Agrégateur de flux

Written by Dr Ekaterina Aristova, Leverhulme Early Career Fellow, Bonavero Institute of Human Rights, University of Oxford

On 19 October 2023, the English High Court declined to exercise jurisdiction in Limbu v Dyson Technology Ltd, a case concerning allegations of forced labour and dangerous conditions at Malaysian factories which manufactured Dyson-branded products. The lawsuit commenced by the migrant workers from Nepal and Bangladesh is an example of business and human rights litigation against British multinationals for the damage caused in their overseas operations. Individuals and local communities from foreign jurisdictions secured favourable outcomes and won jurisdictional battles in the English courts over the last years in several notable cases, including Lungowe v Vedanta, Okpabi v Shell and Begum v Maran.

The Dyson case is particularly interesting for at least two reasons. First, it advances a novel argument about negligence and unjust enrichment of the lead purchasing company in a supply chain relationship by analogy to the parent company liability for the acts of a subsidiary in a corporate group. Second, it is one of the few business and human rights cases filed after Brexit and the first to be dismissed on forum non conveniens grounds. Since the UK’s EU referendum in 2016, the return of forum non conveniens in the jurisdictional inquiry has been seen as a real concern for victims of business-related human rights and environmental abuses seeking justice in the English courts. With the first case falling on jurisdictional grounds in the first instance, the corporate defendants started to collect a ‘Brexit dividend’, as cleverly put by Uglješa Grušic in his case comment.

Facts

The proceedings were commenced in May 2022. The claimants were subjected to forced labour and highly exploitative and abusive conditions while working at a factory in Malaysia run by a local company. The defendants are three companies in the Dyson corporate group, two domiciled in England and one in Malaysia. The factory where alleged abuses took place manufactured products and components for Dyson products. Claimants argued that Dyson defendants were liable for (i) negligence; (ii) joint liability with the primary tortfeasors (the Malaysian suppliers running the factory and local police) for the commission of the torts of false imprisonment, intimidation, assault and battery; and (iii) unjust enrichment. They further alleged that the Dyson group exercised a high degree of control over the manufacturing operations and working conditions at the factory facilities and promulgated mandatory ethical and employment policies and standards in Dyson’s supply chain, including in Malaysian factories.

The English courts are already familiar with the attempts to establish direct liability of the English-based parent companies for the subsidiaries’ harms relying on negligence and the breach of duty of care owed to the claimants. In Vedanta and Okpabi, the UK Supreme Court made it clear that the parent company’s involvement and management of the subsidiary’s operations in different ways can give rise to a duty of care.

Broadening the scope of the parent company liability in a corporate group beyond strict control opened paths to supply chain liability. While lead purchasing companies, like Dyson, are not bound by shareholding with their suppliers, they often exercise a certain level of managerial control over independent contractors. Such involvement with particular aspects of a supplier’s activities leads to the argument that a lead company could also be liable in negligence for a breach of the duty of care. The unjust enrichment claim that Dyson group has been enriched at the claimant’s expense is a relatively novel legal basis, although it has already been raised in similar cases. To the best of my knowledge, in addition to the Dyson case, at least four legal actions focusing on supply chain liability are progressing in England: Malawian tobacco farmer claims against British American Tobacco and Imperial, Malawian tea farmer claims against PGI Group Ltd, Ghanaian children accusations against cocoa producer Olam and forced labour allegations by Burmese migrants against Tesco and Intertek.

Judgment

The court had to resolve the jurisdictional question of whether the case would proceed to trial in England or Malaysia. The English common law rules are founded on service of the claim form on the defendant and are based on the defendant’s presence in the jurisdiction. In general terms, jurisdiction over English-domiciled parent companies is effected within the jurisdiction as of right. Following Brexit, proceedings against an English parent company may be stayed on forum non conveniens grounds. Foreign subsidiaries are served outside the jurisdiction with the court’s permission, usually on the basis of the ‘necessary or proper party’ gateway. In the Dyson case, the English defendants asked the court to stay the proceedings based on forum non conveniens, and the Malaysian defendant challenged the service of the claim form, arguing that Malaysia is a proper place to bring the claim.

The court agreed with the corporate defendants, having applied the two-stage test set out by the House of Lords in Spiliada Maritime Corp v Cansulex Ltd. The first stage requires consideration of the connecting factors between the case and available jurisdictions to determine a natural forum to try the dispute. The court concluded that Malaysia was ‘clearly and distinctly more appropriate’ [122]. Some factors taken into account were regarded as neutral between the different fora (convenience for all of the parties and the witnesses [84], lack of a common language for each of the witnesses [96], location of the documents [105]). At least one factor was regarded as a significant one favouring England as the proper place to hear the claim (risk of a multiplicity of proceedings and or irreconcilable judgments [109]). However, several factors weighed heavily in favour of Malaysia (applicable law [97], place where the harm occurred [102]). As a result, Malaysia was considered to be the ‘centre of gravity’ in the case [122].

Under the second limb of the Spiliada principle, the English courts consider whether they should exercise jurisdiction in cases where the claimant would be denied substantial justice in the foreign forum. The claimants advanced several arguments to demonstrate that there is a real risk of them not obtaining substantial justice in Malaysia [125–168], including difficulties in obtaining justice for migrant workers, lack of experienced lawyers to handle the case, the risk of a split trial, the cost of the trial and financial risks for the claimants and their representatives, limited role of local NGOs to support the claimants. The court did not find cogent evidence that the claimants would not obtain substantial justice in Malaysia [169]. A stay of proceedings against English defendants was granted, and the service upon the Malaysian company was set aside [172]. Reaching this conclusion involved consideration of extensive evidence, including contradictory statements from Malaysian lawyers and civil society organisations. The Dyson defendants have given a number of undertakings to submit to the jurisdiction of the Malaysian courts and cover certain claimants’ costs necessary to conduct the trial in Malaysia, which persuaded the court [16].

