Agrégateur de flux

In a recent ruling (No 120 of 23 February 2021, unreported) the Court of Appeal of Piraeus was asked to determine whether, for the purposes of exequatur under Regulation No 44/2001 (Brussels I), a Maltese ship mortgage is considered an authentic instrument.

The issue had the following practical ramifications. A classification of the mortgage as an authentic instrument for the purposes of the Regulation would entail that immediate enforcement ought to be stayed by virtue of Article 37 as a result of the lodging of an appeal. Instead, if the ship mortgage were seen as falling outside the scope of the Regulation, domestic law would apply, which does not provide for an automatic stay of execution if the debtor challenges the enforceability of the foreign title.

A Greek bank granted in 2011 a loan of nearly 12 million Euros to a company seated in La Valetta (Malta). In oder to secure the bank’s claim, a mortgage was registered on a ship belonging to the debtor, registered in Malta. Due to delays in payment, the bank seised the Court of First Instance of Piraeus seeking a declaration of enforceability of the ship mortgage. It relied for this on Article 905 Greek Code of Civil Procedure.

The court granted the application. The company filed a third-party opposition, i.e. the remedy available under Greek law, arguing that the court had failed to apply the Brussels I Regulation. The move was successful. The bank appealed.

Article 57(1) of the Brussels I Regulation reads as follows:

A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Member State shall, in another Member State, be declared enforceable there, on application made in accordance with the procedures provided for in Articles 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the Member State addressed.

The Report by Jenard and Möller on the 1988 Lugano Convention  1988 (para. 72) posed the following conditions for the application of Article 50 of the Lugano Convention, which addresses the same issue as Article 57 of the Brussels I Regulation (formerly, Article 50 of the 1968 Brussels Convention):

The authenticity of the instrument should  have  been  established  by a public  authority; this  authenticity  should  relate to  the  content  of  the  instrument  and  not  only,  for  example,  the  signature; the  instrument  has to be enforceable  in  itself  in  the  State in  which  it originates.

In Unibank, the CJEU ruled as follows:

An acknowledgment of indebtedness enforceable under the law of the State of origin whose authenticity has not been established by a public authority or other authority empowered for that purpose by that State does not constitute an authentic instrument within the meaning of Article 50 of the [1968 Brussels Convention].

Maltese law regulates the matter under Chapter 234 of the Merchant Shipping Act. Article 38(1) provides that:

A registered ship or a share therein may be made a security for any debt or other obligation by means of an instrument creating the security (in this Act called a “mortgage”) executed by the mortgagor in favour of the mortgagee in the presence of, and attested by, a witness or witnesses.

Article 41(2) states that

A registered mortgage shall be deemed to be an executive title for the purposes of Article 253 of the Code of Organization and Civil procedure.

The latter provision, in turn, regards the following as enforceable titles:

… (b) contracts received before a notary public in Malta, or before any other public officer authorised to receive the same where the contract is in respect of a debt certain, liquidated and due, and not consisting in the performance of an act.

The company submitted a legal opinion signed by a foreign lawyer, according to which a ship mortgage is considered as a ‘public deed’, given that it was received in accordance with the law by a public functionary, entrusted to give full faith and credit to the document in question. In addition, the authenticity of the signature of the ship registrar had been certified by an apostille pursuant to the Hague Apostille Convention, which referred to the ship mortgage as a public deed.

The company referred also to the Scottish public register of deeds as an example of authentic instrument, in order to convince the court to consider the ship mortgage as an authentic instrument for the purposes of the Brussels I Regulation.

The Court of Appeal of Piraeus granted the bank’s appeal. Relying on Article 57 of the Brussels I Regulation, the Jenard-Möller Report and the judgment of the Court of Justice in Unibank, it noted that an authentic instrument is a document which has been formally drawn up or registered as such.

In addition, Che court emphasized on the lack of any involvement of the Register of Ships in regards to the content of the mortgage. Contrary to the first instance judgement, the court considered that the mere registration in the Valetta ship registry does not suffice. The act of the Register of Ships does not attribute the nature of an authentic instrument to a document drawn and signed by two private parties.

The Court made extensive reference to the opinion of the Advocate General La Pergola in the Unibank case, stating that the authenticity of the document’s content had not been examined by the registrar. In other words, the sole registration without any examination of the content, does not attribute to the ship mortgage the nature of an authentic instrument. It is just a formal procedure for the purposes of solemnity and publicity.

