Agrégateur de flux

Par cet arrêt relatif à des faits de détention et diffusion d’images de mineurs présentant un caractère pornographique, la CEDH condamne l’Espagne pour violation du droit au respect de la vie privée du propriétaire des fichiers.

en lire plus

The University of Milano-Bicocca will host on June 8th and 9th a Judicial Training on International Child Abduction as part of the Project “EU Judiciary Training on Brussels IIa Regulation: from South to East”, co-funded by the Justice Programme of the European Union.

The Project, carried out by a net of four Universities led by Professor Costanza Honorati, aims to promote uniformity in the application of Regulation No 2201/2003 on Separation, Divorce and Parental Responsibility, through the organization of training events and the realization of a final handbook.

On June 8th the workshop will focus on the Hearing of the Child, a very sensitive issue and an essential part of a modern protection of children’s rights. Qualified Judges, Psychologists and Social Services will explore on all relevant concrete issues. Experts include, in particular: Martina Erb-Klünemann (Judge at the District Court Hamm, Liaison Judge of the Hague Network and ENJ Member), Maria Domenica Maggi (Psychologist, Honorary Judge Juvenile Court of Milan), Sara Lembrechts & Katrien Herbots (KeKi – Children’s Right Knowledge Centre, Ghent), Michael Ford (MiKK – International Mediation Centre for Family Conflict and Child Abduction).

On June 9th, Italian and foreign academics will address to International Child Abduction. Speakers include: Prof. Costanza Honorati (University of Milano-Bicocca), Prof. Maria Caterina Baruffi (University of Verona), Prof. Cristina Gonzalez Beilfuss & Dr. Maria Alvarez Torné (University of Barcellona), Prof. Mirela Zupan (University J. J. Strossmayer of Osijek), Prof. Ivana Kunda (University of Rijeka), Dr. Agne Limante (Law Institute of Lithuania).

Judges and Lawyers will solve practical cases and discuss with trainers, bringing their professional experience and working methods to the benefit of all participants.

Further information and the flyer of the initiative are available here.

Elections

The International Law Association (ILA) has a new website (please click here) with an improved look. The ILA hopes that visitors will find the site more informative and easier to navigate; in particular, the Members Only Area has been upgraded and will continue to be developed in order to provide members with more targeted and relevant information.

The ILA was founded in Brussels in 1873. Its objectives, under its Constitution, are “the study, clarification and development of international law, both public and private, and the furtherance of international understanding and respect for international law”. The ILA has consultative status, as an international non-governmental organisation, with a number of the United Nations specialised agencies. For further information and a welcome address from ILA chairman Lord Mance, please click here.

The German branch of the ILA will hold its annual meeting on 23 June, 2017, in Frankfurt (Main). This year’s topic is „Human Rights in International Business”. The list of distinguished speakers will include Professors Marc-Philippe Weller (Heidelberg) and Karsten Nowrot (Hamburg) as well as lawyers Dr. Birgit Spießhofer and Prof. Dr. Remo Klinger (both from Berlin). You may find the full programme and further information here.

Pourvoi c/ Cour d'appel de Paris, pôle 7, 2e chambre de l'instruction, 1er décembre 2016

Pourvoi c/ Cour d'appel de Paris, pôle 5, chambre 12, 14 décembre 2016

Tribunal d'instance du 15e arrondissement de Paris, 30 mai 2017

I have reported earlier on the action of MNL Capital against the Belgian Vulture Fund Act of 12 July 2015 (Offical Gazette here, my EN translation here), on which I have a paper here.

Thank you Quentin Declève for alerting me to the Constitutional Court’s judgment on a related action (where MNL were joined by Yukos) namely against the act of 23 August 2015 which introduced Article 1412quinquies in the Belgian Judicial Code. It is noteworthy that the action against the Act of July has not yet been decided by the Court (that case number, for the aficionados, is 6371), at the least I have not been able to locate any judgment).

As Quentin summarises, as a general rule, Article 1412 quinquies of the Belgian Judicial Code provides that assets located in Belgium that belong to a foreign State are immune from execution and cannot be subject to enforcement proceedings by creditors. Exceptions to that rule are possible if very strict conditions are met: a party wishing to seize the assets belonging to a State needs to obtain a prior authorisation from a judge. This judge will only authorise the seizure if (i) the foreign State has “expressively” and “specifically” consented to the seizure of the assets; (ii) the foreign State has specifically allocated those assets to the enforcement of the claim which gives rise to the seizure; and (iii) the assets are located in Belgium and are allocated to an economic or commercial activity.

