Agrégateur de flux

Symeon Symeonides has posted on SSRN his 31st annual survey of American choice-of-law cases. The survey covers appellate cases decided by American state and federal courts during 2017. It can be found here https://ssrn.com/abstract=3093709  The table of contents is reproduced below.

Symeonides has also posted his annual Private International Law Bibliography for 2017. It can be found here https://ssrn.com/abstract=3094215.

 

31st Choice-of-Law Survey Table of Contents

 

Introduction

Part I. Jurisdiction

1. The Supreme Court Speaks (Again)
2. Foreign Sovereign Immunity
3. The Terrorism Exception
4. The Noncommercial Tort Exception
5. The Expropriation Exception
6. Jurisdiction Over Non-Recognized States
7. The Fukushima Nuclear Accident
8. The Political Question Doctrine

Part II. Extraterritoriality (or Non) of Federal Law

1. Fifth Amendment
2. Alien Tort Statute and Human Trafficking
3. Civil Rico and Domestic Injuries

Part III. Choice of Law

1. Torts
2. Georgia’s Peculiar Lex Loci Rule
3. Intrafamily Immunities and Families in Transit
4. Vicarious Liability
5. Distribution of Wrongful Death Proceeds
6. Hospital Liens
7. Medical Malpractice and State Immunity
8. Federal Tort Claims Act and United States Immunity
9. Defamation
10. Extraterritoriality (or Non) of State Statutes
11. Cross-Border Telephone Calls
12. State Civil RICO
13. Other Statutes
14. Air Travel, a “Needlestick,” and the Montreal Convention
15. Products Liability
16. Introduction
17. Cases Applying the Pro-Defendant Law of a Plaintiff-Affiliated State
18. Other Cases Applying a Pro-Defendant Law
19. Cases Applying a Pro-Plaintiff Law
20. Contracts
21. Choice-of-Law Clauses and Jury Waivers
22. Choice-of-Law Clauses and Trusts
23. Choice-of-Law Clauses and Old-Style Ordre Public
24. Separability(?) of Choice-of-Law Clauses
25. Scope of the Choice-of-Law Clause
26. Choice-of-Law and Forum-Selection Clauses
27. Choice-of-Law Clauses and Arbitration Clauses
28. Insurance Contracts
29. Choice-of-Law Methodology
30. Vacillation in Wyoming
31. The Methodological Table
32. Statutes of Limitation
33. New Jersey’s New Switch
34. Summary of State Practices
35. Choice-of-Law Clauses and Statutes of Limitations
36. Recovering Nazi-Looted Artwork
37. Marriage and Divorce
38. Marital Property

Part IV. Foreign Judgments and Awards

1. Sister-State Judgments
2. Land in another State
3. Due Process
4. Statutes of Limitations
5. Foreign-Country Judgments
6. Paternity and Public Policy
7. Child Custody and Human Rights
8. Child Support
9. Procedural Due Process
10. Service of Process
11. Jurisdiction in the State of Origin
12. Judgment “Contrary” to Arbitration Agreement
13. Statute of Limitations
14. Foreign Arbitration Awards

Entreprises en difficulté (loi du 26 juillet 2005)

Thank you Bob Wessels for again alerting us (with follow-up here and also reporting by Lukas Schmidt here) timely to a decision this time by the German courts in Niki, applying the Insolvency Regulation 2015, on the determination of COMI – Centre of Main Interests. Bob’s review is excellent per usual hence I am happy to refer for complete background.

Of particular note is the discussion on the extent of a court’s duty to review jurisdiction ex officio; the court’s correct assumption that in the event of foggy circumstances, the EIR’s presumption of COMI at the place of incorporation must have priority; and finally in my view the insufficient weight the court places on ascertainability by third parties.

Geert.

(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.

Western Sahara Campaign
Relations extérieures
Selon l’avocat général Wathelet, l’accord de pêche conclu entre l’UE et le Maroc est invalide du fait qu’il s’applique au Sahara occidental et aux eaux y adjacentes

Interestingly enough the issue of inclusion of foreign victims in class action suits came up in conversation around our dining room the other day. (Our youngest daughter, 15, is showing encouraging signs of an interest in a legal career). In 2017 ONCA 792 Airia Brands Inc v Air Canada is reviewed excellently by Dentons here and I am happy to refer.  (See also here for Norton Rose reporting on related cases – prior to the CA’s decision in Airia Brands).

