Agrégateur de flux

London Steam-Ship Owners’ Mutual Insurance Association Limited v Kingdom of Spain & Anor (M/T ‘Prestige’ Nos. 3 and 4) [2021] EWCA Civ 1589 is yet another judgment in the Prestige series on which I have reported before (use of the search tag ‘Prestige’ brings you to 4 earlier posts). I often refer to the comparative advantage of civil procedure in England and Wales, inter alia relating to the speed of procedures. Current litigation most certainly does not fit that bill: it is slow, opaque and dense with issues, arguments have been allowed to run in a convoluted way, and a certain amount of consolidation would have been in order, I submit.

The judgment in this post is the appeal against the judgment of Henshaw J on arbitration and State immunity, and the judgment of Butcher J on service, state immunity and the insurance title of Brussels Ia.

In summary, Henshaw J’s judgment stands (he had held Spain does not have immunity in respect of these proceedings; that the permission to serve the arbitration obligation our of jurisdiction, granted earlier to the Club should stand; and that the court should appoint an arbitrator);  Butcher J’s judgment also largely stands, but for his decision on the ‘Award Claims’ (the Club seeking liability and damages for breach of the State’s obligation to honour the arbitration award which had declared the State bound to pursue its claims in London arbitration). The Court of Appeal held, as did Butcher J, that the arbitration exception applies to the Award Claims (an unlikely analogy featured with CJEU Assens Havn) and that jurisdiction for them must be determined in accordance with domestic law principles [84], however unlike the first instance judge it found [126] there is no serious issue to be tried on the award claims.

Geert.

 

EU Private international law, 3rd ed. 2021, 2.84 ff.

London Steam-Ship Owners' MIA v Spain [2021] EWCA Civ 1589 (4/11/2021)
Various appeals, partially allowed, re the Prestige oilspill. State immunity, #arbitration etc. Background here https://t.co/LgOFOXsRmo
Six complex findings, see below. More next weekhttps://t.co/ItT0tFTO3U pic.twitter.com/LrxhXIRPLy

— Geert Van Calster (@GAVClaw) November 5, 2021

The author of this post is Burcu Yüksel Ripley, who is a Senior Lecturer in law and the Director of the Centre for Commercial Law at the University of Aberdeen.

On 25 November 2021, the Law Commission of England and Wales announced, as part of an update on its work on smart contracts, that it has agreed with the Government to undertake a project on conflict of laws and emerging technology. This project will look at conflict of laws rules as they apply to emerging technology (including smart legal contracts and digital assets) and consider whether law reform is required. The Commission hopes to be able to begin work in the first half of 2022.

Conflict of laws and emerging technology was among the ideas for potential areas of law reform within the scope the Law Commission’s 14th programme of law reform. In the area of commercial and common law with a focus on emerging technology, the Commission has been working on three projects on smart contracts, digital assets and electronic trade documents which are, to some extent, interconnected. Its work on these projects has identified certain difficulties with the application of conflict of laws rules (covering both jurisdiction and applicable law rules in this context) in relation to emerging technology, including distributed ledger technology (DLT):

• In the context of its work on smart contacts, which the Commission concluded with a confirmation that the existing law of England and Wales is able to accommodate and support smart legal contacts, it devoted Chapter 7 of its advice to Government on smart legal contacts (published on 25 November 2021) to ‘Jurisdiction and smart legal contracts’. The Commission considered various issues concerning jurisdiction and applicable law in relation to smart contacts and assessed that “the problem of digital location – that is, the difficulty of ascribing real-world locations to digital actions and digital objects – is amongst the most significant challenges that private international law will have to overcome in relation to emerging technology, including smart legal contracts.” (see paragraph 7.145 of the advice).
• In the context of its work on digital assets, which seeks to support and facilitate the development of digital assets and ensure that the law recognises and protects them in a digitised world, conflict of laws is mentioned in the call for evidence (published on 30 April 2021) as an area which is likely to be affected by the issues covered by the call for evidence. The Commission therefore sought to hear more details from respondents on conflict of laws issues relating to digital assets (see para 2.80 of the call for evidence on digital assets). The digital assets project is currently at the pre-consultation stage, with the expectation that the consultation paper will be published in mid-2022. An interim update paper on this project is available here.
• In the context of its work on electronic trade documents, which seeks to make recommendations for law reform to allow for legal recognition of electronic trade documents (eg bills of lading and bills of exchange), some conflict of laws issues relating to electronic trade documents were highlighted in the consultation paper (published on 30 April 2021, see in particular pp.124-127 of the consultation paper on digital assets: electronic trade documents). There were two main questions specifically mentioned in the consultation paper: 1) “Where is an electronic trade document located at any given time (and related questions such as where does a transfer take place)?” and 2) “How will an electronic trade document issued in England and Wales be treated in a country that does not recognise the validity of electronic trade documents?”. The Commission, in this consultation paper, provisionally proposed to consider the private international law aspects of digital assets, including electronic trade documents, as part of a separate project that could be taken as part of its 14th programme of law reform. The electronic trade documents project is currently at the policy development stage.

The Commission’s new project on conflict of laws and emerging technology is a very timely project. The Law Commission of England and Wales can only make recommendations for the law of England and Wales. However, some of its recommendations might have a UK-wide impact. This project should also be seen as an opportunity to help facilitate the development of internationally widely accepted private international law rules in relation to emerging technology given the current work of the Hague Conference on Private International Law concerning private international implications of the digital economy, including DLT and its applications (including digital assets).

This post is by Alberto Pomari, LLM Student at the University of Pittsburgh School of Law and JD Student at the University of Verona School of Law.

On November 25, 2021, the Italian Parliament passed the long-awaited Enabling Act for “the efficiency of the civil trial” as one of the conditions attached to the Next Generation EU funding. Among its provisions, this law amends part of the Italian arbitration law with a view toward making arbitration in the country more appealing to individuals and foreign investors. Worthy of particular attention are the amendments regarding (1) the independence and impartiality of arbitrators, and (2) the arbitral tribunal’s power to grant interim relief.

