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The following announcement has been kindly provided by Professor Dr. Christoph Kumpan, University of Halle-Wittenberg:

Professor Dr. Christoph Kumpan, University of Halle-Wittenberg, is looking to hire a highly skilled and motivated individual to work as a part-time (50%) research assistant beginning May 2016. Applications should be submitted no later than April 15, 2016.

The position will entail close collaboration on a number of new and ongoing projects, focusing especially on research on private law, international private law and business law.
The duties include the support in research and teaching in private law and private international law, as well as teaching your own classes (2 hours per week, in English or German), in particular in the areas of private law and/or private international law.

This position is expected to last three years. The work location is Halle, Germany, a city close to Berlin, Germany.

Education:

a university law degree (e.g., JD)

Competencies:

knowledge of English required, preferably also Spanish or French
knowledge of German of advantage
knowledge of private international law
ability to work in a team as well as independently

Hours/week: 20
Pay Frequency: Monthly
Payment: around 1.700 Euro (approx. 1.200 Euro net) per month
Possibility to obtain a doctoral degree (if faculty’s requirements are met)

Required job seeker documents: resume, cover letter, complete transcripts.
The cover letter should include: A brief description of your career/study goals. A brief description of any prior research assistance experience, or any other experience with legal research (e.g., thesis).

The University is committed to a policy of equal opportunity. Candidates with disabilities will be preferred in cases where they have the same qualifications as others.

If you are interested in this position, please send an application with the reference no. “Reg.-Nr. 3-1107/16-H” by April 15, 2016, preferably, via email to sekretariat.kumpan@jura.uni-halle.de

or to:
Martin-Luther-Universität Halle-Wittenberg, Juristische und Wirtschaftswissenschaftliche Fakultät, Juristischer Bereich, Lehrstuhl für Bürgerliches Recht, Wirtschaftsrecht, Internationales Privatrecht und Rechtsvergleichung, Universitätsplatz 3-5, 06099 Halle (Saale).

For more information (in German) see http://www.verwaltung.uni-halle.de/dezern3/Ausschr/16_310.pdf.
For further enquiries, please contact Professor Dr. Kumpan: sekretariat.kumpan@jura.uni-halle.de

Un État membre est tenu de modifier sa législation lorsqu’une décision de la Commission européenne relative à une aide d’État illicite n’a pas été contestée devant les juridictions de l’Union européenne.

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Editors Andrea Bjorklund, John Gaffney, Fabien Gélinas and Herfried Wöss have prepared a new TDM special, which undertakes a broad-ranging study of CETA as an indicator of the evolution of EU trade and investment policy and of the kinds of tensions and innovations that can be expected to arise as a new generation of twenty-first century trade and investment agreements emerges. The special starts off with an introduction by Professor Pieter Jan Kuijper; The Honourable L. Yves Fortier and Judge Stephen Schwebel.

You can view the table of contents of the TDM CETA special here

As many will know, in September 2015 the University of Cambridge hosted the Journal of Private International Law Conference (see here).  Video of the four plenary sessions has now been uploaded to YouTube.  The videos can be accessed through these links: first plenary, second plenary, third plenary, fourth plenary.

Pourvoi c/ Cour d'appel de Paris, 3 février 2016

Pourvoi c/ Cour d'appel d'Aix en Provence, 5e chambre des appels correctionnels, 9 juin 2015

RPC and Sarah Shaul it seems, like me, are hoovering up database backlog – once again thank you to their excellent blog for alerting me to Banque Cantonale de Genève v Polevent. Other than the direct impact for the interpretation of Rome II‘s Article 10, and its relation with Article 4’s general rule, an important lesson from the case to me seems to be, yet again, the relevance of the articulation of claims, for the determination of jurisdiction.

Facs are as follows (at 2 ff). Claimant (“BCGE”) is a bank in Geneva. On 24 March 2104 a man calling himself Mr. Dumas telephoned BCGE and asked to speak to Yvan Nicolet of the accounting department. He was not in the office and so the call was taken by Jacqueline Konrad-Bertherin. Mr. Dumas asked her to send a confidential message to what he said was the private mail address of Eric Bourgeaux, the deputy CEO of BCGE. She did so and received a reply from someone claiming to be Mr. Bourgeaux instructing her to pay Euro 6,870,058 from BCGE to the Natwest Bank in London in favour of Polevent Limited. She did so. She believed she had been instructed to do so by Mr. Bourgeaux; but she had not been. The fraud was discovered and repayment was requested later that day.

