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Chambre de l'instruction - droits de la défense

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Paul B. Stephan from University of Virginia School of Law has posted recently on SSRN an article titled Antibribery Law, which will constitute a chapter of the book Challenges to the International Legal Order, edited by David L. Sloss. The book is supposed to be published by Oxford University Press in 2021. The article may be downloaded here.

The abstract reads as follows:

The first part of this chapter describes the rise of transborder antibribery law in this century against the background of its twentieth century origins. It focuses on the role of a hegemon, namely the United States, and the impact of its conduct on other rich-world states. During the last century, other states passively resisted U.S. initiatives. Then, at the dawn of the new century, some undertook their own antibribery programs in response to U.S. regulation. At the international level, this response took the form of treaties accepting national regulation but not parceling out primary regulatory jurisdiction among states. Cooperation among prosecutors grew, but almost entirely through informal mechanisms. What resulted is a remarkably robust regulatory regime with almost all of the action occurring at the national level.

The next two parts ask why this kind of international cooperation unfolded as it did. The first focuses on striking parallels between the development of transborder antibribery enforcement and the rise of transborder anticartel law a generation earlier. International cooperation exists, but through informal fora and other contacts among prosecutors, rather than by the creation of international legal obligations and international institutions to administer them. As with the later antibribery project, anticartel policy thrived through the scaling back of international-law-based claims about the limits of prescriptive jurisdiction, not through creation of new international institutions. 

Part III then explores the political economy of transborder antibribery law. It considers why states regulate behavior that, as a first-order matter, harms foreigners while enriching domestic firms (unlike anticartel policy, which focuses on injury to domestic consumers). It rebuts arguments that altruism and a cosmopolitan sense of justice motivates states. Rather, this regulation, like the earlier anticartel actions, can best be explained as an effort to save the system of global markets, international business and investment, and transnational private ordering from itself. States have come to embrace these efforts, but have not sought to enforce them through international law. This approach instead puts the onus on powerful states acting as norm entrepreneurs to promote the rule of domestic law internationally.

On balance, the development of antibribery law during this century suggests a process of evolutionary adaptation, not revolutionary change and disruption. The paper considers, however, whether the forces that have undone the liberal internationalist aspirations of the 1990s pose a threat to the contemporary transborder antibribery regime. That transborder antibribery efforts have prospered during this period of unrest may indicate something about the resilience of global capitalism, but is not proof of the durability of the liberal international order that existed at the end of the twentieth century.

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2022.

The course will be opened by Dominique Hascher with a lecture on The Role of International Law in the Review of Awards.

The general course, titled Towards Worldwide Law Consistency, will be given by Louis d’Avout (Paris II University).

The special courses will be as follows: Marco Frigessi di Rattalma (University of Brescia), New Trends in the Private International Law of Insurance Contracts; João Bosco Lee (Universidade Positivo), The Application of International Conventions by Arbitrators in International Trade Disputes; Ulla Liukkunen (University of Helsinki), Mandatory Rules in International Labour Law; Kermit Roosevelt III (University of Pennsylvania Carey Law School), The Third Restatement of Conflict of Laws; Tiong Min Yeo (Singapore Management University), Common Law, Equity, and Statute: Effect of Juridical Sources on Choice of Law Methodology; Arnaud Nuyts (Université Libre de Bruxelles), The Forum for Cyber Torts.

Special lectures in tribute to Professor Emmanuel Gaillard will be delivered by Yas Banifatemi, Diego P. Fernández Arroyo, Dominique Hascher, Horatia Muir Watt and Luca Radicati di Brozolo.

The directors of studies will be Marie Linton (Uppsala University) and Luciana Beatriz Scotti (University of Buenos Aires). 

More information on the Academy’s programmes, including the upcoming Winter Course, may be found here.

- Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il soulever d'office la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L. 312-25 du code de la consommation, au-delà de l'expiration du délai quinquennal de prescription opposable à une partie ?

Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce , 4 et 5 du code de procédure civile et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il prononcer la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L 312-25 du code de la consommation, en l'absence de toute demande d'annulation émanant de l'une des parties ?

- Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il soulever d'office la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L. 312-25 du code de la consommation, au-delà de l'expiration du délai quinquennal de prescription opposable à une partie ?

Au regard des articles L. 141-4 devenu R 632-1 du code de la consommation, 6 du code civil, L. 110-4 du code de commerce , 4 et 5 du code de procédure civile et de la lecture par la Cour de justice de l'Union européenne de la directive n° 2008/48/CE du 23 avril 2008 relative au rôle du juge dans le respect des dispositions d'un ordre public économique européen, le juge peut-il prononcer la nullité d'un contrat de crédit à la consommation, notamment en application de l'article L 312-25 du code de la consommation, en l'absence de toute demande d'annulation émanant de l'une des parties ?

The forth edition of Prof. Dan Jerker B. Svantesson’s book on Private International Law and the Internet is being published with Wolters Kluwer.

The book furnishes an exhaustive and insightful account of what has emerged as the most crucial current issue in private international law; that is, how the Internet affects and is affected by the five fundamental questions: When should a lawsuit be entertained by the courts? Which state’s law should be applied? When should a court that can entertain a lawsuit decline to do so? How wide ‘scope of jurisdiction’ should be afforded to a court with jurisdiction over a dispute? And will a judgment rendered in one country be recognized and enforced in another?

Professor Dan Svantesson identifies and investigates twelve characteristics of Internet communication relevant to these questions and then proceeds with an in-depth discussion of what is required of modern private international law rules.

The analysis focuses is on several issues that have far-reaching practical consequences in the Internet context, including the following: cross-border defamation; cross-border business contracts; cross-border consumer contracts; and cross-border intellectual property issues.

