By the Permanent Bureau of the Hague Conference on Private International Law
On 12 September 1893, Tobias Asser, Dutch Jurist, Scholar and Statesman, realised a vision: he opened the first Session of the Hague Conference on Private International Law (HCCH). Today, exactly 125 years later, the HCCH celebrates Asser’s vision and the occasion of this First Session with a solemn ceremony in the presence of his Majesty The King Willem-Alexander of the Netherlands.
Believing passionately that strong legal frameworks governing private cross-border interactions among people and businesses not only make a life across borders easier, but are also apt to promote peace and justice globally, Asser conceived the HCCH as multilateral platform for dialogue, discussion, negotiation and collaboration. Asser organised this first Session to canvass issues relating to general civil procedure and jurisdiction. More specifically, delegates, who hailed from 13 States, dealt with subject matters comprising marriage, the form of documents, inheritance/wills/gifts and civil procedure. The First Session was a great success producing the Hague Convention on Civil Procedure. This instrument was adopted during the Second Session in 1894 and signed on 14 November 1896. Its entry into force on 23 May 1899 coincided with the first Hague Peace Conference – another of Asser’s great visions. The global community honoured the enormous value of Asser’s vision in 1911, bestowing upon him the Nobel Peace Prize for instigating the First Session of the Hague Conference on Private International Law to “prepare the ground for conventions which would establish uniformity in international private law and thus lead to greater public security and justice in international relations.” (J G Løvland, Chairman of the Nobel Committee, Presentation Speech, Oslo, 10 December 1911).
Since this First Session, the HCCH has gone forth to develop an array of private international law instruments in the areas of international child protection and family law, international civil procedure and legal cooperation as well as international commercial and finance law. It is the pre-eminent international organisation for the development of innovative, global solutions in private international law. The HCCH remains steeped in Asser’s vision. It continues to connect, protect, and cooperate. Since 1893.
The Final Conference of the Jean Monnet Module on European Civil Procedure will take place in Milan on the 4th and 5th October.
Details about the event and the conference agenda can be found here.
Advocate-General Bot opined on 6 September in C-386/17 Liberato. (Not as yet available in English). The case is slightly complicated by the application of not just former Regulation 44/2001 (Brussels I) but indeed a jurisdictional rule in it (5(2)) on maintenance obligations, which even in Brussels I had been scrapped following the introduction of the Brussels IIa Regulation.
The Opinion is perhaps slightly more lengthy than warranted. Given both the Brussels I and now the Brussels I Recast specific provisions on refusal of recognition and enforcement, it is no surprise that the AG should advise that a wong application by a court of a Member State (here: Romania) of the lis alibi pendens rules, does not justify refusal of recognition by other courts in the EU: the lis alibi pendens rules do not feature in the very limited list of possible reasons for refusal (which at the jurisdictional level lists only the protected categories, and the exclusive jurisdictional rules of Article 24), and it was already clear that misapplication of jurisdictional rules do not qualify for the ordre public exception.
It would not hurt having the CJEU confirm same.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.3, 2.2.16.1.4.
I have reported earlier on Deutsche Bank AG v Sebastian Holdings Inc & Alexander Vik [2017] EWHC 459 and Dennis v TAG Group [2017] EWHC 919 (Ch).
The Court of Appeal has now confirmed in [2018] EWCA Civ 2011 Vik v Deutsche Bank that permission for service out of jurisdiction is not required for committal proceedings since the (now) Article 24(5) rule applies regardless of domicile of the parties. See my posting on Dar Al Arkan and the one on Dennis .
Gross LJ in Section IV, which in subsidiary fashion discusses the Brussels issue, confirms applicability to non-EU domicileds however without referring to recital 14, which confirms verbatim that indeed non-EU domicile of the defendants is not relevant for the application of Article 24.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.8.
19-20 November 2018, Civil Justice Conference in Rotterdam – Registration is open.
As announced earlier, the conference Challenge Accepted! Exploring Pathways to Civil Justice in Europe will take place at Erasmus School of Law on 19-20 November. You are warmly invited to join us. Find the info and a call for posters below. See also our project website www.euciviljustice.eu.
