Agrégateur de flux

Written by Tobias Lutzi, DPhil Candidate and Stipendiary Lecturer at the University of Oxford

Last weekend, more than a hundred scholars of private international law followed the invitation of Jürgen Basedow, Jan von Hein, Eva-Maria Kieninger, and Giesela Rühl to discuss the ‘Europeanness’ of European private international law. Despite the adverse weather conditions, only a small number of participants from the UK – whose presence was missed all the more dearly – were unable to make it to Berlin. Thus, the Goethe-Saal of the Max Planck Society’s Harnack House was packed, and so was the conference programme, which spanned over two full days.

It was kicked off by Andreas Stein (European Commission) and Johannes Christian Wichard (German Ministry of Justice), who underlined both the accomplishments of and the challenges for European private international law in their respective welcome addresses. The programme then proceeded from a closer look at the sources of European private international law (and their relationship with other international instruments and the domestic laws of the member states) to an analysis of its application in the courts of the member states (including the ascertainment of foreign law) to a discussion of the ‘Europeanness’ of academic discourse and legal education within the EU and outside of it (with a focus on the political dimension of EU private international law).

All presentations provided ample food for thought, as was evidenced by the lively discussions that followed each panel. They highlighted a number of interesting tendencies, such as the remaining ‘piecemeal character’ of the field, the ambiguities caused by an ever-increasing number of recitals in European instruments, the regrettable absence of private international law from the legal curriculum in many EU member states, and a certain convergence of academic styles, not least through the growing adoption of German-style commentaries and the emergence of English as the undisputed lingua franca of the field. One of the more contentious issues discussed was the possible creation of a general instrument of private international law (think: Rome 0 Regulation), or even a complete codification, with numerous participants pointing towards its potential for more coherence, clarity, and ‘teachability’ of European private international law – while others urged more caution.

The most prominent theme of the two days, though, seemed to be the observation that the emergence of a distinctly European scholarship of private international law should be both welcomed and fostered. The idea of creating an association that could provide an institutional framework for further dialogue between European scholars, practitioners, and other stakeholders in private international law was mentioned more than once – and received almost unanimous support during the round table discussion that concluded the conference. It was fitting, then, that the conference included the official launch of the Encyclopedia of Private International Law, many authors of which were present in Berlin. This truly Herculean project, just as the conference itself, is testimony to how fruitful such dialogue can be.

(This Call for paper is provided for by Jeanne Huang)

The issue of cross border protection of intellectual property (IP) was very important and explained the use of bilateral and multilateral treaties such as the Berne Convention and the Paris Convention. One of the fundamental principles underlying these treaties was territoriality and the national treatment principle. However, the advent of the 21st century brought
digitisation and globalisation, which have significantly impacted upon the territoriality protection. Finding the best way to protect IP within the context of globalisation and digitisation was the most fundamental question that the workshop sought to answer. We invite colleagues working on private international law and IP to submit expressions of interest to present at the workshop, which will be held at the Faculty of Law, University of New South Wales on Saturday, 18 August 2018, from 9:30 am -5:00 pm. The workshop is
designed to allow researchers working in the field of private international law and IP to deliver work-in-progress papers to their peers. We particularly welcome submissions to discuss and debate the draft International Law Association Guidelines of Intellectual Property and Private International Law, available at http://www.ip.mpg.de/fileadmin/IP/pdf3/ILA_Guidelines-6Oct2015.pdf.

We are keen to receive proposals that focus on private-international-law issues in cross-border IP disputes, such as:
• Jurisdiction,
• Applicable Law,
• Recognition and Enforcement of Judgments,
• Arbitration or
• Private international law issues in smart contracts, blockchain transactions and other digitalized transactions.

For paper proposals, speakers are to submit a title and 150-200 word abstract, along with a one-page CV for potential inclusion in the workshop. Please send your proposal to Jeanne.Huang@unsw.edu.au by 15 April 2018.

