Agrégateur de flux

Assurance - Accident de la circulation

In C‑641/18 Szpunar AG opined on Tuesday and notes that the request of the referring court brings to mind the current debate about the influence of human rights on private international law. It seeks to ascertain whether and, if so, to what extent the scope of ‘civil and commercial’ in the Brussels Ia Regulation may be influenced by the interest in ensuring access to the courts, a right guaranteed by Article 47 Charter.

(The case itself is subject to Brussels I which did not yet include ‘acta iure imperii’. As the AG notes at 56, this is merely a clarification following CJEU interpretation of the previous concept.

Relatives of the victims, along with survivors of the sinking of the Al Salam Boccaccio ’98, a ship sailing under the flag of the Republic of Panama, which happened in 2006 on the Red Sea and caused the loss of more than a thousand lives, have brought an action before the District Court, Genoa against the companies Rina SpA et Ente Registro Italiano Navale. Claimants argue that the defendant’s certification and classification activities, the decisions they took and the instructions they gave, are to blame for the ship’s lack of stability and its lack of safety at sea, which are the causes of its sinking.

Defendants plead immunity from jurisdiction. They state that they are being sued in respect of certification and classification activities which they carried out as delegates of a foreign sovereign State, namely the Republic of Panama. They argue activities in question were a manifestation of the sovereign power of the foreign State and the defendants carried them out on behalf of and in the interests of that State.

The AG first of all reviews how the principle of customary international law concerning the jurisdictional immunity of States relates to the scope ratione materiae of Brussels Ia. He starts his analysis noting that in the absence of codification at international level (international conventions on the issue not having met with great success), the principle concerning the jurisdictional immunity of States remains to a large extent governed by customary international law.

There is little use in quoting large sections of the Opinion verbatim so please do refer to the actual text: the AG opines (referring ia to C-154/11 Mahamdia) that it is unnecessary to refer to the principle of customary international law concerning State immunity from jurisdiction when considering the scope ratione materiae of Brussels Ia. Those principles he suggests do play a role when it comes to enforcing any exercise of such jurisdiction against the will of the party concerned.

At 46: ‘the distinction between disputes which are civil or commercial matters and those which are not must be drawn by reference to the independent criteria of EU law identified by the Court in its case-law. Consequently, an act performed in the exercise of State authority (acta iure imperii) from the perspective of the law relating to immunity, is not necessarily the same as an act performed in the exercise of State authority according to the independent criteria of EU law.’ (The latter as readers of the blog will know, are not always clearly expressed; see ia my review of Buak).

In the second place, the AG then considers whether an action for damages brought against private-law entities concerning their classification and/or certification activities falls within the scope of BIa. At 83, following extensive review of the case-law (almost all of which I also reviewed on the blog and for earlier cases, in Chapter 2 of the Handbook), the AG opines that neither the fact that the acts in question were performed on behalf of and in the interests of the delegating State nor the possibility of the State’s incurring liability for harm caused by those acts, in itself conclusively characterises those acts as ones performed in the exercise of powers falling outside the scope of the ordinary legal rules applicable to relationships between private individuals. 814/79 Rüffer also makes a non-conclusive appearance.

At 95 then follows the core of the factual assessment: defendants’ role is limited to carrying out checks in accordance with a pre-defined regulatory framework. If, following the revocation of a certificate, a ship is no longer able to sail, that is because of the sanction which, as the defendants admitted at the hearing, is imposed by Panama law. Not acta iure imperii – the issue falls under Brussels Ia.

Finally, must as a result of a plea of immunity from jurisdiction a national court decline to exercise the jurisdiction which it ordinarily derives from the Regulation? In a section which will be interesting to public international lawyers, the AG reviews international and EU law (particularly Directive 2009/15) and concludes that there is no principle in international law which grants immunity to certification agencies in cases such as the one at hand.

To complete the analysis, the AG opines that should the Court disagree with his views on immunity, the national court’s views on jurisdiction would not be impacted by the right to court guarantees of the Charter, for there is no suggestion at all that the victims would not have proper access to Panamian courts for their action.

Note of course that the Opinion does not address lex causae.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.

 

Ce jeune hacker français avait piraté un site du ministère de la justice. En détention préventive dans un autre dossier, il a été condamné lundi 13 janvier à quatre mois de prison avec sursis.

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Le procès du prêtre Bernard Preynat poursuivi pour agressions sexuelles sur dix scouts, âgés de 7 à 15 ans entre 1986 et 1989, a lieu au tribunal de grande instance de Lyon. Il encourt jusqu’à dix ans de prison.

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Saisie

Saisie

Majeur protégé

Mineur

Privacy International
Principes du droit communautaire
Avocat général Campos Sánchez-Bordona : les moyens et les méthodes de la lutte antiterroriste doivent répondre aux exigences de l’État de droit

Cet arrêt de rejet est l’occasion, pour la chambre criminelle, de procéder à d’utiles rappels à propos de requêtes en nullité formulées dans la cadre d’une procédure pour infractions à la législation sur les stupéfiants.