Comment

The Dyson case marks a shift from the recent trend of allowing human rights and environmental cases involving British multinationals to proceed to trial in the UK courts. Three principal takeaways are worth highlighting. First, the claimants in the business and human rights cases can no longer be certain about the outcome of the jurisdictional inquiry in the English courts. The EU blocked the UK’s accession to the Lugano Convention despite calls from NGOs and legal experts. The risk of dismissal on forum non conveniens grounds is no longer just a theoretical concern.

Second, the Dyson case demonstrates the difficulties of finding the natural forum under the doctrine of forum non conveniens in civil liability claims involving multinationals. These complex disputes have a significant nexus with both England, where the parent or lead company is alleged to have breached the duty of care, and the foreign jurisdiction where claimants sustained their injuries. The underlying nature of the liability issue in the case is how the parent or lead company shaped from England human rights or environmental performance of its overseas subsidiaries and suppliers. In this context, I agree with Geert van Calster, who criticises the court’s finding about Malaysia being the ‘centre of gravity’ in the case. I have argued previously that the forum non conveniens analysis should properly acknowledge how the claimants frame the argument about liability allocation between the parent company and other entities in the group or supply chain.

Finally, the Dyson case is not the first one to be intensely litigated on the forum (non) conveniens grounds. In Lubbe v Cape, Connelly v RTZ and Vedanta, the English courts accepted jurisdiction, acknowledging that the absence of a means of funding or experienced lawyers to handle the case in a host state will lead to a real risk of the non-availability of substantial justice. The court in Dyson reached a different conclusion, but its analysis of the availability of substantial justice for claimants in Malaysia is not particularly persuasive, especially considering the claimants’ ‘fear of persecution, detention in inhumane conditions and deportation should they return to Malaysia’ [71].

One aspect of the judgment is notably concerning. Claimants referred to the conduct of the Dyson defendants as being ‘aggressive’ and ‘heavy-handed’ [71], [73]. In concluding remarks, the court accepted there were deficiencies in Dyson’s responses to the claimants’ requests for the documents [173]. Yet despite this acceptance, the court has on multiple occasions relied on the defendants’ undertakings to cooperate with the claimants to ensure the trial can proceed in Malaysia [136], [147], [151], [152], [166], [169]. Undoubtedly, the ruling will be appealed, and it remains to be seen if the English courts will be willing to try cases involving British multinationals in the post-Brexit landscape.

An online conference titled The Institution of the Family – Tradition, Reform, Uniformity and Perspectives will take place on 4 and 5 December 2023. The event, organized by a group of academic institutions, including the “Dunărea de Jos” University in Galați, the University of Caen Normandie, the Carlos III University of Madrid, the University of Murcia and the Universidad Autónoma del Estado de Morelos of Cuernavaca, aims to explore the evolving approach to family relationships as reflected in domestic, European and international rules.

Scholars interested in making a presentation at the conference have until 19 November 2023 to submit a proposal.

More information on the conference and the call can be found here.

A note on RM RENT A CAR v KFZ BRÜNING ECLI:NL:RBNHO:2023:7489 in which the Noord-Holland court of first instance much more readily accepts the escalation of a purely domestic (German) contract to the ‘international’ plain. Clearly in contrast with de la Tour AG in Inkreal.

RM Rent A car argues that the close links it has with The Netherlands, as a result of a number of its directors are domiciled in The Netherlands, as is its mother holding Network4Cars Trading B.V., explain Dutch choice of court and the Dutch governing law clause. It also refers to the Report Jenard, a contrario I assume (for that detail is not given) p.37 in fine (where the report argues that (now) A25 does not apply between to parties domiciled in the same State and designating a court of that State).

KFZ Brüning by contrast argue that the sale between two German corporations, of German registered vehicles, with delivery in Germany, lacks the international element required to trigger Brussels Ia.

The Court goes about the issue in a roundabout way. It says nothing about the ‘international character’ (arguably implicitly acknowledging it), instead merely finding 2.8 that there is no proof that in signing the purchase order, Brüning also consented to the GTCS.

As noted, an interesting judgment in light of the AG’s Opinion in Inkreal.

Geert. EU Private International Law. 4th ed. 2024, para 2.22 ff.

First instance Noord-Holland, A25 Brussels Ia choice of court
Lack of reference to general terms & conditions in Purchase Order = ineffectiveness of choice of court in those GTCs
Implicitly acknowledges 'international' element of prima facie German casehttps://t.co/v8TE2B9SpY

— Geert Van Calster (@GAVClaw) August 29, 2023

Still mopping up that blog queue….In Case C-393/22 EXTÉRIA s.r.o. v Spravime, s.r.o.  the CJEU has held that a contract to enter into a future services contract is not itself a services contract within the meaning of Article 7(1) Brussels Ia., rather, a contract whose forum contractus needs to be determined using CJEU 12/76 Tessili v Dunlop‘s ‘looking over the fence’ method.

The applicant in the main proceedings, which provides consultancy services in the field of occupational safety and health, and the defendant in the main proceedings concluded, on 28 June 2018, a contract to enter into a future contract relating to the future conclusion of a franchise agreement. The contract contained, in addition to the obligation to conclude that contract in the future, certain contractual terms and conditions and an undertaking on the part of the defendant in the main proceedings to pay an advance of EUR 20 400, exclusive of value added tax, and, in the event of failure to comply with that obligation, a contractual penalty equal to the amount of that advance.

The contract to enter into a future contract provided for the application of Czech law, without any agreement on jurisdiction having been concluded.

Alleging that the defendant in the main proceedings had failed to fulfil its obligation to pay the advance in question, the applicant in the main proceedings withdrew from the contract to enter into a future contract and claimed payment of the contractual penalty.