Up until now, the Italian Code of Civil Procedure (CPC) has not compelled arbitrators to disclose any fact or circumstance that would reasonably call into question their impartiality and independence. This is not to say, though, that Italian law neglects impartiality and independence on the part of arbitrators. To the contrary, Article 815 CPC enumerates several situations where arbitrators can be challenged for specific circumstances that are likely to give rise to justifiable doubts about their unbiased judgment. However, the Enabling Act aims at shoring up this reactive guarantee by introducing a proactive duty of disclosure, which directly burdens the arbitrators appointed. Specifically, Article 15(a) of the Act calls for an express mandate for arbitrators to disclose, upon acceptance of their appointment, any situation that may give grounds for a challenge under Article 815 CPC. Along those lines, Article 15(a) also introduces broad grounds to challenge an arbitrator for any “severe reason of suitability.” Through these amendments, the Government commits to enhance the guarantee of fairness of the parties’ fact- and law-finder at the very outset of proceedings, thus avoiding the costs associated with a challenge.

Arguably, the Enabling Act’s most important innovation is contained in Article 15(c) and relates to the arbitrators’ power to grant interim relief. To date, with the only exception of corporate law disputes, no arbitral tribunal whose seat is in Italy is vested with the power to provide provisional relief. Article 818 CPC leaves no room for doubt by proscribing any provisional remedies rendered by an arbitral tribunal. The magnitude of this provision is reflected, for instance, by Article 26 of the Milan Chamber of Arbitration’s (CAM) Rules, which point out that the arbitral tribunal may issue interim measures unless “barred by mandatory provisions applicable to the proceedings.” Article 15(c) enables the Government to empower arbitrators to grant interim relief as long as parties manifest the intent of achieving this end. Therefore, arbitrators will have the power to issue conservatory measures, subject to the Italian lex arbitri, if the arbitration agreement expressly provides so as well as references institutional rules that contemplate such a power (like the above-mentioned CAM’s Rules). Understandably, Article 15(c) specifies that a national court issues the interim measures if a party seeks them before the arbitral tribunal has been fully appointed. Of course, the enforceability of said interim relief remains a prerogative of national courts. Lastly, Article 15(c) directs the Government to create a new appeal as of right whereby a party may challenge the arbitral tribunal’s decision regarding the requested interim relief before a national judge. However, said appeal can be brought exclusively for errors of law enumerated in Article 829(1) CPC, which currently warrants an appeal designed to void the final award. It follows that a national judge will not be allowed to hear the appeal if the party avers errors of fact.

While awaiting the implementing regulations issued by the Government, these changes represent a desirable modernization of the Italian arbitration law and should therefore be hailed. However, while they bring Italy up to the speed of countries that are legally more appealing to foreign investors, it remains to be seen whether they will be sufficient to effectively attract foreign investors or prove to be too late or too timid.

“Japanese Private International Law” certainly contains the currently leading reference to Japanese private international law in English.

The blurb reads: “The chapters systematically cover the whole of Japanese private international law, not just questions likely to arise in commercial matters, but also in family, succession, cross-border insolvency, intellectual property, competition (antitrust), and environmental disputes. The chapters do not merely cover the traditional conflict of law areas of jurisdiction, applicable law (choice of law), and enforcement. The chapters also look into conflict of law questions arising in arbitration and assess Japanese involvement in the global harmonisation of private international law. In addition to summarising relevant principles and scholarly views, the authors discuss case law whenever possible and identify deficiencies and anticipate difficulties in the existing law. The book thus presents the Japanese conflict of laws through a combination of common and civil law analytical techniques and perspectives, providing readers worldwide with a more profound and comprehensive understanding of the subject.”

For those who are particularly interested in unified or harmonized global PIL Chapter 6, still rather short (pp. 258 – 262), is recommended, dealing with Japan’s role in the works of the HCCH, UNICTRAL and UNIDROIT. For all others who are interested in comparative private international law, this book is an indispensable tool  and combines most valuable information with most thorough analysis. The text is precisely structured which helps a lot to find one’s way directly to the issue in question. It also covers international alternative dispute resolution, in particular arbitration and mediation. The book is an admirable cooperative effort between Dr Kazuaki Nishioka (full text draft) and Professor Yuko Nishitani (comments and revision), as is explained in the foreword.

 

Likewise, “Indian Private International Law” certainly contains the currently leading reference to Indian private international law in English.

The blurb reads: “This book provides an authoritative account of the evolution and application of private international law principles in India in civil commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India’s BRICS partners – Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal.

Divided into 13 chapters, the book provides a contextualised understanding of legal transformation on key aspects of the Indian conflict-of-law rules on jurisdiction, applicable law and the recognition and enforcement of foreign judgments or arbitral awards. Particularly fascinating in this regard is the discussion and focus on both traditional and contemporary areas of private international law, including marriage, divorce, contractual concerns, the fourth industrial revolution, product liability, e-commerce, intellectual property, child custody, surrogacy and the complicated interface of ‘Sharia’ in the conflict-of-law framework.

The book deliberates the nuanced perspective of endorsing the Hague Conference on Private International Law instruments favouring enhanced uniformity and predictability in matters of choice of court, applicable law and the recognition and enforcement of foreign judgments.

The book’s international and comparative focus makes it eminently resourceful for legislators, the judges of Indian courts and other interested parties such as lawyers and litigants when they are confronted with cross-border disputes that involve an examination of India’s private international law. The book also provides a comprehensive understanding of Indian private international law, which will be useful for academics and researchers looking for an in-depth discussion on the subject.” Saloni Khanderia is of course known to CoL readers as one of the blog’s editors.

