Agrégateur de flux

Due to the circumstances, all oral hearings at the CJEU scheduled until 25 May 2020 are postponed to a later date.

Regarding private international law, the judgment in C-641/18, Rina, a request for a preliminary ruling referred by the District Court of Genoa (Italy), will be read on 7 May  2020. The case requires the Court to address the relationship between a customary principle of international law on international immunity and Regulation No 44/2001 (Brussels I). The Court should as well reflect on the extent the answer to that question may be influenced by the interest in ensuring access to the courts. In his opinion of 14 January 2020, AG Szpunar concluded that

Article 1(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that an action for damages brought against private-law bodies in respect of classification and certification activities carried out by those bodies as delegates of a third State, on behalf of that State and in its interests, falls within the concept of ‘civil and commercial matters’ within the meaning of that provision.

The principle of customary international law concerning the jurisdictional immunity of States does not preclude the application of Regulation No 44/2001 in proceedings relating to such an action.

Rina will be a 1st Chamber decision (Bonichot, Silva de Lapuerta, Safjan, Bay Larsen, Toader), with judge Camelia Toader as juge rapporteur.

Ms Toader is also the reporting judge in joined cases C-267/19 PARKING – C-323/19, Interplastics, to be released on the same day. The cases correspond to identical requests for a preliminary ruling and for interpretation of the grounds of the CJUE’s judgments of 9 March 2017, Zulfikarpašić (C-484/15) and Pula Parking (C-551/15). The referring court (Commercial Court, Zagreb, Croatia) explains that

Although the Court’s position is clear and unequivocal as to the fact that, in Croatia, notaries are not entitled to issue writs of execution based on an authentic document, that practice, which is at odds with Regulation No 1215/2012, continues. Following the decision of the Court of 9 March 2017, notaries have issued more than one million writs of execution.

Then, at the courts’ level, there is a divergent application of the CJUE’s decision in Pula Parking, in that

for the most part, [the courts and tribunals of the Republic of Croatia] consider that the decision relates exclusively to enforcement proceedings conducted by notaries in which the party against whom enforcement is sought is a natural person and national of another EU Member State.

Therefore, the Zagreb court had thought it necessary to submit a request for a preliminary ruling, in order to determine “whether natural and legal persons from Croatia, as citizens of the European Union, are on an equal footing with natural and legal persons from other EU Member States, and whether foreign legal persons are on an equal footing with foreign natural persons as regards the application of EU law in the Republic of Croatia.”

The case will be decided (without AG’s Opinion) by Judges Safjan, Toader, and Jääskinen, sitting as 6th Chamber.

Finally, the Opinion of AG Saugmandsgaard Øe in C-59/19, Wikingerhof, will be known on 28 May 2020. For the record, the requests comes from the German Bundesgerichtshof, and a hearing had taken place last January. The CJEU has been asked to address (again) the boundaries between Article 7(1) and Article 7(2) of the Brussels I bis Regulation, in the context of an action to stop commercial practices considered to be contrary to competition law, covered by contractual provisions resulting from an abuse of a dominant position. The judgment will be a Grand Chamber one.

Tamás Szabados (ELTE Eötvös Loránd University, Budapest) is the author of Economic Sanctions in EU Private International Law, a book that has been recently published by Hart.

The blurb reads:

Economic sanctions are instruments of foreign policy. However, they can also affect legal relations between private parties – principally in contract. In such cases, the court or arbitration tribunal seized must decide whether to give effect to the economic sanction in question. Private international law functions as a ‘filter’, transmitting economic sanctions that originate in public law to the realm of private law. The aim of this book is to examine how private international law rules can influence the enforcement of economic sanctions and their related foreign policy objectives. A coherent EU foreign policy position – in addition to promoting legal certainty and predictability – would presuppose a uniform approach not only concerning the economic sanctions of the EU, but also with regard to the restrictive measures imposed by third countries. However, if we examine in detail the application of economic sanctions by Member States’ courts and arbitral tribunals, we find a somewhat different picture. This book argues that this can be explained in part by the divergence of private international law approaches in the Member States.

More information here.