A comprehensive survey of private international law solutions encompasses insightful and timely analyses of relevant laws adopted in various jurisdictions, including Australia, England, Hong Kong SAR, the United States, Germany, Sweden, and China, as well as in a range of international instruments. There is also a chapter on advances in geo-identification technologies and their exceptional value for legal practice. The book concludes with two model international conventions, one on cross-border defamation and one on cross-border contracts, as well as a set of practical checklists to guide legal practitioners faced with cross-border matters within the discussed fields.

The book collates a wealth of research findings in the overlapping disciplines of law and technology that will be of particular utility to practitioners and academics working in this complex and rapidly changing field. The author’s thoughtful analysis of the interplay of the developing Internet and private international law will also prove to be invaluable, as will the tools he offers to anticipate the future. Private International Law and the Internet provides an extraordinary stimulus to continue working towards globally acceptable private international law rules for communication via the Internet.

More information about the book is available here.

On Tuesday, July 6, 2021 at 11:00-12:30 CEST, the Hamburg Max Planck Institute will host its thirteenth monthly virtual workshop in the series  Current Research  in private international law. Yuko Nishitani (Kyoto University) will speak, in English, on the topic Global Governance and Corporate Social Responsibility 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

The French Committee for Private International Law will hold a panel discussion on private international law and Brexit (Le droit international privé au défi du Brexit) in the afternoon of 8 October 2021, in Paris (3 pm CET).

The chairman will be Dominique Foussard. Speakers include Louis d’Avout, Stewart Leech, Eva Lein, Philippe Lortie and Michael Wilderspin.

The exact location is to be announced on the website of the Committee (here).

On August 19, 2021, the U.S. Court of Appeals for the Eleventh Circuit issued its latest decision on foreign forum selection clauses and cruise ship contracts.  The case was Turner v. Costa Crociere S.P.A.  The plaintiff was an American cruise ship passenger, Paul Turner, who brought a class action in federal district court in Florida alleging that the cruise line’s “negligence contributed to an outbreak of COVID-19 aboard the Costa Luminosa during his transatlantic voyage beginning on March 5, 2020.”

The cruise line moved to dismiss the case on the basis of a forum selection clause in the ticket mandating that all disputes be resolved by a court in Genoa, Italy. The contract also contained a choice-of-law clause selecting Italian law. By way of background, it is important to note that (1) the parent company for the cruise line was headquartered in Italy, (2) its operating subsidiary was headquartered in Florida, (3) the cruise was to begin in Fort Lauderdale, Florida, and (4) the cruise was to terminate in the Canary Islands.

The Eleventh Circuit never reached the merits of the plaintiffs’ claims.  Instead, it sided with the cruise line, enforced the Italian forum selection clause, and dismissed the cases on the basis of forum non conveniens.  A critique of the Eleventh Circuit’s reasoning in Turner is set forth below.

Years ago, the U.S. Congress enacted a law imposing limits on the ability of cruise lines to dictate terms to their passengers.  46 U.S.C. § 30509 provides in relevant part:

The owner . . . of a vessel transporting passengers . . . between a port in the United States and a port in a foreign country, may not include in a . . . contract a provision limiting . . . the liability of the owner . . . for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents . . . . A provision described in paragraph (1) is void.

Boiled down to its essence, the statute provides that any provision in a cruise ship contract that caps the damages in a personal injury case is void.  If the cruise ship were to write an express provision into its passenger contracts capping the damages recoverable by plaintiffs such as Paul Turner at $500,000, that provision would be void as contrary to U.S. public policy.

The cruise lines are sharp enough, however, to know not to write express limitations directly into their contracts.  Instead, they have sought to achieve the same end via a choice-of-law clause.  The contract in Turner had a choice-of-law clause selecting Italian law.  Italy is a party to an international treaty known as the Athens Convention.  The Athens Convention, which is part of Italian law, caps the liability of cruise lines at roughly $568,000 in personal injury cases.  If a U.S. court were to give effect to the Italian choice-of-law clause and apply Italian law on these facts, therefore, it would be required to apply the liability cap set forth in the Athens Convention.  It seems highly unlikely that any U.S. court would enforce an Italian choice-of-law clause on these facts given the language in Section 30509.

Enter the forum selection clause.  If the forum selection clause is enforced, then the case must be brought before an Italian court.  An Italian court is likely to enforce an Italian choice-of-law clause and apply the Athens Convention.  If the Athens Convention is applied, the plaintiff’s damages will be capped at roughly $568,000.  To enforce the Italian forum selection clause, therefore, is to take the first step down a path that will ultimately result in the imposition of liability caps in contravention of Section 30509.  The question at hand, therefore, is whether the Eleventh Circuit was correct to enforce the forum selection clause knowing that this would be the result.

While the court clearly believed that it reached the right outcome, its analysis leaves much to be desired.  In support of its decision, the court offered the following reasoning:

[B]oth we and the Supreme Court have directly rejected the proposition that a routine cruise ship forum selection clause is a limitation on liability that contravenes § 30509(a), even when it points to a forum that is inconvenient for the plaintiff. Shute, 499 U.S. at 596–97 (“[R]espondents cite no authority for their contention that Congress’ intent in enacting § [30509(a)] was to avoid having a plaintiff travel to a distant forum in order to litigate. The legislative history of § [30509(a)] suggests instead that this provision was enacted in response to passenger-ticket conditions purporting to limit the shipowner’s liability for negligence or to remove the issue of liability from the scrutiny of any court by means of a clause providing that ‘the question of liability and the measure of damages shall be determined by arbitration.’ There was no prohibition of a forum-selection clause.”)

