Agrégateur de flux

The first issue of 2021 of the Netherlands Journal of Private International Law (Nederlands Internationaal Privaatrecht – NIPR) has been published. More information about the review is available here.

The following articles are included in the issue:

R. Vriesendorp, W. van Kesteren, E. Vilarin-Seivane and Sebastian Hinse on Automatic recognition of the Dutch undisclosed WHOA procedure in the European Union

On 1 January 2021, the Act on Court Confirmation of Extrajudicial Restructuring Plans (‘WHOA’) was introduced into the Dutch legal framework. It allows for extrajudicial debt restructuring outside of insolvency proceedings, a novelty in the Netherlands. If certain requirements – mostly relating to due process and voting – are met, court confirmation of the restructuring plan can be requested. A court-confirmed restructuring plan is binding on all creditors and shareholders whose claims are part of that plan, regardless of their approval of the plan. WHOA is available in two distinct versions: one public and the other undisclosed. This article assesses on what basis a Dutch court may assume jurisdiction and if there is a basis for automatic recognition within the EU of a court order handed down in either a public or an undisclosed WHOA procedure.

T. Arons, Vaststelling van de internationale bevoegdheid en het toepasselijk recht in collectieve geschilbeslechting. In het bijzonder de ipr-aspecten van de Richtlijn representatieve vorderingen (in English, Determination of international jurisdiction and applicable law in collective dispute resolution. In particular, the PIL aspects of the Representative Actions Directive)

The application of international jurisdiction and applicable law rules in collective proceedings are topics of debate in legal literature and in case law. Collective proceedings distinguish in form between multiple individual claims brought in a single procedure and a collective claim instigated by a representative entity for the benefit of individual claimants. The ‘normal’ rules of private international law regarding jurisdiction (Brussel Ibis Regulation) and the applicable law (Rome I and Rome II Regulations) apply in collective proceedings. The recently adopted injunctions directive (2020/1828) does not affect this application. Nonetheless, the particularities of collective proceedings require an application that differs from its application in individual two-party adversarial proceedings. This article focuses on collective redress proceedings in which an entity seeks to enforce the rights to compensation of a group of individual claimants. Collective proceedings have different models. In the assignment model the individual rights of the damaged parties are transferred to a single entity. Courts have to establish its jurisdiction and the applicable law in regard of each assigned right individually. In the case of a collective claim brought by an entity (under Dutch law, claims based on Art. 3:305a BW) the courts cannot judge on the legal relationships of the individual parties whose rights are affected towards the defendant. The legal questions common to the group are central. This requires jurisdiction and the applicable law to be judged at an abstract level.

C. Bright, M.C. Marullo and F. J. Zamora Cabot, Private international law aspects of the Second Revised Draft of the legally binding instrument on business and human rights

Claimants filing civil claims on the basis of alleged business-related human rights harms are often unable to access justice and remedy in a prompt, adequate and effective way, in accordance with the rule of law. In their current form, private international law rules on jurisdiction and applicable law often constitute significant barriers which prevent access to effective remedy in concrete cases. Against this backdrop, the Second Revised Draft of the legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises has adopted a number of provisions on private international law issues which seek to take into account the specificities of such claims and the need to redress the frequent imbalances of power between the parties. This article analyses the provisions on jurisdiction and applicable law and evaluate their potential to ensure effective access to remedy for the claimants.

B. Van Houtert, Jurisdiction in cross-border copyright infringement cases. Rethinking the approach of the Court of Justice of the European Union (dissertation, Maastricht University, 2020): A summary

The starting point of this research are the three rulings in the Pinckney, Hi Hotel, and Pez Hejduk in which the CJEU particularly focused on the interpretation of ‘the place where the damage occurred or may occur’ – the Erfolgsort – for determining jurisdiction according to Article 7(2) Brussels Ibis. The Court developed three criteria for jurisdiction in cross-border copyright infringements cases: (1) the state of the court seised should protect the copyright relied on, the so-called locus protectionis criterion, (2) the ‘likelihood of damage’ criterion which means that it should be likely that the damage may occur in the state where the court is located, and (3) court’s jurisdiction will be territorially limited to assess the damage caused within the forum state. The dissertation proceeds to demonstrate the need to rethink the CJEU’s approach to jurisdiction in cross-border copyright infringement cases. Based on common methods of interpretation, the author examines the leeway that the CJEU has regarding the interpretation of Article 7(2) Brussels Ibis in cross-border copyright infringement cases. She also examines alternative approaches to jurisdiction in cross-border copyright infringement cases adopted by scholars and courts of EU Member States and states of the United States of America distilling three main approaches: the ‘copyright holder’s centre of interests’ approach; the ‘substantial damage’ approach; and the ‘directed activities’ approach. The last part of the dissertation suggests that a combined approach to jurisdiction can be adopted in the recast of the Brussels Ibis Regulation or a future EU Copyright Regulation. Van Houtert considers that the proposals can also be adopted at the international level as they satisfy common principles of private international law and copyright law. Additionally, several global issues are considered in the analysis carried out such as copyright havens, online piracy, the cross-border flow of information, international trade, and the trend of competing jurisdictional claims.