(34) The concept of ‘services’, within the meaning of the second indent of Article 7(1)(b), implies, at the very least, that the party providing them 1. carries out a specific activity 2. in return for remuneration (see ia CJEU Kareda).

Re 1, (35) the existence of an activity requires the performance of positive acts, to the exclusion of mere abstentions (see ia CJEU Corman-Collins and Granarolo). re 2, remuneration granted in return for an activity, (36) this cannot be understood in the strict sense of the payment of a sum of money, since the receipt of a package of benefits representing an economic value may be regarded as constituting remuneration (same case-law).

(37) a contract to enter into a future contract, the objective of which was to conclude a future franchise agreement and preserve the confidentiality of the information contained in that contract to enter into a future contract, is not an ‘activity’. Moreover, in the absence of any actual activity carried out by the co-contractor, the payment of the contractual penalty cannot be characterised as remuneration.

(39) that the obligation to pay the contractual penalty is closely linked to the franchise agreement which was to be concluded and under which it would be possible to determine the place where the services concerned should have been provided, does not rescue the issue. This is said (40) to follow from the need to interpret exceptions to A4 restrictively, and from the requirements of predictability.

A useful judgment.

Geert.

EU private international law, 3rd ed. 2021, para 2.412. 4th ed forthcoming January 2024.

 

New #CJEU judgment Jurisdiction Regulation Brussels Ia
Contract to enter into a future services contract is not itself a services contract; jurisdiction to be determined following 'looking over the fence' method, A7(1)(a)

C-393/22 Exteria https://t.co/yZNRz0f9ap

— Geert Van Calster (@GAVClaw) September 14, 2023

Butcher J as I noted in my Tweet on the judgment at the time, has largely granted immediate leave to appeal his ruling in London Steam-Ship Owners’ MIA v [Spain] (Re Prestige) [2023] EWHC 2473 (Comm), in which he entertains yet further litigation forming part of the protracted procedures arising from the sinking of the M/T Prestige in 2002. [Of note is that he did not allow appeal on the issue of the effect of the CJEU Judgment in Prestige, on the jurisdiction of Sir Peter Gross as arbitrator in a second set of arbitration proceedings; I imagine permission to appeal that point has been sought separately with the Court of Appeal itself).

I have reported repeatedly on the issues and the trigger for most of the discussions in the judgment is the CJEU Grand Chamber Judgment which I called a parallel universe here. I stand by my criticism in that post, not because I suggest the CJEU is some lawless band of brigands upending the rule of law. Clearly it is not. Rather, I find the CJEU’s lack of consistent treatment of arbitration whether commercial or investment, troubling. I also fail to understand its backdoor disciplining of arbitration procedures (via the res judicata and privity issues which I discuss in my previous posts) if these procedures are principally excluded from the scope of Brussels Ia.

The Prestige saga is an indictment first of all of the failure of environmental law (one of my other academic and practice hats) properly to address one of the most outrageous outcomes of the fossiel fuel area, which is to pollute twice over nature and human health alike in causing environmental catastrophe by spilling crude oil. As for international litigation, it is an indictment of the failure of international and European law alike to develop a systematic approach to the outcomes of litigation in ordinary, and arbitration.

Now to the case at hand. My discussion of same is greatly helped by professor Giles Cuniberti’s post over at EAPIL, and the comments on same, and I would suggest readers refer to Giles’ summary of the case and the issues.

Core to the appeal will be to what degree the English courts (pro memoria: the proceedings are subject to Brussels Ia and were introduced pre Brexit) are bound by all of the findings in the CJEU judgment, particularly those with an impact on what the arbitrator should have checked (the CJEU ordinarily practices judicial economy; in the case at hand some argue it answered questions that were not put to it). This provoked an interesting debate on the extent of the authority of those parts of the CJEU judgment which in a precedent system would likely be called obiter. The preliminary reference procedure however is not like a common law precedent or authority regime. What exactly it is will undoubtedly be discussed upon appeal and as professor Dickinson replies in comment to Giles’ post, there may be a way for the European Commission to use the Withdrawal Agreement’s dispute settlement provisions to clarify how CJEU authority is supposed to work.

Geert.

Unsuccessful appeal of #arbitration award following (and mostly ignoring) #CJEU Prestige judgment (see https://t.co/2ysTMGyzwT)
Permission to appeal largely granted instantly

London Steam-Ship Owners' MIA v [Spain] (Re Prestige) [2023] EWHC 2473 (Comm)https://t.co/VSBL2uQ9ip

— Geert Van Calster (@GAVClaw) October 6, 2023

This post has been written by Sanja Marjanovi? (Faculty of Law, University of Niš, Serbia) and Uglješa Gruši? (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živkovi? (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazi?, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivukovi?, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.

This post has been written by Sanja Marjanović (Faculty of Law, University of Niš, Serbia) and Uglješa Grušić (UCL).

The 18th Regional Private International Law Conference will take place on 17 November 2023 at the Faculty of Law, University of Niš, Serbia, with the support of the Deutche Gesellschaft für Internationale Zusammenarbeit GmbH (GIZ). The theme of the Conference is Private International Law and International Organizations – Achievements and Challenges.

The Conference will provide an opportunity to celebrate the 20th anniversary of the inaugural regional PIL conference, which was also held in Niš in 2003. These regional PIL conferences are a result of the vision of Professor Mirko Živković (Faculty of Law, University of Niš) to re-establish a regional PIL network that had been broken by the tragic dissolution of the former Yugoslavia. Although PIL scholars from countries stemming from the former Yugoslavia continue to be the nucleus of these conferences, they regularly attract PIL scholars from other countries as well.