“Japanese Private International Law” (Volume 5) and “Indian Private International Law” (Volume 6) continue Hart’s Series on Studies in Private International Law – Asia, run by Anselmo Reyes (editor) and Paul Beaumont (advisory editor), after equally eminent publications (Volumes 1 to 4) on the recognition and enforcement of judgments in Civil and Commercial Matters, edited by Anselmo Reyes, Indonesian Private International Law by Afifah Kusumadara, Chinese Private International Law, edited by Xiaohong Liu and Zhengyi Zhang, and, last not least, Direct Jurisdiction: Asian Perspectives, edited by Anselmo Reyes and Wilson Lui.

All highly recommended!

Written by Marie-Luisa Loheide, doctoral candidate at the University of Freiburg.

 

From a PIL-perspective, granting asylum to the family members of a recognised asylum-seeker or refugee is relevant regarding the determination of an individual’s personal status and, more specifically, concerning the question of the relation between the individual’s political status (status politicus) and his or her personal status (status privatus). Whereas the personal status of an individual is ususally determined according to her or his own protection status, it is disputed with regard to personae coniunctae – meaning relatives of a protected person who do not (yet) possess a protection status of their own –, whether their personal status may be derived from the status of the already protected family member or whether it has to be determined by the person’s individual status. This is decisive as to the applicability of Art. 12(1) of the Convention relating to the Status of Refugees signed in Geneva on 28th July 1951 (Geneva Convention), according to which all conflict rules leading to the law of the persecuting state are modified by substituting habitual residence for nationality.

 

In Germany, § 26 of the Asylum Act (Asylgesetz) – with only few exemptions made in its para. 4 – grants family asylum to people who themselves do not satisfy the conditions for receiving asylum (Art. 16a of the German Basic Law), but whose spouse or parent has been granted this status. According to § 26(5) Asylgesetz, this also comprises international protection within the meaning of the refugee status as defined by the Geneva Convention as well as the EU-specific subsidiary protection status (§ 4 Asylgesetz, implementing Art. 15 et seq of the EU-Directive No. 2004/83). The close relative’s protection is thus a derived right from the family member’s political status. However, by this – even though the opposite might be implied by the misleading terminology of “derived” – the spouse or child of the protected person acquire a protection status of their own. § 26 Asylgesetz is meant to support the unity of the family and aims to simplify the asylum process by liberating family members from the burdensome task of proving that they individually satisfy the conditions (e.g. individual religious or political persecution) for benefitting from international protection or asylum.

While the exemptions made in § 26(4), (5) and § 4(2) Asylgesetz correspond to Art. 1D of the Geneva Convention as well as to Art. 12(2) of the EU-Directive No. 2011/95 (Qualification Directive), the non-exemption of people with multiple nationalities, who could also be granted protection in one of the states of which they are nationals, goes further than the Geneva Convention and the Qualification Directive (see Art. 1A(no. 2) of the Geneva Convention and Art. 4(3)(e) of the Qualification Directive).

This discrepancy was the subject of a preliminary question asked by the German Federal Administrative Court (Bundesverwaltungsgericht) and was decided upon by the CJEU on 9th November 2021 (Case C-91/20). The underlying question was whether the more favourable rule of § 26 Asylgesetz is compatible with EU law.

The CJEU in general affirmed this question. For doctrinal justification, it referred to Art. 3 of the Qualification Directive, which allows more favourable rules for granting international protection as long as they do “not undermine the general scheme or objectives of that directive” (at [40]). According to the CJEU, Art. 23(2) of the Qualification Directive leads to the conclusion that the line is to be drawn where the family member is “through his or her nationality or any other element characterising his or her personal legal status, entitled to better treatment in […] [the host] Member State than that resulting from the grant of refugee status” (at [54]). For example, this could be the case if the close relative is a national of their spouse’s or parent’s host country or one of their nationalities entitles them to a better treatment there (like a Union citizenship). This interpretation also corresponds to the UNHCR’s guidelines in respect to the Geneva Convention (see [56] et seq.).

 

The CJEU’s judgment strengthens the right to family life guaranteed by human rights, namely Art. 8 ECHR as well as Art. 7 and Art. 24 of the Charter of Fundamental Rights of the EU (see [55]). Disrupting a family unit can have a negative impact on the individual integration process (see Corneloup et al., study PE 583.157, p. 11), which should be neither in the interest of the individual nor the host state. This right to family unity, according to the CJEU, exists irrespective of the fact that the concerned families could alternatively take residence in one of the family member’s home states, because otherwise the person who had already been granted a protection status in a different country could not make use of his or her own protection (see [59] et seq.). In so far, the judgment is to be welcomed. On the other hand, opening the doors to more favourable domestic laws on a derivative protection of family members will lead to more situations where the law applicable to a family relationship between a person applying for family asylum and the person who had already been granted international protection must be determined under prior consideration of domestic PIL rules. However, PIL rules in this regard are frequently inconsistent among the EU Member States.

 

In practice, the CJEU’s judgment discussed here is particularly relevant in the overall picture that is characterised by the CJEU’s recent judgment of 19th November 2020 (C-238/19), according to which – contrary to the previous German Federal Administrative Court’s practice – the refugee status according to the Geneva Convention may be granted to individuals who are eligible to be drafted for military service in Syria, which potentially means all Syrian men of a certain age. However, the precise implementation of this judgment in current German judicial and administrative practice remains controversial (see here). In cases where Syrian men actually are granted a protective status, their spouses and children are entitled to receive family asylum as well. In Germany, this is the case even if they possess multiple nationalities, but, according to the CJEU judgment discussed here, only as long as they are not entitled to a better treatment in the host Member State through a different legal status in this country, e.g. nationality or Union citizenship. As a matter of fact, there will be most probably very few people among those seeking protection in a Member State who have a Union citizenship, so that the CJEU’s restriction to the scope of § 26 Asylgesetz will only be practically relevant in very few cases.

DXB – Identities on the move – Documents cross borders is a project aimed at facilitating the dissemination and implementation of Regulation (EU) 2016/1191 in EU Member States, funded by the European Union’s Justice Programme (2014–2020).

The final conference of the project will take place on 23–24 June 2022 in Castel San Pietro Terme, Bologna (Italy), at the premises of ANUSCA’s Academy (ANUSCA is the Italian association of civil status officers)

A call for papers and panels has been launched. All interested will find more information here.