The problem with this argument is that there was no evidence in Shute­—none—suggesting that the enforcement of the forum selection clause in that case would lead to the imposition of a liability cap.  Indeed, the very next sentence in the passage from Shute quoted above states that “[b]ecause the clause before us . . . does not purport to limit petitioner’s liability for negligence, it does not violate [Section 30509].”  This language suggests that if enforcement of a forum selection clause would operate to limit the cruise line’s liability for negligence, it would not be enforceable.  The Eleventh Circuit’s decision makes no mention of this language.

The Turner court also cites to a prior Eleventh Circuit decision, Estate of Myhra v. Royal Caribbean Cruises, for the proposition that “46 U.S.C. § 30509(a) does not bar a ship owner from including a forum selection clause in a passage contract, even if the chosen forum might apply substantive law that would impose a limitation on liability.”  I explain the many, many problems with the Eleventh Circuit’s decision in Myhra here.  At a minimum, however, the Myhra decision is inconsistent with the Supreme Court’s admonition in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc that “in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party’s right to pursue statutory remedies . . . we would have little hesitation in condemning the agreement as against public policy.” There is no serious question that the cruise line is here attempting to use an Italian choice-of-law clause and an Italian forum selection clause “in tandem” to deprive the plaintiffs in Turner of their statutory right to be free of a damages cap.  This attempt would seem to be foreclosed by the language in Mitsubishi.  The Eleventh Circuit does not, however, cite Mitsubishi in its decision.

At the end of the day, the question before the Eleventh Circuit in Turner was whether a cruise company may deprive a U.S. passenger of rights guaranteed by a federal statute by writing an Italian choice-of-law clause and an Italian forum selection clause into a contract of adhesion. The Eleventh Circuit concluded the answer is yes.  I have my doubts.

The author of this post is Erik Sinander, Senior lecturer at the Stockholm University.

In a judgment of 15 July 2021, over two joined Romanian cases (C-152/20 and C-218/20, DG and EH v SC Gruber Logistics SRL and Sindicatul Lucrătorilor din Transporturi v SC Samidani Trans SRL), the CJEU confirmed that the choice of law rule for employment contracts in Article 8 of the Rome I Regulation demands parallel application (dépeçage) of the law chosen by the parties and the law that would have been applicable if no choice of law was done. Both cases concerned whether lorry drivers employed by Romanian companies were entitled to minimum wage according to Italian respectively German law despite the fact that Romanian law was chosen for the employment contracts.

In its judgment, the CJEU confirmed that the law that the parties have chosen in their employment contract (subjectively applicable law) shall be applied as a starting point and that the law that would have been applicable if no choice of law would have been done (objectively applicable law) shall breakthrough in issues where the latter law offers the employee protection that cannot be derogated from by agreement under that law. The court reiterated the wording of the Regulation as it confirmed that whether a provision in the objectively applicable law can be derogated from shall be decided according to that law. Further, the court held that the prerequisite of a free choice according to Article 3 is not invoked solely by the fact that the choice of law clause has been included in the contract by the employer in a pre-formulated employment contract.

The judgment is in no way surprising, but the trickiest part of the parallel application methodology prescribed in Article 8 is left undiscussed. For the objectively applicable law to breakthrough it is not enough that the provision is mandatory. In addition, it must also offer the employee protection. How do we then know whether the employee is offered protection by the provision in the objectively applicable law? That this issue was not discussed in the judgment can simply be explained by the fact that the Romanian courts did not ask about it. Nonetheless, it is an interesting issue that deserves some attention.

As long as the employment protection mechanism in the subjectively applicable law and the objectively applicable law are equivalent, Article 8 is unproblematic. A lower minimum wage according to the subjectively applicable law can simply be replaced by the rules granting higher minimum wage in the objectively applicable law. When the two laws employment protection mechanisms are based on different ideas, it is harder to make the comparison. That might be the case if the matter concerns a wrongful dismissal and the subjectively applicable law offers a stronger right for the employee to return to the job whereas the objectively applicable law offers better compensation. In such a situation, the court can hardly make this evaluation as there is no objective way to evaluate different employment protection mechanisms.

Personally I think that the idea of international harmony of decisions shall be leading for how the evaluation of protection provisions shall be made according to Article 8 of the Rome I Regulation. To let the courts decide the evaluation of different employment protection mechanisms will inevitably lead to a situation where the decisions are dependent on where they are settled. That would be unsatisfactory. Instead, it would be preferable to let the employee decide self whether the objectively applicable law shall prevail in a specific situation. Such a method is of course casuistic, but it is the more reasonable solution. Relying on the employee’s own choice has the advantage that it simplifies the comparison for the court.

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers a summary and a compelling analysis of the Luxemburgish domestic legislation regarding the EPO and EAPO Regulations.

On 23 July 2021, a new legislative reform of the Luxembourgish Code of Civil Procedure (“NCPC”), entered into force amending, among other articles, those concerning Regulation No 1896/2006, establishing a European Payment Order (“EPO Regulation”) and Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”).

The EPO and the EAPO Regulations embody, respectively, the first and third European uniform civil procedures. While the EPO, as its name indicates, is a payment order, the EAPO is a provisional measure that allows temporary freezing of the funds in the debtor’s bank accounts. Although they are often referred to as uniform procedures, both leave numerous elements to the discretion of the Member States’ national laws.

With this strong reliance on the Member State’s national laws, it is not surprising that most Member States have enacted domestic legislation to embed these Regulations within their national civil procedural systems. Luxembourg is one of them. The EPO Regulation brought two amendments to the NCPC. The first one was introduced in 2009, four months after the EPO Regulation entered into force. In broad terms, the 2009 reform integrated the EPO procedure in the Luxembourgish civil judicial system, identifying the authorities involved in its application. The second legislative amendment  stemmed from the 2015 reform of Regulation No 861/2007, establishing a European Small Claims Procedure (“ESCP Regulation”) and of the EPO Regulation. Among other changes, this reform introduced the possibility, once the debtor opposes the EPO, of continuing the procedure “in accordance with the rules of the European Small Claims Procedure” (Article 17(1)(a) EPO Regulation). The change brought to the NCPC pursued the objective to facilitate the swift conversion from an EPO into an ESCP (Articles 49(5) and 49(8) NCPC).

