Agrégateur de flux

In [2019] EWHC 2717 (QB) Sadik v Sadik, the claim is one in libel. Claimant is a businessman and philanthropist who lives in Dubai and spends 30 to 35 days in London each year. Claimant and Defendant are brother and sister in law .Defendant has a house in Kuwait with her husband. Until at least 19 September 2017 she lived in London, whilst also maintaining a house in Kuwait.

Defendant is prepared to accept for the purposes of this application that the relevant date for determining domicile is the date proceedings were commenced, ie 26 September 2017: see inter alia JSC BTA Bank v Mukhtar Ablyazov. (Upheld on Appeal). Should no domicile in the UK (or another EU /Lugano State) be upheld, forum non conveniens kicks in.

The UK Defamation Act 2013 (the DA 2013) was entered precisely to address libel tourism in the UK. It reads in relevant part (Section 9)

 “Action against a person not domiciled in the UK or a Member State etc 

(1) This section applies to an action for defamation against a person who is not domiciled 

(a) in the United Kingdom; (b) in another Member State; or (c) in a state which is for the time being a contracting party to the Lugano Convention.

(2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement.

(3) The references in subsection (2) to the statement complained of include references to any statement which conveys the same, or substantially the same, imputation as the statement complained of.

(4) For the purposes of this section –(a) a person is domiciled in the United Kingdom or in another Member State if the person is domiciled there for the purposes of the Brussels Regulation; (b) a person is domiciled in a state which is a contracting party to the Lugano Convention if the person is domiciled in the state for the purposes of that Convention.”

Defendant says that the Claimant cannot possibly satisfy the test in s 9(2). That is because Claimant in her view does not complain of any publication within this jurisdiction. She submits that s 9 implicitly requires the words complained of to have been published in England and Wales: ‘of all the places in which the statement complained of has been published…’. In effect, she says that s 9 means that this court does not have jurisdiction to hear a claim against a defendant not domiciled in the jurisdiction (or within a Brussels/Lugano state) for a claim in respect of solely foreign publication. In the alternative, if is necessary for the court to compare jurisdictions to determine which is the most appropriate forum for trial Defendant submits that the burden is on the Claimant to demonstrate that England and Wales is clearly the most appropriate forum, and there is no realistic prospect of him being able to discharge that burden. She points in particular to the fact that both of the parties are based in the Middle East, as are all of the publishees of the What’sApp Messages concerned, save for one, who is based in the United States.

Claimant submits that Defendant has submitted to the jurisdiction and so can no longer dispute the Court’s jurisdiction under s 9 of the DA 2013, or otherwise. Further or alternatively, he submits that provision is of no assistance because she was domiciled within the jurisdiction at the relevant time.

At 55 Knowles J holds that failure by a defamation defendant to follow the procedure in Part 11 of the civil procedure rules, for contesting jurisdiction under s 9 does not mean that her right to make a jurisdictional challenge under that section has been waived. ‘Section 9(2) is in mandatory form. Where the defendant is not domiciled within one of the specified jurisdictions then s 9(2) provides (emphasis added), ‘A court does not have jurisdiction to hear and determine an action to which this section applies unless …’. In my judgment jurisdiction under s 9 cannot be conferred by waiver, submission or consent. It is concerned with the subject matter of the suit and not with personal jurisdiction over the defendant.’ In the DA 2013 Parliament in other words inserted mandatory rules on jurisdiction which are not within the remit of party autonomy.

At 60 ff then follows the analysis of ‘domicile’ for natural persons under English law (following Article 62 Brussels Ia’s deference to national law), leading to a conclusion of domicile in the UK at the relevant time.

The remainder of the case discusses grounds for summary dismissal on the grounds of substantive English libel law.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.10

Dans l’arrêt rapporté, la chambre criminelle apporte d’utiles précisions au sujet de la caractérisation du crime d’extorsion avec violences ayant entraîné la mort. 

en lire plus

Written by Mayela Celis

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is organising an event entitled HCCH a / Bridged: Innovation in Cross-Border Litigation and Civil Procedure, which will be held on 11 December 2019 in The Hague, the Netherlands. This year edition will be on the HCCH Service Convention.

The agenda and the registration form are available here. The deadline for registrations is Monday 11 November 2019. The HCCH news item is available here.

A bit of background with regard to the HCCH Service Convention and IT: As you may be aware, the Permanent Bureau published in 2016 a Practical Handbook on the Operation of the Service Convention (available for purchase here), which contains a detailed Annex on the developments on electronic service of documents (and not only with regard to the Service Convention). In that Annex, developments on the service of documents by e-mail, Facebook, Twitter, etc. and its interrelationship with the Service Convention were analysed.  Not surprisingly, cases where electronic service of process was used were rare under the Service Convention (usually, the physical address of the defendant is not known, thus the Service Convention does not apply and the courts resort to substituted service).

