Agrégateur de flux

The Conference “Eurolanguage in Private International Law. Legislating, translating and  applying”, which will take place next June 14 in Tarragona, is an interdisciplinary forum for lawyers and scholars in the field of private international law, comparative law and private law to establish fruitful discussions with scholars and practitioners in the areas of legal language and translation, with the personnel from international institutions, academics and professionals.

The aim is to reflect on the possible establishment and impact of a European legal language framed within the area of private international law (PIL). The ground rules of European PIL are enshrined in European regulations, but also directives, which are discussed in the legislative process using, a priori, the 24 official languages in a context of integral multilingualism. As a result, EU rules in 24 language versions are applicable in all 28 Member States.

The analysis will focus on the linguistic issues pertaining to drafting the EU rules; the tools, techniques, and problems in translating the linguistic versions of the rules; whether interlinguistic coherence is achieved; and the legal-linguistic issues the legal operators of Member States face when applying European rules on PIL norms coexisting with other rules of conventional and domestic origin.

Click here to access the PROGRAM .

Venue: Congress will take place at the Sala de Juntes of Universitat Rovira i Virgili Campus Catalunya. (information to get there is provided here)

 

PAPERS SUBMIT

Topics: The organizers invite proposals on several issues related to the general topic. Check “Call for papers” document on the congress website: http://www.dret-privat.urv.cat/jornades-i-congressos/eurolenguaje/

Formal requirements: 500-600 word-long abstracts and 5 keywords in a MS Word file.

Languages: Spanish and English.

Deadline and address for submissions: Proposals may be submitted until 21 May, 2018. Proposals should be sent to: mireia.eizaguirre@urv.cat, who will confirm reception.

Confirmation of acceptance and oral presentation: All authors will receive an email with the decision by 25 May, 2018: proposals may be accepted to be presented orally (10 minutes); accepted not to be presented orally; or rejected.

Publication: Accepted papers, presented or not, will be published in a collective volume as long as they are positively assessed in the relevant blind review.

REGISTRATION

Registration: authors of accepted proposal should complete registration by 8th June 2018. Registration will be valid after payment on a € 50 fee credited to the account number: BANCO BILBAO VIZCAYA, IBAN: ES9601826035450201605723.

SWIFT: BBVAESMMXXX. Proof of payment should be sent to: mireia.eizaguirre@urv.cat.

Following fierce consultations, deliberations and debates, a new law has been passed by the Hellenic Parliament on improving adoption and foster care procedures. The law introduces a new institution: The National Foster Care & Adoption Council, and contains provisions on the requirements and procedures for foster care, thus, enriching the existing landscape embedded in the Civil Code since 1996. It also establishes two national registries:  The National Registry of adoptive applicants and the National Registry of adoptions.

The bone of contention was however the ‘window’ opened by the new legislation under Article 8, i.e. the right of same-sex partners to become foster parents. After a couple of weeks full of tension in the press and the Parliament, the Government moved on and secured the necessary majority for passing the provision.

This is yet another step towards full equivalence of same-sex with heterosexual couples. It was preceded by the introduction of same-sex partnerships in 2015, as an aftermath of the country’s condemnation by the ECHR in the Vallianatos ruling. Still, same-sex marriage is not, and will seemingly not be allowed for quite some time in the future, given that the Supreme Court has ruled out this possibility end last year.

Finally, it should be noted that Greece has recently enacted  legislation allowing the out of court dissolution of marriage in mutual consent, and abolished the compulsory application of Sharia law for Greek Muslims.

The IACPIL (Interdisciplinary Association of Private International and Comparative Law) and the University of Vienna invite to a lecture by Prof. Budzikiewicz (in German).

Whereas private divorces were mostly executed outside Europe, nowadays Italian, French as well as Spanish law allow a contractual divorce. The lecture addresses to what extent private divorces can be valid outside the enforcing state. The recognition can be relevant in different cases, e.g. another marriage is aspired or legal questions concerning the right of maintenance, tax law as well as law of succession arise.
The CJEU recently ruled that the Rome III regulation is not applicable to a marriage divorced by a spiritual court in a third country. In this respect the lecture focuses on how private divorces are to be treated with regard to private international law and international procedural law.

