Josiya ea v BAT ea (tobacco labourers’ exploitation). On documentary proof of link between claimant and defendant.

Josiya & Ors v British American Tobacco Plc & Ors [2021] EWHC 1743 (QB) is the first shot in an important business and human rights case, accusing the defendants of being responsible for working conditions said to include the widespread use of unlawful child labour, unlawful forced labour and the systematic exposure of vulnerable and impoverished adults and children to extremely hazardous working conditions with minimal protection against industrial accidents, injuries and diseases.

I briefly want to flag the 25 June order by Spencer J for it highlights a point I often make when teaching, or sharing my practice experience on, strategic and public interest litigation: that most of these cases are won not by an eloquent speech on grand principles, delivered in Hollywood fashion. Rather, by the dogged determination of invested lawyers, with a keen eye for detail across civil procedure (including standing, statutes of limitation, service, timely filing of procedural , third party and other ways of financing, tort and other applicable law).

The order at issue dismisses an application for strike-out which was essentially based on an alleged lack of documentary proof of claimants’ link to the defendants, leading to claim said to be an abuse of process.

Brussels IA applies to the claim (claim form was filed on 18 December 2020, the particulars of claim – POC on 12 January 2021): claimants aim to avoid forum non conveniens although of course Articles 33-34 might still be raised. Locus causae is said to be Malawi law [19]. Claimants concede [23] they do not at this stage have documentary evidence that categorially links each individual Claimant to one or more of the Defendants or companies within the Defendants’ corporate groups. They tried to obtain this unsuccessfully in pre-trial disclosure.

Claimant’s counsel, Richard Hermer QC, successfully argued a distinction [41]  between what is required for a party to plead the case; and what is required for a party to prove the case at trial.

Held: the claim form without specific identification of the link between individual claimants and specific defendants is not an abuse of process under the circumstances. An application for disclosure may and must be prepared.

Geert.

European Private International Law, 3rd ed. 2021, Chapter 7.

Hydrodec: A comparative pointer for COMI determination.

As I seem to be in a comparative mood today, consider Hydrodec Group Plc [2021] NSWSC 755, in which a suggestion of COMI in the UK, of a company incorporated there, was dismissed in favour of COMI in the US. Cooper Grace Ward have the relevant background here. The result of the order is that the company will be wound up under Australian law.

Hydrodec Group Plc is the parent company for a corporate group comprised of: subsidiaries located in the UK, Australia and Japan that were not trading; and a sole trading subsidiary located in the United States of America, which owns valuable assets. As CGW report, Hydrodec contended that its COMI was in the UK because, among other things: it has an address in the UK; its affairs are administered in the UK by directors that reside in the UK; its main asset was its shareholding in a subsidiary, in the UK; and the majority of its creditors are in the UK. 

The judge however reportedly (see the CGW overview; I have not been able to locate judgment at this stage) disagreed on the following grounds. COMI must be identified by reference to criteria that are objective and ascertainable by third parties (ditto in the EU under the EIR). The A16(3) UNCITRAL Model Law presumption of COMI in the place of registered office does not apply seeing as the corporation has two of these. The only trading entity within the corporate group controlled by Hydrodec was in the USA.  Hydrodec described the USA as its ‘key market’ and the focus of Hydrodec’s plans for growth. The principal creditor of the corporate group controlled by Hydrodec was in the USA. The administration of the affairs of Hydrodec involved, in substance, the administration of the operations of the USA subsidiary. Finally, Hydrodec’s primary focus was the re-financing of its operations in the USA.

The judgment shows the specificity of determining COMI in the case of a corporation which itself does not have a market focus.

European Private International law, 3rd ed. 2021, 5.65 ff.

Roark v Bridgestone, Shandong et al. Contract fine-print and regulatory compliance determines minimum contacts in Washington.

A short post for comparative conflicts purposes. Readers might be aware of the minimum contacts rule in US jurisdictional analysis.  Rice J excellently summarises the issues in his order denying a strike-out application (‘motion to dismiss’) on the basis of lack of jurisdiction.

‘Under the Due Process Clause, a court may exercise personal jurisdiction over a defendant only where “the defendant ha[s] certain minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” [Picot v. Weston, 9th Cir. 2015) (quoting Int’l Shoe Co. v. Wash., [1945])….

