Agrégateur de flux

In cooperation with the Asian Academy of International Law, the Hague Academy of International Law will hold its first edition of its Advanced Courses in Hong Kong from 7 to 11 December 2020.  The topic will be: “Current Trends on International Commercial Dispute Settlement“.

For this special programme, the Secretary-General of The Hague Academy of International Law has invited leading academics and practitioners from Paris (Professor Diego P. Fernández Arroyo), New York (Professor Franco Ferrari), Bonn (Professor Matthias Weller), Singapore (Ms Natalie Morris-Sharma), and Beijing (Judge Zhang Yongjian) to present expert lectures on the United Nations Convention on International Settlement Agreements Resulting from Mediation, Investor-State Dispute Settlement, international commercial arbitration, settlement of international commercial disputes before domestic courts, and the developments of the International Commercial Court. Registered participants will have pre-course access to an e-learning platform that provides reading documents prepared by the lecturers. At the end of the course, a certificate of attendance will be awarded.

For more information see here.

For the flyer see here.

In Ivanishvili, Bidzina v Credit Suisse Trust Ltd [2020] SGCA 62, the Singapore Court of Appeal considered a number of issues: (1) whether a plaintiff could amend its Statement of Claim at the appellate stage to tilt the balance of connecting factors towards Singapore; (2) whether a clause in the trust deed identifying Singapore as the “forum of administration” of the trust was a jurisdiction clause, and if so; (3) whether the clause covered hostile litigation in relation to the trust; and depending on the answers to the previous questions, (4) whether the Singapore proceedings ought to be stayed.

The case concerned Mr Ivanishvili, the former Georgian prime minister, who was a French and Georgian dual national. Mr Ivanishvili had set up the Mandalay Trust which was domiciled in Singapore. The trustee of the Mandalay Trust was Credit Suisse Trust Ltd, a Singapore trust company (“the Trustee”). The trustee’s asset management powers were delegated to the Geneva branch of Credit Suisse AG (“the Bank”). The Mandalay Trust suffered losses purportedly due to the actions of one the Bank’s employees (Mr Lescaudron) who was the portfolio manager of the Mandalay Trust. Mr Lescaudron was convicted in Swiss criminal proceedings for various forms of misconduct in relation to the Mandalay Trust. At first instance, Mr Ivanishvili and his wife and children, who were the beneficiaries of the Mandalay Trust, sued both the Trustee and the Bank alleging, inter alia, breaches of duties of care and skill and misrepresentation. A stay was granted by the court below on the grounds that Switzerland was a more appropriate forum for the action. At the Court of Appeal, Mr Ivanishvili et al strategically chose to discontinue proceedings against the Bank to strengthen their argument that Singapore was the appropriate forum for trial of the action and sought to amend their Statement of Claim to this effect. This also entailed reformulating some of the claims against the Trustee to remove references to the Bank. This was allowed by the Court of Appeal on the basis that absent bad faith, the appellants had the freedom of choice to choose its cause of action and to sue the party it wishes to sue.

On the second issue, the relevant clause provided that:

“2. (a) This Declaration is established under the laws of the Republic of Singapore and subject to any change in the Proper Law duly made according to the powers and provisions hereinafter declared the Proper Law shall be the law of the said Republic of Singapore and the Courts of the Republic of Singapore shall be the forum for the administration hereof.”

Clause 2(b) granted the Trustee the power to change the proper law and provided that if so, the courts of the jurisdiction of the new proper law would become the “forum for the administration” of the trust. Contrasting clause 2 with the equivalent clause in Crociani v Crociani (17 ITELR 624) where the relevant clauses referred to a country being the “forum for the administration”, the Court of Appeal noted that the references to “forum for the administration” in clause 2 was tied up with a reference to the courts. It therefore held that clause 2(a) was a jurisdiction clause. As a point of interest, it should be noted that it is immaterial whether clause 2(a) is an exclusive or non-exclusive jurisdiction clause after the Court of Appeal’s decision in Shanghai Turbo v Liu Ming [2019] 1 SLR 779 (previously noted here); as Singapore is a named forum, the “strong cause” test would apply to cases falling within the scope of the jurisdiction clause.

