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East-West Logistics v Melars. A good reminder of the strength of a company’s place of incorporation as a presumption of Centre of Main Interests (insolvency).

A bit of a late follow-up to a 1 November Tweet but hey ho, I have been a tad busy and it is nevertheless good to still have the post up.

East-West Logistics Llp v Melars Group Ltd [2022] EWCA Civ 1419 is a good reminder of the importance of ascertainability by third parties for determination of a corporation’s Centre of Main Interests – COMI. The appeal against Miles J’s finding in [2021] EWHC 1523 (Ch) was rejected and Malta as place of COMI confirmed.

The Company was incorporated in the British Virgin Islands -BVI and entered into a charterparty with the Petitioner in December 2011 for a shipment to Turkmenistan. The address of the Company in the charterparty was stated to be in the BVI. The charterparty contained a clause providing for disputes to be resolved by arbitration in London under English law. Following a disputed shipment, the Petitioner tried to but failed to launch LCIA arbitration (the tribunal holding it did not have jurisdiction), followed by successful proceedings in BVI resulting in a judgment in default against the company, which the latter later managed to have set aside. Without notifying the Petitioner, the Company had in the meantime moved its place of incorporation, and hence its registered office, to Malta.

On 19 July 2016 the Petitioner then presented a winding up petition in London based upon its BVI judgment debt. The Petition alleged that COMI of the Company was in the UK, citing pro UK as COMI [11] (prima facie rather flimsily) that i) the six commercial contracts concluded by the Company of which the Petitioner was aware (including its own charterparty) were in the English language, were governed by English law and had arbitration clauses providing for arbitration in London; and ii) the Company participated in the LCIA arbitration in London and was represented by a London firm (or firms) of solicitors. Against Malta as COMI, it suggested i) the Company did not actually have an office there, its registered office address being that of a Cypriot law firm providing company administration services; ii) the Company did not have any employees or conduct any business in Malta; iii) the Company’s sole director was a nominee who was a Swiss national, resident in South Africa; and iv) the Company’s sole shareholder and principals were Russian.

Baister J made a winding-up order, citing [20] the forum shopping background and the corporation not much being involved in physical, rather virtual trade, deciding ‘ by a narrow margin and with misgivings, that on balance the greater use of English law for contracts, the greater use of London as a seat of arbitration, the actual recourse to or forced involvement in legal proceedings here and the consequential use of English lawyers makes the UK, on the balance of probabilities, the main centre of those interests. The company’s affairs seem to have been conducted in this country more than in Switzerland [SW plays a role because of a Swiss national, GAVC],  certainly as far as contractual and litigation interests were concerned, although it is, I accept, hard to be precise.”

That judgment was overruled on appeal, with Miles J concluding ‘that Judge Baister had erred in principle in three ways in his approach to the determination of the Company’s COMI. The first was in relation to the importance of the presumption in Article 3(1), the second was in relation to the concept of ascertainability, and the third was in failing to distinguish between matters of administration of the company’s interests and matters going to the operation of its business.’

Upon further appeal, Lewison LJ agreed with Miles J. [46] ‘lack of evidence that the debtor actually carries out any activities at the place of its registered office does not allow the court to ignore or disregard the legal presumption under Article 3(1).’

He is right! [47] ‘The court must be alert to detect fraudulent or abusive forum shopping by purported changes of COMI by a debtor’ however ‘the question in such cases is whether the move of COMI is real or illusory. It is not whether the move of the debtor’s registered office is real or illusory.’

[63] “the court should not invent a hypothetical “typical” third party creditor with “average” or “normal” characteristics, and form a view on what might (or might not) have been apparent to that creditor in the course of a notional dealing by him with the company. Neither the EU Regulation nor the jurisprudence of the CJEU refer to the concept of a “typical” creditor, but refer instead, and more generically, to “creditors” or “third parties”.”

[80] “none of the factors relied upon by the Petitioner were, individually or collectively, sufficient to establish that the Company actually conducted the administration of its interests on a regular basis in England (or any other particular location) so as to displace the presumption in favour of Malta under Article 3(1).”

One’s intuition in a case like this may be not to have much sympathy for a corporation engaging in COMI /seat forum shopping. However that intuition is not reflected in the Regulation’s presumptive treatment of incorporation as COMI.

Geert.

EU Private International Law, 3rd ed. 2021, Heading 5.6.1.

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The CJEU in CIHEF on French restrictions to marketing and advertising of rodenticides and insecticides. A masterclass on exhaustive legislation, and on Trade and Environment.

