Posts Tagged Belgium
Many thanks Michael Verhaeghe (whom I have the pleasure with jointly to be representing a client) for alerting me to Lodi Trading in which the Belgian Supreme Court applied (and distinguished) Kolassa. Lodi Trading is registered in The Netherlands and seemingly had been duped into transferring funds to a gang of fraudsters. As always, the judgment is very very scant on factual reference, and I have not been able to find the Court of Appeals’ judgement: if anyone can: Court of Appeal Gent, 8 December 2015.
Like the CJEU itself did clearly in Universal Music, the Hof van Cassatie distinguished Kolassa (although it does not refer to Universal Music in this part of the judgment) by insisting there be circumstances specific to the case, over and above the simple presence of a bank account, which point to the damage occurring in that State.
In Universal Music the CJEU had emphasised the need for case-specific facts for bank accounts to be a relevant factor in determining jurisdiction, by holding that ‘it is only where the other circumstances specific to the case also contribute to attributing jurisdiction to the courts for the place where a purely financial damage occurred, that such damage could, justifiably, entitle the applicant to bring the proceedings before the courts for that place.’ (emphasis added).
What seems (but again: see the joint caveat of the Supreme Court’s judgment being scant and the Court of Appeal’s judgment being untraceable) to be specific to this case is that the Court of Appeal had held in favour of the location of the bank account of recipient of the funds being locus damni, given that ‘internal law’ (by which I take it reference is made to Belgian, not Dutch law) determines that the time of payment is determined by the moment of accreditation of the funds to the beneficiary’s account: not (the alternative reading; but again I am assuming for the judgment’s 10 brief paras do invite speculation) the time of the funds leaving the account holder’s account.
It could well be therefore that the Supreme Court is rebuking the Court of Appeal for having Belgian law enter the equation, given the need for autonomous interpretation of European civil procedure. But I am not entirely sure.
(Handbook of) European private international law, second ed. 2016, Chapter 2, Headings 126.96.36.199, 188.8.131.52.7
Belgian parliamentary watchdog upholds unstunned slaughter, protects Shechita (kosher) and Zabihah (halal).
Update 28 July 2016 A Brussels Court has referred to the CJEU for interpretation of the EU Regulation, questioning whether the Regulation’s regime may itself be incompatible with the ECHR. Update 16 September 2016 the case number is C-426/16. See here for the questions referred (in Dutch).
The Belgian Council of State, chamber of legislation (in the title I call it a ‘parliamentary watchdog: for that is what it is. By issuing prior opinions on the legality of legislative initiative it guards against illegal Statute) has opined that a private members bill banning unstunned slaughter, does not pass the ECHR test.
A European Regulation (1099/2009) provides for an unclear, and conditional, exemption for religious (regularly rather offendingly called ‘ritual’) slaughter. Practised in particular by the Jewish (Shechita; leading to ‘kosher’ meat) and Muslim (Zabihah; with halal meat) faith, a core aspect of the practice is that animals are not stunned prior to slaughter. The science on the effect of stunned or unstunned slaugther is unequivocal, and most certainly neither stunned nor unstunned slaughter, when carried out incorrectly (well documented in the case of stunned slaughter) does not aid the welfare of the animal.
Religious slaughter falls squarely within the European Convention of Human Rights Article 9’s freedom of religious expression. Hence the Council of State summarily (its conciseness is rather attractive) reviews the ECtHR’s case-law and concludes that the proposed ban would be both unconstitutional and clearly against the provisions of the ECHR.
On the EU Regulation front, I believe the EU rules are more problematic than the Opinion suggests (I have analysis on it forthcoming) however on the ECHR side of things, the Opinion could not be more correct. An outright ban on unstunned slaughter in the name of animal welfare or otherwise would offend freedom of religious expression to such a degree that it simply must not pass.
Update 21 March 2016 (these updates seem to follow an equinox pattern) NML Capital Ltd reportedly are contesting the legality of the Act before the Belgian Constitutional Court. (Update 24 March the Constitutionnal Court has the case down under three seperate actions, 6371, 6372, 6373).
Update 21 September 2015: the Act was adopted in July and enters into force today.
I have delayed reporting on this initiative for exam reasons. The Belgian Parliament is currently debating a private members’ proposal for statute to address so-called ‘vulture funds’. These funds are described by the financial dictionary as ‘A fund that buys distressed debt of commercial companies or sovereign nations at a cheap price and then often sues them for the entire value of the debt. The resemblance to vultures is because these funds profit from the debt of failing companies or poor nations.‘
The text of the proposal (in Dutch and French) is available here. Vulture funds litigation is generally called immoral in the proposal. Reference is made to a number of high-profile recent judgments where vulture funds have been given approval by various courts worldwide, to seek redress against assets held by the sovereign nations concerned, or indeed their creditors. Particularly sore is the enforcement sought against funds destined for development aid.
