Agrégateur de flux

Le contentieux autour des règles d’épandage des pesticides vient-il de vivre ses derniers rebondissements ? 

Sur la boutique Dalloz Code de l’environnement 2023, annoté & commenté Voir la boutique Dalloz

en lire plus

The American Branch of the International Law Association (ABILA) invites applications for the recently-created position of Chief Operating Officer (COO).

This is a part-time remote position that requires about 60-75 hours per month (more in October for International Law Weekend) and offers a lot of flexibility and exciting experience at a 101-year old U.S.-based international law NGO, famous for organizing the annual International Law Weekend conference in New York. The compensation is in the range of $32 per hour (approximately $25k per year). If interested, please submit a cover letter, CV, and list of three references using the upload link on our website. We will begin reviewing applications immediately and conducting Zoom interviews on a rolling basis. To learn more and apply, visit our website here: https://www.ila-americanbranch.org/call-for-applicants-abila-chief-operating-officer/ Find our Twitter announcement here: https://twitter.com/ABILA_official/status/1729616334491926906?s=20 Find our LinkedIn announcement here: https://www.linkedin.com/feed/update/urn:li:activity:7135382017805885440/ Find our Facebook announcement here: https://www.facebook.com/permalink.php?story_fbid=pfbid02NqZNxEh8fyuJPFYkmv7DHi5x8GnUJQq7x9HxPcXrt9fPE5Gnr9HMwm17XMtsZFeZl&id=100089266272856

Call for Papers for the European Central Bank Legal Research Programme (LRP) scholarship 2024, which can be found on the ECB website via this link: https://www.ecb.europa.eu/pub/economic-research/programmes/legal_research/html/index.en.html.

The LRP is an interesting opportunity for researchers as it fosters analysis of areas of law relevant to the ECB’s statutory tasks and establishes closer contacts of the ECB with academia by granting a scholarship to established or early-career researchers, who will publish a paper supported by colleagues of the ECB legal services.

The Call for Papers is open until 18 February 2024.

The seven research topics contained in the Call for Papers are:

1. Climate-related risk: scenario planning for banks and supervisors
2. The ECB and climate transition plans
3. Extraterritorial scope and effect of ECB law
4. Banking supervision meets public international law – Cross-border on-site inspections
5. Taxes on banks’ windfall profits as anti-inflationary measure
6. ECB Banking Supervision powers & AI Act implementation
7. The ECB’s role as a fiscal agent and potential impacts on institutional balance

The third issue of the Revue critique de droit international privé of 2023 will be released shortly. It contains a thematic dossier of five articles, as well as several case notes.

The doctrinal part of the volume is entirely devoted to the reflections arising from the symposium held at Université de Tours on January 6, 2023 about notarial practice in international in family property law in the Ukrainian context. Under the direction of Dr. Fabienne Labelle (Université de Tours), it explores the role of the notarial profession in the development of private international law during the Ukrainian crisis

This issue offers very valuable insights for all those who, in France or elsewhere, will encounter the broad consequences of the Ukrainian war in their practice of private international law. It also gives a compelling account of the role of the discipline in the ordinary management of a state of exception and its effort to bring together cultures with sometimes very different values; as well as an overview of the potential transformations generated by the war.

Following a short introduction by Dr. Labelle, the dossier articulates five equally interesting topics.

The first article authored by Dr. Pierre Boisseau (Université de Tours) is entitled Du droit d’asile classique à l’accueil des déplacés ukrainiens : réflexion sur la complémentarité des dispositifs de protection des réfugiés (From traditional asylum to the reception of Ukrainian displaced persons: reflections on the complementarity of refugee protection schemes). Its abstract reads as follows:

In Europe in general, and in France in particular, the reception of refugees is based on three complementary systems. In addition to the traditional right of asylum and subsidiary protection, there is now temporary protection. In very simplified terms, political asylum concerns those fighting for freedom; subsidiary protection protects people who have been victims of abuse by non- state groups; and temporary protection, which stems from the geopolitical context in Europe, is currently used to receive and protect Ukrainians fleeing the fighting. Many have benefited from this, although part of them have now returned to Ukraine. But this surge of generosity towards Europeans does not seem to inspire the draft Pact on Asylum and Immigration of Thursday 8 June 2023 concerning refugees from other continents.

The second study on Les pouvoirs des époux sur leurs biens : quelles problématiques pour les déplacés d’Ukraine ? Regards issus d’une comparaison franco-ukrainienne (Spouses’ powers over their property: what are the issues for displaced persons in Ukraine? Insights from a Franco-Ukrainian comparison) is presented by Dr. Ambra Marignani (Université de Tours) and Prof. Svitlana Yaroslavovna Fursa (Director of the Center for Legal Research in Kyiv). The abstract reads as follows:

Displaced spouses from Ukraine may not imagine that, in some cases, French law is applicable to their rights to own, manage, enjoy and dispose of property. Notaries will be in the front line in containing this risk by informing and advising them. This work will be essential, particularly with regard to the rights that differ in content between French and Ukrainian law, as highlighted by the comparison of laws.

The next paper by Dr. Audrey Damiens (Université de Tours) and Prof. Fursa is devoted to La pratique notariale et les divorces en droit international privé : réflexion entre la France et l’Ukraine en temps de guerre (Notarial practice and divorces in private international law: reflections between France and Ukraine in wartime). The abstract reads as follows:

The situation in Ukraine has led to population movements, particularly towards France. Married couples or one of their members now find themselves in a situation that comes under private international law. In their practice, French notaries are and will be faced with an increasing number of international situations relating to Ukraine, including divorce. This article looks at the practical difficulties that French notaries may encounter in divorce cases in Ukraine, and suggests some possible solutions. On the one hand, it looks at divorces in Ukraine that would come before a French notary. On the other, it considers divorce by mutual consent in France in an international situation linked to Ukraine.

