Posts Tagged Assignment
Percival v Moto Novu. Your tutorial on enforcement of judgments under Brussels Ia, courtesy of Justice Murray.
In  EWHC 1391 (QB) Percival v Moto Novu LLC Murray J considers the ins and outs of Article 38 Brussels Ia.
The dispute arose out of an aborted property transaction in Italy. Mr Teruzzi and Ms Puthod are husband and wife. La Fattoria was a “pass-through” company incorporated under Italian law and owned by Mr Teruzzi and Ms Puthod through which the property at the centre of the dispute was temporarily owned. It has since been dissolved.
By an Assignment of Rights of Judgment dated 28 March 2011 (but signed by the parties on 29 June 2011) and governed by the laws of the Commonwealth of Massachusetts (“the 2011 Assignment”), Mr Teruzzi assigned to the respondent, Motu Novu LLC (“Motu Novu”), a Delaware limited liability company, all of his right, title and interest in the Tribunal Judgment and the CA Milan Judgment. There is a dispute between the parties as to whether the 2011 Assignment was also effective to transfer the right, title and interest of Ms Puthod and La Fattoria in those judgments or, if not, whether that fact is relevant to the effectiveness of the registration.
At 8: Title III (the recognition and enforcement Title) involves two stages: i) under Article 39 of the Regulation, a first stage involving only the applicant, who must be an “interested party” and who applies ex parte to the relevant “court or competent authority” listed in Annex II to the Regulation to obtain an order for registration of the foreign judgment in order to permit enforcement locally; and ii) under Article 43 of the Regulation, a second stage, inter partes, during which the respondent (the judgment debtor) has the opportunity to raise certain limited objections by lodging an “appeal” (under English CPR rules this would be an application to set aside the order).
Under Article 44 of the Regulation, the order made on appeal under Article 43 is subject to a single further appeal on a point of law.
At 11: The ex parte stage of the registration process is governed by Articles 38 to 42 of the Regulation. The inter partes stage is governed by Articles 43 to 47. The remainder of section 2 of chapter III of the Regulation, Articles 48 to 52, deals with miscellaneous points that do not arise in this case, other than in relation to Article 48 (undue delay).
The process is further described in detail in the judgment. This is most helpful. Unless one has done one of these oneself, in all Member States the actual procedure is often shrouded in various levels of fog.
Of longer term authority interest is the discussion of the mistake made at an earlier stage, to register all 3 Italian judgments even though under Italian law only one of them was actually enforceable. At 44 Murray J in my view justifiably excuses this error: there is nothing ‘in the Regulation, or otherwise, (that) limits an applicant’s registration of a foreign judgment to the proportion to which he is entitled. I have seen no authority for that proposition.’
What is also of note is the concept of ‘interested party’. At 45:
The term “interested party” is not defined in the Regulation, but a person who is the assignee of a named judgment creditor, even where there are other named judgment creditors, is clearly an interested party. It seems to me fundamentally incompatible with the deliberately limited and mechanical nature of the registration process under chapter III of the Regulation that the registering court or competent authority should be required to enquire into the nature and extent of an applicant’s interest in a judgment, beyond what is necessary to establish prima facie that the applicant is an interested party.
I believe this is right. That the proceedings leading to the Italian Judgment were served on the Original Claimants on 17 January 2011, pre-dating the 2011 Assignment by over two months has therefore become irrelevant (at 48).
Intricate detail of Title III is not often litigated. This judgment is noteworthy.
(Handbook of) EU private international law 2nd ed. 2016, Chapter 2, Heading 2.2.16.
A former dean of ours reportedly once suggested that the last thing one should do with something urgent, is tackle it immediately. I have had a draft post on the EC’s assignment proposals in my ledger since 20 March 2018. Colleagues in private law (prof Matthias Storme, too) had already flagged the issues with the applicable law proposal COM(2018) 96 in particular. Now the need for a separate post has been overtaken by Alexander Hewitt’s excellent overview here, following EP first reading.
No more needs to be said.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 3.
Heavily loaded. Applicable law in follow-up competition cases: watch the Dutch Supreme court in Air Cargo.