Access to civil justice is of paramount importance for enforcing rights of citizens and ensuring the rule of law. Key issues in the current efforts to improve access to justice at the EU and national levels regard the digitisation of justice and the use of artificial intelligence in dispute resolution, the privatisation of justice and the multiplication of alternative dispute resolution schemes, the increased possibility of self-representation, and the ever-increasing specialisation of court systems. Each of these trends greatly influences the emerging EU civil justice system but also raises a number of questions and doubts. On 19 and 20 November 2018, policymakers, practitioners, academics from all over Europe will meet in Rotterdam to exchange and reflect on innovating pathways to civil Justice. Together, we will work on defining a sustainable framework for a 21st century EU civil justice system.
The flyer can be found here. More information about the programme and registration is available here.
Young researchers will also have the possibility to present and discuss their work during a Poster Presentation that will take place on Tuesday 20 November. Posters should focus on the topics of the conference, and show originality. We invite PhD researchers or young academics to present their research in a poster format. The three best posters will be awarded a prize during the closing cocktail.
More information on submitting a poster proposal can be found here.
This conference is organised by Erasmus School of Law at Rotterdam University under the ERC project ‘Building EU Civil Justice’ (www.euciviljustice.eu).
For more information, do not hesitate to contact us at hoevenaars@law.eur.nl (Jos) or biard@law.eur.nl (Alexandre).
By Prof. Dr. Peter Mankowski, Universität Hamburg
Sometimes the unexpected simply happens. Rome I aficionados will remember that the entire Rome I project was on the brink of failure since Member States could not agree on the only seemingly technical and arcane issue of the law applicable to the third-party effects of assignments of claims. An agreement to disagree saved the project in the last minute, back then. Of course, this did not make the issue vanish – and this issues concerns billion euro-markets in the financial industry. In the spring of this year the Commission finally ventured to table a Proposal COM (2018) 96 final for a separate Regulation. This was the result of extensive preparation – and does yet deviate in important respects from the majority results reached in a very prominently staffed expert commission. The Commission proposes a compromise and combined model. Regardless of the degree to which one agrees or disagrees with this proposal (for discussion see Peter Mankowski, Recht der Internationalen Wirtschaft [RIW] 2018, 488; Andrew Dickinson, IPRax 2018, 337; Michael F. Müller, Zeitschrift für Europäisches Wirtschaftsrecht [EuZW] 2018, 522; Leplat, Petites Affiches n° 155, 3 août 2018, 3), one thing should be clear: The proposed model does definitely not form part of the still lex lata.
And now enter the surprise guest. Astonishingly, for ten years after the implementation of Rome I not a single reference to the CJEU had been made on the relevance which Art. 14 Rome I might have in the said regard. But once the Proposal is out, the Oberlandesgericht Saarbrücken (decision of 8 August 2018, case 4 U 109/17) simply did it. The decision is excellently structured and well researched. The questions submitted to the CJEU are pin-point accurate. They follow a strict line. In the author’s translation they read:
Multiple assignments of the same claim by the same assignor are particularly a field where applying the law of the assignor’s habitual residence scores and applying the lex causae of the claim assigned fares not too badly whereas applying the law governing the relation between assignor and assignee fails.
But the more interesting question of course is whether the recent reference will interfere with the progress which the Commission Proposal might make. Will Council and Parliament wait for the CJEU to point into any direction for the lex lata? And if the CJEU will utter an opinion as to substance, which influence will it exert on the substance of a possible lex ferenda?
If one dares to employ the crystal maze and to conduct some Kirchberg astrology the most likely outcome of the reference procedure might be that the CJEU will answer the first and third questions submitted in the negative thus rendering any answer to the second and fourth questions obsolete. In the light of the drafting history how Art. 14 Rome I Regulation was rescued in the last minute (see the dramatic account by the Dutch delegate, Pauline van der Grinten, in: Westrik/van der Weide (eds.), Party Autonomy in International Property Law [2011] p. 145, 154-161) this would be a sound way out for the CJEU leaving all liberty and leeway possible for Commission, Council and Parliament.
In this post I, unusually, offer questions rather than tentative answers. I hope you’ll enjoy the pondering and of course I have ideas of my own on all of these issues. Thank you Michiel Poesen for alerting me to Carles Puigdemont et al’s case in the Belgian civil courts.
The case is not about trying to employ the Belgian courts to have a Spanish Supreme Court judge removed from the case. (Contrary to what De Standaard report in their title – in an otherwise informative piece). Pablo Llarena had commented on the case (specifically: rejecting an argument raised by the defence) at an academic conference. Rather, as I understand the case (public detail is scant), applicants suggest the alleged violation of impartiality infringes their right to such impartiality which in Belgium at least, is a civil right, constitutionally guaranteed.
