Agrégateur de flux

The HCCH and the Department of Justice of the Government of the Hong Kong Special Administrative Region of the People’s Republic of China jointly organise the Inaugural Global Conference on the 2019 HCCH Judgments Convention:

The 2019 HCCH Judgments Convention:
Global Enforcement of Civil and Commercial Judgments

• Date: 9 September 2019
• Where: Hong Kong Convention and Exhibition Centre, 1 Expo Drive, Wan Chai, Hong Kong.

This Conference will provide an international forum for experts and interested parties to exchange their views concerning various aspects of 2019 HCCH Judgments Convention. Issues may include the instrument’s salient features; its benefits to parties; and its implications for cross-border trade and dispute resolution. It is envisaged that the event will promote the international community’s deeper understanding of, and ultimately greater participation in, the Convention.

The Conference will be conducted in English. Participation is free but the number of participants will be limited. Advance registration is required. For the advance registration, and all further information, go to: www.hcchjudgmentshk.org.

The event is supported by the Asian Academy of International Law.

I reported earlier on the decision at first instance in Arica Victims v Boliden Mineral. The Court of Appeal has now reversed the finding of Chilean law as lex causae, opting instead for Swedish law. Lindahl has good review here and I rely on it quite heavily for I do no speak Swedish.

Boliden Mineral exported toxic waste to Chile in the ’80s, prior to either Basel or EU or OECD restraints (or indeed bans) kicking in. A first issue for consideration was determination of lex causae. Rome II does not apply ratione temporis (it only applies to tortious events occurring after its date of entry into force) – residual Swedish private international law applies. My understanding at first instance was that the applicable law rule referred to lex loci damni, Chile. The Court of Appeal has gone for lex loci delicti commissi: whether this was by use of an exception or whether the court at first instance had simply misunderstood Swedish PIL, I do not know.

Having opted for lex loci delicti commissi, the Court of Appeal then considered where this was. Readers of the blog will know that this is relevant for CSR /business and human /environmental rights discussions. Lindahl’s Linda Hallberg and Tor Pöpke summarise the court’s approach:

In order to determine which country’s law applied to the case, the court examined a sequence of events that had influenced, to varying degrees, what had led to the alleged damage. According to the court, the decisive factor in the choice of law were acts and omissions that could be attributed to the Swedish mining company, as the case concerned this company’s liability for damages.

Instead of determining the principal location of the causative events using quantitative criteria, the court considered it to be where the qualitatively important elements had their centre of gravity. Further, in contrast with the district court’s conclusion, it held that the Swedish mining company’s alleged negligence had its centre in Sweden and therefore Swedish tort law should be applied in this case (the law of the place in which a delict is committed).

Unlike more ‘modern’ CSR cases the fact do not concern mother /daughter company relations yet the considerations of locus delicti commissi are nonetheless interesting.

The Court of first instance had employed Chilean’s longer statute of limitation. The Court of Appeal tried to stretch Sweden’s shorter one of 10 years (the case concerns a potentially tortious act which occurred more than 30 years ago): any subsequent damage that had been caused by the mining company’s failure to act during the period after the toxic waste had been shipped to Chile would advance the starting point for the limitation period. However this was at the latest 1999 and the 2013 action therefore had been taken too late.

On 25 June last the Supreme Court rejected further consideration, the Court of Appeal’s finding therefore stands.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 4, Heading 4.6.3, Chapter 8.

 

 

Profesor Dr. Francisco Javier Zamora Cabot and Dr. Maria Chiara Marullo (Chair of Private International Law at the Universitat Jaume I de Castellón) have recently published an article on International Sanctions and Human Rights.

Professor Zamora Cabot has kindly provided us with a short introduction to this topic:

The fight for the international protection of human rights is currently being developed on multiple fronts and through a diverse set of instruments and mechanisms. Thus, at the state level we can highlight, for instance, on the one hand, the use of powerful norms of an imperative nature, such as, in the United States, those that deal with serious problems such as torture or human trafficking, along with the emergence of an increasingly important regulation at a comparative level regarding the control of supply chains or the repression of the so-called modern slavery. Also at the state level, it should be noted, on the other hand, the trend that is becoming generalized in favor of facilitating access to justice for victims of human rights violations, being the ambit of the relations of companies with the latter a clear field of choice for it.

For its part, the international community, although it is not living a particularly brilliant time as regards the protection of the aforementioned rights, persists in the application of the body of laws generated in it, especially through the various institutionalized systems, and in the search for new instruments, such as those already adopted or in the process of being adopted in the area of the relations between companies and human rights, key in our days, with the inescapable reference of the role of the United Nations.

