Posts Tagged Authentic languages

van Buggenhout /van de Mierop: ECJ disagrees with its AG re protection of debtors

Postscript 18/12/2014: the Tribunal de Commerce held on 8 December 2014: in view of applicable Belgian law, and despite the Bank’s efforts to distinguish the ECJ’s ruling, the sum was awarded to the liquidators. Appeal may follow.

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I reported earlier on the AG’s Opinion in C-251/12, van Buggenhout /van de Mierop.  The ECJ yesterday disagreed: the AG had opined on the basis of teleological and linguistic analysis. The Court does so, too, however reaches a different conclusion, in particular on the basis of a narrow reading of ‘to the benefit of’ or ‘in favour of’ the debtor:

The Court refers amongst others (and in deciding fashion so it would seem (see para 30 of the judgment)) to Article 24(1)’s provision that the obligation honoured for the benefit of the insolvent debtor ‘should have been for the benefit of the liquidator‘. I am not so sure that ‘should have been’ applies in a case such as in the main proceedings where the whole point is that the third party paid a debt in favour of the debtor, subject to insolvency, bona fide not being aware of said insolvency.  ‘Should have been made’ may be so in the eyes of the liquidators, but not in the eyes of the unaware third party.

The ECJ does conclude ‘However, the fact that Article 24(1) of Regulation No 1346/2000 is not applicable to a situation such as that at issue in the main proceedings does not, in itself, give rise to the obligation for the bank concerned to reimburse the disputed sum to the general body of creditors. The issue regarding any liability of that bank is governed by the applicable national law.’ In other words, the liquidators are not home and dry yet. (Update 18 December 2014: see however postscript).

Geert.

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Mind your language! Authentic language texts of BITs

Linguistic interpretation features regularly of course in Treaty interpretation, including in Bilateral Investment Treaties – BITs. Kilic Insaat Ithalat Ihracat Sanayi ve Ticaret Anonim Sirketi v. Turkmenistan (ICSID Case No. ARB/10/1) concerned the Turkey-Kyrgyzstan BIT, which is authentic in English and Russian – neither a Turkish nor Turkmen version had been signed.

The tribunal’s analysis of the object and purpose of the Treaty, with a view to determining the procedural requirements prior to submitting to ICSID and given the inconsistencies between the two authentic versions, is a good reminder of similar issues in the EU, on which I reported extensively in previous work (since that paper, the relevance of the issue in the EU has only increased).

Geert.

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