The fourth article on Dévolution successorale et réserve héréditaire : comparaison entre la France et l’Ukraine (Heirship and reserved share : comparison between France and Ukraine) is co-authored by Prof. Alina Goncharova (State University of Soumy and Université de Tours) and Dr. Labelle. They gave the following abstract:

The purpose of this study is to compare French and Ukrainian inheritance law. This study is particularly interesting in the event that Ukrainian law is applicable to the succession submitted to the French notary, as it provides some useful benchmarks in Ukrainian law. By studying the hypotheses of shares reserved for certain heirs, it also highlights significant differences in the internal public policy of each country. These differences could give rise to practical difficulties and discussions in both doctrine and case law.

Last but not least, Prof. Goncharova and Dr. Labelle submitted the final study on Le testament, outil de planification de la succession internationale. Le cas des Ukrainiens protégés temporairement en France (The will as an instrument for international succession planning. The case of Ukrainians under temporary protection in France). Its abstract reads as follows:

Estate planning by means of a will for displaced Ukrainians poses difficulties both from the point of view of the formal and substantial validity of the deed and from the point of view of the strategies to be put in place. Extra-patrimonial and patrimonial provisions are tested by the unpredictability of Ukrainian law and certain French civil and tax rules.

The full table of contents will be available shortly.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

The virtual book launch of The Elgar Companion to UNCITRAL will take place on 14 December 2023 at 1:00 pm (CET) as a video conference via Zoom under the aegis of the Max Planck Institute for Comparative and Private International Law.

Co-edited by Rishi Gulati (University of East Anglia and Barrister, Victorian Bar, Australia), Thomas John (MCIArb, Independent Mediator, Arbitrator and Legal Consultant, the Netherlands) and Ben Köhler (Max Planck Institute for Comparative and International Private Law), this comprehensive Companion delineates the range of issues considered at UNCITRAL, as well as assessing the potential for future work and reforms.

The book will be virtually launched by the Secretary of UNCITRAL Anna Joubin-Bret followed by an informative panel discussion will be included.

See here for registration to the book launch.

The Official Journal of the European Union of 9 June 2023 reports anout the following request for a preliminary ruling from the Sofiyski rayonen sad (Sofia District Court – case C-222/23):

Is Article 62(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as precluding the concept of a natural person’s ‘domicile’ from being derived from national legislation which provides that the permanent address of nationals of the forum State is always situated in that State and cannot be transferred to another place in the European Union?

Is Article 5(1) of [the Brussels I bis Regulation], read in conjunction with Articles 18(1) and 21 TFEU, to be interpreted as permitting national legislation and national case-law under which a court of a State may not refuse to issue an order for payment against a debtor who is a national of that State and in respect of whom there is a reasonable presumption that the court lacks international jurisdiction because the debtor is likely to be domiciled in another EU State, which is apparent from the debtor’s declaration to the competent authority that he has a registered address in that State? In such a case, is the date on which that declaration was made relevant?

Where the international jurisdiction of the court seised is derived from a provision other than Article 5(1) of [the Brussels I bis Regulation], must Article 18(1) TFEU, read in conjunction with Article 47(2) of the Charter of Fundamental Rights, be interpreted as precluding national legislation and national case-law under which an order for payment may be issued only against a natural person who is habitually resident in the forum State, but a finding that the debtor, if a national of that State, has established that he is resident in another State cannot be based solely on the fact that he has given the first State a registered address (‘current’ address) that is in another State of the European Union, if the debtor is unable to demonstrate that he has entirely moved to that other State and has no address in the territory of the forum State? In this case, is the date on which the declaration concerning the current address was made relevant?

If the answer to the first part of the third question is that the issue of an order for payment is permissible, is it permissible under Article 4(1) of [the Brussels I bis Regulation], read in conjunction with Article 22(1) and (2) of Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters, as interpreted in the judgment in Case C-325/11, Alder, and in conjunction with the principle of effective application of EU law in the exercise of national procedural autonomy, for a national court of a State in which nationals cannot give up their registered addresses in the territory of that State and cannot transfer them to another State, when it receives an application for an order for payment in proceedings in which the debtor is not involved, to obtain information in accordance with Article 7 of Regulation (EU) 2020/1784 from the authorities of the State in which the debtor has a registered address about the debtor’s address in that State and the date of registration there, in order to determine the debtor’s actual habitual residence before the final decision is given in the case?

In the case at hand, ‘Toplofikatsia Sofia’ EAD, a company registered under Bulgarian law, applied to the Sofia District Court for an order for payment against V.Z.A., the debtor, for a pecuniary claim. V.Z.A. is not yet a party to the proceedings, because the order has not yet been issued. The claim arose from the fact that V.Z.A., who owns an apartment heated by the district heating network, had not paid for energy supplied between 15 September 2020 and 22 February 2023. In order to determine its international jurisdiction, the Sofia court requested of its own motion information on the address of the debtor from the population register in March 2023. According to this information, V.Z.A. has a permanent address registered in 2000 in Sofia (Bulgaria) and, since 6 March 2010, has had a current address registered with the Bulgarian authorities that is in another Member State of the European Union. Bulgarian law does not provide for the possibility of registering a particular current address abroad but merely for indicating the other State in which it is located.

In a nutshell, the legal issues at stake are two: first, the compatibility with Union Law of the assimilation, as per national law, of the permanent address to the notion of domicile, independently of the existence of a current address in another Member State; second, the possibility of resorting to the provisions of Regulation No. 2020/1784 in order to identify the current address of a debtor.

The request is remarkable in that, to the best of my knowledge, it will be the first one on the new Service Regulation, which applies as of 1 July 2022.

If the fourth question is taken up by the Court of Justice in its exact terms, the ruling will involve Article 7 on assistance on address enquiries, i.e., a provision non-existing under the previous Service Regulation, and the only one applicable where the address of the person to be served with a document is not known (see Article 1, paragraph 2 of the Regulation). As noted by B. Hess in his commentary to Article 7 in A. Anthimos, M. Requejo (eds), The European Service Regulation. A Commentary, Edward Elgar Publishing, 2023, the rule introduces a new mechanism aiming at facilitating address research in other EU Member States, without, nevertheless, establishing a self-standing European procedure, unlike Articles 51 (2), 61 – 63 of the Maintenance Regulation, or (for the purposes of obtaining information on accounts of the debtor) under Article 14 of the European Bank Account Preservation Order Regulation. The assistance given in the framework of Article 7 remains a matter of the national law of the requested EU Member State – some information thereto related can be found at the e-justice portal.