I am hoping for a few gaps in yet again a mad diary this week, to catch up on quite a few developments I tweeted on earlier. First up is judgment in C‑147/21 Comité interprofessionnel des huiles essentielles françaises (CIHEF) et al v Ministre de la Transition écologique ea. The case concerns the possibility for Member States to adopt restrictive measures on commercial and advertising practices for biocidal products. It is a good illustration of the mechanism of precaution or pre-emption in EU law, and of the classic application of Article 36 TFEU’s exceptions to free movement of goods.

Applicants contest the French restriction of commercial practices such as discounts and rebates, as well as advertising, for two specific biocides categories: rodenticides and insecticides. The secondary law benchmark is Biocidal Products Regulation 528/2012.

As for the first category, commercial practices such as discounts, price reductions, rebates, the differentiation of general and specific sales conditions, the gift of free units or any equivalent practices, the Court, also seeking report in the AG’s Opinion, held [33] that the Regulation’s definitions of ‘making available on the market’ and ‘use’ of biocidal products are as such sufficiently broad to cover commercial practices linked to the sale of those products, however [34] that the Regulation does not seek to harmonise the rules relating to commercial practices linked to the sale of biocidal products.

That leaves the classic CJEU Case 8/74 Dassonville test (all measures of a Member State which are capable of hindering, directly or indirectly, actually or potentially, trade within the European Union are to be considered as measures having an effect equivalent to quantitative restrictions within the meaning of that provision), tempered by Joined cases C-267/91 and C-268/91 Keck et Mithouard : there is no direct or indirect hindrance, actually or potentially, of trade between Member States, in the event of:

  • the application to products from other Member States of national provisions restricting or prohibiting certain selling arrangements [[39] of current judgment the CJEU confirms this is the case here]
  • on condition that those provisions apply to all relevant traders operating within the national territory [41 held to to be the case here] and that they affect in the same manner, in law and in fact, the marketing of domestic products and of those from other Member States [[42] held to have to be judged by the national court but 43 ff strongly suggested to be the case here (i.e. there not being distinctive affectation of domestic cq imported products)].

Should the national court decide that (unlike what the CJEU indicates) the French measures are not selling arrangements, carved out from Article 34’s scope altogether, the CJEU [48] ff holds that the French measures most likely  (the final arbiter will be the French judge) enjoy the protection of both Article 36 TFEU’s health and life of humans exception, and the Court’s Cassis de Dijon-inserted ‘overriding reason in the public interest’ aka the rule of reason aka the mandatory requirements exception: strong indications are that the measures are justified by objectives of protection of the health and life of humans and of the environment, that they are suitable for securing the attainment of those objectives and that they do not not go beyond what is necessary in order to attain them. The referring court will have to confirm.

As for the French obligations relating to advertisements addressed to professionals (which includes in particular adding a specific statement), here the Court holds [60] ff that the Regulation does exhaustively harmonise the  wording of statements on the risks of using of biocidal products which may appear in advertisements for those products. This precludes the relevant French rules.

[68] ff however the French prohibition of advertising addressed to the general public, is held not to have been regulated by the Regulation, with the Court coming to the same conclusions as above, viz Article 34’s selling arrangements carve-out and, subsidiarily, Article 36 TFEU’s and the rule of reason exceptions.

A final check therefore is to be done by the referring court however it seems most likely the French restrictions will be upheld.

Geert.

EU Environmental Law, 2017, Chapter 17, p.308 ff.

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Asian Offshore Services v Self Elevating Platform – SEP. A sloppy conclusion on ‘Principal place of business’ in Brussels Ia.

I am mopping up draft posts so forgive me if some of them are a touch late compared to my original report on them on Twitter.  Asian Offshore Services v Self Elevating Platform ECLI:NL:RBROT:2023:34 of the Court of First Instance at Rotterdam is an interesting illustration of the positive conflicts rule of Article 4 juncto Article 63 Brussels Ia.

Article 4’s domicile rule is supplemented by Article 63’s definition of domicile for legal persons:

Article 63:

1.   For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: statutory seat [Dutch: statutaire zetel]; central administration; [Dutch: hoofdbestuur] or principal place of business [Dutch: hoofdvestiging].

2.   For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.

3.   In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law.

A63 may lead to so-called positive conflicts: more than one court considering itself to be the domicile of the defendant. This is interesting nota bene in the case of business and human rights cases where claimants may want to forum shop and sue in the EU, such as in Anglo American.