A more important issue, though, appears to be the electronic transmission of requests under the Service Convention. According to a recent conclusion of the HCCH governance council, it was mandated that:

Electronic transmission of requests

“40. Council mandated the Permanent Bureau to conduct work with respect to the development of an electronic system to support and improve the operation of both the Service and Evidence Conventions. The Permanent Bureau was requested to provide an update at Council’s 2020 meeting. The update should address the following issues: whether and how information technology would support and improve the operation of the Conventions; current practices on the electronic transmission of requests under the Conventions; legal and technological barriers to such transmission and how best to address these; and how a possible international system for electronic transmission would be financed. “

In contrast, the European Union seems to be more at the forefront in encouraging electronic service of documents as such, see for example the new proposal for Regulation on the service of judicial and extrajudicial documents in civil or commercial matters, click here (EU Parliament, first reading).

Article 15a reads as follows:

“Electronic service

1. Service of judicial documents may be effected directly on persons domiciled in another Member State through electronic means to electronic addresses accessible to the addressee, provided that both of the following conditions are fulfilled: [Am. 45]

(a) the documents are sent and received using qualified electronic registered delivery services within the meaning of Regulation (EU) No 910/2014 of the European Parliament and of the Council, and [Am. 46]

(b) after the commencement of legal proceedings, the addressee gave express consent to the court or authority seized with the proceedings to use that particular electronic address for purposes of serving documents in course of the legal proceedings. [Am. 47].”

By adding the word “both” the European Parliament seems to restrict electronic service to documents after service of process has been made (see previous European Commission’s proposal). This, in my view, is correct and gives the necessary protection to the defendant. In the future and with new IT developments, this might change and IT might be more widely used by all citizens (think of a government account for each citizen for the purpose of receiving government services and service of process -although service of process comes as a result of private litigation so this might be sensitive-), and thus this might provide more safeguards. In my view, the key issue in electronic service is to obtain the consent of the defendant (except for cases of substituted service).

In [2019] EWHC 2426 (Comm) AMP Advisory & Management Partners AG v Force India Formula One Team Ltd (in liquidation), Moulder J leads a most complete and interesting analysis of the formation or not of a contract, oral or written, under English law. I keep this post short for it is mostly intended for library purposes and for the benefit of my comparative law colleagues, who are best served by simple reference to the judgment.

Geert.

On 24 and 25 October, the 3rd IBA Litigation Committee Conference on Private International Law will take place in Palazzo Turati, Milan, Italy. It will deal with Brexit, International Commercial Courts and Sanctions. More information are available on the IBA conference website.

The programme reads as follows:

Welcome remarks

• Angelo Anglani NCTM, Rome; Co-Chair, IBA Litigation Committee
• Vinicio Nardo Chairman, Consiglio dell’Ordine degli Avvocati di Milano, Milan

Keynote address
International dispute resolution in turbulent times – is there a role for private international law?

Professor Fausto Pocar Università degli Studi di Milano, Milan

Session One

Brexit – the impact on jurisdiction and private international law

With just one week until the deadline, we will check the status of the most controversial event in the history of the European Union. The session will focus on the impact of Brexit on jurisdiction and private international law and look at the possible effects on solutions and perspectives in international commercial disputes.

Session Chair
Carlo Portatadino Weigmann, Milan; Secretary, IBA Litigation Committee

Speakers

• Professor Stefania Bariatti Università degli Studi di Milano, Milan
• Alexander Layton QC Twenty Essex, London

Session Two

The mushrooming of International Commercial Courts throughout Europe – reasons and perspectives

In 2016, on the occasion of the 2nd IBA Litigation Committee Conference on Private International Law, we explored the new phenomenon of the International Commercial Courts and discussed whether the 2005 Hague Convention on Choice of Court Agreements could enhance their role in international commercial dispute resolution. Since that time, and also in light of Brexit we have been assessing the mushrooming of International Commercial Courts throughout Europe. This session will examine the experiences of several jurisdictions and focus on the future perspective on the phenomenon in Europe.

Session Chair
Jacques Bouyssou Alerion, Paris; Treasurer, IBA Litigation Committee

Speakers

• Martin Bernet Bernet Arbitration / Dispute Management, Zurich
• Hakim Boularbah Loyens & Loeff, Brussels
• Jean Messinesi Honorary President, Tribunal de Commerce de Paris, Paris
• Duco Oranje President, NCC Court of Appeal, Amsterdam
• Professor Giesela Rühl Friedrich-Schiller-Universität Jena, Jena
• Mathias Wittinghofer Herbert Smith Freehills, Frankfurt

Session Three

Sanctions – politics, procedures and private international law

This session will consider the increasing impact of sanctions on politics and economics. The panellists will present the workings of the European and US sanctions systems and illustrate the resulting consequences on international trade and cross-border disputes. The session will also focus on how clients approach and deal with the matter.  