Papers or panel abstract proposals shall be submitted by 22 December 2021.

La Cour de cassation juge illégale une mesure de rétention fondée sur la seule interdiction de retour, et ce alors que l’obligation de quitter le territoire français (OQTF) n’a pas été exécutée.

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La directive 2014/42 ne s’applique pas aux procédures de confiscation de biens acquis illégalement qui ne porte pas sur la constatation d’une ou plusieurs infractions pénales. En conséquence, cette procédure ne constituant pas une mise en œuvre du droit de l’Union, la Charte des droits fondamentaux n’est pas applicable.

en lire plus

 

The focus of this write-up is a case note on a very recent decision of the Nigerian Court of Appeal that declined to enforce an exclusive English choice of court agreement.[1] In this case the 1st claimant/respondent was an insured party while the defendant/appellant was the insurer of the claimant/respondent. The insurance agreement between the 1st claimant/respondent and defendant/appellant provided for both an exclusive choice of court and choice of law agreement in favour of England. The claimants/respondents issued a claim for significant compensation before the High Court of Cross Rivers State, Nigeria for breach of contract and negligence on the part of the defendant/appellant for failure to fully perform the terms of the insurance contract during the period the 1st claimant/respondent was sick in Nigeria. The defendant/appellant challenged the jurisdiction of the High Court of Cross Rivers State, and asked for a stay of proceedings on the basis that there was an exclusive choice of court agreement in favour of England. The 1st claimant/respondent in a counter affidavit stated mainly at the trial court that he was critically ill, and the 2nd claimant/respondent (the employer of the 1st claimant/respondent) had serious financial difficulties in paying the 1st claimant/respondent’s salaries, so in the interest of justice a stay should not be granted.

Both opposing parties were in agreement throughout the case that it was the Brandon test,[2] as applied by the Nigerian Supreme Court[3] that was applicable in this case to determine if a stay should be granted in the enforcement of a foreign choice of court agreement. Now the Brandon test (named after an English judge called Brandon J, who formulated the test) as applied in the Nigerian context is as follows:

“1. Where plaintiffs sue in Nigeria in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the Nigerian court, assuming the claim to be otherwise within the jurisdiction is not bound to grant a stay but has a discretion whether to do so or not. 2. The discretion should be exercised by granting a stay unless strong cause for not doing it is shown. 3. The burden of proving such strong cause is on the plaintiffs. 4. In exercising its discretion the court should take account of all the circumstances of the particular case. 5. In particular, but without prejudice to (4), the following matters where they arise, may be properly regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the Nigerian and foreign courts. (b) Whether the law of the foreign court applies and, if so, whether it differs from Nigerian law in any material respects. (c) With what country either party is connected and how closely (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiff s would be prejudiced by having to sue in the foreign country because they would (i) be deprived of security for that claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in Nigeria; or (iv) for political, racial, religious, or other reasons be unlikely to get a fair trial (v) the grant of a stay would amount to permanently denying the plaintiff any redress.”

The reported cases where the plaintiff(s) have successfully relied on the Brandon test to oppose the enforcement of a foreign jurisdiction clause are where their claim is statute barred in the forum chosen by the parties.[4] Indeed, the burden is on the plaintiff to show strong cause as to why Nigerian proceedings should be stayed in breach of a choice of court agreement; if not, Nigerian courts will give effect to the foreign choice of court agreement.[5]

The High Court (Ayade J) relying on the Nigerian Supreme Court’s decision on the application of the Brandon tests declined to uphold the exclusive choice of court agreement in the interest of justice. It is fair to say that the trial judge applied a very flexible approach on the issue of whether the exclusive English choice of court agreement should be enforced. Indeed, he was very focused on substantial justice (rather than the strong cause test), thereby stretching the criteria provided in the Brandon test.[6] Ayade J’s judgment is worth quoting thus:

“This Court is fully aware of the principles of party autonomy, freedom and sanctity of contract, the doctrine that parties should be held to their contract (pacta sunt servanda) and this puts the burden on the plaintiff to show why the proceedings should continue in Nigeria inspite of the foreign jurisdiction clause, which in the opinion of this Court, the plaintiff has rightly done.”[7]

He also interestingly remarked that:

“Let it be remarked that this Court is not unmindful, and there is no doubt that in an area of globalization, the issue of foreign jurisdiction clause and the subject of conflict of laws has a future and one of growing importance, see MORRIS: The conflict of laws, 7th Edition, Sweet and Maxwell, 2010 page 16. This is reflected in the expanded membership of the specialist international bodies such as the Hague Conference on Private International Law: Rome Convention on Contractual Obligations 1980, Convention on Choice of Court, 1965, Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters, 1971, Convention on International Access to Justice, The Brussel Convention and the Lugano Convention, Convention on the Law Applicable to Contractual Obligation, Organization for the Harmonization of Business Law in Africa (OHADA), and the various efforts at Harmonization and Unification of Law are still in the inchoate stage in this part of the world. We shall get there at a time when there shall be one law, one forum and one world.
It is for the above reasons that I am of the view that the current attitude of the Nigerian Courts to foreign jurisdiction clauses remains as stated in the Norwind. Thus, I am inclined to agree that Courts are not bound to stay its proceedings on account of a foreign jurisdiction clause in a Court.”[8]

In the final analysis, he held as follows:

“Applying the law as declared above to the instant case and after due consideration of all the circumstances of this case, and in the exercise of discretion as to whether or not to do so in this case and this Court, which endeavoured always to do substantial justice between the parties. The sole issue raised by the claimants/respondents is therefore resolved in their favour against the defendant/applicant. Accordingly, this application is hereby dismissed.”[9]

On appeal, the defendant/appellant argued that in reality the test the High Court (Ayade J) applied was one of balance of convenience, and did not properly follow the strong cause test as stipulated by the Nigerian Supreme Court in applying the Brandon test.

