. The Court now holds that this link would not exist where the lease is intended “merely to enable the sales and services elements provided for in the contract to be carried out” (para 37).

The result is that the choice of law in the contracts could not overcome the mandatory rules in force at the consumers’ habitual residence (Article 6(2) Rome I Regulation). In the specific case, the chosen Swiss law was thus superseded by the mandatory rules of Austrian law.

Comment

The Court of Justice may have oversimplified things a bit. It neglected the fact that the investors pursued a double goal: they wanted not only to make money on the sale of the timber, but also to own the trees while they were growing as a kind of legally protected contribution to the fight against climate change. To ensure this second goal, the contracts stipulated that this ownership would not start after the trees were harvested, but long before. Moreover, the connection with the tenancy of the land was way more straightforward than in  Klein, where a membership in a club had been acquired. Here, the land served the purpose of  growing a specific tree. There was thus a much stronger connection to a particular piece of land.

Conclusion

Despite these weaknesses, the CJEU judgment may still be defended on the grounds  of consumer protection. Indeed, financial profit was a key driver of the whole contractual arrangement and not just a side-issue. In a case like this, the link to the immovable property does not outdo the need for consumer/investor protection. Article 6(4)(c) of the Rome I Regulation should be restricted to those cases that primarily are about rights in immovable property and are not also motivated by a substantial financial purpose. This is the lesson to be learned from ShareWood Switzerland.

If the financial purpose would be dominant, one could think about qualifying the contracts as financial instruments under Art. 6(4)(d) of the Rome I Regulation. Yet this characterisation is difficult given the regulatory definition of this notion (see Annex I C of the Markets in Financial Instruments Directive (MiFID II)). Contracts like the present ones thus fall between the boundaries  of Article 6(4)(c) and (d) of the Rome I Regulation, which is good news for consumers because the rules of Article 6(1) and (2) of the Rome I Regulation, favourable to them, will apply.

Many thanks to Amy Held, Felix Krysa and Verena Wodniansky-Wildenfeld for reviewing this post.

Préfet du Gers et Institut National de la Statistique et des Études Économiques
DGEN
Selon l’avocat général Collins, les ressortissants britanniques qui ont joui des droits de la citoyenneté européenne ne conservent pas ces avantages après le retrait du Royaume-Uni de l’Union européenne

TGSS (Chômage des employés de maison)
SOPO
La législation espagnole qui exclut les employés de maison des prestations de chômage alors qu’il s’agit presque exclusivement de femmes est contraire au droit de l’Union

A (Contrats d’assurance « unit-linked »)
Liberté d'établissement
La Cour précise la portée de l’obligation d’information précontractuelle en matière de contrats collectifs d’assurance-vie « unit-linked »

Agenzia delle dogane e dei monopoli et Ministero dell'Economia e delle Finanze
Liberté d'établissement
Lutte contre la consommation de tabac chez les jeunes : les États membres peuvent imposer des sanctions administratives aux opérateurs économiques violant l’interdiction de vente aux mineurs, telles que la suspension de leur licence d’exploitation pour 15 jours

The Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is currently recruiting. A fully-funded position as Research Fellow (PhD candidate) for the Department of European and Comparative Procedural Law, led by Prof. Dr. Dres. h.c. Burkhard Hess, is open:

   Fixed-term contract for 2 years; contract extension is possible; full-time based in Luxembourg

The successful candidate will conduct legal research (contribution to common research projects and own publications), particularly in the field of European and Comparative Procedural Law, while playing a central role in undertaking and developing team-driven projects within the Institute, in partnership with renowned international academics.

You may apply online until 20 March 2022 by submitting a detailed CV, including a list of publications (if applicable); copies of academic records; a PhD project description of no more than 1-2 pages with the name of the foreseen PhD supervisor and the name of the institution awarding the PhD certificate.

The Max Planck Institute Luxembourg for Procedural Law strives to ensure a workplace that embraces diversity and provides equal opportunities.