Session Chair
Christopher Tahbaz Debevoise & Plimpton, New York

Speakers

• Shannon Lazzarini Group Deputy General Counsel & Head of Group Litigation, Unicredit, Milan
• Richard Newcomb DLA Piper, Washington DC
• Michael O’Kane Peters & Peters, London
• Marco Piredda Senior Vice-President, International Affairs, ENI, Rome
• Professor Hans van Houtte KU Leuven, Leuven, Belgium

Closing remarks

Tom Price Gowling WLG, Birmingham; Co-Chair, IBA Litigation Committee

In C-548/18 BNP Paribas v TeamBank, the CJEU held on the issue whether the Rome I Regulation can be interpreted as determining the applicable law with regard to the third-party effects of an assignment of a claim in the case of multiple assignments, for the purpose of determining the holder of that claim.

The factual matrix is very recognisable: a debtor gets into debt with multiple creditors, and assigns each of them the attachable share of current and future claims to wages and salary, including in particular claims to pension benefits. One of the creditors, first to have been assigned, is a German bank (TeamBank). The employer was not told of the assignment. The second creditor is a Luxembourg bank that does inform the employer as they are bound to under Luxembourg law.

The Amtsgericht Saarbrücken (Germany) opens insolvency proceedings against the debtor. The appointed trustee in insolvency received, from the debtor’s employer in Luxembourg, a share of her salary, in the amount of EUR 13 901.64, and deposited that amount with the District Court. The trustee was uncertain as to the identity of the creditor of the said amount, each of the two parties to the main proceedings asserting preferential rights relating, in the case of TeamBank, to a claim of EUR 71 091.54 and, in the case of BNP, EUR 31 942.95. TeamBank and BNP brought, respectively, an action and a counterclaim before the Landgericht Saarbrücken, requesting the lifting of the lodgement in respect of the entire amount of EUR 13 901.64. That court upheld TeamBank’s action and dismissed BNP’s counterclaim.

Jurisdiction is not at issue, Article 26 Bru Ia applies.

Can Article 14 Rome I Regulation (see text below) be interpreted as determining the applicable law with regard to the third-party effects of an assignment of a claim in the case of multiple assignments, for the purpose of determining the holder of that claim? Or should its silence on same be interpreted as having been intentional (excluding such cover, leaving it to residual national conflicts rules).

The CJEU first of all observes that the wording of Article 14 of the Rome I Regulation does not refer to the third-party effects of an assignment of a claim.

Further, at 32, it reviews the context in which Article 14 Rome I is set. It refers to recital 38 which states that ‘matters prior to’ an assignment of a claim, such as a prior assignment of the same claim in the context of multiple assignments, despite the fact that they may represent a ‘property aspect’ of the assignment of the claim, do not fall within the concept of a ‘relationship’ between the assignor and the assignee within the meaning of Article 14(1) of that regulation. That recital specifies that the term ‘relationship’ should be strictly limited to those aspects which are directly relevant to the assignment in question.

(Note that recitals are qualified merely as context, therefore. Readers are aware that I often take issue with material conflict of laws rules being included in recitals of EU Regulations).

At 33, the CJEU further refers to the legislative history: the EC had proposed a rule re third-party effect however that rule did not make it into the final text, indeed the Commission per Article 27(2) Rome I was required to submit ‘a report on the question of the effectiveness of an assignment or subrogation of a claim against third parties’ and, if appropriate, ‘a proposal to amend the [Rome I Regulation] and an assessment of the impact of the provisions to be introduced’. That proposal materialised in 2018.

In conclusion, under EU law as it currently stands, the absence of rules of conflict expressly governing the third-party effects of assignments of claims is a choice of the EU legislature. Residual rules take over.

Geert.

(Handbook of) EU Private International Law, 2nd ed 2016. Chapter 3.

Article 14

Voluntary assignment and contractual subrogation

1.   The relationship between assignor and assignee under a voluntary assignment or contractual subrogation of a claim against another person (the debtor) shall be governed by the law that applies to the contract between the assignor and assignee under this Regulation.

2.   The law governing the assigned or subrogated claim shall determine its assignability, the relationship between the assignee and the debtor, the conditions under which the assignment or subrogation can be invoked against the debtor and whether the debtor’s obligations have been discharged.

3.   The concept of assignment in this Article includes outright transfers of claims, transfers of claims by way of security and pledges or other security rights over claims.

Hospitalisation d'office

Protection des consommateurs

Procédures civiles d'exécution

Construction immobilière - Prescription civile

With judgment of 17 October 2019 (III ZR 42/19) the German Federal Supreme Court held that a contracting party may be entitled to compensation for the costs incurred through the violation of a choice of court agreement. The basic facts and the main reasoning of the Court is summarized below. The full press release (in German) is available here.