Shortly before the fraud Natwest had been advised of a freezing order against Polevent in favour of an Italian company Enoi SpA (“Enoi”). The funds were therefore frozen in Polevent’s account with Natwest. BCGE has claimed damages from Polevent for deceit. BCGE accepts that that claim is governed by the law of Geneva. It has also advanced a claim against Polevent in restitution on the basis that the sum was paid by mistake. It claims that since Polevent must have realised that the sum was paid by mistake the conscience of Polevent was affected such that a constructive trust arises thereby providing BCGE with a proprietary claim in respect of the frozen funds. BCGE says that this proprietary claim is governed by English law.

Enoi is another creditor of Polevent. Enoi maintains that BCGE’s claim for restitution, in common with the claim is in deceit, is governed by the law of Geneva which does not recognise a proprietary claim. The resulting dispute is therefore between two creditors of Polevent. That company is in liquidation and has taken no part in this dispute.

The only preliminary issue which the High Court was asked to adjudicate on is worth repeating in full:

“On the basis of the facts as pleaded in the Amended Particulars of Claim and on the basis that the claim set out at paragraph 13 of the Amended particulars of Claim is governed by the law of Geneva, are the claims set out at paragraph 15 of the Amended particulars of Claim governed by English law or by the law of Geneva ? ”

One can appreciate why two different claims were formulated here.

For the claim in damages for deceit, BCGE accept Geneva law applies. The claim for restitution on the basis of unjust enrichment, however, is covered in its view by Article 10(3) Rome II: the law of the place in which the unjust enrichment took place, this being England, hence allowing for the existence of a constructive trust and priority in the pecking order following Polevent’s insolvency.

Enoi argue that the claim in restitution, like the claim in damages, is covered by the law of Geneva: at 9:

The submission of counsel for Enoi is that the law governing the claim in restitution is the law of Geneva by reason of Article 4(1) of Rome II. The claim arises out of the tort/delict of fraud and so the governing law is that of the place in which the damage occurred, namely, Geneva. Alternatively, the governing law is the law of Geneva pursuant to Article 10(1) on the grounds that the unjust enrichment concerns a relationship arising out of a tort/delict such that the governing law is that which governs that relationship, namely, the law of Geneva. In the further alternative the governing law is the law of Geneva pursuant to Article 10(4) on the grounds that the obligation arising out of the unjust enrichment is manifestly more closely connected with Geneva.

Both parties of course reverse engineer their governing law arguments: being aware of the attraction of one State’s laws over the other, counsel brief is to convince the court that the matter is characterised so that it leads to the warranted applicable law.

Enoi suggest that BCGE in reality have one claim only: one in fraud, a tort, it argues, from which the claim in unjust enrichment follows in a dependent fashion. Teare J disagrees (at 13). A claim in restitution need not be fault-based. It is a separate claim, to which Article 10’s regime applies (in the end leading to a finding of English law).

The judgment is in fact quite short. Its crucial implication to me would seem to be that BCGE has won the day by formulating two separate heads of action. Teare J acknowledges that his view may be an ‘unduly English law’ view, in other words, that he read the formulation of two claims at face value, as being two separate claims, because English law recognises non-fault based unjust enrichment. Regardless of the fact that other States, including European States, do so too, the obvious question is whether the EU’s qualification would be the same. The concept of unjust enrichment, like the concept of tort, necessarily needs to be an ‘autonomous’ one. Yet without much guidance in the preparatory works of Rome II on this concept, who can blame national law for filling in the blanks?

Geert.

(Handbook EU Private International Law, 2nd ed 2016, Chapter 4, Heading 4.7).

La Commission européenne a présenté, le 2 mars 2016, une proposition de décision autorisant une coopération renforcée dans le domaine de la compétence, du droit applicable et de la reconnaissance et l’exécution des décisions en matière de régimes patrimoniaux.