In the case at issue, the court first of all [4.2] dismisses the parties’ awkward consensus [4.1] that neither Brussels Ia, nor any international Treaty determines jurisdiction. Clearly Brussels Ia does apply (claimant is domiciled at Kuala Lumpur; defendant registered in Curaçao) and the Court applies it proprio motu.

The court then points to the statutory seat in Curaçao, and [4.9] notes SEP’s lack of contestation that Sliedrecht is its ‘fixed place of business’ as testified by an extract from the local commercial register. Now I a may be a stickler for language here but a fixed place of business is not the same as the principal place of business (which implies main business activities). It is the latter which the Regulation requires.

Geert.

EU Private International Law, 3rd ed. 2021, 2.131 ff.

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Dutch judge gives green light to export ban for fuels banned under EU law. Gives short shrift to extraterritoriality and leakage arguments.

In Zenith Energy Amsterdam B.V. and Exolum Amsterdam BV v The Netherlands a Dutch judge last week rejected the challenge by fuel traders of the Dutch ban on export of fuels to non-EU (particularly Ecowas) countries of fuels falling short of the EU requirements under Directive 98/70. The Dutch Statute is the culmination of established Dutch studies of the sector (The Netherlands being a prime tank storage country) and of repeated EOWAS calls that the export causes issues on their territories.

A first test is the duty of care under the Dutch environmental laws, which in summary obliges industry et al to prevent and /or limit the environmental and public health impacts of their production. The judge [4.10] refers to the travaux and recitals of the Act which contains the duty of care, as having recognised the global, one might say ‘extraterritorial’  impact of Dutch and European industrial activities, and emphasises that the duty of care requires a dynamic interpretation in line with societal and technical developments.

In 4.13 the judge emphasises that Directive 98/70 does not harmonise export outside of the EU and that the Directive therefore does not impede national rules on export and in 4.14 the rule is said not to force duties upon third States who themselves have signalled the difficulties. The judge also explicitly refers to Urgenda and UNEP to emphasise that looking after the environment and public health elsewhere, is an expression of the State’s own duty of care. 4.16 ‘fuel leakage’ (the drug dealer defence: trade will just move elsewhere, Antwerp in particular) has not been made out on the facts, quite the opposite, the State can show that the majority of traders already export cleaner fuel from Dutch ports.

Of note is also that the judge, Vetter J, in commendable Dutch style, does not exhaust himself in the arguments, rather cutting straight to the chase.

A judgment of note. Geert.

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Public Institution for Social Security (PIFFS) v Ruimy. The High Court on ‘case pending’ in Article 34 Brussels Ia (forum non light), and a disappointing obiter conflation of forum non and Article 34.

In Public Institution for Social Security v Ruimy & Anor [2023] EWHC 177 (Comm) Jacobs J rejected both a forum non conveniens argument and an (acquired Brussels Ia) Article 34 Brussels Ia argument (raised by a Luxemburg-based defendant).

My paper on the Article 34 genesis and case-law hitherto is here.

Current claims are related to earlier jurisdictional challenges, culminating in The Public Institution for Social Security v Banque Pictet & Cie SA & Ors [2022] EWCA Civ 29 which I discuss here.

PIFSS is a Kuwaiti public institution responsible for Kuwait’s social security system and pension scheme. The claims involve alleged corruption of PIFSS. Director General by international financial institutions and intermediaries in return for causing or influencing PIFSS to invest substantial funds with or through those institutions and intermediaries (or related entities).

Following the Court of Appeal’s decision in January 2022 to uphold the successful jurisdictional challenge by some of the parties (‘the Mirabaud parties’), PIFSS have commenced proceedings against three of the Mirabaud parties (Banque Mirabaud, Mr Pierre Mirabaud and Mr Fauchier-Magnan) in Switzerland. These Swiss proceedings no longer, include a claim in respect of one of the schemes, the ‘Aerium’ scheme. Instead, the claim in those proceedings concerns a large number of other schemes in which the Mirabaud parties are alleged to have participated or assisted.

The forum non arguments are discussed [43] ff and are of course only possible because the United Kingdom are no longer party to the Lugano Convention (and the Swiss proceedings initiated post Brexit). At the heart of the forum non conveniens argument of some of the defendants in current claim, incl. Ruimy, is the proposition that the Aerium Scheme claims should be heard in Switzerland alongside the other claims advanced against the Mirabaud parties. [65] ff Jacobs J holds that defendants have not shown that Switzerland was clearly or distinctly more appropriate than the English forum.

