Agrégateur de flux

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

Starting with the infamous and fundamentally flawed Laws of Fear by Cass Sunstein, Europe’s precautionary principle has been under constant attack by industry both within and outside of the EU. My postings on the principle here and the section on it in my Handbook of EU environmental law with Leonie Reins attempt to show that despite industry propaganda against it, the principle has never been a blind ‘when in doubt, don’t do it’ approach to risk management.

In C-616/17 Blaise and others, the Court once again shows its measured approach. Defendants in national criminal proceedings, argued that they should be let off in a criminal damage prosecution. They are environmental activists and are charged with causing criminal damage to containers of herbicidal products (specifically ‘Roundup’) containing the chemical glyphosate. In their defence, they argue that the products present an unacceptable potential risk to human health and the environment and that the EU approval process is defective and therefore unlawful.

The Court found that the approval process on the basis of EU law is entirely in line with EU law, including the precautionary principle. Steptoe have excellent overview here and I am happy to refer entirely.

Geert.

EU environmental law (with Leonie Reins), Edward Elgar, 2018, p.28 ff.

La Cour de cassation se penche sur l’hypothèse d’une déclaration de nationalité reposant sur un acte de naissance établi à l’étranger et dont la force probante est contestée.

en lire plus

On the occasion of the 40th anniversary of the Austrian Private International Law Act, the Interdisciplinary Association of Comparative and Private International Law (IACPIL/IGKK) will be hosting a lecture series in Vienna, starting from 11 December 2019. The lectures will address the future role of the national PIL codifications of EU member states and the application of the Austrian Act during the last decades. Given the comparative focus of the lectures, the organisers are kindly inviting colleagues from all jurisdictions to attend and participate in the discussions. The working languages will be German and English.

A flyer with more information can be found here, the address for registration is office@igkk.org.

GPA - Filiation

Written by Zeno Crespi Reghizzi, Associate Professor of International Law at the University of Milan

The recognition of punitive damages represents a controversial issue in Europe. For many years, due to their conflict with fundamental principles of the lex fori, punitive damages have been found to be in breach of public policy by some European national courts. This has prevented the recognition and enforcement of foreign judgments awarding them, or (more rarely) the application of a foreign law providing for these damages.

More recently, the negative attitude of European courts vis-à-vis punitive damages has been replaced, at least in some States, by a more open approach. The latest example is offered by a revirement of the Italian Supreme Court case law as per its judgment no 16601 of 5 July 2017.

This book – edited by Stefania Bariatti, Luigi Fumagalli, and Zeno Crespi Reghizzi and published by Wolters Kluwer-CEDAM – intends to explore the relationship between punitive damages and European private international law from different angles. After introducing the topic from a comparative law perspective, the chapters of this book examine, in particular, the purpose and operation of public policy as applied to punitive damages, the solutions adopted by the case law of various European States, the treatment of punitive damages in international commercial arbitration, and the emerging trends in EU and ECHR law.

The contributions have been prepared by leading legal scholars from different jurisdictions and are based on papers presented at a conference that took place on 11 May 2018 at the Department of Italian and Supranational Public Law of the State University of Milan, with the support of the SIDI Interest Group on Private International Law and the “Rivista di diritto internazionale privato e processuale”.