Agrégateur de flux

In [2019] EWCA Civ 38 Huawei v Conversant Wireless (on appeal from [2018] EWHC 808 (Pat) the Court of Appeal considered whether in the event of 2 defendants being UK based (the others domiciled in China) the UK courts may relinquish jurisdiction reflexively to honour Article 24(4) Brussels Ia’s exclusive jurisdictional rule for the validity of patents.

Neither Article 33’s lis alibi pendens or Article 34’s ‘forum non conveniens’ rule were discussed.

Huawei China and ZTE China have commenced proceedings in China against Conversant, seeking to establish invalidity and (in the case of Huawei China only) non-infringement of Conversant’s Chinese patents. Conversant have inter alia sued Huawei China and ZTE China in Germany for infringement of its German patents.

Following Owusu, jurisdiction for infringement of UK patents against UK incorporated companies must lie and remain with the English courts per Article 4 B1a. As readers will remember from my review of Ferrexpo, the English courts for some time however have noticed with relish that the CJEU in Owusu did not entertain the part of the referral which asked it whether exclusive jurisdictional rules may apply reflexively – holding thereafter in the CJEU’s stead that they might so do (in a discretionary: not a slavish fashion: Floyd J here at 115).

At 95 ff Floyd J discusses the issues after having summarised the various representations made (see a summary of the summary by John de Rohan-Truba here), with much of the discussion turning on English CPR and jurisdictional rules, and reflexive application of Article 24(4) confirmed in principle, but not applied here. Requests to refer to the CJEU were summarily dismissed.

Geert.

(Handbook of ) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.7, Heading 2.2.9.5.

La Cour de justice se dote de nouvelles règles concernant l’admission des pourvois dans les affaires ayant déjà bénéficié d'un double examen

Pourvoi c/ Cour d'appel de Colmar, chambre de l'instruction, 10 janvier 2019

Pourvoi c/ Cour d'appel de Besançon, chambre de l'instruction, 13 mars 2019

Tribunal de grande instance de Saint-Brieuc, pôle social, 25 avril 2019

Pourvoi c/ Cour d'appel de Paris, pôle 7, première chambre de l'instruction, 5 mars 2019

Tribunal de grande instance de Dijon, pôle social, 23 avril 2019

Le mécanisme de règlement des différends entre investisseurs et États prévu par l’accord de libre-échange entre l’Union européenne et le Canada (CETA) est compatible avec le droit de l’Union

AIRBNB Ireland
Liberté d'établissement
Selon l’avocat général Szpunar, un service tel que celui fourni par la plate-forme AIRBNB constitue un service de la société de l’information

In [2019] EWHC 982 (Comm) Pan Ocean v China-Base Group, Hancock J reviews CJEU authority old and new on Article 25 Brussels I Recast at length, starting with Colzani and Segoura and ending with Profit Sim.

The sole but important focus of the discussion is on Article 25 (1)(a)s ‘in writing or evidenced in writing’ (the Article’s other options for the existence of expression of consent were not under discussion: see at 32).

His conclusion, justifiable in my view, is (at 32) that there is no authority (CJEU or otherwise) which would go so far as to say that agreement to an exclusive jurisdiction clause which was implied solely from the conduct of the parties suffices for the purposes of compliance with Article 25.

At 35 ff he considered obiter the issue of anti-suit aimed at Singapore, had he decided that there is a valid clause, in summary rejecting that, too, at 63.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9, Heading 2.2.9.

Selon un arrêté du ministère de la justice, publié vendredi 26 avril au Journal officiel, l’expérimentation des cours criminelles, instituées par la loi de programmation de la justice, démarrera, pour une durée de trois ans, le 1er septembre prochain. Et ce, dans sept départements : Ardennes, Calvados, Cher, Moselle, Réunion, Seine-Maritime et Yvelines.

Cette cour, composée de cinq magistrats, jugera les crimes punis de quinze à vingt ans de prison.