Un pilote de ligne accomplit habituellement son travail en France, dès lors que sa base d’affectation est un aéroport situé en France où il reçoit ses instructions et qu’un quart de ses vols est effectué à partir ou à destination de la France.

en lire plus

La Cour de justice de l’Union européenne a rejeté le recours de la SNCF contre l’arrêt l’ayant condamné à rembourser plus de 642 M€ (hors intérêts) dans une affaire d’aide d’Etat qui dure depuis plus de quinze ans.

en lire plus

A quick flag to those of you following consumer protection and the Directive (2002/58) on privacy and electronic communications. In Case C-673/17 Planet49 the Court of Justice is being asked to clarify to what extent a website which pre-ticks boxes in general terms and conditions (here: to share relevant personal data) is compatible with relevant EU laws.

File of the case here (in Dutch only).

Geert.

 

Bail d'habitation

Non lieu à renvoi

Non lieu à renvoi

Bail (règles générales)

Outre-Mer

Bail d'habitation

Bail commercial - Procédure civile

By Georgia Antonopoulou, Erlis Themeli, and Xandra Kramer, Erasmus University Rotterdam

(PhD candidate, postdoc researcher and PI ERC project Building EU Civil Justice)

Following up on our previous post, asking which international commercial court would be established next, the adoption of the proposal for the Netherlands Commercial Court by the House of Representatives (Tweede Kamer) today answers the question. It will still have to pass the Senate (Eerste Kamer), but it is expected this is only a matter of time. Depending upon this the Netherlands Commercial Court (NCC) is expected to open its doors on the 1 July 2018 or shortly after.

The NCC is a specialized court established to meet the growing need for efficient dispute resolution in cross-border civil and commercial cases. This court is a special chamber of the Amsterdam District Court and of the Amsterdam Court of Appeal. Key features are that proceedings will take place in the English language, and before a panel of judges selected for their wide expertise in international commercial litigation and their English language skills.

To accommodate the demand for efficient court proceedings in these cases a special set of rules of procedure have been developed. The concept Rules of Procedure NCC can be consulted here in English and in Dutch. It goes without saying that the court is equipped with the necessary court technology.

The Netherlands prides itself on having one of the most efficient court systems in the world, as is also indicated in the Rule of Law Index – in the 2017-2018 Report it was ranked first in Civil Justice, and 5th in overall performance. The establishment of the NCC should also be understood from this perspective. According to the website of the Dutch judiciary, the NCC distinguishes itself by its pragmatic approach and active case management, allowing it to handle complex cases within short timeframes, and on the basis of fixed fees.

To be continued…

Cinkciarz.pl / EUIPO (€$)
Propriété intellectuelle et industrielle MARQ
Le Tribunal de l’UE annule le refus d’enregistrer, en tant que marque de l’Union, une marque figurative incluant les symboles de devises « € » et « $ »

Anna Bizer, doctoral student at the University of Freiburg, and I have just published an article on “Social Media and the Protection of Privacy: Current Gaps and Future Directions in European Private International Law” in the International Journal of Data Science and Analytics. The article considers the current situation in European private international law regarding the protection of privacy and personality rights in social media. When privacy infringements occur on the internet, difficult questions as to determining jurisdiction and the applicable law arise. This field is so far only partially governed by European Union law and still leaves a gap that must be filled by the domestic choice-of-law rules of the member states. The article addresses these problems taking into account the recent case law of the Court of Justice of the European Union. The full text is available here.

By Prof. Burkhard Hess, Max Planck Institute Luxembourg.

An interesting perspective concerning the Achmea judgment of the ECJ[1] relates to the way how the Court addresses investment arbitration from the perspective of European Union law. This paper takes up the judgment from this perspective. There is no doubt that Achmea will disappoint many in the arbitration world who might read it paragraph by paragraph while looking for a comprehensive line of arguments. Obviously, some paragraphs of the judgment are short (maybe because they were shortened during the deliberations) and it is much more the outcome than the line of arguments that counts. However, as many judgments of the ECJ, it is important to read the decision in context. In this respect, there are several issues to be highlighted here:

First, the judgment clearly does not correspond to the arguments of the German Federal Court (BGH) which referred the case to Luxembourg. Obviously, the BGH expected that the ECJ would state that intra EU-investment arbitration was compatible with Union law. The BGH’s reference to the ECJ argued in favor of the compatibility of intra EU BIT with Union law.[2] In this respect, the Achmea judgment is unusual, as the ECJ normally takes up positively at least some parts of the questions referred to it and the arguments supporting them. In contrast, the conclusion of AG Wathelet were much closer to the questions asked in the preliminary reference.

