Agrégateur de flux

The Court of Justice of the European Union has delivered its ruling in the Novo Banco case (C‑253/19) on 16 July 2020.

The issue before the Court was the determination of the center of main interests (COMI) of individuals not exercising an independent business or professional activity under the Insolvency Regulation, and thus the jurisdiction of the courts of the Member States to open insolvency proceedings against such individuals.

Article 3(1) of the Insolvency Regulation provides that the COMI of such individuals is presumed to be at their place of habitual residence. The issue was more precisely how this presumption could be rebutted.

In this case, the individuals were English residents who were employed in Norfolk. Yet, they claimed that the centre of their main interests was not their habitual residence in the United Kingdom, but rather in Portugal, the Member State where the sole immovable asset which they own was located and where all the transactions and all the contracts leading to their insolvency were conducted and concluded. Furthermore, there was no connection between their place of habitual residence and the events that led to their insolvency, which occurred entirely in Portugal.

The Court ruled:

28 Although the location of the debtor’s assets is one of the objective criteria, ascertainable by third parties, to be taken into consideration when determining the place where the debtor conducts the administration of his or her interests on a regular basis, that presumption may be reversed only following an overall assessment of all the objective criteria. It follows that the fact that the only immovable property of an individual not exercising an independent business or professional activity is located outside the Member State of his or her habitual residence is not sufficient on its own to rebut that presumption.

29 In the present case, the applicants in the main proceedings also argue before the referring court that Portugal is not only the Member State where their only immovable property is located but also the Member State where all the transactions and all the contracts leading to their insolvency were conducted and concluded.

30 In that regard, although the cause of the insolvency is not, as such, a relevant factor for determining the centre of the main interests of an individual not exercising an independent business or professional activity, it nevertheless falls to the referring court to take into consideration all objective factors, ascertainable by third parties, which are connected with that person’s financial and economic situation. In a case such as the one in the main proceedings, as was observed in paragraph 24 above, that insolvency situation is located in the place where the applicants in the main proceedings conduct the administration of their economic interests on a regular basis or the majority of their revenue is earned and spent, or the place where the greater part of their assets is located.

31 In view of all of the foregoing factors, the answer to the question is that the first and fourth subparagraphs of Article 3(1) of Regulation 2015/848 must be interpreted as meaning that the presumption established in that provision for determining international jurisdiction for the purposes of opening insolvency proceedings, according to which the centre of the main interests of an individual not exercising an independent business or professional activity is his or her habitual residence, is not rebutted solely because the only immovable property of that person is located outside the Member State of habitual residence. 

Contrôle judiciaire

This post is authored by Ana Coimbra Trigo (Associate Lawyer at PLMJ Law Firm; PhD Candidate at NOVA Lisbon Univ.; LL.M. China-EU School of Law (China Univ. Political Science and Law, conferred by Univ. Hamburg); Law Degree from Univ. Coimbra), with contributions from Gustavo Moser.

Today, on 7 August 2020, Decree 5/2020 of the Council of Ministers approved the United Nations Convention on Contracts for the International Sale of Goods (CISG or Convention), making Portugal its newest signatory state (link to the official publication here). The Convention will enter into force, in respect of Portugal, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of approval.

Portugal joins the Convention alongside two historic moments. First, this is the year that marks the 40th anniversary of the Convention, and second, the current Secretary General of the UN, António Guterres, is a Portuguese national.

Portugal was in fact active in the preparatory works at UNCITRAL and present at the diplomatic conference that adopted the CISG in 11 April 1980. Although “arriving late to the party”, it is foreseen that the CISG will be advantageous for Portugal, both at the legal and commercial level.

First, as is well known, the CISG provides a uniform and neutral regime for cross-border transactions regarding carriage of goods, and related dispute settlement. The text is based on a common set of remedies inspired by the principle of favor contractusand structured to maximize economic benefits of the contract.

Second, the CISG provides for overall legal certainty, especially in cases where there is and there is not a (valid) choice of law. It is drafted in plain language and this is particularly advantageous for small and medium-sized companies.

Third, scholars highlight the balanced system of solutions included in the Convention that allowsefficiencies in transaction costs and thus more competitive prices for imported and exported goods. This is beneficial for overall trade, but from a Portuguese viewpoint, will also allow Portuguese final users to get more value for their money, and Portuguese exporters to sell their products at lower prices in global markets.

Fourth, the above benefits are emphasized when one considers that the CISG has been ratified already by93 states. This includes 24 of 27 EU Member-States (excluding UK, Ireland, Malta and not for long Portugal) and also the United States of America, Canada, Brazil, China, Japan and South Korea. Some of these countries are relevant trade partners of Portugal.

Lastly, Portugal will now benefit from 40 years of scholarly writings and decisions for guidance, including in the Portuguese language, since Brazil recently became the first Lusophone country to adopt the CISG.

The increased availability of materials on the CISG in Portuguese may boost capacity building and contribute to the affirmation of the CISG in other Lusophone countries.

Scholars and diplomats have clamoured about this potential accession over the years, so we anticipate that this will be viewed positively by the local and international legal community.

Moreover, this can be seen as strategic boost for Portugal in international trade in this demanding international context.

Shawn He reported recently on a Chinese judgment refusing the declaration of enforceability of an arbitral award issued by the Independent Film & Television Alliance Arbitration Court.

The Tianjin Intermediate People’s Court dismissed the application on two grounds: No standing to be sued of the Chinese company, and notification vices.