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The latest issue of RabelsZ has just been released. It focuses on “legal methodology” and contains the following articles:

Reinhard Zimmermann, Reinhard, Juristische Methodenlehre in Deutschland (Legal Methodology in Germany), pp. 241 et seq

The existence of a method, and thus also of a methodology, is very widely regarded as essential for an academic discipline. In Germany, law is, and has always been, an academic discipline. It is the object of what is referred to as Rechtswissenschaft (literally: legal “science”; less literally: scholarship relating to the law), characterized by a specifically legal methodology. Legal methodology is a foundational subject taught in German law faculties and set out in a rich body of legal literature. The present essay attempts to assess, on the basis of that literature, how lawyers are conceived (or perhaps rather: supposed) to operate in Germany. A specificity of the German discourse is the conceptual distinction between statutory interpretation and judicial development of the law. The essay provides an analysis of the various factors relevant within the enterprise of statutory interpretation, and of the prerequisites, the different levels, and the legitimacy of judicial development of the law. It also alerts the reader to the political experiences overshadowing the methodological discourse in Germany. The essay starts with five observations of a more general nature focusing on (i) methodological commonalities in Germany, Switzerland, and Austria; (ii) the normative character of the methodological discourse; (iii) (emerging) methodological differences between different fields of law; (iv) the place of Rechtsdogmatik (legal doctrine and the scholarship associated with its creation); and (v) the historical background of the German discourse.

Gregor Christandl, Juristische Methodenlehre in Italien oder: Kurze Geschichte der italienischen Zivilrechtswissenschaft ab dem 19. Jahrhundert (Legal Methodology in Italy – A Brief History of Italian Private Law Scholarship since the 19th Century), pp. 288 et seq

In Italy, as in other continental legal systems, it is common to refer to “legal science” (scienze giuridiche) with regard to legal scholarship. Since the main purpose of such a legal science is the solution of practical cases or legal problems, it requires a method, or in other words, a prescribed process of single steps that lead to a solution. It is the purpose of this article to find out whether there is any discussion of such legal methodology in Italy, what role it plays in academic legal education and how it has developed since the 19th century. If one agrees that all legal methodology comes down to methods of interpretation of the law, the history of methodology is a history of interpretation. This article therefore also recounts the major developments in the history of interpretation of Italian private law and critically assesses the latest stage of “Italian legal style” in the last fifty years.

Coro Jansen, The Methodology of Dutch Private Law from the Nineteenth Century Onwards, pp. 316 et seq

– No abstract available –

Gerhard Dannemann, Juristische Methodenlehre in England (Legal Methodology in England), pp. 330 et seq

There is no equivalent to the German juristische Methodenlehrein English law. Four of its aspects have appeared to different degrees, in different combinations, and at different times in English legal education and textbooks: (i) the development of case law through the doctrine of binding precedent; (ii) the interpretation of statutes; (iii) jurisprudence; and (iv) the classification and systematization of English law. Based on a historical review of legal education at English universities, the article describes that aspects (i) and (ii) continue to be taught, but separately from (iii), which no longer is a core element at many universities, and that (iv), never a strength of the common law, is frequently neglected. The article offers six reasons why something akin to juristische Methodenlehre  has never taken off in English law: (i) when legal methodology was refined and developed in 19th  century Germany, English law was facing very different problems and only saw the beginnings of university education; (ii) unlike in Germany, legal methodology has never been a compulsory element of legal education; (iii) employers, whose professional organizations still determine the compulsory elements of the legal education syllabus, expect more practical than methodological skills; (iv) student demand for legal methodology has been consistently low; (v) a three-year syllabus for an English LL.B. can accommodate fewer subjects than a four- to five-year syllabus for a German first degree in law; and (vi) English law has demonstrated with its development of case law over the last decades in particular that it is nevertheless quite capable of achieving the goals which German legal methodology seeks to attain, doing so arguably better than German law.

Hans Petter Graver, Teaching Legal Method in Norway, pp. 346 et seq

– No abstract available –

Gabriele Koziol, Juristische Methodenlehrein Japan (Legal Methodology in Japan), pp. 361 et seq

Starting in the 1920s, legal methodology established itself as the object of lively discussions in Japan. Unlike in Germany, however, the discussion did not focus on concrete problems of statutory interpretation, being led instead on a more abstract level. Issues discussed included, for instance, the question of how to deal with law imported from Western countries at the end of the 19th century and the importance of legal dogmatics, considering also the relationship of case law and statutes. While for some time a pragmatic approach prevailed – an approach sometimes even rejecting the binding nature of statutes – in recent years there has once again been a tendency towards a more systematic-functional approach. In legal practice, a set of interpretation methods is generally acknowledged which by and large resemble those adopted under German law. However, some peculiarities of Japanese court practice can be found with regard to the acknowledged sources of law as well as, for example, the use of analogy. In legal education at universities, legal methodology does not play an important role. Nevertheless, the academic discussion on methodological issues has also dealt with the question of what legal education should look like. Currently, the discourse on methodological questions is witnessing a revival, partly due to an increased interest in law and economics. Also, the recent reform of the law of obligations could bring about some changes in the approach to statutory interpretation.