The claimant/respondent brilliantly filed a respondent’s notice to justify the High Court’s decision on other grounds. The core argument was that the action will be statute-barred in England if the action was stayed before the Nigerian Court. This argument was clearly supported by the Brandon test as applied by the Nigerian Supreme Court.[10]

The Court of Appeal unanimously dismissed the appeal. Shuaibu JCA in his leading judgment held that:

“In exercising its discretion to grant a stay of proceedings in a case filed in breach of an agreement to refer disputes to a foreign country, the Court would take into consideration a situation where the granting would spell injustice to the plaintiff as where the action is already time barred in the foreign country and the grant of stay would amount to permanently denying the plaintiff any redress.”[11]

In analysing the Brandon test, as applied by the Nigerian Supreme Court he held that:

“It is imperative to state here that the Brandon Test is basically a guideline to judges in exercising their discretionary power to order a stay of proceedings where as in the present case, there is a foreign jurisdiction clause in the contract. It is to be noted however that like every discretion, the judge must exercise it judicially and judiciously based on or guided by law and discretion according to sound and well considered reason. Perhaps, the most noticeable guideline which I consider more novel is that the Brandon Test enjoins Court to exercise its discretion in favour of the applicant unless strong cause for not doing so is shown which places the burden of showing such strong cause for not granting the application on the respondent (claimant).”[12]

After referring to the counter-affidavit of the claimant/respondent where they mainly alleged at the trial court that the 1st claimant/respondent was sick and had financial difficulties, Shuaibu JCA adopted a similar flexible approach to the Brandon tests as Ayade J. He held that:

“What is discernible from the above is that the evidence on the issues of fact is situated and more readily available, in Nigeria and the lower Court, was therefore right in refusing to adhere to foreign jurisdiction clause on the basis that the case is more closely connected to Nigeria. In effect, the trial Court has taken into account the peculiar circumstances of the case vis-à-vis the guidelines in the Brandon Test and thus exercised its discretion judicially and judiciously in refusing to grant stay of proceedings.”[13]

Owoade JCA in his concurring judgment held that:

“In the instant case, more particularly by paragraphs 6, 7 and 8 of the Respondents counter-affidavit in opposition to the Appellant’s motion for an order for stay, the Respondents have established that they would suffer injustice if the case is stayed. This is more so in the instant case where the Plaintiffs/1st Respondent action was statute barred in the foreign Court and the grant of stay would amount to permanently denying the Plaintiff/1st Respondent any redress.”[14]

It is difficult to fault the decision of the High Court and Court of Appeal in this case, except for Shuaibu JCA’s occasional confusion of choice of court with choice of law (a conceptual mistake some Nigerian judges make). An additional observation is that this procedural issue on foreign choice of court agreement took over 5 years to resolve so far. The issue of delay is something to look into in the Nigerian legal system – a topic for another day.

The standard test for determining if a stay should be granted in breach of a foreign jurisdiction clause is the Brandon test as applied by the Nigerian Supreme Court.[15] I am in total agreement with Shuaibu JCA that the Brandon test is a guideline. In other words, it must not be followed slavishly by Nigerian courts or indeed courts of other common law countries in Africa. A judge should be able to consider the facts of the instant case and decide if there is a strong cause for not granting a stay in breach of a foreign jurisdiction clause. In this case, the fact that the action will be statute-barred was a strong ground not to grant a stay in breach of the exclusive choice of court agreement in favour of England. The financial difficulties and sickness of the claimant/respondent were also factors that could be taken into account in the interest of justice, although they are not as strong as the claim that the action was statute-barred in a foreign forum. Indeed, I have argued elsewhere that the test of the interest of justice should not be excluded from the Brandon test analysis.[16] Of course, I agree this might create uncertainty and undermine party autonomy in some cases, but this problem can be curtailed if the burden is firmly placed at the door steps of the claimant as to why a foreign jurisdiction clause should not be enforced.

Nigeria is a growing economy, and its lawyers, arbitrators and judges should be able to benefit from international commercial litigation and arbitration business like developed countries such as England. Of course, the best way to do this is to make Nigeria attractive for litigation in matters of speed, procedural rules, content of applicable laws, honesty of judges, and competence of judges to handle cases etc. However, Nigerian courts should not blindly apply party autonomy in the enforcement of choice of court agreements despite the certainty and predictability it offers to international commercial actors.

This brings me to an even more important issue. This case involved an insurance contract. The insured party – the claimant/respondent – was obviously the weaker party in this case. The traditional common law in Nigeria has not created a clear exception for the protection of weaker parties in the enforcement of foreign choice of court agreements. The European Union has done that in the case of employees, consumers and insured persons.[17] Nigeria and the rest of common law Africa’s legal system is not an island of its own. We can learn from the EU experience and borrow some good things from them. Indeed, the Nigerian Supreme Court had held that there is nothing wrong with borrowing from another legal system.[18] I will add there should be good reasons for borrowing from another legal system especially former colonial powers.

In this connection, it is proposed that in the case of weaker parties such as insured, consumers and employees, a party domiciled or habitually resident in Nigeria should be able to sue in Nigerian courts in breach of a foreign jurisdiction clause. In addition, the common law concept of undue influence could be applied so that cases where a party is presumably weak in the contractual relationship, such a party should not be bound by the foreign jurisdiction clause. Of course, there is a danger that this could create uncertainty. So I propose that in cases of business to business contracts, Nigerian and African courts should be more willing to enforce foreign choice of court agreements strictly.