I do not discuss forum non in detail for the interest of the post lies more with the Article 34 analysis.

This is discussed briefly [118] ff with the judge unfortunately albeit obiter following defendants’ concession that failure of the forum non argument would also sink Article 34. The reasoning seems to be that Article 34’s “necessary for the proper administration of justice” test fails if the third State at issue is not shown to be  the clearly or distinctly more appropriate than the English forum. As I discuss in my paper, this is wrong, and it falls into the same trap as the first instance judge in Municipio. While considerations relevant to the forum non test may play a role in Article 34, it is wrong to conflate the two tests.

As noted this view is made obiter only for the formal reason for the judge to reject the Article 34 defence is his decision that Article 34(1)’s condition  that an action be ‘pending before a court of a third State at the time when a court in a Member State is seised of an action which is related to the action in the court of the third State’, has not been met. Per the Court of Appeal in Municipio, “The action in the third state must be pending before the third state court when the member state court becomes seised of the action” (see also Henshaw J in Viegas v Cutrale[149]).

[122] Swiss proceedings which might potentially be considered to be relating to the English proceedings came too late, they were most definitely not pending at the time of the current English claims.

The only potentially relevant “proceedings”, in the context of Article 34, are the proceedings commenced by the service of the commandements de payer, however, they are held not to qualify: [129]

I agree with PIFSS that the request and issue of the commandements de payer did not mean that proceedings were “pending before a court” of Switzerland. In short, this is because there was no document lodged with any court. Commandments de payer are issued by administrative authorities, not a court. …a commandement de payer is at most a precursor to an action in court. In the present case, there was an objection by the recipient, with the result that court proceedings were then necessary if the requesting party wanted to take matters forward. This is what happened in the present case, when PIFSS did issue civil proceedings against the Mirabaud parties in 2022. But there were no relevant court proceedings issued by PIFSS in Switzerland prior to that time.

A judgment of note.

Geert.

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Third party funding for climate change litigation.

A short note to refer to this post on the Wave News which focuses on third party litigation funding and how it might be used in climate change litigation, with input by Yours Truly. A good introductory summary of the opportunities and points of attention of third party funding generally, too.

Geert.

 

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Bravo v Amerisur Resources (Putumayo Group Litigation). Claimants survive time-bar challenge despite questionable finding on Rome II’s evidence and procedure carve-out.

In Bravo & Ors v Amerisur Resources Ltd (Re The Amerisur plc Putumayo Group Litigation) [2023] EWHC 122 (KB) claimants, who live in remote rural communities in the Putumayo region of Colombia, seek damages from the defendant pursuant to the Colombian Civil Code, and in reliance on Colombia Decree 321/1999, in respect of environmental pollution caused by a spill (or spills) of crude oil on 11 June 2015. The claimants’ two causes of action are pleaded under the headings (i) guardianship of a dangerous activity and (ii) negligence. It is common ground between the parties that the oil spillage was the result of deliberate acts by terrorist organisation, FARC.

Steyn J yesterday held on preliminary issues, including statute of limitation. Defendant contends that the two year limitation period provided by relevant Colombian law re Colombian group actions (‘Law 472’), applies to the claim. Parties agree that in substance, Colombian law is lex causae per A4 and A7 Rome II.

Claimants rely on two points of English law and one of Colombian law. First, they contend that the relevant Article of Law 472 is a procedural provision within the meaning of A1(3) Rome II, and therefore it falls outside the scope of Rome II. I believe they are right but the judge did not. Secondly, they refute the defendant’s contention that this action should be treated as a group action under Law 472. Thirdly, even if they are wrong on both those points, they submit that application of the time limit of Law 472 would be inconsistent with English public policy, and so the court should refuse to apply it pursuant to A26 Rome II.

All but one links to case-law in this post refer to my discussion of same on the blog, with pieces of course further linking to the judgment. Apologies for the pat on my own back but it is nice to see that all but one (Vilca, where parties essentially agreed on the Rome II issue) of the cases referred to in the judgment all feature on the blog.

For claimants, Alexander Layton KC referred to Wall v Mutuelle de Poitiers Assurances and Actavis UK Ltd & ors v Eli Lilly and Co (where the issues were discussed obiter). Defendants rely on Vilca v Xstrata Ltd [2018] EWHC 27 (QB), KMG International NV v Chen [2019] EWHC 2389 (Comm), Pandya v Intersalonika General Insurance Co SA [2020] EWHC 273 (QB), [2020] ILPr 44 and Johnson v Berentzen [2021] EWHC 1042 (QB).