Before the reform of 23 July 2021, the Luxembourgish legislator had already twice modified the NCPC to incorporate the EAPO Regulation. The first EAPO implementing act was approved in 2017 (Article 685(5) NCPC). It mainly served to identify the domestic authorities involved in the EAPO procedure: from the competent courts to issue the EAPO to the competent authority to search for information about the debtor’s bank accounts (Article 14 EAPO Regulation). The second reform, introduced in 2018, aimed at facilitating the transition of the EAPO’s temporary attachment of accounts into an enforcement measure (Article 718(1) NCPC). In brief, it allowed the transfer of the debtor’s funds attached by the EAPO into the creditor’s account.

The 2021 legislative reform of the NCPC was not introduced specifically bearing in mind the EPO and the EAPO Regulations: rather, it was meant as a general update of the Luxembourgish civil procedural system. Among the several changes it introduced, it increased the value of the claim that may be brought before the Justice of the Peace (Justice de paix). Before the reform, the Justice of the Peace could only be seized for EPOs and EAPOs in claims up to 10.000 euros, while District Courts (Tribunal d’arrondissement) were competent for any claims above that amount. As a result of the reform, the Luxembourgish Justice of the Peace will now be competent to issue EPOs and EAPOs for claims up to 15.000 euros in value.

Aldricus – Kulineran itu tidak pernah jauh dari yang bernama travelling . Maka, ketika kamu travelling, kulineran jadi aktivitas yang harus kamu lakukan. Selainnya coba makanan ciri khas tradisionilnya, saat kembali travelling juga kamu harus coba bermacam es krim terbaik ciri khas negara itu.

Walau Rolled Ice Krim kerap kamu temuin di mal-mal di Jakarta, tetapi pasalnya Rolled Ice Krim ini berawal di Thailand dan populer dengan rasa dan toppingnya yang memikat sekali. Jika kamu ke Thailand, harus coba Rolled Ice Krim ini!

Halva Ice Cream

Es cream yang dari Israel ini memang jadi favorite sekali. Dibuat dari kue Halva dan umumnya diberi topping pistasio yang buat dia jadi semakin memikat. Belum juga jika gunakan topping cokelat.

Jepang dengan Mochi Ice Creamnya

Kamu perlu ke Jepang nih untuk merasakan Mochi Ice Krim bikinan Jepang sekali. Dengan bebatan mochi yang halus dan diberi es cream bermacam rasa didalamnya memberinya kamu kesan yang lain saat kembali makan mochi. Belum juga design mochinya bermacam berdasar rasa, Instagrammable sekali dech!

Itali dengan Gelatonya

Gelato di italia

Di Jakarta memang sudah ada beberapa Gelato sich, tetapi pada intinya Gelato yang asli tiba dari Italia. Kamu tidak perlu ngeraguin kembali keautentikan rasa dan kehalusan gelatonya, kamu tentu suka. Kamu perlu ikhlas terbang jauh ke Italia nih untuk coba Gelato terenaknya.

Prancis dengan Foie Gras Ice Creamnya

Es cream tidak hanya dapat dipaduin dengan topping yang manis-manis seperti cokelat, keju atau beragam rasa buah-buahan yang lain lho. Kamu perlu coba ke Prancis untuk coba Foie Gras Ice Creamnya yang dibuat dari dalam hati angsa. Tidak boleh salah, Foie Gras ini harga setinggi langit sekali, tidak bingung jika es krimnya akan lebih mahal dibanding rasa es cream lainnya. Tetapi, untuk kamu pencinta es cream, kamu harus coba terbang ke Prancis dan coba Foie Gras asli sananya!

India dengan Kulfi Ice Cream

Karena ada Kulfi Ice Krim, alasanmu untuk berkunjung India jadi semakin. Masalahnya, es cream tradisionil ini tidak hanya jadi favorite beberapa orang lokal saja, penjualannya sudah capai di beberapa negara, bahkan juga sudah menyebar di Australia dan sekitaran.

Iran dengan Faloodeh Ice Cream

Sudah pernah coba mie pasta yang dijadiin dessert? Nach, kamu perlu terbang jauh ke Iran untuk coba Faloodeh Ice Creamnya ini. Mie Vermicellinya dibikin dari tepung jagung dan dapat di gabungin dengan topping sesuai dengan selera.

Turki dengan Dondurmanya

Salah satunya alasan kamu kerap membeli es cream Turki yang di Jakarta tentu karena performa beberapa stafnya, kan? Umumnya, beberapa penampil yang di Jakarta mnegutamakan kecepatan tangan. Jika kamu ke Turkinya langsung, kamu akan kagum dech beberapa penampilnya dapat mengusung satu loyang es krimnya cuman dengan 1 tongkat tanpa jatuh! Walau sekalian pegang es cream yang besar dan berat itu, mereka tetap mainkan kecepatan tangannya, lho!

Filipina dengan Cheese Ice Creamnya

Nach, untuk kamu fans es cream sekalian pencinta rasa keju, kamu harus melipir ke Filipina nih untuk coba Cheese Ice Creamnya yang super populer.

Spaghetti ice cream

Jerman punyai langkah lain untuk nikmati es cream yakni dibuat jadi spaghetti. Umumnya, topping yang disodorin selai strawberry dengan es cream rasa vanilla, menjadi penampilannya betul-betul serupa spaghetti betulan.

