Agrégateur de flux

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.

In [2019] EWHC 1747 (Comm) LIC Telecommunications et al v VTB Capital et al Moulder J suggests an unorthodox interpretations of Article 25 of the Brussels Ia Regulation. (Note also her very critical view at 22 of one of the experts, whom she found having confused his role as expert with a role as advocate). Much of the lengthy judgment is devoted to intricate discussions of Luxembourgish corporate law (hence the need for expert evidence) and the jurisdictional issues are, somewhat illogically, discussed towards the end of the judgment, at 245 ff.

Maze, one of the defendants, acts as a manager of V2 pursuant to a directorship agreement dated 26 May 2015 (the “Directorship Agreement”). It relies on the effect of clause 19 of the Directorship Agreement and submitted that claims against it are subject to the exclusive jurisdiction of the courts of Luxembourg pursuant to Article 25 Brussels Ia. Clause 19 provides: 

“for the benefit of the Manager, the Shareholder and the Company hereby irrevocably, specially and expressly agree that the courts of Luxembourg city have jurisdiction to settle any disputes in connection with this Agreement and accordingly submits to the jurisdiction of the courts of Luxembourg city. Nothing in this clause limits however the rights of the Manager to bring proceedings against the Company in connection with this Agreement in any other court of competent jurisdiction or concurrently in more than one jurisdiction.”

The clause is asymmetric aka hybrid aka unilateral. (See e.g. my discussion of Rothschild etc.). These clauses as I have noted elsewhere highlight the clear insufficiency of Brussels Ia’s new lex fori prorogati (including renvoi) rule for choice of court. Which court has been prorogated, hence also lex fori prorogati, is not clear when the clause is asymmetric.

Moulder J discusses [2017] EWHC 161 (Comm) Commerzbank v Liquimar Tankers as precedent: I reviewed it here and signalled at the time that it would not be the last we would hear of the issue. In that case Cranston J held ‘There is nothing in Article 25 that a valid jurisdiction agreement has to exclude any courts, in particular non EU Courts. Article 17, penultimate paragraph, of the Brussels Convention recognised asymmetric jurisdiction clauses. To my mind it would need a strong indication that Brussels 1 Recast somehow renders what is a regular feature of financial documentation in the EU ineffective.‘ I was never taken by that conclusion viz the Brussels Convention: its Article 17 reference to a party having ‘benefit’ from choice of court does not relate entirely to the same discussion on asymmetric clauses (Peralla v Codere [2016] EWHC 1182 (Comm) which I discussed here illustrates that difference).

At any rate I disagree with Moulder J’s statement at 254 that

It is now common ground that it is a question of autonomous EU law and not a question of national law. (It was I believe accepted that the proviso “unless the agreement is null and void as to its substantive validity” refers to issues such as capacity, fraud and mistake, not whether particular kinds of “choice of court” agreements are permitted under the Regulation).

Asymmetric clauses are the first example often given when highlighting the limited cover of Article 25 Brussels I a (and the need for certainty on the lex causae for choice of court). There is no autonomous interpretation there at all. I do agree however with the conclusion at 261: that Luxembourg courts, applying EU law, would not uphold such clauses was not made out on the evidence. Luxembourgish courts at least when they apply Luxembourgish law, generally uphold the validity of asymmetric choice of court.

At 263 ff then follows discussion of Article 7(1) and 7(2). Much of the authority discussed has been reviewed on this blog. (Including Bosworth (Arcadia) which is currently before the CJEU). Moulder J holds that Article 7(2) is engaged, not 7(1), and on the former discusses locus delicti commissi with reference to JSC BTA Bank v Khrapunov. At 295: it is not sufficient that there are meetings in England to implement the conspiracy, it is the making of the agreement in England which is to be regarded as the harmful event.  Claimants have not supplied a plausible evidential basis that the agreement was made in England. Their evidence is consistent with a case that the conspiracy was implemented in England but that is not sufficient.

As for locus damni, at 298: Even though the share purchase agreement was under English law, it is the loss of the shares in the Luxembourg company which is the pleaded damage not the agreement to sell or the auction. The Vivacom group consists of Bulgarian telecommunications companies which were held by InterV through Viva Luxembourg Bulgaria EOOD (paragraph 3 of the Agreed List of Agreed Issues). Locus damni is Bulgaria, perhaps Luxembourg. But not England.

Finally, abuse of process considerations are linked to English procedural law (whether claims should have been brought sooner).

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.11.1, Heading 2.2.11.2 .

Pourvoi c/ Cour d'appel de Paris, chambre 2-7, 7 février 2019

Pourvoi c/ Cour d'appel de Grenoble, chambre de l'instruction, 15 janvier 2019

Pourvoi c/ Cour d'appel de Besançon, chambre correctionnelle, 15 janvier 2019

Pourvoi c/ Cour d'appel de Paris, chambre de l'instruction, 14 février 2019

Pourvoi c/ Cour d'appel de Paris, chambre de l'instruction, 14 février 2019

Pourvoi c/ Cour d'appel de Paris, 2e chambre, 31 janvier 2019

Pourvoi c/ Cour d'appel de Reims, chambre correctionnelle, 20 novembre 2018

Pourvoi c/ Cour d'appel de Paris, chambre 4-8, 6 septembre 2018

The Permanent Bureau of the Hague Conference on Private International (HCCH) seeks high-achieving interns for January to July 2020.

An internship with the HCCH offers a unique opportunity to deepen the knowledge of private international law, better understand how the HCCH functions, and contribute to the work of the Organisation.

Interested? Then lodge your application by Monday 30 September 2019.

For more information, including the application requirements, check out the HCCH website at: https://www.hcch.net/en/recruitment/internships#legal.

Par trois arrêts rendus le même jour, la chambre criminelle apporte d’utiles précisions relatives à la procédure applicable aux mineurs.

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Tribunal de grande instance de Besançon, chambre correctionnelle, 26 juin 2019

Tribunal de grande instance de Marseille, 21 juin 2019

Pourvoi c/ Cour d'appel de Paris - chambre 5-14, 12 février 2019