In addition, international sanctions have long been playing a relevant role in relation to the two levels we have been managing. The examples are countless, and so is the discussion that often arises, even when they have been conveyed through the international instances. For example, although they are defined and specified with technical accuracy, they often have a negative impact on those sectors of the population they should actually protect.

Trying to minimize these impacts, and opening up new ways in the international protection of human rights, a number of texts have appeared in recent times, with the pioneering impulse of the United States, along with other countries, which, through well-defined sanctions, combine the fight against the corruption with the fight against the serious violations of the rights above mentioned. This is a very timely approach, insofar as corruption and violations are often intimately related, as, for example, the Committee on Economic, Social and Cultural Rights of the United Nations Economic and Social Council emphasized through its General Comment No. 24,E/C.12/GC/24, in the context of business activities, urging States to take action against such corruption, providing them with the appropriate mechanisms and ensuring their independence and sufficient level of resources.

In short, the paradigm of the aforementioned approach would be the Global Magnitski Act of the United States, Public Law 114-328., 130 Stat. 2533, which covers also legal persons and is already resulting in a practice of prominence, and even reflections in other countries at the regulatory level. A norm that deserves an in-depth analysis and follow-up in its application, herald as it is of a new horizon in the struggle for human rights to which we alluded initially, without losing sight of the rigor and caution with which we must act. And this is due to the intrinsic character of international sanctions as instruments of restricted and exceptional application, complementary, but never substitutable in this order, of those already existing and of which there is evidence in these brief reflections.

The article (in Spanish) is available here.

Pourvoi c/ Cour d'appel de Pau, chambre correctionnelle, 31 janvier 2019

Tribunal de grande instance de Versailles, pôle social, 12 juillet 2019

Tribunal de grande instance de Bobigny, 14e chambre correctionnelle, 13 juin 2019

Tribunal de grande instance de Paris, 10e chambre correctionnelle, 11 juillet 2019

I was thinking of using [2019] EWHC 946 (Comm) Idemia v Decatur for exam purposes hence beyond an initial Tweet, I am a bit late with reporting. However the judgment consists of 144 paras of pure jurisdictional argument – hence making it useful for oral exam but not for a written one: for where does one start? This is a typical case of reverse engineering: Decatur (which is an English company) and Tiger (which is incorporated in Bangladesh) have brought an action for the Discount Sums against Idemia in the courts of Bangladesh. Idemia (which is a French company) claims that that action (“the Bangladesh Action”) has been brought in breach of the jurisdiction provisions in the underlying contracts, which confer exclusive jurisdiction upon the competent courts of Geneva, Switzerland. Decatur and Tiger disagree, claiming that the subject matter of the Bangladesh Action is not covered by the jurisdiction provisions on which Idemia relies. Idemia says that its contractual right to be sued in Switzerland (and nowhere else) means that it cannot be forced to litigate in Bangladesh. As for the courts of Switzerland, Idemia says that the Swiss courts do not have power to issue the anti-suit injunction which it needs to restrain the further prosecution of the Bangladesh Action. Idemia claims to be entitled indirectly to enforce the jurisdiction provisions on which it relies by enforcing guarantees which Idemia claims that Decatur and Tiger have each given for the other’s obligations under the relevant contracts, and which contain English law and jurisdiction clauses. At 143 Salter DJ helpfully summarises the lengthy discussions in the judgment: 1 Decatur’s challenge to the jurisdiction succeeds. Idemia’s claim to found jurisdiction upon Decatur’s domicile in England fails, because Decatur has the better of the argument that jurisdiction on that basis (in relation both to the contractual and the tortious claims asserted in the present action) has been prorogued to the courts of Geneva by the jurisdiction provisions of the Decatur Agreement. Idemia has failed to establish a good arguable case that it can found jurisdiction against Decatur on the jurisdiction provisions of the Schedule 6 Document annexed to the Tiger Agreement. 2 Tiger’s challenge to the jurisdiction succeeds. Idemia has failed to establish a good arguable case that it can found jurisdiction against Tiger on the jurisdiction provisions of the Schedule 6 Document annexed to the Decatur Agreement. Idemia has also failed to establish a good arguable case that it can rely upon Decatur as an “anchor defendant”, so as to establish jurisdiction over Tiger as a necessary or proper party. 3 Mr Rahman’s challenge to the purported service on him at York Way succeeds. York Way was not his “last known residence” within the meaning of CPR 6.9 at the material time, since Idemia had been told that he no longer lived there. 4 Mr Rahman’s challenge to the service on him at Morris Place fails. He was validly and effectively served there at his registered “service address”, pursuant to the Companies Act 2006 s 1140, even though he was not at the material time present, domiciled or resident within the jurisdiction. Idemia has therefore succeeded in establishing that the English court has jurisdiction over Mr Rahman on the basis of that service. 5 Mr Rahman’s application for a stay of this action against him on forum non conveniens grounds succeeds. No sufficient factors link the claims made against Mr Rahman in the present action to England. There are, however, substantial connections with Bangladesh. Bangladesh is therefore the forum in which Idemia’s claims against Mr Rahman can most suitably be tried for the interests of all the parties and for the ends of justice. Geert. (Handbook of) European private international law, 2nd ed. 2016, much of Chapter 2.