The post Negara yang Wajib Dikunjungi Karena Es Krim Terbaik appeared first on Aldri Blog.

The creation of Lex & Forum has coincided with a groundbreaking legal and political development within the European family: the secession of the United Kingdom from the European Union after about 50 years of membership. The disruption of the judicial cooperation in civil and commercial matters between the EU and the UK has caused a pressing need for the immediate scrutiny of the uncharted procedural environment, triggered by a hard Brexit in the field of civil litigation. For this reason, the first issue of Lex & Forum was devoted to the implications of Brexit in the area of judicial cooperation in civil and commercial matters.

Nonetheless, Brexit has not been the sole milestone which coincided with the creation of Lex & Forum.

On 1 January 1981 Greece became a member of the European Community. The launch of Lex & Forum witnessed the anniversary of 40 years since the accession of Greece in the EU and the application of EU Law in the country.

The second issue of Lex&Forum is dedicated to the 40th anniversary of the application of EU Law in Greece and its influence on Greek civil procedural law. The tone is set already on the preface, authored by one of the founders of International Procedural Law in Greece, Pelagia Yessiou-Faltsi. The anniversary is further elaborated with specific contributions revolving around two main axes: (i) the influence of existing EU Civil Procedural Law on native civil procedural rules; (ii) new developments in EU Civil Procedural Law.

In detail: the contributions of the first axis open with the analysis by P. Arvanitakis on the influence of “lex europensis” on lex fori and the old forum regit processum axiom, followed by an examination of the role of the national judge in the adoption of cross border interim measures, conducted by A. Alapantas, and an investigation into the importance of the case law of the CJEU on the interpretation of EU and national civil procedural rules by I. Valmantonis, and an analysis of the functioning of the European Judicial Network (EJN) by V. Sarigiannidis.

The contributions of the second axis begin with a presentation of the provisions of Regulation 2019/1111 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction by I. Delicostopoulos, followed by the analysis of Regulation 2020/1783 on the taking of evidence by L. Pipsou, and Regulation 2020/1784 on the service of documents by A. Anthimos. This part is concluded with a reflection on the future of common EU civil procedural acquis and its future by D. Titsias. The contributions aforementioned were presented during a digital conference on 26 May  2021.

The special focus of the issue is concluded with insights from law professionals (such as bailiffs) on the application of the upcoming EU civil procedural regulations.

The following section deals with case law. The crucial decision of the CJEU in Braathens (case C-30/19), a case where the Court examines the problem of the supremacy and effet utile of EU Law over national civil procedural provisions, is given priority. The CJEU declared that national courts shall go as far as to disapply a national procedural provision that precludes them from giving full effect to the fundamental right to a remedy under art. 47 of the EU Charter of Fundamental Rights, especially in cases where, in terms of the law of substance, an alleged discrimination has taken place.

Furthermore, the issue hosts an equally interesting decision of the British High Court [2021] EWHC 178 (QB) on the interplay between the rules on lis pendens and the protective jurisdictional rules for the insured. In this case, Master Davison has reluctantly accepted that lis pendens rules of the Brussels Ia Regulation bar him from giving priority to the action of the insured person, as he is obliged to respect the lis pendens created by a negative declaratory action brought by the insurer in his native forum. I. Revolidis opens an interesting dialogue with the approach of Master Davison, wondering whether indeed the lis pendens rules can and/or shall undermine the protective jurisdictional regimes of the Brussels Ia Regulation.

With respect to domestic case law, reference needs to be made to the decision of the Lamia Court of First Instance no. 12/2021, which deals with joined actions, where the different joined claims fall within different EU Regulations or different chapters of the same Regulation, regulated in both cases by different and contradicting rules of international jurisdiction.

In the section of special issues, Lex&Forum hosts a practically important contribution by G. Anagnostopoulos on international jurisdiction in cases of judicial applications for the rejection of inheritance disposed by a person domiciled in Greece to the benefit of an underaged person domiciled in a foreign country.

Finally, this issue marks the creation of a new column (“L&F Praxis”), which will present the basic problems that occur from the practical application of EU civil procedural rules. In this issue, the column explores practical issues referring to the application of the European Certificate of Succession. The problems have been identified and systematically classified by A. Vathrakokoilis, who has also prepared a Greek case law digest on issues, such as the issuing a European Certificate of Succession when a will (domestic or foreign) has nonetheless been drawn up, or when statutory succession takes place.

The Council Conclusions on the Protection of Vulnerable Adults across the European Union have been published this week at the OJEU (C 330I, 17.8.2021, p. 1).

Extract : « The Council invites the Commission to:

On civil law matters

— assess possible actions to encourage further Member States to ratify the 2000 Hague Convention as swiftly as possible;

— conduct a thorough study aimed at carefully reflecting on and assessing how the European Union could further strengthen the protection of vulnerable adults in cross-border situations;

— consider the possible need for a legal framework within the European Union to facilitate the free circulation of judicial and extrajudicial decisions on the protection of vulnerable adults in civil matters, which might also include powers of representation, and advance directives on medical treatment;

— present to the European Parliament, the Council and the European Economic and Social Committee a report on the results of the study, accompanied, if necessary, by legislative proposals ».

It is likely that the issue will become more and more pressing as time passes since no European country reaches the demographic survival rate (renewal of population : 2.1).