The jurisdiction and ‘real and substantial connection’ analysis referred to Van Breda (which recently also featured mutatis mutandis in the forum necessitatis analysis in  Cook).

Certification of global classes was part of the classic analysis of developments in international class action suits, which hit us a few years back when many EU states started introducing it. Airia Brands shows that the concerns are far from settled.

Geert.

 

Le défaut de délivrance d’un permis de communiquer à chacun des avocats désignés par la personne mise en examen avant le débat contradictoire relatif à l’éventuelle prolongation de la détention provisoire fait nécessairement grief au mis en examen. 

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La Cour européenne des droits de l’homme (CEDH) juge que les condamnations successives, correctionnelle et criminelle, de l’un des auteurs des attentats de Paris commis en 1995 sont conformes à la Convention au regard des articles 6, § 1 (droit à un procès équitable) et 4 (droit à ne pas être jugé ou puni deux fois), du protocole n° 7.

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Par cet arrêt, la Cour de cassation est amenée à se prononcer sur l’exercice des droits de la défense dans le cadre de la poursuite pénale d’infractions fiscales au regard des garanties de l’article 6 de la Convention européenne des droits de l’homme.

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La condamnation pénale de deux journaliste danois, pour la diffusion d’un documentaire mettant injustement en cause les pratiques thérapeutiques d’un hôpital danois et d’un cancérologue, reposant sur des motifs pertinents et suffisants, n’enfreint pas la Convention.  

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by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.

The Regional Court of Berlin has, on the basis of the immediate appeal against the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts. In its decision, the regional court has dealt with the definition of international jurisdiction, which is based on the debtor’s centre of main interests (‘COMI’). According to the provisions of the European Insolvency Regulation, that is the place where the debtor usually conducts the administration of its interests and that is ascertainable by third parties.

The court has founded its decisions on the following arguments:
Since the debtor is based in Austria, it is assumed that the centre of their interests is also there (see Art. 3 II EIR recast). If this presumption is to be rebutted, high demands must be made to ensure legal certainty. According to the case-law of the European Court of Justice, objective and, for a third party, recognizable circumstances that would prove that the place of the head office is not located at the registered office are necessary.
The various factors should be considered in their entirety. In the present case, it can not be established with sufficient certainty on the basis of the arguments put forward by the debtor, on the one hand, and the complainant on the other hand, that the COMI is indeed located in Germany. Rather, no uniform picture is recognizable that could justify refuting the presumption.
The place from which the essential business activities of the debtor are controlled, namely Berlin, is not a solely decisive criterion. The fact that Air Berlin had been practically NIKI’s only customer, and thus the sales were particularly generated in Germany, was not automatically decisive, as well.
Then again, the fact that the debtor maintains offices in Vienna, in which amongst other things NIKI’s financial accounting is conducted, argues for a COMI in Austria. Likewise, the competent supervisory authority is located in Vienna and the debtor has an Austrian operating license and the airworthiness of the aircraft is monitored from there. In addition, approximately 80% of the employment contracts concluded by the debtor are subject to Austrian employment law.
Finally, the debtor’s own behaviour also indicates that it assumes its COMI in Austria. It had not informed the creditors and the public that it had relocated its COMI to Germany. Furthermore, in an insolvency proceeding opened at the request of a creditor before the Korneuburg Regional Court (file reference 35 Se 323 / 17k) in Austria, the debtor did not raise the objection that there was no international competence in Austria.

This should be the first case of application of the ‘new’ Art. 4 I EIR recast, that regulates the examination of international jurisdiction. It is very likely not the last, as the case shows that the COMI-concept is still controversial. It waits to be seen if the case will even be referred to the German Federal Court of Justice (the Regional Court has admitted the appeal to the German Federal Court of Justice, that may be lodged within a period of one month).

The press release of the Regional Court of Berlin can be found here.

I reviewed the AG’s Opinion in Case C-372/16 here. The Court held late December. Like the AG, it held that  Rome III does not cover divorces which are declared without a constitutive decision of a court or other public authority: it squarely uses the Regulation itself to come tho this view, without any assessment of whether the foreign State’s courts in private sharia divorces, has any impact on that conclusion.

With the first question answered in the negative, the other, very interesting issues covered by AG, became without subject. A judgment not with a bang, but with a whimper.

Geert.