Entries for the St. Petersburg International Legal Forum Private Law Prize 2020 will close on 15 October 2019. The first prize of 10 million rubles will be awarded to the author of the best academic work (monograph or article) published in the field of private law, private international law or comparative law since 1 January 2015. Textbooks and commentaries are not eligible for the prize. The prize expert committee consists of world renowned academics.

The prize will be awarded at the X St. Petersburg International Legal Forum in May 2020.

Further details on the conditions, eligibility and the prize expert committee may be accessed here.

The new Practice Guide and User Guide for the European Small Claims Procedure, prepared by Xandra Kramer (ESL, Erasmus University Rotterdam, Utrecht University) in collaboration with the European Commission and the European Judicial Network, have been published. These updates were necessitated by the amendments to the European Small Claims Regulation, resulting from Regulation No 2015/2421 as applicable since 14 July 2017. The European Small Claims Regulation provides a uniform, low threshold procedure for consumers to claim their rights in cross-border cases in the EU.

‘The most significant amendment is the raising of the monetary limit of the procedure from €2,000 to €5,000 (Article 2). Most other amendments aim at strengthening the use of distance communication technology, including to conduct oral hearings (Article 8), and the taking of evidence (Article 9) and enabling the e-service of documents (Article 13) and distant payment of court fees (Article 15a). Other amendments are that the primacy of the written procedure is underlined (Article 5), the practical assistance of parties is strengthened (Article 11) and the rule on minimum standard for review is clarified (Article 18). New provisions are inserted regarding the requirement that court fees should be proportionate (Article 15a), the language of the enforcement certificate (Article 21a) and the enforcement of court settlements (Article 23a). In addition, Regulation No 2015/2421 amended one provision of the Order for Payment Procedure (15). Article 17 of that Regulation now envisages a transfer to the European Small Claims Procedure in cases where a statement of opposition is lodged against the payment order, where the European Small Claims Procedure is applicable.’ (p. 12 Practice Guide).

One of the novelties in the User Guide and the Practice Guide is the link to available ADR mechanisms and the reference to the ODR platform, which informs consumers and practitioners about the existing alternatives and secure a more integrated approach to consumer dispute resolution. The publication of the new guides are part of a European consumer campaign launched in July. The Guides as well as other tools on and information about the Small Claims Procedure – including an infographic for consumers, a leaflet for legal professionals, a leaflet for businesses and a web toolkit – are available in the Small Claims Section of the e-Justice Portal.

The first Commentary on the Small Claims Regulation (861/2007) in Greece has just been published. The volume sheds light on all aspects of cross border small claims litigation within the EU, approaching the topic both from a domestic and an EU-case law viewpoint.

The authors are the following:

Prof. Arvanitakis (Aristotle University, Thessaloniki): Introduction, Articles 1-3 & 17-19

Ass. Professor Yiannopoulos (Democritus University, Thrace): Articles 4-8 & 13-15

Kalli Chronopoulou (Judge): Articles 9-12 & 15a-16

Dr. Karameros (Visiting Lecturer, Neapolis University, Paphos): Articles 20-29

 

This book is part of an ambitious project, inspired by Prof. Arvanitakis & Prof. Vassilakakis, which aims at publishing a full set of Commentaries on Private International Law EU – Regulations in Greek. The project kickstarted with the publication of the Commentary on the Brussels II bis Regulation (2016). Commentaries on the Brussels I a Regulation and at a later stage the Succession Regulation will follow.

S’il fait figure d’exception dans une jurisprudence allemande fragmentée, la décision du tribunal administratif allemand d’Arnsberg souligne en creux le flou qui règne dans l’application du règlement Dublin III et les incohérences du système de demande d’asile en Europe.

en lire plus

Since the entry into force of the Treaty of Amsterdam in 1999, the European Union has adopted an impressive number of regulations in the field of Private International Law. As a result, Private International Law has gradually become a truly European discipline. However, a truly pan-European forum to discuss issues of European Private International Law is still missing. Following a conference in Berlin in 2018, a group of Private International Law scholars from all over Europe[*], therefore, felt that it was time for a European Association of Private International Law (EAPIL).