The opening panel will feature the following topics and speakers:

• Reflections on the Complementarity of Global and Regional Unification of Private International Law, Hans van Loon (Former Secretary General of the Hague Conference on Private International Law), The Hague
• Characterisation in the CJEU Case Law: Unity or Diversity?, Vesna Lazić, Utrecht University and Asser Institute, The Hague
• Centennial of the Hague Academy of International Law, Maja Stanivuković, University of Novi Sad

The full programme of the conference can be found here.

The working language of the Conference will be English, and it will also be streamed online.

Those wishing to attend the Conference online are invited to register by emailing contact details and affiliation to antanasijevic@prafak.ni.ac.rs by 16 November at 12 CET.

Conference proceedings will be published in September 2024.

Written by Akanksha Oak, Jindal Global Law School, India

 

Introduction

The modern commerce landscape faces a significant challenge: the widespread infringement of intellectual property (“IP”) rights due to online interactions that enable instant global access. This issue is exacerbated by cross-border activities, necessitating the application of private international law (“PIL”). However, IP protection remains territorial, guided by the principle of “lex loci protectionis.” This results in complexities when it intersects with PIL. Online IP infringement further convolutes matters due to the internet’s omnipresence and accessibility, making the establishment of jurisdiction a complicated process for legal professionals. A pivotal development in this arena occurred in 2021 when the Delhi High Court rendered a judgement in the case of HK Media Limited and Anr v. Brainlink International Inc.,[1] illuminating India’s legal framework for determining jurisdiction in cases of online IP infringement within the context of cross-border disputes.

Facts

HT Media, the plaintiff in this case, was involved in the business of print media and online publications. They operated online editions of their newspapers through their websites, specifically www.hindustantimes.com,  and held registered trademarks for “Hindustan” and “Hindustan Times”. The defendants, Brainlink Int. Inc., were a corporation based in New York and owned the domain name www.hindustan.com. Their website provided news content like HT Media, focusing on India-America interests and stock market reports from India.

Due to the striking similarity between the websites, the plaintiffs initiated legal proceedings seeking a permanent injunction against the defendants, restraining them from using the domain name. Simultaneously, the defendants filed a suit in the United States District Court, asserting non-infringement of the plaintiffs’ rights.

In response, the plaintiffs argued that the Indian court should halt the proceedings in the foreign court through an anti-suit injunction. They contended that the defendants were subject to the personal jurisdiction of the Delhi High Court, making it appropriate for the Indian court to intervene in the case.

Enhanced and vital interpretation of “Carrying on Business”

The court’s jurisdiction in the present case was established under Section 134 of the Trade Marks Act 1999, which permits a plaintiff to file a suit in the court’s jurisdiction where it carries on business.

In cases of online infringement of IP, the test for carrying on business was outlined in World Wrestling Entertainment Inc. v. Reshma Collection.[2] In the World Wrestling case, the plaintiffs were a company incorporated under the State of Delaware, USA laws. They filed for a trade mark infringement in a suit in the Delhi High Court. They contested that their website was accessible in Delhi, and thus, under Section 134 of the Trade Marks Act, they carried on business in Delhi. The court noted that “the availability of transactions through a website at a particular place is virtually the same thing as a seller having shops in that place in the physical world.” This means that if a website is accessible via the internet at a particular place, the courts of that place could claim jurisdiction over the dispute. Moreover, due to the pervasive and global access of the internet, this gives the parties an opportunity for forum shopping; the jurisdiction can be established at any place where the online site is accessible.

This principle was further affirmed in the case of Millennium & Copthorne International Ltd. v. Aryans Plaza Services (P) Ltd.[3] In this instance, the plaintiff, “Millennium & Copthorne,” was a London-based company without a physical office in India. Nevertheless, the plaintiff extensively promoted its services in India through its online presence, collaborating with notable companies such as “MakeMyTrip” and “Hotel Travel Ltd.” Applying this law, the plaintiff argued that despite lacking an office in Delhi, they were carrying out business in Delhi and thus qualified to file the suit in the Delhi High Court under Section 134 of the Trade Marks Act.

Unsurprisingly, this approach raises concerns about predictability. This is because parties could file suits in any court where their website is accessible. In the present case, however, this reasoning was not accepted, as the court emphasised the physical existence of the plaintiff’s registered office in Delhi to meet the criterion of “carrying on business.” Moreover, the court deemed the lawsuit filed in the Eastern District of New York vexatious and oppressive.

One of the grounds to establish that the jurisdiction of the US court was oppressive was that the plaintiff was not carrying on business in the US. This determination was made by diverging from the precedent set in the World Wrestling case, as illustrated above. In this case, the court analysed the target audience of the plaintiff’s business. This analysis demonstrated that the plaintiff was indeed conducting business in India, and most of its readers were residents of India despite the global accessibility of its website. Had the court followed the World Wrestling case ratio, the mere accessibility of the plaintiff’s website would have constituted carrying on business in the US. However, the court, in this instance, refrained from doing so. Hence, the court’s interpretation of “carrying on business” was twofold: it relied on the physical presence of the plaintiff’s registered office and evaluated its target audience to establish the “carrying on of business.” The court did not solely consider the accessibility of the plaintiff’s website, as was the practice in previous cases.

The ruling in the WWE case allowed parties to potentially misuse the right of forum shopping, enabling them to file suits in any country where their website was accessible. However, the approach adopted in the present case aligns more closely with the principles of PIL. It helps prevent the abuse of forum shopping by restricting the options available to parties when filing a suit under the ambit of “carrying on business.” This decision establishes a precedent, underscoring the significance of establishing jurisdiction based on various connecting factors, such as the registered office of the party’s business and its target audience. This approach emphasises the importance of a collective analysis by considering a range of factors rather than solely relying on the accessibility of a website in a specific location.