The flyer can be found here

Where: University of Vienna, Juridicum, Schottenbastei 10-16, 1010 Vienna, SEM 20
When: 17 May 2018, 6 p.m.
The event is free but registration is required (office@igkk.org).

In [2018] EWHC 380 (Comm) UCP Plc v Nectrus Limited Cockerill J takes the same conclusion on the new lis alibi pendens rule ex-EU in the Brussels I Recast, which I had suggested in the Handbook (p.182). A court in a Member State seized of an action other than those based on Articles 4, 7, 8 or 9 cannot refuse jurisdiction in favour of a court based ex-EU.

From Herbert Smith’s summary of the case: Nectrus, a Cypriot company, commenced proceedings in the Isle of Man seeking payment of sums withheld by UCP, an Isle of Man company, on the sale of a company, Candor. UCP then commenced proceedings in England claiming that Nectrus was in breach of an Investment Management Agreement (IMA), the loss being the amount by which the sale consideration of Candor had been reduced, hence the amount withheld on its sale.

The IMA contained a non-exclusive jurisdiction agreement in favour of the English courts. UCP disputed the jurisdiction of the Manx court, but in the event the proceedings continued, indicated they would raise the cause of action relied on in the English proceedings by way of equitable set off. Nectrus disputed their right to do so.

Nectrus disputed the jurisdiction of the English court on the basis that the Manx courts were the most appropriate forum to determine the dispute and were first in time.

Other than for the articles listed above, the CJEU’s findings in Owusu continue to apply. That includes English jurisdiction on the basis of non-exclusive choice of court, covered by Article 25 of the Recast Regulation. Justice Cockerill is entirely correct in unhesitatingly (at 39) rejecting forum non conveniens.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.4 (International impact of the Brussels I Recast Regulation), Heading 2.2.14.5.2.

Mercredi, la commission des lois de l’Assemblée a adopté le projet de loi de lutte contre les violences sexistes et sexuelles. L’étude des 242 amendements (pour 4 articles) a parfois été houleuse, le texte étant en deçà des promesses faite par le gouvernement à l’automne. Le projet de loi a été étendu à d’autres sujets (définition du viol, inceste, circonstances aggravantes, …) et devrait connaître d’autres évolutions en séance.

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Bobek AG opined about a little while ago in C-27/17 flyLAL. (Readers may also find my recent posting on NBK useful, re Article 7(5)).

AB flyLAL — Lithuanian Airlines (‘flyLAL’) operated flights from Vilnius airport in Lithuania until it was put into liquidation. According to flyLAL, its demise was caused by predatory (that is, below cost) pricing by the Latvian airline Air Baltic Corporation A/S (‘Air Baltic’). That predatory pricing was, it is alleged, part of an anticompetitive strategy agreed between Air Baltic and the operator of Starptautiskā lidosta Rīga (Riga international airport in Latvia, ‘Riga Airport’). Thus, Riga Airport and Air Baltic agreed to drastically reduce the prices paid by Air Baltic for services at Riga airport. The savings were then used by Air Baltic to finance the predatory pricing that drove flyLAL out of the market in Vilnius, Lithuania.

Can Air Baltic and Riga Airport for damages before the courts in Vilnius? The national court and parties refer to three alleged infringements of competition law: (i) abuse of dominance consisting in the system of reductions implemented by Riga Airport; (ii) an anticompetitive agreement between Riga Airport and Air Baltic; and (iii) abuse of dominance in the form of predatory pricing by Air Baltic. Those infringements, it is argued, were interrelated, forming part of a strategy to oust flyLAL from the market in Vilnius and move passengers to Riga airport to the benefit of both Riga Airport and Air Baltic.

