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Strategic Lawsuits Against Public Participation – SLAPPs (I look at them comparatively in my Monash Strategic and Public Interest Litigation Unit, LAW5478) are a well-known tool to silence critics. Based on defamation, they (or the threat with them) aim to shut down the voice of opposition. Not many find the energy, financial resources and nerves to fight a protected libel suit in court.

The EP recently published the study led by Justin Borg-Barthet and carried out by him and fellow researchers at the University of Aberdeen. At the substantive level, distinguishing between SLAPPs and genuine defamation suits is not straightforward. As Justin et al point out, there is an important private international law element to the suits, too. Clearly, a claimant will wish to sue in a claimant-friendly libel environment. Moreover, where a deep-pocketed claimant can sue in various jurisdictions simultaneously, this compounds the threat.

The Brussels and Lugano regime is particularly suited to the use of SLAPPs as a result of the CJEU case-law on Article 7(2) forum delicti. The Handlungsort /Erfolgort distinction as such already tends to add jurisdictional gateways. In more recent years this has been compounded by the additional ‘centre of interests’ gateway per CJEU e-Date and Bolagsupplysningen – even if this was recently somewhat contained by the Court in Mittelbayerischer Verlag. As I have flagged before, Brussels Ia’s DNA is not supportive of disciplining abusive forum shopping, as illustrated ia in competition law and intellectual property law cases.

For these reasons, the report (Heading 4, p.33 ff) suggests dropping the availability of Article 7(2) and sticking to Article 4 domicile jurisdiction, supplemented with (unlikely) choice of court.

The European Parliament more than the European Commission has picked up the defamation issues both for BIa and for applicable law under Rome II (from which the issue is hitherto exempt; the report reviews the applicable law issues, too). It remains to be seen whether with this report in hand, Parliament will manage to encourage the EC to pick up the baton.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.431 ff, 4.24 ff.

 

Blanchiment - Fraude fiscale

Contrat de travail - rupture

Bail commercial

Fondazione Cassa di Risparmio di Pesaro e.a. / Commission
Droit institutionnel
La résolution de Banca delle Marche par les autorités italiennes a été essentiellement déterminée par sa défaillance

In a series of posts published at the Kluwer Arbitration Blog, Gary Born argues that States Should Not Ratify, and Should Instead Denounce, the Hague Choice-Of-Court Agreements Convention.

At the invitation of the Editors of the EAPIL Blog, Trevor Hartley, Professor emeritus at the London School of Economics, replies.

Gary Born starts by saying that the 2005 Hague Choice-of-Court Convention gives choice-of-court agreements the same enforceability and effect as arbitration agreements. This, he argues, is wrong because, while the parties to an arbitration agreement can choose the individual arbitrators, the parties to a choice-of-court agreement can only choose the country, or the court, from which the judges will be drawn: they cannot choose the individual judges. The reason he finds this objectionable is that the judges in many countries are corrupt or incompetent. He cites various statistics to show this. He names a number of countries which he says are especially bad: Russia, China, Venezuela, Iran, the Congo and Nicaragua. However, none of these countries is a Party to the Hague Convention; so choice-of-court agreements designating their courts would not be covered.

There can be no doubt that corrupt, biased or incompetent judges do exist, as do corrupt, biased or incompetent arbitrators. However, even though the parties to a choice-of-court agreement cannot choose the individual judges who will hear their case, they can choose the country the courts of which will hear it. They can even choose the particular court: Article 3(a) of the Convention. And since there are many countries where the judges are not corrupt, biased or incompetent—several EU countries, as well as the United Kingdom, spring to mind—the parties can, if they choose, ensure that the judges hearing their case are unbiased, competent and impartial. If the parties insist on choosing the courts of a country where judicial corruption is a problem, they have only themselves to blame.

Moreover, it cannot be said that the Convention does not deal with this problem. Article 6(c) provides that the obligation of a court of a Contracting State other than that of the chosen court to suspend or dismiss proceedings covered by an exclusive choice-of-court agreement does not apply  if giving effect to the agreement ‘would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised.’ While Article 9(e) provides that recognition and enforcement of  a judgment given by a court of a Contracting State designated in an exclusive choice-of-court agreement may be refused if it would be ‘manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State.’

Born tries to argue that the grounds for refusing to recognize a judgment under the Hague Convention are insufficient compared with those applicable to arbitration awards under the New York Convention. Little would be gained by a detailed analysis of the two sets of provisions. However, it can be said that the grounds in the Hague Convention are wide ranging—Article 9 has seven paragraphs, each setting out a different ground—and they provide ample opportunities for any court willing to use them to refuse recognition. The same courts will decide on recognition of judgments under the Hague Convention as on the recognition of arbitration awards under the New York Convention. There is no reason to believe that they will be less willing to refuse recognition in the former case than in the latter. In any event, if parties think that their rights will be better protected under an arbitration agreement than under a choice-of-court agreement, there is nothing to stop them from opting for the former. To deprive them of that choice by denouncing the Hague Convention would not enhance party autonomy: it would seriously limit it.

It should finally be said that the provisions on recognition and enforcement in the Hague Convention are very similar to those of the Brussels Regulation and the common law. The Brussels Regulation, rather than the New York Convention, was in fact the model for the Hague Convention. The most important difference between the two is that the grounds for non-recognition are considerably more extensive under the Hague Convention than under the Brussels Regulation. Both the Brussels Regulation and the common law seem to have operated satisfactorily for many years now.

Au cœur d’une controverse sur le (dys)fonctionnement du guichet unique, la Cour de justice de l’Union européenne réaffirme la répartition des compétences entre les autorités chef de file et concernées prévue par le RGPD. L’obligation de coopération loyale appliquée à l’exercice de leurs pouvoirs doit cependant éviter qu’une interprétation trop littérale du texte ne permette d’en trahir l’esprit.

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The ERC Building EU Civil Justice team in Rotterdam is running a series of seminars, covering a variety of topics in the field of European civil justice and international litigation.

On Thursday 1 July, 16-18 hrs CET, the webinar is dedicated to the topic Representing Future Generations: Private Law aspects of Climate Change Litigation. Speakers are Chantal Mak, Geert Van Calster and Sanne Biesmans, and the panel is moderated by Jos Hoevenaars. They will address the relationship between climate litigation, fundamental rights and the role of European judges; private international law aspects of climate litigation and strategic aspects; and liability aspects of climate litigation and implications of the recent Dutch Shell judgment (see our earlier blogpost).

Participation is free of charge. You can register here at Eventbrite.

The two remaining sessions of the series are dedicated to:

• The Arbitralization of Courts – Friday, 2 July (09:30-11:30 CET), with Georgia Antonopoulou and Masood Ahmed as speakers and moderated by Xandra Kramer (register)

• European Civil Justice in Transition: Past, Present & Future – Thursday 15 July  (15.30-17.30 CET) with Alan Uzelac, Burkhard Hess, John Sorabji and Eva Storskrubb, moderated by Alexandre Biard and Xandra Kramer (register)

Cour d'appel, 4 mai 2018

Tribunal d'instance de Melun, 4 avril 2019

Professions médicales et paramédicales

Protection de l'environnement