The test of “Cause of Action”

In online IP infringement cases, another ground for establishing jurisdiction revolves around determining the place where the cause of action arose. The Delhi High Court has established precedents in this regard, notably in Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy,[4] and further elucidated in Impresario Entertainment v. S & D Hospitality.[5] In the Banyan Tree case, the plaintiff had a registered office in Singapore. It had an e-commerce website accessible in India, and thus, it instituted a suit in Delhi. It filed for trade mark infringement against the defendant, whose place of business was in Andhra Pradesh, India. The issue in this case was regarding the jurisdiction of the Delhi High Court, as neither of the parties resided in the territory of Delhi. Thus, the court established the “tighter version of the effects test” for deciding the place of cause of action in online infringement matters. The court ruled that to establish jurisdiction when the defendant does not reside or conduct business in the forum state but the website in question is universally accessible, and the plaintiff must demonstrate that the defendant specifically targeted the forum state with the intent to harm the plaintiff.

Building on this, in Impresario Entertainment v. S & D Hospitality, a Mumbai-based restaurant business (plaintiff) sued a Hyderabad-based restaurant (defendant) with a similar name in the Delhi High Court. The plaintiff claimed jurisdiction under the grounds of cause of action based on the reasoning that interactive website listings such as Zomato were accessible in Delhi, and thus, it was also one of the places where infringement took place, resulting in the cause of action. However, the court ruled in favour of the defendant, stating that mere website interactivity was insufficient for establishing jurisdiction under this ground. Thus, the Impresario case emphasised the concept of “specifically targeting the forum state,” requiring the plaintiff to prove that one of their customers was misled by the defendant, leading to the conclusion of a commercial transaction or a strong intention to finalise a transaction.

The tests for carrying on business and cause of action represented opposite ends of the spectrum: the former was relatively easy to establish, and the latter was challenging to prove, placing the burden on the plaintiff. In the present case, the court struck a balance between these tests. It established a criterion where the connecting factors for identifying where the cause of action arose required a demonstration of the likelihood of damage without conclusively proving a commercial transaction. The court held that since the plaintiff was an Indian news channel catering to an Indian audience, their goodwill and reputation were primarily in India. Consequently, any damage inflicted would stem from the defendant’s site being accessed from India, given that the plaintiff’s primary target audience resided there. The burden of proof was not on the plaintiff to prove that he had “actually” faced financial damage but to show that there was a “likelihood” of facing such financial damage to invoke the grounds for cause of action, unlike in the cases of Banyan Tree and Impresario. Furthermore, as the IP rights were safeguarded in India, any infringement would constitute a cause of action where these rights were granted.

Implications of the case

In the European Union (EU), the court’s jurisdiction is established under Art 7(2) of the Brussels I Recast Regulation. The connecting factors in this article are the places where the damage occurred or may occur. Thus, jurisdiction is established based on the location of the harm caused by online infringement, which the likelihood of financial loss to the plaintiff would prove. The plaintiff must prove that damage was caused due to the accessibility of the defendant’s site in that country. The court’s reasoning in the present case aligns with the reasoning of the EU to establish jurisdiction in such cases, as even in the present case, the court established jurisdiction based on connecting factors such as the place of “damage” by analysing the plaintiff’s target audience and how damage to its goodwill in India would lead to financial loss for the party. Thus, with the ruling in HK Media Limited and Anr v. Brainlink International Inc., India has also adopted an Article 7(2) Brussels approach. This ruling sets an encouraging precedent, fostering consistency and harmonising private international law rules across nations for cross-border online IP infringement. It furthers the goals of establishing predictability and certainty in determining jurisdiction in cross-border disputes.

[1] 2020 SCC Online Del 1703.

[2] 2014 SCC Online Del 2031.

[3] 2018 SCC Online Del 8260.

[4] 2009 SCC Online Del 3780.

[5] 2018 SCC OnLine Del 6392.

Dans son arrêt du 17 octobre 2023, la chambre criminelle se prononce une nouvelle fois dans l’affaire du détachement des pilotes employés par la société Ryanair, et conclut à la condamnation de la société, contrairement à la postition adoptée en 2018.

en lire plus

Indi Gregory is an eight-month-old child. She suffers from profound metabolic, neurological and cardiological disorders. At the time of writing this post she was a patient at an intensive care unit at a hospital in Nottingham.

A few months ago, the doctors who have been treating Indi in England came to the conclusion that her illness is incurable and that, given the pain caused by the life supporting treatment she is receiving, it is in Indi’s best interest that such treatment be withdrawn.

The parents disagreed and have since reiterated their wish to have the treatment continued. They made contact with a paediatric hospital in Italy, which made itself available to explore further options and continue treating the child.

The matter was dealt with by the High Court of England and Wales. This dramatic case, which reminds of similar cases involving children with incurable diseases, widely covered by the press (including the cases of Charlie Gard and Alfie Evans), raises a number of highly sensitive issues, legally and ethically. It also raises some private international law issues, as a result of the fact that Indi was recently granted Italian citizenship and that the Italian authorities, namely the Italian Consul in Manchester, claimed jurisdiction over the matter and issued orders aimed at transferring Indi to Rome.

This post is exclusively concerned with the latter issues.

Proceedings in England and in the European Court of Human Rights

The hospital Trust seised the High Court of England and Wales, in September 2023, seeking authorisation to remove the life sustaining care Indi was receiving, on the ground that, according to the Trust, there was no prospect of recovery, Indi’s life expectancy was very limited, the treatments she was receiving were causing her a high level of pain and suffering, and there was no discernible quality of life or interaction by Indi with the world around her.

The parents opposed the application, alleging, inter alia, that Indi had prospects of gaining a degree of autonomy, that she was showing small signs of improvement, and that the precise causes of her presentation are unclear and required further time and investigation.