The Association will be established in late 2019 and its establishment celebrated at a conference to  be held at Aarhus University, Denmark, from 14 to 16 May 2020. The conference will bring together academics and practitioners from all over Europe and provide a unique opportunity to talk and think about European Private International Law in a pan-European fashion. Topics to be discussed will include the effects and the challenges of digitalization, the problems of fragmentation as well as other challenges the discipline is currently facing.

Confirmed speakers are:

• Marie-Élodie Ancel (Université Paris-Est Créteil)
• Francisco Garcimartín-Alférez (Autonomous University of Madrid)
• Burkhard Hess (Max Planck Institute Luxemburg)
• Thalia Kruger (University of Antwerp)
• Matthias Lehmann (University of Bonn)
• Ralf Michaels (Max Planck Institute Hamburg)
• Peter Arnt Nielsen (Copenhagen Business School)
• Haris Pamboukis (University of Athens)
• Gian Paolo Romano (University of Geneva)
• Marta Pertegás Sender (University of Maastricht)
• Maciej Szpunar (Court of Justice of the European Union)
• Andreas Stein (European Commission)
• Christiane Wendehorst (University of Vienna)

If you are interested in attending, please register via the conference website. For any other questions, please get in touch with the local organizer, Morten M. Fogt (mmf@law.au.dk).

Information about the European Association of Private International Law (EAPIL) including information about how to join will soon be made available on this blog!

[*]Apostolos Anthimos, Sabine Corneloup, Gilles Cuniberti, Morten M. Fogt, Pietro Franzina, Agnieszka Frackowiak-Adamska, Jan von Hein, Thomas Kadner Graziano, Eva-Maria Kieninger, Johan Meeusen, Pedro de Miguel Asensio, Marta Requejo Isidro, and Giesela Rühl.

 

Cem Veziroglu, doctoral candidate at the University of Istanbul and research assistant at Koc University Law School has provided us with an abstract of his paper forthcoming in the European Company and Financial Law Review.  <!–more–>

Arbitrating Corporate Law Disputes:

A Comparative Analysis of Turkish, Swiss and German Law

Cem Veziroglu

The resolution of corporate law disputes by arbitration rather than litigation in national courts has been frequently favoured due to several advantages of arbitration, as well as the risks related to the lack of judicial independence, particularly in emerging markets. While the availability of arbitration appears to be a major factor influencing investment decisions, and there is a strong commercial interest in arbitrating corporate law disputes, the issue is unsurprisingly debated in respect of certain characteristics of the joint stock company as a legal entity. Hence the issue comprises a series of legal challenges related to both corporate law and arbitration law.

In a paper forthcoming in the European Company and Financial Law Review, I tackle the arbitrability of corporate law disputes and the validity of arbitration clauses stipulated in the articles of association (“AoA”) of joint stock companies. The study compares Turkish law with that of Germany and Switzerland and in particular tries to shed light on the current position of Turkish law with respect to (i) arbitrability of corporate law disputes, such as validity of general assembly resolutions and requests for corporate dissolution, (ii) validity and binding nature of an arbitration clause provided in the AoA. The paper also suggests practicable legislative recommendations as well as a model arbitration clause.

Arbitrability of Corporate Law Disputes

Under Turkish law corporate law disputes are, in principle, considered to be arbitrable, whereas disputes concerning the validity of general assembly resolutions and corporate dissolution are still heavily debated. I argue that both types of disputes are arbitrable, albeit judicial dissolution requests accommodate practical hurdles due to the magnitude of remedial power granted to judges by law. Moreover, I suggest that arbitral awards should be granted an erga omnes effect (the effects exceeding the parties to the dispute), as long as the interested third parties are provided with the necessary procedural protection. These procedural mechanisms may include the pending and consolidation of all actions filed before the arbitral tribunal and collective – or impartial – selection of arbitrators in multy-party arbitral proceedings.

It seems that the case law has thus far followed the distinction adopted by the orthodox doctrine in general terms; namely disputes concerning the validity of general assembly resolutions and corporate dissolution are deemed inarbitrable. However, considering the ever-growing pro-arbitration tendency in Turkey –in parallel with many other jurisdictions– it would not be surprising if a more flexible approach is eventually adopted in case law as well.

Place of the Arbitration Clause: Articles of Association or Shareholders Agreement?