The Court has now annulled the word ‘specifically’ but has otherwise left the Act intact. Quentin summarises how the Court found that this proviso is not part of international law on State immunity.

Now, picking up where Quentin left: part of applicants’ arguments relate to Brussels I Recast. The argument is made that Belgium with its Act re-introduces exequatur, now that is has been abolished by the Recast. Belgium’s Government seems to argue that the law relating to seizure has public order character and hence is covered by the ordre public exception of the Brussels I Recast Regulation, and that seizure in Belgium which would go against public international customary law on State immunity, along the same lines would be covered by the ordre public exception of the Recast (para A.5.2, p.6).

The Court (at B.29.1 ff, .34 ff) deals with the Brussels I arguments very very succinctly: it refers to Article 41(1) which other than the substantive requirements of title III, makes recognition and enforcement subject to the law of the State of enforcement. The Court also says enforcement is not entirely obstructed: some of the foreign entities’ assets remain subject to seizure; and there are other ways of enforcement other than seizure. Finally the Court suggests that the Brussels I Recast surely must not be applied in a way which would be incompatible with international customary law. By rejecting the suggestion for a prelimary reference to Luxembourg (suggestion made by the Belgian State, unusually), the Court clearly believes that call is not one that has to be made by Luxembourg. Pitty: that would have been an interesting reference.

Again, NML Capital’s action against the Vulture Fund Act is still ongoing, lest I have missed withdrawal. As I noted in my paper, this Act I believe is wanting on various grounds, including some related to the New York Convention and the Brussels I Recast.

Geert.

(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.16, Heading 2.2.16.1.4.

Non lieu à renvoi

Non lieu à renvoi

Vente - Cassation

Mariage - Défaut de consentement - Nullité -
Convention européenne des droits de l'Homme

Appel civil

The Seminar on Private International Law organized since 2007 at the Universidad Complutense of Madrid by Professors Fernández Rozas and De Miguel Asensio is an annual meeting devoted to private international law. This year the Seminar goes to Barcelona, where it will held on October 26 and 27, 2017.

This edition of the Seminar, entitled “Regulating economic activity in the international sphere and freedom of establishment (corporate law, tax law, competition law, private law and arbitration law)”, will deal with the regulation of the economic activity in an international framework and its relationship with the freedom of establishment recognized by EU law. The goal is to bring together specialists in private international law, tax law and commercial law as well as law practitioners in order to analyze the current situation of the regulation of economic activity in Europe.

In addition to this central issue, there will be room for the study of the regulation of economic activity in other geographical areas (America, Asia …), and of arbitration as a fundamental tool both for resolving conflicts between economic operators, as well as between investors and states.

The Seminar welcomes the presentation of papers on any topic related to one of the panels, in Spanish, English or French. A summary (900 words) and a basic bibliography must be submitted to the Scientific Committee before September 15, to this address: rafael.arenas@uab.cat. The Scientific Committee will select the papers to be presented at the Seminar by September 29. The final version must be delivered on October 20 at the latest.

The Seminar will include the following panels:

1. Establishment of Companies (perspective of PIL)

Main speaker: Prof. Dr. Jessica Schmidt, Professor of Civil Law and German, European and International Law of Companies and Capital Markets (University of Bayreuth, Germany)

2. Establishment of Companies (perspective of Commercial Law)

Main speaker: Prof. Dr. Andrés Recalde Castells, Professor of Commercial Law at the Autonomous University of Madrid

3. Tax issues

Main speaker: Prof. Dr. Cristina García Herrera-Blanco, Financial and Tax Law Adviser, Institute of Fiscal Studies

4. Economic law (free competition, unfair competition and administrative regulation of economic activity)

Main speakers: Prof. Dr. Amadeo Petitbó Juan, Professor of Applied Economics; Prof. Dr. Barry Rodger, Professor of Law at Strathclyde University in Glasgow (United Kingdom).

5. Freedom of establishment and private law

Main speaker: Prof. Dr. Gerry Maher, Professor of Law at the University of Edinburgh (UK)

6. Regulation of economic activity and private law outside the EU

Main speaker: to be confirmed

7. Arbitration

Main speaker: Prof. Dr. José Carlos Fernández Rozas, Professor of Private International Law at the Universidad Complutense de Madrid.

L’8 e il 9 giugno 2017 si terrà all’Università di Milano-Bicocca un seminario pratico sul tema della sottrazione internazionale di minori, nel quadro del progetto EU Judiciary Training on Brussels IIa Regulation: from South to East, co-finanziato dalla Commissione europea e guidato da Costanza Honorati.