Facts of the case:

The parties involved in the litigation were telecommunications companies. The defendant was domiciled in Bonn (Germany) and the plaintiff was domiciled in Washington, D.C. (United States). They were linked through an “Internet Peering Agreement” according to which they were mutually required to receive the data traffic of the other party at so-called peering points, to transport it on their network to the customers connected via the network and to provide the necessary transmission capacity at the peering points within their networks. The contract provided for application of German law and jurisdiction in Bonn (Germany).

In 2016, after the plaintiff’s efforts to achieve the (free) increase in transmission capacity had failed, it filed a lawsuit in a District Court in the United States. requesting the creation of additional capacity. The District Court dismissed the claim for lack of jurisdiction pointing to the choice of forum clause in the contract. The plaintiff, therefore, filed a lawsuit with the Bonn Regional Court whereas the defendant filed a counterclaim demanding reimbursement of the costs it incurred through the proceedings in the United States.

The Bonn Regional Court dismissed the main lawsuit, but granted the counterclaim which, however, was rejected upon appeal of the plaintiff by the Court of Appeal. The Federal Supreme Court with its judgement of 17 October 2019 reversed the Court of Appeal judgment and held that the defendant is, in fact, entitled to reimbursement of its costs.

Legal reasoning:

The Federal Supreme Court argues that the parties’ agreement, notably the choice of court and the choice of law clause, is to be interpreted as meaning that the parties are required to bring actions only in Bonn and failing that – at least to the extent that the court seized, such as the District Court, recognizes the lack of jurisdiction – to reimburse the other party for the costs incurred thereby. The parties, through the choice of court and choice of law clause, expressed their interest in making legal disputes foreseeable both from a substantive and a procedural point of view. It was the parties’ aim to create legal certainty and to make the (economic) risk associated with litigation calculable. By specifying a place of jurisdiction, they aimed to prevent forum shopping and to avoid costly disputes about jurisdiction. This goal the Federal Supreme Court argues, can only be achieved if the aggrieved party is entitled to reimbursement of its costs.

On 3rd October, the amendments to the Reciprocal Enforcement of Foreign Judgments Act (“REFJA”) came into force. REFJA is based on the UK Foreign Judgments (Reciprocal Enforcement) Act 1933, but in this recent round of amendments has deviated in some significant ways from the 1933 Act. The limitation to judgments from “superior courts” has been removed. Foreign interlocutory orders such as freezing orders and foreign non-money judgments now fall within the scope of REFJA. So too do judicial settlements, which are defined in identical terms to the definition contained in the Choice of Court Agreements Act 2016 (which enacted the Hague Convention on Choice of Court Agreements into Singapore law).

In relation to non-money judgments, such judgments may only be enforced if the Singapore court is satisfied that enforcement of the judgment would be “just and convenient”. According to the Parliamentary Debates, it may not be “just and convenient” to allow registration of a non-money judgment under the amended REFJA if to do so would give rise to practical difficulties or issues of policy and convenience. The Act gives the court the discretion to make an order for the registration of the monetary equivalent of the relief if this is the case.

An interlocutory judgment need not be “final and conclusive” for the purposes of registration under REFJA. The intention underlying this expansion is to allow Singapore courts to enforce foreign interlocutory orders such as asset freezing orders. This plugs a hole as currently Mareva injunctions are not regarded as free-standing relief under Singapore law. It has recently been held by the Court of Appeal that the Singapore court would only grant Mareva injunctions in aid of foreign proceedings if: (i) the Singapore court has personal jurisdiction over the defendant and (ii) the plaintiff has a reasonable accrued cause of action against the defendant in Singapore (Bi Xiaoqing v China Medical Technologies Inc [2019] SGCA 50).

New grounds of refusal of registration or to set aside registration have been added: if the judgment has been discharged (eg, in the event of bankruptcy of the judgment debtor), the damages are non-compensatory in nature, and if the notice of the registration had not been served on the judgment debtor, or the notice of registration was defective.

It is made clear that the court of origin would not be deemed to have had jurisdiction in an action in personam if the defendant voluntarily appeared in the proceedings solely to invite the court in its discretion not to exercise its jurisdiction in the proceedings. Henry v Geoprosco [1976] QB 726 would thus not apply for the purposes of REFJA although its continued applicability at common law is ambiguous (see WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka [2002] 1 SLR(R) 1088).

All along, only judgments from the superior courts of Hong Kong SAR have been registrable under REFJA. The intention now is to repeal the Reciprocal Enforcement of Commonwealth Judgments Act (“RECJA”; based on the UK Administration of Justice Act 1920) and to transfer the countries which are gazetted under RECJA to the amended REFJA. The Bill to repeal RECJA has been passed by Parliament.

The amended REFJA may be found here: https://sso.agc.gov.sg/Act/REFJA1959