Second, the Court did not follow the conclusions of Advocate General Wathelet.[3] As the AG had pushed his arguments very much unilaterally in a (pro-arbitration) direction, he obviously provoked a firm resistance on the side of the Court. In the Achmea judgment, there is no single reference to the conclusions of the AG[4] – this is unusual and telling, too.

Third, the basic line of arguments developed by the ECJ is mainly found in paras 31 – 37 of the judgment. Here, the Court sets the tone at a foundational level: the Grand Chamber refers to basic constitutional principles of the Union (primacy of Union law, effective implementation of EU law by the courts of the Member States, mutual trust and shared values). In this respect, it is telling that each paragraph quotes Opinion 2/13[5] which is one of the most important (and politically strongest) decisions of the Court on the autonomy of the EU legal order and the role of the Court itself being the last and sole instance for the interpretation of EU law.[6] Achmea is primarily about the primacy of Union law in international dispute settlement and only in the second place about investment arbitration. Mox Plant[7] has been reinforced and a red line (regarding concurrent dispute settlement mechanisms) has been drawn.

Although I don’t repeat here the line of arguments developed by the Grand Chamber, I would like to invite every reader to compare the judgment with the Conclusions of AG Wathelet. In order to understand a judgment of the ECJ, one has to compare it with the Conclusions of the AG – also in cases where the Court does (exceptionally) not follow the AG. In his Conclusions, AG Wathelet had tried to integrate investment arbitration into Union law and (at the same time) to preserve the supremacy of investment arbitration over EU law even in cases where only intra EU relationships were at stake. Or – to put it the other way around: For the ECJ, the option of investors to become quasi-international law subjects and to deviate of mandatory EU law by resorting to investment arbitration could not be a valuable option – especially as their home states (being EU Member States) are not permitted to escape from mandatory Union law by resorting to public international law and affiliated dispute resolution mechanisms. Therefore, from a perspective of EU law the judgment does not come as a surprise.

Finally, this judgment is not only about investment arbitration, its ambition goes obviously further: If one looks at para 57 the perspective obviously includes future dispute settlement regimes under public international law and their relationship to the adjudicative function of the Court. One has to be aware that Brexit and the future dispute resolution regime regarding the Withdrawal Treaty is in the mindset of the Court. In this respect the wording of paragraph 57 seems to me to be telling. It states:

“It is true that, according to settled case-law of the Court, an international agreement providing for the establishment of a court responsible for the interpretation of its provisions and whose decisions are binding on the institutions, including the Court of Justice, is not in principle incompatible with EU law. The competence of the EU in the field of international relations and its capacity to conclude international agreements necessarily entail the power to submit to the decisions of a court which is created or designated by such agreements as regards the interpretation and application of their provisions, provided that the autonomy of the EU and its legal order is respected[8].”

Against this background of European Union law, the Achmea judgment appears less surprising than the first reactions of the “arbitration world” might have implied. Furthermore, the (contradictory[9]) statement in paras 54 and 55 should be read as a sign that the far reaching consequences with regard to investment arbitration do not apply to commercial arbitration (Eco Swiss[10] and Mostaza Claro[11] are explicitely maintained).[12] Finally, it is time to start a discussion about the procedural and the substantive position of individuals in investment arbitration in the framework of Union law. As a matter of principle, EU investors should not expect to get a better legal position as their respective home State would get in the context of EU law. Investment arbitration does not change their status within the Union. In this respect, Achmea is simply clarifying a truism. And, as a side effect, the disturbing Micula story should now come to an end, too.[13]

Footnotes

[1] ECJ, 3/6/2018, case C-284/16, Slovak Republic v. Achmea BV, EU:C:2018:158.

[2] BGH, 3/3/2016, ECLI:DE:BGH:2016:030316BIZB2.15.0

[3] Conclusions of 9/19/2017, EU:C:2017:699. The same outcome had occured in case C-536/13, Gazprom, EU:C:2015:316, which was also related to investment arbitration.

[4] The Court only addresses the issue whether the hearing should be reopened because some Member States had officially expressed their discomfort with the AG’s Conclusions, ECJ, 3/6/2018, case C-284/16, Amchea, EU:C:2018:158, paras 24-30.