Intervengono Martina Erb-Klünemann (Tribunale di Hamm), Maria Domenica Maggi (psicologa e giudice onorario presso il Tribunale dei minorenni di Milano), Sara Lembrechts e Katrien Herbots (KeKi – Children’s Right Knowledge Centre di Ghent), Michael Ford (MiKK – International Mediation Centre for Family Conflict and Child Abduction), Costanza Honorati (Univ. Milano-Bicocca), Maria Caterina Baruffi (Univ. Verona), Cristina Gonzalez Beilfuss e Maria Alvarez Torné (Univ. Barcellona), Mirela Zupan (Univ. Osijek), Ivana Kunda (Univ. Rijeka), Agne Limante (Law Institute of Lithuania).

La locandina dell’evento è disponibile qui.

Ergo, Brogsitter, Granarolo...There is a long list of cases in which the CJEU is asked to decide whether a relationship between parties is contractual, with special jurisdiction determined by Article 7(1) of the Brussels I Recast Regulation, or one in tort, subject to Article 7(2) of same.

In C-249/16 Saale Kareda v Stefan Benkö Bot AG opined end of April. The Court is asked to rule on whether a recourse claim brought between jointly and severally liable debtors under a credit agreement constitutes a contractual claim. And if it is, the Court will have to examine whether such an agreement may be classified as an agreement for the provision of services, which will, as the case may be, lead it to determine the place of performance of its characteristic obligation.

I still think that what I dubbed the ancestry or pedigree test of Sharpston AG in Ergo, is a most useful litmus test to distinguish between 7(1) and 7(2):  what is the ancestry of the action, without which the parties concerned would not be finding themselves pleading in a court of law?: she uses ‘centre of gravity’ (‘the centre of gravity of the obligation to indemnify is in the contractual obligation’); ‘rooted in’ (‘the recourse action by one insurer against the other…is rooted in the contracts of insurance’); and ‘intimately bound up’ (‘[the action] is intimately bound up with the two insurers’ contractual obligation‘). (at 62 of her Opinion in Ergo). I am not sure though whether the Court itself follows the test.

Before the Austrian courts, Stefan Benkö, an Austrian national, is bringing a recourse claim against Saale Kareda, an Estonian national and his former partner, seeking payment of EUR 17 145.41 plus interest and costs. While they were living together in Austria, the applicant and the defendant bought a house in 2007 and for that purpose took out three loans totalling EUR 300 000 (‘the loan’) from an Austrian bank. They were both borrowers and the referring court states that they were both jointly and severally liable debtors. Ms Kareda broke up with Mr Benkö, moved back to Estonia, and ceased her loan payments. Being sued for the arrear payments by MR Benko, she now claims that the Landesgericht St. Pölten (Regional Court, St. Pölten), the court seised by the applicant, lacked territorial jurisdiction in so far as the loan was made by an Austrian bank and the place of performance for that loan, the bank’s registered office, is not located in the judicial district of that court.

Is it possible to ‘detach’ from the credit agreement the legal relationships arising between jointly and severally liable debtors following the conclusion of that agreement, or does this form an inseparable whole? (at 28) Bot AG suggests it is the latter and I believe he is right. I agree that it would be artificial, for the purposes of the application of the Brussels I Recast. to separate those legal relationships from the agreement which gave rise to them and on which they are based.

I am less convinced by the reference, at 32 and 33, to the need for consistency between Brussels I Recast and Rome I: regular readers of this blog will not be surprised by this. (But I believe I am fighting a losing battle there). The AG refers to Article 16 of Rome I, entitled ‘Multiple liability’, which provides inter alia that, ‘[i]f a creditor has a claim against several debtors who are liable for the same claim, and one of the debtors has already satisfied the claim in whole or in part, the law governing the debtor’s obligation towards the creditor also governs the debtor’s right to claim recourse from the other debtors’.

Having decided that the issue is contractual, the AG suggests the credit agreement is an agreement for the provision of services, and that in the context of a credit agreement, the characteristic obligation leading to jurisdiction is the actual granting of the sum loaned. The other obligation entailed by such an agreement, namely the borrower’s obligation to repay the sum loaned, exists only through the performance of the service by the lender, as repayment is merely its consequence.

The final element to consider is then the actual place of performance of the characteristic obligation. In the AG’s view, only the place where the creditor has its place of business is capable of ensuring that the rules are highly predictable and of satisfying the objectives of proximity and standardisation pursued by the second indent of Article 7(1)(b) of Regulation No 1215/2012.  That place will be known by the parties from the time of the conclusion of the agreement and will also be the place of the court having the closest connection with that agreement. (at 46).

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.11.2, Heading 2.2.11.2.9