Agrégateur de flux

On February 25, 2015, the German Federal Labour Court had referred questions relating to the interpretation of Art. 9 Rome I to the CJEU (see here). In the context of a wage claim made by a Greek national who is employed by the Hellenic Republic at a Greek primary school in Germany, the German Federal Labour Court faced the problem whether to apply the Greek Saving Laws No 3833/2010 and 3845/2010 as overriding mandatory provisions. The claimant, Mr. Nikiforidis, had argued that, as a teacher who is employed in Germany under a contract governed by German law, he did not have to accept the wage cuts imposed on his Greek colleagues working in the Hellenic Republic. For a closer analysis, see the earlier post by Lisa Günther here.

In its decision of October 18, 2016 – C-135/15 (available here), the CJEU held (at para 50) that Article 9 of the Rome I Regulation must be interpreted “as precluding the court of the forum from applying, as legal rules, overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed. Consequently, since, according to the referring court, Mr. Nikiforidis’s employment contract has been performed in Germany, and the referring court is German, the latter cannot in this instance apply, directly or indirectly, the Greek overriding mandatory provisions which it sets out in the request for a preliminary ruling “. According to the CJEU, the duty of sincere cooperation laid down in Article 4(3) TEU does not modify this restrictive approach. The Court went on, however, to confirm the practice established by German courts of taking foreign mandatory rules into account as a matter of fact (at para 52): “On the other hand, Article 9 of the Rome I Regulation does not preclude overriding mandatory provisions of a State other than the State of the forum or the State where the obligations arising out of the contract have to be or have been performed from being taken into account as a matter of fact, in so far as this is provided for by a substantive rule of the law that is applicable to the contract pursuant to the regulation.” Finally, the CJEU reached the conclusion (at para. 53) that “[a]ccordingly, the referring court has the task of ascertaining whether Laws No 3833/2010 and No 3845/2010 are capable of being taken into account when assessing the facts of the case which are relevant in the light of the substantive law applicable to the employment contract at issue in the main proceedings.“ For a critical evaluation of this decision, see the comment by Geert van Calster here.

On April 26, 2017, the Federal Labour Court delivered its final decision in this case (5 AZR 962/13; the German press release is available here). Although the CJEU has, as a general principle, allowed German courts to take foreign mandatory laws into account as a matter of fact, the Federal Labour Court respectfully declines to follow this path in the particular case because substantive German labour law does not provide for a suitable point of entry for the Greek saving laws. Under German labour law, an employee is – unless specifically agreed between the parties – not obliged to accept permanent wage cuts merely because his employer is in financial difficulties. Seen in this light, the preliminary reference of February 2015 has, at least partially, a certain hypothetical flavour to it – nevertheless, the methodological clarifications made by the CJEU will be helpful in future cases.

L’objectif poursuivi par le mécanisme de l’ICE consiste à améliorer le fonctionnement démocratique de l’UE en conférant à tout citoyen un droit général de participer à la vie démocratique et commande de retenir une interprétation de la notion d’acte juridique qui inclut une décision d’ouverture de négociations en vue de la conclusion d’un accord international.

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Cour d'appel de Bastia, 16 février 2017

Bail à nourriture - contrats et obligations conventionnelles

The 1965 Hague Convention on Service of Process is one of the cornerstone treaties for international litigation. It provides a simple and effective process to provide due notice of a proceeding in one signatory state to a party in another, via a designated Central Authority in each signatory state. Nevertheless, one provision has vexed U.S. courts for decades. Article 10 provides that, notwithstanding the Central Authority procedures, and “[p]rovided the State of destination does not object, the present Convention shall not interfere with. . . the freedom to send judicial documents, by postal channels, directly to persons abroad.” By virtue of the fact that the provision says “send” and not the magic word “serve,” U.S. Courts have long disagreed over whether the Convention’s procedures preclude international service of process by mail.

Today, the U.S. Supreme Court settled the question, and held that the Hague Service Convention does not prohibit service of process by mail. This permissive reading serves to increase the practical utility of the Convention around the world.

The opinion is available here, and it is a fairly straightforward exercise in treaty interpretation by Justice Alito. He starts with the “treaty’s text and the context in which its words are used,” as well as the overall “structure of the Convention” to divine the meaning of Article 10. To buttress his permissive interpretation, he then discusses “three extratextual sources [that] are especially helpful in ascertaining Article 10(a)’s meaning”: the Convention’s drafting history, the interpretation of the U.S. Executive Branch, and that of other signatories to the Convention.

As a practical matter, though, this decision doesn’t necessarily open the mailboxes of the world to liberal service of process. Rather, service by mail is still only permissible if the receiving state has not objected to service by mail (some do by way of reservations) and if such service is authorized under otherwise-applicable law. In this case, because the Court of Appeals concluded that the Convention prohibited service by mail, it did not consider whether Texas law authorizes the methods of service. That question was sent back to the lower courts to consider on remand.

L’article 22 du règlement Bruxelles I, selon lequel sont seuls compétents, en matière de validité ou de nullité des sociétés ayant leur siège sur le territoire d’un État membre, les tribunaux de cet État membre, ne s’applique pas lorsque l’action tend au paiement de sommes d’argent.

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Investment treaty claims arising out of judicial conduct—whether based on annulment of a contract for corruption or other irregularity or a fundamental jurisprudential shift—have been on the rise. To a foreign investor affected by such judicial measures, it is not always clear, however, what judicial measures can be subject to a claim under investment treaty law; which theory of liability is appropriate for a state’s liability arising out of judiciary’s conduct (or omissions); and which policy issues these different theories of liability raise.
This TDM special, thus, will be a unique, timely, and significant contribution to the current debate on investment treaty claims arising out of judicial measures. The special will explore the legal dimensions of judicial measures and potential theories for a state’s liability under investment treaty law, as well as the appropriate remedy for illegal judicial measures.

This special issue will be edited by Rajat Rana (Dechert LLP) and Nicole Silver (Winston & Strawn LLP). The call for papers can also be found on the TDM website here

Au sens de la convention de La Haye du 25 octobre 1980, le droit de garde comprend le droit portant sur les soins de la personne de l’enfant et en particulier celui de décider de son lieu de résidence. Il peut être fait exception au retour immédiat de l’enfant s’il existe un risque de danger grave ou de création d’une situation intolérable.

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Dans un arrêt du 10 mai 2017, la Cour de justice de l’Union européenne (CJUE) interprète l’article 20 du Traité sur le fonctionnement de l’Union européenne (TFUE), relatif à la citoyenneté de l’Union.

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