Back to the case at hand, it is not unlikely that this case might come before the Nigerian Supreme Court on appeal. The Nigerian Court of Appeal has applied varied approaches to the enforcement of foreign choice of court agreements in Nigeria. Indeed, I noted three inconsistent decisions of the Nigerian Court of Appeal in this area of the law as recent as 2020.[19] On the one extreme hand, there is the contractual approach that strictly treats a choice of court agreement like any ordinary commercial contract.[20] This approach is good in that it promotes party autonomy, but the problem with this approach is that it ignores the procedural context of a choice of court agreement and might spell injustice due to its rigid approach. On the other extreme hand, there is the ouster clause approach that strictly refuses to enforce a foreign choice of court agreement.[21] Though this approach might favour litigation in Nigeria and other African countries, it dangerously undermines party autonomy, and international commercial actors are likely to lose confidence in a legal system that does not uphold party autonomy. The other approach is the middle ground of the Brandon test, which upholds a choice of court agreement except strong reason is demonstrated to the contrary. This is standard approach the Nigerian Supreme Court has applied.[22]

It is recommended that if this case goes to the Nigerian Supreme Court, it should continue its endorsement of the Brandon test. It should also consider the addition of the interest of justice approach as was utilised by some of the High Court and Court of Appeal judges in this case. What is missing in the Nigerian Supreme Court’s jurisprudence is a common law test that protects weaker parties like insured, consumers, and employees, as can be utilised in this case to protect the insured party (the 1st claimant/respondent). The time to act is now.

[1]BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA).

[2] The Owners of Cargo Lately Laden on Board the Ship or Vessel ‘ Elftheria ’ v ‘ The Elftheria ’ (Owners), ‘ The Elftheria ’ [1969] 1 Lloyd ’ s Rep 237 (Brandon J).

[3] Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.

[4]Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520. See also Hull Blyth (Nig) Ltd v Jetmove Publishing Ltd (2018) LPELR-44115 (CA).

[5]Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509. See also Captain Tony Nso v Seacor Marine (Bahamas) Inc (2008) LPELR-8320 (CA); Beaumont Resources Ltd & Anor v DWC Drilling Ltd (2017) LPELR-42814 (CA).

[6]Compare Adesanya v Palm Lines Ltd (1967) NCLR 133, which is one of the earliest cases where the interest of justice test was applied in enforcing foreign choice of court agreements.

[7]Cited in BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 3.

[8]Cited in BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 3-4.

[9] Cited in BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 5.

[10] Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520.

[11]BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA).21.

[12]BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA).

[13] BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 28.

[14] BUPA Insurance v Chakraverti & Anor (2021) LPELR-55940 (CA) 30.

[15] Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.

[16]CSA Okoli, “Analysis of Choice of Court Agreements in Nigeria in the Year 2020” (2021) 21 Dutch Journal of Private International Law 292, 305.

[17]See Article 10 – 23 of Brussels I Regulation Recast (Council Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 [2012] OJ L351/1.). See also recital 19 to Brussels I Regulation Recast.

[18]Caribbean Trading & Fidelity Corporation v Nigerian National Petroleum Corporation (2002) 34 WRN 11 (Ayoola JSC, Mohammed JSC (as he then was), Ejiwunmi JSC).

[19]CSA Okoli, “Analysis of Choice of Court Agreements in Nigeria in the Year 2020” (2021) 21 Dutch Journal of Private International Law 292 – 305.

[20] Damac Star Properties LLC v Profitel Limited (2020) LPELR-50699(CA). See also Conoil Plc v Vitol SA (2018) 9 NWLR 463, 489 (Nweze JSC), 500-501 (Okoro JSC), 502 (Eko JSC).

[21]A.B.U. v VTLS (2020) LPELR-52142 (CA). See also Conoil Plc v Vitol SA (2018 ) 9 NWLR 463, 489 (Nweze JSC); Sonnar (Nig) Ltd v Partenreedri MS Norwind (1987) 4 NWLR 520, 544-5 (Oputa JSC); LAC v AAN Ltd (2006) 2 NWLR 49, 81 (Ogunbiyi JCA as she then was); Ventujol v Compagnie Française De L’Afrique Occidentale (1949) 19 NLR 32; Allied Trading Company Ltd v China Ocean Shipping Line (1980) (1) ALR Comm 146.

[22]Sonnar (Nig) Ltd v Norwind (1987) 4 NWLR 520; Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509.

 

Puigdemont i Casamajó e.a. / Parlement
Droit institutionnel
Le viceprésident du Tribunal de l’Union européenne rejette la nouvelle demande de suspension de la levée de l’immunité parlementaire de MM. Carles Puigdemont i Casamajó et Antoni Comín i Oliveres ainsi que de Mme Clara Ponsatí i Obiols

Daniel B. Listwa (Wachtell, Lipton, Rosen & Katz) and Lea Brilmayer (Yale Law School) have posted Jurisdictional Problems, Comity Solutions: Lessons for the Restatement (Third) on SSRN:

American choice of law is today portrayed as a story of how a more modern and functionalist methodology came to overthrow the long dominant territorial system. Against this background, the situs rule—the territorial rule requiring that all property-related issues be governed by the law of the jurisdiction in which the property is located—is seen as an unusual straggler of a now-debunked theory. Central to this narrative is the idea that the vested rights theory, which was embraced by the Restatement (First) of Conflict of Laws and assumed away the possibility for overlapping jurisdictions, represented “traditional” choice of law, going back to Justice Joseph Story, the father of American conflicts law. This is the perspective adopted by the now-in-the-works Restatement (Third), which aims to usher in a new era for American conflict of laws by cutting out all vestiges of the “traditional” model—the situs rule included.

But this narrative, while broadly held, is wrong. It is a mistake to associate choice of law during the early Republic with an early twentieth-century model of territorialism. In this Essay, we explain that the early American choice-of-law model, as described by Justice Story, was not territorial, but rather intensely functional, with its prime focus being resolving the uncertainty created by the constitutional law governing the limits of personal jurisdiction and the recognition of sister-state judgments. In this context, the persistence of the situs rule appears to be not an anachronism but rather an indication that “modern” choice-of-law theories misunderstand the forces shaping conflict–of–laws doctrine today. Using the situs rule as a window into the foundations of choice of law, this Essay thus calls into question the standard narrative underlying contemporary choice-of-law literature and challenges the approach of the proposed Restatement (Third).

The article is forthcoming in the Texas Law Review.