The question which had to be considered next was whether clause 2(a) covered hostile litigation concerning breach of trust issues (such as in the present case) or was confined to litigation over administrative matters. On this, the Court engaged in an extensive review of case law in other off-shore trust jurisdictions. While tentatively observing that “there is no legal rule limiting the meaning of the phrase ‘forum for [the] administration’ to an administration action in the traditional sense”(at [75]), the Court ultimately followed the reasoning of the Privy Council in Crociani and held that that the phrase “is intended to refer to the court or jurisdiction which would settle questions arising in the day to day administration of the trust, and to denote the supervisory and authorising court for actions the trustee might need to take which were not specifically by the trust deed or where its terms were ambiguous”(at [76]). Such clauses did not cover hostile litigation between trustees and beneficiaries. The Court observed that: “The trust deed is not a contract between two parties with obligations on both sides – rather, it is a unilateral undertaking by the trustee, and in our view this difference must play a part when we consider whether the intention of the drafters was to impose a mandatory jurisdiction clause for the resolution of contentious disputes regarding allegations of breach of trust”(at [78]).

That meant that whether a stay ought to be granted was to be determined under the Spiliada test on forum non conveniens rather than the “strong cause” test. On this point, the Court split. A majority of the Court (Menon CJ and Prakash JA), held that the balance of connecting factors pointed towards Singapore and allowed the appeal against the stay. The appellants argued that with the amended claim, the focus was on the Trustee’s breaches of trust, all of which occurred in Singapore. The Court was unconvinced of the respondents’ argument that most of the relevant witnesses, such as Mr Lescaudron, were located in Switzerland and not compellable to appear before the Singapore court. The location of witnesses was but a weak factor pointing in favour of Switzerland being forum conveniens relative to Singapore. The respondents had also argued that Swiss banking secrecy laws meant that disclosure of certain documents could only be ordered by the Swiss court but the Court gave little weight to this, holding that it was not clear that the Trustee could not obtain the requisite documents from the Bank itself. In contrast, the shape of litigation post the re-framing of the actions by the appellants meant that the trust relationship, rather than the banking relationship, was at the forefront of the claims. This pointed towards Singapore being the centre of gravity of the action. Further, Singapore law was the governing law of the Mandalay Trust and the rights of all parties under the Trust Deed: “There is no doubt that the Singapore courts are the most well-placed to decide issues of Singapore trust law, and the Swiss courts, operating in a civil law jurisdiction with no substantive doctrine of trusts, would be far less familiar with these issues”(at [110]). This comment may be to understate the competence of the Swiss courts in this regard, as internal Swiss trusts which are governed by a foreign law are not an uncommon wealth management tool in Switzerland. The Court was also not persuaded by the Trustee’s argument that there was a risk of conflicting findings of fact due to related proceedings elsewhere, holding that this was not a “sufficiently real possibility” (at [114]). Thus, a majority of the Court held that, on an overall assessment of the connecting factors, Singapore would be the more appropriate forum vis-à-vis Switzerland.