Updates will follow.

The Paris Court of Appeal will celebrate the fifth anniversary of the establishment of its chamber dedicated to international disputes in a symposium on December 13th, 2023 (4-7 pm).

This will be an opportunity to take stock of its achievements by reviewing progress made since 2018, the modus operandi, the perception of the Chamber’s users, its strengths and areas for improvement, and to consider the future.

Four round tables will discuss the specific procedural framework established for handling international disputes, whether the international chamber has developed a specific caselaw, the international attractiveness of French commercial justice and future reforms.

The programme can be found here.

Speakers will include judges from the court, academics, lawyers practising in Paris and abroad and officials from the French Ministry of Justice.

The symposium will be held in French with simultaneous translation.

Attendance is free, but registration is required at colloque.ca-paris@justice.fr

Le 21 novembre 2023, à Strasbourg, la résolution du Parlement européen contenant des recommandations à la Commission sur un cadre de l’Union pour la situation sociale et professionnelle des artistes et des travailleurs des secteurs de la culture et de la création (2023/2051[INL]), présentée par ses deux rapporteurs Antonius Manders et Domènec Ruiz Devesa, a été adoptée par 433 voix pour, 100 voix contre et 99 abstentions. 

Sur la boutique Dalloz Code de la propriété intellectuelle 2023, Annoté et commenté Voir la boutique Dalloz

en lire plus

In Lott & Ors v PSA Automobiles SA & Ors [2023] EWHC 2568 (KB), Fontaine SM deals with an evidential /discovery issue in one of the dieselgate cases, where the car manufacturers intend to contest the extent of the binding nature of CJEU judgments finding relevant software to constitute cheating devices within the meaning of European standardisation laws.

[22] The French Defendants are found to have submitted to the jurisdiction of the E&W courts at least in relation to the Claimants’ application for further information and specific disclosure. [26] ff discusses the relevant French ‘blocking statute’ which prohibits French nationals and certain others from providing documents and information of an economic, commercial, industrial, financial or technical nature to foreign public authorities or for the purposes of establishing evidence for foreign judicial or administrative proceedings. Relevant authority on the effect of the French statute is listed [28], with [29] emphasis on

Orders for production and inspection are matters of procedural law, governed by the lex fori, here English law. Local rules apply; foreign law cannot be permitted to override this Court’s ability to conduct proceedings here in accordance with English procedures and law.

and [30] a proposal by the French defendants, asking that the application be provided only pursuant to a letter of request under the Hague Taking of Evidence Convention (as cover for the French statute, refused however [81]:

i) I have no real means of assessing how real is the risk of prosecution if the documents so ordered were provided directly by the French Defendants to the Claimants, even if protected by a confidentiality order or confidentiality ring. That might have been provided by expert evidence of French law, but I have given reasons why that was not permitted at this stage. However, I do take into account both the letter from SISSE which explains the French authority’s position, and the interests of international comity, which support the use of the Hague Convention route.

ii) The French Defendants were well aware of the difficulties caused by the FBS at the hearing on 9 February 2022, and assured the court that once their legal representatives and an engineer had been able to take instructions in France from their clients they would seek the relevant documents via the Hague Convention themselves, but that has not been done, and no explanation provided. If it had been done by the French Defendants solicitors within a reasonable time after that hearing the relevant information and documents would have been available some time ago. It was also not explained why the FBS would prohibit the French Defendants from providing information and documents to their own clients other than through the Hague Convention. It is not a reasonable approach for the French Defendants to come back to court some 17 months after that hearing and now insist that the Claimants make a Hague Convention request, without any explanation for the change of stance, and the substantial delay.

iii) The prejudice to the Claimants that will inevitably be caused to provision of information and documents by reason of that delay if these have to be provided via the Hague Convention, that is likely to impact their ability to provide a fully pleaded draft GPOC and/or GLO issues which in turn may cause delay to the hearing of the GLO application.

iv) I take account of the fact that this is group litigation where there is, as in Cavallari, “an asymmetry of information” between the parties, and the relevant technical information is held by the Defendants, primarily by the French Defendants.

An interesting judgment on evidential forum shopping.

Geert.

#Dieselgate class action, discovery
Impact of French 'blocking' statute (preventing FR defendants from handing over documents) and Hague Evidence Convention viz English lex fori as procedural law

Lott & Ors v PSA Automobiles SA & Ors [2023] EWHC 2568 (KB)https://t.co/FQken9cGG1

— Geert Van Calster (@GAVClaw) October 17, 2023

In Clifford Chance LLP v Societe Generale SA [2023] EWHC 2682 (Comm), Henshaw J has held on a jurisdiction challenge in a claim for professional negligence claim brought by SocGen against Clifford Chance alleging that they negligently handled a dispute between SocGen and Goldas Kuyumculuk Sanayi Ithalat Ihracat AS and other companies in the same group.

Clifford Chance’s claim is one for negative declaration of contractual liability: it seeks declarations that they are not liable to SocGen in professional negligence, and that CC Europe was not retained by SocGen at all. SocGen has subsequently commenced proceedings against CC LLP and CC Europe in the High Court of Paris, seeking damages in excess of €140 million. The first hearing in that court is due to take place in March 2024.

SocGen challenged the jurisdiction of the E&W courts with reference to its framework agreement with Clifford Chance, which includes French choice of court and French choice of law. As was to be expected, Clifford Chance argue that that agreement does not apply to the work at issue (given the interference of various Clifford Chance legal entities, it was inevitable that issues of privity would arise; see also the discussion [103] ff on agency). The judge, applying French principes of contractual interpretation, holds [90] ff that on the facts, the framework agreement does not apply to the retainer at issue. As a result of the Rome Convention (as discussed at [67], Rome I not applying ratione temporis), English law applies to that retainer as a result of E&W being the habitual residence of the service provider.

