WTO examiners: at ease! Canadian Supreme Court holds in R. v. Comeau (New Brunswick restrictions on alcohol trade).

Fellow faculty about to examine students on the Law of the World Trade Organisation, have their exam sorted (especially if it is an oral exam). In 2018 SCC 15 R v Comeau the Canadian Supreme Court held last week. At issue is New Brunswick’s restrictive regime on the import and sale of alcoholic beverages. Greg Tereposky and Daniel Hohnstein have background to the case.

Despite the Province’s regime having clear trade impact, the SC held that it was not illegal under Canada’s internal free trade rules – with occasional reference to GATT and WTO. For comparative and exam purposes, the interesting angle is clear: has the Supreme Court adopted the kind of aims and effects test which the WTO is no fan of?

Copy of the judgment. 15 mins prep. And Bob’s your (oral exam) uncle.

Geert.

(Handbook of) The law of the World Trade Organisation, forthcoming at OUP with Demeester, Coppens, Wouters and Van Calster.

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Towards an innovation principle: our paper on an industry horse knocking at the EU door.

Our paper on the innovation principle, with Kathleen Garnett and Leonie Reins is just out in Law, Innovation and Technology. We discuss how industry has been pushing for the principle to be added as a regulatory driver. Not as a trojan horse: industry knocks politely but firmly at the EU door, it is then simply let in by the European Commission. We discuss the ramifications of such principle and the wider consequences for EU policy making.

Happy reading.

Geert.

(Handbook of) EU Environmental Law (with Dr Reins), 1st ed. 2017, Chapter 2.

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Colin King: On the application ratione temporis of the Recast Insolvency Regulation.

I thought I had but seemingly had not, flagged Bob Wessels’ timely alert to [2016] COMP 039 Colin King (Supreme Court of Gibraltar). The judgment first of all looks at the temporal scope of application of the Regulation, holding correctly that it is not the filing for bankruptcy which is relevant but rather the time of actual openings of those proceedings. Further, it makes correct application of the various presumptions and definitions vis-a-vis natural persons.

Not a shocking judgment but one which is a good read for a gentle introduction to COMI. And as Bob notes, it was not quite the first to apply the new EIR.

Geert.

(Handbook of) EU Private International Law, 2nd edition 2016, Chapter 5.

 

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X v I: The Austrian Supreme Court on due diligence in choice of court under Brussels I Recast.

Thank you Klaus Oblin for flagging OGH 7 Ob 183/17p X SE v I SpA (yet again I am happy to grumble that there is really no need to keep B2B litigation anonymous) at the Austrian Supreme Court. At issue is the application of Article 25 Brussels I Recast: when can consent to choice of court be established.

The facts of the case reflect repeated business practice: offers are made and accepted; a business relationship ensues on the basis of which further offers and orders are made; somewhere along the lines reference is made to general terms and conditions – GTCs which include choice of court. Can defendant be considered to have consented?

The Supreme Court, justifiably, lays the burden of proof with the claimant /plaintiff: if the contract is concluded through different offer and acceptance documents, the offer need only reference the terms and conditions containing the agreement conferring jurisdiction only if the other party: can follow-up on this with reasonable diligence; and actually receives the terms and conditions.

I am happy to refer to Klaus’ excellent overview (which also discussed the absence of established business practice between parties: one of the alternatives for showing choice of court). Yet again, the first and foremost quality required of lawyers (here: in-house counsel) emerges: ensure proper filing and compliance with simple procedure. Here: a clear flag of the GTCs in correspondence, and simple follow-up would have sufficed.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.9.

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Seatrade: Ships as waste.

Rechtbank Rotterdam held on 15 March last that 4 ships owned and operated by the Sea Trade concern had to be regarded as waste when they left the port at Rotterdam cq Hamburg (they were eventually beached in a variety of destinations). Not having been notified as waste, their shipment was considered illegal and the concern as well as some of its employees consequently convicted. (Illegal waste shipments being a criminal offense).

The court decided not to refer to the CJEU on the application of the waste definition to ships, as it considered the issue to be acte clair. The court’s review of the legal framework is included in Heading 4.3.4. As such, the analysis does not teach us much about the difficulty of applying the waste definition to international maritime logistics, in particular ship disposal. The court found at a factual level that the owners’ intention to dispose of the ships was clearly established when the ships left the EU, with, it suggested, the facts proving that the intention to dispose was at that moment of such an intensity as to trigger the waste definition.

The court does flag its appreciation for the difficulties. Not only is eventual disposal of hardware such as ships a possibility from the moment of their purchase. Such intention may also be withdrawn, reinstated, modified, at various moments of the ships’ life, fluctuating with market circumstances. Particularly given the criminal nature of the legal discipline here, I find that a very important driver to tread very cautiously and to look for firmer objective factors to establish intent.

Most probably to be continued on appeal.

Geert.

(Handbook of ) EU Waste law, 2nd ed. 2017, para 1.20 ff. Disclosure: I acted as court expert.

 

 

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ECtHR draws the curtain over Krombach.

Thank you Tobias Lutzi for alerting us to the ECtHR drawing the final curtain (legally speaking at least) over the tragic events surrounding the Krombach case. The case is a classic viz ordre public, recognition and enforcement issues. Current decision however relates to the criminal law aspects of the case and the ne bis in idem principle in particular.

The Court declared Krombach’s complaint inadmissible.

Geert.

(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.16.1.4.

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Clutching at jurisdictional straws as short as hotpants. Suing Google for hotlinkers: High Court refuses service out of jurisdiction in Wheat v Alphabet /Google Inc and Monaco Telecom.

Hotlinking is explained at para 17 of [2018] EWHC 550 (Ch) Wheat v Alphabet /Google Inc and Monaco Telecom. (Cross-reference is also made to the related main case against Monaco Telecom, [2017] EWHC 3150 (Ch)). The principal claim against Monaco Telecom is that it has broadcast, and continues to broadcast, an unauthorised duplicate of theirearth.com – claimant’s website. Google is involved in the litigation because claimant alleges that Google’s search engine algorithm has done little to address hotlinking practice, which, it is said, facilitates copyright infringement.

Both cases are a good example of the standards for serving out of jurisdiction, essentially, to what degree courts of the UK should accept jurisdiction against non-UK defendants (here: with claimants resident in the UK). The Brussels I Recast Regulation is not engaged in either cases for neither Monaco nor Alphabet are EU based.

Copyright aficionados are best referred to the judgment to appreciate its impact. The judgment essentially confirms that other than in a B2C context (particularly where EU law applies and privacy is involved), suing (for tort) Google or indeed internet companies not headquartered here, is not an easy proposition.

Geert.

 

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