There was a strong dissent by Chao SJ on the application of the Spiliada test. His Honour was of the view that whether the Trustee would be prejudiced by having to defend itself in Singapore formed the crux of the stay issue. In relation to this, His Honour observed that Mr Ivanishvili was a hands-on investor who corresponded directly with the Bank officers. The Trustee was not always copied into Mr Ivanishvili’s instructions to the Bank. The alleged losses occurred in Switzerland and the acts and omissions of the Bank and its officers and the role of Mr Ivanishvili himself remained relevant in determining the Trustee’s liability. In contrast, the Trustee played a passive role and the operative events in Singapore were merely secondary in nature (at [153]). This belied the appellants’ insistence that the Bank’s alleged wrongdoing was no longer relevant in the Singapore proceedings given the amended claim. His Honour was concerned about the respondents’ ability to defend itself properly in Singapore given that the evidence and witnesses central to defending the claims were mainly located in Switzerland. Chao SJ was therefore of the view that the action had a greater connection with Switzerland than with Singapore “by a significant margin”(at [154]). His Honour went on to say that if he was wrong on stage one of the Spiliada test, stage two would also point towards Switzerland. On stage two, Chao SJ agreed with the High Court that the ends of justice would best be met by the Swiss court applying Singapore trust law. This is as the trustee’s conduct may only be properly understood against the backdrop of Mr Ivanishvili’s relationship with the Bank and the Bank’s conduct in relation to its asset management duties (at [154]).

A pdf of the judgment can be downloaded here.

An overdue post on the Hungarian Supreme Court’s judgment 2020.3.72.a, finding an implied choice of law pro Hungarian law, made by a Serbian and Hungarian party to a contract for agency and business counseling. In the absence of choice of law, per Article 4 Rome I, applicable law would have been Serbian law. Yet the SC held that the conduct of the Serbian business party in the litigation, made for implicit choice of law.

Under Rome I, choice of law may be made and changed at any time during the course of the contract. Whether it can also be made by conduct of litigation is somewhat disputed. Arguments pro rely heavily on a parallel with impromptu choice of court in Brussels Ia, by submission. The Hungarian courts had assessed the merits of the case on the basis of Hungarian law, and the Serbian defendant had engaged in that discussion in a detailed, substantive statement of defence without any objections to Hungarian law being the lex contractus. This, the courts held and the SC agreed, meant parties had made an implied choice of law by their conduct. A change of heart by defendant upon appeal was a unilateral change of law, which cannot bind the parties.

Richard Schmidt sent me the judgment and has additional analysis here– on which I relied for I do not read Hungarian. Scholarship has engaged with the issue and this SC judgment will be highly relevant material for that discussion.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 3, Heading 3.2.4.

I have reported earlier on the Commisimpex case and the various decisions of the French Supreme Court on civil and criminal matters (Cour de cassation) which have eventually excluded from the scope of the waiver of immunities of the Republic of Congo assets protected by diplomatic immunity.

On 8 June2020, Commisimpex attached a Falcon 7X business jet belonging to the presidency of Congo on the French airport of Bordeaux-Merignac where it was undergoing maintenance. Rumour has it that the markers of the aircraft were off for several years, but they were mysteriously turned on recently, allowing Congo’s creditors to track it down …

Congo immediately initiated proceedings before the Paris enforcement court to set aside the attachement on the ground that the jet was covered by diplomatic immunity.

In a judgment of 29 June 2020, the Paris Enforcement Court rejected all arguments of the Republic of Congo and confirmed the validity of the attachement.

The first argument of Congo in favour of the extension of diplomatic immunity to the jet was that it was a State Aircraft in the meaning of the Chicago Convention on International Civil Aviation and could not, as such, fly over French territory without being authorised to do so. Indeed, it had received “diplomatic clearance” (DIC) from the French Ministry of Foreign Affairs to that effect.

The Paris Court found, however, that the only reason why the various authorisations that the French Ministry could grant were labelled “diplomatic” was that they were issued by the Ministry of Foreign Affairs. The label was unrelated to the use of the aircraft, and did not create any presumtion that the aircraft was used for diplomatic activities. Indeed, it did not even imply that the owner of the relevant aircaft was a state.

The Paris Court recognised that State Aircrafts must be protected by an immunity against enforcement. The crucial issue, however, was not so much whether the aircraft was covered by some sovereign immunity, but by diplomatic immunity. The Paris Court underscored that French courts have ruled that while the diplomatic immunity of Congo remains intact after its general waiver, Congo has waived all other enforcement immunities.