The case therefore is one in tort. The exact request to the court is as yet unknown: provisional measures? damages? One assumes the very finding by a Belgian court of a finding of partiality and hence infringement of fundamental rights, will be employed in any future trials in Spain.
So far a little context. Here are the questions:
These are the issues I suspect will be of some relevance in the conflicts field. Happy pondering.
Geert.
Many of you will have already seen (e.g. via Giesela Ruehl) the German Supreme Court (Bundesgerichtshof – BGH)’s refusal to recognise and enforce a Polish judgment under the Brussels I Regulation (application was made of Brussels I but the Recast on this issue has not materially changed). The BGH argued that enforcement would violate German public policy, notable freedom of speech and freedom of the press as embodied in the German Constitution.
Giesala has the necessary background. Crux of the refusal seemed to be that the Court found that to require ZDF to publish by way of a correction /clarification (a mechanism present in all Western European media laws), a text drafted by someone else as its own opinion would violate ZDF’s fundamental rights.
Refusal of course is rare and in this case, too, one can have misgivings about its application. The case however cannot be decoupled from the extremely strong sentiment for freedom of speech under German law, for obvious reasons, and the recent controversy surrounding the Polish law banning the use of the phrase ‘Polish concentration camps’.
I am very pleased to have been given approval by professor Burkhard Hess to publish the succinct comment on the case which he had sent me when the judgment was issued. I have included it below.
Geert.
European private international law, second ed. 2016, Chapter 2, 2.2.16.1.1, 2.2.16.1.4
The German Federal Civil Court rejects the recognition of a Polish judgment in a defamation case under the Brussels I Regulation for violation of public policy
Burkhard Hess, Max Planck Institute Luxembourg
In 2013, the German broadcasting company ZDF (a public body) broadcast a film about Konzentrationcamps. In the film, it was (incorrectly) stated that Auschwitz and Majdanek were “Polish extermination camps”. Further to the protests made by the Polish embassy in Berlin, ZDF introduced the necessary changes in the film and issued an official apology. However, a former inmate of the KZ, brought a civil lawsuit in Poland claiming violation of his personality rights. With his claim he sought remedy in the form of the broadcasting company (ZDF) publishing on its Internet home page both a declaration that the history of the Polish people had been falsified in the film and a statement of apology. Ultimately, the Cracow Court of Appeal ordered the publication of the declaration on the company’s home page. While ZDF published the text on its website visibly for one month, it did not post it on its home page.
Consequently, the plaintiff sought the recognition of the Polish judgment in Germany under the Brussels I Regulation. However, the German Federal Court denied the request for recognition on the grounds that it would infringe on German public policy (article 34 No 1 Regulation (EU) 44/2001). In its ruling, the Court referred to the freedom of the press and of speech (article 5 of the Constitution) and to the case-law of the Constitutional Court. The Court stated that the facts had been incorrectly represented in the film. However, it held that, under German law, ordering a declaration of apology qualifies as ordering a declaration of opinion (Meinungsäusserung) and that, according to the fundamental freedom of free speech, nobody can be obliged to make a declaration which does not correspond to his or her own opinion (the right to reply is different as it clearly states that the reply is made by the person entitled to the reply). As a result, the Polish judgment was not recognized.
BGH, 19 July 2018, IX ZB 10/18, The judgment can be downloaded here.
To my knowledge, this is one of the very rare cases where a foreign judgment was refused recognition in Germany under article 34 no 1 of the Brussels I Regulation (now article 45 (1) (a) Brussels Ibis Regulation) because substantive public policy was infringed.
Speaking frankly, I’m not convinced by the decision. Of course, the text which the ZDF, according to the Cracow court, had to make as its own statement represented a so-called expression of opinion. Its imposition is not permissible under German constitutional law: requiring the ZDF-television to making this expression its own would have amounted to an infringement of the freedom of speech as guaranteed by article 5 of the Constitution.
However, it corresponds to well settled principles of the recognition of judgments to substitute the operative part of the foreign judgment by a formula which comes close to it. This (positive) option is totally missing in the formalistic judgment of the Federal Civil Court. In this respect I’m wondering why the BGH did not simply order that the operative part of the Polish judgment as such was declared enforceable. My proposed wording of a declaration of enforceability would be drafted as follows: “According to the judgment of the Appellate Court of Krakow the ZDF is required to publish the following decision:…”
This solution would have solved the problem: No constitutional conflict would have arisen and the political issues would have mitigated. Seen from that perspective, the judgment appears as a missed opportunity.