Personal jurisdiction over a non-resident defendant may take two forms:
general jurisdiction or specific jurisdiction. General jurisdiction requires connections with the forum “so continuous and systematic as to render the foreign corporation essentially at home in the forum State (Ranza). Specific jurisdiction, by contrast, may only be exercised “when a case aris[es] out of or relate[s] to the defendant’s contacts with the forum.”

Shandong essentially argue that they are kept at arm’s length from US jurisdiction because they are not the one importing the tires into the US: a separate corporation imported, a third distributed. The judge however (in the process dismissing Shandong’s assertion that the goods were shipped FOB – Free on Board), found that Shandong delivered tires into the stream of commerce, was involved, in consequence of its contractual duties, in shipping the tires to Washington ports, and has taken steps for creating tires compliant with state and federal law to arrive in Washington pursuant to the supply agreement.  This echoes the EU jargon of ‘directing activities at’ the state of Washington.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.460, para 4.48 ff.

Mixing the blank rounds with the live bullets. The Court of Appeal (obiter) on Article 33 Brussels Ia, forum non conveniens light, in Ness Global Services.

In Perform Content Services Ltd v Ness Global Services Ltd [2021] EWCA Civ 981 the Court of Appeal yesterday dismissed the appeal against the High Court judgment which I discussed here.

Two grounds of appeal were at play [34]:

(1) The Court was wrong as a matter of law to interpret Article 33 to mean that jurisdiction was not “based on” domicile by reason of a non-exclusive English court jurisdiction clause that conferred prorogated jurisdiction on the English Court pursuant to Article 25;

(2) The Court was wrong to conclude that a stay was not necessary for the proper administration of justice within the meaning of Article 33(1)(b). The court wrongly failed to place any or any sufficient weight on the fact that the NJ and English proceedings were mirror image proceedings giving rise to the risk of irreconcilable judgments, the core purpose of Article 33 and a core feature of the concept of the administration of justice under the Article. The court wrongly took account of the non-exclusive English court jurisdiction clause and/or an English governing law clause and/or wrongly took account of its assessment that the centre of gravity was Slovakia and/or failed to place any or any sufficient weight on the material connections between the parties and the United States and/or wrongly placed significant reliance on connections between the parties, the dispute and the UK.

On the first issue Flaux C refers ia to UCP and to Citicorp (the latter had not been referred to by the first instance judge, I suggested it could have been), to hold that choice of court under A25 BIa being exclusive or not has no relevance. Like the first instance judge, he rules that A33-34 cannot apply if choice of court has been made in favour of an EU court, exclusive or not.

He then deals obiter, like the judge had done, with the issue whether an A33-34 stay would have been in the interest of the sound administration of justice. He emphasises [66] the wide catchment area of ‘all the circumstances of the case’ per recital 24, and suggests this must potentially also include the connections which the case has with the EU Member State and indeed the specific court (per the choice of court clause) concerned.

On that he is right. But he is wrong in my view to support Turner J’s analysis at [67] in Municipio, without any nuance.

Turner J and Flaux C are both right that, the fact itself that the factors which a judge considers in holding that the proper administration of justice does not require a stay, might theoretically have also been relevant in a common law forum non conveniens exercise, does not invalidate the judge’s approach under A33-34. However the problem with the judge’s A33-34 analysis in Municipio is,

Firstly, that it is a case of the tail wagging the dog. The proper administration of justice analysis, exclusively populated by forum non criteria indeed with full reference to that forum non analysis, was put to the front without proper engagement with the substantive conditions for A33-34 to apply at all.

Further, the DNA of A33-34 as I have reported before ( I am preparing an overview for publication), is much, much different from the forum non DNA. By cutting and pasting of the criteria indeed by cross-reference to the forum non criteria without further ado, the A33-34 analysis is irreparably broken. It becomes a case of mixing the blank rounds with the live bullets.

It is worth emphasising that the limited A33-34  analysis are obiter findings only.

Geert.

European Private International Law, 3rd ed. 2021, 2.539 ff.

Abusive forum shopping in defamation suits. The Parliament study on SLAPPs.

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.

 

Applicable law in cases of purely economic loss following judgment in Vereniging van Effectenbezitters.

I have reported before on the jurisdictional consequences of CJEU Vereniging van Effectenbezitters v BP. In this post for the European Association of Private International Law, I give my views on the impact for applicable law.

Geert.

Khalifeh v Blom Bank. On the availability of anti-suit to deter consumer contract proceedings ex-EU.