The Court noted that the 2016 French statute which has established a special regime for diplomatic immunity refers to “assets used (…) in the exercise of the diplomatic mission of foreign states” (French Code of Civil Enforcement Proceedings, Art L. 111-1-3). It further noted that the 1961 Vienna Convention on Diplomatic Relations also referred to the “diplomatic mission”. The Court concluded that Congo enjoyed  diplomatic immunity in France only over assets affected to the Congolese Embassy in Paris.

Congo put forward an additional argument. It argued that the aircraft was used by the presidentcy of Congo, and was thus used by President Sassou Nguesso for his diplomatic activities. The Court noted that the logbook of the aircraft showed that it had been essentially used for domestic flights within Congo. It was also used once to fly to Madagascar, in order to bring back “Covid Organics CVO”, which  was not a diplomatic activity.

In truth, the Court found, in the last two years, each time President Nguesso had travelled internationally for official visits, he had used another plane, a Boeing 787.

In the absence of any evidence of diplomatic use of the Falcon 7X business jet, the Court concluded, it is not protected by diplomatic immunity, and could thus be attached.

The general press has reported that President Nguesso is really upset. One trusts that the fight over this asset, which is worth over € 20 million, is only beginning. Congo has lodged an appeal against the judgment, but it should not suspend its enforcement, which means that a sale by auction can be immediately organised.

L’accord portant extinction des traités bilatéraux d’investissement (TBI) entre États membres de l’Union européenne a été publié le 29 mai 2020 (JOUE L169). Il constitue à la fois l’épilogue d’une longue controverse relative à la comptabilité des traités d’investissement entre membres de l’UE et la suite logique de l’affaire Achmea.  

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Pourvoi c/ cour d'appel de Paris, 3 juin 2020

Cour d'appel d'Angers, 30 juin 2020

Pourvoi c/ cour d'appel de Paris, 9 avril 2020

Pourvoi c/ chambre de l'instruction, 14 novembre 2019

Cour d'appel de Douai, 10 juillet 2020

Cour d'appel de Paris, 14 mai 2019

Cour d'appel d'Aix-en-Provence, 22 avril 2020

Pourvoi c/ cour d'appel de Douai, 29 septembre 2020

The second issue of 2020 of the Rivista di diritto internazionale privato e processuale (RDIPP, published by CEDAM) was just released. It features:

Fernando Gascón Inchausti, Professor at Universidad Complutense de Madrid, Does EU Law Ensure an Adequate Protection of Debtors in Cross-Border Enforcement? (in English)

• From a general perspective, cross-border enforcement of judicial decisions – and of authentic instruments – entails the need to coordinate different procedural systems, interacting with each other. From a practical point of view, however, cross-border enforcement is also a context of dialectic between opposing parties, typical of any judicial process. Its regulation, therefore, must be developed and interpreted taking into account the rights and powers attributed to the creditor and to the debtor, so that the promotion of efficiency – favourable to the creditor – is not detrimental to the debtor’s right of defense. This article assesses the extent to which the civil procedural law of the European Union adequately protects the debtor in cross-border enforcement and, where appropriate, what could be the most reasonable measures to improve it without unduly harming the right of the creditor to a prompt satisfaction of his right. Special attention shall be given in this framework to the legal position of consumers, due to their vulnerability and their special legal status according to EU protective law.

Maria Caterina Baruffi, Professor at the University of Verona, Gli effetti della maternità surrogata al vaglio della Corte di Cassazione italiana e di altre corti (‘Effects of Surrogacy in the Jurisprudence of the Italian Corte di Cassazione? and Other Courts’, in Italian)

• This paper examines the decision by means of which the Italian Supreme Court, in plenary session, on 8 May 2019 dealt with the issue of surrogacy, with particular regard to the notion of international public policy. The Court concluded that the ban on surrogacy constitutes a principle of public order aimed at protecting fundamental values, such as the surrogate mother’s human dignity. This decision is consistent with the advisory opinion given in April 2019 by the European Court of Human Rights, that, upon request of the French Supreme Court in the context of the Mennesson case, ruled that each State can discretionarily determine the modalities by which it guarantees the recognition of the parent-child relationship, including the possibility to adopt. Nonetheless, the difficulties in the application of public policy are apparent and the situations that may arise as a result of such application are equally complex, for instance as a result of genetic ties being established with different persons. Therefore, this paper puts forth new proposals, also in the light of the most recent French case law.