The proposal essentially defines ‘vulture funds’ and then suggests that recognition and enforcement of relevant judgments or arbitral awards, regardless of the law applicable to the underlying relationship with the government concerned, is considered to be contrary to Belgian ordre public international, hence unenforceable. The proposal as it stands now adds (probably superfluously) that relevant EU (read: the Brussels I recast Regulation) and international (read especially: the 1958 New York Convention) law takes priority.
The part of the proposal that is bound to attract attention is the attempt at defining the ‘vulture’ in vulture funds. Frits Bolkestein for instance (former EU Commissioner) has remarked that buying up ‘bad debt’ need not always be morally reprehensible (I would suggest it is not that part of the fund’ activities which has attracted the Belgian Parliament’s attention). The enforcement /recognition part of the proposal is interesting because it applies ordre public in a categorical manner, rather than in the ad hoc application which both EU law and residual Belgian conflicts law (the Belgian Private International Law Act) ordinarily call for. For residual Belgian law, this is probably Parliament’s prerogative. However for EU law (and the New York convention), a general apprehension against vulture funds may not qualify as a proper exercise of the ordre public exception. Courts at the least may wish formally to disregard the act when the judgment /award concerned is covered by Brussels I cq. New York; however they can point to the sentiment expressed in the Act, to support incompatibility with Belgian ordre public when tested against an individual case.
The drafters are aware that this initiative may be a drop in the ocean. Reference is made to other, national initiatives (France, UK, US) which may point to an emerging pattern of anti-vulture funds sentiment. Indeed the realities of forum shopping mean that vulture funds action will migrate away from the Belgian legal order. On the other hand, Belgium’s safe harbour may also mean that relevant assets will seek refuge there. All of course, presuming the initiative will actually be adopted by Parliament.
Geert. Disclosure: I advised the MPs concerned on the technical aspects of the recognition and enforcement leg of the proposal. [My advice may or may not have been followed ].
Belgium’s origin labelling of products from Israeli – occupied territories. A lot of beating round the bush.
The Belgian Government has published its ‘notice to retailers concerning origin labelling of products from Israeli occupied territories’. The initiative got a lot of press, in Belgium at least, the past few days. It was announced as the culmination of lengthy preparation in light of the existing difficulties in particular with the EU-Israel and EU-Palestine association agreements. Good summary of those difficulties is provided here by DEFRA. (Compiled in 2009 but the issues have remained more or less the same. Note that the Belgian notice refers as far as the exiting origin obligations are concerned, essentially revisits the DEFRA compilation).
Generally, initiatives like these are problematic at three levels.
Firstly, purely legally, specifically international trade law. Countries introducing these types of regimes (including the UK, Denmark, and now also Belgium) allege that all that is envisaged is consumer information, without any signal or pressure from government to boycott said products. That is cosmetic at best. One cannot seriously argue that given the current context, the ‘informative notice’ is not related to a political signal by the Belgian Government. Any consequences of the notice therefore in my view without doubt are sponsored by the Government and hence fall under WTO discipline. (Note that Palestine is not a WTO Member but Israel is). That same context feeds the argument that the introduction of a label of origin for the occupied Palestine territories serves to make all Israeli produce suspicious in the eyes of the Belgian consumer. That is a highly relevant angle for international trade law.
Secondly, the practical angle. A label of origin requirement is not new. The very existence of different agreements between Palestine, Israel and the EU requires it. Yet controlling those labels has proved impossible so far. Suggestions of lengthy preparation made me curious about the regime the Belgian Government would have devised. The answer is simply that is has devised none. The notice simply says
In order to clarify that these products originate from an Israeli settlement, the following labels are recommended: – ‘Product from the Golan Heights (Israeli settlement)’ – ‘Product from the West Bank (Israeli settlement)’. For products from the West Bank that do not originate from settlements, the label ‘product from the West Bank (Palestinian product)’ is recommended.
There are no indications of who is supposed to attach the labels (‘the retail industry’), who will inspect them, what rules of origin percentages apply. etc.
I am not an economist and hence not in a position to advice whether boycotts such as these actually reach those against whom they are intended. (Which is the third level of problems). Neither am I a public international lawyer who sees clear in the myriad of territorial and other claims which sadly dog Israel-Palestine relations. I am however a litigator and in that capacity I have always preferred doing things with blazing guns once it comes down to boycotts, consumer driven or not: state your case and do not beat around the bush. This notice is disappointing in view of the noise created around it in recent days and it pussyfoots around the real Government intention.