It is necessary to provide an arbitration clause in the AoA of the company, rather than a shareholders’ agreement (“SHA”), in order to (i) prevent contradicting judgments handed down in parallel proceedings, (ii) be able to request claims peculiar to corporate law and (iii) ensure the binding effect vis-à-vis the company, board members and new shareholders as well as the current shareholders.

Validity of an Arbitration Clause Provided in the AoA

There is no rule under Turkish corporate law that restricts contractual freedom within the AoA of privately held joint stock companies that has the effect of restraining arbitration clauses. An arbitration clause can, therefore, be validly provided either in the original AoA or by way of an amendment thereof by way of a unanimous vote. However, the binding effect of the arbitration clause in question depends on its legal nature, namely, ‘corporative’ or ‘formal’ (contractual).

Addressing this issue, the paper proposes to adopt a two-step test and concludes that if an arbitration clause stipulated in the AoA is deemed corporative in nature, the company, the board members, the new shareholders, and the current shareholders are bound by such an arbitration clause. In the event that the arbitration clause in question is deemed to be a formal provision, it may still remain effective only among the parties as a purely contractual term.

Policy Recommendations

The arbitrability of corporate law disputes, the validity of arbitration clauses stipulated in the AoAs and the procedural standards to protect third parties’ interests should be clarified by an explicit legal provision. In fact, Article 697n of the Swiss Draft Code of Obligations dated 23 November 2016[1] and Italian Legislative Decree of 17 January 2003 No. 5 Articles 34-37 may offer motivating examples in this respect.

According to German Federal Court’s decision in 2009[2], an arbitration clause in the AoA is valid, provided that the protections and the opportunity of shareholders to participate in the proceedings comparable to those in national court proceedings are respected. Therefore Turkish courts should examine the arbitration clause in question in terms of the protection provided to shareholders, rather than applying an outright ban on such clauses in the AoA.

The leading arbitration institutions should draft and publish rules for corporate law disputes as annexes to their existing rules of arbitration. These should consider the issues peculiar to corporate law disputes. Hence, they should provide such mechanisms as the pending and consolidation of actions filed before the arbitral tribunal; collective -or impartial- selection of arbitrators so as to provide the minimum legal procedural protection granted to shareholders. A comprehensive example is the German Arbitration Institution’s ‘DIS-Supplementary Rules for Corporate Law Disputes 09’[3].

With a view to facilitating the incorporation of applicable and valid arbitration clauses into the AoA, a model arbitration clause for corporate law disputes should be published by leading arbitration institutions. Such a model clause may be inspired by the draft model clause found in the paper referenced above.

[1]     https://www.admin.ch/opc/fr/federal-gazette/2017/625.pdf.

[2]     BGH, 6 April 2009, II ZR 255/08, BGHZ 180, 221.

[3]     The said rules can be found at: http://www.disarb.org/en/16/rules/dis-supplementary-rules-for-corporate-law-disputes-09-srcold-id15.

On 12 September 2019, the University of Silesia in Katowice (Poland) will host an international conference on the Regulation (EU) No 650/2012 of the European Parliament and of the Council – the Succession Regulation and on the various issues relating to the succession matters within the European area of freedom, security and justice.

The conference is organized at the occasion of the annual session of the European Group for Private International Law (EGPIL/GEDIP) that will be held at the premises of the University of Silesia in Katowice at the invitation of a member of the Group and a Professor of this University – First Advocate General at the CJEU Maciej Szpunar.

The opening session of the conference will be devoted to the review of Member States’ first experiences with the application of the Succession Regulation. This session will be followed by two panel discussions.

The opening session and both panels will be attended by renowned scholars and practitioners, including but not limited to: Professor Stefania Bariatti (University of Milan), Professor Andrea Bonomi (University of Lausanne), Professor Jürgen Basedow (Max-Planck-Institut für ausländisches und internationales Privatrecht), Professor Christian Kohler (University of Saarbrücken), Professor Paul Lagarde (University of Paris 1 – Panthéon-Sorbonne, Professor emeritus), Professor Cristina González Beilfuss (University of Barcelona) and Michael Wilderspin (European Commission).

The working language of the conference is English, no translation is foreseen.

The fee covering participation in the conference, additional materials and meals including attendance at the reception held after the closing of the deliberations equals to less than 60 EUR.

The draft programme of the conference is available here. More details are available at the website of the University hosting the conference.

Upon the conclusion of the conference, on 13 September 2019, the University of Silesia will award a Doctorate Honoris Causa to the renowned scholar, Professor Paul Lagarde who will deliver a commemorative lecture at this occasion. This ceremony will start at 11:00 AM.

For any inquires that you may have relating to these events, please contact monika.jagielska@us.edu.pl or krzysztof.pacula@curia.europa.eu.