At issue in  Khalifeh v Blom Bank S.A.L. [2021] EWHC 1502 (QB) is inter alia whether an anti-suit injunction is available to  a claimant who purports to have the protection of Section 4 of the Brussels Ia Regulation. That is the section which protects consumers by granting them a forum actoris and by limiting suits against them to, in principle (limited extensions are possible) their place of domicile. The contract is one in the banking sector, for the opening of 2 USD accounts. Defendant is a Lebanon-incorporated bank. The proceedings which are to be restrained, take place in Lebanon. Current order concerns anti-suit only. Other issues, including applicable law per Rome I (where of course the consumer title also plays a role) are not addressed.

The case is part of my essay questions in a conflicts exam at Leuven today. I would expect students to refer to the discussions in Gray v Hurley and to any reasons for EU courts to exercise, or not, judicial muscle-power in upholding the jurisdiction of courts in the EU as against that of courts outside it.

Claimants calls in support upon Samengo-Turner v J & H Marsh [2007] EWCA Civ 723 and Petter v EMC Europe Ltd [2015] EWCA Civ 828. In those cases, concerning employees, anti-suit was employed viz employers’ potential action outside the EU. Defendant doubts the authority of both (and in particular of Samengo-Turner, a first instance judgment). It refers to both scholarly criticism of the position, and to the Court of Appeal’s recent finding in Gray v Hurley, referred to the CJEU but unfortunately (for reasons of legal certainty) since dropped.

At [38] Freedman J holds he need not make a ‘binary’ decision at this stage, and refuses the application for anti-suit, leaving the discussion for full debate at trial. Part of his reason for doing so is defendant’s commitment not to take the case in Lebanon any further at this stage (no commitment has been made of it to be dropped). At that trial, the ATI debate may continue (this, one imagines, will depend on defendant’s actions in Lebanon), as of course will the applicability of Rome I’s protected categories of consumers.

A trial to look out for.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.24.

Mittelbayerischer Verlag: the CJEU surprisingly reigns in Article 7(2) centre of interests jurisdiction in cases of online defamation.

I reviewed the AG’s Opinion in C-800/19 Mittelbayerischer Verlag KG v SM here. The CJEU held yesterday (no English version yet at the time of posting). Tobias Lutzi already has analysis up here.

As I reported at the time, the AG suggested that despite the need for restrictive interpretation of the special jurisdictional rules, in the case at issue there was foreseeability of many a Pole’s centre of interests as a tort gateway, given the predictable fall-out of protest among Poles given the contents and context of the article (please refer to earlier post for detail): an ‘objective foreseeability test’.

The CJEU however restricts the availability of the centre of interests gateway further:  [46]

article 7, point 2, du règlement no 1215/2012 doit être interprété en ce sens que la juridiction du lieu où se trouve le centre des intérêts d’une personne prétendant que ses droits de la personnalité ont été violés par un contenu mis en ligne sur un site Internet n’est compétente pour connaître, au titre de l’intégralité du dommage allégué, d’une action en responsabilité introduite par cette personne que si ce contenu comporte des éléments objectifs et vérifiables permettant d’identifier, directement ou indirectement, ladite personne en tant qu’individu.

The aggrieved needs to be identifiable, at the time of publication, as an individual, not as belonging to an abstract group of offended persons.

With Gtflix TV pending, the CJEU will have a further opportunity to clarify the A7(2) gateway for defamation.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 2.2.12.2.5, and para 2.598 in fine.

 

 

Dhir v Flutter. How choice of law takes you via Rome, to DIFC and Dubai.

A quick note on Dhir v Flutter Entertainment Plc (Rev 2) [2021] EWHC 1510 (QB), in which Griffiths J had to consider ia whether choice of law had been made at all and if so (or also if no choice of law had been made), whether this was for the onshore law of the Emirate of Dubai – onshore Dubai law, or for the law of the Dubai International Financial Centre – DIFC.

Claimant (Amarjeet Dhir) is a Dubai-based businessman who advanced money to another businessman in Dubai which he thought would be invested in the local property market. Unknown to him, the man taking his money (Tony Parente) was a gambling addict. As Mr Parente now admits, he applied money he had been given by Mr Dhir (and, it seems, others) to fund his gambling habit. One of the gambling businesses with which he lost a lot of money in a short space of time was the defendant, through that part of its operations branded as Paddy Power. Mr Dhir now seeks to recover from Paddy Power money in its hands which he says represents the money he is entitled to recover from Mr Parente.

The relevant agreement includes express choice of law as follows: 

“This agreement is signed in Dubai and shall be governed and construed in accordance with the laws of Dubai”.