Dans le sillage du contrôle exercé par les juridictions internes, la Cour européenne des droits de l’homme confirme la proportionnalité de la confiscation d’un immeuble appartenant au requérant, condamné pour récidive d’association de malfaiteurs, en application d’une peine complémentaire permettant la confiscation générale du patrimoine.

Sur la boutique Dalloz Code pénal 2022, annoté Voir la boutique Dalloz

en lire plus

Le RSA alloué à l’accompagnant d’un citoyen de l’Union européenne ne peut pas bénéficier à l’accompagnant d’un citoyen français.

Sur la boutique Dalloz Code de l’entrée et du séjour des étrangers et du droit d’asile 2022, annoté et commenté Voir la boutique Dalloz

en lire plus

Ditto Ltd v Drive-Thru Records LLC [2021] EWHC 2035 (Ch) discusses the contract and tort gateways for jurisdiction in England and Wales (they need to be met for claimant to hold onto an earlier granted permission for ‘service out’ of the jurisdiction). The dispute concerns the world of music catalogues, advance royalties and (marketing) services rendered, or not, in regard to the  catalogued artists. Defendants are both based in California, claimant is England-incorporated. Concurrent proceedings are underway in New York.

Of interest to the blog is firstly the contractual gateway, which is to some degree assessed under retained EU law, for as part of its argument, claimant argues the lex contractus is English law.  That determination of the applicable law is done under (retained( EU law and Francis DM holds that it is not English law. No choice of law had been made per Article 3, which (in the absence of any protected categories) brings us into the cascade of A4 Rome I. It is worthwhile to repeat counsel argument in full [56-57]

Ms Lacob [for defendants] contended that the law of the agreements should be determined in accordance with paragraph (2) as being that of the State of California. That was on the basis that the party which was required to effect the characteristic performance of each of the agreements was Drive-Thru and War Road respectively, and their country, or (in this case) territorial unit, of habitual residence, being the place where they had their central administration, was California. She identified the performance which was characteristic of each of the agreements as being Drive-Thru and War Road’s obligations to licence the exploitation of their portfolio works, to remaster and remix their recordings or the release new recordings, as the case may be, and (in the case of War Road) to sign up new bands; in contrast, Ditto’s only obligation was to pay money which was not the performance which was characteristic of the agreements.

Mr Kitson for Ditto [claimant] took issue with this. He pointed to the fact that Drive-Thru and War Road themselves contended in the New York proceedings that Ditto was in breach of its obligations (whether express or implied) under the agreements to take possession of the recordings and to distribute the same so as to earn royalties for the parties’ joint benefit. Thus, he argued, the performance characteristic of the agreement was not all on the side of Drive-Thru and War Road.

The reference to the arguments in the New York proceedings is interesting for it suggests ‘form’. However the judge agreed [58] with defendants that

these agreements are ones under which there were substantial performance obligations (other than simply the payment of money) on both sides. In reality, the agreements were joint ventures for the development and exploitation of Drive-Thru’s and War Road’s existing and future portfolio works for their mutual benefit. They are the type of agreements which Mann J refers to in his judgment in Apple Corps at paragraph 54 where it is not possible to identify a characteristic performance provided by one only of the parties.

Even the centre of gravity rule (recital 19, which the judge does not refer to) does not assist here hence the analysis needs to jump to A4(4)’s ‘proper law of the contract’ rule.  [59]

What then is the country or territorial unit with which the agreements are most closely connected? On the evidence before me, I am satisfied that it is the State of California. That was where Drive-Thru and War Road were based and where for the most part they would perform their obligations under the agreements. In contrast, Ditto’s own obligations relating to the digital distribution of the portfolio works were not ones which, on the evidence, fell to be performed in England to any particular extent, even if Ditto’s central administration was based in England. Instead, Ditto’s rights to exploitation of the portfolio works, and any corresponding obligations relating to the distribution of such works, were worldwide, reflecting the global reach of the Ditto Music brand.

Conclusion is that California law is the lex contractus.

The contractual gateway was however found to have been fulfilled on the basis of CPR PD6B paragraph 3.1 ‘contract made within the jurisdiction’. The judge finds that the contracts were ‘made’ both in CAL and in E&W [54] although he does lament [48] the artificial nature of the issue as the law currently stands: were contracts are ‘made’. I find this is especially relevant in a contemporary context of electronic correspondence, Zoom meetings and the like. Where a contract is ‘made’ seems fairly nugatory these days.

The tort gateway is discussed without reference to UKSC Brownlie for that was en route at the time of the discussions in current case. It is at any rate held to be met [[71] for claimant has quite clearly sustained damage in England as a result of the alleged misrepresentations.

At [72] ff follows an interesting, brief discussion on the location of intellectual property with finally the curtain drawn on English proceedings as a result of forum non [80 ff].

Geert.

 

1/2 Ditto v Drive-Thru Records [2021] EWHC 2035 (Ch) (17 November 2021)
Permission to serve out set aside
Contract gateway discussed viz retained EU law, A4(4) Rome I (leading to CAL law)
Tort gateway upheld: damage sustained in E&W
Obiter discussion of…

— Geert Van Calster (@GAVClaw) November 18, 2021

The German Federal Bar Association (Bundesrechtsanwaltskammer – BRAK) and the German Israeli Lawyer’s Association (DIJV) will host a comparative, English-language workshop on legal tech in legal education. Confirmed Speakers are Professor Ruth Janal (University of Bayreuth), Dr. Aviv Gaon (Harry Radzyner Law School, Reichman University, IDC Herzliya) and Professor Christian Wolf (Leibniz University, Hanover). The workshop will take place via Zoom on 2 December 2021. For further information and registration, see here.

 

Under Article 32(2) of the Regulation No 1346/2000 (the “old” Insolvency Regulation, now repealed by the Regulation 2015/848), “the liquidators in the main and any secondary proceedings shall lodge in other proceedings claims which have already been lodged in the proceedings for which they were appointed, provided that the interests of creditors in the latter proceedings are served thereby, subject to the right of creditors to oppose that or to withdraw the lodgement of their claims where the law applicable so provides”.