My reception of the High Court’s conclusions in KMG, Pandya, and Johnson was not enthusiastic, and in my review of Pandya in particular I also suggest that the same scholarship relied on in this case, did not actually lend support to the  defendant’s arguments, and I stand by that, too.

Hence Steyn J’s conclusion [102] that Article 15 Rome II

contains a list of matters which are ‘in particular’ to fall under the designated law, irrespective of whether they would be classified as matters of substance or procedure

and [106]

that the provisions of article 15 of Rome II should be construed widely

in my view is wrong. (Note the linguistic analysis in [110] will be of interest to readers interested in authentic interpretation of multi-lingual statutes).

 

[109] The key question then is which Colombian limitation period applies to these English proceedings, which brings the judge to discuss [115] ff ia Iraqi Civilians v Ministry of Defence (No.2). Here the judge, after discussing Colombian law evidence, holds [137]

that this action has not been brought under Law 472, and it does not fall to be treated as if it had been brought as a Colombian group action. Therefore, this action is not time-barred pursuant to article 47 of Law 472.

Hence claimants lost the argument on Rome II’s procedural exception but won the argument on application of Colombian law.

[139] ff whether the limitation rule should be disapplied pursuant to A26 Rome II is discussed obiter and summarily, with reference of course to Begum v Maran which I discuss here. The judge holds A26’s high threshold would not be met.

Both parties have reason to appeal, and one wonders on which parts of Rome II, permission to appeal will be sought.

Geert.

EU Private International Law, 3rd ed. 2021, ia para 4.80.

 

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X v PayPal. Questionable Dutch compulsory settlement jurisdiction reignites discussion similar to English scheme of arrangement tourism. Also raises the question whether compulsory settlements are ‘contracts’ under Rome I.

The Dutch first instance judgment in Groningen  earlier this month, in X v PayPal (Europe) S.a.r.l. & Cie S.C.A., sees claimant debtor essentially seeking a compulsory settlement – CS. PayPal (established in Luxembourg) is the only debtor refusing the settlement proposed by claimant’s bank.

The CS is not listed in Annex I to the Insolvency Regulation 2015/848 (always check for the consolidated version, for the Annex is frequently updated by the Member States’ communication of proceedings to be included). This is where the discussion of scope of application could and should end.

Instead, the judge tests the CS against A1(1)’s abstract criteria. She decides there is neither divestment of assets, nor a temporary stay of individual enforcement proceedings.

This then raises the applicability of Brussels Ia. Seeing as the judge finds the action does not meet with the CJEU F-Tex criteria (Brussels Ia’s insolvency exception only applies to actions which derive directly from insolvency proceedings and are closely connected with them), she holds that Brussels Ia’s ‘insolvency’ exception is not triggered and that BIa applies.

The judge then cuts the corner which English courts in schemes of arrangement have often cut, namely to consider the willing debtors, domiciled in The Netherlands, as ‘defendants’ per Brussels Ia, hereby triggering Article 8(1) BIa’s anchor defendant mechanism. The judge justifies this by stating that the other creditors are interested parties and that it is in the interest of the sound administration of justice that the CS be discussed viz the interested parties as a whole. That may well be so, however in my view that is insufficient reason for A8(1) to be triggered. A8(1) requires ‘defendants’ in the forum state, not just ‘interested parties’. The suggestion that a co-ordinated approach with an eye for all interested parties, justifies jurisdiction, puts A8(1)‘s expediency cart before the A4 ‘defendant’-horse.

The judge then also cuts corners (at least in her stated reasons) on the applicable law issue, cataloguing this firmly in Rome I. She argues that even if the CS is a forced arrangement, replacing a proposed contract which party refused to enter into, it is still a contractual arrangement. That is far from convincing.

Equally not obvious is as the judge holds, that  per A4(2) Rome I, the party required to effect the ‘characteristic performance’ of a compulsory settlement, is the claimant-debtor of the underlying debt, leading to Dutch law being the lex causae.

The judgment at the very least highlights the continuing elephant in the restructuring tourism room, namely the exact nature of these proceedings under Brussels Ia, EIR and Rome I.

Geert.

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JP v Ministre de la Transition écologique. The CJEU unlike its AG, rules out Frankovich liability for the EU air quality Directives.

Update 02 02 2023 see further analysis by Mario Pagano here.

A disappointing judgment was issued just before end of year 2022, when the Court, unlike its Advocate General Kokott, held that the ambient air quality Directives do not directly grant a right to compensation in the event of an infringement of the limit values.