The following comment is also featured:

Roberto Ruoppo, Doctor in Law, Lo status giuridico di Taiwan e i suoi riflessi sul piano internazionalprivatistico (‘Taiwan’s Legal Status and Its Consequences from a Private International Law Perspective’, in Italian)

• This paper focuses on the consequences brought in the field of private international law by the lack of recognition of a State. In particular, the paper aims to understand if it is possible that actors of the international community give effect to the acts and decisions adopted by the authorities of an entity not recognized as a State. Notably, this work addresses the case of Taiwan which, despite the lack of recognition from the others States, owns all the factual requirements to be considered as an autonomous subject in accordance with international law. Relying to the principle of effectiveness and the analysis of precedent case-law – such as those involving the Soviet Union and the German Democratic Republic – this paper aims to demonstrate that the response to this question should be premised on the consideration of the interests involved in the specific case. The conclusion reached is that the acts of an entity which lacks recognition should be given effects in the other States when this is more consistent with the principle of legal certainty and the legitimate expectations of the individuals involved.

In addition to the foregoing, this issue features the following book review by Roberta Clerici, Professor at the University of Milan: J. von Hein, E.-M. Kieninger, G. Rühl (eds.), How European is European Private International Law? Sources, Court Practice, Academic Discourse, Intersentia, Cambridge, 2019, pp. XXVI-373.

Nicole Grohmann, a doctoral candidate at the Institute for Comparative and Private International Law, Dept. III, at the University of Freiburg, has kindly provided us with the following report on a recent speech by Lord Jonathan Mance.

On Wednesday, 15 July 2020, the former Deputy President of the Supreme Court of the United Kingdom (UKSC), Lord Jonathan Mance, presented his views on the future relationship between the United Kingdom and Europe after Brexit in an online event hosted by the Juristische Studiengesellschaft Karlsruhe. This venerable legal society was founded in 1951; its members are drawn from Germany’s Federal Constitutional Court, the Federal Supreme Court, the office of the German Federal Prosecutor, from lawyers admitted to the Federal Supreme Court as well as judges of the Court of Appeals in Karlsruhe and the Administrative Court of Appeals in Mannheim. In addition, the law faculties of the state of Baden-Württemberg (Heidelberg, Freiburg, Tübingen, Mannheim, Konstanz) are corporate members. Due to Corona-induced restrictions, the event took place in the form of a videoconference attended by more than eighty participants.

After a warm welcome by the President of the Juristische Studiengesellschaft, Dr. Bettina Brückner (Federal Supreme Court), Lord Mance shared his assessment of Brexit, drawing on his experience as a highly renowned British and internationally active judge and arbitrator. In the virtual presence of judges from the highest German courts as well as numerous German law professors and scholars, Lord Mance elaborated – in impeccable German – on the past and continuing difficulties of English courts dealing with judgments of the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) and the future legal struggles caused by the end of the transition period on the withdrawal of the United Kingdom from the European Union on 31 December 2020. Lord Mance’s speech was followed by an open discussion regarding the most uncertain political and legal aspects of Brexit.

In his speech, Lord Mance highlighted the legal difficulties involved in the withdrawal of his country from the European Union. Since Lord Mance himself tends to picture the British as being traditional and generally pragmatic, he named Brexit as a rare example of a rather unpragmatic choice. Especially with regard to the role of the United Kingdom as a global and former naval power, Lord Mance considered Brexit a step backwards. Besides the strong English individualism, which has evolved over the past centuries, the United Kingdom did not only act as an essential balancing factor between the global players in the world, but also within the European Union. Insofar, the upcoming Brexit is a resignation of the United Kingdom from the latter position.