Alex Mills, University College London, has written a book on party autonomy in private international law which has just been published by Cambridge University Press. The author has kindly provided us with the following summary:
This book provides an unprecedented analysis and appraisal of party autonomy in private international law – the power of private parties to enter into agreements as to the forum in which their disputes will be resolved or the law which governs their legal relationships. Such agreements have become an increasingly important part of cross-border legal relations, but many aspects of party autonomy remain controversial and contested. This book includes a detailed exploration of the historical origins of party autonomy as well as its various theoretical justifications. It also provides an in-depth comparative study of the rules governing party autonomy in the European Union, the United States, common law systems, and in international codifications, with particular consideration of some other important jurisdictions including China and Brazil. It examines party autonomy in both choice of forum and choice of law, including arbitration agreements and choice of non-state law. It also examines the effectiveness of party choice of forum and law not only for contractual disputes, but also for a variety of non-contractual legal relations.
The book focuses its analysis around five questions of consistency in party autonomy – consistency between party autonomy in choice of forum and choice of law, consistency in the treatment of party autonomy in contractual and non-contractual relations, consistency between the choice of state and non-state forums or law, consistency between party autonomy in theory and practice, and consistency between different legal systems in relation to the effects of (and limits on) exercises of party autonomy. This analysis demonstrates that while an apparent consensus around the core principle of party autonomy has emerged, its coherence as a doctrine is open to question as there remains significant variation in practice across its various facets and between legal systems.
More information is available here.
Sometimes I post a little late. Rarely outrageously overdue. Yet Four Seasons Holdings Inc v Brownlie [2017] UKSC 80 needs to be reported on the blog for it is rather important, firstly, with respect to the topical interest in pursuing holding companies for actions (or lack fo them) committed by affiliated companies. And secondly, for jurisdiction in tort, to what degree jurisdiction on the basis of injury sustained abroad, can qualify as lasting damage in the UK. Findings on the latter issue were obiter therefore they need to be treated with caution.
All five judges issued a judgment, with a 3 to 2 majority eventually holding (again: obiter) that jurisdiction in tort in England against non-England based defendants, can go ahead on the basis of indirect damage – albeit in such cases it might still falter on forum non conveniens grounds.
Sumption J, outvoted on the indirect damage issue, wrote the most lengthy judgment.
I tweeted the ruling mid December. Students of international law will of course appreciate the personal background to the case, particularly if you have ever had the chance to be taught by prof Sir Ian Brownlie – Philippe Sands’ obituary is here.
Sir Ian died in a car accident while on holiday with his family in Egypt. His wife was also injured. She brought proceedings seeking: (i) damages for her own personal injuries, (ii) damages under the Law Reform (Miscellaneous Provisions) Act 1934 as Sir Ian’s executrix, and (iii) damages for her bereavement and loss of dependency under the Fatal Accidents Act 1976.
The First Defendant, Four Seasons Holdings Inc (“Holdings”), is the holding company of the Four Seasons hotel group. It is incorporated in British Columbia. The Second Defendant, Nova Park SAE (“Nova Park”) is an Egyptian company which was identified by Lady Brownlie’s solicitors as the owner of the hotel building. The case falls outside the Brussels I Recast Regulation therefore. However reference to Brussels and particularly of course to Rome II is made in the various judgments, for even though the English Courts do not decide jurisdiction on the basis of Brussels, they do have to apply Rome I or II if the suit qualifies as one in contract cq tort.
The Court of Appeal [[2015] EWCA Civ 665] had held that the jurisdictional gateways were not satisfied. There was no contract with Four Seasons Holdings, and given that Holdings was not the owner, there could be no claim in tort for vicarious liability.
David Hart QC has excellent (much more swift) analysis here and I am happy largely to refer. A few points of additional interest.
On the issue of suing holding companies, Sumption J writing at 14 ff dismisses service out of jurisdiction for there is no reasonable possibility of a claim succeeding: at 15:
‘there is no realistic prospect that Lady Brownlie will establish that she contracted with Holdings, or that Holdings will be held vicariously liable for the negligence of the driver of the excursion vehicle.’ That is because (at 14) it is entirely clear ‘that Holdings is a nontrading holding company. It neither owns nor operates the Cairo hotel, which has at all material times been owned by Nova Park, a company with no corporate relationship to any Four Seasons company. A Dutch subsidiary of Holdings called Four Seasons Cairo (Nile Plaza) BV entered into an agreement with Nova Park to operate the hotel on behalf of Nova Park, although at the material times the actual operator was an Egyptian subsidiary of Holdings, FS Cairo (Nile Plaza) LLC, which assumed the contractual obligations of the operator by assignment. Other subsidiaries of Holdings supplied advice and specific services such as sales, marketing, central reservations and procurement, and licensed the use by Nova Park of the Four Seasons Trade Mark’.