Govern d'Andorra / EUIPO (Andorra)
Propriété intellectuelle et industrielle
Le Tribunal confirme que le signe figuratif ANDORRA ne peut faire l’objet d’un enregistrement en tant que marque de l’Union européenne pour plusieurs produits et services

United Parcel Service / Commission, ASL Aviation Holdings, ASL Airlines (Ireland)/Commission
Droit institutionnel
Le Tribunal rejette deux recours indemnitaires introduits par UPS et ASL Aviation Holdings

Gary Born (Wilmer Cutler Pickering Hale and Dorr LLP) and Cem Kalelioglu (Wilmer Cutler Pickering Hale and Dorr LLP) contributed an article on choice-of-law agreements in international contracts to Volume 50, Number 1, of the Georgia Journal of International and Comparative Law.

Choice-of-law agreements are widely used in international business transactions, with a substantial majority of all cross-border commercial and investment contracts containing a choice-of-law provision. Virtually all legal systems, and many treaties and other international legal instruments, recognize the presumptive validity of such agreements. Nonetheless, there are significant variations in the treatment of international choice-of-law provisions, including with respect to issues of validity, enforceability, and interpretation, which can lead to a degree of unpredictability in the application of such provisions. This uncertainty undermines the basic purposes of choice-of-law agreements and private international law more generally.

This Article examines the treatment of international choice-of-law agreements under both national and international law. In particular, the Article considers the rules governing the validity and enforceability of such agreements, the exceptions to their presumptive validity and enforceability, and the interpretation of international choice-of-law provisions.

The Article argues that the basic rule of presumptive validity of choice-of-law provisions in international commercial and investment contracts now has the status of a general principle of law and is therefore binding on states as a matter of international law and, in any event, should be adopted as a matter of national policy. This Article also argues that, although there are substantial similarities in the treatment of exceptions to the validity of international choice-of-law provisions in different national and other legal systems, important differences persist. These differences undermine the purposes of such agreements, and thereby impede international trade and investment. The Article examines these differences and proposes heightened uniformity in the rules governing the recognition of international choice-of-law agreements in commercial and investment contracts. Among other things, choice-of-law agreements (i) should not be subject to any “reasonable relationship” requirement, (ii) should be presumptively valid where a non- national legal system is selected and (iii) should be unenforceable on public policy grounds only in exceptional circumstances.

The Article also contends that similar differences exist with respect to the interpretation of international choice-of-law agreements in different legal systems, and that these differences frustrate the intentions of commercial parties. The Article proposes rules of interpretation of international choice-of-law provisions, including presumptions that choice-of-law agreements select only the “local law,” not the “whole law,” of a jurisdiction and that choice-of-law provisions be interpreted liberally, to include most issues of procedure and remedy, as well as non-contractual issues. These uniform rules of interpretation would better serve the objectives of commercial parties and purposes of private international law regimes and the international legal system than does existing treatment of international choice-of-law provisions.

The article is freely accessible here.

The Catholic University of the Sacred Heart in Milan plans to invite young scholars to present the outcome of their doctoral research on any topic within the field of private international law, transnational law or the law of international arbitration, at a dedicated seminar that will be held annually in Milan (the MECSI Seminar). Each MECSI Seminar will revolve around one scholar, selected by a jury constituted for this purpose.

Exceptionally, two MECSI Seminars will take place in 2022. The first will be held on 9 March 2022 at 5 pm. The speaker will be Augustin Gridel, who is a teaching fellow at the Université Paris II Panthéon-Assas. He will deliver a presentation titled Financial Markets and Financial Instruments in Private International Law. Professor Francesca Villata, of the University of Milan, will act as a discussant.

Those interested in presenting their doctoral research at the second MECSI Seminar of 2022, scheduled to take place in November 2022, are encouraged to send an e-mail to Pietro Franzina (pietro.franzina@unicatt.it) by 15 July 2022.

Applicants must be aged less than 35 and may come from any country. They must have already discussed their PhD dissertation at the time when the application is submitted (however, no more than two years must have passed since the dissertation was discussed). Applications must include a copy of the dissertation, an abstract of the dissertation in English and a CV of the author in English.

Applications must also include a proposal for the seminar presentation consisting of a title followed by abstract of about 1.500 words. The subject matter of the presentation must relate to, but should not necessarily coincide with, the topic of the thesis: the applicant may choose, for instance, to concentrate on one aspect of his or her research, or discuss developments occurred after the dissertation was discussed.