Subsequently, Lord Mance focussed on the role of the European courts, the European Court of Justice and the European Court of Human Rights and their judgments in the discussions leading to Brexit. Both European courts gained strong importance and influence in the UK within the first fifteen years of the 21st century. Especially, the ECtHR is of particular importance for the British legal system since the Human Rights Act 1998 incorporated the European Convention on Human Rights into British law. Lord Mance described the Human Rights Act 1998 as a novelty to the British legal system, which lacks a formal constitution and a designated constitutional court. Apart from the Magna Charta of 1215 and the Bill of Rights of 1689, the British constitutional law is mainly shaped by informal constitutional conventions instead of a written constitution such as the German Basic Law. Following the Human Rights Act 1998 and its fixed catalogue of human rights, the British courts suddenly exercised a stricter control over the British executive, which initially gave rise to criticism. Even though the British courts are not bound by the decisions of the ECtHR following the Human Rights Act 1998, the British participation in the Council of Europe soon started a dialogue between the British courts and the ECtHR on matters of subsidiary and the ECtHR’s margin of appreciation. The UK did not regard the growing caseload of the ECtHR favourably. Simultaneously, the amount of law created by the institutions of the European Union increased. Lord Mance stressed the fact that in 1973, when the United Kingdom joined the European Economic Community, the impact of the ECJ’s decision of 5 February 1963 in Van Gend & Loos, C-26/62, was not taken into account. Only in the 1990s, British lawyers discovered the full extent and the ramifications of the direct application of European Union law. The binding nature of the ECJ’s decisions substantiating said EU law made critics shift their attention from Strasbourg to Luxembourg.

In line with this development, Lord Mance assessed the lack of a constitutional court and a written constitution as the main factor for the British hesitance to accept the activist judicial approach of the ECJ, while pointing out that Brexit would not have been necessary in order to solve these contradictions. The EU’s alleged extensive competences, the ECJ’s legal activism and the inconsistency of the judgments soon became the primary legal arguments of the Brexiteers for the withdrawal from the EU. Especially the ECJ’s teleological approach of reasoning and the political impact of the judgments were mentioned as conflicting with the British cornerstone principles of parliamentary sovereignty and due process. Lord Mance stressed that the so-called Miller decisions of the Supreme Court in R (Miller) v Secretary of State [2017] UKSC 5 and R (Miller) v The Prime Minister, Cherry v Advocate General for Scotland (Miller II) [2019] UKSC 41, dealing with the parliamentary procedure of the withdrawal from the EU, are extraordinary regarding the degree of judicial activism from a British point of view. In general, Lord Mance views British courts to be much more reluctant compared to the German Federal Constitutional Court in making a controversial decision and challenging the competences of the European Union. As a rare exception, Lord Mance named the decision in R (HS2 Action Alliance Ltd) v Secretary of State for Transport [2014] UKSC 3, in which the UKSC defended the British constitutional instruments from being abrogated by European law. Indeed, Lord Mance also expressed scepticism towards the jurisprudential approach of the ECJ, because inconsistences and the need of political compromise could endanger the foreseeability and practicability of its decisions. Especially with regard to the recent decision of the German Constitutional Court of 5 May 2020 on the European Central Bank and the Court’s approach to ultra vires, Lord Mance would have welcomed developing a closer cooperation between the national courts and the ECJ regarding a stricter control of the European institutions. Yet this important decision came too late to change Brexiteers’ minds and to have a practical impact on the UK.