Dans une lettre ouverte aux président.e.s de la Commission européenne, du Conseil européen et du Parlement européen du 17 avril dernier, des juristes de nombreux États membres demandent une amnistie immédiate pour les personnes privées de liberté les plus vulnérables ainsi qu’un recours accru aux mesures alternatives à la détention.

en lire plus

A collection of essays titled Innovación Docente y Derecho internacional privado (Educational innovation and private international law) has recently been published by Comares. The editors are María Asunción Cebrián Salvat and Isabel Lorente Martínez (University of Murcia).

The abstract reads as follows.

Now more than ever, and particularly in an European context, private international law has a great impact on the professional life of law students, no matter the path that they choose. This book collects from a very practical perspective the contributions in educational innovation of several professors and lecturers of private international law. Through the successive chapters, the work shows some tools which are useful to face the challenge of adapting both this subject and the way of teaching it to the new demands of the 21st century law market. This market requires highly specialized professionals, capable of mastering new technologies and of applying them to the field of Law. In the different chapters of this work you can find the experiences of these professors, their proposals for adapting the content of the subject to suit the European Higher Education Area and their suggestive innovative methodologies (legal clinics, film viewing, use of the case method, use of legal dictionaries, debate, online forums…). These experiences have been tested in Spanish Law Faculties, but can be similarly applied in other European countries where private international law or international litigation are taught.

More information here.

Edward Elgar has just published Conflict of Laws and the Internet, by Pedro de Miguel Asensio has published.

The blurb reads:

The ubiquity of the Internet contrasts with the territorial nature of national legal orders. This book offers a comprehensive analysis of jurisdiction, choice of law and enforcement of judgments issues concerning online activities in the areas in which private legal relationships are most affected by the Internet. It provides an in-depth study of EU Law in this particularly dynamic field, with references to major developments in other jurisdictions. Topics comprise information society services, data protection, defamation, copyright, trademarks, unfair competition and contracts, including consumer protection and alternative dispute resolution.

More information available here.

Pedro de Miguel Asensio from the Universidad Complutense de Madrid has published a book on Conflict of laws and the Internet. The publisher’s blurb reads as follows: . The ubiquity of the Internet contrasts with the territorial nature of national legal orders. This book offers a comprehensive analysis of jurisdiction, choice of law and enforcement of judgments issues concerning online activities in the areas in which private legal relationships are most affected by the Internet. It provides an in-depth study of EU Law in this particularly dynamic field, with references to major developments in other jurisdictions. Topics comprise information society services, data protection, defamation, copyright, trademarks, unfair competition and contracts, including consumer protection and alternative dispute resolution. . Key features include:

• comprehensive analysis of the complex conflict of laws issues that arise in connection with Internet activities
• discussion on the jurisdiction of national courts and the determination of applicable law
• a European perspective on the relationship between Internet Law and Private International Law (PIL)
• consideration of the cross-border effects of judgments in all major fields of PIL affected by the Internet.

Conflict of Laws and the Internet will be a vital resource for practitioners and policy-makers alike with applications for IT law experts and companies active in e-commerce. Providing a strong doctrinal base for an area of ever increasing importance and attention, this book will also be a valuable reference for academics working in the fields of IT law and PIL.

Additional information plus access to its detailed table of contents are available here.

I am most grateful to Hans Baron van Houtte, my predecessor in the conflicts chair at Leuven, for alerting me to the partial award of the Iran-US claims tribunal of 10 March last (case No. A15 (II:A)). Hans is a former President of the tribunal, which was established by the ‘Algiers declarations’ following the 1979 Tehran hostage crisis.

The award (a mere 691 pages) and separate opinions can best be accessed here. In the 10 March award, the Tribunal discussed at length the issue of the applicable law for transfer of title in movable property. In doing so, however, it also gives scholars a most wonderful insight and expose on the private international law /choice of law process in arbitration.

The issue is relevant for under the Algiers Declarations, the US is obliged to transfer to Iran, ‘Iranian properties’ subject to the jurisdiction of the United States on 19 January 1981. Hence what exactly constitutes ‘Iranian properties’?

From p.67 (para 135) onwards of the main award, the Tribunal discusses the general process of choice of law in arbitration, referring to a wealth of scholarship on the issue, going back to the mixed arbitral tribunals of the early 20th century etc. For anyone interested in the issue, this is most compelling reading. Many greats of PIL are cited, including the late prof Francois Rigaux (pictured here at Leuven in 2010 with profs Weizuo Chen, Jacques Herbots, Marc Fallon, and myself).