Update March 2018. Quentin’s blog has a link to the SC decision refusing to take the case, considering it was academic given that an appeal against the decision of the European Commission is still pending before the EU courts. It has therefore not irreversibly been decided whether the eleven air carriers had violated European competition law. Most probably the case will be back, one imagines.
Quentin Declève alerted me to the Air Cargo damages compensation case currently making its way through the Dutch courts. (I have previously reported on jurisdictional issues re such cases; searching the tag ‘damages’ should help the reader).
I have difficulty locating the actual judgment addressing the issue in this post: namely applicable law in follow-up competition cases. I have however located one or two previous judgments addressing the damages claims assignment issue in same. This web of litigation seems to be particularly knotty and any help by Dutch or other readers would be appreciated.
At issue is whether Rome II applies to the facts ratione temporis; if it does, how Article 6 should be applied, in particular: locus delicti commissi, locus damni and ‘affected markets”; and if it does not, how the previous Dutch residual connecting factor ought to apply.
A case of great relevance to competition law and fair trading cases.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 4, Heading 4.6.2.
Hofsoe: Scope ratione personae of Brussels I’s protected categories in cases of assignment (specifically: insurance).
In C‑106/17 Hofsoe, the CJEU held late January that the Brussels I Recast Regulation jurisdictional rules for jurisdiction in matters relating to insurance, do not apply in case of assignment to a professional party. A B2C insurance contract assigned to a professional party therefore essentially turns into a B2B contract: the rules for protected categories are meant to protect weaker parties only. The Court also rejects a suggestion that the assignee ought to be able to prove that in fact it merits the forum actoris protection (on account of it being a sole insurance practitioner with little practice): the weakness is presumed and not subject to factual analysis.
Conclusion: at 43: ‘a person such as Mr Hofsoe, who carries out a professional activity recovering insurance indemnity claims against insurance companies, in his capacity as contractual assignee of such claims, should not benefit from the special protection constituted by the forum actoris.’
Predictability, and restrictive interpretation of the Regulation’s exceptions to the actor sequitur forum rei rule, are the classic lines along which the CJEU holds the case.
I for one continue to find it difficult to get my head round assignment not leading to the original obligation being transferred full monty; including its jurisdictional peculiarities. The referring court in this respect (at 28) refers to the applicable national law which provides for as much:
‘In that regard, the referring court points out, under Article 509(2) of the Civil Code, ‘all rights associated with the claim …shall be transferred with the claim’. In those circumstances, the assignment of the claim should include that of the benefit of jurisdiction.’
Indeed in Schrems the Court emphasises the impact of the assignor’s rights on the rights of the assignee. By contrast in Hofsoe, the assignee’s qualities (here: as a professional) call the shots. The Court essentially pushes an autonomous and not necessarily consistent EU law on assignment here. In Rome I, the issue has triggered all sorts of discussions – not least the relevant BICL study and the EC 2016 response to same. Under Brussels I Recast, the discussion is more silent.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.8.
As I noted at the time, the long and the short of the case is whether the concept of ‘consumer’ under the protected categories of Brussels I (and Recast) is a dynamic or a static one; and what kind of impact assignment has on jurisdiction for protected categories.
On the first issue, Mr Schrems points to his history as a user, first having set up a personal account, subsequently, as he became the poster child for opposition to social media’s alleged infringement of privacy, a Facebook page. Each of those, he suggests, are the object of a separate contract with Facebook. FB suggests they are part of one and the same, initial contractual relationship. This one assumes, would assist FB with its line of argument that Herr Schrems’ initial use may have been covered by the forum consumentis, but that his subsequent professional use gazumps that initial qualification.
The Court suffices at 36 with the simple observation that the qualification as a single or dual contract is up to the national court (see inter alia the Gabriel, Engler and Ilsinger conundrum: Handbook, Chapter 2, Heading 22.214.171.124.a and generally the difficulties for the CJEU to force a harmonised notion of ‘contract’ upon the Member States), yet that nevertheless any such qualification needs to take into account the principles of interpretation of Brussels I’s protected categories: in particular, their restrictive interpretation. Whence it follows, the Court holds, that the interpretation needs to be dynamic, taking into account the subsequent (professional or not) use of the service: at 37-38: ‘il y a notamment lieu de tenir compte, s’agissant de services d’un réseau social numérique ayant vocation à être utilisés pendant une longue durée, de l’évolution ultérieure de l’usage qui est fait de ces services. Cette interprétation implique, notamment, qu’un requérant utilisateur de tels services pourrait invoquer la qualité de consommateur seulement si l’usage essentiellement non professionnel de ces services, pour lequel il a initialement conclu un contrat, n’a pas acquis, par la suite, un caractère essentiellement professionnel.’