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L’atteinte portée aux droits du titulaire d’un permis minier par l’arrêt, en 2040, de la recherche et de l’exploitation des hydrocarbures est justifiée et proportionnée à l’objectif d’intérêt général de limitation du réchauffement climatique, estime le Conseil d’État.

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Written by Prof. Dr. Stefan Arnold, University of Münster

Digitization, Artificial Intelligence and the blockchain technology are core elements of a historic transformation of modern society. Such transformations necessarily challenge traditional legal concepts. Hitherto, the academic discourse is much more intense in the area of substantial private law than it is in the area of Private International Law. Thus, a conference on the specific challenges of Artificial Intelligence and Digitization for Private International Law was long overdue. Stefan Arnold and Gerald Mäsch of the Institute of International Business Law (WWU Münster) organized a conference with that specific focus on November 8th at Münster University. The title of the conference was »Conflict of laws 4.0: Artificial Intelligence, smart contracts and bitcoins as challenges for Private International Law«. Around a hundred legal scholars, practitioners, doctoral candidates and students attended the conference.

The first speaker, Wolfgang Prinz of Fraunhofer Institute and Aachen University, provided insight into the necessary technical background. His presentation made clear that blockchain technology is already a key factor in international contracting, as e.g. in agricultural crop insurance policies. This introduction into complex digital processes to a largely non-tech-expert audience helped kick off the first round of vivid discussion. 

Michael Stürner of Konstanz University devoted his presentation to smart contracts and their role in applying the Rome I Regulation. After raising the question of a specific lex digitalis, he focused on the scope of the Regulation with regard to qualification, choice of law and the objective connecting factors. While he concluded that the respective contracts can mainly be treated on the basis of the Rome I Regulation, he also took a quick glance on subsequent questions in terms of virtual securities and the statute of form.

In the third presentation, Stefan Arnold of Münster University explored the issues Artificial Intelligence raises concerning party autonomy and choice of law. At the beginning of his presentation, he emphasized that these questions are closely related to the different levels of AI and their (lack of) legal capacity: As long as machines act as simple executors of human will, one should establish a normative attribution to the human being in question. For the cases in which the AI exceeds this dependency, Arnold claimed there was no answer in the Rome I Regulation, leaving the way open for the national rules, primarily Art. 5 II EGBGB. Finally, he discussed possibilities de lege ferenda such as applying the law of the country of effect and future gateways for the ordre public.

Jan Lüttringhaus of Hannover University presented about questions of insurance and liability in the context of Private International Law. In order to underline the importance of this topic, he referred to a provision in the usual insurance conditions presupposing the application of German national law. In a first step, he examined the international civil procedure law of the Brussels I bis Regulation as well as potential difficulties with state immunity. The second part of his lecture was dedicated to the problem of determining the applicable law in situations that feature a decentralization of injury and damage.

In the following presentation, Gerald Mäsch of Münster University proposed a solution for finding the applicable law to Decentralized Autonomous Organizations (DAOs). When legal practitioners try to determine which law applies, they usually resort to the traditional rules of domicile and establishment. Since DAOs have neither of the two, it cannot be subjected to the law of a specific nation by these two approaches. Leaving the international corporate law behind, Mäsch called for a return to the basics: If there is no primary choice of law, one should plainly refer back to the most significant relationship as stated by Savigny. Acknowledging the regular lack of publicity, he nonetheless insisted that this solution answered the parties’ needs at the best possible rate.

Bettina Heiderhoff of Münster University presented on how questions of liability can be solved in the context of autonomous systems. She started her presentation by raising the question whether autonomous systems could simply fall into the scope of the Product Liability Directive. Following up, the speaker focused on new fund and insurance systems and the deriving problems with regard to conflict of laws. She expanded upon Art. 5 of the Rome II Regulation and its applicability on autonomous systems, emphasizing the legislator’s intention behind the respective rules. 

In the following presentation, Matthias Lehmann of Bonn University examined the interaction between blockchain, bitcoin and international financial market law. After a short introduction into the basics of Distributed Ledger Technology (DLT), he shed light onto problems in international banking supervision and how they could be solved by implementing DLT-based solutions. He closed with a plea for common international regulations regarding cryptocurrencies.

Concluding remarks from a practitioners’ point of view were made by Ruth-Maria Bousonville and Marc Salevic from Pinsent Masons LLP. The speakers shared their perspective on the topics that had been raised by their predecessors and how practitioners deal with these questions in creating solutions for their clients. 

Le procès du prêtre Bernard Preynat poursuivi pour agression sexuelle sur dix scouts, âgés de 7 à 15 ans entre 1986 et 1989, a débuté au tribunal d egrande instance de Lyon. Il encourt jusqu’à dix ans de prison.

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