On 13 October 2023, the Family division of the High Court ruled in favour of the Trust. Peel J explained:

With a heavy heart, I have come to the conclusion that the burdens of invasive treatment outweigh the benefits. In short, the significant pain experienced by this lovely little girl is not justified when set against an incurable set of conditions, a very short life span, no prospect of recovery and, at best, minimal engagement with the world around her. In my judgment, having weighed up all the competing considerations, her best interests are served by permitting the Trust to withdraw invasive treatment in accordance with the care plan presented.

Shortly afterwards, the Court of Appeal of England and Wales was seised of an appeal against the decision, by the parents, based on three grounds. By a ruling of 23 October 2023, the Court concluded that there was no prospect of an appeal on either of those grounds succeeding, and accordingly refused permission to appeal.

The parents of Indi Gregory seised the European Court of Human Rights, seeking an urgent order that would prohibit the withdrawal of life supporting treatment. The Strasbourg Court, however, did not uphold their request.

Peel J of the High Court was then again seised by Indi’s parents. They sought permission for the care of their child to be transferred to other medical professionals, at a hospital in Rome. On 2 November 2023, the High Court dismissed the application on the ground that there was no material change of circumstances, or other compelling reason, to justify reconsideration of the original order.

Specifically, concerning the proposal by the Rome hospital for cardiac intervention, Peel J considered that such intervention was inappropriate “because of the severity of the underlying conditions, IG’s instability and the lack of prospect of any meaningful quality of life, and the ongoing burden and pain of invasive treatment”. He added that “invasive life sustaining treatment is no longer appropriate for IG” and that the “substantial burdens of such treatment significantly outweigh any perceived (but in my judgment negligible) benefit, in a context where her life expectancy is very short, and her conditions irreversible”. He explained that,

there is nothing to suggest that IG’s prognosis would be beneficially altered by the Italian hospital’s treatment. On the contrary, it may well prolong pain and suffering if and to the extent that it incorporates invasive procedures which in my judgment are not in IG’s best interests, and should not be sanctioned.

 Steps Taken by the Italian Government and Authorities

On 6 November 2023, the Italian Government decided to grant Italian citizenship to Indi Gregory. It relied for this on Article 9(2) of the Italian Statute on Citizenship (Law No 91 of 1992), according to which citizenship may be granted, through a Presidential Decree, where to do so is of “exceptional interest for the Italian State”.

According to the press release accompanying the decision, such an interest consisted, in the circumstances, in providing IG with additional therapeutic opportunities (“ulteriori sviluppi terapeutici”), for the purposes of safeguarding the pre-eminent humanitarian values underlying the case (“preminenti valori umanitari”). The decision, the press release explains, was adopted following a request by the parents of the child, in connection with their wish to have Indi transferred to Rome to receive further treatment.

The author of this post was unable to retrieve any official document explaining in which way, i.e., based on which legal grounds and reasoning, the fact of making Indi Grgeory an Italian citizen would alter the picture resulting from the orders of Peel J, and increase the chances of Indi being transferred to Rome.

Be that as it may, on 8 November 2023, according to press reports, the Italian Consul in Manchester asserted that Italian authorities had jurisdiction over the case, precisely on the ground that Indi had become an Italian citizen, and ordereed that IG be transferred to Italy. The decision was taken by the Consul in his capacity of “guardianship judge”, that is, in the exercise of the judicial functions that Italian law confers on the heads of consular posts as regards, specifically, the protection of minors of Italian nationality outside the territory of Italy. The Consul also appointed a special representative of IG to take care of the implementation of the order. Press reports indicate that the appointed representative made contact with the hospital managers seeking their “cooperation”.

Further Developments

The English High Court made a new ruling on 8 November 2023. The parents wished to take the child back home, in Derbyshire, and have the extubation and the resulting compassionate care performed there.

Peel J dismissed the request. He observed that Indi “should continue to have clinical treatment of the highest quality, carried out in a safe and sustainable setting”, which would “not be available at home”, noting that

for the plan to work at home, there needs to be a close, constructive and engaged level of communication between the parents and the Trust/relevant clinicians, but, unfortunately, that does not appear to be the case.

Interestingly, for the purposes of this post, Peel J took note that Indi had very recently been granted Italian citizenship, while adding that the Indi’s father (the mother did not intervene at the hearing)

acknowledged, correctly and properly, that my decisions and orders are unaffected by this development.

Rumours circulated in the press concerning a possible agreement between the Italian and the UK Governments regarding the transfer of Indi to Italy, although no indications were given as to the legal grounds on which the decisions of the High Court could be superseded.

Withdrawal of life support is expected to be carried out today, 9 November 2023, at 15 CET.

Some Remarks on the Private International Law Aspects of the Case

The text of the order issued by the Italian Consul in Manchester has not been made publicly available. The author of this post is not aware of the exact provisions of the order. The grounds on which the Consul asserted that the case comes with the jurisdiction of Italian authorities are also not known. It is also not known whether the Consul addressed the issue of the recognition of the English orders in the Italian legal system, and, in the affirmative, what conclusions were reached in that regard. In addition, it is not known whether any exchanges occurred between the Consul and the High Court either prior to the Consul’s order or at a later stage.

The following remarks are, accordingly, of a general nature, and do not purport to represent an analysis, let alone an assessment, of the measures taken by the Italian authorities.

The Hague Child Protection Convention

Italy and the UK are parties to the Hague Child Protection Convention of 19 October 1996.

As stated in Article 1(1)(a), the Convention aims, inter alia, to “determine the State whose authorities have jurisdiction to take measures directed to the protection of the person or property of the child”. Cases like that of Indi Gregory appear to come with the material scope of the Convention.