There is a lot in the Opinion – among others because as the AG points out, the referring court’s description of the alleged infringement of competition law is not entirely clear. Bobek therefore sets out a set of variables. The Court itself is bound not to distinguish among quite so many. Of note are the AG’s suggestions

• that locus damni here is not place of financial loss, rather the place within the markets affected by the competition law infringement where the claimant alleges loss of sales.That suggestion in my view is helpful for neither the Regulation’s aim of predictability, nor the protection of those damaged by infringement of competition law (the latter not however a stated aim of the Regulation). Put differently: damage located in a Mozaik fashion assists the tortfeasor. The Advocate General reaches this conclusion after a thorough revisit of the initial Bier judgment (and Capotorti AG’s Opinion in same), ditto Marinari and Dumez France. Yet the continuing need to conceptualise the Court’s Bier rule illustrates again in my view the mistake made in that original judgment, to introduce a forum damni despite the utter lack of textual support for same.
• for locus delicti commissi with full jurisdiction, the AG distinguishes between Article 101 TFEU (as regards the alleged anticompetitive agreement between Air Baltic and Riga Airport, the place of the event giving rise to the harm (that is, the loss of sales by flyLAL), is the place of the conclusion of the agreement) and 102 TFEU (alleged predatory pricing by Air Baltic, the place of the event giving rise to the harm is the place where the predatory prices were offered and applied).  With respect to Article 101 TFEU, Bobek AG suggests this is identical to the Court’s judgment in CDC . I am not too sure but I am biased. As I noted above, in my view the Court should steer clear of an application of Article 7(2) which allows those infringing competition law to forum shop by manipulating the place of decision-making. In CDC the Court held that ‘the identification, in the jurisdiction of the court seised of the matter, of a specific event during which either that cartel was definitively concluded or one agreement in particular was made which was the sole causal event giving rise to the loss allegedly inflicted on a buyer’ cannot be ruled out. That implies that in other cases the identification of such singular event can be ruled out and that many places may be consider locus delicti commissi.  
• finally with respect to (now) Article 7(5), the activities of a branch. The AG does not specify what must be meant by a ‘branch’ – for the national court has already concluded there is such branch. The Advocate General here is perhaps unusually deferential to the factual finding. Whether there is a sufficient nexus between the activities of the branch and the dispute, in the case of tort-based claims requires the branch participate in at least some of the actions constituting the tort (at 137). Offering the fixed prices or otherwise having been instrumental in concluding contracts for services at those prices suffices. In such cases, the branch has again participated in the commission of an act that constitutes a necessary precondition for the abuse (at 142).

A lengthy opinion. And it all started with the fairly straightforward facts of Bier…

Geert.

(Handbook of) EU private international law), 2nd ed. 2016, Chapter 2, Heading 2.2.11.2

 

 

 

 

William J. Moon has published an article titled “Regulating Offshore Finance” on SSRN. It can be accessed @ https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3153121.

The abstract is reproduced below:

From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks, and insurance companies.

While the prevailing account has examined offshore financial havens as “tax havens” that facilitate the evasion or avoidance of domestic tax, this Article uncovers how offshore jurisdictions enable corporations to evade domestic regulatory law. Specifically, recent U.S. Supreme Court cases restricting the geographic scope of federal statutes have created a space for commercial actors to circumvent regulation by incorporating in offshore jurisdictions. Under this jurisprudence, financial transactions completed through offshore commercial entities are often, albeit not categorically, seen as “extraterritorial” transactions beyond the reach of federal statutes. This makes it increasingly difficult for private litigants to bring statutory claims designed to protect the workings of the market, even in cases that are predominantly connected to the United States. After documenting how offshore jurisdictions enable commercial entities to opt out of federal regulatory statutes, this Article critiques the Supreme Court’s recent extraterritoriality jurisprudence that risks breeding a cottage industry of private regulatory evasion.

L’article 3 de la Convention européenne des droits de l’homme n’est pas méconnu lorsque l’État renvoie un individu vers un pays ayant pris des mesures générales pour prévenir les risques de mauvais traitements prohibés par cette disposition, et que le requérant ne présente aucun élément de preuve établissant que ses conditions de détention auraient dépassé le seuil de gravité nécessaire pour constituer une telle violation. 

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Once in a while I post on State Immunity, one of my favourites sub-themes in same being waiver of immunity, whether by contractual provision or following submission. [2018] EWHC 385 (Comm) certain underwriters at Lloyds et al v Syrian Arabic Republic et al is a good illustration of the latter. How does one serve a state which is evidently in times of political unrest? And has that State submitted to jurisdiction hence waived immunity?