[112] ff deal succinctly with (and reject)  the subsidiary issue of forum non conveniens: [120] it is not shown

that the courts of France are clearly and distinctly the more appropriate forum. To the contrary, this court is that forum.

I wonder whether Clifford Chance in the French proceedings will now be arguing Article 33-34 lis pendens, seeing as the English proceedings were instituted first, however that would depend on the exact parties to the proceedings and the basis for jurisdiction against them: if the French courts find there is a legally binding choice of court in the claim, Articles 33-34 cannot apply and we will find ourselves in an interesting post-Brexit competition between courts.

Geert.

Judgment now here. Jurisdiction challenge fails, choice of court held not to apply to specific retainer. Interestingly, will CC argue A33, 34 in FR given the alleged invalidity of choice of court?
Clifford Chance v Societe Generale [2023] EWHC 2682 (Comm)https://t.co/YCRVwiE3hL https://t.co/v58xuSXo7C

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

AP Assistenzprofis
L’emploi d’une assistante personnelle aidant une personne handicapée dans la vie quotidienne peut être réservé aux personnes de la même tranche d’âge

SCHUFA Holding (Scoring)
Principes du droit communautaire
Le règlement général sur la protection des données (RGPD) s’oppose à deux pratiques de traitement des données de sociétés fournissant des informations commerciales

The third issue of the Revue critique de droit international privé of 2023 will be released shortly. It focuses on notarial practice in international family property law in the Ukrainian context, but contains also numerous case notes on private international law.

In the first article, Pierre Boisseau (University of Tours) examines the contours of the legal framework applied to receive and protect Ukrainians fleeing the fighting in their country of origin (Du droit d’asile classique à l’accueil des déplacés ukrainiens: réflexion sur la complémentarité des dispositifs de protection des réfugiés).

The abstract reads:

In Europe in general, and in France in particular, the reception of refugees is based on three complementary systems. In addition to the traditional right of asylum and subsidiary protection, there is now temporary protection. In very simplified terms, political asylum concerns those fighting for freedom; subsidiary protection protects people who have been victims of abuse by nonstate groups; and temporary protection, which stems from the geopolitical context in Europe, is currently used to receive and protect Ukrainians fleeing the fighting. Many have benefited from this, although part of them have now returned to Ukraine. But this surge of generosity towards Europeans does not seem to inspire the draft Pact on Asylum and Immigration of Thursday 8 June 2023 concerning refugees from other continents.

In the second article, Ambra Marignani (University of Tours) and Svitlana Yaroslavovna Fursa (Honored Lawyer of Ukraine & Center for Legal Research of Kyiv) study the question of property rights for couples displaced from Ukraine, under a conflict-of-laws perspective (Les pouvoirs des époux sur leurs biens : quelles problématiques pour les déplacés d’Ukraine ? Regards issus d’une comparaison franco-ukrainienne).

The abstract reads:

Displaced spouses from Ukraine may not imagine that, in some cases, French law is applicable to their rights to own, manage, enjoy and dispose of property. Notaries will be in the front line in containing this risk by informing and advising them. This work will be essential, particularly with regard to the rights that differ in content between French and Ukrainian law, which has been highlighted by the comparison of laws.

In the third article, Audrey Damiens (University of Tours) and Svitlana Yaroslavovna Fursa (Center for Legal Research of Kyiv) explore the role of notaries in dealing with the sensitive issue of cross-border separation of couples between France and Ukraine (La pratique notariale et les divorces en droit international privé : réflexion entre la France et l’Ukraine en temps de guerre).

The abstract reads:

The situation in Ukraine has led to population movements, particularly towards France. Married couples or one of their members now find themselves in a situation that comes under private international law. In their practice, French notaries are and will be faced with an increasing number of international situations relating to Ukraine, including divorce. This article looks at the practical difficulties that French notaries may encounter in divorce cases in Ukraine, and suggests some possible solutions. On the one hand, it looks at divorces in Ukraine that would come before a French notary. Secondly, it is proposed to consider divorce by mutual consent in France in an international situation linked to Ukraine.

In a fourth article, Alina Goncharova (State University of Soumy, Ukraine & Invited Fellow, University of Tours) and Fabienne Labelle (University of Tours) examine the law applicable to inheritance from a French-Ukrainian comparative perspective (Dévolution successorale et réserve héréditaire: comparaison entre la France et l’Ukraine).

The abstract reads:

The purpose of this study is to compare French and Ukrainian inheritance law. This study is particularly interesting in the event that Ukrainian law is applicable to the succession submitted to the French notary, as it provides some useful benchmarks in Ukrainian law. By studying the hypotheses of shares reserved for certain heirs, it also highlights significant differences in the internal public policy of each country. These differences could give rise to practical difficulties and discussions in both doctrine and case law.

Finally, a fifth article from the same authors, Alina Goncharova & Fabienne Labelle, deals with the question of drawing up wills in international French-Ukrainian context (Le testament, outil de planification de la succession internationale Le cas des Ukrainiens protégés temporairement en France).

The full table of contents is available here.

En application de l’article 16, § 1, du règlement Bruxelles II bis, « une juridiction est réputée saisie par la réalisation d’un seul acte, à savoir le dépôt de l’acte introductif d’instance, dès lors que le demandeur n’a pas omis de prendre les mesures qui lui incombaient pour que l’acte initial soit régulièrement notifié ou signifié au défendeur ».

Sur la boutique Dalloz Code de procédure civile 2024 annoté. Édition limitée Voir la boutique Dalloz

en lire plus

The Ruby Princess will be remembered by many Australians with disdain as the floating petri dish that kicked off the spread of COVID-19 in Australia. The ship departed Sydney on 8 March 2020, then returned early on 19 March 2020 after an outbreak. Many passengers became sick. Some died. According to the BBC, the ship was ultimately linked to at least 900 infections and 28 deaths.