The Court does add at 39-40 that acquired or existing knowledge of the sector or indeed the mere involvement in collective representation of the interests of the service’s users, has no impact on the qualification as a ‘consumer’: only professional use of the service does. (The Court in this respect refers to Article 169(1) TFEU’s objective to assist consumers with the representation of their collective interest).
On this point therefore the Court unlike the AG attaches more weight to restrictive interpretation than to predictability. (Bobek AG’s approach to the issue of dynamic /static was expressed more cautiously).
As for the assignment issue, the Court sides squarely with its AG: the assigned claims cannot be pursued in the jurisdiction which is the domicile of the assignee. That in my view de lega lata makes perfect sense.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 126.96.36.199.
Qualifying ‘consumers’ on social media and in the case of assignment. Bobek AG in Schrems v Facebook.
Bobek AG must have picked up his knack for colourful language at Teddy Hall. His Opinion last week in C-498/16 Schrems v Facebook is a delight and one does best service to it by simply inviting one reads it. Now, that must not absolve me of my duty to report succinctly on its contents – the Court itself I imagine will be equally short shrift with claimant’s arugments.
When I asked my students in the August exam to comment on the case, I simply gave them the preliminary questions and asked them how the CJEU should answer them:
1 Is Article 15 of Regulation 44/2001 to be interpreted as meaning that a ‘consumer’ within the meaning of that provision loses that status, if, after the comparatively long use of a private Facebook account, he publishes books in connection with the enforcement of his claims, on occasion also delivers lectures for remuneration, operates websites, collects donations for the enforcement of his claims and has assigned to him the claims of numerous consumers on the assurance that he will remit to them any proceeds awarded, after the deduction of legal costs?
2. Is Article 16 of Regulation (EC) No 44/2001 to be interpreted as meaning that a consumer in a Member State can also invoke at the same time as his own claims arising from a consumer supply at the claimant’s place of jurisdiction the claims of others consumers on the same subject who are domiciled
a. In the same Member State, b. In another Member State: or c. In a non-Member State,
if the claims assigned to him arise from consumer supplies involving the same defendant in the same legal context and if the assignment is not part of a professional or trade activity of the applicant, but rather serves to ensure the joint enforcement of claims?
The long and the short of the case is whether the concept of ‘consumer’ under the protected categories of Brussels I (and Recast) is a dynamic or a static one; and what kind of impact assignment has on jurisdiction for protected categories.
On the first issue, I expected my students to point to the CJEU’s precedent of applying the Regulation with a view to predictability and legal certainty; specifically for consumers, to Gruber and the burden of proof in cases of dual use; and to the Court’s judgment in Emrek. Other than the last issue, the AG points to all. Predictability points to a static approach: I would suggest the AG is right. Bobek AG does leave the door ajar for a dynamic interpretation: at 39: in exptional cases, a ‘dynamic’ approach to consumer status should not be entirely excluded. This could be potentially relevant in the event that a contract does not specify its aim, or it is open to different uses, and it lasts a long period of time, or is even indeterminate. It is conceivable that in such cases, the purpose for which a certain contractual service is used might change — not just partially, but even completely. Social media contracts may lead to such circumstances, one imagines, however there would be many ifs and buts to such analysis: including, I would suggest, the terms of the contract wich the service provider initially drew up.
On the issue of assignment the AG’s approach is entirely logical and not surprising: evidently Herr Schrems cannot have claims assigned to him and then exercise those claims using any other jurisdictional prerogatives then present in the original claim. While these may allow him to sue in the forum actoris of the original consumer, there is no valid argument whatsoever to suggest he could join them to his own domicile. The arguments made de lege ferenda (need for forum shopping in collective consumer redress) are justifiably rejected.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 188.8.131.52.