In addition, the Court of Appeal clarified that the reference of the registrar to the document as a public deed does not hinder the court to examine the ship mortgage from the Regulation’s point of view.

The core issue is whether the procedure followed for the registration of a Maltese ship mortgage entails any participation of a public authority, i.e. the decisive factor according to the Court of Justice in Unibank.

The Court of First Instance answered in the affirmative, whereas the Court of Appeal took the opposite view.

The judgment demonstrates the variety of legal documents balancing between the private and public divide. It serves as an additional example for the interpretation of Article 57 Brussels I Regulation and Article 58 Brussels I bis Regulation.

The Opinion of the European Economic and Social Committee on ‘Proposal for a Regulation of the European Parliament and of the Council on amending Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies’ (COM(2020) 642 final) (EESC 2020/04962) has been published last Friday at the OJEU (C 123, 9.4.2021, p. 66).

Extracts:

“Conclusions and recommendations

1.1 The EESC welcomes the Commission’s proposal (1) to strengthen the internal review mechanism contained in the Aarhus Regulation (2) and appreciates its potential.

1.2 The EESC supports the four priority actions identified in the Commission’s Communication, namely the Member States’ obligation to fully and correctly transpose access to justice requirements stemming from EU secondary law, the need for co-legislators to include provisions on access to justice in new and revised EU legislation concerning environmental matters, the review by Member States of their own national legislative and regulatory provisions that prevent or undermine access to justice, and the obligation of national courts to guarantee the right of individuals and NGOs to an effective remedy under EU law.

1.3 Nevertheless, the EESC points out to the Commission that its proposal contains loopholes which may be used by institutions to avoid being held accountable.

1.4 Thus for example the EESC does not endorse the Commission’s proposal to exclude EU acts entailing ‘national implementing measures’, because there is a real possibility that this exclusion could nullify or devalue the Commission proposal.

1.5 The EESC is also concerned that allowing civil society organisations (CSOs) to conduct a review only when the implementing measures have been adopted would insulate many, if not most, EU acts and omissions from internal review.

1.6 Despite the arguments set out by the Commission, the EESC notes that non-legally binding EU acts can have significant effects both on the implementation of EU legislation and on its interpretation by the Court of Justice of the European Union (CJEU).

1.7 The social partners are key players in environmental issues, and the EESC therefore urges that they be explicitly recognised as regards access to justice.

1.8 The EESC stresses that the new Regulation should permit internal review of Commission state aid decisions.

1.9 The EESC considers that protection of CSOs from extra burdens (like additional costs and bureaucratic measures) at both national and EU levels must be properly ensured in order to make judicial review accessible in practice”.

Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.C_.2021.123.01.0066.01.ENG&toc=OJ%3AC%3A2021%3A123%3ATOC

The last issue of the Revue critique de droit international privé has been released. It contains several case notes and four articles.

The first article, by Didier Boden (University of Paris 1 Pantheon Sorbonne), proposes new names and definitions in order to enrich private international law. Pursuant to the author: “Private international law and the other sets of rules of a legal order which touch upon its relations with other legal orders are poorly named and poorly defined”. The article “proposes to remedy that lexical impropriety and that semantic deficiency by presenting a new collection of names and a new collection of definitions”.

The Second article, authored by Frederick T. Davis (Columbia Law School) and Charlotte Gunka (Attorney-at-law, New York Bar), discusses the possibilities offered by the American CLOUD Act, with regard to criminal and digital sovereignty. The abstract reads as follows: “At a time when the Covid-19 crisis has raised awareness over the urgent need for European Member States to enhance their national sovereignty through the European Union, it is essential to go back to the possibilities offered by the U.S. CLOUD Act with regard to criminal and digital sovereignty. The CLOUD Act proposes a reform of current mutual legal assistance mechanisms by establishing access to digital evidence as the benchmark authorizing computer searches outside state borders, regardless of the location of the relevant data. Although this benchmark allows for more extensive extraterritorial application of U.S. criminal proceedings, an analysis of European regulations and legislation currently in force in France and the United Kingdom confirms that the European approach is not so different from the one introduced by the U.S. government. The emergence of the computer world and the acceleration of new technologies have created a “criminal digital space”, ephemeral and borderless, which requires a fundamental transformation of criminal procedures allowing for faster and more efficient international cooperation against transnational crime. This should give an opportunity to Europe, in particular through its new European Public Prosecutor’s Office, to assert its digital sovereignty through the individual fundamental rights that it continues to promote without undermining the security and strategic interests of its Member States”.