Witten by Orji A Uka (Senior Associate at ALP NG & Co) and Damilola Alabi (Associate at ALP NG & Co)

Introduction

The issuance and service of an originating process are fundamental issues that afford or rob a court of jurisdiction to adjudicate over a matter. This is because it is settled law that the proceedings and judgment of a court which lacks jurisdiction result in a nullity[1]. Yet, despite the necessity of ensuring that the issuance and service of an originating process comply with the various State High Court Civil Procedure Rules or Federal High Court Civil Procedure Rules (“the relevant court rules”) or the Sheriffs and Civil Process Act, legal practitioners and sometimes judges commonly conflate the issuance and service of court process on defendants outside jurisdiction with the concept of service of court process by substituted means on defendants within the jurisdiction[2]. This paper set outs the differences between both commonly confused principles with the aim of providing clarity to its readers and contributing to the body of knowledge on this fundamental aspect of the Nigerian adjectival law.

 

Territorial Jurisdiction of Courts in Nigeria

Historically, Nigerian courts have always exercised jurisdiction over a defined subject matter within a clearly specified territory as provided for under the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the “Constitution”). As an illustrative example, a High Court of a State in Nigeria or that of the Federal Capital Territory, Abuja has jurisdiction over the subject matter of a simple contract. However, the jurisdiction of each High Court is, as a general rule, confined to persons within the territorial boundaries of the State or the Federal Capital Territory, as the case may be. As highlighted below, there are three established bases under which a High Court in Nigeria can validly exercise jurisdiction in an action in personam.[3]

Firstly, a court in Nigeria is donated with jurisdiction in an action in personam where the defendant is present or resides or carries on business within the territorial jurisdiction of the court and the defendant has been served with the originating process.[4]In the oft-cited case of British Bata Shoe Co. Ltd v. Melikan[5], the Federal Supreme Court held that the High Court of Lagos State, rightly exercised its jurisdiction in an action in personam for specific performance of a contract because the defendant resided in Lagos State even though the land in respect of which the subject matter of the dispute arose, was situated at Aba, outside the territorial jurisdiction of the court.

Thus, jurisdiction can be invoked either by residence[6] or simply by presence within jurisdiction.[7] Upon a finding that the defendant is present or resident within the jurisdiction of the court, and the originating process has been duly served on the defendant within jurisdiction, the court automatically assumes jurisdiction over such defendant, subject to the provisions of the Constitution or statutes that confer exclusive jurisdiction on other courts e.g. the Federal High Court or the National Industrial Court in respect of such subject matter.

Secondly, a court can validly exercise jurisdiction over a defendant in an action in personam where such defendant submits to the court’s jurisdiction or waives his right to raise a jurisdictional challenge. Submission may be express, where the defendant signed a jurisdiction agreement or forum selection clause agreeing to submit all disputes to the courts of a particular legal system for adjudication either or an exclusive or non-exclusive basis. Submission may also be implied where the defendant is served with a court process issued by a court other than where he resides or carries on business and the defendant enters an unconditional appearance and/or defends the case on the merit.[8]

A third basis for the valid exercise of the jurisdiction of a High Court in Nigeria is where the court grants leave for the issuance and service of the originating process on a defendant outside the court’s territorial boundaries. As noted above, historically, Nigerian courts could only validly exercise jurisdiction over a defined subject matter within its specified territory. With time, the powers of the court have now extended to the exercise of judicial power over a foreigner who owes no allegiance to the court’s territorial jurisdiction or who is resident or domiciled out of its jurisdiction but is called to appear before the court in the jurisdiction[9]. It is important to note that as an attribute of the concept of sovereignty, the exercise of jurisdiction by a court of one State over persons in another State is prima facie an infringement of the sovereignty of the other State. In Nwabueze v. Okoye,[10] the Supreme Court highlighted the fundamental rule of Nigerian conflict of laws on exercise of jurisdiction over a foreign defendant by stating as follows:

“Generally, courts exercise jurisdiction only over persons who are within the territorial limits of their jurisdiction … It should be noted that except where there is submission to the jurisdiction of the court it has no jurisdiction over a person who has not been served with the writ of summons. The court has no power to order service out of the area of its jurisdiction except where so authorised by statute or other rule having force of statute.”[11]

 

Thus, a court may only stretch its jurisdictional arm outside its territory in certain limited circumstances.[12]Where such circumstances apply, the claimant is not entitled as of right to have the originating process issued by the court for service on a defendant who is resident or present outside the jurisdiction and must seek and obtain leave to this effect.[13]

 

The Issuance and Service of Originating Process Outside Jurisdiction

The power of courts to exercise jurisdiction beyond their territorial boundaries has been variously described as “long-arm jurisdiction”, “assumed jurisdiction” or even “exorbitant jurisdiction”. However, the power is only activated using the instrumentality of the grant of leave for the issuance and service of such originating process outside jurisdiction. While applying for leave, the claimant must convince the court that there exists a special reason for it to exercise its long arm to reach a defendant outside its jurisdiction. The special reasons which must be established by a claimant are contained in the relevant rules of courts.[14] Where none of the conditions outlined in the Rules are met, the courts must refuse the application for leave. This is because – in the language commonly employed in private international law -there would be no real and substantial connection between the cause of action and the jurisdiction of Nigeria and therefore no special reason to justify the exercise of the court’s long arm jurisdiction. Further, even where it is established that the claimant’s case falls within one or more of those jurisdictional pathways contained in the Rules, the claimant is nevertheless not entitled as of right to be granted leave and the courts are not automatically bound to grant leave as a matter of course. The claimant must still demonstrate to the court that it is the forum conveniens to hear and determine the claim.[15] Unfortunately, in practice, apart from a few instances, which are exceptions rather than the general rule, Nigerian courts hardly give this serious consideration during the ex-parte hearing stage for the application for leave.