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Thomas Bauermann, Der Anknüpfungsgegenstand im europäischen Internationalen Lauterkeitsrecht, Mohr Siebeck, 2015, ISBN 9783161539084, pp. 332, Euro 69.

[Dal sito dell’editore] – For the first time, Article 6 of the Rome II Regulation contains uniform European provisions on the private international law of unfair competition. This poses particular problems since there are huge differences in EU member states’ understanding of unfair competition law. Against this background, Thomas Bauermann examines the autonomous European concept of unfair competition and its characteristics.

Maggiori informazioni disponibili a questo indirizzo.

Il 14 e il 15 aprile 2016 si terrà il decimo seminario internazionale di diritto internazionale privato della Universidad Complutense di Madrid.

Si parlerà degli sviluppi del diritto internazionale privato spagnolo, delle recenti codificazioni nazionali del diritto internazionale privato e del diritto internazionale privato dell’Unione europea.

Interverranno, fra gli altri, Miguel Virgós Soriano (Univ. Autónoma de Madrid), Bertrand Ancel (Univ. Paris II-Assas), Alegría Borrás (Univ. Barcellona), Jürgen Basedow (Max Planck Institute for Comparative and International Private Law), Christian Heinze (Univ. Leibniz, Hannover), Elena D’Alessandro (Univ. Torino), Roberto Baratta (Univ. Macerata) e Thalia Kruger (Univ. Antwerpen).

Il programma completo ed ulteriori informazioni sono reperibili a questo indirizzo.

Steadman Jean, Sprague Steven, Common Law Contract Law. A Practical Guide for the Civil Law Lawyer, Wolters Kluwer, 2015, pp. 896, ISBN 9788821751547, Euro 81.

[Dal sito dell’editore] – Il testo costituisce una guida pratica alla disciplina dei contratti nell’ambito del sistema common law e si rivolge a tutti gli operatori del settore legale che, per loro origine e formazione, fanno riferimento al sistema del diritto civile e si occupano di operazioni, transazioni e contratti regolati dal diritto inglese o americano qualunque sia l’oggetto del contratto o la nazionalità delle parti. Vengono analizzati gli istituti fondamentali del sistema common law in Inghilterra, Galles e Stati Uniti d’America, evidenziandone i tratti comuni e fornendo una dettagliata spiegazione delle principali differenze esistenti tra i due sistemi giuridici. Numerosi esempi consentono al lettore di meglio comprendere come la prassi contrattualistica trovi reale applicazione nella quotidiana pratica legale. Ogni capitolo è corredato da specifiche note esplicative. Sono presenti un dettagliato glossario e una checklist delle principali tipologie contrattuali.

Ulteriori informazioni sono disponibili a questo indirizzo.

Le Royaume-Uni a violé les dispositions de la Convention relatives au droit à un procès équitable en ne permettant pas à une personne d’être assistée d’un avocat devant le juge qui l’a placé en détention.

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Les statistiques judiciaires pour l’année 2015, publiées le 18 mars 2016, révèlent des nouveaux chiffres records des activités de la Cour de justice de l’Union européenne dans son ensemble. 

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The Max Planck Institute Luxembourg, heading an international consortium, is undertaking a European Commission-funded Study (JUST/2014/RCON/PR/CIVI/0082) on the laws of national civil procedure of the 28 Member States and the enforcement of European Union law.

The Study has two strands: the first deals with the impact of national civil procedure on mutual trust and the free circulation of judgments within the 28 Member States of the EU and the second deals with the impact of national civil procedure on the enforcement of consumer rights derived from EU law. Accordingly, the Consortium has prepared two online tools, aimed at gathering information, opinions and experiences (both available in six language versions):

• Questionnaire focusing on the impact of national procedures on mutual trust and the free circulation of judgments:
  English
  French
  German
  Italian
  Polish
  Spanish

• Questionnaire focusing on the impact of national procedures on the enforcement of EU consumer rights:
  English
  French
  German
  Italian
  Polish
  Spanish

We would encourage consumers, lawyers, judges, academics, consumer protection associations, businesses, business/trade associations, dispute resolution facilitators, and those working in other legal professions (including bailiffs, court clerks, registrars, notaries and so on) to respond to the questionnaire for one or both strands of the study.