Finally, Lord Mance turned to the legal challenges resulting from the upcoming end of the transition period regarding Brexit. The European Union (Withdrawal) Acts 2018 and 2020 lay down the most important rules regarding the application of EU instruments after the exit day on 31 December 2020. In general, most instruments, such as the Rome Regulations, will be transposed into English domestic law. Yet, Lord Mance detected several discrepancies and uncertainties regarding the scope of application of the interim rules, which he described as excellent bait for lawyers. Especially two aspects mentioned by Lord Mance will be of great importance, even for the remaining Member States: Firstly, the British courts will have the competence to interpret European law, which continues to exist as English domestic law, without the obligation to ask the ECJ for a preliminary ruling according to Art. 267 TFEU. In this regard, Lord Mance pointed out the prospective opportunity to compare the parallel development and interpretation of EU law by the ECJ and the UKSC. Secondly, Lord Mance named the loss of reciprocity guaranteed between the Member States as a significant obstacle to overcome. Today, the United Kingdom has to face the allegation of ‘cherry picking’ when it comes to the implementation of existing EU instruments and the ratification of new instruments in order to replace EU law, which will no longer be applied due to Brexit. Especially with regard to the judicial cooperation in civil and commercial matters and the recast of the Brussels I Regulation, the United Kingdom is at the verge of forfeiting the benefit of the harmonized recognition and enforcement of the decisions by its courts in other Member States. In this regard, Lord Mance pointed out the drawbacks of the current suggestion for the United Kingdom to join the Lugano Convention, mainly because it offers no protection against so-called torpedo claims, which had been effectively disarmed by the recast of the Brussels I Regulation – a benefit particularly cherished by the UK. Instead, Lord Mance highlighted the option to sign the Hague Convention of 30 June 2005 on Choice of Court Agreements which would allow the simplified enforcement of British decisions in the European Union in the case of a choice of court agreement. Alternatively, Lord Mance proposed the ratification of the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments. So far, only Uruguay and Ukraine have ratified this new convention. Nevertheless, Lord Mance considers it as a valuable option for the United Kingdom as well, not only due to the alphabetical proximity to the other signatories.

Following his speech, the event concluded with a lively discussion about the problematic legal areas and consequences of Brexit, which shall be summarised briefly. Firstly, the President of the German Supreme Court Bettina Limperg joined Lord Mance in his assessment regarding the problem of jurisprudential inconsistency of the ECJ’s decisions. However, like Lord Mance she concluded that the Brexit could not be justified with this argument. Lord Mance pointed out that in his view the ECJ was used as a pawn in the discussions surrounding the referendum, since the Brexiteers were unable to find any real proof of an overarching competence of the European Union. Secondly, elaborating on the issue of enforceability, Lord Mance added that he considers the need for an alternative to the recast of the Brussels I Regulation for an internationally prominent British court, such as the London Commercial Court, not utterly urgent. From his practical experience, London is chosen as a forum mainly for its legal expertise, as in most cases enforceable assets are either located in London directly or in a third state not governed by EU law. Hence, Brexit does not affect the issue of enforceability either way. Finally, questions from a constitutional perspective were raised regarding the future role of the UKSC and its approach concerning cases touching on former EU law. Lord Mance was certain that the UKSC’s role would stay the same regarding its own methodological approach of legal reasoning. Due to the long-standing legal relationship, Lord Mance anticipated that the legal exchange between the European courts, UK courts and other national courts would still be essential and take place in the future.

In sum, the event showed that even though Brexit will legally separate the United Kingdom from the European Union, both will still be closely linked for economic and historical reasons. As Lord Mance emphasized, the UK will continue to work with the remaining EU countries in the Council of Europe, the Hague Conference on PIL and other institutions. Further, the discrepancies in the Withdrawal Acts will occupy lawyers, judges and scholars from all European countries, irrespective of their membership in the European Union. Lastly, the event proved what Lord Mance was hoping to expect: The long-lasting cooperation and friendship between practitioners and academics in the UK and in other Member States, such as Germany, is strong and will not cease after Brexit.