The third article, by Vincent Richard (Max Planck Institute Luxembourg) presents the new Regulation (EU) no 2020/1783 adopted on 25 November 2020, which recasts Regulation (EC) no 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.

The fourth article, by Thibaut Fleury Graff (University of Rennes) deals with the issues of the rights of foreigners and international migrations.

A full table of contents is available here.

On 8 April 2020, the UK formally applied to accede to the Lugano Convention. The one year period recommended for deciding on this application in Article 72(3) of the Convention has thus expired on 8 April 2021, causing harm for judicial cooperation.

However, things seem to start moving. According to a report in the Financial Times, the European Commission wants to give today (12 April 2021) a positive assessment of the British application, despite its earlier reluctance to grant the UK’s application. This change of mood seems to be the result of technical analysis carried out on the consequences of the British accession or non-accession. The article cites an unnamed EU diplomat who emphasises the Union’s awareness of the “practical benefits of having Britain in a co-operation pact that prevented legal disputes from being unnecessarily messy”.

This is a hopeful sign that judicial cooperation in civil and commercial matters may continue after Brexit. But let us not rush to quick conclusions. The final decision on the EU’s position lies with the European Parliament and Council under Articles 81(1), (2) and 218(5), (6)(a)(v) TFEU. It will be particularly interesting how Member States will vote in the Council.

This post was contributed by Bukhard Hess, who is a director of the Max Planck Institute Luxembourg.

Gilles Cuniberti has kindly invited me to comment on the decision of the Paris Tribunal Judiciaire from a German perspective – here are my reflections on this interesting case:

1. Under German law, a contract retaining an arbitrator is a private law contract for services related to arbitration. German law clearly separates the underlying contract with the arbitrator from the procedural functions (including obligations) of the arbitrator within the arbitration proceedings (most recently: Ruckdeschler & Stooß, Die vorzeitige Beendigung der Schiedsrichtertätigkeit, Festschrift Kronke (2020), p. 1517 – 1519). Therefore, the contract retaining an arbitrator falls in the scope of the arbitration exception set out at Article 1(2) of the Brussels Ibis Regulation only provided there is an express arbitration clause in the service contract with the arbitrator. Actions for damages against the arbitrator for the breach of the service contract (based on § 280 and 281 of the German Civil Code) are not ancillary proceedings within the meaning of Recital 12 para 4 of the Brussels Ibis Regulation. The arbitral tribunal does not have jurisdictional powers to decide contractual damage claims brought against an arbitrator. Such claims are, in fact, not related to the arbitration proceedings, the breach of the arbitrator’s duties merely amounting to an incidental issue. In this regard, I agree with the decision of the Tribunal Judiciaire de Paris.

2. Under German law, the service contract with the arbitrator usually establishes contractual relationships with both parties, cf. Schack, Internationales Zivilprozessrecht (8th ed. 2021), para 1461; Schlosser, Recht der Internationalen, privaten Schiedsgerichtsbarkeit (2nd ed. 1989), para 491. Specifically, § 675, 611 and 427 of the BGB apply to this contract (there is a debate whether the contract qualifies as a contract sui generis). The situation is not different when an arbitration organization is involved as the organization concludes the contract with the arbitrators on behalf of the parties (Stein/Jonas/Schlosser, Vor § 1025 ZPO (Commentary, 23rd ed. (2014), para. 17). As I have previously stated, German doctrine clearly distinguishes the contractual relationship between the parties and the arbitrator from the procedural functions (“Amt”) of the arbitrator. The latter is regulated by the lex arbitri and concerns the procedural role of the arbitrator. If the parties do not agree on specific (institutional) rules, § 1034 -1039 of the Code of Civil Procedure apply.

3. If one agrees that the Brussels I bis Regulation applies, the place of performance is to be determined according to its Article 7 no 1b, 2nd indent. When it comes to a contract for the services of an arbitrator, one might consider an agreed place of performance at the seat of the arbitral tribunal (when the parties agreed on the place where the arbitration proceedings take place). Otherwise, the seat of arbitration might be the place where the arbitrators render their services. As Article 7 no 1 places much emphasis on the factual place of performance, much depends on the factual situation – especially in an instance where the arbitral tribunal holds virtual hearings and deliberates online. In this case, one might consider localizing the place of performance at the law office of each individual arbitrator.