If you agree, and wish to share more information with us on any of the topics covered by the Study, it will be possible to provide us with your contact details at the end of the survey.

Please feel free to share widely the links to this webpage and to the questionnaires within your own networks.

Indemnisation des victimes d'infraction

Pourvoi c/ Cour d'appel d'Aix en Provence, 1re chambre B, 24 septembre 2015

Tribunal de grande instance de Rouen, 15 mars 2016

Tribunal de Grande instance de Nice, 1re chambre, 17 mars 2016

I have reported before on various schemes of arrangement which the English Courts gave the go-ahead even when they concerned non-English companies (I should flag that in two of those, Apcoa and Van Gansewinkel, I acted as expert). Thank you Arie van Hoe for bringing Indah Kiat to my attention some weeks ago.

Indah Kiat is a Dutch BV seeking an order convening a single meeting of its scheme creditors to consider and if thought fit approve a scheme of arrangement pursuant to Part 26 of the Companies Act 2006. The application is strenuously opposed by one of the Scheme Creditors, APP Investment Opportunity LLC (“APPIO”), which contests the jurisdiction of the court to entertain or sanction the Scheme. Such opposition is different from the other schemes which I mention in my previous postings.

In the first instance, APPIO simply seeks an adjournment of the Scheme Company’s application on the grounds that inadequate notice has been given to Scheme Creditors. However, it also raises a significant number of other issues concerning the adequacy of the evidence and disclosure by the Scheme Company, together with questions concerning the procedure and scope of the court’s jurisdiction to sanction creditor schemes for foreign companies in relation to debts governed by foreign law.

The Scheme Company is a special purpose vehicle which was incorporated for financing purposes in the Netherlands. It sought the COMI way to enable English courts to obtain jurisdiction over the scheme. English jurisdiction, required to carry out the Scheme, usually rests on either one of two legs: COMI, or making English law the governing law of the underlying credit agreements (if necessary by changing that governing law en route).

The COMI route to jurisdiction in many ways defies the proverbial impossibility of having one’s cake and eating it. For the establishment of a company’s centre of main interests, the courts and practice tend to refer to the EU’s Insolvency Regulation. Yet that schemes of arrangement do not fall under the Insolvency Regulation is a crucial part of the forum shopping involved in attracting restructuring advice to the English legal market. This is especially so for the aforementioned second route to jurisdiction (a change in governing law). however it is also true for the first form. Snowden J refers to that at para 85-86 of his judgment.

Indah Kiat has effected its change of COMI (rebutting the presumption of COMI being at its registered seat) by notifying its creditors via a number of clearing houses for the Notes concerned. APPIO contest that this notification sufficed for change in COMI. There are not enough relevant facts in the judgment to consider this objection thoroughly, however APPIO’s misgivings would not seem entirely implausible.

Snowden J notes that whilst protesting the jurisdiction, in the first instance APPIO simply seeks an adjournment of the convening hearing on the grounds that inadequate notice has been given of it to Scheme Creditors. It contends that given the complex nature of the Scheme and the factual background, there is no justification for an urgent hearing of the application. The Court agreed and the convening hearing (different from the sanction hearing, which follows later) was adjourned until 3 March. Snowden J further gave extensive argument obiter as to why the Scheme’s information was insufficient in the form as it stood at the hearing.

He then revisits (82 ff) the jurisdictional issue, which I have already signalled above: what role exactly COMI should play, how the Brussels I recast intervenes, what the impact is of likely recognition of the sanction (if any) in Indonesia, The Netherlands, and the US; and what if any role the relevant US judgments in the case should play: there will be plenty of points for discussion at the convening and sanction hearing. (I mentioned above that the convening hearing was scheduled around 3 March; I have not heard from the case since however if anyone has, please do let me know).

I do not think Indah Kiat has made the jurisdictional hurdle higher for Schemes of Arrangement involving foreign companies. Rather, the fierce opposition of an important creditor has brought jurisdictional issues into sharper perspective than had been the case before.

Geert.

(Handbook of) EU Private International Law, Chapter 5, Heading 5.4.2).