N. Touw, The Netherlands: a forum conveniens for collective redress? (Conference Report)

On the 5th of February 2021, the seminar ‘The Netherlands: a Forum Conveniens for Collective Redress?’ took place. The starting point of the seminar is a trend in which mass claims are finding their way into the Dutch judicial system. To what extent is the (changing) Dutch legal framework, i.e. the applicable European instruments on private international law and the adoption of the new Dutch law on collective redress, sufficiently equipped to handle these cases? And also, to what extent will the Dutch position change in light of international and European developments, i.e. the adoption of the European directive on collective redress for consumer matters, and Brexit? In the discussions that took place during the seminar, a consensus became apparent that the Netherlands will most likely remain a ‘soft power’ in collective redress, but that the developments do raise some thorny issues. Conclusive answers as to how the current situation will evolve are hard to provide, but a common ground to which the discussions seemed to return does shed light on the relevant considerations. When legal and policy decisions need to be made, only in the case of a fair balance, and a structural assessment thereof, between the prevention of abuse and sufficient access to justice, can the Netherlands indeed be a forum conveniens for collective redress.

The Court of Justice delivered last Thursday (17 June) its judgment in case C-800/19 (Mittelbayerischer Verlag KG v SM), which is about Brussels I bis. The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 7, point 2, du règlement (UE) no 1215/2012 […] doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu ».

Source: https://curia.europa.eu/juris/document/document.jsf?text=&docid=243103&pageIndex=0&doclang=FR&mode=lst&dir=&occ=first&part=1&cid=1427608

At issue in  Khalifeh v Blom Bank S.A.L. [2021] EWHC 1502 (QB) is inter alia whether an anti-suit injunction is available to  a claimant who purports to have the protection of Section 4 of the Brussels Ia Regulation. That is the section which protects consumers by granting them a forum actoris and by limiting suits against them to, in principle (limited extensions are possible) their place of domicile. The contract is one in the banking sector, for the opening of 2 USD accounts. Defendant is a Lebanon-incorporated bank. The proceedings which are to be restrained, take place in Lebanon. Current order concerns anti-suit only. Other issues, including applicable law per Rome I (where of course the consumer title also plays a role) are not addressed.

The case is part of my essay questions in a conflicts exam at Leuven today. I would expect students to refer to the discussions in Gray v Hurley and to any reasons for EU courts to exercise, or not, judicial muscle-power in upholding the jurisdiction of courts in the EU as against that of courts outside it.

Claimants calls in support upon Samengo-Turner v J & H Marsh [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828. In those cases, concerning employees, anti-suit was employed viz employers’ potential action outside the EU. Defendant doubts the authority of both (and in particular of Samengo-Turner, a first instance judgment). It refers to both scholarly criticism of the position, and to the Court of Appeal’s recent finding in Gray v Hurley, referred to the CJEU but unfortunately (for reasons of legal certainty) since dropped.

At [38] Freedman J holds he need not make a ‘binary’ decision at this stage, and refuses the application for anti-suit, leaving the discussion for full debate at trial. Part of his reason for doing so is defendant’s commitment not to take the case in Lebanon any further at this stage (no commitment has been made of it to be dropped). At that trial, the ATI debate may continue (this, one imagines, will depend on defendant’s actions in Lebanon), as of course will the applicability of Rome I’s protected categories of consumers.

A trial to look out for.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.24.

Khalifeh v Blom Bank [2021] EWHC 1502 (QB)
Echoes of Gray v Hurley
Whether anti-suit injunction may be issued, targeting Lebanese proceedings, to protect rights as a consumer under Brussels Ia
Analysis forthcoming on the bloghttps://t.co/9fX1ecn2SZ

— Geert Van Calster (@GAVClaw) June 14, 2021

On 14 June 2021, the Research Service of the European Parliament released a briefing paper related to the proposal for a regulation on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system), authored by Rafał Mańko (EP Research Service).

The abstract reads:

The e-CODEX system is the digital backbone of EU judicial cooperation in civil and criminal matters. e-CODEX comprises a package of software products that allow the setting up of a network of access points for secure digital communication between courts and between citizens and the courts, while also enabling the secure exchange of judicial documents.

The project, which was launched in 2010 with EU grant funding, is managed by a consortium of Member States and other organisations and is coordinated by the Ministry of Justice of the German Land of North Rhine-Westphalia. Even though it is currently used by 21 Member States, e-CODEX lacks a clear, uniform and EU-wide legal basis. To remedy this situation, on 2 December 2020 the Commission put forward a proposal for an e-CODEX legal instrument (a regulation) to formally establish the e-CODEX system at EU level. The management of the project would be entrusted to eu-LISA (the EU Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice).