In Case C-61/21 Ministre de la Transition écologique and Premier ministre, the CJEU essentially insisted ‘Frankovich’ liability (the power for individuals to claim compensation, on the basis of EU law, of EU Member States when the latter fail properly to implement EU law; Such liability is subject to three conditions: namely that the rule of EU law infringed is intended to confer rights on them, that the infringement of that rule is sufficiently serious and that there is a direct causal link between that infringement and the damage suffered by those individuals) can only be extended to cases where the EU secondary law at issue, grants individual rights.

The Court held however that even though [54] the air quality Directives impose clear and precise duties which the Member States need to achieve, these are aimed at protecting the environment and public health as a whole, not individuals’ right to health and environmental protection [55].

Some might see in this reasoning a strict schism suggested by the Court between the collective enjoyment of public health and a healthy environment on the one hand, and the individual availability of same. I do not think though that this is what the Court had in mind, rather, one assumes, an ambition to cap the amount of cases that might otherwise reach the CJEU.

The Court then directs individuals to the national level, so as to obtain if necessary a court order forcing the authorities to draw up relevant plans (a route confirmed by Case C‑404/13 Client Earth) and it of course confirms that national law may be more generous [63].

The unfortunate consequence of the judgment is that there will not be a level playing field for individuals when it comes to employing the right to compensation for infringement of EU law, and of course an encouragement of a certain amount of forum shopping.

Geert.

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Oxford University v Oxford Nanoimaging. On unfair trading terms in retained EU consumer law, the Brussels regime and substantive consumer law.

In Oxford University Innovation Ltd v Oxford Nanoimaging Ltd [2022] EWHC 3200 (Pat) Daniel Alexander KC in a lengthy judgment eventually held for the University in a dispute on the validity of the University’s contractual terms claiming intellectual property over research students’ work. The case is of interest to the blog in that it contrasts the consumer provisions in the ‘Brussels (conflict of laws) regime’ with those of substantive consumer law.

[8] The thrust of ONI’s case is that Oxford’s approach to allocation of the commercial fruits of research is unfair to DPhil students and, more particularly, unfair to Mr Jing, the young researcher, in the circumstances of the case. More specifically it is said that Oxford’s policies are unfairly weighted in favour of the University and senior academics, who may have contributed less to the detail of the work than more junior researchers or inventors.

Applicability or impact of consumer protection legislation on terms relating to intellectual property rights of students is core to the case. The Unfair Terms in Consumer Contracts Regulations 1999/2083 – UTCCR are derived from the European Directive on Unfair Terms in Consumer Contracts 93/13, the ‘Unfair Consumers Terms Directive’ UCTD, which is retained EU law and the CJEU authority on same is retained EU case law [240] . They only apply to contracts between a “consumer” and a “seller or supplier”. Was Mr Jing such a ‘consumer’?

UK courts regularly made recourse to Brussels  Convention and later Brussels Ia cases in the absence of much CJEU UCTD authority. The judge correctly holds [242] that one must be cautious with such approach pro inspiratio, as indeed I have also pointed out on this blog before, and discusses ia CJEU Benincasa, Gruber, Schrems, Milivojevic, albeit not CJEU Reliantco, and the UK cases of Standard Bank v Apostolakis, AMT Futures v Marzillier and Ang v Reliantco. In the discussion on whether the Brussels case-law has an impact on the UCTD, he refers ia to Weco Projects. [288] he points out that when later CJEU authority did interpret the term ‘consumer’ in the UCTD directly (eg Karel de Grote), it made fairly little reference to Brussels authority. [306] he decides the UCTD approach to ‘consumer’ is ‘more expansive’ and ‘not as strictly’ as under the Brussels regime and [310] rejects Oxford’s submission that it is necessarily the right approach to this case under the UCTD to adopt the framework of analysis of dual-purpose contracts of the Brussels Convention/Regulation case law. This also includes [320] a different approach to the burden of proof.

[410] the final conclusion is that a ‘DPhil student is normally entitled to be treated as a consumer under the UCTD and that it does not matter for this purpose whether the student is undertaking that educational qualification with a view to her career, profession and/or professional advancement’  and [425] that ‘Oxford has not shown that Mr Jing’s circumstances were such that it would be wrong to treat him as a consumer in entering into the DPhil Contract he did.’ However eventually [639] the terms were not judged to be ‘unfair’.

Many of the issues raised are new and one assumes permission to appeal may have been sought.

Geert.

EU private International Law, 3rd ed. 2021, 2.231 ff.

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