All documents accompanying the application must be in pdf format. The selection process involves, for those shortlisted, a Zoom interview.

The Catholic University of the Sacred Heart will cover the travel expenses of the selected scholar up to 600 Euros, and will take care of his or her accommodation at one of the guest houses of the University for up to two nights. During their stay in Milan, the selected scholar will also be invited to give a 45 minute lecture in English to the students attending the course of Private International Law on a topic unrelated to their PhD research.

Sea Watch
Transport
Selon l’avocat général Rantos, les navires privés exerçant une activité régulière de recherche et de sauvetage en mer peuvent faire l’objet d’un contrôle de conformité aux normes internationales assuré par l’État du port

Commissaire général aux réfugiés et aux apatrides (Unité familiale - Protection déjà accordée)
Espace de liberté, sécurité et justice
Un État membre peut exercer sa faculté de déclarer une demande de protection internationale irrecevable au motif que le demandeur s’est déjà vu accorder le statut de réfugié par un autre État membre

Stichting Rookpreventie Jeugd e.a.
Liberté d'établissement
Cigarettes à filtre : la méthode établie par l’ISO pour déterminer les niveaux d’émission maximaux de goudron, de nicotine et de monoxyde de carbone, à laquelle renvoie le droit de l’Union, est valide et opposable aux producteurs de cigarettes

Openbaar Ministerie (Tribunal établi par la loi dans l’État membre d’émission)
DFON
Refus d’exécution d’un mandat d’arrêt européen : la Cour précise les critères permettant à une autorité judiciaire d’exécution d’apprécier le risque éventuel de violation du droit fondamental de la personne recherchée à un procès équitable

RS (Effet des arrêts d’une cour constitutionnelle)
Droit institutionnel
Le droit de l’Union s’oppose à une règle nationale en vertu de laquelle les juridictions nationales ne sont pas habilitées à examiner la conformité avec le droit de l’Union d’une législation nationale qui a été jugée constitutionnelle par un arrêt de la cour constitutionnelle de l’État membre

The French Committee of Private International Law is looking for a part-time assistant (35 hours per year). His/her main tasks will be to transcribe the debates of the Committee meetings, organise meetings and update the website of the Committee.

The main requirements are:  Master’s degree in private international law or PhD student in private international law; Good writing skills and command of the usual computer tools.

The remuneration is 2000 EUR per year and the expected work status is self-employed (auto-entrepreneur).

The position is to be filled as soon as possible and at the latest in May 2022.

Applications should be sent to the General Secretariat of the Committee: Sabine.corneloup@u-paris2.fr and Fabienne.jault@seseke.fr.

The Sydney Centre for International Law at Sydney Law School is delighted to present the 2022 International Law Year in Review Conference, to be held online on Friday 25 February 2022.

This annual ‘year in review’ conference brings together expert speakers from around the world to give participants insight into the latest developments in international law over the preceding year, especially those most salient for Australia.

Panel 3 will cover Developments in Private International Law in 2022.

Speakers

Martin Jarrett (Max Planck Institute for Comparative Public Law and International Law and University of Heidelberg), “Payment of Australian judgment debts as unlawful European state aid: international legal options for Australia against the European Union”. 

Dr Aida Othman (ZICO Shariah and Messrs. Zaid Ibrahim & Co.), “Arbitration of Shariah and Islamic finance disputes: are the Asian International Arbitration Centre’s i-arbitration rules a game-changer?”

Dr Sarah McKibbin (University of Southern Queensland), “Implementation of the Singapore Convention on Mediation in Australian Law”

Chair: Associate Professor Dr. Jeanne Huang (Sydney Law School)

Date/Time: 25 February, 1:30pm – 3:00 pm AEDT

View the program here. Register to attend here.

Professor Adeline Chong will be speaking on 25 Feb at 12:30
PM – 2:00 PM 9(HKT) on the The Asian Principles for the Recognition and Enforcement of Foreign Judgements.

The portability of foreign judgments across borders helps to faciliate cross-border transactions by lowering transaction costs and associated legal friction among countries. This is important for Asia given initiatives to establish greater economic integration in Asia such as the establishment of the ASEAN Economic Community, the Belt and Road Initiative and free-trade agreements such as the CPTPP and RCEP.