Claimant says that it meant DIFC laws, while defendant says that it means onshore Dubai law). All experts agreed that it had to be one or the other: it could not be both.

[116] jurisdiction before the E&W Courts is by prorogation (A26 Brussels Ia). Both parties agree [129] that the Rome I Regulation guides the search for the lex contractus. The agreement is silent on choice of court: otherwise that could certainly have been a factor in determining choice of law (recital 12 Rome I). In general [118] the judge is cautious in ‘letting the jurisdiction dog wagging the choice of law tail’, and held the many ties of parties and contract with Dubai (including signature at Dubai and not DIFC: a geographically distinct location) pointed to onshore Dubai law as  lex contractus.

Choice of law therefore made not verbatim, yet ‘clearly demonstrated’ (A3(1) Rome I).

Geert.

EU Private International Law, 3rd ed. 2021, Heading 3.2.4.

Brussels IA arbitration exception claxon. Recognition of Spanish Prestige judgment in England & Wales. Res judicata issues concerning arbitration referred to the CJEU. Ordre public exceptions re Human Rights not upheld.

The London Steam-Ship Mutual Insurance Association Ltd v The Kingdom of Spain (M/T PRESTIGE) [2021] EWHC 1247 (Comm) has been in my blog in-tray for a little while: I had thought of using it for exam purposes but have now decided against that.

The case is the appeal against Cook J’s registration of the Spanish judgment in the Prestige disaster.  I have reported thrice before on the wider litigation – please use tag ‘Prestige’ in the search box.

References in the judgment are to Brussels I (44/2001), not its successor, Brussels Ia (1215/2012) however the  relevant provisions have not materially changed. Application is for recognition and enforcement of the Spanish Judgment to be refused,  and the Registration Order to be set aside for one or both of two main reasons, namely: (1) that the Spanish Judgment is irreconcilable with a 2013 Hamblen J order, upheld on Appeal,  enforcing the  relevant Spanish award (A34(3) BI), and (2) that recognition would entail a manifest breach of English public policy in respect of (a) the rule of res judicata and/or (b) human and fundamental rights (A34(1) BI).

Butcher J referred the first issue to the CJEU on 18 December 2020 – just before the Brexit deadline. I have not been able to obtain a copy of that judgment – the judge merely refers to it in current one. The CJEU reference, now known as Case C-700/20, is quite exciting for anyone interested in the relationship between arbitration and the Brussels regime. Questions referred, are

1) Given the nature of the issues which the national court is required to determine in deciding whether to enter judgment in the terms of an award under Section 66 of the Arbitration Act 1996, is a judgment granted pursuant to that provision capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of EC Regulation No 44/2001?

(2) Given that a judgment entered in the terms of an award, such as a judgment under Section 66 of the Arbitration Act 1996, is a judgment falling outside the material scope of Regulation No 44/2001 by reason of the Article 1(2)(d) arbitration exception, is such a judgment capable of constituting a relevant ‘judgment’ of the Member State in which recognition is sought for the purposes of Article 34(3) of the Regulation?

(3) On the hypothesis that Article 34(3) of Regulation No 44/2001 does not apply, if recognition and enforcement of a judgment of another Member State would be contrary to domestic public policy on the grounds that it would violate the principle of res judicata by reason of a prior domestic arbitration award or a prior judgment entered in the terms of the award granted by the court of the Member State in which recognition is sought, is it permissible to rely on Article 34(1) of Regulation No 44/2001 as a ground of refusing recognition or enforcement or do Articles 34(3) and (4) of the Regulation provide the exhaustive grounds by which res judicata and/or irreconcilability can prevent recognition and enforcement of a Regulation judgment?

These are exciting questions both on the arbitration exception and on the res judicata refusal for recognition and enforcement. They bring into focus the aftermath of CJEU West Tankers in which the status of the High Court confirmation of the English award was also an issue.

The Club’s argument that recognition would be contrary to English public policy because the Spanish Judgment involved a breach of human and fundamental rights was not referred to the CJEU. Discussion  here involves ia CJEU Diageo. Suggested breaches, are A 14(5) ICCPR; breach of fundamental rights in the Master being convicted on the basis of new factual findings made by the Supreme Court; inequality of arms; and; A1P1.

There is little point in rehashing the analysis made by Butcher J: conclusion at any rate is that all grounds fail.

That CJEU case is one to look out for!

Geert.

EU Private International Law, 3rd ed 2021, 2.84 ff, 2.590 ff.