The Tribunal’s conclusion on the issue is that under the ‘general principles of private international law’, the lex rei sitae of the movable governs the passing of title in movable property.

The Tribunal does not hide the further complexities of this rule, including of course the very determination of that situs, and the role of lex contractus.

Indeed for instance on p.272 ff (para 967 ff) the Award discusses one particular claim concerning a case where, under the default rule of the lex rei sitae —- here, the goods were manufactured by, and in the possession of, Zokor, which was situated in the State of Illinois, United States. The applicable lex rei sitae is therefore the law of Illinois  —-property is passed by delivery, and where, under the default rule of the lex contractus –– here arguably Iranian law –– title is already passed by the conclusion of the sales contract or as soon as the goods are manufactured.

At 973 the Tribunal notes the choice of law pro Iranian law, made by the parties, However, it holds ‘the situs was and remained, during all relevant points in time, Illinois. Consequently, according to the general principle of private international law, as identified earlier in this Partial Award, it was for Section 2-401(2) UCC in connection with other contract law of the situs to determine whether the parties had agreed to derogate from the fallback rule.’ (which the Tribunal found, they had not).

That is not entirely crystal clear, and indeed in his separate Opinion prof van Houtte, while generally happy with the Tribunal’s approach, points out some inadequacies:

At 13: ‘The Parties assumed for years that the determination of whether property was “Iranian” as between the seller and the buyer was a contractual issue between those parties governed, inter alia, by the proper law of the contract (lex contractus). It was only at the Hearing session on 9 October 2013 that – in response to a question from the bench – the Parties’ argumentation focused on the lex rei sitae; from that point on, the lex contractus was virtually no longer considered. (…) I regret that the contractual aspects of the transfer of property rights inter partes and the impact of the law of the contract thereupon were not further explored at the Hearing’.

at 15: ‘I observe that the Parties could also have further elaborated on the extent to which the legal situs necessarily coincides with the geographical location of assets in export sales or turn-key contracts.’

And at 18, specifically with respect to the Zokor case that I mention above, ‘One may wonder, de lege ferenda, whether in Claim G-111 (Zokor) it was necessary for the Tribunal to construe and apply its own “general principles of international private law”’ and whether it should not instead adopt the approach which Iranian courts would have applied. These would have had jurisdiction pre the 1979 agreement and the transfer of jurisdiction to the Tribunal, van Houtte argues, does not imply it should settle contractual disputes under different principles than the Iranian courts would have applied’.

A most, most interesting read.

Geert.

 

On 16 April 2020, the Hague Conference announced that the Guide to Good Practice on the Use of Video-Link under the 1970 Evidence Convention has been published. “The Guide analyses the latest developments in relation to the use of video-link in the taking of evidence under the HCCH 1970 Evidence Convention, including references to internal law and other international agreements. It also outlines good practices to be followed and reflects the information provided by Contracting Parties in their respective Country Profiles”. It may be found here

Source: here

 

Background: “At its thirty-fifth session (New York, 13–17 May 2019), the [UNCITRAL] Working Group considered a draft convention prepared by the Comité Maritime International (CMI) on the recognition of foreign judicial sales of ships, known as the “Beijing Draft” […]. The Working Group decided that the Beijing Draft provided a useful basis for its deliberations on the topic of the judicial sale of ships”.

An annotated second revision of the Beijing Draft has now been released. It may be found here along with a note by the UNCITRAL secretariat there

Relevant UNCITRAL meetings have been suspended due to coronavirus.

AG Szpunar delivered today his opinion in Case C‑253/19 (MH, NI v OJ, Novo Banco SA), which is about the concept of the ‘centre of main interests’ of the Insolvency bis Regulation.

The background and the question: “1. The concept of the ‘centre of main interests’ formed the cornerstone of the system established by Regulation (EC) No 1346/2000. That concept was set out in Article 3(1) of that regulation, and was used as a connecting factor designating the courts having jurisdiction to open insolvency proceedings against a debtor. […] the Court had not yet had the opportunity to address the interpretation of that concept in the context of natural persons not exercising an independent business or professional activity who benefit from the free movement of persons and workers.
2. Regulation No 1346/2000 was repealed by Regulation (EU) 2015/848, which also uses the concept of ‘centre of main interests’. The question in the present case is as follows: can the Court’s case-law, developed within the framework of Regulation No 1346/2000 and relating to that concept, be transposed — and if so, to what extent — to proceedings against a natural person who is in the situation referred to above? This case thus provides the Court with the opportunity to rule on jurisdiction in insolvency matters in relation to any person not pursuing an activity as a self-employed person who exercises his right of free movement, and whose assets are located in the Member State of his former habitual residence”.