Performing Right Society Ltd v Qatar Airways Group QCS [2020] EWHC 1872 (Ch) concerns the infringement or not of copyright via Qatar Airways’ inflight entertainment system known as “Oryx One”. Holding on an application for a stay on grounds of forum non conveniens or alternatively on case management grounds, Birss J on Friday first of all noted the relevance of Lucasfilm Limited v Ainsworth [2011] UKSC 39 that the English court can have jurisdiction over claims for infringement of copyright by non-UK acts and under non-UK law where there is a basis for in personam jurisdiction. Which there is because of the presence of the aircraft on the ground or in the territorial airspace of the UK – the airline was served at the London address of the UK branch (defendant, QATAR Airways Group Q.C.S.C. is not domiciled in the UK, I gather). Lucasfilm did not itself deal with forum non.

I flag this case for Birss J gives a good summary of the approach to forum non, building of course on Spiliada but also with reference to Vedanta, Okpabi etc., all reviewed on the blog. Note at 16-17 claimant’s and defendant’s alternative formulations of the Stage 1 cq 2 tests following Spiliada.

The defendant has summarised the test in Spiliada as follows:

“(1) Is there another available forum which is clearly and distinctly the natural forum, that is to say, the “forum with which the action has the most real and substantial connection”?

(2) If there is, is England nevertheless the appropriate forum, in particular because the court is not satisfied that substantial justice will be done in the alternative available forum?”

At: claimant’s rival formulation is:

“Stage 1: Qatar Airways bears the burden of satisfying the Court that the Qatari court is an available forum with competent jurisdiction to determine PRS’s claim and is clearly or distinctly a more appropriate forum than England for the trial of the issues. If it fails to satisfy the Court of these matters, a stay should be refused.

Stage 2: If the Court determines that the Qatari court is prima facie more appropriate, it must nevertheless refuse to grant a stay if PRS demonstrate that, in all the circumstances of the case, it would be unjust for it to be deprived of the right to trial in England.”

The distinctions may seem trivial. However they relate to, firstly, burden of proof and secondly, which factors need to be considered in which stage (and therefore, proven by whom). In particular, it is suggested that issues such as the location of witnesses arose at the first stage yet that at least aspects of the points which were debated about expert witnesses (of foreign law) arose at the second stage not the first.

Birss J ends up summarising Stage 1 as entailing the following headings:

i) the personal connections the parties have to the countries in question; ii) factual connections which the events relevant to the claim have with the countries; iii) applicable law; iv) factors affecting convenience or expense such as the location of witnesses or documents.

I will leave readers to digest the arguments under the various headings themselves, Birss J concludes that Qatar is not clearly a more appropriate forum and does not therefore consider Stage 2.

Readers will remember that the CJEU in Owusu objected to forum non on the basis of its unpredictability. Now, I am not one for arguing that following Spiliada and Vedanta, and given the authority rule to which common lawyers and judges are attuned, forum non be unpredictable. Neither can one posit however, seeing the intensity of the discussion here and in many other cases, that it is an entirely clear exercise.

Geert.

Application (dismissed) for stay of a claim of worldwide infringement of #copyright, on grounds of forum non conveniens or alternatively on case management grounds.
References of course UKSC Lucasfilm. https://t.co/sXPxUgpbdH

— Geert Van Calster (@GAVClaw) July 17, 2020

Following successful events in Bonn and Würzburg, the third iteration of the conference for young German-speaking scholars in private international law will take place – hopefully as one of the first events post-Corona – on 18 and 19 March 2021 at the Max Planck Institute for Comparative and International Private Law in Hamburg. The conference will focus on the theme of PIL for a better world: Vision – Reality – Aberration?

It will include a keynote by Angelika Nußberger, former judge at the European Court of Human Rights, and a panel discussion between Roxana Banu, Hans van Loon, and Ralf Michaels.

The organisers are inviting contributions that explore any aspect of the conference theme, which can be submitted until 20 September 2020. The call for papers, in German and English, together with further information, can be found on the conference website.

Les actes frappés de nullité au cours de l’instruction doivent être retirés du dossier ou cancellés lorsqu’ils ne sont que partiellement annulés, les originaux devant être classés au greffe de la cour d’appel,et il est interdit d’en tirer aucun renseignement contre les parties.

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