Agrégateur de flux

Dans cette décision, le Conseil constitutionnel, saisi par le Conseil d’État d’une question prioritaire de constitutionnalité (QPC) déclare l’article L. 228 du livre des procédures fiscales, relatif à la dénonciation obligatoire au parquet de certains faits de fraude fiscale, conforme à la Constitution.

en lire plus

Dans un arrêt du 18 septembre 2019, la Cour de justice se penche utilement sur la détermination du règlement européen applicable à une action visant à constater l’existence d’une créance invoquée suite à l’ouverte d’une procédure collective. Elle fournit également des précisions sur les modalités d’une déclaration de créance dans une procédure d’insolvabilité.

en lire plus

China is one of few countries that permits the parties to choose the applicable law governing cross-border infringement of intellectual property disputes. Article 50 of the Chinese Law Applicable to Foreign-Related Civil Relations 2010 (Conflicts Act) provides that the parties could choose Chinese law (lex fori) after dispute has arisen to derogate from the default applicable law, i.e. lex loci protectionis, in IP infringement disputes.

This choice of law rule was applied by the Beijing IP Court in its 2017 decision on Xiang Weiren v  Peng Lichong (“Drunken Lotus”), (2015) Jing Zhi Min Zhong Zi 1814. The claimant published his painting “Drunken Lotus” in 2007. In 2014, the defendant exhibited his artwork entitled “Fairy in Lotus” in Mosco and Berlin, which allegedly had infringed the claimant’s copyrights. Although the parties did not enter into an explicit choice of law agreement, both parties submitted their legal arguments based on Chinese Copyright Law, which was deemed an “implied” ex post choice of Chinese law. Beijing IP Court thus applied Chinese law to govern the infringement dispute.

This case reveals a number of interesting points. Party autonomy may provide a practical alternative to lex loci protectionis in infringements occurring in multiple jurisdictions. In the Drunken Lotus case, applying lex loci protectionis would result in the application of two foreign laws, Russian and German law, respectively to the infringement occurred in Russia and Germany. In the even worse scenario, where a copyright is infringed in the internet, the territoriality nature of copyrights may result in multiple, similar but independent, infringements occurring in all countries where the online information is accessed, causing more difficulties for the claimant to enforce their rights based on multiple applicable laws.

However, there may be no convincing argument to limit the choice to the lex fori. If party autonomy is justifiable in IP infringement, which is controversial, it would be appropriate for the parties to choose any law. The only justification of such a limitation probably sterns from judicial efficiency and pragmatism. It would be more convenient for the court to apply its own law. Also in practice, it is very common that when the litigation is brought in China and especially where both parties are Chinese, the parties naturally rely on Chinese law to support their claims or defences without being aware of the potential choice of law questions. It renders “implied” ex post choice exist very frequently and make it legitimate for Chinese court to apply Chinese law in most circumstances. It is also likely that allowing the parties to choose the lex fori could be an attractive reason for the claimants, especially those in multi-jurisdiction infringement disputes, to bring the action in China, granting Chinese court a competitive advantage versus other competent jurisdictions.

Furthermore, the Chinese law only permits party autonomy in infringement of IPRs. Any issues concerning substance of IPRs, including ownership, content, scope and validation, are exempt from party autonomy (Art 48 of Contracts Act). These issues are usually classified as the proprietary perspective of IPRs, exclusively subject to the lex protectionis to the exclusion of party autonomy. However, before a court could properly consider the infringement issue, it is inevitable to know at least the content and scope of the disputed IPR in order to ascertain parties’ rights and obligations. In other words, the substance and infringement of IPRs are two different, but closely related, issues. Applying party autonomy means the court should apply two different laws, one for the substance and the other infringement, causing depacage. The necessity to decide the content of IPRs may largely reduce the single law advantage brought by party autonomy in multi-jurisdictional infringements. In the Drunken Lotus case, Chinese court simply applied Chinese law to both the content and infringement issues, without properly considering substance and infringement classification.

Conference on Due Process in International Commercial Arbitration will be held on 18 Oct 2019 at the New York University Lester Pollack Colloquium Room, organised by NYU Centre for Transnational Litigation, Arbitration and Commercial Law.

This event will discuss the topics addressed in the national reports drafted on the basis of a questionnaire prepared by Professors Franco Ferrari, Dietmar Czernich, and Friedrich Rosenfeld. The ultimate goal behind the national reports and the discussion that will take place at the conference is to provide the necessary background information for the preparation of a set of guidelines on due process in international arbitration. The purpose of these guidelines is twofold. On the one hand, they will identify the appropriate standard of due process that arbitrators should apply in international arbitration proceedings. On the other hand, they will contain recommendations on how arbitrators can respond to misuses of due process by recalcitrant parties. To this end, they will identify appropriate case management techniques that help to ensure the efficiency of the proceedings. For further information, please find the Due Process Conference Program October 2019.