Judgment in Brownlie preceded the current cases referred to it on the subject of CSR and jurisdiction (see my previous postings on that, most recently Unilever). Yet it is clear that plaintiffs have to show much more than a corporate bloodline between mother companies and affiliated undertakings, for suits to have any chance of success.
The case could have ended here for all five judges agree on this point. Yet aware of the relevance of direction, discussion was continued obiter on the topic of suing in tort. Firstly it was clear that if a claim in tort could be brought in the English courts, it would be subject to Egyptian law per Article 4(1) Rome II. In the Court of Appeal, Arden LJ had taken analogy with that Article (and the whole Regulation)’s rejection of indirect damage as relevant for deciding lex causae. And of course Rome II’s stance on this point is influenced by the CJEU’s case-law going in the same direction, but then for jurisdiction, in Marinari and the like. Sumption J cites Canadian authority (Stephen Pittel has reference to it here) and is critical of too much emphasis put on a connection between jurisdiction and applicable law, for determining jurisdiction.
Big big pat on his back; readers of the blog know (see eg here) I am not at all enthused by too much analogy between jurisdiction and applicable law).
Sumption at 22
It is undoubtedly convenient for the country of the forum to correspond with that of the proper law. It is also true that both jurisdiction and choice of law can broadly be said to depend on how closely the dispute is connected with a particular country. But there is no necessary connection between the two. The Practice Direction contemplates a wide variety of connecting factors, of which the proper law is only one and that one is relevant only to contractual liabilities. For the purpose of identifying the proper law, “damage” is limited to direct damage because article 4 of Rome II says so in terms. It does this because there can be only one proper law, and the formulation of a common rule for all EU member states necessarily requires a more or less mechanical technique for identifying it. By comparison, indirect damage may be suffered in more than one country and jurisdiction in both English and EU law may subsist in more than one country.
Lady Hale is even more to the point at 49: ‘Applicable law and jurisdiction are two different matters. There is no necessary coincidence between the country with jurisdiction and the country whose law is applicable.‘
Yet for the case at hand ultimately Sumption J does curtail the relevance of indirect damage: at 23:
There is, however, a more fundamental reason for concluding that in the present context “damage” means direct damage. It concerns the nature of the duty broken in a personal injury action and the character of the damage recoverable for the breach. There is a fundamental difference between the damage done to an interest protected by the law, and facts which are merely evidence of the financial value of that damage. Except in limited and carefully circumscribed cases, the law of tort does not protect pecuniary interests as such. It is in general concerned with non-pecuniary interests, such as bodily integrity, physical property and reputation which are inherently entitled to its protection.
At 29 ff follows Sumption’s engagement with relevant CJEU authority, leading him eventually to reject indirect damage as a basis for jurisdiction. That same authority is also discussed by Lady Hale and more succinctly by the others, however they prefer to take the English law on this point in a different direction, particularly taking the CPR (the relevant English civil procedure rules) use of the word ‘damage’ at face value, meaning including indirect damage: residual English PIL therefore not determined by CJEU authority.
As noted in my introduction, even if jurisdiction can be established on the basis of indirect damage in England, forum non conveniens may still scupper jurisdiction eventually.
Geert.
I am currently looking for a research assistant / doctoral student to work at my Chair at the University of Jena as of 1 November 2018. The position is part-time (50%) and paid according to the salary scale E 13 TV-L.
In addition to writing an excellent doctoral dissertation in your field of interest (and my field of expertise) tasks associated with the position include, among others, independent teaching in German private law (contracts, torts, property: 2 hours per week in German).
The successful candidate holds an excellent first law degree and has a particular interest in private international law and international civil procedure. A very good command of German and English is required, additional languages will be an advantage.
If you are interested, please send your application (cover letter, CV, copies of relevant certificates in one pdf) to my secretary, Regina Franzl: r.franzl@recht.uni-jena.de. Deadline for applications is 14 September 2018.
The full job advert is available here (in German).