In the case at hand, the claim was based on an alleged violation of the duty to disclose a conflict of interests. The assessment of such a violation entailed investigations also regarding the activities of the arbitrator’s law firm, localized at the place of the law firm’s office. However, according to the case law of the ECJ, under Article 7 no 1 the place of the main provision of service – and not the place where the concrete contractual obligation was breached – is decisive for the purposes of establishing jurisdiction (C-19/09 Wood Floor Solutions, cf. Hess, Europäisches Zivilprozessrecht, 2nd ed. 2021, § 6, para 6.56). Consequently, I would agree with the Paris court that the place of performance was Germany.

4. Finally, I would like to address one additional aspect: Does the decision of the French court that located the place of performance in Germany bind the German courts? The ECJ addressed this issue in case C-456/11 (Gothaer Versicherungen, paras 36 et seq.). It held that a German court was bound by a decision of a Belgian court on the validity and the derogative effects of a jurisdiction clause designating the Dutch courts as the competent courts (see Hess, Europäisches Zivilprozessrecht, 2nd ed. 2021, § 6, paras 6.206 – 6.207). In the case at hand, the situation is different as the French court stated that the place of performance of the contract was located in Germany, not in France. However, one might consider that this statement of the Paris court is binding on the parties and might be recognized as binding under Article 36 of the Brussels I bis Regulation in the German proceedings. I am well aware that this effect transcends the current case law under the Brussels I bis Regulation. However, it would be a consequence of Gothaer Versicherungen to assume a binding force of the French judgment rejecting the lawsuit as inadmissible. This binding force would prevent a déni de justice by a German court. Yet, it remains to be seen whether such binding force is compatible with the case law of the ECJ according to which each court of the EU Member States has to assess ex officio whether it has jurisdiction under the Brussels I bis Regulation (C-185/07, Allianz).

La mesure de mise en liberté sous caution, assortie d’un couvre-feu imposé sur leur lieu de résidence et contrôlé de manière électronique, exécutée au Royaume-Uni est assimilée à une détention provisoire pour l’imputation intégrale de sa durée sur celle d’une peine privative de liberté.

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Please click here for a link to the registration page. The Facebook page of the events is available here. We have previously announced this event here.

Among the goals pursued by the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law is to promote research and academic exchange with foreign scholars.

In this framework, to assist particularly young scholars further advance their research activity, the Max Planck Institute Luxembourg offers a limited number of scholarships for foreign doctoral candidates to support their research stay at the Institute for up to six months in the calendar year 2022.

To be eligible for the scholarship, applicants must be doctoral candidates carrying out research activity within the Institute’s various areas of research, and intend to be affiliated either to the Department of European and Comparative Procedural Law or the Department of International Law and Dispute Resolution. While proficiency in English is compulsory, the call is also open to doctoral candidates writing their thesis in a language other than English.

To apply, the interested candidates meeting the requirements of the call must submit the following documents, in English: a cover letter (max. 1 page), stating the motivation for their application, the correlation between the topic of their research and the Institute’s areas of research, and the desired time frame for the scholarship stay; an up-to-date curriculum vitae, with an indication of the class of degree awarded (undergraduate and postgraduate, if relevant); a summary of the PhD project (max. 2 pages), including subject, description and work plan; two letters of recommendation (including one from the PhD supervisor, with his/her contact details).

The scholarship is paid in monthly instalments of 1.500 €. The selected applicants will be offered a workstation in the reading room. They will also have the opportunity to participate in the regular scientific events hosted at the Institute, other activities and access to the Institute’s library. During the funding period, the presence of the Scholarship Holder at the Institute is required.

15 May 2021

Please follow this link, apply online and upload all required documents.

Christiane Göbel and Eva Dobay at scholarship@mpi.lu.

L’article 10 du règlement Bruxelles II bis ne s’applique pas au cas où il est constaté qu’un enfant a acquis, à la date d’introduction de la demande relative à la responsabilité parentale, sa résidence habituelle dans un État tiers à la suite d’un enlèvement vers cet État.

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Accident du travail – Faute inexcusable de l'employeur