The Regulation No 1346/2000 does not expressly stipulate the point in time when the claims already lodged in the proceedings for which a liquidator has been appointed should be brought in such other proceedings. That being said, its Article 4, for the purposes of the main proceedings, and its Article 28, for the purposes of secondary proceedings, clarify that, unless otherwise provided for in the Regulation, the law of the State in which proceedings are opened (lex concursus) is to apply to all proceedings.

As put by AG Campos Sánchez-Bordona in his Opinion presented back in May, that is why, in the case ALPINE BAU, C-25/20, a Slovenian court asked the Court of Justice whether the liquidator in the main insolvency proceedings conducted in Austria, who is seeking to file, in secondary proceedings conducted against the same debtor in Slovenia, claims which he already filed in the former proceedings, is subject to the time limits (and the consequences of failure to comply with those time limits) laid down in Slovenian law.

A different interpretation that the referring court also put into consideration consists on the idea that the Regulation lays down, in Article 32(2), a special right for a liquidator to lodge claims in other insolvency proceedings without being bound by any time limit (see point 13 of the request available here).

Another rival interpretation seemed to be, at least in the light of point 28 of the Opinion, implicitly endorsed by the liquidator in the main insolvency proceeding in the written observations. According to that interpretation, the time limits for lodging claims in any other proceedings are determined in accordance with the lex concursus of the main proceedings.

 

Opinion of AG

In his Opinion, AG Campos Sánchez-Bordona pronounced himself in favor of the first interpretation and proposed to the Court to consider that where the liquidator for the main insolvency proceedings lodges claims in secondary proceedings, the time limits for the lodgement of those claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened.

 

Judgment of the Court

This Thursday, the Court delivered its judgment in the case at hand. In essence, the Court agreed with the answer proposed in the Opinion. More precisely, it held that Article 32(2) of the Regulation No 1346/2000, read in conjunction with Articles 4 and 28 of the Regulation (these two provisions did not, however, appear in the preliminary question, yet the Court seemingly considered it necessary to introduce them in its reading of the question and consequently in its answer, see paragraph 26 of the judgment), is to be interpreted as meaning that the time limits for the lodgement of the claims, and the consequences of lodging claims out of time, are governed by the law of the State in which the secondary proceedings were opened (paragraph 42).

The judgment itself is all the more interesting as it also deals – and ultimately rejects – the other two interpretations mentioned above, at its paragraphs 34-40 and 41, respectively.

The judgment is available here, in French.

In its judgment delivered this Thursday in the case IB, C-289/20, the Court of Justice addresses the issue of multiple places of residence under the Brussels II bis Regulation in the context of a request for a preliminary ruling originating from the proceedings for a divorce.

As a reminder, the preliminary question referred to the Court in this case reads as follows:

Where, as in the present case, it is apparent from the factual circumstances that one of the spouses divides his time between two Member States, is it permissible to conclude, in accordance with and for the purposes of the application of Article 3 of [the Brussels II bis Regulation] that he or she is habitually resident in two Member States, such that, if the conditions listed in that article are met in two Member States, the courts of those two States have equal jurisdiction to rule on the divorce?

 

Opinion of AG

As reported back in July, AG Campos Sánchez-Bordona delivered his Opinion in this case. As there is no English translation of the Opinion yet, a short reminder of its essential findings does not seem redundant.

In essence, AG proposed to the Court to consider that under the Brussels II bis Regulation a spouse may have only one place of habitual residence (points 83 et 90). If, in fact, as the preliminary question presupposes, a spouse divides his life between two Member States, it has to be considered that he or she does not have a place of habitual residence within the meaning of Article 3 of the Regulation (point 98). If that leads ultimately to the situation where no forum within the EU can hear the case for a divorce, in order to remedy situations of denial of justice, the jurisdiction might be exceptionally attributed to the courts of one of the Member State where the spouse resides (points 100 and 101).

An English translation of the answer proposed in point 101 of the Opinion is also available at the EAPIL blog due to the courtesy of Marta Requejo Isidro.

 

Judgment of the Court

In its judgment, the Court also considered that while a spouse may have multiple places of residence, that person may have only one place of “habitual residence” within the meaning of Article 3(1)(a) of the Brussels II bis Regulation (paragraph 51).

Reminding that it is for the national court to establish the habitual residence of the spouse, taking account of all the circumstances of fact specific to each individual case (paragraph 52), the Court provided the referring court with some further guidance as to that task. A cursory lecture of the judgment seems to reveal a suggestion according to which, following that guidance and at least a priori, it should be possible to identify a single place of habitual residence of the spouse in the circumstances of the case at hand (paragraphs 61 and 62).

As noted in the previous post, in its points 100 and 101, the Opinion seemed to endorse a forum of necessity made available to the applicant through the interpretation of the Brussels II Regulation itself. The Court did not elaborate on that issue, confining itself to the interpretation of Article 3 of the Regulation, hinting on the aforementioned a priori suggestion as to the identification of the place of habitual residence.

The judgment is available here, in French.

[UPDATE: for a press release in English, click here].

IB (Résidence habituelle d’un époux - Divorce)
Espace de liberté, sécurité et justice
Compétence juridictionnelle pour connaître d’une demande en divorce : la Cour précise le sens et la portée de la notion de « résidence habituelle » d’un époux

StWL Städtische Werke Lauf a.d. Pegnitz
Rapprochement des législations
Inbox advertising : l’affichage dans la boîte de réception électronique de messages publicitaires sous une forme qui s’apparente à celle d’un véritable courrier électronique constitue une utilisation de courrier électronique à des fins de prospection directe au sens de la directive 2002/58

Delfarma
Libre circulation des marchandises
Le droit de l’Union s’oppose à une réglementation nationale prévoyant l’expiration de plein droit, sans examen d’un éventuel risque pour la santé et la vie des personnes, d’une autorisation d’importation parallèle d’un médicament un an après l’expiration de l’autorisation de mise sur le marché du médicament de référence