The failure of a claimant to seek leave to issue and serve an originating process on a defendant outside jurisdiction, is not a rule of mere technicality. As the learned authors of “Private International Law in Nigeria” brilliantly summarised,[16] there are at least three reasons for this conclusion. First, courts are wary of putting a defendant who is outside jurisdiction through the trouble and expense of answering a claim that can be more conveniently tried elsewhere. Two, a court has to satisfy itself before granting leave that the proceedings are not frivolous, vexatious, or oppressive to the defendant who is ordinarily resident outside jurisdiction. Three, Nigerian courts, on grounds of comity, are wary of exercising jurisdiction over a foreign defendant who is ordinarily subject to the judicial powers of a sovereign foreign state. These also explain why the grant of leave is a judicial act – that can only be done by a Judge in chambers or the court; but not by the Deputy Chief Registrar or other court official, even if such leave is subsequently ratified or endorsed by the court. Thus, there is a long line of authorities by appellate courts in Nigeria (including the Supreme Court)to the effect that where leave was not obtained before the Writ of summons was issued and served, such writ is void and must be aside.[17]

 

Substituted Service

Substituted service on the other hand is resorted to when personal service of an originating process on a defendant within jurisdiction is not possible due to reasons such as evasion of service by the defendant or the inability to locate the defendant. A claimant seeking to serve a defendant within jurisdiction by substituted means must seek and obtain an order of court to serve the defendant by a specific means as stated in the relevant court rules. For example, Order 9 Rule 5 of the Lagos State High Court Civil Procedure Rules provides that upon an application by a claimant, a judge may grant an order for substituted service as it may seem just. Some of the popular modes of effecting substituted service include by pasting the originating process at the last known address of the defendant, by newspaper publication, or especially more recently, by sending same to the defendant by email. Since the defendant is otherwise within the court’s territorial reach, and the court has jurisdiction over him, there is no need to comply with real and substantial connection test set out in Order 10 Rule 1 of the Lagos State High Court Civil Procedure Rules.

 

Leave to Issue and Serve Versus Substituted Service

As simple as these concepts are, legal practitioners repeatedly confuse an application for leave for the issuance and service of originating process outside Nigeria with an application for substituted service within Nigeria.

In Kida v. Ogunmola[18]the appellant commenced an action for specific performance against five defendants. The court bailiff however was not able to serve the respondent, who was resident outside the jurisdiction of Borno State. It was known to the appellant that the 2ndrespondent was resident in Ibadan. The appellant then applied for leave to serve the originating process on the 2ndrespondent out of jurisdiction. Curiously, the appellant also applied for leave to serve the originating process on the 2nd, 3rd& 4threspondentsby substituted means by pasting same at their last known address in Maiduguri, Borno State and the court granted same. When the respondent failed to file a defence, the High Court entered default judgment against him. When the appellant initiated enforcement proceedings against the respondent, the respondent brought an application to set aside the judgment on grounds that leave of court was not obtained to issue the originating process outside jurisdiction. The High Court refused the application but upon an appeal to the Court of Appeal, the appellate court overturned the trial court’s decision.  The Appellant ultimately appealed to the Supreme Court which upheld the decision of the Court of Appeal.

The Supreme Court reasoned that the respondent was outside the jurisdiction of the court at the material time and could not be served by substituted means, and that substituted service can only be employed in situations where a defendant is within jurisdiction but cannot be served personally. The Supreme Court further held per Musdapher JSC (as he then was), at page 411 as follows:

“For a defendant to be legally bound to respond to the order for him to appear in Court to answer a claim of the plaintiff, he must be resident within jurisdiction, see National Bank (Nig.) Ltd. v. John Akinkunmi Shoyoye and Anor. (1977) 5 SC 181. Substituted service can only be employed when for any reason, a defendant cannot be served personally with the processes within the jurisdiction of the Court for example when the defendant cannot be traced or when it is known that the defendant is evading service. Also, where at the time of the issuance of the writ, personal service could not in law be effected on a defendant, who is outside the jurisdiction of the Court, substituted service should not be ordered, see Fry vs. Moore (1889) 23 QBD 395. If the defendant is outside the jurisdiction of the Court at the time of the issue of the writ and consequently could not have been personally served in law, not being amenable to that writ, an order for substituted service cannot be made, see Wilding vs. Bean (1981) 2 QB 100.”

In the same vein the Court of Appeal stated as follows in Abacha v. Kurastic Nigeria Ltd[19]

“Courts exercise jurisdiction over persons who are within its territorial jurisdiction: Nwabueze vs. Obi-Okoye (1988) 10-11 SCNJ 60 at 73; Onyema vs. Oputa (1987) 18 NSCC (Pt. 2) 900; Ndaeyo vs. Ogunnaya (1977) 1 SC 11. Since the respondent was fully aware that before the issuance of the writ the appellant’s abode or residence for the past one year was no longer at No.189, Off R.B. Dikko Road, Asokoro, Abuja within jurisdiction, substituted service of the processes should not have been ordered by the learned trial Judge.”

The above cases emphasise that a writ issued in the ordinary form cannot be served by substituted means on a defendant who is not present or resident in the jurisdiction of the court, except the leave of court was sought and obtained in accordance with the relevant rules of court. As Okoli and Oppong lucidly put it, where a writ cannot be served on a person directly, it cannot be served indirectly by means of substituted service.[20]

One area of law where parties commonly make the mistake of conflating an application for leave to issue and serve out of jurisdiction with an application for substituted service is in maritime claims. This, in our experience, stems from a historically commonplace mischaracterisation of actions as actions in rem instead of actions in personam.[21] In Agip (Nig) Ltd v Agip Petroli International[22]the Supreme Court held where an action is not solely an action in rem but also an action in personam, the plaintiff is bound to comply with the procedural rules, such as obtaining leave of the court.