The suggested response: “Article 3(1), first and fourth subparagraphs, of Regulation (EC) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption that the habitual residence of a debtor who is a natural person not engaged in a self-employed activity is the centre of his main interests may be rebutted if the place of habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of his revenue is earned and spent, or as the place where the major part of his assets is located.

However, that presumption cannot be rebutted in favour of the Member State within the territory of which a debtor’s sole immovable asset is located in the absence of any other indication that the centre of that debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor”.

Source: here

AG Szpunar delivered on 23 April 2020 his opinion in Case C‑73/19 (Belgische Staat v
Movic BV, Events Belgium BV, Leisure Tickets & Activities International BV), which is about the concept of ‘civil and commercial matters’ in Brussels I bis.

The issue: “In its judgment of 1 October 2002, Henkel, the Court held that the concept of ‘civil and commercial matters’, which defines the scope of the majority of EU instruments of private international law, encompassed proceedings in which an action for an injunction preventing the use of unfair terms was brought by a consumer protection association. By this reference for a preliminary ruling, the referring court asks the Court to determine whether that concept also encompasses proceedings in which the public authorities of a Member State bring an action in relation to unfair market and/or commercial practices”.

The suggested response: “Article 1(1) of Regulation (EU) No 1215/2012 […] must be interpreted as meaning that proceedings relating to an action brought by the public authorities of a Member State against persons governed by private law established in another Member State, in which a declaration is sought that infringements constituting unfair commercial practices have taken place, together with an order for the cessation of those practices, an order for measures of publicity at the expense of the defendants, and an order for penalty payments to be made in a fixed amount in respect of every future infringement, fall within the scope of ‘civil and commercial matters’ within the meaning of that provision.

On the other hand, such proceedings do not fall within the scope of that expression in so far as they relate to an action in which the public authorities seek the grant of special powers that go beyond those arising from the rules applicable in relationships between private individuals”.
Source: here

The Court of Appeal in [2020] EWCA Civ 574 Enka Insaat Ve Sanayi AS v OOO “Insurance Company Chubb” & Ors has overturned Baker J in [2019] EWHC 3568 (Comm) Enka Insaat ve Sanayi v OOO “Insurance Company Chubb” et al. which I reviewed here.

The case is mostly about the proper law of the arbitration agreement (Flaux J using the shorthand the ‘AA law’) aka the lex arbitri. Given that this is excluded from Rome I, residual rules apply which of course under English common law has Sulamerica as its main authority. In this case Enka contends that the AA law is English law, and Chubb Russia that it is Russian law. It is common ground that the lex contractus is Russian law, but the route to that conclusion is also in issue.

The dispute in this case raises the question of the relative weight to be given to the curial law (that is, the law of the seat, GAVC) of the arbitration agreement and the main contract law, where they differ, in determining the AA law. At 69:  ‘It is a question on which it would be idle to pretend that the English authorities speak with one voice. It would appear that there are also differences of approach between other jurisdictions in international arbitration generally’.

At 109 Flaux J concludes that parties have impliedly chosen that the proper law of the arbitration agreement should coincide with the curial law and be English law, and further, at 119 that ‘there has been no delay by Enka in this case which provides any good reason for not granting injunctive relief. I would treat this as a classic case, like The Angelic Grace, in which the court should grant an injunction to restrain the further conduct of proceedings brought in breach of an English law arbitration agreement.’

Anti-suit therefore granted.

For those interested in choice of law in arbitration, the judgment is required reading.  None of the Rome I (let alone Brussels Ia) issues discussed at the High Court are further discussed here, hence for the purposes of this blog I shall leave the analysis here.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.1. 

Cour d'assises des mineurs

Secret professionnel - Vie privé

The latest issue of the Italian Journal Diritto del commercio internazionale (34.1/2020) features an article (in English) on “Brexit and Cross-Border Insolvency Looking Beyond the Withdrawal Agreement” written by Antonio Leandro (University of Bari).