Ms Susan Karpik was a passenger on that voyage. She and her husband became very sick; he ended up ventilated, intubated and unconscious in hospital for about four weeks.

Ms Karpik commenced representative proceedings—a class action—in the Federal Court of Australia. She asserted claims in tort and under the Australian Consumer Law (ACL) in schedule 2 to the Competition and Consumer Act 2010 (Cth) (CCA) against companies behind the ship: Carnival plc and its subsidiary, Princess Cruise Lines Ltd (together, Princess). She sought damages for loss and damage allegedly suffered by either passengers of the ship or their relatives.

The case has an obvious cross-border flavour. The respondents are foreign companies: Princess Cruise Lines Ltd is incorporated in Bermuda and headquartered in California; Carnival plc is a UK company which functions together with a Panama-incorporated US-headquartered company, and is dual listed on the New York Stock Exchange and the London Stock Exchange. The ship is registered in Bermuda. The ~2,600 passengers on the diseased voyage included many Australians but also passengers from overseas. They contracted to travel on the cruise in different parts of the world, and according to Princess, were subject to different terms and conditions subject to different systems of law. The cruise itself departed and returned to Sydney but included time outside of Australia, including in New Zealand.

It is unsurprising then that Princess sought to defend the proceedings at a preliminary stage through litigation over where to litigate.

Princess brought an interlocutory application to stay the proceedings as they related to a Canadian passenger, Mr Patrick Ho, who entered the contract with Princess when he was not in Australia. Princess argued that Mr Ho’s contract was subject to different terms and conditions to those that governed the contracts of other Aussie passengers. These ‘US Terms and Conditions’ included a class action waiver clause, a choice of law clause selecting US maritime law, and an exclusive jurisdiction clause selecting US courts. Mr Ho was identified by Ms Karpik as a sub-group representative of those members of the class action that Princess argued were subject to the US Terms and Conditions.

In contesting the stay application, Ms Karpik relied on section 23 of the ACL, which provides among other things that a term of a consumer contract is void if the term is unfair and the contract is a standard form contract. Princess argued that s 23 did not apply to Mr Ho’s contract, given it was made outside Australia.

The primary judge refused the stay application, which was then reversed by the Full Court of the Federal Court of Australia.

On further appeal, the High Court held that ACL s 23 does apply to Mr Ho’s contract, with the result that the class action waiver clause was void: Karpik v Carnival plc [2023] HCA 39. The Court held that there were strong reasons not to give effect to the exclusive foreign jurisdiction clause. Ms Karpik succeeded, meaning that the case may now continue in Australia, even as regards those members of the class action who are not Australian and contracted overseas.

The decision is significant not just for the litigants. It will be commercially significant for foreign businesses that contract with consumers in respect of services that have connections to Australia. For example, it may have serious implications for travel operators, including those who run cruises that stop in Australia. The decision is significant too for private international law nerds like myself, contemplating how to resolve choice of law questions in our age of statutes.

Procedural history

Princess applied to stay the proceedings relying on terms of Mr Ho’s contract with Princess. A Calgary resident, he booked his ticked on the Ruby Princess via a Canadian travel agent in September 2018. By the time the matter came to the High Court, it was not disputed that when he did so, he became a party to a contract subject to the US Terms and Conditions, which contained three clauses of particular relevance.

First, it included a choice of law clause (cl 1):

‘[A]ny and all disputes between Carrier and any Guest shall be governed exclusively and in every respect by the general maritime law of the United States without regard to its choice of law principles … To the extent such maritime law is not applicable, the laws of the State of California (U.S.A.) shall govern the contract, as well as any other claims or disputes arising out of that relationship. You agree this choice of law provision replaces, supersedes and preempts any provision of law of any state or nation to the contrary.’

Second, it included an exclusive foreign jurisdiction clause (cl 15B(i)):

‘Claims for Injury, Illness or Death: All claims or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever, including without limitation those arising out of or relating to this Passage Contract or Your Cruise, shall be litigated in and before the United States District Courts for the Central District of California in Los Angeles … to the exclusion of the courts of any other country, state, city, municipality, county or locale. You consent to jurisdiction and waive any objection that may be available to any such action being brought in such courts.’

Third, it included a class action waiver clause (cl 15C):

‘WAIVER OF CLASS ACTION: THIS PASSAGE CONTRACT PROVIDES FOR THE EXCLUSIVE RESOLUTION OF DISPUTES THROUGH INDIVIDUAL LEGAL ACTION ON YOUR OWN BEHALF INSTEAD OF THROUGH ANY CLASS OR REPRESENTATIVE ACTION. EVEN IF THE APPLICABLE LAW PROVIDES OTHERWISE, YOU AGREE THAT ANY ARBITRATION OR LAWSUIT AGAINST CARRIER WHATSOEVER SHALL BE LITIGATED BY YOU INDIVIDUALLY AND NOT AS A MEMBER OF ANY CLASS OR AS PART OF A CLASS OR REPRESENTATIVE ACTION, AND YOU EXPRESSLY AGREE TO WAIVE ANY LAW ENTITLING YOU TO PARTICIPATE IN A CLASS ACTION …’

By its interlocutory application, Princess sought an order that certain questions be heard and determined separately. The questions included whether Mr Ho was bound by the exclusive foreign jurisdiction clause.

At first instance, Ms Karpik argued that Mr Ho was not subject to the US Terms and Conditions, and so denied that the foreign exclusive jurisdiction clause and the class action waiver clause were incorporated into his contract. It was argued in the alternative that those clauses if incorporated were void or otherwise unenforceable.

In July 2021, Stewart J refused the application for a stay as regards Mr Ho on the basis that the US Terms and Conditions were not incorporated into his contract, and held further that if they were incorporated, the class action waiver was void and unenforceable under ACL s 23. Stewart J held there would be strong reasons for not enforcing the exclusive foreign jurisdiction clause even if it were incorporated and enforceable: Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082; (2021) 157 ACSR 1, [331].