Parties’ names alone in Elena Tsareva et al v Dimitri Ananyev et al [2019] EWHC 2414 (Comm) clearly indicate the attraction of England in international forum shopping. As Baker J notes at 5:

‘I infer that the choice of this jurisdiction as a venue for the claimants’ claims has been led by the lawyers (Russian and English) who have engaged themselves in assisting the claimants as disappointed investors. Indeed, I think it unlikely it would have occurred to the claimants, unless so led, to try to sue here. The most natural targets for any claim are PSB and (possibly) the first defendant, so the most natural venues for any litigation (all things being equal) are Russia and (perhaps) Cyprus. But none of that means that this court does not have jurisdiction.’

One, as always, wonders where these cases might go should following Brexit (if any) the English courts will regain full authority to apply forum non conveniens.

The Ananyevs are Russian nationals who were domiciled and resident in Russia in 2017. One of them, when the Claims were commenced in 2018, was domiciled and resident in Cyprus, where he has had a dual citizenship since June 2017. They are, or at all events they were in 2017, well-known in Russia as successful and very wealthy businessmen. They were the ultimate beneficial owners together of a number of businesses and assets, including Promsvyaz Bank – PSB, of whom claimants were clients. The core allegation underlying the claimants’ claims is that they were induced to invest in Notes by mis-selling on the part of PSB employees to the effect that the Notes were personally guaranteed by the Ananyevs and/or that they were safe investments. It is alleged that PSB was in a parlous financial condition rendering it highly likely the Notes would default, as in due course they did; and that the misselling was directed by the Ananyevs in a conspiracy to enrich themselves and/or their businesses at the expense of the claimants.

Some of the corporate defendants are English companies, although ‘tax-resident’ in Ireland in 2017, in Cyprus from some time later (and still now). The English companies cannot and do not challenge jurisdiction (but they are struck out nevertheless given the absence of foundation to the claims). Promsvyaz is a Dutch company, the Issuer is a Cayman Islands company, and Peters International is a Dutch Antilles company. Other defendants are Cypriot companies.

There are a great many claimants with varying suggested gateways for jurisdiction, and one best read the judgment to get the full picture. In short, however, the gateways relevant to the Brussels regime (this blogpost does not focus on the English rules) are Article 4, 7(2), and 8(1). At 29, Baker J emphasises that for the anchor claim under Article 8(1), unlike in the English CPR rules, there cannot be a merits claim. But there can be abuse, per CJEU Reisch Montage, and CDC, as recently also applied in Privatbank v Kolomoisky. Unlike in the latter case, Article 34 is not engaged here. Baker J concludes after considerate yet concise analysis that there is no good arguable case against the English defendants, the claim against them is hopeless, and therefore the anchor mechanism is abused. As always in these cases, walking the rope between merits analysis and ‘good arguable case’ is not straightforward yet the judgment shows again how the English courts deploy creativity to ensure the anchor mechanism of Article 8(1) is not abused.

At 51, the tort gateway of Article 7(2) against the non-English EU defendants is dismissed with reference to Lober. Claimants suffered loss by parting with their funds deposited with PSB in Russia (or, perhaps, by contracting with PSB in Russia to do so); there is no indication of links to England, as required by Lober (applying Universal Music).

The above only narrates the essence of the Brussels Ia analysis. There is quite a bit more in the judgment of relevance to the CPR rules.

Geert.

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

Pourvoi c/ Cour d'appel de Paris, pôle 2, chambre 8, 16 novembre 2018

Pourvoi c/ Cour d'appel de Paris, pôle 6, chambre 12, 8 mars 2019

Pourvoi c/ Cour d'appel de Lyon, 12 avril 2019

Pourvoi c/ Cour d'appel de Colmar, 19 mars 2019

Cour d'appel de Nîmes, 5 septembre 2019

Tribunal de grande instance d'Ajaccio, 11 septembre 2019

Pourvoi c/ Cour d'assises de Paris, 18 avril 2019

Pourvoi c/ Cour d'assises de Paris, 18 avril 2019

Pourvoi c/ Cour d'appel de Paris, pôle 13, chambre 5, 15 février 2019

Pourvoi c/ Cour d'appel de Paris, pôle 12, chambre 5, 17 avril 2019

Pourvoi c/ Cour d'appel de Chambéry, 14 mars 2019