Within the European Parliament, the LIBE and JURI committees are jointly in charge of the file, and the draft report is expected shortly.

The Briefing can be freely downloaded here.

Thanks to Jorg Sladic for the tip-off.

I reviewed the AG’s Opinion in C-800/19 Mittelbayerischer Verlag KG v SM here. The CJEU held yesterday (no English version yet at the time of posting). Tobias Lutzi already has analysis up here.

As I reported at the time, the AG suggested that despite the need for restrictive interpretation of the special jurisdictional rules, in the case at issue there was foreseeability of many a Pole’s centre of interests as a tort gateway, given the predictable fall-out of protest among Poles given the contents and context of the article (please refer to earlier post for detail): an ‘objective foreseeability test’.

The CJEU however restricts the availability of the centre of interests gateway further:  [46]

article 7, point 2, du règlement no 1215/2012 doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu.

The aggrieved needs to be identifiable, at the time of publication, as an individual, not as belonging to an abstract group of offended persons.

With Gtflix TV pending, the CJEU will have a further opportunity to clarify the A7(2) gateway for defamation.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5, and para 2.598 in fine.

Judgment just out in Mittelbayerischer Verlag: jurisdiction in online defamation cases
For my review of AG Opinion see https://t.co/2d2Fjp70KT
Court takes a strict line of foreseeability, insists on nominatim or in abstracto identification of the victimhttps://t.co/EqSmpCeVol

— Geert Van Calster (@GAVClaw) June 17, 2021

AG Bobek delivered today his opinion in case C‑55/20 (Ministerstwo Sprawiedliwości joined parties: Pierwszy Zastępca Prokuratora Generalnego, Prokurator Krajowy, Rzecznik Dyscyplinarny Izby Adwokackiej w Warszawie), which is about the Rule of Law in Poland.

Context: “  In July 2017, the Prokurator Krajowy – Pierwszy Zastępca Prokuratora Generalnego […] (‘the National Prosecutor’) requested the Rzecznik Dyscyplinarny Izby Adwokackiej w Warszawie (Disciplinary Agent of the Bar Association in Warsaw, Poland) […] to initiate disciplinary proceedings against the lawyer of the former President of the European Council, Donald Tusk. In the view of the National Prosecutor, the statements made by that lawyer when publicly commenting on the possibility of his client being charged with a criminal offence amounted to unlawful threats and disciplinary misconduct. Twice, the Disciplinary Agent either refused to initiate such proceedings or decided to discontinue them. Twice, the Sąd Dyscyplinarny Izby Adwokackiej w Warszawie (Disciplinary Court of the Bar Association in Warsaw, Poland) […], following an appeal lodged by the National Prosecutor or the Minister of Justice, overturned those decisions and remitted the case back to the Disciplinary Agent.

2. The present request for a preliminary ruling has been made in a third ‘round’ of those proceedings, within which the Disciplinary Court is examining the decision of the Disciplinary Agent to discontinue once more the disciplinary inquiry against that lawyer, following an appeal lodged again by the National Prosecutor and the Minister of Justice. The referring court seeks to know whether Directive 2006/123/EC (‘the Services Directive’) (2) and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) are applicable to disciplinary proceedings pending before it. However, it appears that the crux of the matter before the referring court lies elsewhere: what concrete consequences, in procedural terms, is the referring court to draw from the Court’s judgment in A. K. and Others, (3) in view of the fact that its ruling might be subsequently appealed before the Izba Dyscyplinarna Sądu Najwyższego (Disciplinary Chamber of the Supreme Court, Poland)? How can that court, in specific and practical terms, ensure compliance with EU law?”

The suggested decision (Extract): “On the basis of the primacy of EU law:

–  A national court is required to set aside the provisions of national law which reserve jurisdiction to rule on cases to a court which is not an independent and impartial tribunal, so that those cases may be examined by a court which meets the requirements of independence and impartiality and which, were it not for those provisions, would have jurisdiction.

– A national court must, if necessary, disregard the rulings of a higher court if it considers that they are incompatible with EU law, including situations in which incompatibility derives from the lack of independence and impartiality of that higher court”.

Source: https://curia.europa.eu/juris/document/document.jsf?docid=243109&mode=req&pageIndex=1&dir=&occ=first&part=1&text=&doclang=EN&cid=14807561

Dès lors que la persistance de troubles mentaux était avérée, la CEDH valide le refus des autorités belges de remettre en liberté deux auteurs d’infractions, internés et atteints de symptômes persistants, après l’adoption d’une loi nouvelle réservant le prononcé de cette mesure à des infractions plus graves que celles pour lesquelles ils avaient été internés.

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