In September 2022, by majority, the Full Court of the Federal Court allowed the Princess appeal. The Full Court was comprised of judges who are, with respect, well known for their private international law and maritime law expertise: Allsop CJ, Rares J and Derrington J. All three agreed that the primary judge erred in holding that the exclusive foreign jurisdiction clause and the class action waiver clause were not terms of Mr Ho’s contract. Allsop CJ and Derrington J agreed that the clauses were enforceable and not contrary to the policy of Part IVA of the Federal Court of Australia Act 1976 (Cth) which regulates representative proceedings in the Federal Court. Rares J dissented in holding that it was contrary to public policy to permit contracting out of that class actions regime. The majority did not decide on the extraterritorial application of ACL s 23 but enforced the exclusive foreign jurisdiction clause by staying the proceeding as regards Mr Ho’s claim: Carnival plc v Karpik (The Ruby Princess) [2022] FCAFC 149; (2022) 294 FCR 524.

Mrs Karpik obtained special leave. The Attorney-General of the Commonwealth and the Australian Competition and Consumer Commission intervened. The appeal was heard in March 2023.

The High Court was comprised of Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ. The Court unanimously allowed Ms Karpik’s appeal and re-exercised the primary court’s discretion by refusing to stay the proceedings. The decision may be distilled into three key propositions.

1. Section 23 of the ACL had extraterritorial application and applied to the contract between Mr Ho and Princess.
2. The class action waiver clause was void under ACL s 23 because it was unfair.
3. Although the exclusive foreign jurisdiction clause formed part of the contract, there were strong reasons for not enforcing the clause.

The territorial scope of ACL s 23

The first proposition turned on resolution of difficult issues of private international law, or the conflict of laws.

Princess argued that the application of the ACL in a matter with a foreign element depended first on determining that the law of the forum (lex fori) was the applicable law (lex causae) in accordance with the forum’s choice of law rules.

Where a contract selects a system of foreign law as the applicable law, as this contract did in cl 1, the relevant choice of law rule is that generally, the selected system of law supplies the proper law of the contract, which is the applicable law: see Akai Pty Ltd v The People’s Insurance Co Ltd (1996) 188 CLR 418.

The High Court held that ‘Princess’ submissions incorrectly invert the inquiry’: [22]. Rather, the application of ACL s 23 to Mr Ho’s contract, a contract made outside Australia, was described as ‘a question of statutory construction’: [18]. So the Court construed the ACL as part of the CCA by holding as follows at [26], [34]ff:

• The ACL applies to the extent provided by CCA pt XI: ACL s 1.
• CCA s 131(1), within CCA pt XI, provides that the ACL applies to the conduct of corporations and in relation to contraventions of certain chapters of the ACL by corporations.
• CCA s 5 extends the application of relevant parts of the ACL to conduct engaged in outside Australia, where the conduct outside Australia was by a corporation carrying on business with Australia.
• ACL s 23, as part of ACL pt 2-3, prescribes a norm of conduct. Section 23 in particular addresses adhesion contracts—that is, contracts in which one of the parties enters into a contract on a take-it-or-leave it basis. ACL s 23 protects consumer contracts and small business contracts but not others.

There was no dispute before the High Court that Princess was carrying on business in Australia. (On the role of that jurisdictional hook in Australian legislation, see Douglas, ‘Long-Arm Jurisdiction over Foreign Tech Companies “Carrying on Business” Online: Facebook Inc v Australian Information Commissioner’ (2023) 45(1) Sydney Law Review 109).

The High Court clarified that ACL s 23 should not be considered a generally worded statutory provision: [43]–[44]. Rather, the statute expressly provided for the territorial scope of the ACL via CCA s 5. The Court held that there was no justification to only apply s 23 to situations where the proper law of the contract is Australian law. The Court considered the CCA’s policy objective of consumer protection (CCA s 2) as supporting a construction which would extend protection to Australian consumers with companies even where the contract was for services wholly or predominantly performed overseas: [47], [49].

The class action waiver clause was an unfair term

The US Terms and Conditions were therefore subject to s 23 of the ACL. Was the class action waiver clause ‘unfair’ for the purposes of s 23(1)(a)? The Court applied the definition in ACL s 24(1), which provides:

‘(1)  A term of a consumer contract or small business contract is unfair if:

(a)  it would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

(b)  it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

(c)  it would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.’

The Court considered that the clause had the effect of preventing or discouraging passengers from vindicating their legal rights where the cost to do so individually and not as part of a class action would be economical. The clause therefore caused a significant imbalance in the parties’ rights and obligations: [54]. The Court held that Princess had not proved that the clause was reasonably necessary in order to protect their interests: [55]–[56]. Further, being denied access to the representative proceedings regime was considered a sufficient detriment: [58].

The Court recognised that courts in the United States have held differently, but considered that the class action waiver clause was unfair, and therefore void under ACL s 23: [60].

The Court further opined in obiter that the class action waiver clause would not be inconsistent with the Federal Court’s representative proceedings regime: [61]–[64].

Strong reasons not to enforce the exclusive foreign jurisdiction clause

Australian courts give effect to the norm of party autonomy by enforcing exclusive foreign jurisdiction clauses in the absence of strong reasons to not enforce such clauses. The primary judge held that there were strong reasons in this case to not enforce the party’s exclusive choice of foreign fora. The High Court agreed.

The Court held that the following ‘strong’ reasons justified denying the application for the stay, as a matter of discretion: first, the class action waiver clause was an unfair term, which corresponded to Mr Ho’s juridical advantage in litigating in Australia in circumstances where he could be denied participation in a class action in the US; and second, the enforcement of the exclusive jurisdiction clause would fracture the litigation: [67]–[69].

Conclusion

The High Court’s decision is significant for its consideration of the territorial scope of ACL s 23. It means that many companies outside of Australia that operate in a way that touches on Australia will have difficulty in contracting out of Australia’s consumer protection regime as regards standard contracts with consumers and small businesses. The decision will be a big deal for businesses like Princess, who operate travel services that involve Australia.