Pursuant to Article 5(1) of the Hague Child Protection Convention, the authorities of the Contracting State of the habitual residence of the child have jurisdiction to take measures directed to the protection of the child’s person or property. In relation to States, like the UK, in which two or more systems of law regarding the protection of children apply in different territorial units, reference to habitual residence must be construed, as clarified in Article 47(1), as referring to habitual residence in a territorial unit. Thus, as concerns children whose habitual residence is in England, English courts have jurisdiction.

As a rule, the authorities of the State of which the child is a national do not have jurisdiction under the Convention.

Rather, the Convention contemplates the possibility that a case be transferred by the authorities having jurisdiction based on Article 5 to the authorities of a different Contracting State.

Specifically, Article 8 stipulates that the authority of the State of habitual residence of the child, if they consider that the authority of another Contracting State “would be better placed in the particular case to assess the best interests of the child” (including the authorities of the State of nationality of the child), may request that other authority to assume jurisdiction to take such measures of protection as they consider to be necessary, or suspend consideration of the case and invite the parties to introduce such a request before the authority of that other State.

Article 9 goes on to state that the authorities to which the case may be transferred (including, again, the authorities of the State of nationality), if they consider that they are better placed in a particular case to assess the child’s best interests, they may request the competent authority of the Contracting State of the habitual residence of the child that they be authorised to exercise jurisdiction to take the measures of protection which they consider
to be necessary. The authorities concerned may then proceed to an exchange of views.

In the case of Indi Gregory, the English High Court has, so far, not considered that the Italian authorities would be better placed to deal with the case, including after the Court was informed that an Italian hospital was available to treat the child and that Indi had been made an Italian citizen.

On 9 November 2023 news reports had that the Italian Consul in Manchester had approached the High Court in connection with a request based on Article 9 of the Convention. Very few details were available on this  at the time of publishing this post.

The urgency of the matter does not appear to change things. The Hague Convention includes a special provision that applies in “all cases of urgency”, namely Article 11, but this provision confers jurisdiction on the authorities of the Contracting State “in whose territory the child or property belonging to the child is present”.

It is worth adding that measures relating to the protection of a child emanating from the authorities (including a Consul, as the case may be) of a Contracting State are entitled to recognition in all other Contracting States “by operation of law”, as stated in Article 23(1). However, recognition may be refused, according to Article 23(2)(a) “if the measure was taken by an authority whose jurisdiction was not based on one of the grounds provided for in Chapter II”, of the Convention, i.e., Article 5 and following.

Does the Involvement of a Consular Authority Change the Picture?

One may wonder whether the picture resulting from the above provisions of the Hague Child Protection Convention could be affected in some way where a consular post, rather than a judicial authority, claims to take measures directed at the protection of a child.

The Hague Convention applies, as such, to all the authorities of a Contracting States with competence over matters within the scope of the Convention itself. The nature of the authorities involved in a given case are, accordingly, immaterial. Rather, where a consular post is involved, it is appropriate to assess whether the rules governing consular relations may play a role, and possibly affect the operation of the Hague Convention.

Both the UK and Italy are parties to the Vienna Convention on consular relations, of 24 April 1963. In addition, the two countries have concluded between themselves, in 1954, a consular convention.

Article 5 of the Vienna Convention describes consular functions as including, among others, “safeguarding … the interests of minors … who are nationals of the sending State, particularly where any guardianship or trusteeship is required with respect to such person”. As specified in Article 5(h), the latter function is to be exercised by consular posts “within the limits imposed by the laws and regulations of the receiving State”.

For their part, the authorities of the receiving State (the English authorities, in the case of Indi), are required, according to Article 37(b) of the Vienna Convention “to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor … who is a national of the sending State”. It is clarified, however, that the giving of this information is “without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments”.

The bilateral consular convention does not appear to extend the functions of consular authorities regarding the protection of children, nor impose on the authorities of the receiving State duties that go beyond what is provided in the Vienna Convention, in particular as regards the jurisdiction of courts and the recognition of foreign decisions.

As a result, it is difficult to see how the findings above, made in respect of the Hague Child Protection Convention, could be modified in light of the involvement of a consular authority.

Bundesamt für Fremdenwesen und Asyl e.a. (Femmes afghanes)
Espace de liberté, sécurité et justice
Selon l’avocat général Jean Richard de la Tour, les mesures discriminatoires adoptées à l’égard des femmes afghanes par le régime des talibans constituent, en raison de leur effet cumulé, une persécution

Commission / Irlande e.a.
Aide d'État
Selon l’avocat général Pitruzzella, il y a lieu d’annuler l’arrêt du Tribunal sur les rulings fiscaux adoptés par l’Irlande en faveur d’Apple

Commission / Suède (Contrôle de l’acquisition et de la détention d’armes)
Rapprochement des législations
Manquement d’État : la Suède est condamnée à payer 8 500 000 euros pour transposition tardive de la directive modifiée sur les armes

Všeobecná úverová banka
Clause abusive d’un contrat de crédit à la consommation garanti par le logement familial : le juge doit apprécier la proportionnalité entre la faculté du professionnel d’exiger la totalité du prêt et la gravité de l’inexécution par le consommateur

Gesamtverband Autoteile-Handel (Accès aux informations sur les véhicules)
Rapprochement des législations
Les constructeurs automobiles doivent mettre les numéros d’identification des véhicules à la disposition des opérateurs indépendants

Google Ireland e.a.
Liberté d'établissement
Lutte contre les contenus illicites sur Internet : un État membre ne peut pas soumettre un fournisseur d’une plate-forme de communication établi dans un autre État membre à des obligations générales et abstraites

Ronald A. Brand, Michael S. Coffee and Paul Herrup are the authors of The 2019 Hague Judgments Convention, published by Oxford University Press, part of its Private International Law Series.