Claimants’ claim in the United States District Court arose from the 1985 hijacking of EgyptAir flight 648 and the loss to which that gave rise.  Adam Johnson and colleagues at Herbert Smith alerted me to the case and their review is excellent. Henshaw J held the former issue (service) very practically: DHL evidence of documents having been delivered to the relevant ministry suffices, even if acceptance of the documents is refused.

Assessment of submission was relevant for there is no Treaty between the US and the UK on recognition and enforcement – hence common law applies. In the absence of any Convention or other instrument for mutual recognition of judgments, a foreign judgment in personam can be recognised only if it was delivered by a court which had jurisdiction according to English private international law.  That means that the defendant must either have (i) been present in the foreign jurisdiction when proceedings were commenced, (ii) claimed or counterclaimed in those proceedings, (iii) previously agreed to submit to the jurisdiction, or (iv) voluntarily have submitted himself to the overseas court’s jurisdiction (see Rubin and another v Eurofinance SA [2013] 1 AC 236 § 7).

In the present case (i)-(iii) do not apply, so Claimants must show that the Defendants submitted to the US court’s jurisdiction. Which Henshaw J held they had. Of particular note for this blog is that he (at 59) rejects much authority for CJEU precedent, particularly C-150/80 Elefanten Schuh, held under the Brussels Convention. Even if Elefanten Schuh were to apply, Henshaw J does not believe it would have led to a different outcome. At 66 follows an extensive list of arguments leading to a conclusion of submission, with particular emphasis on Notices of Appeal, each of which included a merit-based objection to the judgment appealed from but contained no assertion that the US courts lacked jurisdiction by reason of, or that the claims were barred by, sovereign immunity.  The simple fact is that Syria at no stage made any such challenge, save very late in the process.

The judgment therefore is interesting firstly for its discussion of CJEU weight in residual conflict of laws; secondly for the Court’s view on submission and sovereign immunity – in my view very much the right one.

Geert.

 

The Department of Legal Studies of the Central European University (CEU) in Budapest and Jeantet & Partners (Paris) are organising a conference on: “The New Hungarian Arbitration Act – Views from Hungary and Abroad” on 17 May, 2018, 12:30pm – 6:30pm. The conference will be followed by a cocktail reception. This event will bring together arbitration experts from ten jurisdictions and seeks to provide a forum for discussion of the recently enacted new Hungarian Arbitration Act. It aims to inform participants of the most significant legislative changes and their practical implications. Particular emphasis will be put on a comparison of the new Hungarian Act with the arbitration laws of other jurisdictions. The organizing committee consists of Markus Petsche, Associate Professor, Department of Legal Studies, CEU; Ioana Knoll-Tudor, Partner, Jeantet & Partners, Paris; Davor Babic, Professor, Faculty of Law, University of Zagreb; and Csongor István Nagy, Professor, Faculty of Law, University of Szeged. For more detailed information regarding the conference program and registration, please click here.

Instruction

Elections professionnelles - Liste

In [2018] EWHC 887 (Comm) Bankas Snoras v Antonov et al, Eggers DJ considers the extent of the typical undertaking by party having obtained a worldwide freezing order, to seek permission from the English court before enforcing the order outside England and Wales or seeking an order “of a similar nature”. The need for permission underlines the appreciation of the English courts that worldwide freezing orders require some careful handling viz third States.

I am happy to refer to RPC‘s analysis for the general issues. I just wanted to turn the attention of readers of this blog to para 65 of the judgment, which considers lis alibi pendens. The claims in England (based on Article 4 Brussels I Recast – domicile of the defendants) are not the only ones that have been introduced: Lithuanian courts are engaged, too. ‘The English Civil Claim is for the in personam remedy of compensation against Mr Antonov and Mr Baranauskas arising out of an alleged breach of their duties as directors, officers or shareholders of Snoras. By contrast, the Lithuanian Civil Claim is not based on alleged breaches of directors’ duties. Instead, there are two bases of claim in the Lithuanian Civil Claim, namely (1) a claim for in personam relief under the law of unjust enrichment because there was no commercial justification for the various transactions, seeking the reversal of that unjust enrichment; and (2) a claim for a declaration that the various transfer instructions were null and void and that Snoras remains the beneficial owner of the relevant assets; this is said to be a claim for an in rem (or proprietorial) remedy.’ (at 25)