Theoretically, the Australian consumer protection regime could apply to regulate contracts between persons who are not Australian, with limited connection to Australia, and in respect of transactions with subject matter with a closer connection to places other than Australia. But as the High Court recognised at [50], the practical significance of this possibility should not be overstated. Forum non conveniens should operate to limit the prosecution of those kinds of claims.

On the other hand, Australia’s parochial approach to that doctrine via the ‘clearly inappropriate forum’ test could mean that in some cases, it is worth it for foreigners to have a crack in an Australian forum over subject matter with a tenuous connection to Australia. Strong consumer protection may provide the ‘legitimate juridical advantage’ by reference to which a court may decline a stay application in a matter with a foreign element: see generally Garnett, ‘Stay of Proceedings in Australia: A “Clearly Inappropriate” Test?’ (1999) 23(1) Melbourne University Law Review 30.

The case is similarly significant for its treatment of class action waivers within the framework of the ACL. Contracts with consumers are the kind in which such clauses have the most work to do: these are contracting parties who may not sue at all unless they are part of representative proceedings. Australia’s plaintiff-focuses class action lawyers should be licking their lips.

For me, the case is most significant for its approach to choice of law. The High Court has now expressly endorsed an approach that has been applied in a number of cases and described by some as ‘statutist’. I’ve previously argued that the statute-first approach to choice of law should be orthodox in the Australian legal system: Douglas, ‘Does Choice of Law Matter?’ (2021) 28 Australian International Law Journal 1; an approach which now appears right, if I do say so myself. Australian private international law may seem incoherent when viewed within the theoretical framework of multilateralism espoused by the likes of Savigny. But it makes sense when you approach matters with foreign elements with regard to our usual constitutional principles.

In Australian courts, all Australian statutes are ‘mandatory’, even in matters with a foreign element—there is no such thing as ‘mandatory law’. In every case where a forum statute is involved, the question is whether the statute applies. Statutory interpretation is the primary tool to resolve such questions.

Under Article 8 of the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”), a court shall refer the parties to arbitration “if a party so requests not later than when submitting his first statement in the substance of the dispute.” This Model Law rule, upon which the equivalent provision of the Norwegian Arbitration Act is based, was the subject of a recent Norwegian Supreme Court decision over a dispute between a Danish and a Norwegian company regarding a distribution contract containing an arbitration clause referring disputes to arbitration in Denmark.

Before the dispute was initiated, the Danish company claimed for preservation of evidence in Norwegian courts, in accordance with the Norwegian Procedural Code. In connection to the claim for preservation of evidence, the Norwegian company stated that the matter was subject to arbitration and the court procedure should therefore be dismissed. This issue – whether the arbitration clause was a procedural impediment to the preservation of evidence – was rejected by the court of first instance. When this decision was appealed, both the court of second instance and the Supreme Court joined the conclusion of the court of first instance.

When evidence had been preserved, the Danish company initiated a procedure for a Norwegian conciliation council. Under Norwegian procedural law, a conciliation council serves as a court of first instance in civil matters but with a limited adjudicative competence. As its name implies, the idea behind the conciliation council is to settle civil disputes through conciliation. However, a conciliation council shall refer complicated matters to the ordinary courts. The conciliation council in the case in question referred the matter to the ordinary district court. Only then, in the procedure at the district court, did the Norwegian defendant state that the matter should be subject to arbitration. The district court dismissed this objection, referring to the decision by the Supreme Court, which had held that the arbitration clause did not impede the preservation of evidence. The court of appeal also came to the conclusion that the arbitration clause was not an impediment for the procedure, albeit with a completely different legal analysis underlying this conclusion. The court of appeal argued that the defendant had based its objection on the substance of the matter before the conciliation council, without invoking the arbitration clause. Hence, the right to invoke the arbitration clause as a procedural impediment was precluded under the Norwegian Arbitration Act.

As this decision was also appealed, the issue for the Norwegian Supreme Court was whether the right to invoke the arbitration clause was precluded. In its decision, the Supreme Court first held that a Norwegian conciliation council, despite its limited competence, is a national court for the purposes of the Norwegian Arbitration Act. Consequently, the next issue for the court to ponder was whether the defendant had requested the conciliation council to refer the parties to arbitration in the way that Article 8 of the Model Law requires. Under this article, a request shall be made “not later than when submitting [the] first statement on the substance of the dispute.” Holding that the wording of Article 8 is ambiguous and that there seems to be no clear international case law on the issue, the Supreme Court made its own interpretation of the critical point in Article 8. Here, the Court held that the Norwegian Procedural Act requires that a defendant party in a dispute before a conciliation council gives notice on whether it accepts or contests the claim. Norwegian law does not require the defendant to justify its position on the plaintiff’s claim. Taking a stance on whether a claim is accepted or contested is, regardless of whether this is justified, a statement on the substance of the dispute, according to the Supreme Court’s decision. Further, the court held that the opposite interpretation would risk creating unnecessary procedural delays. The right of the defendant to invoke the arbitration agreement was therefore precluded.

In summary, a party that wants to invoke an arbitration agreement as a procedural impediment must do so no later than at the first occasion when the party has a chance to submit a statement on the substance of the dispute.

Below in simple format and here in easier lay-out, is the program for our conference on the Tangier Statute Centenary Conference, 18 December next in Tanger.

We are very excited.

 

The Tangier Statute Centenary Conference, 18th December 2023

Colloque international à l’occasion du centenaire du Statut de Tanger, 18 décembre 2018

 

Programme

 

Local time/heure locale : UTC+1 (= Central European Time/Heure normale d’Europe Centrale)

Morning/Matinée: Faculté des Sciences Juridiques, Économiques et Sociales de Tanger

09:00-09:30:         Registration/Inscriptions

09:30-10:30:         Welcome speeches/Discours de bienvenue

• Welcoming words by the organizers/Mots de bienvenue des organisateurs
• Address by Mr Mounir Lymmouri, President of the Tangier City Council/Allocution de M. Mounir Lymmouri, Président du Conseil de la Ville de Tanger
• Address by a Representative of the Presidence of Abdelmalek Essaâdi University/Allocution d’un.e représentant.e de la présidence de l’Université Abdelmalek Essaâdi
• Address by Prof. Toufik Essaid, Dean of the Tangier Faculty of Legal, Economic, and Social Sciences/Allocution de M. le Professeur Toufik Essaid, Doyen de la Faculté des sciences juridiques, économiques et sociales de Tanger.