One point which should be highlighted is the duration of the proceedings: The application was filed on March 2018, and the judgment (in first instance) was rendered on May 2020…

On 16 July 2020, the Government of Portugal decided to start the process whereby Portugal will, in due course, become a party to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

Today, the Convention is internationally in force for 93 States. Once in force for Portugal, it will be binding on all the current members of the European Union, with the exception of Ireland and Malta.

by Professor Dr Robert Magnus

The chair of civil law III at the Faculty of law and economics of the University of Bayreuth offers a position as a

Doctoral researcher / PhD Student (m/w/d)

which should be filled as soon as possible. The position is limited for a period of two years and is preferably granted for the purpose of preparing a doctoral thesis. The position is part-time (50 % of regular working hours) with the salary and the benefits of a public service position in the state of Bayern, Germany (TV-L E13, 50 %).

The Doctoral researcher will be working in the department of law. His main task will be to assist the research projects of his supervisor in the area of civil law, civil procedural law, arbitration law, conflict-of-laws and comparative law. The position includes the possibility to prepare a doctoral thesis. Applicants should fulfill the requirements to prepare a doctoral thesis under the doctoral degree regulation of the University of Bayreuth. It is expected that the first state examination is accomplished at least with the grade “vollbefriedigend”. The position additionally requires the Applicant to be proficient in German.

Furthermore, the Applicant should be interested in the areas of expertise of the supervisor; preferably there is already knowledge in these fields. Desirable are good skills in English and IT-expertise.

Applicants with a disability as described in SGB IX (§ 2 Abs. 2, 3) will be preferred in case of equal qualifications. The advertising chair of civil law as well as the University of Bayreuth are interested in increasing the quota of women; therefore, we strongly encourage female candidates to apply.

Please send your application with the usual documents (especially CV, Abitur certificate, transcript of records, State Examination certificate(s) via email (preferably in a pdf file) to Ms. Birgit Müller, chair of civil law III at the Faculty of Law and economics, University of Bayreuth, 95440 Bayreuth, Tel.: +49 (0)921 – 55-6071, E-Mail: ze3.sekretariat@uni-bayreuth.de.

The French Committee for private international law will hold a conference on the codification of private international law in the afternoon of 9 October 2020, in Paris.

The first speaker will be Geraldine Gazo, who practices in Monaco, and who will present the recent law on private international law adopted by Monaco in 2017.

The second speaker will be Justice Jean-Pierre Ancel, who is a former president of the first civil Chamber of the Cour de cassation, and now presides over a working group on the codification of French private international law.

The exact time and location are to be announced on the website of the Committee.

Woo-jung Jon is the author of Cross-border Transfer and Collateralisation of Receivables – A Comparative Analysis of Multiple Legal Systems, published by Hart Publishing.

Legal systems around the world vary widely in terms of how they deal with the transfer of and security interests in receivables. The aim of this book is to help international financiers and lawyers in relevant markets in their practice of international receivables financing. Substantively, this book analyses three types of receivables financing transactions, ie outright transfer, security transfer and security interests. This book covers comprehensive comparison and analysis of the laws on the transfer of and security interests in receivables of fifteen major jurisdictions, encompassing common law jurisdictions, Roman–Germanic jurisdictions and French–Napoleonic jurisdictions, as well as relevant EU Directives. To be more specific, this book compares and analyses the relevant legal systems of the US, Canada, New Zealand, Australia, Korea, Japan, France, Belgium, England, Hong Kong, Singapore, China, Germany, Austria and the Netherlands. Furthermore, in order to analyse those legal systems from the international perspective, this book compares relevant international conventions; it also proposes to establish an international registration system for the transfer of and security interests in receivables.

More information here.

On 31 July 2020, the Depositary (i.e. the Ministry of Foreign Affairs of the Kingdom of the Netherlands) notified that the Marshall Islands acceded to the HCCH Service Convention. A six-month period for filing objections has been set to run from the date of the Depositary’s notification until 31 January 2021. In the absence of any objection from an already ratifying State, the Convention will enter into force for the Marshall Islands on 1 February 2021.

So far the Marshall Islands has made no declarations under the treaty (think for example of Articles 8, 10, 15 and 16). Nor has it designated Central Authority. While this can be done at a later date, it is undoubtedly of great importance that the designation of Central Authority be made as soon as possible for the treaty to operate smoothly and avoid potential objections, even if this is only a theoretical possibility as the objection-mechanism has never been used in practice.

In the Pacific region, there are a few other States already a party to the Service Convention, such as the Philippines (date of entry into force: 1 October 2020!), Japan and Australia.

The HCCH news item is available here.

The Hague Conference announced today that the Marshall Islands ratified on 29 July 2020 the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which will enter into force for this country on 1 February 2021.

Source: here

Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for posting drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012  has been published today at the OJEU (L 249, 31.7.2020, p. 49).

Readers of this blog will be interested in particular by Article 1 paragraphs 1 to 9.

The Directive should be read with the declaration of the European Commission on the “Mobility Package I on road transport”, equally published at the OJEU (C 252, 31.7.2020, p. 1).

Sources: here et there

Recently published paper The Reception of Collective Actions in Europe: Reconstructing the Mental Process of a Legal Transplantation, authored by Csongor István Nagy, Professor at the University of Szeged, is a must read for those studying collective actions in EU. It is intended to identify the differentia specifica of the European collective actions as opposed to those in US, which in itself is not an easy task as there are various models in different Member States. However, the paper elegantly navigates these waters and offers a firm grasp of the history and present state on this increasingly important topic on this side of the Atlantic (you may track the EU developments at the legislative train site). For the rest, you need to read the paper…

It is published in Journal of Dispute Resolution, Vol. 2020, No. 2, pp. 413-443 (2020), and also available at SSRN.