Archive for category Conflict of Laws /Private international law
Caribonum Pension Trustee v Pelikan. Ability of foreign defendant to satisfy a judgement is not a pre-requisite to a claimant obtaining a judgement.
Facts in  EWHC 2321 (Ch.) Caribonum Pension Trustee v Pelikan are summarised by Anthony Garon here. A suggestion of abuse of process /Fraus was rejected by Clark M. Of interest to the blog is the suggested reason for abuse: Pelikan AG argued that the claim was an abuse of process because a relevant guarantee would not be enforceable in Switzerland and that there were insufficient non-Swiss assets to satisfy the claim.
At 40 however Master Clark holds that the ability of a defendant to satisfy a judgement is not a pre-requisite to a claimant obtaining a judgement. Claimant’s counsel convincingly submitted that it was pursuing the claim for the simple and appropriate purpose of securing payment of the sums due under a holding structure-related Guarantee; and that that was not an abuse of process.
 UKPC 3 Almazeedi v Penner at the Privy Council was recently brought to my attention by Christopher Grout. The case concerns a challenge to the independence of a judge sitting in the Financial Services Division of the Grand Court of the Cayman Islands.
Judge in the present case was Cresswell J, former judge of the High Court of England and Wales from 1991 to 2007. Following his retirement from that position, he became in 2009 an additional judge of the Financial Services Division of the Grand Court, sitting ad hoc from time to time as required. The Division consisted of the Chief Justice and two other full-time judges, together with three additional judges sitting part-time, one of whom was Cresswell J. From a time late in 2011, he also became a Supplementary Judge of the Civil and Commercial Court, Qatar Financial Centre (although he was not in the end instructed or renumerated there).
Cresswell J was the judge assigned with the conduct of a winding-up petition and associated applications and thereafter with the winding-up of BTU Power Company (“BTU”). The entire economic interest in BTU was held by its preference shareholders who were in the main Qatari interests with strong state connections, and to a minor extent Dubai Islamic Bank. The present case involves a challenge to all aspects of Cresswell J’s activity. The challenge is made having regard to Cresswell J’s position as a judge in Qatar and to the involvement in the proceedings before him of these Qatari interests and of Qatari personalities representing or interested in them.
No suggestion of actual bias at any time in either court was ever made. The question relates rather to whether the fair-minded and informed observer would discount the risk of unconscious bias. The Privy Council held such observer would not so discount: at 34: ‘with some reluctance, [we have] come to the conclusion that the Court of Appeal was right to regard it as inappropriate for the judge to sit without disclosure of his position in Qatar as regards the period after 26 June 2013 and that this represented a flaw in his apparent independence’.
Note the dissenting opinion by Lord Sumption at 36 ff, who notes ‘Sir Peter Cresswell is not alleged to have done anything which could raise doubts about his independence. The case against him rests entirely on the notion that he might be influenced, possibly unconsciously, by the hypothetical possibility of action being taken against him in Qatar as a result of any decision in the Cayman Islands which was contrary to the Qatari Government’s interests. Hypothetical possibilities may of course found a case of apparent bias, but since there are few limits to the possibilities that can be hypothetically envisaged, there must be some substance to them.’
‘The notional fair-minded and informed observer whose presumed reaction is the benchmark for apparent bias, has only to be satisfied that there is a real risk of bias. But where he reaches this conclusion, he does so with care, after ensuring that he has informed himself of all the relevant facts. He is not satisfied with a look-sniff impression. He is not credulous or naïve. But neither is he hyper-suspicious or apt to envisage the worst possible outcome.’
I believe Lord Sumption’s approach is the better one. Yet it was not carried hence in international commercial courts the standards have become very exacting indeed.
Kraft Foods v Bega Cheese  FCA 549 was signalled to me by Michael Mitchell back in early May – now seems a good opportunity briefly to report on it. The Federal Court of Australia issued an anti-arbitration injunction to restrain a multinational food conglomerate from pursuing arbitration in New York. Kraft had pursued litigation in Australia which not only sought to restrain the respondent from certain radio and television advertising, but also sought final relief including damages.
Parties had agreed to mediate and arbitrate under the dispute resolution provisions of a Master Agreement for licensing of IP. Bega had acquired certain rights from Mondelez (a company in the Kraft group), including certain trademark rights that Kraft had licensed to Mondelez pursuant to the Master Agreement.
Of interest to the blog is the myriad number of issues that led the Court to issue the injunction, among others the fact that what was sought included interim relief, the position of which when it comes to enforcement is not entirely clear in the New York Convention. Throw intellectual property, mediation as well as arbitration, common law doctrine principles such as the Aldi rule in the mix, and the jurisdictional soup becomes quite attractive as well as complex. Precisely why intellectual property is hotly debated in the Hague Judgments project and likely to be excluded from it.
That latter brings me to the second part of the blog title: the HCCH have issued a Revised Draft Explanatory Report, and a document on the possible exclusion of anti-trust matters from the Convention as reflected in Article 2(1)(p) of the 2018 draft Convention. Both signal the continuing difficulty of the roll-out of the Hague Process, as well as continued intent to let the train roll into its end destination; although one wonders how many wagons will have been left behind en route.
(Handbook of) EU Private International Law, 2nd ed. 2016. Chapter 2.
A short post effectively to deposit relevant documentation on the issue of privacy and private international law – which I frequently report on on the blog (e.g. use tag ‘rtbf’, or ‘internet’, or ‘privacy’, ‘Facebook’, or ‘Google’; see i.a. my recent posts re Facebook, Google , Schrems, etc.
Max Planck Luxembourg have the interim report on the International Law Association’s draft guidelines on jurisdiction and applicable law re privacy on their website, featuring many of the cases I have reported on over the years.
Marcus Teo has excellent analysis of Shanghai Turbo Enterprises Ltd v Liu Ming  SGHC 172. The issue is well-known in contract law as such and takes one or two special forms in conflicts: what is the fate of a contract as a whole, and /or of contractual clauses individually, when part of a clause is defective.
In the case at issue, the relevant contractual clause read
“This Agreement shall be governed by the laws of Singapore/or People’s Republic of China and each of the parties hereto submits to the non-exclusive jurisdiction of the Courts of Singapore/or People’s Republic of China.”
As far as the choice of court part of this clause is concerned, non-exclusive choice of court comes with strings attached, depending on the laws of the States concerned: under the editorship of Mary Keyes, Michiel Poesen and I have contributed to an extensive comparative volume on same wich is forthcoming. However for choice of law one need not look at the specific laws of a State to appreciate that this clause thus formulated is simply a lame duck. No clear choice of law is made at all. The pragmatic solution is to ignore the useless clause and determine the proper law of the contract in the absence of a valid expression of parties’ autonomy. Yet conceptually an argument can, and has been made that to do so ignores the very high relevance of the lex contractus in the very contract formation – a conceptual quagmire which in EU law is addressed by Rome I’s ‘bootstrap’ principle.
In the case at issue, the High Court follows a pro-validation approach (favor contractus): the invalidity of the choice of law clause does not affect the formation of the main contract. A commercially sensible solution which Marcus analysis critically in excellent detail.
(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 3, Heading 3.2.7.