 

10:30-10:45: Keynote speech by Prof. Hamid Aboulas, Vice-Dean of the Tangier Faculty of Legal, Economic, and Social Sciences/Discours d’ouverture de M. le Professeur Hamid Aboulas, Vice-Doyen de la Faculté des sciences juridiques, économiques et sociales de Tanger

• Quelques aspects de la transformation de la ville de Tanger de 1923 à après l’indépendance

10:45-11:00:         Coffee break/Pause café

 

11:00-12:00:         Panel 1: Between Internationalism and Colonialism: Contextualizing the Tangier Statute/Entre internationalisme et colonialisme : le Statut de Tanger dans son contexte (Chair/Présidence: Fouzi Rherrousse)

• Ambivalences de la souveraineté, impérialisme et droit international : réflexion à partir du statut spécial de la Ville de Tanger (1923-1956) (Oumar Kourouma)
• La souveraineté marocaine à l’épreuve du statut international de Tanger de 1923 (Antoine Perrier)
• The International Situation of the City of Tangier During the Protectorate (Adil Rajaa)

 

12:00-13:00:         Panel 2: The International City as a Product and a Precedent: Connecting Tangier to Other International Spaces/La Ville internationale comme produit et comme précédent : les liens entre Tanger et d’autres espaces internationaux (Chair/Présidence: Michel Erpelding)

• The theory and practice of international administration: Comparison between Tangier and territories administered by the League of Nations (Philip Burton)
• The Statute of Tangier as the inspiration for the Draft Statute for the City of Jerusalem (Fulvio Bontempo and Alessia Tortolini)
• The International Zone of Tangier, 1924-1956: the European Union’s Accidental Incubator? (Willem Theus)

 

13:00-15:00:       Lunch break/Pause déjeuner

 

Afternoon/après-midi : Palace of Italian Institutions/Palais des Institutions Italiennes

15:00-15:20:       Welcome speeches/Discours de bienvenue

• Adress by Mr Marco Silvi, Consul General of Italy in Casablanca/Allocution par M. Marco Silvi, Consul général d’Italie à Casablanca
• Address by Mr Riccardo Finozzi, representative of the association Dimore Storiche del Mediterraneo/Allocution par M. Riccardo Finozzi, représentant de l’association Dimore Storiche del Mediterraneo

 

15:20-16:20:       Panel 3: Implementing the Tangier Statute: The Administration of the International City in Practice/La mise en œuvre du Statut de Tanger : Enjeux pratiques de l’administration de la Ville Internationale (Chair/Présidence: Rachid El Moussaoui)

 

• Tanger : la dimension méditerranéenne de l’économie marocaine (Sersar El Mahdi)
• Structuration et évolution de l’enseignement dans Ville de Tanger (Faiza El Alaoui)
• Les enjeux politiques et juridiques de la planification urbaine et architecturale de la zone internationale de Tanger (1925-1956) (Romain Micalef)

 

16:20-17:20:       Panel 4: Administering Justice in the International City: The Mixed Court of Tangier/Rendre la justice dans la Ville internationale : le Tribunal mixte de Tanger (Chair/Présidence : Geert van Calster)

 

• Capitalism as Juridical Creed: The Uneasy Relationship of the Tangier Mixed Court with Public International Law (Dimitrios A. Kourtis) (online/en ligne)
• Divergence et convergence juridiques: analyse de deux décisions des Tribunaux mixtes de Tanger et du Caire (Aya Bejermi and Adam Belkadi) (online/en ligne)
• Jewish Law in the Mixed Court of Tangier, 1925-1956 (Jessica M. Marglin)

 

17:20-17:40:       Coffee break/Pause café

 

17:40-18:20: Panel 5: Lawyering in the International City: Selected Portraits of ‘Mixed Lawyers’/Pratiquer le droit dans la Ville internationale : Portraits choisis de « juristes mixtes » (Chair/Présidence : Francesco Tamburini)

• Le fabuleux destin de deux bâtonniers tangérois : Alphonse Ménard et Daniel Saurin (Fouzi Rherrousse)
• Incunable d’Europe : Nicola Catalano et la Zone internationale de Tanger (Marco Fioravanti)

 

18:20-19:20:       Panel 6: Flooding the Airwaves from the International City: Tangier as a Broadcasting Platform/Remplir les ondes à partir de la Ville internationale : Tanger comme plate-forme de radiodiffusion (Chair/Présidence : Willem Theus)

• A Case of Strategic Litigation: the 1938-1939 ‘Radio-Tanger’ Case and the Liberalization of Tangier’s Airwaves (Michel Erpelding)
• The Italian Radiotelegraphic Service in the International Zone, 1931-1956: Shattered Dreams for a Mediterranean Power (Francesco Tamburini)
• Radio Frontier: Tangier as the Mediterranean’s Radio Hub, 1939-1963 (Arthur Asseraf) (online/en ligne)

 

19:20-19:30:       Closing remarks/Conclusions

 

NORDIC INFO
Citoyenneté européenne
Covid-19 : la Cour valide certaines interdictions de voyage et obligations de dépistage ainsi que de quarantaine pendant la crise sanitaire

Nacionalinis visuomenės sveikatos centras
Seule une violation fautive du règlement général sur la protection des données peut conduire à l’infliction d’une amende administrative

Luxembourg / Commission
Aide d'État
L’examen par la Commission européenne des tax rulings accordés au groupe Engie par le Luxembourg a méconnu le droit de l’Union