(Only) last week, the government of the Netherlands – the depositary of the Convention – has informed the Permanent Bureau of the Hague Conference on Private International Law that Montenegro ratified the 2005 Hague Choice of Court Convention on 18 April 2018, with the Convention entering into force for Montenegro on 1 August 2018. This brings the number of Contracting Parties to 32 (the EU, all member states (since 30 May 2018 including Denmark), Mexico, Singapore, and Montenegro), with three others (China, Ukraine, and the United States) having signed but not ratified the Convention.
Pursuant to its Articles 1(1), 3(a), and 16(1), exclusive choice-of-court agreements designating Montenegro concluded after 1 August 2018 must be given effect under the Convention by all Contracting States (except Denmark, for which it only enters into force on 1 September 2018). Montenegro must give the same effect to all such agreements designating other Contracting States as long as they have been concluded after the Convention entered into force for the designated state (EU and Mexico: 1 October 2015; Singapore: 1 October 2016; Denmark: 1 September 2018).
The Convention has repeatedly been mentioned as an option for the UK to maintain a minimum of cooperation in the area of civil justice with the EU, should a more comprehensive agreement not be reached (see Dickinson ZEuP 2017, 539, 560–62; Rühl (2018) 67 ICLQ 127–28; Sonnentag, Die Konsequenzen des Brexits (Mohr 2017), 89–91). It should be noted, though, that even if the UK ratified the Convention the very day of its withdrawal from the EU on 29 March 2019, it would only enter into force three months later, on 1 July 2019 (see Art 31(1)).
One can say many things about climate change litigation by individuals. (See my earlier piece on the Dutch Urgenda case). Many argue that the separation of powers suggest that governments, not judges, should be making climate policy. Or that international environmental law lacks the type of direct effect potentially required for it to be validly invoked by citisens. Others point to the duty of care of Governments; to binding – even if fluffy – climate change obligations taken on since at least the 1990s, and to the utter lack of progress following more than 25 years of international climate change law.
It is therefore no surprise to see that this type of litigation has now also reached the European Court of Justice: the text of the application is here, see also brief legal (by Olivia Featherstone) and Guardian background.
Like cases before it, colleagues shy of preparation materials for an international environmental law course, with comparative EU law thrown in, can use the case to hinge an entire course on.
As Olivia reports, the legal principles involved are the following:
The claimants state that EU emissions leading to climate change are contrary to:
One to watch.
Geert.
EU Environmental Law, with Leonie Reins, Edward Elgar, 1st ed. 2017, part I Chapter 2 in particular.
By the Swiss Association SVIR/SSDI (“Schweizerische Vereinigung für Internationales Recht – Société suisse de droit international“)
The Swiss Association SVIR/SSDI offers since this year a 3,000 CHF grant to support researchers who wish to complete an internship with an international organisation. For the year 2018/19, the award will support a post-graduate student or graduate of a Swiss Law School to undertake a (4- to) 6-month internship at the Permanent Bureau of the Hague Conference on Private International Law (HCCH) by providing a financial contribution to cover the costs of travel to the Netherlands and a contribution towards living expenses.
Applications should be submitted via the SVIR Grant website no later than Friday 31 August 2018. The internship at the Permanent Bureau will commence as of mid-January 2019.
For further details, please refer to the SVIR Grant website at http://www.svir-ssdi.ch/de/svir-preise/svir-grant/ (click “Ausschreibung”, description in English).
Thank you Pawel Sikora for flagging some time back, and subsequently analysing in detail (p.221 onwards) the decisions of the Polish Courts particularly at Reszow, on whether arbitrated claims can be secured with a European account preservation order under Regulation 655/2014: not something I recall having been discussed elsewhere before. Article 2(2)(e) of the regulation explicitly states that “it does not apply to arbitration”: Brussels I- aficionados will be familiar with the expression.
The Courts discussed C-391/95 Van Uden in particular, with the Rzeszow Appellate Court holding that an EAPO may be granted for arbitrated claims. Using Van Uden language, in the Court’s view provisional measures such as freezing orders (which must be ordered by the courts in ordinary, not the arbitral panels) are not in principle ancillary to arbitration proceedings, but rather they are ordered in parallel to such proceedings and intended as measures of support.
Some might read in the judgment further encouragement for the EU to consider drafting an EU arbitration Regulation.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 2.2.2.10.2.
The proceedings of the conference Crisi transfrontaliera di impresa: orizzonti internazionali ed europei, held in Rome on 3 and 4 November 2017 at the LUISS University (advertised here on this blog) have recently been published, edited by Antonio Leandro, Giorgio Meo and Antonio Nuzzo.