There is partial overlap, nevertheless; it is also clear that the different formulation of the Lithuanian claims is to make them lis alibi pendens-proof. Nevertheless, Eggers DJ holds that the fact remains that there are differences in the formulation of the causes of action underlying the two sets of proceedings and, in addition, the Lithuanian Civil Claim seeks proprietary relief, as well as in personam relief. Article 29 Brussels I Recast is not mentioned but it is this article and analysis of same which is engaged.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Heading 2.2.14.

Esso Raffinage / ECHA
SANT
Dans le cadre de l’appréciation de la conformité des dossiers d’enregistrement d’une substance chimique au regard du règlement REACH, l’Agence européenne des produits chimiques doit s’en tenir aux procédures prévues par le règlement

K.A. e.a.
Justice et Affaires intérieures
Les demandes de regroupement familial doivent être prises en compte même si le ressortissant d’un pays non-UE, membre de la famille d’un citoyen de l’UE n’ayant jamais exercé sa liberté de circulation, est frappé par une interdiction d’entrée sur le territoire

Čepelnik
Liberté d'établissement
L’avocat général Wahl propose à la Cour de juger qu’une législation nationale imposant au destinataire d’un service de constituer une caution afin de garantir une amende qui pourrait être infligée au prestataire du service établi dans un autre État membre pour violation de la réglementation nationale du travail est contraire au droit de l’Union

In BDO Cayman v Argyle Funds, reported  by Harneys, the Grand Court of the Cayman Islands followed English and Australian authority in having an anti-suit injunction followed by a cost order against the party that had infringed choice of court. Costs including not just the domestic proceedings (that would be obvious) but also the foreign proceedings (here: in the US).

It is this type of measure which makes jurisdictions stand out and be noticed in civil procedure regulatory competition – not, as I flagged earlier, half-baked attempts to add some gloss via international business courts.

Geert.

 

Pourvoi c/ Cour d'appel de Versailles - 9e chambre, 20 septembre 2017

Pourvoi c/ Cour d'assises de la Côte-d'Or, 24 novembre 2017

I have flagged once or twice that the blog is a touch behind on reporting – I hope to be on top soon.

I blogged a little while ago that the Brussels Court of Appeal had sided with Facebook in their appeal against the Court of first instance’s finding of Belgian jurisdiction. I had earlier argued that the latter was wrong. These earlier skirmishes were in interim proceedings. Then, in February, the Court of First instance, unsurprisingly, reinstated its earlier finding, this time with a bit more substantial flesh to the bone.

First, a bit of Belgian surrealism. In an interlocutory ruling the court had requested FB to produce full copy of the Court of Appeal’s judgment upon which it relied for some of its arguments. Perhaps given the appalling state of reporting of Belgian case-law, this finding should not surprise. Yet it remains an absurd notion that parties should produce copies at all of Belgian judgments, not in the least copies of a Court of Appeal which is literally one floor up from the Court of first instance.

Now to the judgment. The court first of all confirms that the case does not relate to private international law for the privacy commission acts iure imperii (I summarise). Then follows a very lengthy and exhaustive analysis of Belgium’s jurisdiction on the basis of public international law. Particularly given the excellent input of a number of my public international law colleagues, this part of the judgment is academically interesting nay exciting – but also entirely superfluous. For any Belgian jurisdiction grounded in public international law surely is now exhausted regulated by European law, Directive 95/46 in particular.

In finally reviewing the application of that Directive, and inevitably of course with reference to Weltimmo etc. the Court essentially assesses whether Facebook Belgium (the jurisdictional anchor) carries out activities beyond mere representation vis-a-vis the EU institutions, and finds that it does carry out commercial activities directed at Belgian users. That of course is a factual finding which requires au faitness which the employees’ activities.

Judgment is being appealed by Facebook – rightly so I believe. Of note is also that once the GDPR applies, exclusive Irish jurisdiction is clear.

Geert.