Declared a ‘game-changer’ by the Hague Conference Secretary General, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters has introduced international obligations of unprecedented sweep and power. Now, this authoritative treatise provides the diplomatic background and the historical context for the Convention, discussing the law on judgments recognition in the absence of the Convention’s ratification. After recounting the twenty-seven-year history of the negotiations leading to the Convention’s conclusion, it offers an article-by-article discussion of each provision. It also considers paths not taken, advancing possible solutions to address future pressures and developments.

More information, including the table of contents, can be found here.

X v Y (yep, annoying and entirely without reason, an anonymous judgment) ECLI:NL:RBLIM:2023:4342 is an interesting illustration of Brussels Ia’s Article 7(1)(a’)s ‘looking over the fence’ aka the conflicts method for determining forum contractus.

The method implies that beyond the standard contractual categories for which Article 7(1)(b) locks in forum contractus as a European ius commune, the ‘place of performance of the obligation in question’ needs to be determined by provisionally identifying the lex contractus and then using that lex contractus to determine place of performance, leading to a conclusion whether the judge seized has jurisdiction or not. See CJEU 12/76 Tessili v Dunlop.

In the case at issue, the contract is a loan and the applicable law is determined with reference to CJEU Kareda. This is where the court veers off course (my first categorisation by Tweet of the judgment being an excellent example therefore needs to be corrected): In Kareda the CJEU held that the credit agreement at issue was to be considered an ‘agreement for the provision of services’ per A7(1)(b), locking in forum contractus “in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided”. In such case, no more looking over the fence is required, let alone consideration of Article 4(3) Rome I etc.

Geert.

Students claxon
First instance Limburg, excellent example of 'looking over the fence' aka the conflicts method per CJEU Tessili v Dunlop to determine forum contractus per A7(1)a BIa, A4(2) Rome I (no A4(3) manifest closer connection
ECLI:NL:RBLIM:2023:4342https://t.co/g6EdSsEs2c

— Geert Van Calster (@GAVClaw) October 20, 2023

The UK Supreme Court has dismissed the appeal in Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40, confirming the Court of Appeal’s finding that the claim against the majority of the defendants may go ahead.

I reviewed the first instance judgment here and the Court of Appeal’s here and I shall not repeat all the issues. Readers should note that the issues discussed are of wider relevance to current developments in both public and private international law (business and human rights litigation, climate change litigation etc.).

[21] Lord Lloyd-Jones summarises the Dicey rules at play (and also notes the editors of the 16th d and those before them pointing out the inroads that in recent years have been made into the principle) and [22] he makes a delightfully concise reference to somewhat different US views on the rationale for the issue.

[39] after reviewing the authorities, it is held that

The Danish tax system undoubtedly provided the context and the opportunity for the alleged fraud and the operation of the fraud can be understood only by an examination of that system. It may well be that at the trial of this action it will be necessary to address that in detail. However, as we have seen [that’s a reference to Dicey as summarised above, GAVC], there is no objection to the recognition of foreign tax laws in that way. Because the present proceedings do not involve an unsatisfied claim to pay taxes due in Denmark, they fall outside the scope of the revenue rule.

[41] applies fraus and nemo auditur in dismissing appellants’ attempt to present themselves as taxpayers

The appellants seek to circumvent this difficulty by nevertheless portraying the refund applicants as taxpayers. It is said that by making applications for withholding tax refund applications the applicants brought themselves within the Danish tax system and became Danish taxpayers. It is also said that the respondent by paying “refunds” accepted them into the Danish tax system. It is further said that in rescinding the “refunds” the respondent was acting in the capacity of a taxing authority. The appellants therefore maintain that, in all the circumstances, the recipients of “refunds” and the respondent were in the relationship of taxpayer and taxing authority. As the Court of Appeal pointed out (at para 136) this submission is misconceived. The applications for “refunds” were all based on the lie that the applicants had paid tax in the first place which, on the respondent’s pleaded case, they had not. This attempt to portray the applicants as taxpayers cannot bind the respondent as the victim of their fraud and the applicants cannot take advantage of their own wrongdoing in order to bring themselves within the revenue rule.

[44] ff discusses the impact of (commentary on) CJEU C-49/12 Sunico, which was also discussed by the  first instance judge in current case and by Szpunar AG and the CJEU in Movic.

[53] ff then discusses the sovereign authority rule, essentially considering whether the claim is a simple money claim like thirteen to the dozen, and with reference (via Dr Mann) to Grotius’ ‘actus qui a rege sed ut a quovis alio fiant’.

[58] again substance is distinguished from context

appellants are undoubtedly able to point to prior exercises of sovereign power by Denmark in creating its laws relating to the taxation of dividends and in operating the tax system. This, however, merely provides the context for the present claims. The substance of the claims, as we have seen, does not involve any act of a sovereign character, any exercise or enforcement of a sovereign right, or any vindication of sovereign power. On the contrary, the respondent is simply bringing restitutionary claims to recover monies of which it has been defrauded, a course open to any private citizen who had been similarly defrauded.

Unlike in first instance, neither Lugano nor Brussels Ia feature substantially at the Court of Appeal or Supreme Court. That is a pity for how the Dicey rules and similar ones in the current EU Member States relate to Lugano and Brussels, is not clear-cut.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.28 ff. (4th edition forthcoming January 2024).

For background see https://t.co/B5DeTbT5g4
More on the blog soon.

via @bwmlindsay https://t.co/3tVcUeFyL7

— Geert Van Calster (@GAVClaw) November 8, 2023

L’application du principe ne bis in idem exige de prendre en considération les faits mentionnés dans les motifs du jugement antérieur et ceux sur lesquels a porté la procédure d’instruction mais qui n’ont pas été repris dans l’acte d’accusation ainsi que toutes informations pertinentes concernant les faits matériels visés par une procédure pénale antérieure menée dans cet autre État membre et clôturée par une décision définitive.

en lire plus