Further, there is a common practice – particularly in cases with multiple defendants, with one defendant residing within jurisdiction and another outside jurisdiction – where parties apply to the courts to serve the originating process on the party outside jurisdiction through substituted service on the party within jurisdiction. It is pertinent to state that the above practice does not cure the defect and that the only circumstance where it is acceptable is where the party within jurisdiction is the agent of the party outside jurisdiction, and that is not the end of the story. The position of the law is that where a foreign company carries on business through an agent or servant company resident within a court’s jurisdiction, the principal company is deemed to also be carrying on business within the same jurisdiction.[23] However, the courts have also held that where the agent company has no hand in the management of the company and receives only the customary agent’s commission, the agent’s place of business in Nigeria is not the company’s place of business. Thus, the company has no established place of business in Nigeria and is not resident in Nigeria,[24] therefore leave of court is still required for the issuance and service of the writ.

 

Conclusion

The power vested in an appellate court to set aside a judgment of a lower court on the grounds of improper issuance or service of the originating process which is for service out of jurisdiction is symbolic of the imperativeness for claimants and their legal practitioners to ensure that the issuance and service of the originating process are done in conformity with the law and relevant court rules. It is respectfully submitted that the confusion between the service of an originating process outside the jurisdiction of a court and the service of an originating process by substituted means is unnecessary. The principles are clear and distinct and should not be mixed up.

[1]See. Boko v. Nungwa (2019) 1 NWLR (Pt. 1654) 395. In CRUTECH v. Obeten (2011) 15 NWLR (Pt. 1271) 588 the Court of Appeal reemphasised the importance of jurisdiction when it stated that “the lack of jurisdiction is detrimental, disastrous, devastating and without leverage for salvaging the situation, regardless of desirability of such a course of action.”

[2] See Nwabueze v. Okoye (1988) 4 NWLR (Pt. 91) 644; Bimonure v. Erinosho (1966) 1 All NLR 250; Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535; and Khatoun v. Hans Mehr (Nigeria) and Anor. (1961) NRNLR 27.

[3] According to the 10th Edition of the Black Law Dictionary, an action is said to be in personam when its object is to determine the rights and obligation of the parties in the subject matter of the action, however, the action may arise, and the effect of the judgment may bind the other. A common example is a breach of contract claim.

[4]Ogunsola v. All Nigeria People’s Party (2003) 9 NWLR (Pt. 826) 462.

[5]British Bata Shoe Co. Ltd v Melikan (1956) 1 FSC 100.

[6]United Bank of Africa v. Odimayo (2005) 2 NWLR (Pt. 909) 21.

[7]Ayinule v. Abimbola (1957) LLR 41.

[8]See Barzani v Visinoni (1973) NCLR 383; Ezomo v Oyakhire (1985) 1 NWLR (Pt. 2) 195;Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt. 107) 250.

[9]Caribbean Trading & Fidelity v. Nigerian National Petroleum Corporation (2002) LPELR- 831 (SC).

[10](1988) 4 NWLR (Pt 91) 664.

[11]See also United Bank for Africa Plc v Odimayo (2005) 2 NWLR (Pt. 909) 21, 40

[12] Bamodu, G. (1995) ‘Jurisdiction and Applicable Law in Transnational Dispute Resolution before the Nigerian Courts’ 29 Int’l L 555 available at https://scholar.smu.edu/til/vol29/iss3/6.

[13] Broad Bank of Nigeria v. Olayiwola (2005) LPELR-806 (SC).

[14]For instance, Order 10 Rule 1 of the Lagos State High Court Civil Procedure Rules 2019 provides that a judge may allow its originating process to be served on a defendant outside Nigeria where, inter alia, the whole subject matter of the dispute is land which located within jurisdiction; the claim is for the administration of the personal estate of any deceased person who was domiciled within jurisdiction at the time of his death; the action is brought in respect of a contract that is made within the jurisdiction, made by an agent residing or carrying on business within jurisdiction, or governed by Lagos State laws; the claim is in respect of a contract breached within jurisdiction regardless of where it was executed; the claim is founded on a tort committed within the jurisdiction; etc.

[15]While it is beyond the purview of this paper to undertake a comprehensive exposition on the concept of forum conveniens, it is pertinent for the present purposes to note that another commonly mistaken belief among lawyers is to equate the rule of forum non conveniens with the convenience of the parties or their legal practitioners. The word, conveniens is a Latin word for convenient or appropriate. The rule simply means that that there is another forum in which the case may most suitably be tried in the interests of all the parties and the ends of justice.

[16]Okoli, C. S. A. and Oppong, R. (2020) Private International Law in Nigeria Hart Publishers p. 75.

[17] An illustrative example is the case of Owners of the MV Arabella v. Nigeria Agricultural Insurance Corporation (2008) LPELR- 2848 (SC).Some later authorities have however held that such writ is not void but voidable and is capable of being waived by the defendant if not timeously raised. Whether a writ which is issued without leave is void or voidable is not within the purview of this paper. Either way, such writ is capable of being set aside.

[18]Mohammed Kida v. A. D. Ogunmola (2006) All FWLR (Pt. 327) 402.

[19](2014) LPELR-22703(CA).

[20]Okoli, C. S. A. and Oppong, R. (2020) Private International Law in Nigeria Hart Publishers p. 59.

[21]For a detailed treatment of the distinction between actions in rem and actions in personam please see Okoli, C. S. A. and Oppong, R. n. (16) above.

[22](2010) 5 NWLR (Pt. 1187) 348, 416.

[23]Spiropoulos and Co Ltd v. Nigerian Rubber Co Ltd (1970) NCLR 94; Eimskip Ltd v. Exquisite Industries (Nig) Ltd (2003) 14 WRN 77.

[24]See In re Gresham Life Assurance Society (Nig) Ltd (1973) (1) ALR Comm 215, (1973) 1 All NLR (Pt. I) 617, (1973) NCLR 215.