The abstract of the article reads as follows: “The UK and the EU have concluded the Withdrawal Agreement which officially triggers the so-called Brexit. However, the real effects of the Brexit still are unclear, at least as regards the future following the end of the transition period provided for by the Withdrawal Agreement during which the UK will be treated as if it were a Member State. After the transition period, mini hard Brexit(s) are in fact likely for matters currently governed by the EU Law that the Parties will not want to relocate in new legal frameworks, such as bilateral treaties. The paper addresses the consequences of a mini hard Brexit for cross-border insolvency proceedings involving the UK and the Member States with the aim to explain why this specter should be avoided”.

Today, Advocate General Szpunar delivered his Opinion in Case C-253/19 – MH, NI v. OJ, Novo Banco SA. As is generally known, Article 3 of Regulation 2015/848, entitled ‘International jurisdiction’, provides in paragraph 1:

‘The courts of the Member State within the territory of which the centre of the debtor’s main interests is situated shall have jurisdiction to open insolvency proceedings (“main insolvency proceedings”). The centre of main interests shall be the place where the debtor conducts the administration of its interests on a regular basis and which is ascertainable by third parties.

In the case of a company or legal person, the place of the registered office shall be presumed to be the centre of its main interests in the absence of proof to the contrary. That presumption shall only apply if the registered office has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of an individual exercising an independent business or professional activity, the centre of main interests shall be presumed to be that individual’s principal place of business in the absence of proof to the contrary. That presumption shall only apply if the individual’s principal place of business has not been moved to another Member State within the 3-month period prior to the request for the opening of insolvency proceedings.

In the case of any other individual, the centre of main interests shall be presumed to be the place of the individual’s habitual residence in the absence of proof to the contrary. This presumption shall only apply if the habitual residence has not been moved to another Member State within the 6-month period prior to the request for the opening of insolvency proceedings.’

As the Opinion explains (paras. 4 et seq.):

4. The applicants are married to each other and, since 2016, have been resident in Norfolk (United Kingdom), where they are engaged in paid employment. The couple made a request to the Portuguese courts to declare them insolvent. The court of first instance declared that it did not have international jurisdiction to rule on their request, holding that, under the fourth subparagraph of Article 3(1) of Regulation 2015/848, the centre of their main interests was their place of habitual residence, namely the United Kingdom.

5. The applicants brought an appeal against that judgment before the referring court, claiming that it was based on a misinterpretation of the rules laid down by Regulation 2015/848. In that regard, they submitted that, in so far as the sole immovable asset that they owned was located in Portugal, where all the transactions which gave rise to their insolvency had occurred, the centre of their main interests was not their place of habitual residence (United Kingdom), but was located in Portugal. Moreover, they claimed that there is no connection between their current place of residence and the events that led to their insolvency, which occurred entirely in Portugal.

6. The referring court has doubts as to the correct interpretation of Article 3(1) of Regulation 2015/848 and is uncertain, in particular, of the criteria to be used for the purpose of rebutting the simple presumption laid down in that provision for natural persons not exercising an independent business or professional activity, according to which, for such persons, the habitual residence of the concerned party is presumed to be the centre of that party’s main interests in the absence of proof to the contrary.

7. In that regard, the referring court points out that recital 30 of that regulation states that, in the case of natural persons not exercising an independent business or professional activity, it should be possible to rebut that presumption, for example where the major part of the debtor’s assets is located outside the Member State of the debtor’s habitual residence.

AG Szpunar proposed (paras. 65 et seq.) that the Court should answer the question referred for a preliminary ruling by the Tribunal da Relação de Guimarães (Court of Appeal, Guimarães, Portugal) as follows:

Article 3(1), first and fourth subparagraphs, of Regulation (EC) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings must be interpreted as meaning that the presumption that the habitual residence of a debtor who is a natural person not engaged in a self-employed activity is the centre of his main interests may be rebutted if the place of habitual residence does not fulfil its role as the place where a debtor’s economic decisions are taken, as the place where the majority of his revenue is earned and spent, or as the place where the major part of his assets is located.

However, that presumption cannot be rebutted in favour of the Member State within the territory of which a debtor’s sole immovable asset is located in the absence of any other indication that the centre of that debtor’s main interests is located in that Member State. That fact may be determined on the basis of objective factors which are ascertainable by third parties (current and potential creditors) and relate to the financial interests of that debtor.