Authors include experts on insolvency, cross-border insolvency and private international law. The contributions – some in Italian, others in English – address international and European policies on business crisis and failure, the innovations brought about by Regulation (EU) 2015/848 and the interplay of that instrument with other European texts relating to judicial cooperation in civil matters.
The book also discusses the challenges faced by the on-going reform of insolvency law in Italy, in light of regional and international developments.
The table of contents is available here.
Reminiscent of the decision in Yukos v Tomskneft, which concerned recognition of an arbitral award in Ireland even though there were no relevant assets to exercise enforcement against, the Irish Court of Appeal earlier this year in [2018] IECA 46 Albaniabeg v Enel upheld [2016] IEHC 139 Albaniabeg Ambient Sh.p.k. -v- Enel S.p.A. & Anor . (See my tweet below at the time – the case got stuck in my blog queue).
Thank you to Julie Murphy-O’Connor, and Gearóid Carey for flagging the case earlier in the year. The High Court had refused to grant plaintiff, Albaniabeg, liberty to serve out of the jurisdiction to seek to enforce a judgment of an Albanian court in Ireland against the two defendants, ENEL S.p.A. and ENEL Power S.p.A. (“ENEL”). The judgment therefore is ex-EU.
Enforcement proceedings were commenced in New York, The Netherlands, Luxembourg, France and Ireland in relation to the Judgment. [I have not been able to locate outcome in those cases]. Notably no enforcement proceedings were brought in Italy. Presumably plaintiff’s motif is to obtain enforcement in one Member State, to ease the enforcement paths in other Member States (including Italy).
McDermott J at the High Court refused the application on the basis that the defendants had no assets within the jurisdiction and were not likely to have such assets in the near future. As the judge concluded that the plaintiff did not stand to gain any practical benefits if enforcement proceedings were to be commenced within this jurisdiction, he refused to grant them leave to serve such proceedings out of the jurisdiction on the defendants.
Hogan J at the Court of Appeal upheld. At 59 he notes ‘I should state in passing that it was not suggested that if an Irish court were to grant an order providing for the recognition or enforcement under own rules of private international law of the Albanian judgment, this then would be a “judgment” for the purposes of Article 2(a) of the Brussels Regulation (recast) which could then be enforced in other Member States under the simplified enforcement procedure provided for by Chapter III of that Regulation. As this point was not argued before us, it is not necessary to express any view on it.‘
In my Handbook I suggest such order is not a ‘judgment’ within the meaning of the Brussels I Recast Regulation.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.1.
Enforcement of an ex-EU judgment. Brussels I Recast does not apply. Had the Irish Court recognised: would that judgment be a judgment under the Recast?
Irish Court of Appeal Decision on Enforcement of Foreign Judgment https://t.co/nL3tSUs3It @MathesonLaw
— Geert Van Calster (@GAVClaw) April 3, 2018
It doesn’t happen too often that a Member State refuses enforcement judgment rendered in another Member State for violation of the ordre public. But in a decision published yesterday exactly this happened: The German Supreme Court (Bundesgerichtshof – BGH) refused to recognize and enforce a Polish judgment under the Brussels I Regulation (before the recast) arguing that enforcement would violate the German public policy, notable freedom of speech and freedom of the press as embodied in the German Constitution. In so doing the highest German court adds to the already difficult debate about atrocities committed by Germans in Poland during WW II.
The facts of the case were as follows:
In 2013, the ZDF (Zweites Deutsches Fernsehen) one of Germany’s main public-service television broadcaster announced the broadcasting of documentary about the liberation of the concentration camps Ohrdruf, Buchenwald and Dachau. In the announcement, the camps Majdanek and Auschwitz were described as “Polish extermination camps”. Following a complaint by the Embassy of the Republic of Poland in Berlin, the defendant changed the text of the announcement to “German extermination camps on Polish territory”. At the same time, the applicant, a Polish citizen and former prisoner of the Auschwitz-Birkenau and Flossenbürg concentration camps, complained to the ZDF claiming that his personal rights had been violated and demanded, among other things, the publication of an apology.