[5] ECJ, 12/18/2014, Opinion 2/13 (Accession of the EU to the ECHR), EU:C:2014:2454.

[6] For the political connotations of Opinion 2/13, cf. Halberstam, “‘It’s the Autonomy, Stupid!’ A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and a Way Forward.” German L.J. 16, no. 1 (2015): 105 ff.

[7] ECJ, 5/30/2015, case C-459/03 Commission v Ireland, EU:C:2006:345.

[8] Highlighted by B.Hess.

[9] Both, commercial and investment arbitration are primarily based on the consent of the litigants, see Hess, The Private Public Divide in International Dispute Settlement, RdC 388 (2018), para 121 – in print

[10] ECJ, 6/1/1999, case C?126/97, Eco Swiss, EU:C:1999:269.

[11] ECJ, 10/26/2006, case C?168/05, Mostaza Claro, EU:C:2006:675.

[12] It is interesting to note that the concerns of the ECJ (paras 50 ss) regarding the intervention of investment arbitration by courts of EU Member States did not apply to the case at hand as German arbitration law permits a review of the award (section 1059 ZPO). The concerns expressed relate to investment arbitration which operates outside of the NYC without any review of the award by state court, especially in the context of articles 54 and 55 ICSID Convention.

[13] According to the ECJ’s decision in Achmea, the arbitration agreement in the Micula case must be considered as void under EU law. However, Micula was given by an ICSID arbitral tribunal and, therefore, there is no recognition procedure open up a review by state courts of the arbitral award, see articles 54 and 55 ICSID Convention.

Thank you Michael Wise for alerting me to [2017] NSWSC 1759 Live Group v Rabbi Ulman in which Sackar J at the NSW Supreme Court displays both sensitivity and adroitness in addressing the relationship between a Beth Din (a Jewish court) and the courts in ordinary.

The case I imagine will be of interest for those studying church and state relations. It would seem to conclude that a Beth Din (or equivalents in other faiths) threat to impose religious sanctions on an unwilling party, will be considered contempt of the courts in ordinary and thus a no-go zone. However that as such the State courts should not hesitate to support arbitration through religious courts by compelling those who agreed to it in commercial relations, to submit to it. (Sackar J does highlight features of the particular case as not meeting natural justice requirements).

Geert.

 

 

 

 

SNCF Mobilités / Commission
Aide d'État
La France doit récupérer un montant de plus de 642 millions d’euros (hors intérêts) dans le cadre d’une aide d’État accordée à la société Sernam

flightright
Espace de liberté, sécurité et justice
La compagnie aérienne qui n’a réalisé dans un État membre que le premier segment d’un vol avec correspondance peut être attraite devant les juridictions de la destination finale située dans un autre État membre en vue d’une indemnisation pour cause de retard

Thank you Stephen Pittel for flagging 2017 SCC 33 Douez v Facebook Inc.  Stephen also discusses the forum non conveniens issue and I shall leave that side of the debate over to him. What is interesting for comparative purposes is the Supreme Court’s analysis of the choice of court clause in consumer contracts, which it refuses to enforce under public policy reasons, tied to two particular angles:

• ‘The burdens of forum selection clauses on consumers and their ability to access the court system range from added costs, logistical impediments and delays, to deterrent psychological effects. When online consumer contracts of adhesion contain terms that unduly impede the ability of consumers to vindicate their rights in domestic courts, particularly their quasi-constitutional or constitutional rights, public policy concerns outweigh those favouring enforceability of a forum selection clause.’ (emphasis added)

Infringement of privacy is considered such quasi-constitutional right.

• ‘Tied to the public policy concerns is the “grossly uneven bargaining power” of the parties. Facebook is a multi-national corporation which operates in dozens of countries. D is a private citizen who had no input into the terms of the contract and, in reality, no meaningful choice as to whether to accept them given Facebook’s undisputed indispensability to online conversations.’

With both angles having to apply cumulatively, consumers are effectively invited to dress up their suits as involving a quasi-constitutional issue, even if all they really want is their PSP to be exchanged, so to speak. I suspect however Canadian courts will have means of sorting the pretended privacy suits from the real ones.

A great judgment for the comparative binder (see also Jutta Gangsted and mine paper on forum laboris in the EU and the US here).

Geert. (Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.2.