The Asian Principles for the Recognition and Enforcement of Foreign Judgments (ABLI, 2020) is one of the publications resulting from a project conducted under the auspices of the Asian Business Law Institute (ABLI). The ABLI Foreign Judgments project considered the recognition and enforcement of foreign judgment rules in the ten ASEAN Member States and five of ASEAN’s major trade partners i.e. Australia, China, India, Japan and South Korea. The Asian Principles is a statement of the laws on foreign judgments in the region. It sets out the common principles and differences in the laws and suggests ways in which harmonisation of the foreign judgment rules can occur.

This seminar discusses the Asian Principles and considers the extent to which harmonisation of the foreign judgment rules is possible in the region. Harmonisation would of course increase the portability of judgments across borders. The seminar also examines the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and the likelihood of the Convention being adopted by the Asian countries.

About the speaker:

Adeline Chong is an Associate Professor at the Yong Pung How School of Law, Singapore Management University. She was formerly a lecturer at the School of Law, University of Nottingham. She has published in leading peer-reviewed journals such as the Law Quarterly Review, International and Comparative Law Quarterly, Lloyd’s Maritime and Commercial Law Quarterly and the Journal of Private International Law. She is the co-author of Hill and Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts (Oxford, Hart, 4th edn, 2010). She is the Project Lead of the Asian Business Law Institute’s project on the Recognition and Enforcement of Foreign Judgments in Asia. Her work has been cited by various courts including the Singapore, Hong Kong, New South Wales and New Zealand Court of Appeals, the UK Law Commission, as well as in leading texts on conflict of laws such as Dicey, Morris and Collins on the Conflict of Laws (15th edition). She has also been invited to present papers by the British Association of Canadian Studies, British Institute of International and Comparative Law, Kyushu University and the University of Sydney. She has conducted courses for the Attorney-General Chambers of Malaysia and delivered Continuing Professional Development Talks for Singapore’s Attorney-General Chamber’s Academy and the Law Society of Singapore. She has appeared as an expert on Singapore law before a Finnish court and issued a declaration on Singapore law for a US class action.

Register here by 5pm, 24 February 2022 to attend the seminar.

The first issue of the Lloyd’s Maritime and Commercial Law Quarterly for 2022 was just published. It features the following case notes and articles on private international law respectively:

SYC Leung and M Suen, The Extensive Jurisdiction in the Action on an Arbitral Award (case note)

D Foxton, The Jurisdictional Gateways – some (very) modest proposals:

This article reviews the history of the gateways for service out of the jurisdiction in England and Wales, and seeks to identify the rationales which underpin them. The case for abolishing the gateways altogether, and applying only a forum conveniens test for service out purposes, is examined, the article concluding that there are reasons of principle and policy for maintaining the gateway requirement. The article identifies a number of variations or amendments to the current gateways which are consistent with their rationales, and which would better give effect to them. A Kennedy, An Exploration of the Operation and Rebuttal of the Presumption in Enka v Chubb:

The Supreme Court in Enka v Chubb clarified the choice of law rules which help determine the governing law of an arbitration agreement when the law of the contract containing it differs from the law of the arbitral seat. According to that framework, where parties have chosen the law which governs the main contract, that law is presumed also to govern the arbitration agreement. This article identifies, and seeks to provide preliminary answers to, questions surrounding the operation of, and rebuttal of, that presumption, on the basis that such questions are most likely soon to require a judicial answer.

 

Applications are now open for three- to six-month legal internships at the Permanent Bureau’s headquarters in The Hague, for the period from July to December 2022!

Interns work with our legal teams in the areas of Family and Child Protection Law, Transnational Litigation, Legal Cooperation, and Commercial and Financial Law. Duties may include carrying out research on particular points of private international law and/or comparative law, taking part in the preparation of HCCH meetings and contributing to the promotion of the HCCH and its work.

Due to the current global situation and the associated travel limitations and restrictions, the Permanent Bureau may consider the possibility that internships be carried out remotely. Interns may also be eligible for a monthly stipend.

Applications should be submitted by 17 March 2022. For more information, please visit the Internships Section of the HCCH website.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).