In 2013, the ZDF apologized to the applicant in two letters and expressed its regret. In spring 2016 it also published a correction message expressing its regret for the “careless, false and erroneous wording” and apologising to all people whose feelings had been hurt as a result. At the end of 2016, on the basis of an action he had brought in Poland in 2014, the applicant obtained a second instance judgment of the Cracow Court of Appeal requiring the ZDF to publish an apology on the home page of its website (not just anywhere on the website) for a period of one month expressing its regrets that the announcement from 2013 contained “incorrect wording distorting the history of the Polish people”. The ZDF published the required text of the judgment on its home page from December 2016 to January 2017, however, only via a link. The applicant considered this publication to be inadequate and, therefore, sought to have the Polish judgment enforced in Germany.
The Regional Court Mainz as well as the Court of Appeal Koblenz declared the judgment enforceable under the Brussels I Regulation (Reg. 44/2001). The German Federal Supreme Court, however, disagreed. Referring to Article 45 Brussels I Regulation, the Court held that enforcement of the judgment would result in a violation of the German ordre public because the exercise of state power to publish the text of the judgment prepared by the Cracow Court of Appeal would clearly violate the defendant’s right to freedom of speech and freedom of press as embodied in Article 5(1) of the German Constitution (Grundgesetz – GG) as well as the constitutional principle of proportionality.
The Court clarified that the dispute at hand did not concern the defendant’s original announcement – which was incorrect and, therefore, did not enjoy the protection of Article 5(1) GG, but only the requested publication of pre-formulated text. This text – which the defendant, according to the Cracow court, had to make as its own statement – represented an expression of opinion. It required the defendant to regret the use of “incorrect wording distorting the history of the Polish people” and to apologize to the applicant for the violation of his personal rights, in particular his national identity (sense of belonging to the Polish people) and his national dignity. To require the defendant to published a text drafted by someone else as its own opinion would, therefore, violate the defendant’s fundamental rights under Article 5(1) GG. In addition, it would violate the constitutional principle of proportionality. The defendant had corrected the disputed wording “Polish concentration camps”, which had been available for four days, on the day of the objection by the Embassy of the Republic of Poland. Even before the decision of the Court of Appeal, the defendant had personally asked the applicant for an apology in two letters and also published an explanatory correction message with a request for apology addressed to all those concerned.
The official press release is available here. The full German decision can be downloaded here.
I have reported earlier on the action of MNL Capital against the 2015 Belgian Vulture Fund Act (my EN translation here), on which I have a paper here. I then reported on a related action (where MNL were joined by Yukos).
At the end of May the Belgian Constitutional Court, ruling 61/2018, rejected an MNL challenge to the Act, which was based inter alia on an alleged infringement of the Brussels I Recast Regulation: at A.23.2: MNL argued that Belgium cannot across the board reject vulture funds activities (I agree) based on an absolute ordre public argument against them: MNL suggested this entails a one-sided reading of ordre public in favour of foreign entities refusing to honour their debt.
Due in large part to the peculiarities of constitutional review in Belgium, the Court at B.15.4 looked at the argument purely from a non-discrimination point of view: creditors who have obtained a foreign judgment against a State are no better or worse off than those having obtained such ruling from a Belgian court.
In essence therefore the arguments on the basis of EU law are left entirely unanswered.
Geert.
(Handbook of) EU Private International Law, Chapter 2, Heading 2.2.16, Heading 2.2.16.1.4.
Thank you Brick Court and Stewarts, among other, for flagging Vattenfall et al v Prysmian et al in which the High Court dismissed a call for summary judgment on the grounds of lack of jurisdiction.
A classic case of follow-up damages litigation in competition law, here in the high voltage power cables cartel, fines for which were confirmed by the CJEU early July. Core to the case is the application of Article 8(1)’s anchor defendants mechanism. Only two of the defendants are UK incorporated companies – UK subsidiaries of companies that have been found by the European Commission to have infringed EU competition law.
Authority cited includes of course CDC, Roche Nederland and Painer, and Cooper Tyre (sale of the cartelised products can amount to implementation of the cartel). Vattenfall confirms that for the English courts, ‘knowingly implementing’ the cartel has a low threshold.
At 89 ff the Court refers to the pending case of (what I now know to be) C-724/17 Skanska Industrial Solutions e.a.: Finnish Courts are considering the application for cartel damages against parent companies on acquiring cartelist subsidiaries, had dissolved them. Relevance for Vattenfall lies with the issue of knowledge: the Finnish courts wonder what Article 101 TFEU has to say on the degree of knowledge of the cartelist activities, relevant for the liability of the parent company. An application of fraus, or abuse in other words. Elleray DJ however, did not consider the outcome of that reference to be relevant for the case at hand, in its current stage of procedure.
Geert.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.12.1
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